Richuk v Israel

JurisdictionIsrael
CourtSupreme Court (Israel)
Israel, Tel Aviv, District Court.
Supreme Court, sitting as the Court of Civil Appeals.

(Zeltner, Relieving President.)

(Olshan, President; Agranat and Witkon JJ.)

Richuk
and
The State of Israel.

International law in general Relation to municipal law Whether individuals can claim rights under treaties Effect of Agreement between United Kingdom and Israel relating to transfer of pension liabilities Treaty not incorporated in domestic law Whether pensioner relies upon Treaty in making claim.

State succession Pensions Agreement between United Kingdom and Israel Whether enforceable in Israel at instance of pensioner The law of Israel.

The individual in international law Position of In relation to treaties Whether entitled to make claims in reliance upon treaty Treaty not incorporated into municipal law Effect of Treaty between United Kingdom and Israel relating to assumption of pension obligations Claim by pensioner against State of Israel The law of Israel.

Treaties Operation and enforcement of Absence of municipal legislation Claim referring to treaty Whether national of Contracting Party has cause of action against his Government arising out of treaty Whether claim relies on treaty Collateral agreement between plaintiff and defendant Government The law of Israel.

The Facts.The plaintiff was a member of the former Palestine Police Force, in which he had served for more than twenty-two years. After the termination of the Mandate and the establishment of the State of Israel, the Government of the United Kingdom confirmed his entitlement to an annual pension for his service to the Mandatory Government. Between May 15, 1948 (the date of Israel's independence), and May 31, 1950, the British Government paid an annual pension in sterling and the plaintiff received the pension in Israel in local currency at the rate of one Israel pound per pound sterling. By Article 3 of an Agreement of March 30, 1950 (hereinafter referred to as the Treaty), between the Governments of Israel and of the United Kingdom,1 the Government of Israel agreed with the United Kingdom Government to pay the pensions of former officials of the Mandatory Government resident in Israel up to an amount not exceeding I200,000 annually, the capitalized value of which was estimated at 2,400,000 sterling. Commencing on June 1, 1950, the Government of Israel paid to the plaintiff an annual pension of I124.101. On December 31, 1953, a new rate of exchange was fixed, namely I5.040 per pound sterling. Following this devaluation the plaintiff demanded a pension of I625.460, but the defendant continued to pay the same annual pension as had been paid up to December 31, 1953, plus a small premium paid ex gratia. The plaintiff now claimed the balance due to him, namely, I1,503.977.

The following extracts from the pleadings are relevant to an understanding of the subsequent judgments.

Paragraphs 4 and 5 of the plaintiff's Statement of Claim contended:

In the Particulars of Defence the defendant admitted various facts alleged by the plaintiff and summarized above. The defendant did not specifically admit or deny the contents of paragraphs 4 and 5 of the Statement of Claim, but pleaded as follows:

The relevant provision of Israel domestic law governing the transfer of debt is Article 683 of the Mejelle, which provides:

A contract for the transfer of a debt may be concluded between the transferor and the transferee only, subject to the agreement of the person in whose favour the transfer is made. Hooper The Civil Law of Palestine and Transjordan, I (1933), p. 162.

Held (by the District Court): that the claim must be dismissed. The stipulations of an international treaty which had not been transformed into domestic law could not directly or indirectly form the basis of a claim in the domestic courts.

In its judgment the District Court said: Paragraph 4 (a) of the Particulars of Claim is carefully drafted. Counsel for the plaintiff stated that he based this claim on certain provisions of Israel domestic law and without any connection with the Treaty of March 30, 1950, between the Governments of Israel and the United Kingdom.

[After referring to this contention, the Court continued:] But the real question isDoes any basis for the transfer of the debt exist without any direct connection with the Treaty which was signed between the two Governments? The argument of Counsel for the plaintiff that he was not relying on that Treaty but that his case rested on the provisions of the domestic law, was not without reason because it is a well-known rule that the individual cannot base a claim on an international or an inter-State agreement. In order that a citizen of either one of the States Parties to the Treaty can bring a claim based thereon, it is necessary that the Treaty should be incorporated into the municipal law of that State and then the citizen will base his claim not on the international treaty but on the domestic law. If this procedure is not followed, it is not possible for him to substantiate his rights, if indeed he should come to possess any rights on the basis of that agreement. See Oppenheim's International Law, vol. 1, 7th edition by Lauterpacht, p. 580. This principle is so fundamental, and it is so well rooted, that it is no longer questioned.

