                      INTERNATIONAL COURT OF JUSTICE

                        REPORTS OF JUDGMENTS,
                     ADVISORY OPINIONS AND ORDERS

                    MARITIME DELIMITATION
                     IN THE INDIAN OCEAN
                          (SOMALIA v. KENYA)

                        ORDER OF 9 OCTOBER 2015

                             2015
                      COUR INTERNATIONALE DE JUSTICE

                          RECUEIL DES ARRÊTS,
                   AVIS CONSULTATIFS ET ORDONNANCES

                    DÉLIMITATION MARITIME
                     DANS L’OCÉAN INDIEN
                           (SOMALIE c. KENYA)

                     ORDONNANCE DU 9 OCTOBRE 2015

2 CIJ1086.indb 1                                       10/05/16 16:48

                                              Official citation :
                                  Maritime Delimitation in the Indian Ocean
                                (Somalia v. Kenya), Order of 9 October 2015,
                                         I.C.J. Reports 2015, p. 659

                                            Mode officiel de citation :
                                  Délimitation maritime dans l’océan Indien
                              (Somalie c. Kenya), ordonnance du 9 octobre 2015,
                                          C.I.J. Recueil 2015, p. 659

                                                                                1086
                                                                 Sales number
                   ISSN 0074-4441                                No de vente :
                   ISBN 978-92-1-157278-0

2 CIJ1086.indb 2                                                                        10/05/16 16:48

                                           9 OCTOBER 2015

                                               ORDER

                   MARITIME DELIMITATION
                    IN THE INDIAN OCEAN
                     (SOMALIA v. KENYA)

                   DÉLIMITATION MARITIME
                    DANS L’OCÉAN INDIEN
                     (SOMALIE c. KENYA)

                                           9 OCTOBRE 2015

                                           ORDONNANCE

2 CIJ1086.indb 3                                            10/05/16 16:48

                                                                                659

                                COUR INTERNATIONALE DE JUSTICE

                                                ANNÉE 2015
                                                                                2015
                                                                                9 octobre
                                               9 octobre 2015                                  Rôle général
                                                                                no 161

                                 DÉLIMITATION MARITIME
                                  DANS L’OCÉAN INDIEN
                                          (SOMALIE c. KENYA)

                                              ORDONNANCE

                 Présents : M. Abraham, président ; M. Yusuf, vice‑président ;
                             MM. Owada, Tomka, Bennouna, Cançado Trindade,
                             Greenwood, Mmes Xue, Donoghue, M. Gaja, Mme Sebutinde,
                             MM. Bhandari, Robinson, Gevorgian, juges ; M. Couvreur,
                             greffier.

                     La Cour internationale de Justice,
                   Ainsi composée,
                   Après délibéré en chambre du conseil,
                   Vu l’article 48 du Statut de la Cour et l’article 79, paragraphes 1 et 5,
                 de son Règlement,
                   Vu l’ordonnance du 16 octobre 2014, par laquelle le président de la
                 Cour a fixé au 13 juillet 2015 et au 27 mai 2016 les dates d’expiration des
                 délais pour le dépôt, respectivement, d’un mémoire de la République
                 fédérale de Somalie et d’un contre‑mémoire de la République du Kenya,
                   Vu le mémoire de la Somalie déposé dans le délai ainsi fixé ;

                    Considérant que, le 7 octobre 2015, le Kenya a soulevé certaines excep-
                 tions préliminaires à la compétence de la Cour et à la recevabilité de la
                 requête ;
                    Considérant qu’en conséquence, en vertu des dispositions du para-
                 graphe 5 de l’article 79 du Règlement, la procédure sur le fond est suspen-

                                                                                4

2 CIJ1086.indb 137                                                                                10/05/16 16:48

                                délimitation maritime (ordonnance 9 X 15)                    660

                 due et qu’il échet de fixer un délai dans lequel la Partie adverse pourra
                 présenter un exposé écrit contenant ses observations et conclusions sur les
                 exceptions préliminaires ;
                   Compte tenu de l’instruction de procédure V, aux termes de laquelle le
                 délai pour la présentation d’un tel exposé écrit ne devra en général pas
                 excéder quatre mois à compter de la date de présentation d’exceptions
                 préliminaires,
                    Fixe au 5 février 2016 la date d’expiration du délai dans lequel la Répu-
                 blique fédérale de Somalie pourra présenter un exposé écrit contenant ses
                 observations et conclusions sur les exceptions préliminaires soulevées par
                 la République du Kenya ;
                     Réserve la suite de la procédure.

                    Fait en anglais et en français, le texte anglais faisant foi, au Palais de la
                 Paix, à La Haye, le neuf octobre deux mille quinze, en trois exemplaires,
                 dont l’un restera déposé aux archives de la Cour et les autres seront trans-
                 mis respectivement au Gouvernement de la République fédérale de Soma-
                 lie et au Gouvernement de la République du Kenya.

                                                                         Le président,
                                                               (Signé) Ronny Abraham.
                               Le greffier,
                 (Signé) Philippe Couvreur.

                                                                                5

2 CIJ1086.indb 139                                                                                10/05/16 16:48


                     749

                                DECLARATION OF JUDGE AD HOC VUKAS

                         1. I share the view of the Court concerning its finding that it has
                     jurisdiction to entertain the Application filed by the former Yugoslav
                      Republic of Macedonia on 17 November 2008 and that the Application
                      is admissible.
                         2. I also agree with the conclusion of the Court
                           “that the Hellenic Republic, by objecting to the admission of the for‑
                           mer Yugoslav Republic of Macedonia to NATO, has breached its
                           obligation under Article 11, paragraph 1, of the Interim Accord of
                           13 September 1995” (paragraph 2 of the operative clause).
                       3. However, I cannot subscribe to the conclusion of the Court to reject
                     “all other submissions made by the former Yugoslav Republic of Mace‑
                     donia” (paragraph 3 of the operative clause). This finding relates specifi‑
                     cally to the Applicant’s request that the Court orders

                            “that the Respondent immediately take all necessary steps to comply
                            with its obligations under Article 11, paragraph 1, of the Interim
                           Accord, and to cease and desist from objecting in any way, whether
                           directly or indirectly, to the Applicant’s membership of the North
                           Atlantic Treaty Organization and/or of any other ‘international,
                           multilateral and regional organizations and institutions’ of which the
                            Respondent is a member, in circumstances where the Applicant is to
                            be referred to in such organization or institution by the designation
                            provided for in paragraph 2 of United Nations Security Council res‑
                            olution 817 (1993)” (paragraph 2 of the final submissions).

                         4. The reason in support of this request of the former Yugoslav Repub‑
                     lic of Macedonia is that there exists a clear necessity of that State to
                     become a member of various “international, multilateral and regional
                     organizations and institutions”. An action of the former Yugoslav Repub‑
                     lic of Macedonia in that direction was supported, also by Greece. Namely,
                     the Memorandum of Understanding between the Ministry of Defence of
                     the Party of the Second Part and the Ministry of National Defence of the
                     Party of the First Part concerning Support to the Combined Medical
                     Team for Participation in NATO-led Operation ISAF in Afghanistan
                     which was concluded in Athens on 27 July 2005.
                         5. However, contrary to Greece’s earlier support, the trend of the
                     former Yugoslav Republic of Macedonia to become a member of interna‑
                      tional organizations is seriously endangered by Greece in connection with

                     109

5 CIJ1026.indb 214                                                                                20/06/13 08:42

                     750 	         application of interim accord (decl. vukas)

                     the 2008 Bucharest meeting. The condemnation of Greece by the Court
                     of her actions preventing the membership of the former Yugoslav Repub‑
                     lic of Macedonia in NATO is not sufficient in order to fulfil the obligation
                     of Greece under the Interim Accord. The duty of Greece as a member of
                     the European Union, in supporting the relations of Macedonia with the
                     European States is clear from the text of Article 11, paragraph 2, of the
                     Interim Accord:
                             “The Parties agree that the ongoing economic development of the
                           Party of the Second Part should be supported through international
                           co-operation, as far as possible by a close relationship of the Party of
                           the Second Part with the European Economic Area and the Euro‑
                           pean Union.”
                        6. According to that text, Greece has not only the duty stated in Arti‑
                     cle 11, paragraph 1, of the Interim Accord, but is also under the obliga‑
                     tion to support actively the international co‑operation of the former
                     Yugoslav Republic of Macedonia. The conclusion of the Court to reject
                     the Applicant’s request concerning the future Respondent’s activities does
                     not correspond to the Court’s conclusion that its Judgment “would affect
                     existing rights and obligations of the Parties under the Interim Accord
                     and would be capable of being applied effectively by them” (paragraph 53
                     of the Judgment).

