| |
[p.19]
The Court,
composed as above,
delivers the following Judgment :
In a Statement signed by them at Washington on April 25th, 1951, the
Governments of the French Republic, the United Kingdom of Great Britain and
Northern Ireland and the United States of America, envisaging the
eventuality that, in accordance with an arbitral opinion which they were
seeking, a certain quantity of gold removed from Rome by the Germans in 1943
might be held to belong to Albania, agreed to deliver the gold which, in
accordance with this opinion, would fall to Albania, not to Albania herself
but to the United Kingdom, in partial satisfaction of the Judgment in the
Corfu Channel case, delivered by this Court on December 15th, 1949.
"unless within 90 days from the date of the communication of the
arbitrator's opinion to Italy and Albania, either
(a) Albania makes an application to the International Court of Justice for
the determination of the question whether it is proper that the gold, to
which Albania has established a claim under Part III, should be delivered to
the United Kingdom in partial satisfaction of the Corfu Channel judgment; or
(b) Italy makes an application to the International Court of Justice for the
determination of the question whether, by reason of any right which she
claims to possess as a result of the Albanian law of 13th January 1945, or
under the provisions of the Italian Peace Treaty, the gold should be
delivered to Italy rather than to Albania and agrees to accept the
jurisdiction of the Court to determine the question whether the claim of the
United Kingdom or of Italy to receive the gold should have priority, if this
issue should arise."
The three Governments at the same time stated that they would accept as
defendants the jurisdiction of the Court, for the purpose of the
determination of such Applications by Italy or by Albania or by both.
The opinion of the Arbitrator stating that the gold in question belonged in
1943 to Albania was given on February 20th, 1953. It was communicated the
same day to the three Governments, as well as to the Italian Government and
to the Albanian Government.
The Albanian Government has made no application to the Court as provided for
in paragraph (a) of the Washington Statement.
On May 19th, 1953, that is to Say, before the expiry of the time-limit
prescribed by the Statement of the three Governments, the diplomatic
representative of the Italian Republic in the Netherlands filed in the
Registry of the Court a Declaration by which the Italian Government,
invoking the Resolution of October 15th, 1946, of the Security Council of
the United Nations, accepted the [p 22] jurisdiction of the Court in respect
of the disputes referred to under paragraph (b) of the Statement of April
25th, 1951. The Italian Government expressly gave the undertakings required
by the Security Council Resolution.
The same day, the diplomatic representative of the Italian Republic in the
Netherlands, duly authorized by his Government, and in his capacity as
Agent, filed in the Registry an Application instituting proceedings against
the Governments of the French Republic, the United Kingdom and the United
States of America in the matter of the disposal of the monetary gold removed
from Rome. The Application contains the following Submissions :
"(1) that the Governments of the French Republic, Great Britain and Northern
Ireland and the United States of America should deliver to Italy any share
of the monetary gold that might be due to Albania under Part III of the
Paris Act of January 14th, 1946, in partial satisfaction for the damage
caused to Italy by the Albanian law of January 13th, 1945 ;
(2) that Italy's right to receive the said share of monetary gold must have
priority over the claim of the United Kingdom to receive the gold in partial
satisfaction of the Judgment in the Corfu Channel case."
The Application was transmitted by the Registry to the three defendant
Governments on the same day on which it was filed, namely, May 19th, 1953,
and to the Albanian Government on May 20th. It was also communicated to
other States entitled to appear before the Court, in accordance with the
provisions of its Statute and Rules.
By Order of July 1st, 1953, the time-limit for the filing of a Memorial by
the Italian Government was fixed for November 2nd, 1953, and
Counter-Memorials by the three respondent Governments were to be filed by
March 2nd, 1954.
On October 30th, 1953, the Agent of the Italian Government filed in the
Registry a document entitled "Preliminary Question". In this document, he
drew the attention of the Court to the fact that Submission No. I of the
Application invited the Court to pass upon the international responsibility
of Albania to Italy, as a result, in the view of the latter State, of the
Albanian law of January 13th, 1945. He pointed out that doubts might arise
as to the jurisdiction of the Court to adjudicate upon such a question
without the consent of Albania and therefore presented a submission, by
which the Italian Government :
"requests the Court to adjudicate on the Preliminary. Question of its
jurisdiction to deal with the merits of the claim set forth under No. I of
the Submissions of the Application submitted to the Court on May 19th,
1953".
By Order of November 3rd, 1953, the Court, without prejudging the question
of the interpretation and application of Article 62 of the [p 23] Rules of
Court, and deeming it appropriate to give the Italian Government an
opportunity to define its position and to submit documents in support
thereof, suspended the proceedings on the merits and fixed two time-limits :
one for the presentation of a written statement by the Italian Government
and the other for the presentation by the three respondent Governments of
their observations and submissions. The latter time-limit was subsequently
extended by Order of January 26th, 1954.
These Pleadings having been duly deposited within the prescribed
time-limits, the case, in so far as the Preliminary Question was concerned,
became ready for hearing on March 31st, 1954. Public hearings were held from
May 10th to May 14th, 1954. The Court was presided over by the
Vice-President, in accordance with Article 13, paragraph 1, of the Rules,
and included on the Bench M. Gaetano Morelli, Professor of International Law
of the Faculty of Political Science of the University of Rome, appointed by
the Italian Government to sit as Judge ad hoc. The Court heard the oral
arguments and replies of M. Casto Caruso and M. Tomaso Perassi on behalf of
the Italian Government, Applicant; on behalf of the Respondents, MM. André
Gros and Philippe Monod for the French Government, and Sir Gerald
Fitzmaurice and Mr. J. E. S. Fawcett for the Cnited Kingdom Government. Mr.
Herman Phleger, Agent of the Government of the United States, had informed
the Court that, since his Government did not expect to supplement its
written Statement by an oral statement on the Preliminary Question, he would
not be present at the oral proceedings ; however, he remained at the
disposal of the Court.
