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[p105]
The Court,
composed as above,
after deliberation,
having regard to Articles 41 and 48 of the Statute of the Court,
having regard to Article 61 of the Rules of Court,
having regard to the Application, dated October 1st, 1957, and handed to the
Registrar on October 2nd, instituting proceedings by the Swiss Confederation
and submitting to the Court a dispute between the Swiss Confederation and
the United States of America, in which the Court is asked: [p106]
"To adjudge and declare, whether the Government of the United States of
America appears or not, after considering the contentions of the Parties,
1. that the Government of the United States of America is under an
obligation to restore the assets of the Société internationale pour
participations industrielles et commerciales S.A. (Interhandel) to that
company;
2. in the alternative, that the dispute is one which is fit for submission
for judicial settlement, arbitration or conciliation under the conditions
which it will be for the Court to determine."
Having regard to the letter dated October 3rd, 1957, and handed to the
Registrar on that day, in which the Agent for the Swiss Government, whose
appointment had been notified in the Application instituting proceedings,
referred to Article 41 of the Statute and Article 61 of the Rules, relating
to the indication of provisional measures, and asked the Court:
"pending a final decision in the proceedings instituted by the Application
of October 1st, to indicate the following measures:
(a) The Government of the United States of America is requested to take no
legislative, judicial, administrative or executive step to part with the
property which is claimed to be Swiss property in the submissions of the
Swiss Application of October 1st instituting proceedings, so long as the
case concerning this dispute is pending before the International Court of
Justice.
(b) In particular, the Government of the United States is requested not to
sell the shares of the General Aniline and Film Corporation claimed by the
Swiss Federal Government as the property of its nationals, so long as the
proceedings in this dispute are pending.
(c) In general, the Government of the United States should so act that no
measure whatever is taken which would prejudice the right of Switzerland to
execution of the judgment which the Court will deliver, either on the merits
or on the alternative submission."
Makes the following Order:
Whereas the Government of the United States of America was, on October 2nd,
1957, notified by telegram of the filing of the Application instituting
proceedings, of which a copy was at the same time transmitted to it by
letter ; and whereas the submissions set forth in the request for the
indication of interim measures of protection were, on October 3rd, 1957,
communicated to that Government, the text of the request being at the same
time transmitted to it by letter;
Whereas the request for the indication of interim measures of protection was
notified to the Secretary-General of the United Nations with a reference to
Article 41, paragraph 2, of the Statute; [p107]
Whereas on October 8th, 1957, the Swiss Government, through the Co-Agent
appointed by it, and the Government of the United States of America, through
the Secretary of State, were notified that the Court would sit on October
12th, 1957, to hear the observations of the Parties on the request for the
indication of interim measures of protection;
Having regard to the letter of October 9th, 1957, by which the Ambassador to
the Netherlands of the United States of America notified the appointment by
his Government of an Agent and a Co-Agent for the case;
Having regard to the letter of October 10th, 1957, by which the Ambassador
to the Netherlands of the United States of America informed the Registrar of
the intention of his Government to raise a preliminary objection in
connection with the proceedings instituted before the Court by the
Government of Switzerland and adding that this objection would be filed in
the Registry by the Agents for the United States of America on October nth
in the following terms:
"Preliminary objection of the United States of America:
The Government of the United States of America, through its Co-Agents Loftus
Becker and Dallas S. Townsend, herewith files a preliminary objection under
Article 62 of the Rules of the Court, to the proceedings instituted by the
Government of Switzerland in the Interhandel case by its application of
October 1, 1957, in so far as that application relates to the sale or other
disposition of the shares of General Aniline and Film Corporation now held
by the United States Government. The United States Government has determined
that such sale or disposition of the shares in the American corporation,
title to which is held by the United States Government in the exercise of
its sovereign authority, is a matter essentially within its domestic
jurisdiction. Accordingly, pursuant to paragraph (b) of the conditions
attached to this country's acceptance of the Court's compulsory
jurisdiction, dated August 14. 1946, this country respectfully declines,
without prejudice to other and further preliminary objections which it may
file, to submit the matter of the sale or disposition of such shares to the
jurisdiction of the Court."
