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SEPARATE OPINION OF JUDGE
SIR HERSCH LAUTERPACHT

In its Order the Court has assumed jurisdiction with regard to
the request of the Swiss Government, made under Article 41 of the
Statute of the Court, to indicate interim measures of protection
with a view to safeguarding the rights of that Government. Acting
under Article 41 of the Statute, the Court has found that, in the
circumstances now obtaining, there is no need to indicate the
interim measures of protection as requested by the Swiss Govern-
ment. By necessary implication it has left open the possibility of
indicating such measures, at a renewed request of the Swiss Govern-
ment, at some future date if circumstances should so require—for
instance, if the proceedings now pending before the Supreme Court
of the United States of America were to terminate in a way enabling
the Government of the United States of America to proceed with
the measures which form the subject-matter of the Swiss request.
In my view—so long as the Government of the United States of
America continues to determine that the object of the request of
the Swiss Government pertains to a matter which is essentially
within the domestic jurisdiction of the United States of America—
the Court has no power to assume jurisdiction with regard to
interim measures of protection and to proceed under Article 4x of
the Statute by either granting or declining the request.

In its Declaration of Acceptance of the jurisdiction of the Court
of 4th April 1946 the Government of the United States excluded
from its Acceptance “disputes with regard to matters which are
essentially within the domestic jurisdiction of the United States
of America as determined by the United States of America”. In
its request for an indication of interim measures of protection of
3rd October 1957 the Government of Switzerland, referring to its
Application of Ist October 1957, asked the Court to indicate, enter
alia, that “‘the Government of the United States is requested not
to sell the shares of the General Aniline and Film Corporation ...
so long as the proceedings in this dispute are pending”. On
zith October 1957 the Government of the United States of America
filed, in conformity with Article 62, paragraph x, of the Rules
of the Court, a Preliminary Objection in which it informed the
Court that it had determined that the sale or disposition of the
shares in the Corporation in question is a matter essentially within
its domestic jurisdiction.

In reliance on the Preliminary Objection thus filed, the Govern-
ment of the United States has asserted that the Preliminary Objec-
tion removed the basis for any assumption of a prima facie juris-

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118 INTERHANDEL (SEP. OPIN. SIR HERSCH LAUTERPACHT)

diction of the Court on the merits of the dispute and that the Court
therefore lacked the power to exercise jurisdiction under Article 41
of the Statute. That contention I consider to be well founded. In
my view, having regard to the determination made by the Govern-
ment of the United States under the terms of its Declaration of
Acceptance, the Court possesses no such power.

In deciding whether it is competent to assume jurisdiction with
regard to a request made under Article 41 of the Statute the Court
need not satisfy itself—either proprio motu or in response to a
Preliminary Objection—that it is competent with regard to the
merits of the dispute. The Court has stated on a number of occasions
that an Order indicating, or refusing to indicate, interim measures
of protection is independent of the affirmation of its jurisdiction
on the merits and that it does not prejudge the question of the
Court’s jurisdiction on the merits (Case concerning the Polish
Agrarian Reform and the German Minority, Series A/B, No. 58,
p. 178; Anglo-Iranian Oil Company Case, I.C.J. Reports 1951,
p. 93). Any contrary rule would not be in accordance with the
nature of the request for measures of interim protection and the
factor of urgency inherent in the procedure under Article 41 of the
Statute. However, it is one thing to say that action of the Court
under Article 41 of the Statute does not in any way prejudge the
question of its competence on the merits and that the Court need
not at that stage satisfy itself that it has jurisdiction on the merits
or even that its jurisdiction is probable; it is another thing to affirm
that the Court can act under Article 41 without any regard to the
prospects of its jurisdiction on the merits and that the latter question
does not arise at all in connection with a request for interim measures
of protection. Governments which are Parties to the Statute or
which have undertaken in some form or other commitments
relating to the obligatory jurisdiction of the Court have the right
to expect that the Court will not act under Article 41 in cases in
which absence of jurisdiction on the merits is manifest. Govern-
ments ought not to be discouraged from undertaking, or continuing
to undertake, the obligations of judicial settlement as the result
of any justifiable apprehension that by accepting them they may
become exposed to the embarrassment, vexation and loss, possibly
following upon interim measures, in cases in which there is no
reasonable possibility, prima facie ascertained by the Court, of
jurisdiction on the merits. Accordingly, the Court cannot, in
relation to a request for indication of interim measures, disregard
altogether the question of its competence on the merits. The correct
principle which emerges from these apparently conflicting consider-
ations and which has been uniformly adopted in international
arbitral and judicial practice is as follows: The Court may properly
act under the terms of Article 41 provided that there is in existence
an instrument such as a Declaration of Acceptance of the Optional
Clause, emanating from the Parties to the dispute, which prima

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facie confers jurisdiction upon the Court and which incorporates no
reservations obviously excluding its jurisdiction. These conditions
do not exist in the case now before the Court.