As regards the Preliminary Question, the following Submissions were
presented by the Parties :
On behalf of the Italian Government ;
in the Preliminary Question itself :
"For the foregoing reasons,
The Italian Government,
Having regard to the Order of July 1st, 1953, by the Vice-President of the
International Court of Justice, Acting President in this case,
Having regard to Article 62 of the Rules of Court,
Requests the Court to adjudicate on the preliminary question of its
jurisdiction to deal with the merits of the claim set forth under No. I of
the Submissions of the Application submitted to the Court on May 19th, 1953
;"
in the Statement on the Preliminary Question :
"For the foregoing reasons,
May it please the Court
To adjudge and declare :[p 24]
That the Statement to accompany publication of the Agreement between the
Governments of the French Republic, the United Kingdom of Great Britain and
Northern Ireland and the United States of America for the submission to an
arbitrator of certain claims with respect to gold looted by the Germans from
Rome in 1943 is not a sufficient basis upon which to found the jurisdiction
of the Court to deal with the merits of the claim set forth under No. I of
the Submissions of the Application submitted to the Court by the Government
of the Italian Republic on May 19th, 1953 ;
That the Court is consequently without jurisdiction to adjudicate upon the
merits of the said claim;"
as final Submissions at the hearing on May 13th, 1954:
May it please the Court
To adjudge and declare :
“That the Statement to accompany publication of the Agreement between the
Governments of the French Republic, the United Kingdom of Great Britain and
Northern Ireland and the United States of America for the submission to an
arbitrator of certain claims with respect to gold looted by the Germans from
Rome in 1943 is not a sufficient basis upon which to found the jurisdiction
of the Court to deal with the merits of the claim set forth under No. I of
the Submissions of the Application submitted to the Court by the Government
of the Italian Republic on May 19th, 1953 ;
That the Court is consequently without jurisdiction to adjudicate upon the
merits of the said claim;
That the Court, whatever may be its decision on the question of jurisdiction
referred to above, is without jurisdiction to adjudicate upon the claims
contained in No. I and No. 2 of the Submissions of the Government of the
United Kingdom dated March 26th, 1954."
On behalf of the United Kingdom Government; in the Observations and
Submissions on the Preliminary Question :
"For the reasons given above, the United Kingdom Government, while reserving
the right, if necessary, to present argument at a later stage on the merits
of the question of competence, requests the Court to find and declare:
(1) that, in view of the Italian Government's Objection on the question of
competence, its Application to the Court of May 19th, 1953, does not
conform, or no longer conforms, to the conditions and intentions of the
Tripartite Washington Statement of April 25th, 1951, and is accordingly
invalid and void, so that there is no longer before the Court any
'application .... for the determination of the question which, under the
Tripartite Statement, Italy was entitled to put to the Court;
Alternatively,
that the action of the Italian Government in objecting to the competence of
the Court amounts to a withdrawal or cancellation of its Application of May
19th, 1953, and disqualifies Italy from proceeding any further under the
Tripartite Washington Statement; [p 25]
(2) that, in consequence, the United Kingdom is entitled by the Tripartite
Washington Statement to receive a transfer of the gold in the same manner as
if Italy, as well as Albania, had not applied to the Court under the
relevant provisions of the Statement ;"
as final Submissions at the hearing on May 14th, 1954 :
"(1) That, in view of Italy's objection on the ground of the alleged lack of
competence of the Court, her Application to the Court of May 19th, 1953,
(a) does not conform to the conditions and intentions of the Tripartite
Washington Statement of April 25th, 1951, or
alternatively
(b) has been in effect withdrawn or cancelled by Italy, and is therefore
invalid and void ;
(2) that Italy is, in the circumstances, to be deemed not to have made any
application to the Court within the meaning and for the purposes of the
Tripartite Washington Statement.
Alternatively
(3) that, if the Court holds, contrary to the contentions of the United
Kingdom, that the Italian Application is still valid and subsisting, the
Court has jurisdiction to determine on their merits the questions put to the
Court in the Italian Application."
The French Government and the Government of the United States of America
have not deposited formal Submissions.
***
The origin of the present case is to be found in Part III of the Agreement
on Reparation from Germany, on the Establishment of an Inter-Allied
Reparation Agency and on the Restitution of Monetary Gold, signed at Paris
on January 14th, 1946. Part III, in its single Article, contains provisions
relating to the restitution of monetary gold found in Germany or in third
countries. In accordance with these provisions, ail such monetary gold
"shall be pooled for distribution as restitution" among the countries which
can establish that a definite amount of monetary gold belonging to them "was
looted by Germany or, at any time after 12th March, 1938, was wrongfully
removed into German territory". The French Republic, the United Kingdom and
the United States of America, as well as Albania and other States, are
signatories of the Paris Agreement; Italy adhered to the provisions of Part
III of the Agreement by a Protocol signed at London on December 16th, 1947.
The implementation of the provisions of Part III of the Paris Agreement
having been entrusted to the Governments of the French Republic, the United
Kingdom and the United States of America,
[p 26] these Governments appointed a Tripartite Commission to assist them in
the distribution of the pool of monetary gold. One problem, however, that of
the gold of the National Bank of Albania, removed from Rome in 1943 and
claimed on the basis of Part III of the Paris Agreement by Albania, on the
one hand, and by Italy on the other, involved "disputed questions of law and
fact" which neither the Tripartite Commission nor the three Governments were
in a position to resolve. In these circumstances, the three Governments
signed on April 25th, 1951, the Washington Agreement, by which they decided
to submit to an arbitrator for his opinion the question whether the gold
belonged to Albania or to Italy or to neither.
On February 20th, 1953, in reply to the only question submitted to him, the
Arbitrator gave his opinion that the gold in question belonged in 1943 to
Albania, within the meaning of Part III of the Paris Agreement.
The three Governments signatories of the Washington Agreement of April z5th,
1951, had accompanied it by a Statement of the same date in which they
declared that if the finding of the Arbitrator should be in favour of
Albania, "the three Powers are confronted by another question", since Italy
and the United Kingdom claimed the gold for different reasons not covered by
Part III of the Paris Agreement. With regard to this question, the three
Governments took a decision which is at the root of the present case. They
agreed that, if the opinion of the Arbitrator should be that Albania had
"established a claim under Part III of the Act" to the gold in question,
"they will deliver the gold to the United Kingdom in partial satisfaction of
the judgment in the Corfu Channel case unless within 90 days from the date
of the communication of the Arbitrator's opinion to Italy and Albania"
either of the following two conditions should be fulfilled: either Albania
made an application to the Court for the determination of the question
whether it was proper that the gold should be delivered to the United
Kingdom; or Italy made an application to the Court for the determination of
the questions whether by reason of any rights which she claimed to possess
as a result of the Albanian law of January 13th, 1945, or under the
provisions of the Italian Peace Treaty, the gold should be delivered to
Italy rather than to Albania and whether the claim of the United Kingdom or
of Italy to receive the gold should have priority, if this issue should
arise. The three Governments accepted as respondents the jurisdiction of the
Court for the purpose of the determination of such applications by Italy or
by Albania or by both, and undertook to conform with any decisions of the
Court.
