54

SEPARATE OPINION OF SIR PERCY SPENDER

In my opinion, as a result of the inclusion in the United States
Declaration of Acceptance of the Court’s jurisdiction of its Reser-
vation (b) stipulating that the Declaration should not apply to
disputes with regard to matters which are essentially within the
domestic jurisdiction of the United States as determined by the
United States, the Court has no valid United States acceptance
of its jurisdiction before it and is without competence to entertain
the Application of the Government of Switzerland. This conclusion
emerges from an examination of Objection 4 (a).

The Court upholds the Third Objection and holds that the
Application of the Swiss Government is inadmissible. Having
regard to this decision the Court being further of the opinion that
part (a) of the Fourth Objection is without object at the present
stage of the proceedings, finds it not necessary to adjudicate
thereon,

There is more than a little practical wisdom to recommend this
as a course to follow. The Objection presents issues of far reaching
significance. They concern not only the interests of the two States
engaged in the present proceedings but those of other States as
well. I would have preferred to adopt towards part (a) of the
Fourth Objection the same attitude as has the Court, but after
considerable reflexion I regret that this 1s not open to me.

To decide upon all other objections raised by the United States
to the Court’s jurisdiction and not to deal with this Objection, is
to leave unanswered questions which strike at the very roots of
the Court’s jurisdiction.

The United States has challenged jurisdiction on a number of
grounds. It has failed on its Objections 1, 2 and 4 (8), which are
objections to the jurisdiction of the Court. It has succeeded on
its Third Objection, but this has properly been treated by the
Court as a plea not to its jurisdiction but to the admissibility of
the Application of the Swiss Government.

Before however adjudicating upon the Third Objection, the
Court, in my opinion, is obliged first to satisfy itself that otherwise
it has jurisdiction. It cannot be so satisfied unless and until it
rules upon Objection 4 fa).

The United States under this Objection has invoked the auto-
matic reservation contained in its Declaration of Acceptance. It
declines thereunder to submit to the jurisdiction of the Court the
matter of the sale and disposition of the shares in GAF, including
the passing of title. This declination applies to all the issues raised
in the Swiss Application and Memorial, including, but not limited

52
55 INTERHANDEL (SEPAR. OPIN. OF SIR PERCY SPENDER)

to, the Swiss-United States Treaty of Conciliation and Arbitration
1931 and the Washington Accord of 1946.

This objection was maintained in the United States’ final con-
clusions and submissions.

Neither State to the present proceedings was willing to examine
too critically the vital questions posed by the Objection. The
Objection was handled tenderly by both and for understandable
reasons.

The issues involved raised their heads in the Norwegian Loans
case (I.C.]. Reports 1957, p. 9). Here also, each side walked discreetly
around them. Because in that case the validity of the reservation
of the Republic of France was not questioned by the Parties,
because indeed both Parties to the dispute regarded the reservation
as expressing their common will relating to the Court’s competence,
the Court gave effect to the reservation as it stood and as the
Parties recognized it.

In the present case the validity of the United States reservation
was questioned by the Swiss Government. In the course of the
oral argument the Co-Agent for Switzerland submitted (inter alia) :

“As we have already said in our observations, so-called auto-
matic reservations are incompatible not only with the very prin-
ciple of compulsory arbitration (Article 36 (2) ... of the Statute),
but also with Article 36 (6) ... which gives the Court the power
to determine its own jurisdiction.”

In the formal submissions of the Government of Switzerland
made at the end of the oral proceedings, it rather moved away
from this by contending that the Objection now being limited
in the present case to the right to dispose of and sell the shares
in GAF, it was in reality completely linked with the fate of the
United States Objection 4 (6) relating to the domain that is
reserved according to customary international law. I cannot agree.

If the reservation of the United States is invalid because of
incompatibility with Article 36 of the Statute of the Court, it
would be impossible for the Court to act upon it. More than this,
if it is invalid this may involve as in my opinion it does the total
invalidity of the United States Declaration of Acceptance rendering
it null and void.

The jurisdiction of the Court depends upon the Declarations of
Acceptance made by the Parties before it in these proceedings.
Whether it has or has not jurisdiction depends not only upon the
consensus of agreement to be derived from a comparison of the
two Declarations, but upon whether that consensus is compatible
with the provisions of the Court’s Statute.

53
56 INTERHANDEL (SEPAR. OPIN. OF SIR PERCY SPENDER)

Is, then, the United States reservation /b) compatible with
Article 36 of the Statute? And if not, what are the legal consequences
which flow from this incompatibility?

The Court can only function within its Statute and within the
limits of its authority. It cannot depart from the terms of the
Statute.

If the reservation of the United States is inconsistent with the
Statute, or if the result of its inclusion in its Declaration is to
render the latter wholly inoperative as an acceptance of the Court’s
jurisdiction, the Court, in my opinion, is bound so to declare.