Unless and until the peremptory reservation included in the
Declaration of Acceptance made by the Government of the United
States of America and now formally invoked by that Government
is declared invalid in appropriate proceedings before the Court, it
must be deemed to exclude the jurisdiction of the Court on the
merits with regard to the claim of the Government of Switzerland
for the restitution of the property of the Corporation in question—a
claim which is directly related to the request for interim measures
with regard to the sale and the disposition of the shares of that
Corporation. If the Court subsequently holds that reservation to be
valid, that will automatically terminate its jurisdiction with
regard to the sale of the shares. Should, on the other hand, the
Court eventually declare the reservation in question to be invalid,
such invalidity may well entail the invalidity of the Declaration
of Acceptance as a whole and thus render impossible altogether the
jurisdiction of the Court. While I do not wish to prejudge the even-
tual decision of the Court on these questions it is apparent that, on
either alternative, the Court will be without jurisdiction to enter-
tain the Application so far as it relates to the sale and disposition
of the shares. I do consider that the third possibility—namely,
that the Court may declare the reservation to be invalid and
nevertheless uphold the validity of the Declaration of Acceptance
as.a whole—is sufficiently remote to permit its exclusion as a
factor in the prima facie appreciation of the possibility of the Court’s
jurisdiction on the merits. Moreover, quite irrespective of any
future decision of the Court on the question of the validity of the
reservation in question, the latter must, so long as it remains a
valid expression of the will of the Government of the United States,
be given full and unqualified effect. Unlike in other similar cases,
there is no question here of any uncertainty or controversy as to
whether the subject of the dispute is covered by the reservation.
That reservation must be deemed to embrace all aspects of the
procedure of the Court under its Statute. The Court is legally not
in a position, at any stage of the procedure, to exercise jurisdiction
—whether by granting the request for an indication of interim
measures or by declining it—unless in conformity with the terms
of the Declaration of Acceptance. In the matter of its jurisdiction
there is no other legal basis for its action under the Statute.

It might be said that as the Government of the United States of
America has invoked what may be described as the ‘automatic
reservations” only in respect of the sale or other disposition of the
shares, there is nothing to prevent the Court from acting under
Article 41 with respect to other aspects of the request of the Swiss
Government. This may be so. However, the Swiss request for

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120 INTERHANDEL (SEP. OPIN. SIR HERSCH LAUTERPACHT)

interim measures of protection covers primarily the question of
sale and disposition of the shares. The present Order of the Court 1s
concerned exclusively with that aspect of the request as being the
only one which fulfils the requirements of Article 61, paragraph 1, of
the Rules of the Court. In its Order the Court has assumed juris-
diction with regard to the request thus defined. It has declined to
grant it. As already stated, by clear implication it leaves open the
possibility of affirmative action should circumstances undergo a
change. In both respects the Order is, in my opinion, contrary to a
conclusive condition under which the jurisdiction of the Court has
been accepted.

In my View it is not open in the present case to the Court to find
either that there is a need or that there is no need for interim
measures of protection on the basis of Article 41. The Court ought
to declare that it is without jurisdiction to entertain the request.

For these reasons, while I am in agreement with the operative
part of the present Order, I cannot otherwise subscribe to it.

*
* *

I have refrained from referring to or elaborating the additional,
and no less decisive, reason why, in my view, the Court is without
jurisdiction to entertain the request for interim measures filed by
the Swiss Government. In my Separate Opinion in the case of
Certain Norwegian Loans (1.C.J. Reports 1957, pp. 43-66) I came
to the conclusion that a reservation of the kind as now before the
Court is invalid and that its invalidity entails the invalidity of the
Declaration of Acceptance as a whole. If that is so, the Govern-
ment of the United States cannot validly become either a plaintiff
or a defendant under its Declaration of Acceptance—although it
is open to it, in respect of any claim brought against it in reliance
on its Declaration of Acceptance, to submit to the jurisdiction of
the Court on some other basis. However, I have abstained from
-adopting that view as a ground of the present Opinion seeing that
the question of the validity of the above reservation of the United
States of America is not now before the Court and that it may, with
the possible participation of other Signatories of the Optional
Clause intervening by virtue of Article 63 of the Statute, form the
subject-matter of a decision of the Court at a subsequent stage of
the proceedings.

(Signed) HERSCH LAUTERPACHT.

1g