Albania, which has not accepted the jurisdiction of the Court, refrained
from making any application to it. Italy, in accordance with the Statement
and within the prescribed time-limit, submitted an Application to the Court
in which she formulated two claims with regard to the gold, but, instead of
presenting a Memorial [p 27] on the merits within the time-limit fixed for
that purpose by the Court, she raised -an issue as to the Court's
jurisdiction to deal with the first claim in her Application. The question
of the jurisdiction of the Court was first raised in the form of a
"preliminary question". As a result of the Order of November 3rd, 1953, the
Italian Government submitted a written Statement on the Preliminary Question
in which it put forward a Submission which was repeated at the end of its
oral reply as its first final Submission ; in this Submission the Court is
asked to adjudge and declare that the Washington Statement "is not a
sufficient basis upon which to found the jurisdiction of the Court to deal
with the merits of the claim set forth under No. I of the Submissions of the
Application" ; the ground on which Italy's Submission is based is that the
proceedings contemplated by the Washington Statement and instituted by Italy
in conformity with the Statement are in reality directed against Albania,
which is not a party to the suit.
***
At the present stage of the case the Court must adjudicate upon the validity
of this Submission presented by Italy ; certain special features of the
proceedings, however, make necessary a preliminary examination of the
questions raised by the Submissions of the United Kingdom.
Of the three respondent Governments, the Governments of the French Republic
and of the United States of America, without going beyond certain general
observations with regard to the solution of the questions now before the
Court, expressed a desire that the Court should decide the merits of the
case which had been referred to it.
As regards the United Kingdom Government, it saw in the challenge to the
Court's jurisdiction made by Italy a ground for questioning the validity of
the Application. Its main Submissions seek a declaration by the Court that
"(1) in view of Italy's objection on the ground of the alleged lack of
competence or the Court, her Application to the Court of May 19th, 1953,
(a) does not conform to the conditions and intentions of the Tripartite
Washington Statement of April 25th, 1951, or
alternatively
(b) has been in effect withdrawn or cancelled by Italy, and is therefore
invalid and void ;
(2) Italy is, in the circumstances, to be deemed not to have made any
application to the Court within the meaning and for the purposes of the
Tripartite Washington Statement."
With these Submissions of the United Kingdom there should be contrasted the
last Italian Submission formulated by Counsel for the Italian Government at
the hearing on May 13th, 1954: [p 28]
"That the Court, whatever may be its decision on the question of
jurisdiction referred to above, is without jurisdiction to adjudicate upon
the claims contained in No. I and No. 2 of the Submissions of the Government
of the United Kingdom, dated March 26th,
1954."
In its Observations and Submissions on the Preliminary Question, the United
Kingdom Government asked the Court to find that, in view of the Preliminary
Objection raised by the Italian Government, the Application did not conform
or no longer conformed to the conditions and intentions of the Washington
Statement; that there was no longer any Application before the Court and
that Italy must be considered as not having made an Application, in
accordance with the conditions laid down by the Statement.. The second
Submission was explicit:
"(2) That, in consequence, the United Kingdom is entitled by the Tripartite
Washington Statement to receive a transfer of the gold in the same manner as
if Italy, as well as Albania, had not applied to the Court under the
relevant provisions of the Statement."
This Submission threw light upon the intention of the previous Submission ;
but it was not reproduced in the final Submissions, and the Court is
consequently not called upon to deal with it.
There remain, however, the United Kingdom's final Submissions (1) and (2),
of which the wording has been modified in relation to the Submissions of the
United Kingdom as stated in its written Observations, though the sense and
scope remain unchanged ; it is therefore reasonable to assume that the third
Italian final Submission applies to the altered Submissions of the United
Kingdom.
The Italian Government contends that the Court has no jurisdiction to
adjudicate upon these Submissions of the United Kingdom. The Court cannot
consider itself as lacking jurisdiction to adjudicate upon the validity,
withdrawal or cancellation of an application which has been submitted to it:
to adjudicate upon such questions with a view to deciding upon the effect to
be given to the Application falls within the purview of its judicial task.
It is indeed unusual that a State which has submitted a claim by the filing
of an Application should subsequently challenge the jurisdiction of the
Court to which of its own accord it has applied. In the present case it is
Italy which, after having seised the Court, has raised an issue as to the
Court's jurisdiction. This is, however, to be understood in the light of the
circumstances of the case. The three Governments which signed the Washington
Statement made a collective offer in respect of the present proceedings, and
Italy accepted that offer. It was in that Statement that the subject-matter
of the suit was pre-determined and it was in the same Statement that the
three Governments accepted as defendants [ 29] the jurisdiction of the
Court. In these circumstances, Italy, after having taken the initial step,
felt some doubt as to whether the subject-matter of the dispute was such
that the Court could deal with it. She finally raised the issue in the form
of a genuine Preliminary Objection.
Article 62 of the Rules is couched in terms which do not limit to the
Respondent the right to present preliminary objections. This Article does
not preclude the raising of a Preliminary Objection by an Applicant in
circumstances such as those in which the present case has arisen. The
Preliminary Objection of Italy is therefore not contrary to the Rules or to
the Statute.
The United Kingdom contends that in consequence of Italy's objection to the
jurisdiction of the Court, her Application does not conform to the
conditions and intentions of the Washington Statement. In support of this
contention, the Agent of the United Kingdom Government advanced certain
arguments: First, the unequivocal acceptance of the Court's jurisdiction by
Italy is one of the conditions in the Washington Statement ; in view of her
preliminary objection, her acceptance of jurisdiction could not be
considered as unequivocal. Second, another condition in the Washington
Statement is that Italy could only make an application for the determination
of certain questions ; but Italy is now suggesting that the Court should not
determine those questions. Third, under the Washington Statement, Italy's
Application should be a real one ; it is not real because of her objection
to jurisdiction.