                                                                    (Signed) Budislav Vukas.

                     110

5 CIJ1026.indb 216                                                                                20/06/13 08:42


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE L°INTERHANDEL
(SUISSE c. ETATS-UNIS D’AMERIQUE)
(EXCEPTIONS PRELIMINAIRES)

ARRET DU 21 MARS 1959

1959

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

INTERHANDEL CASE
(SWITZERLAND v. UNITED STATES OF AMERICA)
(PRELIMINARY OBJECTIONS)

JUDGMENT OF MARCH 21st, 1959
Le présent arrét doit étre cité comme suit:

« Affaire de l Interhandel,
Arrêt du 21 mars 1959: C. I. J. Recueil 1959, p. 6.»

This Judgment should be cited as follows:

“Interhandel Case,
Judgment of March 21st, 1959: I.C.J. Reports 1959, p. 6.”

N° de vente: 205
Sales number

INTERNATIONAL COURT OF JUSTICE

1959
March 21st
General List :

YEAR 1959 No. 34

March 21st, 1959

INTERHANDEL CASE
(SWITZERLAND v. UNITED STATES OF AMERICA)
(PRELIMINARY OBJECTIONS)

Declarations of acceptance of compulsory jurisdiction of Court.—
Reservation ratione temporis with regard to date on which dispute
arose.—Operation of principle of reciprocity Domestic jurisdiction
of United States and scope of reservation (b) of its declaration of
acceptance of compulsory jurisdiction of Court—Application of rule
of exhaustion of local remedies.

JUDGMENT

Present: President KLAESTAD; Vice-President ZAFRULLA KHAN;
Judges BASDEVANT, HACKWORTH, WINIARSKI, BADAWI,
ARMAND-UGON, KojJEVNIKOV, Sir Hersch LAUTERPACHT,
MoRENO QUINTANA, CORDOVA, WELLINGTON Koo, SPIRO-
POULOS, Sir Percy SPENDER; Judge ad hoc CARRY;
Deputy-Registrar GARNIER-COIGNET:
INTERHANDEL CASE (JUDGMENT OF 21 III 59) 7

In the Interhandel case,

between
the Swiss Confederation,
represented by
M. Georges Sauser-Hall, Professor emeritus of the Universities
of Geneva and Neuchatel,
as Agent,
and by
M. Paul Guggenheim, Professor at the Law Faculty of the
University of Geneva and at the Graduate Institute of Inter-
national Studies,
as Co-Agent,
assisted by
M. Henri Thévenaz, Professor of International Law at the
University of Neuchatel,
as Counsel and Expert,

and

M. Michael Gelzer, Doctor of Laws,
M. Hans Miesch, Doctor of Laws, First Secretary of Embassy,

as Experts,

and
the United States of America,
represented by

the Honorable Loftus Becker, Legal Adviser of the Department
of State,

as Agent,
assisted by

Mr. Stanley D. Metzger, Assistant Legal Adviser for Economic
Affairs, Department of State,

Mr. Sidney B. Jacoby, Professor of Law, Georgetown University,
as Counsel,

THE COURT,
composed as above,
delivers the following Judgment:

On October 2nd, 1957, the Ambassador of the Swiss Confederation
to the Netherlands filed with the Registrar an Application dated
October 1st instituting proceedings in the Court relating to a dispute
which had arisen between the Swiss Confederation and the United

5
INTERHANDEL CASE (JUDGMENT OF 2I III 59) 8

States of America with regard to the claim by Switzerland to the
restitution by the United States of the assets of the Société inter-
nationale pour participations industrielles et commerciales S.A.
{Interhandel).

The Application, which invoked Article 36, paragraph 2, of the
Statute and the acceptance of the compulsory jurisdiction of the
Court by the United States of America on August 26th, 1946, and
by Switzerland on July 28th, 1948, was, in accordance with
Article 40, paragraph 2, of the Statute, communicated to the
Government of the United States of America. In accordance with
paragraph 3 of the same Article, the other Members of the United
Nations and the non-Member States entitled to appear before the
Court were notified.

Time-limits for the filing of the Memorial and the Counter-
Memorial were fixed by an Order of the Court on October 24th,
1957, and subsequently extended at the request of the Parties by
an Order of January 15th, 1958. The Memorial of the Swiss Govern-
ment was filed within the time-limit fixed by that Order. Within
the time-limit fixed for the filing of the Counter-Memorial, the
Government of the United States of America filed preliminary
objections to the jurisdiction of the Court. On June 26th, 1958,
an Order recording that the proceedings on the merits were sus-
pended under the provisions of Article 62 of the Rules of Court,
granted the Swiss Government a time-limit expiring on Septem-
ber 22nd, 1958, for the submission of a written statement of its
observations and submissions on the preliminary objections. The
written statement was filed on that date and the case became
ready for hearing in respect of the preliminary objections.

The Court not including upon the Bench a judge of Swiss natio-
nality, the Swiss Government, pursuant to Article 31, paragraph 2,
of the Statute, chose M. Paul Carry, Professor of Commercial Law
at the University of Geneva, to sit as Judge ad hoc in the present
case.

Hearings were held on November 5th, 6th, 8th, roth, rrth, rath,
14th and r7th, 1958, in the course of which the Court heard the
oral arguments and replies of the Honorable Loftus Becker, on
behalf of the Government of the United States of America, and of
M. Sauser-Hall and M. Guggenheim, on behalf of the Swiss Govern-
ment.

In the course of the written and oral proceedings, the following
submissions were presented by the Parties:

On behalf of the Government of the Swiss Confederation, in the
Application:

“May it please the Court:

To communicate the present Application instituting proceedings
to the Government of the United States of America, in accordance
with Article 40, paragraph 2, of the Statute of the Court;

6
INTERHANDEL CASE (JUDGMENT OF 21 III 59) 9

To adjudge and declare, whether the Government of the United
States of America appears or not, after considering the conten-
tions of the Parties,

1. that the Government of the United States of America is
under an obligation to restore the assets of the Société inter-
nationale 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.

The Swiss Federal Council further reserves the right to sup-
plement and to modify its submissions.”’

On behalf of the same Government, in the Memorial:
“May it please the Court to adjudge and declare:

A. Principal Submissions

1. that the Government of the United States of America is
under an obligation to restore the assets of the Soczété inter-
nationale pour participations industrielles et commerciales S.A.
(Interhandel) ;

2. in the alternative, that in case the Court should not consider
that proof of the non-enemy character of the property of the
Société internationale pour participations industrielles et com-
merciales S.A. (Interhandel) has been furnished, an expert
selected by the Court should be designated, in accordance
with Article 50 of the Statute of the Court, with the task of

(a) examining the documents put at the disposal of the
American Courts by Interhandel,

(b) examining the files and accounting records of the Sturze-
negger Bank the seizure of which was ordered by the
public authorities {Ministère public) of the Swiss Confe-
deration on June 15th, 1950, subject to the reservation,
however, that the expert in his expert opinion shall refer
only to such documents as relate to the Interhandel case
and shall be instructed to observe absolute secrecy con-
cerning the documents of the Sturzenegger Bank, its
clients and all other individuals and legal persons if such
documents are not relevant to the case pending before
the Court,

for the purpose of enabling the Court to determine the enemy
or non-enemy character of the Interhandel assets in the
General Aniline and Film Corporation.

