Exchange of Greek and Turkish Populations Case

(Lausanne Convention VI, January 30, 1923, Article 2)

Facts

In 1924, the Council of the League of Nations adopted the Resolution of the
Lausanne Convention VI in the course of the negotiations for the Lausanne Peace
Treaty of 1923, provided in Article 2 that the Greek inhabitants of Constantinople
should not be included in the obligatory exchange. The meaning of the foreign
term “éstablis” produced fundamental differences between the Greek and Turkish
delegations to the mixed commission, which had been set up under the convention
with full powers to take measures for its implementation.

The signing of the Convention concerning the exchange of Greek and

Turkish populations marked the end of the first phase of the Lausanne Peace
Conference. The government of both states agreed to the displacement of their
respective minorities within their newly drawn borders with the exception of two
territories, Constantinople and Western Thrace.

The Turkish government argued that in determining the definition of

“éstablis”, the Turkish law of domicile had to be applied, as otherwise the
sovereign rights of Turkey would be infringed. Another argument is the conditions
of establishment had to be proved before the Turkish courts. Since the Turkish
delegation did not accept the conclusions of the mixed commission and its legal
section, and the authorities of Turkish in Constantinople had arrested a huge
number of Greeks for expulsion, the mixed commission requested for the Council
of the League of Nations to submit the dispute to the Permanent Court of
International Justice. The purpose of putting the request before the Court was to
determine the meaning and scope of the word “éstablis” in Article 2 and the
conditions that had to be fulfilled by the Greek inhabitants of Constantinople in
order to be exempted from the compulsory exchange.

Issue

Whether or not the Lausanne Convention made any explicit or implicit

reference to national legislation?
Ruling

No. The Court limited itself to defining the word “éstablis” in the context of
Article 2 of the convention, beginning in the declaration that the difference was a
dispute regarding the interpretation of a treaty and as such involved a question of
international Law. A reference to national legislation would also have contradicted
the purpose of the convention which was that the same treatment be accorded to
the Greek and Turkish populations. The Court referred to its judgment, restating
that the right was an attribute of state, which is sovereignty.

More so, the Court stated that the purpose of the word “éstablis” in Article 2 of the
Lausanne Convention, regarding the exchange of Greek and Turkish populations,
is to indicate the conditions in point of time and place on which depends the
liability to exchange of Greeks and Muslims who respectively inhabit
Constantinople or Western Thrace. Also, this word refers to a situation of fact
constituted, in the case of the persons in question, by residence of a lasting nature.
The Court added that in order for the persons referred to in Article 2 of the
convention as "Greek inhabitants of Constantinople" may be considered as
"established" under the terms of the Convention and exempted from the
compulsory exchange, they must reside within the boundaries of the Prefecture of
the City of Constantinople as defined by the law of 1912, have arrived there, no
matter where they came from, at some date previous to October 30, 1918, and have
had, prior to that date, the intention of residing there for an extended period.
THE BARCELONA TRACTION, LIGHT AND POWER COMPANY,
LIMITED CASE
(BELGIUM v. SPAIN), July 24, 1964

Facts

The present case narrates about the Applicant Government which alleges
injury and damage to Belgian interests in a Canadian registered company, known
as the Barcelona Traction, Light and Power Company, Limited, resulting from
treatment of the company in Spain said to engage the international responsibility of
the Respondent Government. In opposition to the Belgian Application, the
Respondent Government has advanced objections in respect of the competence of
the Court or the admissibility of the claim, and as having a preliminary character.

Issues

Whether or not the national law concept of “the company” is applicable in

International Law?

Ruling

Yes. International law has to recognize the corporate entity as an institution

created by states, but take note that it does not amount to making rules of
International law dependent upon categories of domestic law. If an international
rule is ill-developed, international tribunals may invoke national laws in search of
general principles.

The Court took cognizance of the great amount of documentary and other
evidence submitted by the parties and appreciated the importance of the legal
problems raised by the allegation which was at the root of the Belgian claim and
which concerned denials of justice allegedly committed by organs of the Spanish
State. However, the possession by the Belgian Government of a right of protection
was a prerequisite for the examination of such problems. Since no jus standi before
the Court had been established, it was not for the Court to pronounce upon any
other aspect of the case.

The Court also considered that the adoption of the theory of diplomatic
protection of shareholders as such would open the door to competing claims on the
part of different States, which could create an atmosphere of insecurity in
international economic relations. In the particular circumstances of the present
case, where the company’s national State was able to act, the Court was not of the
opinion that jus standi was conferred on the Belgian Government by considerations
of equity.

