28
JAMES AND OTHERS v. THE UNITED KINGDOM JUGDMENT
and non-nationals. And it was then agreed, at the request of the German and
Belgian delegations, that "the general principles of international law, in their
present connotation, entailed the obligation to pay compensation to nonnationals in cases of expropriation" (emphasis added).
Above all, in their Resolution (52) 1 of 19 March 1952 approving the
text of the Protocol and opening it for signature, the Committee of Ministers
expressly stated that, "as regards Article 1 (P1-1), the general principles of
international law in their present connotation entail the obligation to pay
compensation to non-nationals in cases of expropriation" (emphasis added).
Having regard to the negotiating history as a whole, the Court considers that
this Resolution must be taken as a clear indication that the reference to the
general principles of international law was not intended to extend to
nationals.
The travaux préparatoires accordingly do not support the interpretation
for which the applicants contended.
65. Finally, it has not been demonstrated that, since the entry into force
of Protocol No. 1 (P1), State practice has developed to the point where it
can be said that the parties to that instrument regard the reference therein to
the general principles of international law as being applicable to the
treatment accorded by them to their own nationals. The evidence adduced
points distinctly in the opposite direction.
66. For all these reasons, the Court concludes that the general principles
of international law are not applicable to a taking by a State of the property
of its own nationals.
(d’) "Conditions provided for by law"
67. In the further alternative, the applicants argued that deprivation of
property without payment of compensation, or with compensation which is
unfair or unjust, does not fulfil the requirement in Article 1 (P1-1) that the
deprivation should be "subject to the conditions provided for by law",
interpreting that phrase as adverting not merely to municipal law but to the
fundamental principles of law common to all the Contracting States. In their
submission, a taking of property will be arbitrary and hence not in
accordance with "the conditions provided for by law" in this sense if, as
occurred in their case, the amount paid as compensation for the taking bears
no reasonable relation to the value of the property taken.
The Court has consistently held that the terms "law" or "lawful" in the
Convention "[do] not merely refer back to domestic law but also [relate] to
the quality of the law, requiring it to be compatible with the rule of law"
(see, as the most recent authority, the Malone judgment of 2 August 1984,
Series A no. 82, p. 32, para. 67). However on the facts, for the reasons given
at paragraphs 56 and 57 above, there are no grounds for finding that the
enfranchisement of the applicants’ properties was arbitrary because of the
terms of compensation provided for under the leasehold reform legislation.