The Court finds that Italy's acceptance of jurisdiction is one thing, while
her raising of a legal issue on jurisdiction is quite another. It cannot be
inferred from the making of the Preliminary Objection that Italy's
acceptance of jurisdiction has become less complete or less positive than
was contemplated in the Washington Statement. She continues to hold herself
out as being subject to the Court's jurisdiction in these proceedings after
the raising of the Preliminary Objection as much as she did before taking
that step. The same considerations apply to her request for the
determination of the questions submitted in her Application. She has
requested the Court to settle the problem of jurisdiction before determining
those questions. This dos not mean that she is asking the Court not to
determine those questions under any circumstances. As to the real character
of Italy's Application, the Court has only to observe that her Application,
once properly deposited, must be considered as real and as remaining real
unless it is formally withdrawn.
Consequently, the Court cannot accept the contention of the United Kingdom
regarding non-conformity of the Application with the conditions and
intentions of the Washington Statement.[p 30]
Nor can the Court accept the contention in final Submission No. I (b) of the
United Kingdom that the Application has been in effect withdrawn or
cancelled by Italy. Article 69 of the Rules deals with the case where, in
the course of proceedings instituted by an Application, the Applicant
informs the Court in writing that it is not going on with the proceedings ;
in this event the provisions of Article 69 apply. The raising of the
Preliminary Question by Italy cannot be regarded as equivalent to a
discontinuance.
As to the Submission that the Italian Application should be held to be
"invalid and void", it is enough to state that the Application, if not
invalid at the time when it was filed, cannot subsequently have become
invalid by reason of the preliminary question which Italy raised with regard
to the Court's jurisdiction in this case.
The Court accordingly finds that it has been validly seised of the
Application and chat this Application, contrary to the submissions of the
United Kingdom Government, still subsists. Therefore, the Court must now
proceed to consideration of the Preliminary Objection of Italy in order to
decide whether it can adjudicate upon the merits of the claims set forth in
the Application.
***
The Preliminary Objection raised by Italy assumes precise form in the main
Submission by which the Court is asked
"To adjudge and declare :
That the Statement to accompany publication of the Agreement between the
Governments of the French Republic, the United Kingdom of Great Britain and
Northern Ireland and the United States of America for the submission to an
arbitrator of certain claims with respect to gold looted by the Germans from
Rome in 1943 is not a sufficient basis upon which to found the jurisdiction
of the Court to deal with the merits of the claim set forth under No. I of
the Submissions of the Application submitted to the Court by the Government
of the Italian Republic on May 19th, 1953;
That the Court is consequently without jurisdiction to adjudicate upon the
merits of the said claim."
On the other hand, the United Kingdom Government, in its alternative
Submission, asks the Court to adjudge and declare
"that, if the Court holds, contrary to the contentions of the United
Kingdom, that the Italian Application is still valid and subsisting, the
Court has jurisdiction to determine on their merits the questions put to the
Court in the Italian Application". [p 31]
The Italian Government, in making its Application, stated that it was
relying on the provisions of paragraph (b) of the Washington Statement. The
subject-matter of the suit is the same as that defined in the Statement. The
Parties against whom the suit was brought, namely France, the United Kingdom
and the United States of America, are those who have declared that they
accept the jurisdiction of the Court for the purpose of the determination of
Italy's Application. The three States have not named any other Party in the
Statement "for the determination of the question" relating to Italy's claim
to the delivery of the gold. The Court notes therefore that in respect of
the relations between these three States and Italy the Application is in
conformity with the offer made in the Washington Statement.
The Governments of France, the United Kingdom and the United States of
America, and the Government of Italy, by their separate and successive
acts—the adoption of the Washington Statement, in the one case, and in the
other case, the deposit on May 19th, 1953, of the Declaration of acceptance
of the jurisdiction of the Court and the filing of the Application—have
referred a case to the Court within the meaning of Article 36 (1) of its
Statute. They have thus conferred jurisdiction on the Court to deal with the
questions submitted in the Application of the Italian Government.
The Court must, however, examine whether this jurisdiction is CO-extensive
with the task entrusted to it. The Agent of the United Kingdom Government
stated during the oral proceedings that:
"Albania's consent is not, in our view, necessary to the determination of
the questions affecting Italy under head (b) of the Washington Statement,
because the only issue raised under that head—a decision on which by the
Court would be binding on the Parties to it—is the question of whether
Albania's share should go to the United Kingdom or to Italy; and both those
countries, as well as the two remaining Washington Governments, have given
their consent and are before the Court."
This seems to be an over-simplification of the problem with which the Court
is confronted. The Court is not merely called upon to Say whether the gold
should be delivered to Italy or to the United Kingdom. It is requested to
determine first certain legal questions upon the solution of which depends
the delivery of the gold.
By the first claim in the Application the Court is requested to decide that
the three respondent States "should deliver to Italy any share of the
monetary gold that might be due to Albania under Part III of the Paris Act
of January 14th, 1946, in partial satisfaction for the damage caused to
Italy by thy Albanian law of January 13th, 1945". The Washington Statement
specified in advance one of the [p 32] purposes of Italy's Application,
namely, the "determination of the question whether, by reason of any right
which she claims to possess as a result of the Albanian law of 13th January,
1945, or under the provisions of the Italian Peace Treaty, the gold should
be delivered to Italy rather than to Albania". The Court will not deal with
the Italian Peace Treaty since its provisions have not been invoked during
the present proceedings.
The first Submission in the Application centres around a claim by Italy
against Albania, a claim to indemnification for an alleged wrong. Italy
believes that she possesses a right against Albania for the redress of an
international wrong which, according to Italy, Albania has committed against
her. In order, therefore, to determine whether Italy is entitled to receive
the gold, it is necessary to determine whether Albania has committed any
international wrong against Italy, and whether she is under an obligation to
pay compensation to her; and, if so, to determine also the amount of
compensation. In order to decide such questions, it is necessary to
determine whether the Albanian law of January 13th, 1945, was contrary to
international law. In the determination of these questions—questions which
relate to the lawful or unlawful character of certain actions of Albania
vis-à-vis Italy—only two States, Italy and Albania, are directly interested.
To go into the merits of such questions would be to decide a dispute between
Italy and Albania.
The Court cannot decide such a dispute without the consent of Albania. But
it is not contended by any Party that Albania has given her consent in this
case either expressly or by implication. To adjudicate upon the
international responsibility of Albania without her consent would run
counter to a well-established principle of international law embodied in the
Court's Statute, namely, that the Court can only exercise jurisdiction over
a State with its consent.
