Observations and Submissions of the Government of the United Kingdom of Great Britain and Northern Ireland on the Preliminary question of competence

COUR INTERNATIONALE DE JUSTICE

AFFAIRE DE L'OR MONÉTAIRE
PRIS A ROME EN 1943

(ITALIc. FRANCE, ROYAUME-UDE GRANDE-
- BRETAGNE ETD'IRLANDEDU NORD
ETETATS-UNISD'AMERIQUE)

INTERNATIONCOURTOF JUSTICE

PLEADINGS, ORALARGUMENTS, DOCUMENTS

CASE OF THE MONETARY GOLD
REMOVED FROM ROME IN 1943

(ITALUvFRANCE,UNITED KINGDOMOF GREAT
BRITAIN AND NORTHERN IRELAND
AND UNITED STATES OFAMERICA)Tous droits réservés par la

Cour internat iorialede Justice
Al1 rights reserved by the

International Coiirt of Juçticc AFFAIRE DE L'OR MONETAIRE

PRIS A ROME EN 1943

(ITALTECFRANCE, ROI'AUME-UNI DE GRANDE-BRETAGNE
ET D'IRLANDE DU NORD ETÉTATS-UNISB'AMERIQUE)

CASE OF THE MONETARY G0LD

REMOVED FROM ROME IN 1943
(ITALYv.FRANCE, UNITED KINGDOM OF GREAT BRITAIN

AND NORTHERN IRELAND AND UNITED STA'IES
OF AMKRICA) COUR INTERNATIOYALE 1 ;JUSTICE

MÉMOIRES, PLAIDOIRIES E DOCUMENTS

AFFAIRE DE L'OR M

PRIS A ROME E
(ITALIE c. FRANCE, ROT

ET ÉT,4TS-UNIS D'AM
AREETDU15 JUI1954(QUESTTO INTERNATIONAL COURT OF .JUSTICE

PLEADINGS, ORAL ARGUMENTS, DOCUMENTS

CASE OF THE MONETARY GOLD

REMOVED FROM ROME IN 1943
(ITALY v FRANCE, UNITED KINGDOM
AND UNITED STASES OF AMERICA)

JUDG3IENOFJUNE~jth,Igj(IJRELI~IINQUESTIO~) PRINTED IN THE NANDS

1 3. OBSERVA'I'IONS AND SUBMISSIONS OF THE GOVERN-
MENT OF THE UNITED TCTNGDORiC I IF GREAT BRTTAIN

AND NORTHERN IUELAND ON THE PHELIMINARY
QUESTION OF COMPBTENCE

, I. These Observations alid Subimissions arc macle in accordance
witk the provisions of the Orclers of thc Court datecl Novernber 3rd,
igj3, and January z6th, 1954.
2. By an Application dated May ~gth, 1953 , ade in consequence

of ancl under the Tripartite Washington Sratement issuecl by the
French, United States and United Kingdorn Governmei~ts on
April ~jth, IgjI, the Italian Govcrnn~ent requested the Court to
adjudge and declare :
"(1) that the Governrnents of the Frencli Kepiiblic, Great 13ritaiil and
Nortliern Ireland and the United States of America should
deliver toItaly any share of the monetai-j7 gold thrit rnight be
due to Albnnia under Part III ofthe Paris Act of "Janiiarjr14th,
1946, in partial satisfaction for tdnmage caiisedto ltaly by
the Albanian law of Janiiary r3tli1945 ;

(2) thhavetpriority overrthcclaiin of the United Kingdomrytolreceive

the gvld in partial satisfaction tlie Jiidgnent in thc Corfu
Channel casc."
3. This Application thcrefore contained 110 reservaticin ori jur-is-
diction,nor an? suggestion that the Court rnight lack the necessary
cornpeterice to coiisider and determine thc questions put to it. On

October goth, ~953, however, in lieil of the Mernorial on the rnerits
of the Italian claim which the Court in its Order of July ~st, lgj3,
had directed skould be deposftecl before November znd, 1933~ the
Itdian Government filed a Preliminary Objection in wkich it re-
questcd the Court " to adj udicate on the preliminary cluestiori oits
jurisdiction to den1 with the merits of the cIaim set fort11 under
No. r of the Submissions of the Application submitted to thc Court
or1Rlny ~gth, 1953".