B. Alternative Submissions in case the Court should not sustain
the Swiss request to examine the merits of the dispute

1. (a) that the Court has jurisdiction to decide whether the
dispute is one which is fit for submission either to the
arbitral tribunal provided for in Article VI of the

7
INTERHANDEL CASE (JUDGMENT OF 21 III 59) 10

Washington Accord of 1946, or to the arbitral tribunal pro-
vided for by the Treaty of Arbitration and Conciliation be-
tween Switzerland and the United States of February
16th, 1937;

(6) that in case of an affirmative reply to submission fa)
either the arbitral tribunal provided for in the Washington
Accord or the tribunal provided for in the Treaty of
Arbitration and Conciliation of 1931, has jurisdiction to
examine the dispute, and that the choice of one or the
other tribunal belongs to the applicant State;

2. in the alternative:

(a) that the Court has jurisdiction to decide whether the
dispute is fit to be submitted to the arbitral tribunal
provided for by Article VI of the Washington Accord of
1946;

(6) that in case of an affirmative reply to submission (a) the
said tribunal has jurisdiction to examine the dispute;

3. in the further alternative:

(a) that the Court has jurisdiction to decide whether the
dispute is fit to be submitted to the arbitral tribunal
provided for by the Treaty of Arbitration and Conciliation
of 1931 between the Swiss Confederation and the United
States of America;

(6) that in case of an affirmative reply to submission fa) the
said tribunal has jurisdiction to examine the dispute;

4. in the final alternative:

that the dispute between the Swiss Confederation and the
United States of America should be submitted to the
examination of the Permanent Commission of Conciliation
provided for in Articles II-IV of the Treaty of Arbi-
tration and Conciliation of 1931.

The Swiss Federal Council furthermore reserves the right to
supplement and to amend the preceding submissions.”

On behalf of the Government of the United States of America,
in the Preliminary Objections:

“May it please the Court to judge and decide:

(1) First Preliminary Objection
that there is no jurisdiction in the Court to hear or determine
the matters raised by the Swiss Application and Memorial,
for the reason that the dispute arose before August 26th,

1946, the date on which the acceptance of the Court’s com-
pulsory jurisdiction by this country became effective;

(2) Second Preliminary Objection

that there is no jurisdiction in the Court to hear or determine
the matters raised by the Swiss Application and Memorial,
for the reason that the dispute arose before July 28th, 1948,

8
INTERHANDEL CASE (JUDGMENT OF 21 III 59) II

the date on which the acceptance of the Court’s compulsory
jurisdiction by this country became binding on this country
as regards Switzerland;

Third Preliminary Objection

that there is no jurisdiction in this Court to hear or determine
the matters raised by the Swiss Application and Memorial,
for the reason that Interhandel, whose case Switzerland is
espousing, has not exhausted the local remedies available
to it in the United States courts;

(4) Fourth Preliminary Objection

(a) that there is no jurisdiction in this Court to hear or
determine any issues raised by the Swiss Application or
Memorial concerning the sale or disposition of the vested
shares of General Aniline and Film Corporation (including
the passing of good and clear title to any person or
entity), for the reason that such sale or disposition has
been determined by the United States of America,
pursuant to paragraph (b) of the Conditions attached to
this country’s acceptance of this Court’s jurisdiction, to
be a matter essentially within the domestic jurisdiction
of this country; and

{b) that there is no jurisdiction in this Court to hear or
determine any issues raised by the Swiss Application or
Memorial concerning the seizure and retention of the
vested shares of General Aniline and Film Corporation,
for the reason that such seizure and retention are,
according to international law, matters within the
domestic jurisdiction of the United States.

The United States of America reserves the right to supplement
or to amend the preceding submissions, and, generally, to submit
any further legal argument.”’

On behalf of the Swiss Government, in its Observations and
Submissions:

“May it please the Court to adjudge and declare:

I.

to dismiss the first preliminary objection of the United States
of America;

. to dismiss the second preliminary objection of the United

States of America;

either to dismiss, or to join to the merits, the third preli-
minary objection of the United States of America;

. either to dismiss, or to join to the merits, preliminary

objection 4 (a) of the United States of America;
either to dismiss, or to join to the merits, preliminary
objection 4 (5) of the United States of America.

9
INTERHANDEL CASE (JUDGMENT OF 21 III 59) 12

The Swiss Federal Council maintains and confirms its main and
alternative submissions as set out on pages 67 and 68 of the Memorial
of the Swiss Confederation of March 3rd, 1958.

The Swiss Federal Council supplements its main submissions
by the following alternative submission:

The Swiss Federal Council requests the Court to declare that
the property, rights and interests which the Société internationale
pour participations industrielles et commerciales S.A. (Interhandel)
possesses in the General Aniline and Film Corporation have the
character of non-enemy (Swiss) property, and consequently to
declare that by refusing to return the said property the Govern-
ment of the United States of America is in breach of Article IV,
paragraph 1, of the Washington Accord of May 25th, 1946, and
of the obligations binding upon it under the general rules of
international law.

The Swiss Federal Council further reserves the right to supple-
ment and to modify the preceding submissions.”

On behalf of the same Government, Submissions deposited in the
Registry on November 3rd, 1958:

“A. Principal Submissions

1. that the Government of the United States of America is
under an obligation to restore the assets of the Société inter-
nationale pour participations industrielles et commerciales S.A.
(Interhandel) ;

2. in the alternative, that in case the Court should not consider
that proof of the non-enemy character of the property of the
Société internationale pour participations industrielles et com-
merciales S.A. (Interhandel) has been furnished, an expert
selected by the Court should be designated, in accordance
with Article 50 of its Statute, with the task of:

(a) examining the documents put at the disposal of the
American courts by Interhandel,

(b) examining the files and accounting records of the Stur-
zenegger Bank, the seizure of which was ordered by the
public authorities {Ministère public) of the Swiss Con-
federation on June 15th, 1950, subject to the reservation,
however, that the expert in his expert opinion shall refer
only to such documents as relate to the Interhandel case,
and shall be instructed to observe absolute secrecy con-
cerning the documents of the Sturzenegger Bank, its
clients and all other individuals and legal persons, if
such documents are not relevant to the case pending
before the Court,

for the purpose of enabling the Court to determine the enemy
or non-enemy character of the Interhandel assets in the
General Aniline and Film Corporation.

B. Alternative Principal Submission

The Swiss Federal Council requests the Court to declare that
the property, rights and interests which the Société internationale

10
INTERHANDEL CASE (JUDGMENT OF 21 III 59) 13

pour participations industrielles et commerciales S.A. (Interhandel)
possesses in General Aniline and Film Corporation have the
character of non-enemy (Swiss) property, and consequently to
declare that by refusing to return the said property, the Govern-
ment of the United States is acting contrary to the decision of
January 5th, 1948, of the Swiss Authority of Review based on the
Washington Accord, and is in breach of Article IV, paragraph 1,
of the Washington Accord of May 25th, 1946, and of the obligations
binding upon it under the general rules of the law of nations.

C. Submissions regarding the Submissions of the Government of
the United States following its Preliminary Objections

I. To dismiss the first preliminary objection of the United
States of America;

2. To dismiss the second preliminary objection of the United
States;

3. Either to dismiss, or to join to the merits, the third preliminary
objection of the United States of America;

4. Either to dismiss, or to join to the merits, the preliminary
objection 4 (a) of the United States of America;

either to dismiss, or to join to the merits, the preliminary
objection 4 (6) of the United States of America;

In the alternative

should the Court uphold one or the other of the preliminary
objections of the United States of America, to declare its com-
petence in any case to decide whether the United States of
America is under an obligation to submit the dispute regarding
the validity of the Swiss Government’s claim either to the
arbitral procedure provided for in Article VI of the Washington
Accord of 1946, or to the Arbitral Tribunal provided for in the
1931 Treaty of Arbitration and Conciliation, or to the Conci-
liation Commission provided for in the same Treaty, and to
fix the subsequent procedure.

D. Submissions on the merits in the event of the Court accepting
one or other of the preliminary objections of the United States
of America and accepting jurisdiction in conformity with the
alternative submission as under C

I. To declare that the United States of America is under an
obligation to submit the dispute for examination either to
the arbitral procedure of the Washington Accord or to the
Tribunal provided for in the Arbitration and Conciliation
Treaty of 1931, and that the choice of one or the other
Tribunal belongs to the Applicant State.

2. In the alternative:

that the United States of America is under an obligation to
submit the dispute to the arbitral procedure provided for in
Article VI of the Washington Accord of 1946.

IT
INTERHANDEL CASE (JUDGMENT OF 21 II 59) I4

3. In the further alternative :
that the United States of America is under an obligation to
submit the dispute to the Arbitral Tribunal provided for in

the Arbitration and Conciliation Treaty of 1031 between the
Swiss Confederation and the United States of America.