Whereas on October 10th, 1957, a copy of the above text was communicated to
the Co-Agent for the Swiss Government, and whereas that text was confirmed
and signed by the Co-Agents for the Government of the United Stales of
America;
Whereas, the Court not including upon the Bench a Judge of Swiss
nationality, the Swiss Government availed itself of the provisions of
Article 31, paragraph 2, of the Statute to choose M. Paul Carry, Professor
of the Law Faculty of the University of Geneva, to sit as Judge ad hoc; and
whereas the President of the Court, being a national of one of the Parties
to the case, has transferred [p108] the Presidency for the present case to
the Vice-President in accordance with Article 13, paragraph i, of the
Rules;
Whereas in the course of hearings held on October 12th and 14th, 1957, the
Court, in accordance with Article 61, paragraph 8, of the Rules, heard the
observations of M. Paul Guggenheim, on behalf of the Swiss Government, and
of the Honorable Loftus Becker and the Honorable Dallas S. Townsend, on
behalf of the Government of the United States of America;
Whereas by letter of October 16th, 1957, the Ambassador to the Netherlands
of the United States of America transmitted the text of the following
telegram which had been addressed to him by the Department of Justice of the
United States of America:
"Chemie Petition granted. Court invites counsel 'to discuss among other
things the power of the District Court to dismiss and the propriety of the
dismissal of petitioner's complaint under Rule 37 (B), for failure to obey
its order for production of documents issued under Rule 34, in the absence
of evidence and of finding that petitioner "refuses to obey" such order'.
Attenhofer and Kaufman petitions denied."
Whereas in the said letter, a copy of which was the same day transmitted to
the Co-Agent for the Swiss Government, the Ambassador to the Netherlands of
the United States of America expressed the hope that he would be able to
amplify this information in due course;
Whereas by letter of October 18th, 1957, from the Swiss Ambassador to the
Netherlands, the Co-Agent for the Swiss Government submitted the observation
that the communication of the Government of the United States of America in
no way affected the conclusions set out under (a), (b) and (c) of the
request for the indication of interim measures of protection, which
conclusions had been confirmed on behalf of the Swiss Government in the
course of the hearings;
Whereas a copy of the letter from the Swiss Ambassador was the same day
transmitted to the Agent for the Government of the United States of America;
Whereas by letter of October 19th, 1957, the Ambassador to the Netherlands
of the United States of America informed the Registrar that his Government,
through its Agent and its Co-Agent, had requested him to transmit the
following statement:
1. At the public sitting of October 12, 1957, Co-Agent Dallas S. Townsend,
for the United States of America, stated as follows:
"Chemie unsuccessfully exhausted its appellate remedies to the Supreme
Court, and when the six months period of grace had expired, without Chemie
making the production, the District Court entered the order and in 1956 held
that Chemie's complaint [p109] stood dismissed. Again Chemie appealed
unsuccessfully to the Court of Appeals and in this way attempted to get back
into the case. The Court of Appeals affirmed and now Chemie, in its second
trip to the Supreme Court, is making another effort to get back into the
case by petitioning the Supreme Court to review the decision of the Court of
Appeals. This petition is now pending before the Supreme Court of the United
States." (Verbatim Record, p. 44.)
2. In the afternoon (Washington time) October r4, 1957, many hours after the
adjournment on that day of the sitting of this Court at n.39 a.m., the
Supreme Court of the United States of America granted the above-mentioned
petition of I.G. Chemie (Interhandel) to review the decision of the Court of
Appeals, by issuing the following order:
"Number 348. Société internationale pour participations industrielles et
commerciales, S. A. BrownelL United States Court of Appeals for the District
of Columbia circuit. Certiorari granted. Counsel are invited to discuss,
among other things, the power of the District Court to dismiss, and the
propriety of its dismissal, of petitioner's complaint, under rule 37 (B) (2)
of F.R.C.P. [Federal Rules of Civil Procedure], for failure to obey its
order, for production of documents, issued under rule 34 of F.R.C.P. in the
absence of evidence and of finding that petitioner 'refuses to obey' such
order."
