COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE L’OR MONÉTAIRE

PRIS A ROME EN 1943
(QUESTION PRELIMINAIRE)

(ITALIE c. FRANCE, ROYAUME-UNI DE GRANDE-
BRETAGNE ET D'IRLANDE DU NORD ET
ÉTATS-UNIS D’AMERIQUE)

ARRÊT DU 15 JUIN 1954

1954

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE OF THE MONETARY GOLD

REMOVED FROM ROME IN 1943
(PRELIMINARY QUESTION)

(ITALY v. FRANCE, UNITED KINGDOM OF GREAT
BRITAIN AND NORTHERN IRELAND AND
UNITED STATES OF AMERICA)

JUDGMENT OF JUNE 15th, 1954
Le présent arrêt doit être cité comme suit :

« Affaire de l'or monétaire pris à Rome en 1943
(question préliminaire),
Arrêt du 15 juin 1954: C.I.J. Recueil 1954, p. 19.»

This Judgment should be cited as follows :

“Case of the monetary gold removed from Rome in 1943
(Preliminary Question),
Judgment of June 15th, 1954: I.C.J. Reports 1954, D. 19.”

N° de vente: 119
Sales number

19
INTERNATIONAL COURT OF JUSTICE

1954
YEAR 1954 June 15th

General List:
No. 19

June 15th, 1954

CASE OF THE MONETARY GOLD

REMOVED FROM ROME IN 1943
(PRELIMINARY QUESTION)

(ITALY v. FRANCE, UNITED KINGDOM OF GREAT
BRITAIN AND NORTHERN IRELAND AND
UNITED STATES OF AMERICA)

Part III of Agreement of Paris of 1946 on Reparation._-Washington
Agreement of 1951 for arbitration—Washington Statement accom-
panying Washington Agreement.—Italy’s Application : claim to gold
and claim of priority over claim of United Kingdom.— Preliminary
Question filed by Applicant.—Effect on A pplication of Italy’s objection
to jurisdiction.— Raising of Objection does not imply non-conformity
of Application with Washington Statement nor withdrawal or cancel-
lation of Application.

Parties conferred jurisdiction on Court.— Jurisdiction not co-
extensive with Court’s task.—Vital issue : alleged international responsi-
bility of Albania to Italy.—Necessity of Albania’s consent.— Question
of intervention.—Article 59 of Statute.—TJurisdiction conferred on
Court does not authorize it to decide Italian claim to gold.-—Dependence
of question of priority upon question of Italian claim to. gold.-Court
cannot decide question of priority.

JUDGMENT

Present : Vice-President GUERRERO, Acting President; President
Sir Arnold McNair; Judges BASDEVANT, HACKWORTH,
WInNIARSKI, Zoricié, KLAESTAD, BADAWI, READ, Hsu
Mo, Levi CARNEIRO, ARMAND-UGON, KOJEVNIKOV ;
M. G. Moret, Judge ad hoc; Registrar LOPEZ OLIVAN.

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MONETARY GOLD CASE (JUDGMENT OF I5 VI 54) 20

In the case of the Monetary Gold removed from Rome in 1943,

between
the Italian Republic,

represented by :
M. Casto Caruso, Italian Ambassador to the Netherlands,

as Agent,
assisted by :

M. Tomaso Perassi, Professor of International Law of the Law
Faculty of the University of Rome,

as Counsel,
and

the French Republic,

represented by :
M. André Gros, Professor of the Faculties of Law, Legal Adviser
of the Ministry for Foreign Affairs,

as Agent,

assisted by :

M. Philippe Monod, Minister Plenipotentiary,
as Counsel and Acting Agent,

the United Kingdom of Great Britain and Northern Ireland,

represented by :
Sir Gerald Fitzmaurice, K.C.M.G., Legal Adviser of the Foreign
Office,

as Agent,

assisted by :
Mr. J. E. S. Fawcett, D.S.C., Member of the English Bar,
as Counsel,

the United States of America,

represented by:

The Honorable Herman Phleger, Legal Adviser of the Department
of State,

as Agent,
MONETARY GOLD CASE (JUDGMENT OF I5 VI 54) 21

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 King-
dom 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 go 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 2oth, 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 fa) of the Washington Statement.

On May roth, 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 Nether-
lands filed in the Registry of the Court a Declaration by which the
Italian Government, invoking the Resolution of October 15th,
1946, of the Sécurity Council of the United Nations, accepted the:

6
MONETARY GOLD CASE (JUDGMENT OF I5 VI 54) 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 te
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 tgth, 1953, and to the Albanian Government on
May 2oth. 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 Ist, 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 Sub-
mission No. 1 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. 1 of the Submissions of the Application submitted to
the Court on May roth, 1953”.