It has been suggested that Albania might have intervened. The provisions of
Article 62 of the Statute give to a third State, which considers that it
"has an interest of a legal nature which may be affected by the decision in
the case", the right to request permission to intervene. It has been
contended that the inclusion of the provisions for intervention indicate
that the Statute contemplates that proceedings may continue, notwithstanding
that a third State may have an interest of a legal nature which might enable
it to intervene. It is argued that the fact that a third State, in this case
Albania, may not choose to intervene should not make it impossible for the
Court to give judgment on rights as between the Parties.
Albania has not submitted a request to the Court to be permitted to
intervene. In the present case, Albania's legal interests would not only be
affected by a decision, but would form the very subject-matter of the
decision. In such a case, the Statute cannot be regarded, by implication, as
authorizing proceedings to be continued in the absence of Albania.[p 33]
It is also contended that any decision of the Court on the questions
submitted by Italy in her Application will be binding only upon Italy and
the three respondent States, and not upon Albania. It is true that, under
Article 59 of the Statute, the decision of the Court in a given case only
binds the parties to it and in respect of that particular case. This rule,
however, rests on the assumption that the Court is at least able to render a
binding decision. Where, as in the present case, the vital issue to be
settled concerns the international responsibility of a third State, the
Court cannot, without the consent of that third State, give a decision on
that issue binding upon any State, either the third State, or any of the
parties before it.
The Court accordingly finds that, although Italy and the three respondent
States have conferred jurisdiction upon the Court, it cannot exercise this
jurisdiction to adjudicate on the first claim submitted by Italy.
***
The Court will now consider whether it can adjudicate upon the second claim
in the Italian Application. This claim, which is also based on the
Washington Statement, is that "Italy's right to receive the said share of
monetary gold must have priority over the claim of the United Kingdom to
receive the gold in partial satisfaction of the Judgment in the Corfu
Channel case".
It might seem that the second claim, unlike the first, only concerns Italy
and the United Kingdom, both of whom have already accepted the jurisdiction
of the Court. According to the Washington Statement, however, the question
of priority between the claim of Italy and that of the United Kingdom will
only arise when it has been decided that, as between Italy and Albania, the
gold should go to Italy. For the words "if this issue [the issue of
priority] should arise" used in the Statement could only mean that the issue
of priority would call for a decision only if the Court had already decided
that Italy had a valid claim to the gold in question against Albania, thus
creating, in the minds of the three Governments, a competitive claim with
the claim of the United Kingdom.
The dependence of the second claim upon the first is confirmed by the
Italian Submission itself. When the Italian Government speaks of "Italy's
right to receive the said share of monetary gold", it is not referring to
any hypothetical right : it must be referring to a right which it believes
it possesses and which, by the first Submission in its Application, it
requests the Court to uphold.
This dependence is further borne out by the statements made by the Parties
in the course of the written and oral proceedings. In the document deposited
on October 30th, 1953, in which the Italian Government raised the
Preliminary Question, it is stated that the [p 34] second question submitted
in its Application will only arise in the event that the Court has decided
on the merits of the first question, as requested by the Italian Government.
The United Kingdom Government, in its Observations and Submissions on the
Preliminary Question, also said that the priority issue could only arise if
the Court went into the question of Italy's claim against Albania, and
decided that in favour of Italy. At the hearings, Counsel for the Italian
Government and the Agent of the United Kingdom Government both spoke in a
similar vein.
Counsel for the Italian Government added, however, that "if the Court
considers that the question of priority between the respective rights of the
United Kingdom and Italy can be examined in a hypothetical form,
independently of the examination of the first Italian claim, the Italian
Government, for its part, would have no objection". Apart from the fact that
this statement, which is conditional in form, can hardly be construed as a
formal request for consideration by the Court of the second claim on a
hypothetical basis, it would, in any event, constitute a new proposition
which is not based on the Washington Statement and to which the respondent
States have not expressed agreement. It is evident that the Court could not
act upon such a proposition.
The Court accordingly finds that inasmuch as it cannot adjudicate on the
first Italian claim, it must refrain from examining the question of priority
between the claim of Italy and that of the United Kingdom.
For these reasons,
The Court,
unanimously,
finds that the jurisdiction conferred upon it by the common agreement of
France, the United Kingdom, the United States of America and Italy does not,
in the absence of the consent of Albania, authorize it to adjudicate upon
the first Submission in the Application of the Italian Government ;
by thirteen votes to one,
finds that it cannot adjudicate upon the second Submission in the
Application of the Italian Government.[p 35]
Done in French and English, the French text being authoritative, at the
Peace Palace, The Hague, this fifteenth day of June, one thousand nine
hundred and fifty-four, in five copies, one of which will be placed in the
archives of the Court and the others will be transmitted to the Government
of the Italian Republic, the Government of the French Republic, the
Government of the United Kingdom of Great Britain and Northern Ireland and
the Government of the United States of America, respectively.
(Signed) J. G. Guerrero,
Vice-President.
(Signed) J. Lopez Olivan,
Registrar.
Sir Arnold McNair, President, after voting for the Judgment, made the
following declaration :
I concur in the finding of the Court that it is unable to adjudicate upon
the two questions submitted to it by the Application of the Italian
Government, but the reasons which have led me to this conclusion are
different from those stated in the Judgment of the Court. In my opinion,
there is a fundamental defect in the Application and in the constitution of
these proceedings. The Court is asked to adjudicate upon an Italian claim
against Albania arising out of an Albanian law of January 13th, 1945.
Albania is therefore an essential respondent. But these proceedings are not
brought against Albania, nor does the Application name Albania as a
respondent, although there is nothing in the Washington Statement which
could preclude the Italian Government from making Albania a respondent. I
cannot see how State A, desiring the Court to adjudicate upon its claim
against State B, can validly seise the Court of that claim unless it makes
State B a respondent to the proceedings—however many other States may be
respondents.[p 36]
Judge Read, availing himself of the right conferred on him by Article 57 of
the Statute, appends to the Judgment a statement of his individual opinion.
Judge Levi Carneiro, availing himself of the right conferred on him by
Article 57 of the Statute, appends to the Judgment a statement of his
dissenting opinion.