3. The Government of the United States of America wishes to state expressly
that it adheres to its preliminary objection, filed October 11, 1957, and to
the reasons given in the arguments of its agent and co-agent of October 12
and October 14, 1957, why no interim measures of protection should be issued
with respect to the sale or disposition of the shares of General Aniline and
Film Corporation. For the information of Court, the Government of the
United States of America is not taking action at the present time to fix a
time schedule for the sale of such shares."
Whereas a copy of the letter from the Ambassador to the Netherlands of the
United States of America was the same day transmitted to the Co-Agent for
the Swiss Government;
Whereas by a letter dated October 19th, 1957, and handed in to the Registry
on October 20th the Ambassador of Switzerland to the Netherlands transmitted
the following communication from the Co-Agent for the Swiss Government:
"The position of the Swiss Government in regard to this communication is as
follows:
1. The Swiss Government takes note of the fact that the Government of the
United States has informed the International Court of Justice that it 'is
not taking action at the present time to fix a time schedule for the sale of
such shares', that is, the shares of the [p110] General Aniline and Film
Corporation, which, in the opinion of the Swiss Government, belong to interhandel.
2. The effect of this declaration is that the sale of the shares is not
imminent, contrary to what the Swiss Government was entitled to assume when,
on October 3rd, 1957, it filed its request for interim measures of
protection. The Swiss Government would, however, point out that the
declaration of the Government of the United States does not indicate for how
long the sale of the shares will be suspended. Nor does it indicate that
this suspension will be maintained so long as the dispute is pending before
the Court. The Swiss Government would be happy to receive fuller information
from the Government of the United States on this point, to enable it to
appreciate the exact purport of the above-mentioned declaration. Such
information is the more necessary inasmuch as the Govern-ment of the United
States confirms, in its declaration, the attitude adopted by its
representatives before the Court, to the effect that it is for the United
States to decide what matters fall within its domestic jurisdiction. As a
consequence, the American Government has maintained its decision to include
within this exclusive jurisdiction the right to proceed to a sale of the
shares.
3. Lastly, the Swiss Government ventures to recall to the Court and to the
Government of the United States that its request for interim measures of
protection was presented not only for the purpose of preventing the danger
of an imminent sale of the shares of the General Aniline and Film
Corporation. As appears from the request itself, and from the statements of
the Swiss Co-Agent at the sitting of the Court on October 12th, 1957, the
request is designed in general to ensure the execution of the subsequent
decision of the Court, should that decision be in favour of Switzerland.
4. The Swiss Government, having received direct communication from the
Government of the United States of the declaration addressed to the Court,
which is set out in the Registrar's letter of October 19th, 1957, the
Federal Political Department has thought it proper similarly to communicate
the foregoing to the Government of the United States."
Whereas a copy of the above communication was on October 20th, 1957,
transmitted to the Agent for the Government of the United States;
Whereas Switzerland and the United States of America have, by Declarations
made on their behalf, accepted the compulsory jurisdiction of the Court on
the basis of Article 36, paragraph 2, of the Statute;
Whereas by its subject-matter the present dispute falls within the purview
of that paragraph;
Whereas the Government of the United States of America has invoked, against
the request for the indication of interim measures of protection, the
reservation by which it excluded from its Declaration matters essentially
within its domestic jurisdiction as deter-[p111]mined by the United States
and whereas the Government accordingly "respectfully declines ... to submit
the matter of the sale or disposition of such shares to the jurisdiction of
the Court";
Whereas at the hearing the Co-Agent of the Swiss Government challenged this
reservation, on a number of grounds, and stated that, in its examination of
a request for the indication of interim measures of protection, the Court
would not wish to adjudicate "upon so complex and delicate a question as the
validity of the American reservation";
Whereas the procedure applicable to requests for the indication of interim
measures of protection is dealt with in the Rules of Court by provisions
which are laid down in Article 61 and which appear, along with other
procedures, in the section entitled: "Occasional Rules";
Whereas the examination of the contention of the Government of the United
States requires the application of a different procedure, the procedure laid
down in Article 62 of the Rules of Court, and whereas, if this contention is
maintained, it will fall to be dealt with by the Court in due course in
accordance -with that procedure;
