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PUBLIC RECORD OFFICE
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Reference :-
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12 PUBLIC RECORD OFFICE, LONDON
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of the Land Code, and also the Ottoman Mining Code, copy of which was also transmitted, and such a concession might be granted even against the wish of the landholder subject to his right to compensation for any injury which his property might suffer through the working of the mines or minerals.
That Mr. Herbert was to bring to our particular notice sections 6 and 7 of the Mining Code, which provided that the instrument of concession of mining rights should be an "Irade or document under the Sultan's Imperial Cypher, and that the term of the concession should be 99 years.
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That it appeared to your Lordship that under the Ottoman law the granting of concessions to work mines was properly described as an act of administration.
That since the commenceemnt of the British occupation the successive High Commissioners had acted on the assumption that by the Convention of the 4th of June, and the Annex thereto of the 17th of July 1878, by the additional article. respecting Legislation of August 14th, 1878, and by the Agreement respecting land of the 3rd of February 1879, copies of which were therewith transmitted to us, the Queen acquired the right to exercise in Cyprus all the functions of Government which previously to such occupation it had been competent to the Ottoman Government to perform.
That that assumption had been made in the belief that since any interpretation of the word "administer," as used in the Convention of June 4th, 1878, which would make the powers of the British administration less than those of the late Ottoman adminis- tration, especially in the matter of selling or letting the property of State, would render the " 'occupation" of the island very difficult, if not impracticable, such an interpretation would be inadmissible as defeating one of the principal objects purport- ing to be aimed at by the Convention.
That the term "administer," used in the Convention to express the position of the Queen's Government in Cyprus, should receive a very wide interpretation, may be inferred from the additional article of August 14th, 1878, which stated that the Ottoman Government intended the expression "occupy and administer" to include the right of legislating for the island, and even the power of entering into treaties with foreign Governments, in regard to their commercial and consular relations with Cyprus, "free from the Porte's control," and without even the obligation to notify such actions to the Government at Constantinople.
Again from the 4th article of the Annex of July 17th 1878, it appeared to your Lordship that the term "administer" was evidently intended to include the right of leasing and selling State property; for the Porte having by that article reserved to itself the right to lease and sell two particular kinds of State property must be under- stood to have conveyed to Her Majesty's Government, by some other instrument, the right to lease and sell all State property other than the two kinds reserved. That the only other stipulation, bearing in any way on the case, was the first article of the Convention assigning the island to be "occupied and administered" by this country ; and those terms would seem at the present time to include the right to lease and sell all State property in Cyprus of every kind whatsoever since the right of leasing and selling the two kinds originally excepted from the operation of the 4th article of the Annex to the Convention had, by the Agreement of February 3rd, 1879, been commuted in favour of Her Majesty's Government.
That the inference was fortified by the opinion of the Ottoman Council of Ministers. who, as reported at the time by Her Majesty's Ambassador at Constantipole, in a despatch, copy of which was enclosed, stated that after the commutation of the rights reserved by the 4th article "the whole island would be the absolute property of England."
That the right of selling or leasing State property was rendered practically nugatory in the hands of a Government occupying the island under an agreement which prescribed the cessation of such occupation in a specified contingency, unless the acts done in exercise of that right were to be binding on the Government by whom the right was delegated, in the event of its resuming, under the terms of the agreement, the occupation of the island. That it was therefore submitted that during the period of the British occupation of Cyprus, the British administration stood in all matters 0. Government in the place of the Turkish Government, and that the latter was bound by necessary implication from the terms and substance of the Convention, and the subsequent agreements, to admit the validity of any act done by the former during the period of such occupation, in accordance with Ottoman law as it existed at the time of the commencement of the occupation, or with any law validly made for the island during the occupation by the Queen's authority.