The court’s ruling of dismissal of the case adequately demonstrates the

differences between states and individuals and who is considered sovereign in the
international realm. The court ruled in favor of Spain since Belgium had no
jurisdiction to do so and the shareholders seeking compensation were not given
diplomatic immunity. However, if the shareholders were to seek aid from Canada
in which the company is headquartered and given correct identity, a lawsuit could
occur. Thus an individual cannot bring a claim against a state since it is not given
that authority.
 Brazilian Loans Case (France vs. Brazil, 1929)

Facts

The Governments of France and Brazil have submitted to the Permanent

Court of International Justice by means of a Special Agreement concluded at Rio
de Janeiro between the aforesaid Governments, which was duly ratified by both
parties and filed with the Registry of the Court in accordance with Article 40 of the
Statute and Article 35 of the Rules of Court, by letters dated April 26 and 27, 1928,
signed by the French and Brazilian Ministers at The Hague. The dispute which has
arisen between the Brazilian Federal Government and the French holders of
various Brazilian Federal loans with regard to the question whether the service of
these loans should be effected on the basis of the gold franc or of the paper franc.

Issue

Whether or not it is the French Law that this case would govern in the
contractual obligations?

Ruling

No. That is a question of private international law which the Court, as it has
explained in its judgment regarding the Serbian loans, must decide by reference to
the actual nature of the obligations in question and to the circumstances attendant
upon their creation, though it may also take into account the expressed or presumed
intention of the Parties.

Having regard to the nature of the bonds and to the circumstances

concerning their issue, there seems to be no doubt that it is the Brazilian law and
not the French law which must be held to govern the obligations contracted, at all
events as regards to the substance of the debt and the validity of the clause defining
it.
BORIS MEJOFF vs. THE DIRECTOR OF PRISONS, G.R. No. L-4254,
September 26, 1951

Tuason, J.

Facts

The petitioner, Boris Mejoff, is a Russian alien who was brought to this
country from Shanghai as a secret operative by the Japanese forces during the
Japanese regime in the Philippines. Upon liberation, he was arrested as a Japanese
spy and was later handed to the Commonwealth Government for disposition in
accordance with Commonwealth Act No. 682. Thereafter, the court ordered for his
release, but the deportation board taking up his case found that having no travel
documents, Mejoff was staying illegally in the Philippines. He was referred to the
immigration authorities. The immigration commissioners, after a corresponding
investigation, declared that Mejoff had entered the Philippines illegally. A
deportation order was released against him on the first available transportation to
Russia. The petitioner was transferred to Cebu Provincial Jail to await the arrival of
the Russian vessel. Two Russian boats arrived at the Cebu Port but their captain
refused to take Mejoff for lack of authority. After several failed attempts to deport
Mejoff, the authorities detained him at the New Bilibid Prisons in Muntinlupa
believing that it is for the best interest of the country to keep him under detention
while arrangements for his departure are being made.

Issue

Whether or not Mejoff should be released from prison pending his

deportation?

Ruling

Yes. The Court held that the temporary detention is a necessary step in the
process of exclusion or expulsion of undesirable aliens and that pending
arrangements for his deportation, the Government has the right to hold the
undesirable alien under confinement for a reasonable length of time. No period was
fixed within which the immigration authorities should carry out the contemplated
deportation beyond this statement - the meaning of “reasonable time” depends
upon the circumstances, specially the difficulties of obtaining a passport, the
availability of transportation, the diplomatic arrangements with the governments
concerned and the efforts displayed to send the deportee away. The Court warned
that under established precedents, too long a detention may justify the issuance of a
writ of Habeas Corpus. Considering that the Government desires to expel the alien
and does not relish keeping him at the people’s expense, the Court must presume it
is making efforts to carry out the decree of exclusion by the highest officer of the
land. On top of the presumption, assurances were made during the oral argument
that the Government is really trying to expedite the expulsion of Mejoff. The
petitioner can be released if there is a record showing that the deportee is being
imprisoned under the pretense of awaiting a chance for deportation or unless the
Government admits that it can not deport him or he is being held for too long a
period our courts will not interfere.

Article 2 of the Philippine Constitution states that, “the Philippines

renounces war as instrument of national policy, adopts the generally accepted
principles of international law as part of the law of the land and adheres to the
policy of peace, equality, justice, freedom, cooperation, and amity with all
nations.” The protection against deprivation of liberty without due process of law,
and except for crimes committed against the laws of the land, is not limited to
Philippine citizens but extends to all residents, except enemy aliens, regardless of
nationality.