contention was that the concessions were invalid and not entitled to recognition under Protocol XII annexed to the Treaty of Lausanne; " that 21 otherwise the British Government had not with respect to these concessions violated its international obligations under Article 11 of the mandate; 22 that the concessionary contracts had not begun to be put into operation and hence did not fall within provisions of the protocol relating to reädaptation; that the concessions were to be maintained without reädaptation unless their dissolution should be requested, in which case Mavrommatis would be entitled to an equitable indemnity; and that the compensation claimed was unreasonable and excessive. In its reply, the Greek Government insisted on the reädaptation or alternative compensation.

The judgment was handed down on March 26, 1925.23 The court was first careful to define the issues and the basis of its competence to deal with them. Its jurisdiction was said to be limited "to cases where M. Mavrommatis' concessions have been affected by the acts contemplated by Article 11 of the mandate, in so far as such are contrary to the obligations contracted under Protocol XII." Under Article 26 of the mandate, the court was to deal with a dispute with reference to Article 11 of the mandate. This latter article confers on the mandatory government the power, "subject to any international obligations accepted by the mandatory," to take certain measures with respect to natural resources and public utilities. The only such "international obligation" was contained in Protocol XII, which the court refused to supplement with "principles taken from general international law." The court had to say (1) whether the Mavrommatis concessions were valid, (2) whether the granting of the Rutenberg concessions by the British Government was a violation of an international obligation for which damages should be paid to Mavrommatis, and (3) whether the Mavrommatis concessions fall under Articles 4 and 5 of the Protocol XII relating to reädaptation, or under Article 6 relating to dissolution with compensation. For the last question, the court's competence was derived from the parties' agreement contained in the written proceedings and not from Article 26 of the mandate. The validity of the Mavrommatis concessions was attacked on the ground that M. Mavrommatis was incorrectly described in the concession as an Ottoman subject, that this was essential error, and that the protocol did not apply. But the court found that "the error can only relate to one of the attributes of the concessionaire," "4 and this attribute lost its practical signif

"For the text, see 28 League of Nations Treaty Series, p. 203; British Treaty Series, No. 16 (1923), Cmd. 1929, p. 203. The protocol is entitled "Protocol Relating to Certain Concessions Granted in the Ottoman Empire," and was signed by the British Empire, France, Italy, Greece, Roumania, the Serb-Croat-Slovene State and Turkey.

"For the text of the mandate, see League of Nations Official Journal, August, 1922, p. 1007.

" Publications of the Court, Series A, No. 5.

24 The American law of contracts would not be different. 3 Williston, Contracts (1924), § 1569.

British Government interposed a preliminary plea to the jurisdiction upon which the court delivered judgment on August 30, 1924, holding that it had jurisdiction of this part of the case 17 and instructing the President to fix the times for the deposit of further documents of the written proceedings. The Greek case had been presented on May 23, 1924. In January, 1925, the British Government submitted its counter-case, and the Greek Government a reply and the British Government a rejoinder. In the further consideration of the case on its merits, Deputy-Judges Beichmann, Negulesco and Yovanovitch replaced Judges de Bustamante, Moore and Pessoa, all of whom had sat when the court delivered its previous judgment on the plea to the jurisdiction. M. Caloyanni sat as a Greek national judge. M. Kapsambelis represented the Greek Government as agent, and MM. Politis and H. G. Purchase appeared as counsel for Greece, Sir Hamar Greenwood having been unable to appear. Mr. R. V. Vernon, vice Sir Cecil Hurst, acted as agent for the British Government, and Sir Douglas Hogg, K. C., Attorney-General, and Mr. Alexander P. Fachiri, appeared as counsel.

Argument of the case on its merits was begun on February 10, 1925, and continued on February 11, 12, 13 and 14. An interesting point arose when objection was taken to the Greek counsel's quoting from the English Parliamentary Debates (Hansard), copies of which had been communicated; but the court overruled the objection after withdrawing to consider the question. Sir Douglas Hogg asked the court to say that the rules of evidence "which are established in every civilized jurisprudence, ought to be observed not less but more closely by an international court, which ought to set an example to the courts of the world;" but the actual ruling of the court in this instance did not relate to rules of evidence in general.18 Counsel for the British Government also took exception to the inclusion of certain documents in the Greek case and in the annex to the Greek case because they were the result of interviews held and letters written "without prejudice." 19 This led M. Politis to object to the reflections alleged to be contained in the statement of this exception. The final result was that the representatives of the two governments agreed on the suppression of various parts of the documents which had been submitted to the court.20

The Greek contention was that the British Government as mandatory for Palestine was bound to respect the Mavrommatis concessions, to pay compensation for having rendered their realization impossible, and to pay £121,045 with interest at six per cent to acquit its obligation. The British

17 Publications of the Court, Series A, No. 2. See the comment in this JOURNAL, Vol. 19, p. 48; Fachiri, The Permanent Court of International Justice (1925), pp. 203-213. The concessions at Jaffa were eliminated from the consideration of the case on the merits.