Whereas the request for the indication of interim measures of protection
must accordingly be examined in conformity with the procedure laid down in
Article 61;
Whereas, finally, the decision given under this procedure in no way
prejudges the question of the jurisdiction of the Court to deal with the
merits of the case and leaves unaffected the right of the Respondent to
submit arguments against such jurisdiction;
Whereas the Swiss Government, by its request of October 3rd for the
indication by the Court "of the interim measures of protection which should
be taken in order to safeguard the rights of the Swiss Federal Government"
purported to submit its request "in conformity with Article 41 of the
Statute and Article 61 of the Rules of Court";
Whereas the Court, in order to decide what action should be taken in
pursuance of the request, must, in accordance with Article 41 of the
Statute, ascertain what is required by the circum-stances to preserve the
respective rights of the Parties pending the decision of the Court;
Whereas, of the three points set forth in the submissions of Switzerland
with regard to its request for the indication of interim measures of
protection, the second is the only one which is formulated in terms
fulfilling the requirement laid down in Article 61, paragraph 1, of the
Rules and which relates to the concern of the Court to preserve the rights
which may be subsequently adjudged by the Court to belong either to the
Applicant or to the Respondent;[p112]
Whereas, accordingly, the Court must direct its attention to this point,
namely, the request to the Government of the United States not to sell the
shares of the General Aniline and Film Corporation claimed by the Swiss
Government as the property of its nationals, so long as the proceedings in
this dispute are pending;
Whereas in the light of the information furnished to the Court, it appears
that, according to the law of the United States, the sale <3f those shares
can only be effected after termination of a judicial proceeding which is at
present pending in that country in respect of which there is no indication
as to its speedy conclusion, and whereas such a sale is therefore
conditional upon a judicial decision rejecting the claims of Interhandel;
Whereas, on the other hand, in the statement of the views of the Government
of the United States transmitted to the Court on October 19th, 1957, it is
said that that Government "is not taking action at the present time to fix a
time schedule for the sale of such shares";
Whereas in the premises it does not appear to the Court that the
circumstances require the indication of the provisional measures envisaged
in the request of the Swiss Federal Government;
For these reasons,
The Court
finds that there is no need to indicate interim measures of protection.
Done in French and English, the French text being authoritative, at the
Peace Palace, The Hague, this twenty-fourth day of October, one thousand
nine hundred and fifty-seven, in three copies, one of which will be placed
in the archives of the Court and the others transmitted to the Government of
the Swiss Confederation and the Government of the United States of America,
respectively.
(Signed) A. Badawi,
Vice-President.
(Signed) J. Lopez Olivan,
Registrar. [p113]
Judge Klaestad appends to the Order a statement of his separate opinion, in
which President Hackworth and Judge Read concur.
Judge Sir Hersch Lauterpacht appends to the Order a statement of his
separate opinion.
Judge Wellington Koo makes the following declaration:
I agree with the decision of the Court not to indicate provisional measures
in the case, but regret that I do not share the reasons upon which it is
based. In my view, the Court has no jurisdiction to deal with the request
for such measures. The Government of the United States raised an objection
based upon Proviso (b) of its Declaration of August 14th, 1946, accepting
the compulsory jurisdiction of the Court under paragraph (2) of Article 36
of the Statute. Proviso (b) states that the Declaration shall not apply to
"... (b) disputes with regard to matters which are essentially within the
domestic jurisdiction of the United States of America as determined by the
United States of America".
Although the objection was raised by the United States in the form of a
Preliminary Objection, under Article 62 of the Rules of Court, to the
proceedings instituted by the Swiss Government's Application of October 1st,
1957, "in so far as that Application relates to the sale or other
disposition of the shares of General Aniline and Film Corporation now held
by the United States Government", it was, in fact, an objection directed
against the Court's jurisdiction to indicate provisional measures, requested
by the Swiss Government on October 3rd, 1957. This was made clear by the
Agent of the United States in his observations at the proceedings held on
October 12th and 14th, 1957, under paragraph 8 of Article 61 of the Rules of
Court, when he urged that Proviso (b) to the United States' Declaration of
Acceptance excluded the Court's jurisdiction in the matter of the sale or
other disposition of the shares of the General Aniline and Film
Corporation—a matter which the United States had determined to be
essentially within its domestic jurisdiction in exercise of its reserved
right under Proviso (b).
