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Transforming (Private) Rights through (Public) International Law: Readings on a ‘Strange and Painful Odyssey’ in the PCIJ Mavrommatis Case1

Published online by Cambridge University Press:  03 November 2011

MICHELLE BURGIS
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Abstract

Straddling both the centres of (European) power and the shifting dynamics of the post-Ottoman world in a quest to guarantee private rights through public international legal redress, the PCIJ Mavrommatis case provides a rich resource for interrogating the extent to which international law during the League period could speak for voices on the edge of empire. In this article, historical consideration of the regimes of empire and Mandate form the backdrop to an exploration into how international legal discourse (re)configured the relationship between the core and the periphery, especially for those peoples awaiting the promise of self-determination and sovereignty. The figure of a lone Greek investor and his dashed hopes in the newly created Palestine Mandate is the backdrop to this tail of ever-shifting interpretations of public and private rights, of speech as well as silence before and beyond the Peace Palace.

Keywords

League of NationsMandatePalestinePermanent Court of International Justicepublic/private distinction
Type
ARTICLES
Information
Leiden Journal of International Law , Volume 24 , Issue 4 , December 2011 , pp. 873 - 897
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2011

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References

2 The Mavrommatis Palestine Concessions Case (Greece/Britain), PCIJ Rep., (1924) Series A No. 2, (hereafter, Mavrommatis (1924)); The Mavrommatis Jerusalem Concessions Case (Greece/Britain), PCIJ Rep., (1925) Series A No. 5 (hereafter, Mavrommatis (1925)); Case of the Readaptation of the Mavrommatis Jerusalem Concessions (Jurisdiction) (Greece/Britain), PCIJ Rep., (1927) Series A No. 11 (hereafter, Mavrommatis (1927)).

3 Mavrommatis (1924), supra note 2, at 12. In 1995, the International Law Commission turned its attention to the matter of diplomatic protection with the aim of reaching agreement on a treaty text. According to the Commission, ‘the customary origin [of diplomatic protection] was shaped by the dictum’ in the 1924 Mavrommatis case, United National Yearbook of the International Law Commission (1998), Part II, at para. 62. After much debate on the viability of the ‘Mavrommatis fiction’, a modified definition of diplomatic protection appears in Art. 1 of the 2006 Draft Articles on Diplomatic Protection. See, in particular, Pellet, A., ‘The Second Death of Euripide Mavrommatis? Notes on the International Law Commission's Draft Articles on Diplomatic Protection’, (2008) 7 The Law & Practice of International Courts & Tribunals 33CrossRefGoogle Scholar. For an overview of the relationship between diplomatic protection, state responsibility, and the Mavrommatis case, see J. Crawford, ‘The ILC's Articles on Diplomatic Protection’, (2006) 31 S.Afr. YIL 19. Also see R. Portmann, Legal Personality in International Law (2010), 66; and Astorga, R. L., ‘Nationality of Juridical Persons in the ICSID Convention in Light of its Jurisprudence’, (2007) 11 MPYUNL 419, at 427Google Scholar.

4 H. Lauterpacht, The Development of International Law by the International Court (1958), especially at 34–5; O. Spiermann, International Legal Argument in the Permanent Court of Justice: The Rise of the International Judiciary (2005), 191–206.

5 Concessions over Jaffa granted during the war to Mavrommatis were not recognized as valid by the PCIJ. See N. Bentwich, England in Palestine (1932), 74.

6 It must be noted here that a remarkably similar story is found in the Phosphates in Morocco case, which would have concerned allegations of French bias against the interests of an Italian investor in the French Protectorate had it been heard on the merits. Phosphates in Morocco (Italy/France), PCIJ Rep., (1938) Series A/B No. 74.

7 Generally, see Kennedy, D., ‘When Renewal Repeats: Thinking against the Box’, (1999–2000) 32 NYUJILP 335Google Scholar.

8 Flagged by Skouteris in the wake of the Hague Conferences: T. Skouteris, The Notion of Progress in International Law Discourse (2010), 3.

9 Here, I draw inspiration from the title of Lindley's classic treatise, The Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law and Practice Relating to Colonial Expansion (1926).