4. In the final alternative:
that the United States of America is under an obligation to
submit the dispute for examination by the Permanent Con-
ciliation Commission provided for in Articles II-IV of the
Arbitration and Conciliation Treaty of 1931.”

At the hearing on November 6th, 1958, the Agent for the Govern-
ment of the United States of America reaffirmed the submissions
set forth in the Preliminary Objections.

For his part, the Agent for the Swiss Government repeated, at
the hearing on November 12th, 1958, the submissions he had filed
on November 3rd, whilst reserving his right to modify them after
hearing any explanations that might be put forward on behalf of
the Government of the United States of America.

At the hearing on November r4th, 1958, the Agent for the
Government of the United States of America reaffirmed and
maintained his earlier submissions whilst emphasizing that the
preliminary objections were directed against all of the alternative
as well as the principal submissions made on behalf of the Swiss
Government.

Finally, at the hearing on November 17th, 1958, the Agent for
the Swiss Government maintained the submissions he had filed in
the Registry on November 3rd, 1958, which thus acquired the
character of final submissions.

*
* *

The declarations by which the Parties accepted the compulsory
jurisdiction of the Court are as follows:

Declaration of the United States of America of August 14th, 1946
(in force since August 26th, 1946):

“T, Harry S. Truman, President of the United States of America,
declare on behalf of the United States of America, under Article 36,
paragraph 2, of the Statute of the International Court of Justice,
and in accordance with the Resolution of August 2, 1946, of the
Senate of the United States of America (two-thirds of the Senators
present concurring therein), that the United States of America
recognizes as compulsory so facto and without special agreement,
in relation to any other state accepting the same obligation, the
jurisdiction of the International Court of Justice in all legal disputes
hereafter arising concerning

(a) The interpretation of a treaty;
1Z
INTERHANDEL CASE (JUDGMENT OF 21 ill 59) 15

(6) Any question of international law;

(c) The existence of any fact which, if established, would con-
stitute a breach of an international obligation;

(d) The nature or extent of the reparation to be made for the
breach of an international obligation;

Provided, that this declaration shall not apply to

(a) Disputes the solution of which the Parties shall entrust to
other tribunals by virtue of agreements already in existence
or which may be concluded in the future; or

(6) 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; or

(c) Disputes arising under a multilateral treaty, unless (x) all
parties to the treaty affected by the decision are also parties
to the case before the Court, or (2} the United States of
America specially agrees to jurisdiction; and

Provided further, that this declaration shall remain in force for
a period of five years and thereafter until the expiration of six
months after notice may be given to terminate this declaration.”

Declaration of Switzerland of July 6th, 1948 (in force since July
28th, 1948):

“The Swiss Federal Council, duly authorized for that purpose
by a Federal decree which was adopted on 12 March 1948 by the
Federal Assembly of the Swiss Confederation and became operative
on 17 June 1948,

Hereby deciares that the Swiss Confederation recognizes as
compulsory zpso facto and without special agreement, in relation
to any other State accepting the same obligation, the jurisdiction
of the International Court of Justice in all legal disputes concerning:

(a) The interpretation of a treaty;

(6) Any question of international law;

(c) The existence of any fact which, if established, would con-

stitute a breach of an international obligation;

(4) The nature or extent of the reparation to be made for the

breach of an international obligation.

This declaration, which is made under Article 36 of the Statute
of the International Court of Justice, shall take effect from the
date on which the Swiss Confederation becomes a party to that
Statute and shall have effect as long as it has not been abrogated
subject to-one year’s notice.”

*
* *
The present proceedings are concerned only with the preliminary
objections raised by the Government of the United States of

13
INTERHANDEL CASE (JUDGMENT OF 2I III 59) 16

America. It is nevertheless convenient to set out briefly the facts
and circumstances as submitted by the Parties which constitute the
origin of the present dispute.

By its decisions of February 16th and April 24th, 1942, based on
the Trading with the Enemy Act of October 6th, 1917, as amended,
the Government of the United States vested almost all of the shares
of General Aniline and Film Corporation (briefly referred to as the
GAF), a company incorporated in the United States, on the ground
that these shares in reality belonged to the I.G. Farbenindustrie
company of Frankfurt or that the GAF was in one way or another
controlled by that enemy company.

It is not disputed that until 1940 I.G. Farben controlled the GAF
through the Société internationale pour entreprises chimiques S.A.
(I.G. Chemie), entered in the Commercial Register of the Canton
of Bale-Ville in 1928. However, according to the contention of the
Swiss Government, the links between the German company I.G.
Farben and the Swiss company I.G. Chemie were finally severed
by the cancellation of the contract for an option and for the guaran-
tee of dividends, a cancellation which was effected in June 1940,
that is, well before the entry of the United States into the war.
The Swiss company adopted the name of Société internationale pour
participations industrielles et commerciales S.A. (briefly referred to
as Interhandel); Article 2 of its Statute as modified in 1940 defines
it as follows: “The enterprise is a holding company. Its object is
participation in industrial and commercial undertakings of every
kind, especially in the chemical field, in Switzerland and abroad,
but excluding banking and the professional purchase and sale of
securities.’’ The largest item in the assets of Interhandel is its
participation in the GAF. Approximately 75% of the GAF ‘A7
shares and all its issued “B”’ shares are said to belong to Interhandel.
A considerable part, approximately 90%, of these shares and a
sum of approximately 1,800,000 dollars, have been vested by the
Government of the United States.

Towards the end of the war, under a provisional agreement
between Switzerland, the United States of America, France and
the United Kingdom, property in Switzerland belonging to Germans
in Germany was blocked (Decree of the Federal Council of February
16th, 1945). The Swiss Compensation Office was entrusted with the
task of uncovering property in Switzerland belonging to Germans
or controlled by them. In the course of these investigations, the
question of the character of Interhandel was raised, but as a result
of investigations carried out in June and July, 1945, the Office,
considering it to have been proved that Interhandel had severed
its ties with the German company, did not regard it as necessary
to undertake the blocking of its assets.

For its part, the Government of the United States, considering
that Interhandel was still controlled by 1.G. Farben, continued to
seek evidence of such control. In these circumstances the Federal

14
INTERHANDEL CASE (JUDGMENT OF 21 II 59) 17

Department of Public Economy and the Federal Political Depart-
ment ordered the Swiss Compensation Office provisionally to block
the assets of Interhandel; this was done on October 30th, 1945.
The Office then carried out a second investigation (November
1945-February 1946) which led it to the same conclusion as had
the first.

On May 25th, 1946, an agreement was concluded between the
three Allied Powers and Switzerland (the Washington Accord).
Under one of the provisions of the Accord, Switzerland undertook
to pursue its investigations and to liquidate German property in
Switzerland. It was the Compensation Office which was ““empowered
to uncover, take into possession, and liquidate German property”
(Accord, Annex, II, A), in collaboration with a Joint Commission
“composed of representatives of each of the four Governments”
(Annex, II, B). The Accord lays down the details of that collabora-
tion (Annex, II, C, D, E, F) and provides that, in the event of dis-
agreement between the Joint Commission and the Compensation
Office or if the party in interest so desires, the matter may within
a period of one month be submitted to a Swiss Authority of Review
composed of three members and presided over by a Judge. “The
decisions of the Compensation Office, or of the Authority of Review,
should the matter be referred to it, shall be final” (Annex, IIT).
In the event, however, of disagreement with the Swiss Authority
of Review on certain given matters, ‘‘the three Allied Governments
may, within one month, require the difference to be submitted to
arbitration” (Annex, ITI).

The Washington Accord further provides:

“Article IV, paragraph x.

The Government of the United States will unblock Swiss assets
in the United States. The necessary procedure will be determined
without delay.

Article VI.

In case differences of opinion arise with regard to the application
or interpretation of this Accord which cannot be settled in any
other way, recourse shall be had to arbitration.”

After the conclusion of the Washington Accord, discussions with
regard to Interhandel between the Swiss Compensation Office and
the Joint Commission as well as between representatives of Switzer-
land and the United States were continued without reaching any
conclusion accepted by the two parties. The Office, while declaring
itself ready to examine any evidence as to the German character of
Interhandel which might be submitted to it, continued to accept
the results of its two investigations; the Joint Commission challenged

15
INTERHANDEL CASE (JUDGMENT OF 21 I 59) 18

these results and continued its investigations. By its decision of
January 5th, 1948, given on appeal by Interhandel, the Swiss
Authority of Review annulled the blocking with retroactive effect.
It had invited the Joint Commission to participate in the procedure,
but the latter had declined the invitation. This question was not
referred to the arbitration provided for in the Washington Accord.