I consider that this objection is well founded, that the Court is not
competent to deal with the Swiss request for indication of provisional
measures and that its decision should be based upon this ground. The reason
of lack of urgency is a true circumstance, but the placing of its decision
on this ground carries an implication that the Court considers the said
Pro-[p114]viso (b) to the United States' Declaration is not applicable to
the matter of provisional measures, whereas, in my view, it is applicable.
Judge Kojevnikov declares that he is unable to agree with the Order.
(Initialled) A. B.
(Initialled) J. L. O [p115]
SEPARATE OPINION OF JUDGE KLAESTAD
I share the view that the request for the indication of provisional measures
must be declined, but for different reasons, which I shall briefly outline
in a general way without mentioning details.
In the present preliminary phase of the proceedings I have to examine in a
summary and provisional manner whether it appears prima facie that the Court
lacks jurisdiction to take action under Article 41 of its Statute.
In its Declaration accepting the compulsory jurisdiction of the Court the
Government of the United States of America made the reservation that the
Declaration should not apply to "disputes with regard to matters which are
essentially within the domestic jurisdiction of the United States of America
as determined by the United States of America". This reservation relates to
the whole of the Court's jurisdiction under the Statute, including its
jurisdiction to take action under Article 41.
The United States Government has filed a Preliminary Objection, under
Article 62 of the Rules of the Court, to the proceedings instituted by the
Application, "in so far as that Application relates to the sale or other
disposition of the shares of General Aniline and Film Corporation now held
by the United States of America". The United States Government has
determined that such sale or disposition of the shares is a matter
essentially within its domestic jurisdiction. It has invoked the
above-mentioned reservation and challenged the Court's jurisdiction to
indicate provisional measures with regard to the sale or other disposition
of the shares. This invocation of the reservation must be understood as
relating to the first Submission of the Application concerning the alleged
obligation to restore the assets of Interhandel, and not to the second and
alternative Submission concerning reference to judicial settlement,
arbitration or conciliation.
At the hearing the Co-Agent of the Swiss Government referred to the question
of the validity of the American reservation, but he did not expressly
contend that it is invalid. As to this question there does not at present
appear to exist any dispute which calls for the consideration of the Court.
In the case of Certain Norwegian Loans the Court was confronted with a
similar situation. Norway invoked, by virtue of the condition of
reciprocity, a reservation in the French Declaration accepting the
compulsory jurisdiction of the Court similar to the above-mentioned American
reservation. Both Parties relied on the French [p116] Declaration and
argued on the basis that the reservation was legally valid. In such
circumstances, the Court considered it was not called upon to enter into an
examination of the validity of the French reservation and decided to give
effect to that reservation.
I consider that I shall have to adopt the same attitude in the present case,
giving effect to the reservation in so far as it is invoked without entering
into an examination of its validity. But in this preliminary phase of the
present proceedings, the finding that the Court lacks jurisdiction in
respect of the matter to which the Preliminary Objection relates, must of
necessity be only of a provisional character. Such a prima facie finding
does not in any way prejudge the question of the jurisdiction of the Court
to deal with the merits of the case.
(Signed) Helge Klaestad. [p117]
SEPARATE OPINION OF JUDGE SIR HERSCH LAUTERPACHT
In its Order the Court has assumed jurisdiction with regard to the request
of the Swiss Government, made under Article 41 of the Statute of the Court,
to indicate interim measures of protection with a view to safeguarding the
rights of that Government. Acting under Article 41 of the Statute, the Court
has found that, in the circumstances now obtaining, there is no need to
indicate the interim measures of protection as requested by the Swiss
Government. By necessary implication it has left open the possibility of
indicating such measures, at a renewed request of the Swiss Government, at
some future date if circumstances should so require—for instance, if the
proceedings now pending before the Supreme Court of the United States of
America were to terminate in a way enabling the Government of the United
States of America to proceed with the measures which form the subject-matter
of the Swiss request. In my view—so long as the Government of the United
States of America continues to determine that the object of the request of
the Swiss Government pertains to a matter which is essentially within the
domestic jurisdiction of the United States of America— the Court has no
power to assume jurisdiction with regard to interim measures of protection
and to proceed under Article 41 of the Statute by either granting or
declining the request.