10 Especially A. Anghie, Imperialism, Sovereignty and the Making of International Law (2005), Chapter 3, at 114–95; and B. Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (2003), Chapter 3, at 50–72.

11 Of course, this idea of a matter's international nature was the central issue confronting the PCIJ in the Nationality Decrees case: Nationalities Decrees Issued in Tunis and Morocco (French Zones) on November 8th, 1921, PCIJ Rep., (1923) Series B No. 4 (hereafter, Nationalities Decrees). For a critical rereading of the case, see Berman, N., ‘The Nationality Decrees Case, or, of Intimacy and Consent’, (2000) 13 LJIL 265CrossRefGoogle Scholar.

12 Chinkin, C., ‘A Critique of the Public/Private Dimension’, (1999) 10 EJIL 387, at 389CrossRefGoogle Scholar.

13 Here, I am particularly referring to the promises contained in the Hussein–McMahon correspondence and their denial by the Sykes–Picot Agreement. Exchange of Letters between France and Great Britain respecting the Recognition and Protection of an Arab State in Syria, 9/6 May 1916, 221 CTS 323 (The Sykes–Picot Agreement); and Exchange of Notes between France and Great Britain modifying the Agreement of 9/6 May 1916, 25/30 May 1916, 222 CTS 13. On the legal effects of the former agreement, see V. Kattan, From Coexistence to Conquest: International Law and the Origins of the Arab–Israeli Conflict, 1891–1949 (2009), Chapter 4.

14 Berman, N., ‘In the Wake of Empire’, (1999) 14 AUILR 1515 (First Annual Grotius Lecture, American Society of International Law)Google Scholar, at 1544 (emphasis added).

15 Here, I am particularly referring to scholars loosely linked through the Third World Approaches to International Law (TWAIL) and/or general postcolonial sensitivities. For example, see Anghie, supra note 10; A. Anghie et al. (eds.), The Third World and International Order: Law, Politics and Globalization (2003); Fidler, D. P., ‘A Kinder, Gentler System of Capitulations? International Law, Structural Adjustment, and the Standards of Liberal, Globalized Civilization’, (2000) 35 Texas ILJ 387Google Scholar; Gathii, T., ‘Alternative and Critical: The Contribution of Research and Scholarship on Developing Countries to International Legal Theory’, (2000) 41 Harv. ILJ 263Google Scholar; Mickelson, K., ‘Rhetoric and Rage: Third World Voices in International Legal Discourse’, (1998) 16 Wisc. ILJ 353Google Scholar; C. Miéville, Between Equal Rights: A Marxist Theory of International Law (2006); Nesiah, V., ‘Placing International Law: White Spaces on a Map’, (2003) 16 LJIL 1CrossRefGoogle Scholar; Pahuja, S., ‘The Postcoloniality of International Law’, (2005) 46 Harv. ILJ 459Google Scholar; Riles, A., ‘The View from the International Plane: Perspective and Scale in the Architecture of Colonial International Law’, (1995) 6 Law and Critique 38CrossRefGoogle Scholar.

16 The word ‘sultan’ () is derived from the Arabic verb to rule or dominate over (), whereas ‘Khalifa’ () derives from the verb meaning to succeed or follow () (the Prophet).

17 Generally, see Anghie, supra note 10, at Chapter 2.

18 In general, see my discussion in Boundaries of Discourse in the International Court of Justice: Mapping Arguments in Arab Territorial Disputes (2009), Part II Introduction.

19 Nationalities Decrees, supra note 11, at 27. We can also regard the status of the City of Danzig as possessing certain qualities of both mandates and protectorates. Although such terminology was not used, the Court's consideration of indigenous internal control, Polish control of foreign relations, and the difficulty of separating them captures one of the standard definitions of protectorates. The fact that this arrangement was created under treaty for the League echoes a mandatory relationship. See Free City of Danzig and International Labour Organization, PCIJ Rep., (1930) Series B No. 18. Also see Judge Anzilotti's discussion of the city's ‘self-governing’ capacity in his separate opinion, at 22.

20 Baty, T., ‘Protectorates and Mandates’, (1921–22) 2 BYIL 109, at 114Google Scholar.

21 Berman, supra note 11, at 282.

22 Ibid., at 294.

23 ‘European states adopted different views of native personality, depending on their own interests. The problem was that native personality was fluid, as it was created through the encounter with a European state which would inevitably “recognize” the capacity of the non-European entity according to its own needs’, Anghie, supra note 10, at 79.