In these circumstances, the Swiss Government considered itself
entitled to regard the decision of the Swiss Authority of Review as
a final one, having the force of res judicata vis-à-vis the Powers par-
ties to the Washington Accord. Consequently, in a Note of May 4th,
1948, to the Department of State, the Swiss Legation at Wash-
ington invoked this decision and the Washington Accord to request
the Government of the United States to restore to Interhandel the
property which had been vested in the United States. On July 26th,
1948, the Department of State rejected this request, contending
that the decision of the Swiss Authority of Review did not affect
the assets vested in the United States and claimed by I.G. Chemie.
On September 7th, 1948, in a Note to the Department of State,
the Swiss Legation in Washington, still relying on its interpretation
of the Washington Accord, maintained that the decision of the
Swiss Authority of Review recognizing Interhandel as a Swiss
company was legally binding upon the signatories of that Accord.
It expressed the hope that the United States Government would
accordingly release the assets of Interhandel in the United States,
failing which the Swiss Government would have to submit the
question to the arbitral procedure laid down in Article VI of the
Washington Accord. On October 12th, 1948, the Department of
State replied to that communication, maintaining its previous view
that the decision of the Swiss Authority of Review was inapplicable
to property vested in the United States. It added that United
States law in regard to the seizure and disposal of enemy property
authorized non-enemy foreigners to demand the restitution of
vested property and to apply for it to the courts. On October 2ist,
1948, Interhandel, relying upon the provisions of the Trading with
the Enemy Act, instituted proceedings in the United States District
Court for the District of Columbia. Direct discussion between the
two Governments was then interrupted until April 9th, 1953, on
which day the Swiss Government sent to the Government of the
United States a Note questioning the procedure applied in the
United States in the Interhandel case, stating that this procedure
had led to a deadlock, and suggesting negotiations for a satisfactory
settlement. a

Up to 1957 the proceedings in the United States courts had made
little progress on the merits. Interhandel, though it had produced
a considerable number of the documents called for, did not produce
all of them; it contended that the production of certain documents
was prohibited by the Swiss authorities as constituting an offence un-
der Article 273 of the Swiss Criminal Code and as violating banking

16
INTERHANDEL CASE (JUDGMENT OF 21 II 59) 19

secrecy (Article 47 of the Federal Law of November 8th, 1934).
The action brought by Interhandel was the subject of a number
of appeals in the United States courts and in a Memorandum
appended to the Note addressed by the Department of State to
the Swiss Minister on January 11th, 1957, it was said that Inter-
handel had finally failed in its suit. It was then that the Swiss
Government, on October 2nd, 1957, addressed to the Court the
Application instituting the present proceedings. The assertion in
the Note of January r1th, 1957, that Interhandel’s claim was
finally rejected proved, however, to be premature, as the Court
will have occasion to point out in considering the Third Objection
of the United States.

As stated, the exchange of notes with regard to Interhandel
which had taken place in 1948, was resumed in 1953. In its Note
of April oth, 1953, the Swiss Legation at Washington suggested
negotiations between the two Governments with a view to arriving
amicably at a just and practical solution of the problem of Inter-
handel; these suggestions were repeated in the Notes of Decem-
ber Ist, 1954, and March ist, 1955; they were not accepted by the
Department of State. Finally, the Swiss Note of August oth, 1956,
formulated proposals for the settlement of the dispute either by
means of arbitration or conciliation as provided for in the Treaty
between Switzerland and the United States of February 16th, 1931,
or by means of arbitration as provided for in the Washington
Accord. This approach did not meet with the approval of the
Government of the United States, which rejected it in its Note,
already referred to, of January 11th, 1057.

*
* *

The subject of the claim as set forth in the final submissions
presented on behalf of the Swiss Government, and disregarding
certain items of a subsidiary character which can be left aside for
the moment, is expressed essentially in two propositions:

(1) as a principal submission, the Court is asked to adjudge and
declare that the Government of the United States is under an
obligation to restore the assets of the Socrété internationale pour
participations industrielles et commerciales S.A. (Interhandel) ;

(2) as an alternative submission, the Court is asked to adjudge and
declare that the United States is under an obligation to submit
the dispute to arbitration or to a conciliation procedure in
accordance with certain conditions set forth first in the principal
submissions and then in the alternative submissions.

The Government of the United States has put forward four
preliminary objections to the Court’s dealing with the claims of the
Swiss Government. Before proceeding to examine these objections,
the Court must direct its attention to the claim, formulated for the

17
INTERHANDEL CASE (JUDGMENT OF 21 III 59) 20

first time in the Observations and Submissions of the Swiss Govern-
ment, which is in the following terms:

“The Swiss Federal Council requests the Court to declare that
the property, rights and interests which the Société internationale
pour participations industrielles et commerciales S.A. (Interhandel)
possesses in General Aniline and Film Corporation have the
character of non-enemy (Swiss) property, and consequently to
declare that by refusing to return the said property the Govern-
‘ment of the United States of America is in breach of Article IV,
paragraph x, of the Washington Accord of May 25th, 1946, and
of the obligations binding upon it under the general rules of
international law.”

In its final Submissions, deposited in the Registry on Novem-
ber 3rd, 1958, the Swiss Government gives the following explanation
with regard to this claim:

“The Swiss Government, after examining the Preliminary
Objections of the United States of America, has come to the
conclusion that these involve the modification of the Swiss
Government’s principal and alternative Submissions, which are
as follows.”

The claim in question, however, which is described as “alternative
principal Submission’’, does not constitute a mere modification; it
constitutes a new claim involving the merits of the dispute. Art-
icle 62, paragraph 3, of the Rules of Court, however, is categorical:

“Upon receipt by the Registrar of a preliminary objection filed
by a party, the proceedings on the merits shall be suspended.”

Consequently, the new Swiss submission relating to a request
for a declaratory judgment, presented after the suspension of the
proceedings on the merits, cannot be considered by the Court at
the present stage of the proceedings.

*
* +

First Preliminary Objection

The First Objection of the Government of the United States
seeks a declaration that the Court is without jurisdiction on the
ground that the present dispute arose before August 26th, 1946,
the date on which the acceptance of the compulsory jurisdiction
of the Court by the United States came into force. The declaration
of the United States does indeed relate to legal disputes “hereafter
arising’. The Government of the United States maintains that the
dispute goes back at least to the middle of the year 1945, and that
divergent opinions as to the character of Interhandel were exchanged
between the American and Swiss authorities on a number of occasions
before August 26th, 1946.

18
INTERHANDEL CASE (JUDGMENT OF 21 III 59) 21

The Court would recall that the subject of the present dispute is
indicated in the Application and in the Principal Final Submission
of the Swiss Government which seeks the return to Interhandel
of the assets vested in the United States. An examination of the
documents reveals that a request to this effect was formulated by
Switzerland for the first time in the Note of the Swiss Legation at
Washington dated May 4th, 1948. The negative reply, which the
Department of State describes as its final and considered view, is
dated July 26th, 1948. Two other Notes exchanged shortly after-
wards (on September 7th and October 12th of that same year)
confirm that the divergent views of the two Governments were
concerned with a clearly-defined legal question, namely, the
restitution of Interhandel’s assets in the United States, and that
the negotiations to this end rapidly reached a deadlock. Thus the
dispute now submitted to the Court can clearly be placed at July
26th, 1948, the date of the first negative reply which the Govern-
ment of the United States described as its final and considered
view rejecting the demand for the restitution of the assets. Conse-
quently the dispute arose subsequently to the date of the entry
into force of the Declaration of the United States.

During the period indicated by the Government of the United
States (the years 1945 and 1946), the exchanges of views between
the Swiss authorities on the one hand and the Allied and, in the
first place, the American authorities, on the other, related to the
search for, and the blocking and liquidation of, German property
and interests in Switzerland; the question of the Swiss or German
character of Interhandel was the subject of investigations and
exchanges of views for the purpose of reaching a decision as to the
fate of the assets in Switzerland of that company. It was only after
the decision of the Swiss Authority of Review of January 5th, 1948,
definitely recognizing the non-enemy character of the assets of Inter-
handel and, in consequence, putting an end to the provisional
blocking of these assets in Switzerland, had, in the opinion of the
Federal Government, acquired the authority of ves judicata, that that
Government for the first time addressed to the United States its
claim for the restitution of Interhandel’s assets in the United States.