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That in support of the position that the lawful acts of the British administration would bind the Ottoman authorities on the Government of the island reverting unconditionally to the Porte, Mr. Herbert was to bring to our notice the following opinion by Heffter which might be considered to have an important bearing on the relations between persons affected by the acts of the British administration and the Ottoman authorities, if in the interpretation of the Convention the principles of international law were to be applied, viz. :—
"En cas d'un véritable interrègne tous les changements opérés dans la constitution du pays pendant l'invasion cessent d'être obligatoires. En ce cas, les relations politiques précédemment établies entre le souverain et le peuple rentreront en vigueur, à moins que le pouvoir constitutionnel ne juge utile d'y faire des changements ou de maintenir certaines parties de la constitution intermédiaire.
"Par suite du rétablissement de l'ancier état de choses, les institutions administratives et les actes purement réglementaires pourront être révoqués par le gouvernement intermédiaire. Le souverain restauré peut rétablir les lois, l'administration, et les autorités publiques, telles qu'elles existaient avant l'invasion; mais les droits privés nés sous ce régime, ainsi que les jugements rendus à la même époque, sont à l'abri de toute contestation, pourvu qu'ils puissent se concilier avec l'ordre de choses rétabli, Les conventions publiques conclues dans l'intervalle avec des souverains étrangers continuent à subsister lorsqu'elles sont d'une nature réelle (in rem), sauf la faculté de los abroger par suite d'un changement de circonstances au pour d'autres motifs légitimes.
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'Le souverain rétabli doit s'abstenir de faire un usage rétroactif de ses droits, soit envers ses propres sujets, soit envers des sujets étrangers, à raison de tout ce qui s'est passé pendant son expulsion conformément aux règles établies par le pouvoir inter- inédiaire. Ainsi, par exemple, il serait injuste de réclamer des arrières d'impôts ou de services qui aux termes des lois précédentes auraient dû lui être payés pendant le temps de son absence, car le gouvernement intermédiaire a succédé valublement aux droits et aux engagements de l'ancier état. mais non recouvres, sont dus incontestablement au souverain restauré; il peut en Au contraire, les impôts échus à cette époque, outre réclamer l'exécution des marchés passés avec le gouvernement intermédiaire.
"Les alienations de capitaux de rentes et, en général, de viens qui font partie du domaine de l'état, et non du domaine privé du souverain ou de la famille souveraine, opérées par le gouvernement intermédiaire, sont considérées comme valables.”
That according to that opinion, if Her Majesty's Government had occupied Cyprus by force of arms, and if the Ottoman Government had never ceased protesting against the occupation, that Government on regaining possession, even by force of arms, would, as it appeared to your Lordship, be bound in international law to respect all actions lawfully done and all alienations of State property in the island lawfully made by the British administration. "A fortiori” therefore would the Ottoman authorities seem bound to respect acts lawfully done and alienations of State property lawfully made in Cyprus by Her Majesty's Government, which had occupied the island under the express sanction of a treaty made with the Sultan, and had, if the views submitted above be correct, done and made those acts and alienations with the full antecedent sanction of the Ottoman Government.
That a doctrine contrary to that of Heffter was enunciated by Blunschli at page 407 of the accompanying volume, but it would seem from the context that Blunschli referred to a comparatively short and certainly military occupation, during which the ad interim" Government, the use of which term sufficiently emphasizes its temporary character, would not have established a regular and settled civil Government, whereas Helter contemplated an occupation of sufficient length to constitute interregnum," and one during which the occupying power would even be able to find a "true other powers ready to enter into treaties with regard to the occupied territory.
But it was conceived that even if doubts could be cast on leffter's opinion they would not sensibly affect the "a fortiori" position deduced from it.
That should the view be correct that lawful actions of the British Government in Cyprus would be binding on the Ottoman authorities in the event of the "
casus
foe leris" arising, it was presumed that the British Government would incur no legal or equitable liability to compensate a lessee or grantee of State property in Cyprus. should the Ottoman Government in that event refuse to acknowledge his title, but if the grant or lease would not, according to the true construction of the Conventions or according to international law, be binding on the Ottoman Government, it would appear desirable, if not necessary, that the British Government should in every case
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