By Order of November 3rd, 1953, the Court, without prejudging
the question of the interpretation and application of Article 62 of the

7
MONETARY GOLD CASE (JUDGMENT OF I5 VI 54) 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 observa-
tions 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 roth 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 Govern-
ment 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 United
Kingdom Government. Mr. Herman Phleger, Agent of the Govern-
ment 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 dis-
posal 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. 1 of the Submissions of the Application submitted to the Court
on May xgth, 1953 ;”

in the Statement on the Preliminary Question :

“For the foregoing reasons,
May it please the Court
To adjudge and declare :
MONETARY GOLD CASE (JUDGMENT OF 15 VI 54) 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. 1 of the Submissions of the Application submitted to the Court
by the Government of the Italian Republic on May roth, 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. x of the Submissions of the Application submitted to the Court
by the Government of the Italian Republic on May roth, 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. x 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 :

(x) that, in view of the Italian Government’s Objection on the
question of competence, its Application to the Court of May roth,
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 determi-
nation 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 roth, 1953, and disqualifies Italy from
proceeding any further under the Tripartite Washington Statement ;

9
MONETARY GOLD CASE (JUDGMENT OF I5 VI 54) 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 State-
ment ;”

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 roth, 1953,

(a) does not conform to the conditions and intentions of the
Tripartite Washington Statement of April 25th, 1951, or

alternatively

(>) 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 ITI,
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, all 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,

10
MONETARY GOLD CASE (JUDGMENT OF I5 VI 54) 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 2oth, 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 25th, 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

II
‘MONETARY GOLD CASE (JUDGMENT OF 15 VI 54) 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”.

Asa result of the Order of November 3rd, 1953, the Italian Govern-
ment 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 1s asked to adjudge and declare that the Washington
Statement “‘is not a sufficient basis upon which to found the juris-
diction of the Court to deal with the merits of the claim set forth
under No. 1 of the Submissions of the Application” ; the ground on
which Italy’s Submission is based is that the proceedings contem-
plated 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 solu-
tion 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 of the Court, her Application to the Court
of May roth, 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 putposes 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:

12
MONETARY GOLD CASE (JUDGMENT OF 15 VI 54) 28

“That the Court, whatever may be its decision on the question
of jurisdiction referred to above, is without jurisdiction to adju-
dicate upon the claims contained in No. 1 and No. 2 of the Submis-
sions 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 Govern-
ment, 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 State-
ment.”

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
(x) 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 juris-
diction to adjudicate upon these Submissions of the United King-
dom. 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

13
MONETARY GOLD CASE (JUDGMENT OF 15 VI 54) 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 deter-
mination of the questions submitted in her Application. She has
requested the Court to settle the problem of jurisdiction before
determining those questions. This does not mean that she is asking
the Court not to determine those questions under any circum-
stances. 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.

14
MONETARY GOLD CASE (JUDGMENT OF I5 VI 54) 30

Nor can the Court accept the contention in final Submission
No. 1 (6) 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 dis-
continuance.

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 that this Application, contrary to the sub-
missions of the United Kingdom Government, still subsists. There-
fore, the Court must now proceed to consideration of the Prelim-
inary Objection of Italy in order to decide whether it can adju-
dicate 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 Ameriea 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. x 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”.

15
MONETARY GOLD CASE (JUDGMENT OF I5 VI 54) 31

The Italian Government, in making its Application, stated that
it was relying on the provisions of paragraph (6) 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 igth, 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 deter-
mination 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 the Albanian law of January 13th,
1945”. The Washington Statement specified in advance one of the

16
MONETARY GOLD CASE (JUDGMENT OF 15 VI 54) 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—ques-
tions 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 ques-
tions 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 provi-
sions 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.

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MONETARY GOLD CASE (JUDGMENT OF I5 VI 54) 33

It is also contended that any decision of the Court on the ques-
tions 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 inter-
national 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 con-
cerns 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 tight which it believes it possesses and which, by the first Submis-
sion 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

18
MONETARY GOLD CASE (JUDGMENT OF I5 VI 54) 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 Prelimi-
nary 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
tights of the United Kingdom and Italy can be examined in a hypo-
thetical form, independently of the examination of the first Italian
claim, the Italian Government, for its part, would have no objec-
tion”. Apart from the fact that this statement, which is conditional
in form, can hardly be construed as a formal request for consider-
ation 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 ques-
tion 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 Applica-
tion 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.

19
MONETARY GOLD CASE (JUDGMENT OF I5 VI 54) 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 Govern-
ment of the French Republic, the Government of the United King-
dom 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 McNarr, 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 Applica-
tion 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.

20
MONETARY GOLD CASE (JUDGMENT OF I5 VI 54) 36

Judge Reap, 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.

ar