In its Declaration of Acceptance of the jurisdiction of the Court of 4th
April 1946 the Government of the United States excluded from its Acceptance
"disputes with regard to matters which are essentially within the domestic
jurisdiction of the United States of America as determined by the United
States of America". In its request for an indication of interim measures of
protection of 3rd October 1957 the Government of Switzerland, referring to
its Application of 1st October 1957, asked the Court to indicate, inter
alia, that "the Government of the United States is requested not to sell the
shares of the General Aniline and Film Corporation ... so long as the
proceedings in this dispute are pending". On nth October 1957 the Government
of the United States of America filed, in conformity with Article 62,
paragraph 1, of the Rules of the Court, a Preliminary Objection in which it
informed the Court that it had determined that the sale or disposition of
the shares in the Corporation in question is a matter essentially within its
domestic jurisdiction.
In reliance on the Preliminary Objection thus filed, the Government of the
United States has asserted that the Preliminary Objection removed the basis
for any assumption of a prima facie juris-[p118]diction of the Court on the
merits of the dispute and that the Court therefore lacked the power to
exercise jurisdiction under Article 41 of the Statute. That contention I
consider to be well founded. In my view, having regard to the determination
made by the Government of the United States under the terms of its
Declaration of Acceptance, the Court possesses no such power.
In deciding whether it is competent to assume jurisdiction with regard to a
request made under Article 41 of the Statute the Court need not satisfy
itself—either proprio motu or in response to a Preliminary Objection—that it
is competent with regard to the merits of the dispute. The Court has stated
on a number of occasions that an Order indicating, or refusing to indicate,
interim measures of protection is independent of the affirmation of its
jurisdiction on the merits and that it does not prejudge the question of the
Court's jurisdiction on the merits (Case concerning the Polish Agrarian
Reform and the German Minority, Series A/B, No. 58, p. 178; Anglo-Iranian
Oil Company Case, I.C.J. Reports J95X, p. 93). Any contrary rule would not
be in accordance with the nature of the request for measures of interim
protection and the factor of urgency inherent in the procedure under Article
41 of the Statute. However, it is one thing to say that action of the Court
under Article 41 of the Statute does not in any way prejudge the question of
its competence on the merits and that the Court need not at that stage
satisfy itself that it has jurisdiction on the merits or even that its
jurisdiction is probable; it is another thing to affirm that the Court can
act under Article 41 without any regard to the prospects of its jurisdiction
on the merits and that the latter question does not arise at all in
connection with a request for interim measures of protection. Governments
which are Parties to the Statute or which have undertaken in some form or
other commitments relating to the obligatory jurisdiction of the Court have
the right to expect that the Court will not act under Article 41 in cases in
which absence of jurisdiction on the merits is manifest. Governments ought
not to be discouraged from undertaking, or continuing to undertake, the
obligations of judicial settlement as the result of any justifiable
apprehension that by accepting them they may become exposed to the
embarrassment, vexation and loss, possibly following upon interim measures,
in cases in which there is no reasonable possibility, prima facie
ascertained by the Court, of jurisdiction on the merits. Accordingly, the
Court cannot, in relation to a request for indication of interim measures,
disregard altogether the question of its competence on the merits. The
correct principle which emerges from these apparently conflicting
considerations and which has been uniformly adopted in international
arbitral and judicial practice is as follows: The Court may properly act
under the terms of Article 41 provided that there is in existence an
instrument such as a Declaration of Acceptance of the Optional Clause,
emanating from the Parties to the dispute, which prima[p119] facie confers
jurisdiction upon the Court and which incorporates no reservations obviously
excluding its jurisdiction. These conditions do not exist in the case now
before the Court.