24 According to Grewe, ‘the protagonists of colonial expansion in the nineteenth century did not deny non-civilized peoples the dominium civile, but rather only political imperium; not the capacity to hold private, civil rights, but rather legal personality as a subject of international law. They did not deny that every human being had innate rights which were held independently of the stage of culture and civilisation they had achieved’, W. H. Grewe, The Epochs of International Law (translated by M. Byers) (2000), 548.

25 Anghie, supra note 10, at 76. This sense of twilight is captured by Andrews in his observation of a two-tier international law of the nineteenth century between members and non-members of international society. Shaw further divides the system into three: full members and states in the Concert of Europe, non-European states, and non-European peoples not recognized as states. Andrews, J. A., ‘The Concept of Statehood and the Acquisition of Territory in the Nineteenth Century’, (1978) 94 Law Quarterly Review 408, at 419Google Scholar; and M. N. Shaw, Title to Territory in Africa: International Legal Issues (1986), 45.

26 J. Castellino and S. Allen, Title to Territory in International Law: A Temporal Analysis (2003), 91.

27 Potter, P. B., ‘Origin of the System of the Mandates under the League of Nations’, (1922) 16 APSR 563CrossRefGoogle Scholar.

28 Ibid., at 580.

29 Letter of Secretary Root to Baron Speck von Sternberg, 7 March 1906, cited in ibid., at 579 (emphasis added).

30 J. A. Hobson's Towards International Government, discussed in ibid., at 574.

31 Generally, see M. Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (2009), Chapter 1.

32 For a discussion on the nature of the French Protectorate over Morocco, see Judge Van Eysinga's dissenting opinion in the Phosphates in Morocco case, which he argues is not a standard protectorate. Instead, ‘the case we have to consider is that of a State, whose international status is in a large measure determined by collective conventions and which is under the protection of one of the States parties to these conventions’, supra note 6, at 32.

33 Mills, M. C., ‘The Mandatory System’, (1923) 17 AJIL 52CrossRefGoogle Scholar.

34 E. B. Haas, ‘Conflicting Colonial Policy Aims: Acceptance of the League of Nations Mandate System’, (1952) 6 IO 521, at 528.

35 On this, see especially D. K. Fieldhouse, Western Imperialism in the Middle East 1914–1958 (2006), Chapter 2.

36 For example, Darwin quotes Lord Balfour in 1918 as saying that ‘We will have a Protectorate [over former Ottoman lands] but not declare it’, Darwin, J., ‘An Undeclared Empire: The British in the Middle East, 1918–1939’, (1999) 27 Journal of Imperial and Commonwealth History 159CrossRefGoogle Scholar, at footnote 1.

37 Quoted in Berman, supra note 14, at 1526.

38 Generally, see Haas, supra note 34.

39 Heacock, R., ‘Le système international aux prises avec le colonialisme: Les déliberations sur la Palestine dans la commission permanente des mandates de la société des nations’, in Méouchy, N. and Sluglett, P. (eds.), The British and French Mandates in Comparative Perspective (2004), 129–42, at 130Google Scholar.

40 According to Mazower, ‘[b]ridging the gap between Washington and the Dominion was crucial. As it was, the idea of turning former German and Ottoman possessions into League mandates turned out to be an ingenious way of squaring the circle between the British Dominions’ demand to annex former German colonies and the need to pay lip service to Wilsonian idealism’, Mazower, supra note 31, at 45.

41 Letter to Lord Curzon from US Ambassador in London, John Davis, 12 May 1920, Correspondence between His Majesty's Government and the United States Ambassador Respecting Economic Rights in Mandated Territories, British Government Document, Miscellaneous No. 10 (1921), at 1.

42 ‘Convention between the United States and Great Britain respecting Rights in Palestine’, (1926) 20 AJIL 65, at 72.

43 In particular, see M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2005), Chapter 4.

44 Especially see Berman, N., ‘Sovereignty in Abeyance: Self-Determination and International Law’, (1988–89) 7 Wisc. ILJ 51Google Scholar.