The discussions regarding Interhandel between the Swiss and
American authorities in 1945, 1946 and 1947 took place within the
framework of the collaboration established between them prior to
the Washington Accord and defined in that Accord. The represen-
tatives of the Joint Commission and those of the Swiss Compensation
Office communicated to each other the results of their enquiries
and investigations, and discussed their opinions with regard to
Interhandel, without arriving at any final conclusions. Thus, for
instance, the minute of the meeting of the Joint Commission on
September 8th, 1947, records:

“The representatives of the Swiss Compensation Office stated
that their investigations had yielded only negative results and

19
INTERHANDEL CASE (JUDGMENT OF 21 III 59) 22

that they were still waiting for the Allies to furnish their documents
which the Swiss Compensation Office was ready to discuss with
the Allied experts.”

The Court cannot see in these discussions between the Allied and
Swiss officials a dispute between Governments which had already
arisen with regard to the restitution of the assets claimed by Inter-
handel in the United States; the facts and situations which have
led to a dispute must not be confused with the dispute itself; the
documents relating to this collaboration between the Allied and
Swiss authorities for the purpose of liquidating German property
in Switzerland are not relevant to the solution of the question
raised by the first objection of the United States.

The First Preliminary Objection must therefore be rejected so
far as the principal submission of Switzerland is concerned.

In the Alternative Submission, Switzerland asks the Court to
adjudge and declare that the United States is under an obligation
to submit the dispute to arbitration or conciliation.

In raising its objection ratione temporis to the Application of the
Swiss Government, the Government of the United States has not
distinguished between the principal claim and the alternative claim
in the Application. It is, however, clear that the alternative claim,
in spite of its close connection with the principal claim, is never-
theless a separate and distinct claim relating not to the substance
of the dispute, but to the procedure for its settlement.

The point here in dispute is the obligation of the Government
of the United States to submit to arbitration or to conciliation an
obligation the existence of which is asserted by Switzerland and
denied by the United States. This part of the dispute can only have
arisen subsequently to that relating to the restitution of Inter-
handel’s assets in the United States, since the procedure proposed
by Switzerland and rejected by the United States was conceived
as a means of settling the first dispute. In fact, the Swiss Govern-
ment put forward this proposal for the first time in its Note of
August gth, 1956, and the Government of the United States reject-
ed it by its Note of January 11th, 1957.

With regard to the Alternative Submission of Switzerland, the
First Preliminary Objection cannot therefore be upheld.

*
* *

Second Preliminary Objection

According to this Objection, the present dispute, even if it is
subsequent to the date of the Declaration of the United States,
arose before July 28th, 1948, the date of the entry into force of
the Swiss Declaration. The argument set out in the Preliminary
Objections is as follows:

20
INTERHANDEL CASE (JUDGMENT OF 21 II 59) 23

“The United States Declaration, which was effective August 26th,
1946, contained the clause limiting the Court’s jurisdiction to
disputes ‘hereafter arising’, while no such qualifying clause is
contained in the Swiss Declaration which was effective July 28th,
1948. But the reciprocity principle ... requires that as between
the United States and Switzerland the Court’s jurisdiction be
limited to disputes arising after July 28th, 1948... Otherwise,
retroactive effect would be given to the compulsory jurisdiction
of the Court.”

In particular, it was contended with regard to disputes arising
after August 26th, 1946, but before July 28th, 1948, that “Switzer-
land, as a Respondent, could have invoked the principle of reci-
procity and claimed that, in the same way as the United States is
not bound to accept the Court’s jurisdiction with respect to disputes
arising before its acceptance, Switzerland, too, could not be re-
quired to accept the Court’s jurisdiction in relation to disputes
arising before its acceptance.”

Reciprocity in the case of Declarations accepting the compulsory
jurisdiction of the Court enables a Party to invoke a reservation to
that acceptance which it has not expressed in its own Declaration
but which the other Party has expressed in its Declaration. For
example, Switzerland, which has not expressed in its Declaration
any reservation ratione temporis, while the United States has accept-
ed the compulsory jurisdiction of the Court only in respect of
disputes subsequent to August 26th, 1946, might, if in the position
of Respondent, invoke by virtue of reciprocity against the United
States the American reservation if the United States attempted to
refer to the Court a dispute with Switzerland which had arisen
before August 26th, 1946. This is the effect of reciprocity in this
connection. Reciprocity enables the State which has made the
wider acceptance of the jurisdiction of the Court to rely upon the
reservations to the acceptance laid down by the other Party. There
the effect of reciprocity ends. It cannot justify a State, in this
instance, the United States, in relying upon a restriction which the
other Party, Switzerland, has not included in its own Declaration.

The Second Preliminary Objection must therefore be rejected
so far as the Principal Submission of Switzerland is concerned.

Since it has already been found that the dispute concerning the
obligation of the United States to agree to arbitration or conciliation
did not arise until 1957, the Second Preliminary Objection must
also be rejected so far as the Alternative Submission of Switzerland

is concerned.
ES

* *
Fourth Preliminary Objection

Since the Fourth Preliminary Objection of the United States
relates to the jurisdiction of the Court in the present case, the
Court will proceed to consider it before the Third Objection which

ar
INTERHANDEL CASE (JUDGMENT OF 21 III 59) 24

Is an objection to admissibility. This Fourth Objection really
consists of two objections which are of different character and of
unequal scope. The Court will deal in the first place with part (6)
of this Objection.

The Government of the United States submits “that there is no
jurisdiction in this Court to hear or determine any issues raised
by the Swiss Application or Memorial concerning the seizure and
retention of the vested shares of General Aniline and Film Cor-
poration, for the reason that such seizure and retention are,
according to international law, matters within the domestic juris-
diction of the United States”.

In challenging before the Court the seizure and retention of these
shares by the authorities of the United States, the Swiss Govern-
ment invokes the Washington Accord and general international law.

In order to determine whether the examination of the grounds
thus invoked is excluded from the jurisdiction of the Court for the
reason alleged by the United States, the Court will base itself on
the course followed by the Permanent Court of International
Justice in its Advisory Opinion concerning Nationality Decrees
issued in Tunis and Morocco (Series B, No. 4), when dealing with
a similar divergence of view. Accordingly, the Court does not, at
the present stage of the proceedings, intend to assess the validity
of the grounds invoked by the Swiss Government or to give an
opinion on their interpretation, since that would be to enter upon
the merits of the dispute. The Court will confine itself to considering
whether the grounds invoked by the Swiss Government are such
as to justify the provisional conclusion that they may be of relevance
in this case and, if so, whether questions relating to the validity and
interpretation of those grounds are questions of international law.

With regard to its principal Submission that the Government of
the United States is under an obligation to restore the assets of
Interhandel in the United States, the Swiss Government invokes
Article IV of the Washington Accord. The Government of the
United States contends that this Accord relates only to German
property in Switzerland, and that Article IV “is of no relevance
whatever in the present dispute”.

By Article IV of this international agreement, the United States
has assumed the obligation to unblock Swiss assets in the United
States. The Parties are in disagreement with regard to the meaning
of the term “unblock” and the term “Swiss assets’. The inter-
pretation of these terms is a question of international law which
affects the merits of the dispute. At the present stage of the pro-
ceedings it is sufficient for the Court to note that Article IV of the
Washington Accord may be of relevance for the solution of the
present dispute and that its interpretation relates to international
law.

The Government of the United States submits that according
to international law the seizure and retention of enemy property

22
INTERHANDEL CASE (JUDGMENT OF 21 III 59) 25

in time of war are matters within the domestic jurisdiction of the
United States and are not subject to any International supervision.
Ali the authorities and judicial decisions cited by the United States
refer to enemy property; but the whole question is whether the
assets of Interhandel are enemy or neutral property. There having
been a formal challenge based on principles of international law
by a neutral State which has adopted the cause of its national, it is
not open to the United States to say that their decision is final and
not open to challenge; despite the American character of the
Company, the shares of which are held by Interhandel, this is a
matter which must be decided in the light of the principles and rules
of international law governing the relations between belligerents
and neutrals in time of war.