Unless and until the peremptory reservation included in the Declaration of
Acceptance made by the Government of the United States of America and now
formally invoked by that Government is declared invalid in appropriate
proceedings before the Court, it must be deemed to exclude the jurisdiction
of the Court on the merits with regard to the claim of the Government of
Switzerland for the restitution of the property of the Corporation in
question—a claim which is directly related to the request for interim
measures with regard to the sale and the disposition of the shares of that
Corporation. If the Court subsequently holds that reservation to be valid,
that will automatically terminate its jurisdiction with regard to the sale
of the shares. Should, on the other hand, the Court eventually declare the
reservation in question to be invalid, such invalidity may well entail the
invalidity of the Declaration of Acceptance as a whole and thus render
impossible altogether the jurisdiction of the Court. While I do not wish to
prejudge the eventual decision of the Court on these questions it is
apparent that, on either alternative, the Court will be without jurisdiction
to entertain the Application so far as it relates to the sale and
disposition of the shares. I do consider that the third possibility—namely,
that the Court may declare the reservation to be invalid and nevertheless
uphold the validity of the Declaration of Acceptance as. a whole—is
sufficiently remote to permit its exclusion as a factor in the prima facie
appreciation of the possibility of the Court's jurisdiction on the merits.
Moreover, quite irrespective of any future decision of the Court on the
question of the validity of the reservation in question, the latter must, so
long as it remains a valid expression of the will of the Government of the
United States, be given full and unqualified effect. Unlike in other similar
cases, there is no question here of any uncertainty or controversy as to
whether the subject of the dispute is covered by the reservation. That
reservation must be deemed to embrace all aspects of the procedure of the
Court under its Statute. The Court is legally not in a position, at any
stage of the procedure, to exercise jurisdiction —whether by granting the
request for an indication of interim measures or by declining it—unless in
conformity with the terms of the Declaration of Acceptance. In the matter of
its jurisdiction there is no other legal basis for its action under the
Statute.
It might be said that as the Government of the United States of America has
invoked what may be described as the "automatic reservations" only in
respect of the sale or other disposition of the shares, there is nothing to
prevent the Court from acting under Article 41 with respect to other aspects
of the request of the Swiss Government. This may be so. However, the Swiss
request for [p120] interim measures of protection covers primarily the
question of sale and disposition of the shares. The present Order of the
Court is concerned exclusively with that aspect of the request as being the
only one which fulfils the requirements of Article 61, paragraph i, of the
Rules of the Court. In its Order the Court has assumed jurisdiction with
regard to the request thus defined. It has declined to grant it. As already
stated, by clear implication it leaves open the possibility of affirmative
action should circumstances undergo a change. In both respects the Order is,
in my opinion, contrary to a conclusive condition under which the
jurisdiction of the Court has been accepted.
In my view it is not open in the present case to the Court to find either
that there is a need or that there is no need for interim measures of
protection on the basis of Article 41. The Court ought to declare that it is
without jurisdiction to entertain the request.
For these reasons, while I am in agreement with the operative part of the
present Order, I cannot otherwise subscribe to it.
***
I have refrained from referring to or elaborating the additional, and no
less decisive, reason why, in my view, the Court is without jurisdiction to
entertain the request for interim measures filed by the Swiss Government. In
my Separate Opinion in the case of Certain Norwegian Loans {I.C.J. Reports
IQ57, pp. 43-66) I came to the conclusion that a reservation of the kind as
now before the Court is invalid and that its invalidity entails the
invalidity of the Declaration of Acceptance as a whole. If that is so, the
Government of the United States cannot validly become either a plaintiff or
a defendant under its Declaration of Acceptance—although it is open to it,
in respect of any claim brought against it in reliance on its Declaration of
Acceptance, to submit to the jurisdiction of the Court on some other basis.
However, I have abstained from adopting that view as a ground of the present
Opinion seeing that the question of the validity of the above reservation of
the United States of America is not now before the Court and that it may,
with the possible participation of other Signatories of the Optional Clause
intervening by virtue of Article 63 of the Statute, form the subject-matter
of a decision of the Court at a subsequent stage of the proceedings.
(Signed) Hersch Lauterpacht. |
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