18 Publications of the Court, Series C, No. 7-II, p. 33. The Rules of Court (Articles 4755) adopted on March 24, 1922, deal with the court's reception of evidence.

19 On the English law, see La Roche v. Armstrong, [1922] 1 K.B. 485. See also Wigmore, Evidence, § 1061.

20 See Publications of the Court, Series C, No. 7–II, p. 355.

contention was that the concessions were invalid and not entitled to recognition under Protocol XII annexed to the Treaty of Lausanne;"1 that otherwise the British Government had not with respect to these concessions violated its international obligations under Article 11 of the mandate; 22 that the concessionary contracts had not begun to be put into operation and hence did not fall within provisions of the protocol relating to reädaptation; that the concessions were to be maintained without reädaptation unless their dissolution should be requested, in which case Mavrommatis would be entitled to an equitable indemnity; and that the compensation claimed was unreasonable and excessive. In its reply, the Greek Government insisted on the reädaptation or alternative compensation.

The judgment was handed down on March 26, 1925.23 The court was first careful to define the issues and the basis of its competence to deal with them. Its jurisdiction was said to be limited "to cases where M. Mavrommatis' concessions have been affected by the acts contemplated by Article 11 of the mandate, in so far as such are contrary to the obligations contracted under Protocol XII." Under Article 26 of the mandate, the court was to deal with a dispute with reference to Article 11 of the mandate. This latter article confers on the mandatory government the power, "subject to any international obligations accepted by the mandatory," to take certain measures with respect to natural resources and public utilities. The only such "international obligation" was contained in Protocol XII, which the court refused to supplement with "principles taken from general international law." The court had to say (1) whether the Mavrommatis concessions were valid, (2) whether the granting of the Rutenberg concessions by the British Government was a violation of an international obligation for which damages should be paid to Mavrommatis, and (3) whether the Mavrommatis concessions fall under Articles 4 and 5 of the Protocol XII relating to reädaptation, or under Article 6 relating to dissolution with compensation. For the last question, the court's competence was derived from the parties' agreement contained in the written proceedings and not from Article 26 of the mandate. The validity of the Mavrommatis concessions was attacked on the ground that M. Mavrommatis was incorrectly described in the concession as an Ottoman subject, that this was essential error, and that the protocol did not apply. But the court found that "the error can only relate to one of the attributes of the concessionaire," 24 and this attribute lost its practical signif

♫ For the text, see 28 League of Nations Treaty Series, p. 203; British Treaty Series, No. 16 (1923), Cmd. 1929, p. 203. The protocol is entitled "Protocol Relating to Certain Concessions Granted in the Ottoman Empire," and was signed by the British Empire, France, Italy, Greece, Roumania, the Serb-Croat-Slovene State and Turkey.

"For the text of the mandate, see League of Nations Official Journal, August, 1922, p. 1007.

"Publications of the Court, Series A, No. 5.

"The American law of contracts would not be different. 3 Williston, Contracts (1924), § 1569.

icance in the provisions for the formation of an Ottoman company and the jurisdiction of the Ottoman courts. Nor did the misdescription prevent the concessions from being recognized as held by a subject of Greece rather than of Turkey, so as to fall within Article 9 of the protocol.