4- Further, on Decernber ~zth, 1953, the Itxlian Governmci~t, in
coi~zpliai~cewitlz thc Chder of the Cciurt of November grd, ~9j3,
submitted in support of itsPrelirni~lary Objection a further Çtate-
ment in wl~ich itreclueçted tlie Court :
"To adjudge and declare :
that thc Statemerit to accornl-iariy pilblicationof the Agreement
,between thcGoverntncnts of the French Republic, the United King-
dom of Grcat Rritain and Northern lreland and thc Uiiited States
of ilmericdfor the çubrnissioti to an arbitratorcertainclaims with rcspect togold looted by tlieGemans from Rome in 1943 is not n
siifficiebasis upon whlclito found the jurisdiction ofthe Court to
dcal with the meritç of the daim set for+ uiider No. r of thc Suh-
missionsof the hpljlicntiori stihmittctomthe Court by the Govern-
mcnt of the Italian tnRepublicon Rlay rgth, 1953.
That the Court is conscquently without jurisdiction to adjtidicatc
~ipotthe merits of the said claiin."
I

5. The contention that the Court lacks juriçdiction isurged by the
Italian Government on a nurnber of grounds, and, in the ordinary
way, the Goverriment of the United ~iri~ldorn would now proceed
to give its views as to the merits oftlzese arguments. Ho~vever,the
Etaliai~ plea of lack of jurisdiction places the United I<iilgdom
Government, as a defendant in thcse proceedings, andas the defen-
dant principailg interested in the ultitnatc ~isposal of the monetary
gold concerned, in a position of some difficulty as regards expressing
its views at the present stage on the n~erits of the question of com-

petcnce-for the follawing reasons.
6. It is obvious that wheil, by means oflthe Tripartite Washing-
ton Staternent, the three defendant Governments providecl for
recourse to the Court by Italy-if ItaZy !rished to nvail: herselj of
suclzracowse-they must have held the view that the Coiirt would
be conqsetent to considcr and pronounci upon Italy's claim. If
therefore the United Kingdoin Govemrnent werc obliged now to
argue on the merits of the Italian Preliminary Objection, it could

or~lyhe in the sense tkat tlie Objection \vas not well founded.
7. Howevcr, the Italiail Objection preset~ts certain unusual
features. Normally, any challenge to tlie jprisdiçrion oî a tribunal
comes from the defendant or respondcnt side in the case, since, in
gcnernl, only that side caii have an interest in seeking to coirtest
the jurisdiction of the tribunal. The plaint% or clairnant side has,
as a rule,no intereçt in denying thc jurisdic~ioii it haç itself invoked.
If, however, $er mirabile, as in the prcsent case, the plaintiff or
claimant party does cantest the jurisdiction it has invoked, it will
equally follow that the defenclant or responderit party can normally
have no interest in resisting this objection (whatever itç views may

be as to the ~neritscifthe object ion)-since, if the objccbionissuccess-
ful, the proceedings will necessarily be brdirght to an end, and fke
claiwz ofthe plccintiflor claimant flarty iw tkose flroceedi~~gwsill?zotbe
admitted.
S. Applying these principles to the facts of the prescrit case, it
folloivs that, if the Italian contention tkatlthe Court is not cornpe-
tent to go iiîtthe substance of the original ïtalian Application atere
to be uyheld, the procecdings providecl for by the Tripartite 1rlias.h-

ingtnn Statemen t ~vouldbe at an end, and no decision bÿ the Court
IGovcrnments having a right to apply to thk Court under the State-
ment made an Application rinthe inerits within the specifiedperiod of
go days, with Ihe effcct of auton~atically pkeventing the transfer of
the guld of the United Kingdom wliicq would othcrwise have

occ~irred. The applicailt Government, however, has subsequently
conteited the jurisdiction which it haç itsel! invoked, aiid Iws asked
the Court to 11olditsel fiilcompeten tto determirle the Application
which has been made, but ivithout giving aiiy iiidication of what
the precise object of thiç contention is, or ~vhatcffect acquiescence
in itby the Court is intcnded to have on the stati~s and Ii~turc dis-
posa1 of the gold. ln such circumstances, land given that notlzing
obliged the 1talian Governlnent to raise this Objection, the Uriited
Kingdom Governnient considers itçelf justkfred in taking tlie vicm
that the Tripartite Washington Statemerit is not being irsed for the
purposes for which it was rneant, namely,) to secrire a decision olz
the r~zeritsof any Itdian (or Albanian) clajm, and that itis being
~rnployed to delay ratl~er than promote a fiflaI determinatiorz of the
question of the right to the gold. In coilscquence, the United King-
dom Goverlisnent believes that the originl Itdian Application to
the Court should now be regarded as being invalidüted and ivithout
effect.This point is developed helow.