45 Lauterpacht, H., ‘The Mandate under International Law in the Covenant of the League of Nations’, in Lauterpacht, E. (ed.), International Law: Being the Collected Papers of Hersch Lauterpacht, Vol. 3 (1977), 29–84, at 49Google Scholar. Cf. Hales, who argues that ‘sovereignty is not vested in any single body’, Hales, J. C., ‘Some Legal Aspects of the Mandate System: Sovereignty–Nationality–Termination and Transfer’, (1937) 23 Transactions of the Grotius Society 85, at 94Google Scholar.

46 J. Crawford, The Creation of States in International Law (2006), 573.

47 Generally, see Art. 22, Covenant of the League of Nations, 28 June 1919, 225 CTS 188. Norman Bentwich goes so far as to characterize the Mandate system as a form of ‘noblesse oblige in the national as well as in private affairs’, Bentwich, N., ‘Mandated Territories: Palestine and Mesopotamia (Iraq)’, (1921–22) 2 BYIL 48, at 49Google Scholar.

48 ‘Whereas previously the internal character of the sovereign European state was immune from scrutiny, in the inter-war period it was precisely through the Mandate System that international law and institutions had complete access to the interior of a society. It was in the operations of the Mandate System, then, that it became possible for law not merely to enter the interior realm, but also to create the social and political infrastructure necessary to support a functioning sovereign state’, Anghie, supra note 10, at 135–6.

49 Ibid., at 148–9.

50 For a good example of the Palestine-as-exception narrative, see Rappard, W. E., ‘Mandates and Trusteeships with Particular Reference to Palestine’, (1946) 8 JP 520, at 520–6Google Scholar.

51 Likhovski, A., ‘Between “Mandate” and “State”: Re-Thinking the Periodization of Israeli Legal History’, (1998) 19 Journal of Israeli History 39, at 41CrossRefGoogle Scholar.

52 Ibid.

53 For Bunton, in his study of land policies in Mandate Palestine, the ‘need for a broader, comparative approach has not generally been recognised in the literature on the land in Palestine which instead has shown a tendency to accentuate the uniqueness of the period’ (at 4). Throughout his study, he argues that ‘British land policies in Palestine were constantly in flux, and are best understood in terms of wider frames of reference which recognize property as a fluid social construction, informed as much or more by structures and patterns inherited from the Ottoman past and by assumptions about changing realities on the ground, than by those idealized and imported from London. This may be little more than the established historical practice of balancing continuity and change, but it has not always been brought to bear in the study of land in mandate Palestine’, M. Bunton, Colonial Land Policies in Palestine 1917–1936 (2007), 5–6.

54 On all of these points regarding historical method, see ‘Introduction’, I. Pappé, A History of Modern Palestine: One Land, Two Peoples (2006), 1–12.

55 Palestine's Chief Justice between 1921 and 1927 thus related this transition period in the following terms: ‘The Government Departments were developed. Although the Government was in form a civil one, Palestine was still held by the power of the sword. There had been no cession of the territory by Treaty. That state of things went on until September 11, 1922, when Sir Herbert [Samuel] took the Oaths of Office and Allegiance at a ceremony of some historical interest, when the King's Proclamation was read and His Majesty assumed control, not as conqueror of Palestine, but as having accepted authority under the Mandate. The conquest was a fact. His acceptance of authority under the Mandate was the realization in formal terms of a political idea. The Mandate was a sort of constitution, conferring limited powers of government; but under the shadow of the sword the King had already set up a government in civil form in July, 1920’, Haycraft, T. W., ‘Palestine under the Mandate’, (1928) 15 Journal of the Central Asian Society 167, at 170 (emphasis added)CrossRefGoogle Scholar. For background on Sir Herbert Samuel as first High Commissioner, see Wasserstein, B., ‘Herbert Samuel and the Palestine Problem’, (1976) 91 English Historical Review 753CrossRefGoogle Scholar.

56 LeVine, M., ‘Land, Law and the Planning of Empire: Jaffa and Tel Aviv during the Late Ottoman and Mandate Periods’, in İslamoğlu, H. (ed.), Constituting Modernity: Private Property in the East and West (2004), 100–46, at 115Google Scholar; Bentwich, N., ‘The Legal Administration of Palestine under the British Military Occupation’, (1920–21) 1 BYIL 139, at 146Google Scholar. See also W. Stein, The Land Question in Palestine, 1917–1939 (1987), Chapter 1 and especially 39–47.