[The Court here quoted from the judgment of the Supreme Court in Custodian for Absentee Property v. Samra (International Law Reports, 22 (1955), p. 5) and mentioned particularly the reference therein (at p. 8) to Hoani Te Heuheu Tukino v. Notea District Maori Land Board (Annual Digest, 9 (19381940), Case No. 184, p. 462), and continued:] It is not disputed that the Treaty between the Israeli and the British Governments of March 30, 1950, was not incorporated into the positive law of Israel but remained in its status of a bilateral Agreement between the two Governments, and that the plaintiff, as an individual whose rights, inter alia, are dealt with in that Agreement, cannot base a claim on it. But the bare statement made on behalf of the plaintiff that his claim has no connection with the Treaty, does not exempt me from the duty of examining whether in fact no connection exists between the claim and the said Treaty.

It is not to be doubted that when the two Governments concluded the Treaty, the British Government was released inter partes from the obligation to continue paying pensions to the Mandatory officials, including the plaintiff, and that, on the other hand, the defendant in this case took that obligation upon itself. I have no hesitation in finding that as between the British and the Israeli Governments there was here a transfer of debt. But the difficulty for the plaintiff is, as I have said, that he is not in a position to benefit from the Treaty concluded between those two entities.

But to the same extent that the plaintiff cannot directly rely on the Treaty, so he is not entitled to do this indirectly while at the same time arguing that he is not relying on the Treaty. True, this is not quite an accurate description of what Counsel for the plaintiff is trying to do. As stated, this basis of his claim is found in the provisions of Israeli law governing transfer of debt. But can that contention be substantiated? The replies to the following two questions will answer that contention: (a) In the absence of the inter-governmental Treaty, would it occur to anyone's mind that there could be a claim against the defendant arising out of the obligations of the British Government? (b) Is it permissible for the plaintiff to come in through the back door when the front door is closed to him?

The answer to the first question is clear. There is no doubt that in the absence of an agreement between the British Government and the defendant there would have been no basis for any possible claim against the defendant, because the defendant had not determined the plaintiff's right to an annual pension but the British Government had done so, and that not prior to the establishment of the State of Israel but subsequent thereto. But in fact, even if the plaintiff's right to a pension had been recognized prior to the establishment of the State, the situation would not be any different. It has been decided many times in the past that the Government of Israel is not the successor of H.M. Government and the conclusion of this is that the Government of Israel is not bound by any obligations which the British Government took upon itself.

The second question, also, does not raise any problem. If a man is barred from relying on the Treaty directly, he cannot do so indirectly. The plaintiff contends that he is not relying on the Treaty but, on the other hand, he is relying on the transfer of debt from the British Government to the Government of Israel. However, but for the Treaty between the two Governments there would have been no transfer of debt. The Treaty lies at the root of the claim and is in fact its inarticulate basis, and for this reason the law can be no different than it would be were the plaintiff relying directly on the Treaty and using it as a vehicle for the substantiation of his own rights. See Rustomjee v. The Queen (187677) 2 Q.B.D. 69; Re SchiffUNK (1921), 124 L.T. 266; and Administrator of German Property v. KnoopELR, [1933] Ch. 439; Annual Digest, 6 (19311932), Case No. 119, p. 240.

Moreover, Article 2 (c) of the Treaty stipulates that the annual amount to be paid by the Government of Israel shall not exceed 200,000 Israel pounds, and no evidence has been brought to show that plaintiff can, within that limit, demand the increase.

For the foregoing reasons it seems to me that this claim must be dismissed.

I am not oblivious to the difficult material situation in which the plaintiff, and certainly many others like him, finds himself as a result of this prevalent legal opinion. I therefore express the hope that the Government of Israel will do everything in its power, within the limits of the means placed at its disposal by the...

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