With regard to the relation between the Rutenberg concession granted by British Crown Agents for the Colonies on behalf of the High Commissioner for Palestine on September 21, 1921, and the Mavrommatis concessions, some overlapping had been admitted; but the British contention was that an article in the conditions attached to the Rutenberg contract prevented this from being a violation. In this article (Article 29) it was agreed that on the request of M. Rutenberg's company the High Commissioner would annul any valid preëxisting inconsistent concession, paying fair compensation. The court construed this to oblige M. Rutenberg to respect any such concession which he did not request to be annulled, and it found satisfactory evidence that M. Rutenberg and the Palestine Electric Corporation, Ltd., which he had formed, had renounced all right to request annulment of the Mavrommatis concessions and had agreed not to oppose Mavrommatis' proceeding with his concessions. Yet for a period prior to this renunciation there had been a possibility of such annulment. If this was provided for under the defunct Treaty of Sèvres,25 it was not provided for in Protocol XII which clearly provides (in Article 9) for the subrogation of successor states, effective in Palestine from October 30, 1918. Hence "so long as M. Rutenberg possessed the right to require the expropriation of the Mavrommatis concessions," this part of his contract was contrary to Great Britain's international obligation under Protocol XII.

The violation being clear, it remained for the court to say whether M. Mavrommatis had suffered loss which would entitle him to compensation. It was unable to find that actual expropriation had occurred, as the Greek Government contended; nor was it able to say that execution had been rendered impossible by reason of the Rutenberg contract. M. Mavrommatis may have lost financial support, but this was not a clear result of the violation of the British obligation. Too many other questions had to be faced. Hence the court concluded that no annulment had taken place and that no loss had been suffered for which compensation was to be awarded.

The question remained, on the submission by agreement of the parties, whether M. Mavrommatis was entitled to the benefit of the provisions for reädaptation of his concessions under Article 4 of the Protocol XII, or merely to the benefit of the provisions for equitable compensation, after requesting dissolution, for survey and investigation works under Article 6. This depended on whether at the date of the protocol, July 24, 1923, the concessionary contracts had "begun to be put into operation [reçu un commencement d'application]" within the terms of Article 6. While M. Mavrommatis 25 See Article 311 of the treaty between the Allied Powers and Turkey, signed at Sèvres on August 10, 1920, printed in Supplement to this JOURNAL, Vol. 15, p. 270.

had not begun actual work of construction, he had submitted plans and designs within time limits set by his contract, he had obtained credits, and he had availed himself of clauses in his contracts to request extensions of time; if all that he had done had been for the purpose of rendering his concessions unassailable, it was also in fulfilment of the contract. The court concluded therefore that M. Mavrommatis' concessions fell under Article 4 of the protocol and "that they should be brought into conformity with the new economic conditions by means of reädaptation." Determination of the method of reädaptation did not fall within the court's competence. In reaching its conclusion, the court referred to the fact that during the negotiations at the Conference of Lausanne, 26 the term "commencement d'application" had been substituted for a previously used expression "commencement d'execution," and "application" was thought to be a "more elastic and less rigid term" than "execution."

In sum, therefore, the court held that the concessions were valid; that in granting the Rutenberg contract, the British Government had not conformed to its international obligations mentioned in Article 11 of the mandate and contracted in Protocol XII of Lausanne; that M. Mavrommatis had suffered no loss from this action; that the Greek claim for indemnity was dismissed; and that M. Mavrommatis was entitled to a reädaptation of his concessions under Article 4 of the Protocol XII of Lausanne. In the first, second and fifth of these conclusions, the court was unanimous; only Judge Altamira dissented from the third and fourth conclusions. In view of the last holding, it is difficult to share Professor Borchard's view that the result is "not far different from that to which the court would have come by adopting the view of the minority judges at the first hearing," 27 for presumably negotiations have since proceeded for reädaptation.

POLISH POSTAL SERVICE IN DANZIG

By the Treaty of Versailles of June 28, 1919, the Principal Allied and Associated Powers undertook to establish the Free City of Danzig to "be placed under the protection of the League of Nations" (Article 102), and to negotiate a treaty between the Polish Government and the Free City of Danzig with the object (among others) of ensuring to Poland the control and administration of postal communication between Poland and the Port of Danzig (Article 104). Such a treaty, called a convention, was signed at Paris on November 9, 1920.28 Meanwhile a provisional agreement had been "In a previous instance, the court has studied negotiations antedating the signature of a treaty. See Advisory Opinion No. 3, in Publications of the Court, Series B, No. 3, p. 41. However, Sir Douglas Hogg (British Empire) opposed this practice very vigorously in his statement before the court on October 26, 1925, with reference to the request for an advisory opinion concerning Article 3 of the Treaty of Lausanne.

27 Edwin M. Borchard, "The Mavrommatis Concessions Cases," this JOURNAL, Vol. 19, pp. 728, 735.

23 6 League of Nations Treaty Series, p. 189.