III.

rz. The United Kingdoin Governlncnt sbbrnits that the Iralian
Objection to the cornpetencc of the Court must be regarded as
amouniing to a niiliification or canceiiatiod-or ta a withdrawkl-
of the original Application ;and that it cons~cluentlycreates a situa-
tion sirnilar to that which woulcl have exiSted if Italy, as well as
Albania, had iiever applied to the Court at la11uiider the Tripartite
Washirlgtori Statement. This is so because the contention that the
Court lackç competei~ce togo into and deterbine the origiilal Itdian

claim on the ~neritsis iri effect a request to tlze Court ~zolto consider
or determinc that daim-since the whole o6ject of the Objection is
that the Court should not,'after all, pron(uiiçc upoii thc original
ltalian Application. Such a contention fiztlor?otzrdbythe sa?nefiarty
tkmtmade the origilzaldpplication on the ffileritsis obviou~ly quite
iricoinpatible with that Application-since, if it succeeds, the origi-
rial Application cannot çucceed, becaiisc iJ cai-ii~otbe heard. The
Ztaliaii Objectioii to the juriscliction therelre amaunts tu a plea
that the original Application be not heard, and is ccinsequently
equivalent to a withdrdwal or cancellation I$ that Application.
13. The explanation given hy the Italiar; Government of these
incorisiste~it attitudes is that Italy was cornpelled by the terms of

the Tripartite LVashington Stateinent to make an ayplication to the
Court on thc me~its withiri the specified peijod of go days, on pain
of seeing the gold transferred to the United Kingclcim. This, how- OBSERVATIONS OF THE BRITISH GOVERN~IEWT (26 III54) 81
ever, amoun ts to saying that the Italian Govcrnment applied to the

Court, çlaiming the guld for itself, merely in order to psevent an
irnmediate transfcr to the United Kingdorn, and is now contesting
the jurisdiction in order to yrcvent the Court froni giving a decisior1
on the validity of the Italian clairn, and on the qucstion of which
of the two countrics the gold should be adjudged to. This appears
to the United Kingdom Governmeilt to be contrarv to tllc tme
spirit and intention (everi, as will be shown preserztly, the letter)
of thc Td'~ipürtiteWashington Staternent, since it seems to he
directed, not to securing a fiilal clecisionor1 the question of the
destination of the gold, but ta produçing a situatioi~ of stalernate,
in whicli tlic disposal of the goJdwould renîain indcfinitely susperided
or in abeyance.

14. The United Iiingdom contentioii that the Italian Govern-
ment's Objection to the Court's jurisdiction amounts to a nullifica-
tion or withdrawal of the original 1talian Application, and, in effect,
discliialifies Italy from proceeding any further under thc Tripartite
Washington Staternent, car1be put in another way. It ivas clearly
implicit in the Statement tllat, if eitlier Italy or Albarlia availed .
thernselves of the right to apply to the Court, tlzis would involve an

acceytance by then? of the Court's jmisdictiun for the yurposes of
the Application, alid for the determination of the issues piit to the
Court-since, if the jurisdiction was not üccepted, the Application
cot~ldrlot he regarded as having xny reality. Voluiitary applicatiori
to a tril~unal-the invokiilg of itç jurisdiction-necessarily involves
an acceptnnce of tkat jurisdiction ; for such an application on the
merits of a claim, if coupled with, or followed by, a denial of the
cornpetence of the tribunal tu go into and pronounce upon those
same merits, woulcl involve ail iilconsistency so fundamcrital as to
nullify the application, and rendcr it meaningless anci void.