(Initialled) J. G. G.
(Initialled) J. L. O.
[p 35]
Done in French and English, the French text being authoritative, at the
Peace Palace, The Hague, this fifteenth day of June, one thousand nine
hundred and fifty-four, in five copies, one of which will be placed in the
archives of the Court and the others will be transmitted to the Government
of the Italian Republic, the Government of the French Republic, the
Government of the United Kingdom of Great Britain and Northern Ireland and
the Government of the United States of America, respectively.
(Signed) J. G. Guerrero,
Vice-President.
(Signed) J. Lopez Olivan,
Registrar.
Sir Arnold McNair, President, after voting for the Judgment, made the
following declaration :
I concur in the finding of the Court that it is unable to adjudicate upon
the two questions submitted to it by the Application of the Italian
Government, but the reasons which have led me to this conclusion are
different from those stated in the Judgment of the Court. In my opinion,
there is a fundamental defect in the Application and in the constitution of
these proceedings. The Court is asked to adjudicate upon an Italian claim
against Albania arising out of an Albanian law of January 13th, 1945.
Albania is therefore an essential respondent. But these proceedings are not
brought against Albania, nor does the Application name Albania as a
respondent, although there is nothing in the Washington Statement which
could preclude the Italian Government from making Albania a respondent. I
cannot see how State A, desiring the Court to adjudicate upon its claim
against State B, can validly seise the Court of that claim unless it makes
State B a respondent to the proceedings—however many other States may be
respondents. [p 36]
Judge Read, availing himself of the right conferred on hi. by Article 57 of
the Statute, appends to the Judgment a statement of his individual opinion.
Judge Levi Carneiro, availing himself of the right conferred on him by
Article 57 of the Statute, appends to the Judgment a statement of his
dissenting opinion.
(Initialled) J. G. G.
(Initialled) J. L. O.
[p 37]
INDIVIDUAL OPINION BY JUDGE READ
In this case, while I am in agreement with the operative provisions of the
Judgment and, in general, with the reasoning by which they are justified, I
am unable to concur in one finding which has been made by the Court. This is
a finding that in the relation between the respondent States and Italy, the
Application is in conformity with the offer to submit to the jurisdiction of
the Court contained in the Washington Statement.
While there can be no doubt that the Court is competent to deal with this
question, I do not think that it should be decided at this stage.
To begin with, it is unnecessary to make this finding in order to justify
the operative judgment of the Court.
There is, however, a much more compelling reason for not deciding the point
at this stage. It is not dealt with in the final submissions of the Parties
and none of the Parties has requested a finding on this point. Further, it
has not been fully argued during the written or oral proceedings. I am bound
by the principle of international law which was adopted by this Court—in the
Ambatielos case (jurisdiction), I.C.J. Reports 1952, p. 45—and stated as
follows :
"The point raised here has not yet been fully argued by the Parties, and
cannot, therefore, be decided at this stage."
Accordingly, I am of the opinion that this point should not be decided at
this stage. Nevertheless, as it has been dealt with, and as I do not agree
with the conclusion which has been reached on this point, it is necessary
for me to state my reasons.
The Washington Statement prescribes the subject-matter of the dispute and
the scope of the proposed application by Italy. The Application complies
with the offer in this regard. This aspect of the problem has been fully
argued and, indeed, it has given rise to no dispute. But the Statement does
not prescribe the Parties to the procedure which it made available to Italy.
It contained the following provision :
"The Governments of the French Republic, the United Kingdom and the United
States declare that they will accept as defendants the jurisdiction of the
Court for the purpose of the determination of such applications by Italy or
by Albania or by both."
It is clear that this provision does not require or even suggest that the
three Governments were intended to be the sole respondents. [p 38]
An examination of the entire Statement shows that there is nothing therein
contained to preclude Italy from naming in the Application all of the
Parties necessary to enable the Court to dispose of the questions which are
set forth in clause (b).
On the other hand, the Statement prescribes, in precise language, the nature
of the application that Italy must make in order to comply with its terms.
The offer of the three Governments to accept as defendants the jurisdiction
of the Court was not general: it was solely "for the purpose of the
determination of such applications by Italy or by Albania or by both". The
words "such applications" refer to clause (b) of the Statement, which uses
the following words :
"(b) Italy makes an application to the International Court of Justice for
the determination of the question"
and then proceeds to state the subject-matter and scope of the question.
These words are clear and unambiguous. They require Italy to make an
application for the determination of the question. They have an ordinary and
natural meaning: an application of such a nature that the question can be
determined. They cannot, in their ordinary and natural meaning, be construed
as authorizing or requiring Italy to make an application of such a nature
that it is legally impossible for the Court to decide the question.
There was no legal difficulty preventing Italy from making an application in
which the Court would be able to determine the question.
Accordingly, I am compelled to reach the conclusion that Italy, in making an
application in which Albania was not named as a party, failed to make an
application for the determination of the questions and consequently failed
to comply with the terms of the offer set forth in the Washington Statement.
At the same time, as Albania was a necessary and indispensable party to the
proceedings, the Application did not comply with the provisions of Article
40 (1) of the Statute and Article 32 (2) of the Rules. Accordingly, there
was a fundamental defect in the Application by which these proceedings were
commenced.
(Signed) John E. Read.
[p 39]
DISSENTING OPINION BY JUDGE LEVI CARNEIRO
[Translation]
I have voted in favour of the first finding of the Judgment but am, to my
regret, unable to agree with the second.
My opinion has been rived at in view of certain considerations which the
Court, in drafting its Judgment, ha not regarded as relevant. So far as the
first finding is concerned, I do not think that more need be said. But with
regard to the second, the considerations which I have referred to were
dictated by the necessity of maintaining proper procedural order in the
present case and by my conception of the duty and the function of the Court,
and I therefore find myself obliged to seek to justify them.
2. By its second Submission in the Application, Italy requested the Court to
adjudge and declare
"that Italy's right to receive the said share of monetary gold must have
priority over the claim of the United Kingdom to receive the gold in partial
satisfaction of the Judgment in the Corfu Channel case".
By the terms of the Washington Statement, Italy was given an opportunity to
make an application to
"the International Court of Justice for the determination of the question
whether, by reason of any right which she claims to possess as a result of
the Albanian law of 13th January 1945, or under the provisions of the
Italian Peace Treaty, the gold should be delivered to Italy rather than to
Albania"
and an opportunity
"to accept the jurisdiction of the Court to determine the question whether
the claim of the United Kingdom or of Italy to receive the gold should have
priority, if this issue should arise".