57 Bentwich, supra note 47, at 53.

58 LeVine, supra note 56, at 104.

59 Generally, see Bunton, supra note 53; Bunton, M., ‘Inventing the Status Quo: Ottoman Land-Law during the Palestine Mandate, 1917–1936’, (1999) 21 International History Review 28CrossRefGoogle Scholar; and Shehadeh, R., ‘The Land Law of Palestine: An Analysis of the Definition of State Lands’, (1982) 11 Journal of Palestine Studies 82CrossRefGoogle Scholar.

60 LeVine, supra note 56, at 102 (emphasis added). According to Likhovski, there were many elements at play during this period of legal reform, which reveal ‘the importance of paying attention to affinities and similarities, fissures and gaps that undermine the colonizer/native dichotomy’ (at 7). Much of Ottoman law had been codified along French civil-law lines and, under the British, a common-law system was strengthened through a policy of ‘Anglicization’ of the legal system, A. Likhovski, Law and Identity in Mandate Palestine (2006), 23.

61 Ibid., at 55.

62 H. Samuel, ‘An Interim Report on the Civil Administration of Palestine during the period of 1st July, 1920–30th June, 1921’, London: British Government Document, at 4.

63 Haycraft, supra note 55, at 186.

64 In this section, I particularly rely on the writings of Norman Bentwich, the first Attorney-General in Palestine, 1922–31; Sir Thomas Haycraft, Chief Justice in Palestine, 1921–27; and Herbert Samuel, first High Commissioner in Palestine, 1920–25.

65 Samuel, supra note 62, at 4; and Haycraft, supra note 55, at 179.

66 Haycraft, supra note 55, at 181. It must be noted that the main population centres of new Jewish immigration were not in the hills as much as the coastal plain around centres such as Haifa and Tel Aviv.

67 It is important to note that both Arabic and Hebrew are Semitic languages and thus it seems strange to speak of Arab-instigated ‘anti-Semitism’. We need to understand the progeny of this term within the context of nineteenth-century Europe and various nationalisms incapable of respecting a place for Jews in the polity. According to Shimoni, it ‘is not a coincidence that the code-word for Jew-hatred that became current from . . . the mid-1870s was “anti-Semitismus”, as it has remained to this day. So-called “Semitism” was an invented image related to the occidental construction of the so-called “Orient”’, Shimoni, G., ‘Postcolonial Theory and the History of Zionism’, (2007) 13 Israel Affairs 859, at 861CrossRefGoogle Scholar.

68 For a discussion on the links between Britain's support for Zionism and anti-Semitic prejudices within policy circles, see Kattan, supra note 13, at Chapter 1.

69 Fieldhouse, supra note 35, at 117. This is noted in the 1925 Mavrommatis pleadings: ‘one would not wish to be thought that we were here by reason of any desire to benefit ourselves or to benefit our own nationals’, Speech by Sir D. Hogg, Counsel for Britain, Part II, Speeches and Documents Read before the Court, Series C, No. 7, February 1925, at 101.

70 Penslar, D. J., ‘Zionism, Colonialism and Postcolonialism’, (2001) 20 (2–3)Journal of Israeli History 84, at 86CrossRefGoogle Scholar.

71 Ibid., at 87.

72 Bentwich states that a ‘national home connotes a territory in which a people, without receiving the rights of political sovereignty, has nevertheless, a recognized legal position and receives the opportunity of developing its moral, social, and intellectual ideals’, Bentwich, N., ‘The Mandate for Palestine’, (1929) 10 BYIL 137, at 139Google Scholar.

73 Evelyn Shuckburgh, quoted in B. J. Smith, The Roots of Separatism in Palestine: British Economic Policy 1920–1929 (1993), 118.

74 The Preamble in part reads: ‘Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country; and Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country’ (emphasis added). Also see Arts. 2, 4, 6, 7, 11. Note the differing nature of rights recognized to Jews (political, national, and historical) and Palestinian Arabs (civil and religious). Also note the quintessentially private image evoked by the term ‘national home’ placed within a (public) treaty text.