15. The origiix~lItalia~l Application of May ~cjth, T953, contained
no suggestion that thc Court was riot competei~t to go into the Tirin-
cipal issue on mhicl~the Application was based, and it thercfore
appcared to amount to an unequivocal acceptrtnce of tlie Court's
jur~sdiction. Had the questioiz of coinpetence been raised nt that
stagc, it would have been apparent thai: the whole Applicatioi~
lacked reality and stultified itself; and the Uriitccl Kingdom Gov-
ernmerit wcluld then have been in a position to represent at once
(and would certainly have clone su) that the Application could ilot

bc rcgarded as a valid App1icatior-iunder or for the purposes of the
Tripartite Washington Staten~ent. Jt would bave been manifesr
thnt the requisement of an Applicatior~ to the Court within the
specified pesiod of go days had not beerl cornplieci with-certainly
not in essence, and scarcely even in form, since what the Statement
specified was
".,..an application to the International Court of Justice for the
determinationof the qiiestionwlietlicr hyreason of any ng11twhich she clairnsto possess...the gold should dc delivered ta ItaIy rather
than to Albania...."

It woulciobviously not be rnaking an ~~dlication to the Court "/or
tlzdetermination 01 "his question if, simul?aneously, the cornpetence
of the Court to determine it were challenged and contesteci.
I
16. The United Kiiigdorn Govcrnment isubmits that no essential
difference in this situationisproduced bÿ !he fact that the challenge
to, and cotztestation of, the jurisdiction is made subsequent to the
original Application. Tlie resulting effect islprecisely the same. There

cannot any longer be a subçistirig Application to the Court for the
determination of a given question, wh{n the party supposedly
applying issimnltaneously rnaintaining t9at the Court is incornpe-
tent to deterrniiîe thiç very question, and ought indeed $ro$~io
motu to decline to do so. For there reasls, the United Kingdom
Government çontends that there isin fact no longer before the
Court any valid or subsisting Applicationlwitliin the rneaniiig, and
according tothe clear intention, of the 'Triprtite Washington State-
ment-Le., "for the determinatioii of" tF substantive questions
therein specified as being "ce questions which Italy is entitled
to put to thc Court. The considerations jliich rnoved the Ttalian
Government not to rnei~tiorîthe question qf competeiîce when nzak-
ing its original ApplicStiori can be understaad. But, in the opinion
of the Urzited Kingdom Government, they do not alter the fore-
going conclusion.

17. The above argument finds furthe! support in the actual
language of the Tripartite Washington ~tltement, where it is made

an express condition of the validity af any ltalian Applicatioiî to
the Court that Italy 1
"agre~~sto accej5thejzarisdicbiof thedourt to determin'e the ques-
tion whether the clair ofthe United ~inkdom or of Italytoreceive
the gold should have priority,if thisIssueshould ;rise."
I
Since the priority issue could arise aniy if the Court first went ioto
the question of Italy's claim against Alhania, and clecided that in
favour of ltaly, acceptance by the Italiati i~overnment of the corn-
peterice of thc Court to determine that initi~l question would equal1jr
appear, bjr implication, to have been an essential condition of the
validity of ItiilyJs Application to the ~oirt under the Tripartite
Ulashirigtosi Staternent-and, since this cqrnpetence iç apparently
not accepted by 1taly, this corldition is not plfillecl, and the Applica-
tion is consecluently not valid, or has become invalidated.
l
18. Accordingly, for the reasons given abdvc, the United Kingdom
Government , while reserving the right, if necessary, to present argu-
ment at a later stage nri the merits of the
question of cornpetei~ce,
raqueçts the Court to find and declüre : OBSERVATIONS OF THE BRITISH GOVERXMENT (26 Ir154) 83
(1) that, in view of thc Itdian Governrncnt's Objectioii on the
question of cornpetence, its Application to the Coiirt of

May ~gth, 1953, docs not conform, or no longer çonforms,
tothe conditions and intentiotis of the Tripartite Washing-
ton Statement of April zgth, 1951,and isaccordingly invalid
,,d void, so that there is no longer before the Court any
application ...for the cleterminatiorr of" the question
which, under tlie Tripartite Statement, 1taly mas entitled
to put to the Coi~rt;
Abernntively,

that the action of the Italiün Governinent IIobjecting to the
cornpetence of the Court amounts to a \vithdrawal or can-
cellationofits Application of May rgth, 19j3, and disquali-
fies Italy from proceeding any futther under the Tripartite
Washington Stütei-rien:

(2) that, in consequeilce, the United Kingdom iserititlecl by the
Tri~~artite Wa Jiingtoil Staternen t to receive a transfer of
the gold in the same manner as if Italy, as iveIlas Albania,
had not üpplied to the Court under the relevant provisions
of the Statement.

(Signed) G. G. F~~ZMAURICE,
Agent of the Government of the
United Kingdom of Great &ritairi
and Northern Ireland.

March 26th, 1954.