JAMES AND OTHERS v. THE UNITED KINGDOM JUGDMENT
27
63. Finally, the applicants pointed out that to treat the general principles
of international law as inapplicable to a taking by a State of the property of
its own nationals would permit differentiation on the ground of nationality.
This, they said, would be incompatible with two provisions that are
incorporated in Protocol No. 1 by virtue of Article 5 thereof (P1-5): Article
1 (art. 1) of the Convention which obliges the Contracting States to secure
to everyone within their jurisdiction the rights and freedoms guaranteed and
Article 14 (art. 14) of the Convention which enshrines the principle of nondiscrimination.
As to Article 1 (art. 1) of the Convention, it is true that under most
provisions of the Convention and its Protocols nationals and non-nationals
enjoy the same protection but this does not exclude exceptions as far as this
may be indicated in a particular text (see, for example, Articles 4 para. 3 (b),
5 para. 1 (f) and 16 of the Convention, Articles 3 and 4 of Protocol No. 4)
(art. 4-3-b, art. 5-1-f, art. 16, P4-3, P4-4).
As to Article 14 (art. 14) of the Convention, the Court has consistently
held that differences of treatment do not constitute discrimination if they
have an "objective and reasonable justification" (see, as the most recent
authority, the Abdulaziz, Cabales and Balkandali judgment of 28 May 1985,
Series A no. 94, pp. 35-36, para. 72).
Especially as regards a taking of property effected in the context of a
social reform, there may well be good grounds for drawing a distinction
between nationals and non-nationals as far as compensation is concerned.
To begin with, non-nationals are more vulnerable to domestic legislation:
unlike nationals, they will generally have played no part in the election or
designation of its authors nor have been consulted on its adoption.
Secondly, although a taking of property must always be effected in the
public interest, different considerations may apply to nationals and nonnationals and there may well be legitimate reason for requiring nationals to
bear a greater burden in the public interest than non-nationals.
64. Confronted with a text whose interpretation has given rise to such
disagreement, the Court considers it proper to have recourse to the travaux
préparatoires as a supplementary means of interpretation (see Article 32 of
the Vienna Convention on the Law of Treaties).
Examination of the travaux préparatoires reveals that the express
reference to a right to compensation contained in earlier drafts of Article 1
(P1-1) was excluded, notably in the face of opposition on the part of the
United Kingdom and other States. The mention of the general principles of
international law was subsequently included and was the subject of several
statements to the effect that they protected only foreigners. Thus, when the
German Government stated that they could accept the text provided that it
was explicitly recognised that those principles involved the obligation to
pay compensation in the event of expropriation, the Swedish delegation
pointed out that those principles only applied to relations between a State