75 The extent to which European (or Ashkenazi) Jews were seen and saw themselves as agents of European development is significant. Non-European (or Mizrahi, Sephardi, ‘Oriental’) Jews were often regarded as a threat to the Zionist project because of their ‘backward’ cultural tendencies. See Shohat, E., ‘Sephardim in Israel: Zionism from the Standpoint of Its Jewish Victims’, (1988) 19/20Social Text 1CrossRefGoogle Scholar.

76 J. Strawson, Partitioning Palestine: Legal Fundamentalism in the Palestinian–Israeli Conflict (2010), 48–9.

77 Art. 6, Palestine Mandate (emphasis added). This notion of ‘close settlement of the land’ is repeated in Art. 11, discussed below.

78 Smith, supra note 73, at 13.

79 Ibid., at 116.

80 For part of the intertwined story of these two investors, see M. Naor, ‘An Electrifying Story’, Ha'Aretz, 25 January 2004, available online at www.haaretz.com/print-edition/features/an-electrifying-story-1.111974.

81 Smith, supra note 73, at 7–8.

82 In the words of Bentwich, ‘Industries hitherto unknown in Palestine found here a new home, obtaining their motive power from the electric station of Rutenberg, their capital from the bourgeois [European, Jewish] immigration, and their human power from the settlers who brought with them a new skill and new crafts’, Bentwich, supra note 5, at 118–99.

83 For a consideration of the differences that developed between the two communities in this period, see R. Khalidi, The Iron Cage: The Story of the Palestinian Struggle for Statehood (2007), 9–22.

84 Notably, the riots of 1920, 1921, and 1929; the Arab Revolt of 1936–39; and the war of late 1947–May 1948. In relation to the conflict of 1947–49, revisionist authors define the period until May 1948 as a civil war between Palestinians, the Yishuv and British forces before turning international with the withdrawal of British troops, the declaration of the state of Israel, and the intervention of Arab states in the fighting. For example, see A. Shlaim, The Iron Wall: Israel and the Arab World (2000), Chapter 1.

85 According to Politis, ‘la readptation . . . n'est pas pratiqement possible. Elle ne l'est pas, car, comme il a été expliqué dans l'exposé des faits, comme j'ai essayé de le faire moi-même, par suite de la politique adoptée par le Gouvernement britannique en Palestine – dont les concessions accordées à M. Rutenberg, en 1921, constituent la principale et la plus charctéristique manifestation –, il s'est créé dans ce pays une telle situation de fait que, malgré la meilleure volonté du Gouvernement britannique, dont je ne doute pas, M. Mavrommatis se trouve dans l'impossibilité matérielle de faire aujourd'hui ce qu'il aurait pu faire au lendemain de la guerre’, Mr N. Politis, Counsel for Greece, Part II, Speeches and Documents Read before the Court, Series C, No. 7, February 1925, at 74.

86 Generally, Greece, in its pleadings, argued that the policies of the British were formulated before the Mandate as soon as it assumed control there. See ibid., at 57. Bentwich, the first Attorney-General in Mandate Palestine, even mentioned a meeting between Mr Churchill, Secretary of State for the Colonies, and Rutenberg in 1921, where it ‘was decided in principle’ that Britain would grant extension concession rights to develop electricity in Palestine to Rutenberg. According to Bentwich, the ‘scheme opened possibilities of irrigation on a large scale, and also of industrial development; and it was to become the symbol of the struggle between the demand for progress in Palestine and the sentiment for maintaining the Holy Land in its pristine simplicity’, Bentwich, supra note 5, at 64. For a consideration of Rutenberg's connection to Palestine, see Reguer, S., ‘Rutenberg and the Jordan Valley: A Revolution in Hydro-Electricity’, (1995) 31 Middle Eastern Studies 691, at 709CrossRefGoogle Scholar.

87 Smith, supra note 73, at 118.

88 Quoted in ibid.

89 Mavrommatis (1924), supra note 2, at 12.

90 Ibid., at 11.

91 Ibid., at 19.

92 ‘But it does not appear to be correct to maintain that the English expression “public control” only covers cases where the Government takes over and itself directs undertakings of one kind or another. The expression is also used to indicate certain forms of action taken by the State with regard to otherwise private undertakings’, ibid., at 20. Cf. Judge Finlay, who argued that Art. 11 required direct public control by the state and not simply the granting by the state of a concession for public utilities. Ibid., Judge Finlay, Dissenting Opinion, at 49.

