JAMES AND OTHERS v. THE UNITED KINGDOM JUGDMENT CONCURRING OPINION OF JUDGES BINDSCHEDLER-ROBERT, GÖLCÜKLÜ, MATSCHER, PETTITI, RUSSO AND SPIELMANN (ARTICLE 1 OF PROTOCOL N° 1) (P1-1) 39 CONCURRING OPINION OF JUDGES BINDSCHEDLERROBERT, GÖLCÜKLÜ, MATSCHER, PETTITI, RUSSO AND SPIELMANN (ARTICLE 1 OF PROTOCOL No 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