In its alternative Submission, the Swiss Government requests
the Court to adjudge and declare that the United States is under
an obligation to submit the dispute to arbitration or conciliation.
The Swiss Government invokes Article VI of the Washington
Accord, which provides: “In case differences of opinion arise with
regard to the application or interpretation of this Accord which
cannot be settled in any other way, recourse shall be had to arbi-
tration.” It also invokes the Treaty of Arbitration and Conciliation
between Switzerland and the United States, dated February 16th,
1931. Article I of this Treaty provides: “Every dispute arising
between the Contracting Parties, of whatever nature it may be,
shall, when ordinary diplomatic proceedings have failed, be sub-
mitted to arbitration or to conciliation, as the Contracting Parties
may at the time decide.” The interpretation and application of
these provisions relating to arbitration and conciliation involve
questions of international law.

Part (6) of the Fourth Preliminary Objection must therefore be
rejected.

Part (a) of the Fourth Objection seeks a finding from the Court
that it is without jurisdiction to entertain the Application of the
Swiss Government, for the reason that the sale or disposition by the
Government of the United States of the shares of the GAF which
have been vested as enemy property ‘has been determined by the
United States of America, pursuant to paragraph (6) of the Con-
ditions attached to this country’s acceptance of this Court’s juris-
diction, to be a matter essentially within the domestic jurisdiction
of this country”. The Preliminary Objections state that: “Such
declination encompasses all issues raised in the Swiss Application
and Memorial (including issues raised by the Swiss-United States
Treaty of 1931 and the Washington Accord of 1946)”, but they
add: “in so far as the determination of the issues would affect the
sale or disposition of the shares’. And they immediately go on to
say: “However, the determination pursuant to paragraph (6) of the
Conditions attached to this country’s acceptance of the Court’s

23
INTERHANDEL CASE (JUDGMENT OF 21 III 59) 26

compulsory jurisdiction is made only as regards the sale or dis-
position of the assets.”

During the oral arguments, the Agent for the United States
continued to maintain that the scope of part (a) of the Fourth
Objection was limited to the sale and disposition of the shares.
At the same time, while insisting that local remedies were once
more available to Interhandel and that, pending the final decision
of the Courts of the United States, the disputed shares could not
be sold, he declared on several occasions that part (a) of the Fourth
Objection has lost practical significance, that “it has become
somewhat academic’, and that it is ‘“‘somewhat moot”’.

Although the Agent for the United States maintained the Objec-
tion throughout the oral arguments, it appears to the Court that,
thus presented, part (a) of the Fourth Objection only applies to
the claim of the Swiss Government regarding the restitution of the
assets of Interhandel which have been vested in the United States.
Having regard to the decision of the Court set out below in respect
of the Third Preliminary Objection of the United States, it appears
to the Court that part (a) of the Fourth Preliminary Objection is
without object at the present stage of the proceedings.

*
* *

Third Preliminary Objection

The Third Preliminary Objection seeks a finding that ‘there is
no jurisdiction in this Court to hear or determine the matters raised
by the Swiss Application and Memorial, for the reason that Inter-
handel, whose case Switzerland is espousing, has not exhausted the
local remedies available to it in the United States courts’.

Although framed as an objection to the jurisdiction of the Court,
this Objection must be regarded as directed against the admissibility
of the Application of the Swiss Government. Indeed, by its nature
it is to be regarded as a plea which would become devoid of object
if the requirement of the prior exhaustion of local remedies were
fulfilled.

The Court has indicated in what conditions the Swiss Government,
basing itself on the idea that Interhandel’s suit had been finally
rejected in the United States courts, considered itself entitled to
institute proceedings by its Application of October 2nd, 1957.
However, the decision given by the Supreme Court of the United
States on October r4th, 1957, on the application of Interhandel
made on August 6th, 1957, granted a writ of cerdiorari and re-
admitted Interhandel into the suit. The judgment of that Court on
June r6th, 1958, reversed the judgment of the Court of Appeals
dismissing Interhandel’s suit and remanded the case to the District

24
INTERHANDEL CASE (JUDGMENT OF 21 II 59) 27

Court. It was thenceforth open to Interhandel to avail itself again
of the remedies available to it under the Trading with the Enemy
Act, and to seek the restitution of its shares by proceedings in the
United States courts. Its suit is still pending in the United States
courts. The Court must have regard to the situation thus created.

The rule that local remedies must be exhausted before inter-
national proceedings may be instituted is a well-established rule
of customary international law; the rule has been generally observed
in cases in which a State has adopted the cause of its national whose
rights are claimed to have been disregarded in another State in
violation of international law. Before resort may be had to an
international court in such a situation, it has been considered
necessary that the State where the violation occurred should have
an opportunity to redress it by its own means, within the framework
of its own domestic legal system. A fortiori the rule must be observed
when domestic proceedings are pending, as in the case of Inter-
handel, and when the two actions, that of the Swiss company in
the United States courts and that of the Swiss Government in
this Court, in its principal Submission, are designed to obtain the
same result: the restitution of the assets of Interhandel vested in
the United States.

The Swiss Government does not challenge the rule which requires
that international judicial proceedings may only be instituted
following the exhaustion of local remedies, but contends that the
present case is one in which an exception to this rule is authorized
by the rule itself.

The Court does not consider it necessary to dwell upon the
assertion of the Swiss Government that “the United States itself
has admitted that Interhandel had exhausted the remedies available
in the United States courts”. It is true that the representatives of
the Government of the United States expressed this opinion on
several occasions, in particular in the memorandum annexed to the
Note of the Secretary of State of January 11th, 1957. This opinion
was based upon a view which has proved unfounded. In fact, the
proceedings which Interhandel had instituted before the courts of
the United States were then in progress.

However, the Swiss Government has raised against the Third
Objection other considerations which require examination.

In the first place, it is contended that the rule is not applicable
for the reason that the measure taken against Interhandel and
regarded as contrary to international law is a measure which was
taken, not by a subordinate authority but by the Government of
the United States. However, the Court must attach decisive
importance to the fact that the laws of the United States make
available to interested persons who consider that they have been
deprived of their rights by measures taken in pursuance of the
Trading with the Enemy Act, adequate remedies for the defence
of their rights against the Executive.

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INTERHANDEL CASE (JUDGMENT OF 21 I 59) 28

It has also been contended on behalf of the Swiss Government
that in the proceedings based upon the Trading with the Enemy
Act, the United States courts are not in a position to adjudicate
in accordance with the rules of international law and that the
Supreme Court, in its decision of June 16th, 1958, made no reference
to the many questions of international law which, in the opinion
of the Swiss Government, constitute the subject of the present
dispute. But the decisions of the United States courts bear witness
to the fact that United States courts are competent to apply
international law in their decisions when necessary. In the present
case, when the dispute was brought to this Court, the proceedings
in the United States courts had not reached the merits, in which
considerations of international law could have been profitably
relied upon.

The Parties have argued the question of the binding force before
the courts of the United States of international instruments which,
according to the practice of the United States, fall within the
category of Executive Agreements; the Washington Accord is said
to belong to that category. At the present stage of the proceedings
it is not necessary for the Court to express an opinion on the matter.
Neither is it practicable, before the final decision of the domestic
courts, to anticipate what basis they may adopt for their judgment.

Finally, the Swiss Government laid special stress on the argument
that the character of the principal Submission of Switzerland is
that of a claim for the implementation of the decision given on
January 5th, 1948, by the Swiss Authority of Review and based
on the Washington Accord, a decision which the Swiss Government
regards as an international judicial decision. ‘“When an international
decision has not been executed, there are no local remedies to
exhaust, for the injury has been caused directly to the injured
State.” It has therefore contended that the failure by the United
States to implement the decision constitutes a direct breach of
international law, causing immediate injury to the rights of Switzer-
land as the Applicant State. The Court notes in the first place that
to implement a decision is to apply its operative part. In the opera-
tive part of its decision, however, the Swiss Authority of Review
“Decrees: (1) that the Appeal is sustained and the decision sub-
jecting the appellant to the blocking of German property in Switzer-
land is annulled...” The decision of the Swiss Authority of
Review relates to the unblocking of the assets of Interhandel in
Switzerland; the Swiss claim is designed to secure the restitution
of the assets of Interhandel in the United States. Without prejudg-
ing the validity of any arguments which the Swiss Government
seeks or may seek to base upon that decision, the Court would
confine itself to observing that such arguments do not deprive the
dispute which has been referred to it of the character of a dispute
in which the Swiss Government appears as having adopted the
cause of its national, Interhandel, for the purpose of securing the

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INTERHANDEL CASE (JUDGMENT OF 21 III 59) 29

restitution to that company of assets vested by the Government of
the United States. This is one of the very cases which give rise to
the application of the rule of the exhaustion of local remedies.