Might not the provision as drafted mean that Italy might adopt two different
attitudes or take two different steps, in relation to the two separate
questions involved : in respect of the first, to "make an application to the
Court", in respect of the second, "to accept the jurisdiction of the Court"
? Do not these two expressions indicate two attitudes ?
However, the Italian Application presented the two questions at the same
time and asked the Court to adjudicate upon both of them.
It is true that the Italian Government, in its Application, incidentally
said: [p 40]
".... once it has been established that Italy is entitled to damages from
Albania.... Italy's claim to the gold in question should have priority over
the claim of the United Kingdom....".
This statement did not mean that the Court could not decide the priority
issue before the claim had been held to be well-founded ; the Applicant, at
the time of making the application, set out the grounds on which it based
its claim to priority and indeed to preference. Thus, it presented the two
questions at the same time and in the same proceedings, making, in its
Application, two Submissions relating to the two separate questions. These
Submissions were put forward without any link between them, they are
entirely distinct, and the second is in no way subordinate to the first.
There is dot even any form of conjunction between them. Nor, and this to my
mind is decisive, is the word "subsidiairement" (alternatively) used, as it
invariably is, when it is desired to indicate that a question is subordinate
to another which has already been raised, and as in fact was done by the
United Kingdom Government in the present case, in the Submissions which are
set out in the Judgment. Yet the three "Allied Governments concerned", in
their written Observations on the Preliminary Question, nowhere indicated
that the Application had improperly raised the two questions.
It was after filing its Application that the Italian Government raised the
"Preliminary Question", and asked the Court to decide as to its competence
to adjudicate upon "the first Submission". Although it indicated that the
second question would arise only after the first had been decided, it
referred nevertheless to the first Submission only. It never said, either
when it raised its objection to the jurisdiction or in its arguments in its
written Observations that, as a result, the present Judgment of the Court
should relate to the second question as well. Again, its Submissions
presented at the end of the oral arguments related exclusively to the first
Submission in the Application.
The second Submission was not, and could not be, discussed in the course of
the hearings. Here, in particular, the complete independence of the two
questions, from the point of view of their judicial determination, was made
clear.
3. In the written Statement which it submitted to the Court, the Government
of the United States said :
"....it seems doubtful whether Albania must have accepted the jurisdiction
of the Court and have become a party in the present case before the Court
can properly adjudicate on the claims of Italy vis-à-vis the United Kingdom
concerning the gold here in question".
It seems to me that the second Submission in the Application has precedence
over the first. Counsel for the Italian Government (at the hearing on May
10th) correctly interpreted this statement when he said: [p 41]
"It is therefore proposed that the priority issue should be considered quite
separately from the issue relating to the international responsibility of
Albania resulting from the Albanian law."
This, indeed, is what was being done—I think correctly— because the second
Submission involves the question which ought first to be decided by the
Court. Therefore, even in the absence of finding in favour of Italy on the
first Submission, the Court would, in the subsequent proceedings, have to
adjudicate upon the second Submission. It has been asked to do so, and there
is no reason why it should not.
In the written Observations the French Government said nothing to indicate
that it considered the two Submissions interdependent: it merely sought to
show that the Court was competent to deal with them. The oral arguments of
its Agent merely related to the jurisdiction of the Court to adjudicate upon
a question of international law—the effects of the Albanian Nationalization
Law.
It was indeed the United Kingdom Agent who, in his written Observations and
in his oral arguments, asserted the complete dependence of the second
Submission upon the first. He asked the Court to hold that, by reason of the
objection to the jurisdiction raised by Italy, the Italian Application no
longer conformed to the conditions and intentions of the Washington
Statement ; that it had become invalid and void. To justify such a
conclusion, it would be necessary to consider that if the Court could not
deal with the first Submission in the Italian Application, it would likewise
be unable to pass upon the second Submission. Accordingly, the Agent of the
United Kingdom Government said (at the hearing on May 12th) that the
priority issue—the issue raised in the second Submission—would not arise if
the Court should refuse to consider and to adjudicate upon the first
Submission relating to Italy's claim.
This did not, however, prevent the United Kingdom Agent from saying at the
hearing on May 14th that the issue which arose in the present case was
whether a certain quantity of gold should be transferred to the United
Kingdom or to Italy—that is to Say, the second question raised by the
Application.
In his Submissions at the close of the hearings, the United Kingdom Agent
asked the Court to find "that, if the Court holds, contrary to the
contentions of the United Kingdom, that the Italian Application is still
valid and subsisting, the Court has jurisdiction to determine on their
merits the questions put to the Court in the Italian Application". Here he
was clearly not saying that the Court could not adjudicate upon the second
Submission until it had adjudicated upon the first.
4. Counsel for the Italian Government, for his part, in his first address to
the Court, on May, 10th—while not modifying the [p 42]
Submissions contained in the Application, which I have already referred
to—said that he agreed with the United Kingdom Government that the second
Submission was dependent upon the first and could not be dealt with before
adjudication upon the first. However, he refused to accept the consequence
which the Agent of the United Kingdom Government contended flowed therefrom,
namely, that the Italian Application was in effect cancelled or withdrawn.
In his last address to the Court, on May 13th, Counsel for the Italian
Government was much less categorical when he referred to the alleged
dependence of the second Submission on the first ; he in fact said:
"The second claim is distinct from the first. In the Washington Statement it
is said that the question of priority would be submitted to the Court if
this issue should arise. Consequently, it would seem that according to the
Statement itself this second question is dependent upon the first. In any
event, if the Court considers that the question of priority between the
respective rights of the United Kingdom and Italy can be examined in a
hypothetical form, independently of the examination of the first Italian
claim, the Italian Government, for its part, would have no objection" (my
italics).
At the same time, Counsel insisted upon the fact that the Application had
not been withdrawn.
5. It has been pointed out that the Washington Statement, with reference to
the question of priority, uses the words "if this issue should arise". It
has been contended that, in the view of the draftsmen of the Statement, the
priority issue could only arise after the Italian claim had been held to be
well-founded. This is not so. The Statement provided for the possibility of
the question being put, but it did not specify when it would arise. The
Italian Government has in fact submitted the question to the Court at the
same time as the other, and the Respondents have raised no objection to this
course, as I have already pointed out.