93 Speech by Sir C. Hurst, Counsel for Britain, Part II, Speeches and Documents Read before the Court, Series C, No. 5, 4 September 1924, at 33; British Plea to Jurisdiction, at 439–40.

94 According to Douglas Hogg, ‘Few things can be worse for the dignity of the Court than that it should find itself involved in trying a multitude of causes which are, in effect, claims by private persons such as are dealt with in the ordinary municipal courts but which are diverted to this tribunal because it happens that the respondent is a sovereign State and that the claimant is a subject of some other Power’, Speech by Sir D. Hogg, Counsel for Britain, Part II, Speeches and Documents Read before the Court, Series C, No. 13, September 1927, at 20. In his separate opinion of 1924, Judge Bustamante also used the public/private device well to argue that the case at hand was not of concern to the League at all. The matter of Rutenberg concessions was strictly private, not only because it rested on a relationship between Britain and an individual. Furthermore, Judge Bustamante questioned the public and sovereign capacity of Britain in Palestine and drew a sharp distinction between its powers as a Mandatory compared to full public control as enjoyed by sovereign states. Mavrommatis (1924), supra note 2, Judge Bustamante, Dissenting Opinion, at 81–2.

95 Sir C. Hurst, supra note 93, at 41. Cf. Greece's position in the 1925 hearings, where the Court's involvement in the Mavrommatis affair is lauded as ‘one further step up the hill of progress’. Also see Speech by Mr H. Purchase, Counsel for Greece, Part II, Speeches and Documents Read before the Court, Series C, No. 7, February 1925, at 22.

96 Speech by Mr M. Politis, Counsel for Greece, Part II, Speeches and Documents Read before the Court, Series C, No. 5, 4 September 1924, at 43. Also see Speech by Mr H. Purchase, Counsel for Greece, Part II, Speeches and Documents Read before the Court, Series C, No. 7, February 1925, at 155.

97 Politis, supra note 96, at 50. This argument reflects that of Lauterpacht in his consideration of private-law analogies in international law. Although the mandate conjured up ideas of the (private-law) trust, its creation through ‘international legislation’ and its remit transported it into the public realm. Generally, see H. Lauterpacht, Private Law Sources and Analogies of International Law (with Special Reference to International Arbitration) (1927), 156–9, 191–202.

98 Especially that the Protocol attached to the Treaty of Lausanne entered into force after Greece's application. Mavrommatis (1924), supra note 2, at 33. Cf. Mavrommatis (1924), supra note 2, Judge Moore, Dissenting Opinion, at 57.

99 ‘Le fait que la Palestine a cessé d'être une province ottomane pour être érigée en Etat sous le mandat de la Grande-Bretagne et avec un foyer national pour le peuple juif ne modifie pas la situation juridiqe créé avant la guere au profit de M. Mavrommatis’, Greek Memorial, Part II, Speeches and Documents Read before the Court, Series C, No. 5, 4 September 1924, at 105.

100 Ibid.

101 Ibid., at 107.

102 Art. 4 reads: ‘An appropriate Jewish agency shall be recognised as a public body for the purpose of advising and co-operating with the Administration of Palestine in such economic, social and other matters as may affect the establishment of the Jewish national home and the interests of the Jewish population in Palestine, and, subject always to the control of the Administration to assist and take part in the development of the country’.

103 Emphasis added.

104 Mavrommatis (1924), supra note 2, at 19–24. At 20, the Court stated that ‘it does not appear to be correct to maintain that the English expression “public control” only covers cases where the Government takes over and itself directs undertakings of one kind or another. The expression is also used to indicate certain forms of action taken by the State with regard to otherwise private undertakings’. Cf. Findley, who calls for a strict interpretation of the provision, arguing that it requires actual direct public control by the Mandatory. Mavrommatis (1924), supra note 2, Judge Findley, Dissenting Opinion, at 49. Also see Mavrommatis (1925), supra note 2, at 27.