For all these reasons, the Court upholds the Third Preliminary
Objection so far as the principal Submission of Switzerland is
concerned.

In its alternative claim, the Swiss Government asks the Court to
declare its competence to decide whether the United States is under
an obligation to submit the dispute to arbitration or conciliation.
The Government of the United States contends that this claim,
while not identical with the principal claim, is designed to secure
the same object, namely, the restitution of the assets of Interhandel
in the United States, and that for this reason the Third Objection
applies equally to it. It maintains that the rule of the exhaustion
of local remedies applies to each of the principal and alternative
Submissions which seek ‘a ruling by this Court to the effect that
some other international tribunal now has jurisdiction to determine
that very same issue, even though that issue is at the same time
being actively litigated in the United States courts”.

The Court considers that one interest, and one alone, that of
Interhandel, which has led the latter to institute and to resume
proceedings before the United States courts, has induced the Swiss
Government to institute international proceedings. This interest is
the basis for the present claim and should determine the scope of the
action brought before the Court by the Swiss Government in its
alternative form as well as in its principal form. On the other hand,
the grounds on which the rule of the exhaustion of local remedies
is based are the same, whether in the case of an international court,
arbitral tribunal, or conciliation commission. In these circumstances,
the Court considers that any distinction so far as the rule of the
exhaustion of local remedies is concerned between the various
claims or between the various tribunals is unfounded.

It accordingly upholds the Third Preliminary Objection also as
regards the alternative Submission of Switzerland.

For these reasons,

THE Court,

by ten votes to five,
rejects the First Preliminary Objection of the Government of the
United States of America;

unanimously,
rejects the Second Preliminary Objection ;

by ten votes to five,
finds that it is not necessary to adjudicate on part (a) of the Fourth
Preliminary Objection;

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INTERHANDEL CASE (JUDGMENT OF 21 III 59) 30

by fourteen votes to one,
rejects part (8) of the Fourth Preliminary Objection; and

by nine votes to six,
upholds the Third Preliminary Objection and holds that the
Application of the Government of the Swiss Confederation is
inadmissible.

Done in French and English, the French text being authoritative,
at the Peace Palace, The Hague, this twenty-first day of March,
one thousand nine hundred and fifty-nine, 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) Helge KLAESTAD,
President.

(Signed) GARNIER-COIGNET,
Deputy- Registrar.

Judge BASDEVANT states that he concurs in the decision that
the Application is inadmissible as that decision is set forth in the
operative part of the Judgment, but he adds that his opinion on
this point was reached in a way which, in certain respects, differs
from that followed by the Court. Basing himself on the provisions
of the Statute and of the Rules of Court, he considered that, in
order to assess the validity of the objections advanced, he should
direct his attention to the subject of the dispute and not to any
particular claim put forward in connection with the dispute. The
subject of the dispute and the subject of the claim are explicitly
differentiated in Article 32, paragraph 2, of the Rules of Court.
Accordingly, he has directed his attention to the statement in the
Application to the effect that the latter submits to the Court the
dispute relating to “‘the restitution by the United States of the
assets” of Interhandel. This indication of the subject of the dispute,
which is confirmed by an examination of the correspondence,
reveals the scope of the dispute, shows that it is not limited to
whatever may have been discussed at any particular moment
between the two Governments and consequently throws a light
upon the date at which the dispute between them arose. He was
thus led to the conclusion that the dispute to which the Appli-
cation relates did not arise until after July 28th, 1948, and this
factual finding is sufficient to justify the rejection of the first
two preliminary objections.

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INTERHANDEL CASE (JUDGMENT OF 21 III 59) 31

In his view, the subject of the dispute justifies, in this case,
the requirement of the preliminary exhaustion of local remedies
on the ground that if, through them, Interhandel obtains satis-
faction, the subject of the dispute will disappear. He refrained
from complicating the problem by considering any particular
claim that might be put forward in connection with the dispute
indicated in the Application. In considering the question whether
in fact the local remedies have been exhausted, he based himself
largely on the factual data mentioned in the Judgment. He took
account also of certain other facts—the fact that, at the date of
the memorandum of January 11th, 1957, an appeal by Interhandel
was pending in the American courts, the mention by the Swiss
Co-Agent {at the hearing on October 12th, 1957) of the application
made to the Supreme Court, with the comment that that appli-
cation also would end in a negative decision and, finally, the mention
in the preamble of the Order of the Court of October 24th, 1957,
of a judicial proceeding then pending in the United States.

As the anticipated effect of a judgment on a preliminary ob-
jection is to determine whether the proceedings on the merits
will or will not be resumed, he might have agreed that the Court
should confine itself to adjudicating on the Third Objection
which it has upheld. As the Application.is declared to be
inadmissible, this puts an end to the proceedings and all the
other questions that were connected with them no longer arise.
He considered, nevertheless, that it was his duty to follow the
Court in the examination of the other points with which it dealt
and, on those points, he concurs in the operative part of the
Judgment.

Judge Kojevnixov states that he concurs in the Judgment of
the Court so far as the First, Second, Third and part (a) of the
Fourth Preliminary Objections of the Government of the United
States are concerned. He is, however, unable to concur in the
reasoning of the Judgment relating to the Second Preliminary
Objection since, in his opinion, the Judgment should have been
based not on the question of reciprocity, which is of very great
importance, but upon the factual circumstances which show that
the legal character of the dispute between the Swiss Government
and the Government of the United States was clearly defined only
after July 28th, 1948, the date of the entry into force of the Swiss
Declaration.

Judge Kojevnikov is further of the opinion that the Third
Objection should have been upheld by the Court, not only as a
contention relating to the admissibility of the Application, but also
with regard to the jurisdiction of the Court.

Finally, he considers that part (b) of the Fourth Preliminary
Objection, having regard to its subject-matter, ought not to have

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INTERHANDEL CASE (JUDGMENT OF 21 Hi 59) 32

been rejected but, in the present case, should have been joined
to the merits if the Court had not upheld the Third Objection.

M. Carry, Judge ad hoc, states that he regrets that he cannot
subscribe to the decisions taken by the Court on the Third and
part (a) of the Fourth Objections of the Government of the United
States. He agrees generally with the dissenting opinion of President
Klaestad.

He considers that in any event the Third Objection should not
have been upheld in so far as it was directed against the alternative
claim of the Swiss Government relating to arbitration or conciliation.
He regards that claim as separate and distinct from the principal
claim, since it did not relate to the merits of the dispute but only
to the procedure for its settlement. By this claim the Court was
invited to pass only upon the arbitrability of the dispute, not on
the obligation of the United States to return the assets of Inter-
handel. That latter question was within the exclusive jurisdiction
of the tribunal to be seised. It follows, in his opinion, that the rule
relating to the exhaustion of local remedies was not applicable to
the alternative claim of the Swiss Government, inasmuch as, by
that claim, the applicant State sought to secure from the inter-
national tribunal a result different from that which Interhandel is
seeking to obtain in the American courts. The question of exhaustion
of local remedies is one which could arise only before the arbitral
tribunal seised of the case: the Court should not, in his opinion,
encroach upon the jurisdiction of that tribunal.

Judges HackworTH, Cérpova, WELLINGTON Koo and Sir Percy
SPENDER, availing themselves of the right conferred upon them
by Article 57 of the Statute, append to the Judgment of the Court
statements of their separate opinions.

Vice-President ZAFRULLA Kuan states that he agrees with
Judge Hackworth.

President KLAESTAD and Judges WINIARSKI, ARMAND-UGON, Sir
Hersch LAUTERPACHT and SPIROPOULOS, availing themselves of the
right conferred upon them by Article 57 of the Statute, append to
the Judgment of the Court statements of their dissenting opinions.

(Imitialled) H. K.
(Initialled) G.-C.

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