6. The only way of ensuring that neither question is dealt with —with the
unevitable consequence of setting aside both questions— would be to regard
the Application as cancelled or to reject it. It was because the United
Kingdom Agent realized this that he asked the Court to hold that, by reason
of the interdependence of the two questions, the whole Application was
cancelled. The Court has indeed held that the questions are interdependent,
but it has refused to regard the Application as cancelled. It has finally
refrained from adjudication upon the second Submission in the Application,
on the ground that the Parties themselves had asserted the dependent
character of this Submission. [p 43]
The statements of the Parties have not, however, led me to a similar
interpretation. In my opinion, if the two questions were inseparably
interlinked, the presence of Albania would be just as necessary to make it
possible for the Court to deal with the first as with the second. But this
proposition was not stated either by the Italian Government, by the
Respondent Governments or in the Judgment of the Court.
I do not, in any event, consider that the Court would be obliged to follow
any agreement in this connection thought to have been arrived at by the
Parties. The Court, having unequivocally decided that the Application has
neither been withdrawn nor cancelled, retains full freedom to decide for
itself the question of the interdependence of the two Submissions in this
Application.
7. If anything remains of the Application, it is its second Submission. If
the Court is without jurisdiction in respect of the question raised by the
first Submission—on the ground that Italy has not even named Albania, which
is directly interested in this question as a Respondent—in respect of the
second Submission, Albania has no interest whatsoever.
In short, the priority issue has been submitted—and remains submitted—to the
Court, and the only States directly interested in its decision on this
question are before the Court. In my opinion, the Court cannot now refuse
this decision on the ground that it lacks jurisdiction to decide another and
quite separate question raised by the same Application. At the present stage
of the proceedings, the Court, in my opinion, having simply to decide the
Preliminary Question of its competence to adjudicate upon the first
Submission in the Application, is not entitled to go beyond this and to
hold, at the same time, that it has no jurisdiction to deal with the second
Submission.
Counsel for the Italian Government himself, in the document entitled
"Preliminary Question", has indeed said that "the second question would
raise no problem concerning the jurisdiction of the International Court of
Justice". At the same time, he asserted that the Application had not been
withdrawn, that is to say, that its second Submission remained even if, at
this stage of the proceedings, the first should be set aside.
8. Procedural considerations would have provided the Court with a good
reason for not at present setting aside the second Submission of the
Application ; but there was a better ground available to it for reserving
consideration of, and a decision on, this other question, that is, the
question of priority. The question of priority does not perhaps involve any
dispute as to facts, but is to be resolved simply in the light of legal
rules. The Court could have decided it, riot by basing itself upon a
hypothesis, but by [p 44] dealing with it as a question of abstract law. It
could have done so, subject at most to one condition. It could have decided
it quite simply by recognizing the character of the two claims, without
prejudging the question of the validity of the claim which has not as yet
been established.
I think it unnecessary to recall the widespread and valuable practice of
"declaratory judgments" which is adopted in the United States and many other
countries. It will be enough to point out that in all civilized countries
there are laws governing the classification of creditors—in cases of
bankruptcy, concursus creditorum following upon insolvency and what in
France and other countries is called "liquidation judiciaire" (compulsory
winding-up). The law strictly lays down orders of priority and of
preference. In the present case, the Court should determine whether there is
any ground for preference and the basis for priority. It would thus indicate
the legal rule to be applied.
In the majority of cases at least, priority is based neither upon the date
nor the amount of the debt, nor even upon the character of its title, but
rather on the nature of the right itself, its origin, or the specific
relationship which may exist between it and the property of the debtor. In
the present case, the Italian Government alleges that the two competing
rights are identical in origin and of the same nature ; it has already set
out in the Application, with great precision and clarity, the only argument
which it invokes in support of its claim to priority : it is that Albania's
wrongful act as against Italy was earlier in date than Albania's wrongful
act as against the United Kingdom. The Italian Government further alleges
that its right must benefit from a privilege by virtue of Article 25 of the
Convention of March 15th, 1925. That is all. In the subsequent proceedings
an opportunity would have been given to the respondent Governments to
contest these allegations, and Albania might have decided to intervene
(although that country is not directly interested) and the Court could have
adjudicated upon the alleged right to priority even without having
previously recognized the validity of the Italian claim.
9. Such a decision would have provided a valuable contribution to the
solution of the controversy provoked by the question of the allocation of
the monetary gold. It would have been all the more useful for having been
given before the decision on the first question, that of the validity of the
Italian claim, which involves a number of questions of fact and of law. Such
a course might have avoided the necessity for evidence and argument which
would have ceased to be relevant.
Anyone who studies the terms of the Submissions in the Application of Italy
must come to the conclusion that the second Submission must, as I have said,
be adjudicated upon before the first. How could the Court hold that the gold
should be "delivered to [p 45] Italy"—and that is what is asked in the
Application—without having previously found in favour of the right of the
Italian claim to priority ?
Moreover, whatever might have been the Court's decision on the second
Submission, that decision would have provided the "Allied Governments
concerned" with a very valuable orientation. If the Court had found that the
United Kingdom claim was entitled to priority, the question raised in the
first Submission of the Application would have lost all practical interest,
since, according to statements which have not been disputed, the amount of
the United Kingdom claim is more than twice the value of the gold in
question. If, on the other hand, the Court had upheld the right to priority
of the Italian claim, it would have given the three Powers the assurance
(for which they have asked in one sense or the other) that the delivery of
the gold to the United Kingdom could not be validly effected before final
adjudication upon the merits of the Italian claim. Finally, there was a
third possible solution, that neither claim might be held to be entitled to
priority ; in that case, if the Italian claim were held to be well-founded,
there would be a proportionate allocation of the gold between the two
creditors, it then being possible to deliver at once to the United Kingdom
such portion as was due to it.
In any event, the Court, by adjudicating upon the second Submission in the
Application, would make the solution of the dispute more simple, clearer and
more straightforward. On the other hand, I fear that its refusal to
intervene in any way, after the three "Allied Governments concerned" have
addressed themselves to the Court "asking it to give them guidance", may
well give rise to a deadlock or aggravate the difficulties.
(Signed) Levi Carneiro. |
|