105 Lighthouses Case between France and Greece (France/Greece), PCIJ Rep., (1934) Series A/B No. 62. It is interesting to compare Judge Anzilotti's dissenting opinion in this case, where he argues for a strict interpretation of Art. 9 of Protocol XII before any subsisting rights can be recognized.

106 Art. 4 of the Protocol states: ‘Subject to the provisions of Article 6, the provisions of the contracts and subsequent agreements referred to in Article 1 shall, by agreement, and as regards both parties, be put into conformity with the new economic conditions’. Art. 6 provides: ‘Beneficiaries under concessionary contracts referred to in Article 1, which have not, on the date of this Protocol, begun to be put into operation, cannot avail themselves of the provisions of this Protocol relating to re-adaptation. These contracts may be dissolved on the request of the concessionaire made within six months from the coming into force of the Treaty of Peace signed this day. In such case the concessionaire will be entitled, if there is ground for it, to such indemnity in respect of the survey and investigation work as, in default of agreement between the parties, shall be considered equitable by the experts provided for in this Protocol.’

107 Mavrommatis (1925), supra note 2, at 47–8.

108 Ibid., at 42–5.

109 Ibid., at 17.

110 By reading the terms of Art. 4, the Court characterized the Jewish Agency as a ‘public body’. Mavrommatis (1924), supra note 2, at 21.

111 Britain repeatedly argued that Rutenberg was not a representative of the Jewish Agency, which was strictly true, but denies how his close connections facilitated the granting of his concession. Speech by Sir D. Hogg, Counsel for Britain, Part II, Speeches and Documents Read before the Court, Series C, No. 7, February 1925, at 128.

112 ‘The fact that a number of circumstances have combined to lessen the value of the concessions does not give M. Mavrommatis any claim against the British Government. The fact even that the political situation in Palestine has been so altered since 1914 that the concessions are likely to be less profitable – if it be a fact – does not give legal claim to damages against the British Government’, ibid., at 100 (emphasis added).

113 For example, in the 1925 pleadings, Sir Hogg declared that ‘it is not the British government which has acquired the territory of Palestine. But the territory has been acquired by the Administration of Palestine, and the position of the British government arises only under Article 22 of the Covenant of the League of Nations', Speech by Sir D. Hogg, Counsel for Britain, Part II, Speeches and Documents Read before the Court, Series C, No. 7, February 1925, at 101.

114 Described by Politis as ‘Je pretends que le Gouvernement britannique a exproprié, en fait, M. Mavrommatis parce qu'il a créé, par les concessions accordées à M. Rutenberg et par la politique inaugurée en Palestine à l'égard des Sionistes, une situation de fait qui rend impossible aujoud'hui à M. Mavrommatis la jouissance de ses droits’, Speech by N. Politis, Counsel for Greece, Part II, Speeches and Documents Read Before the Court, Series C, No. 7, February 1925, at 76.

115 Mavrommatis (1927), supra note 2, at 22.

116 Ibid., at 19–20.

117 For example, see ibid., Judge Altamira, Dissenting Opinion, at 37. It is interesting to note how Judge Altamira adopts a similar line of reasoning later in the 1934 Oscar Chinn case, which considered whether a de facto monopoly created by the Belgian government in the Congo had infringed on the rights of a private investor and businessman, Mr Chinn. As in the case of its 1927 majority judgment, the Court chose to disavow a broader, contextual reading to hold that there was no conflict between the Belgian policy and Belgium's international obligations vis-à-vis freedom of commerce and navigation on the Congo River. In contrast, Judge Altamira looks at the substantive effects of the policy to hold that conditions of inequality amount to a conflict. The Oscar Chinn case (Britain/Belgium), PCIJ Rep., (1934) Series A/B No. 63.

118 Mavrommatis (1927), ibid., Judge Caloyanni, Dissenting Opinion, at 52–4.

119 Ibid., Judge Nyholm, Dissenting Opinion, at 26.

120 Ibid., at 30–1.

121 Charlesworth, H., ‘Worlds Apart: Public/Private Distinctions in International Law’, in Thornton, M. (ed.), Public and Private: Feminist Legal Debates (1995), 243–60, at 250Google Scholar.

122 Anghie, supra note 10, at 175.