CONCURRING OPINION OF JUDGE THÓR VILHJÁLMSSON (ARTICLE 1 OF PROTOCOL N o 1) (P1-1)

In the present case, I have voted with the other members of the Court. I am, however, unable to agree with what is stated in the judgment as to compensation (see paragraphs 53 to 57). To my regret, I have come to the conclusion that Article 1 of Protocol No. 1 (P1-1) does not embody a right to compensation in the event of expropriation of one ’ s property.

The text of the Article (P1-1) makes no mention of compensation. In my opinion, that should have been done if part of its purpose had been to guarantee a right to compensation. The ordinary meaning of the text as it stands is therefore that it is not concerned with compensation.

Should it nevertheless be felt necessary to confirm this meaning by recourse to supplementary means of interpretation, the travaux préparatoires point to the very same conclusion, namely that Article 1 (P1-1) does not confer a right to compensation. The relevant points are the following.

The Committee of Ministers examined in November 1950 various amendments proposed by the Parliamentary Consultative Assembly to the draft Convention on Human Rights. When it became clear that immediate agreement could not be reached with regard to certain matters, it was decided that they should be removed from the draft and submitted to a committee of experts for further study. One of these matters was the right to property. The amendment proposed by the Assembly did not speak of compensation. In spite of that, the majority of the member States considered that compensation should be guaranteed and accordingly the text of the expert committee contained words to that effect (see the Collected Edition of the " Travaux préparatoires ", volume VII, pages 208 and 223-224). A number of Governments, however, could not agree to the inclusion in the Convention of the principle of compensation and reference to it was thereafter deleted from the text. A short account of how the text changed during the drafting period is given in the commentary of 18 September 1951 by the Secretary General (loc. cit., volume VIII, pages 4-10).

In view of all this, I am bound to draw the conclusion that the object and purpose of Article 1 of the Protocol (P1-1) did not go so far as to include a guarantee of a right to compensation. Even if the Convention is to be interpreted in the light of present-day conditions, I fail to see any development which could justify now another interpretation of the Article (P1-1).

CONCURRING OPINION OF JUDGES BINDSCHEDLER-ROBERT, GÖLCÜKLÜ, MATSCHER, PETTITI, RUSSO AND SPIELMANN (ARTICLE 1 OF PROTOCOL N o 1) (P1-1)

(Translation)

In paragraph 66, the judgment affirms that the general principles of international law are not applicable to a taking by a State of the property of its own nationals.

It must, however, be acknowledged that the reasoning set out in paragraphs 60 to 65 is, taken globally, far from convincing, even though it does contain some not insignificant arguments (for example, the reference to the drafting history in paragraph 64. Nevertheless it should be remembered that it is often dangerous to place too much reliance on such history).

Be this as it may, the thesis accepted by the judgment leads to a difference in the treatment of nationals and aliens under the Convention, which plainly conflicts with both the underlying spirit and the general scheme of the Convention (see Article 1) (art. 1). The rare exceptions to this principle are always either expressly stated (cf. for example, Article 16 of the Convention and Articles 3 and 4 of Protocol No. 4) (art. 16, P4-3, P4-4), or dealt with in a way which leaves no room for doubt (for example, Article 5 para. 1 (f) of the Convention) (art. 5-1-f).

The judgment does not give a satisfactory answer to this question, which we think is of fundamental importance for the interpretation of the Convention. We are even of the opinion that the arguments developed in paragraphs 61 and 63 are weak and that, generally speaking, the principles of interpretation on which the judgment is based deal merely with points of detail.

Moreover, it must not be forgotten that in the various Contracting States, legal opinion is extremely divided on the issue in question and that, at present, there is growing support for those who consider that the general principles of international law are applicable to nationals under Article 1 of Protocol No. 1 (P1-1).

The elasticity of the general principles of international law in this area can also be seen from a number of international arbitration awards which apply them in a flexible manner to nationalisations by third-world developing States.

In these circumstances, we would have preferred it if the issue had not been settled in this judgment, especially as it is not decisive for the final conclusion arrived at in the judgment. On the one hand, it is accepted that the general principles of international law (the content of which is, moreover, uncertain) seem to require no more than adequate compensation in the case of expropriation for the purpose of social and economic reforms. On the other hand, it is recognised that Article 1 of Protocol No. 1 (P1-1) in principle requires some measure of compensation in order to achieve a fair balance between the interests of society and the sacrifices imposed on private individuals.