Article 36 (6) of the Statute provides that in the event of a
dispute as to whether the Court has jurisdiction the matter shall
be settled by the decision of the Court. But the United States
reservation (6) empowers the United States exclusively on its own
determination to say in the event of a dispute whether the Court
has or has not jurisdiction. In the event of a dispute as to the
Court’s jurisdiction the matter is not settled by the decision of the
Court unless the United States so agrees. It determines whether the
matter shall or shall not be settled by the Court. But it is the Court
and the Court alone that under the Statute is to decide its juris-
diction. It is not competent for a State to reserve to itself a right
to withdraw from the Court in the event of a dispute as to whether
the Court has jurisdiction in a particular case, the very matter
which by virtue of Article 36 (6) shall be settled by the decision
of the Court.

The United States in this case has invoked its reservation and
so sought to prevent the Court from exercising the authority given
to it and discharging the duty imposed upon it by its Statute.

This reservation may be used by the United States to prevent
the Court from discharging its function and to exclude from the
Court’s competence at any time any dispute with regard to any
matters which the United States itself determines as essentially
within its domestic jurisdiction.

Whether any jurisdiction at any time resides in the Court in
respect of any dispute; whether there is any obligation upon the
United States to accept the jurisdiction of the Court on any dispute,
depends upon the will or subjective determination of that State,
a determination that may be made even after the dispute has
been brought before the Court.

This reservation is clearly inconsistent and incompatible with
Article 36 (6) of the Statute and with the concept of compulsory
jurisdiction and reciprocal obligation contemplated in Article 36
(2) thereof. An “obligation” to recognize the jurisdiction of the
Court, the existence or extent of which “obligation” in respect to
any particular dispute is a matter which can be determined by
the State concerned, is not a legal obligation at all.

It is in no way relevant to assume, as assume I do, that the
United States would seek to use its reservation with prudence and
reason.

54
57 INTERHANDEL (SEPAR. OPIN. OF SIR PERCY SPENDER)

In my opinion reservation (8) of the United States is invalid. If
so, the Court is unable to give any effect to it.

What are the consequences of its invalidity?

The answer seems to me dependent upon the enquiry whether the
reservation, either wholly or in part, is severable from the rest of
the Declaration.

Is it permissible to discard the reservation altogether or the
words ‘‘as determined by the United States”, leaving what remains
of the Declaration valid and operative?

The answer is clearly, I would think, “no”, and for the reason
that the reservation, of which the words “as determined by the
United States of America” are the core, is not a mere term but an
essential condition of the United States Acceptance. The reservation
could be described as a critical reservation without which the
Declaration of Acceptance would never have been made. This
seems reasonably self evident. It is not in my opinion permissible to
have recourse to the debate in the United States Senate when the
Declaration was before it; nor, were it permissible, would it be
necessary or profitable. The will and the intent of the United States
is to be found in its expression thereof in its Declaration of Accept-
ance and nowhere else. The meaning of the reservation, automatic
in character, is clear. To sever this reservation or the words ‘‘as
determined by the United States” and to hold that the Declaration
after severance represents the will and intent of the United States
would be to ignore the proper construction to be accorded to the
Declaration as a whole. To do so would impose upon the United
States an acceptance quite different to that which it made. It
would have no warrant in law. In my opinion the reservation is
a vital and unseverable condition of the Declaration of Acceptance.
If it is bad, neither it nor any part of it can be severed from the
whole. If it is invalid, as in my opinion it is, the whole Declaration
is null and void.

”

In my opinion this concludes the matter. The Court is without
jurisdiction.

Certain other possible constructions of the reservation should
however be considered.

May it not be read as implying that the determination of the
United States must be “reasonable” and so save it from any
inconsistency with Article 36 (6)?

So to read the reservation would require us to disregard its terms.
That is precisely one of the things the reservation was intended to
remove from any jurisdiction of or any review by the Court. The
history of the reservation would itself prove this abundantiy. But
there is no need to go beyond the words of the reservation itself.
There was excepted by the United States from the field of its accept-
ance of the Court’s jurisdiction any dispute which 7/—not some

55
58 INTERHANDEL (SEPAR. OPIN. OF SIR PERCY SPENDER)

other body—determined as essentially within its own domestic
jurisdiction, and irrespective of whether or not this Court should
think the exercise by the United States of its sovereign power in
so determining was or was not reasonable or the circumstances
such as would make it reasonably possible for it so to determine.
The United States, and it alone, was the sole judge of its action
and/or of its reasonableness.

In the: Norwegian Loans case, Judge Read, when dealing with
the terms of a somewhat comparable French reservation—‘‘disputes
relating to matters which are essentially within the national juris-
diction as understood by the Government of the French Republic”
—construed it as permitting the Court to review the reasonableness
of the circumstances under which the reservation was invoked.
Whether the circumstances were such that it would be reasonably
possible for Norway (relying in that case on the principle of
reciprocity) to reach an understanding that the dispute was essen-
tially national, would be a question for the Court to determine.
But if those circumstances existed the conclusion reached by the
State could not be questioned. In other words, whether the cir-
cumstances were such was not for a Government but for the
Court. If, however, such circumstances existed, the conclusion
of the Government concerned determined the matter (/.C./.

Reports 1957, Pp. 93).

It is not necessary to examine the reasons of that distinguished
Judge in reaching this view. I think it reasonably clear that, had
he been faced with the reservation in this case, he would have
come to a quite different conclusion. The learned Judge was, of
course, dealing with an automatic reservation couched in different
terms. Had he felt compelled to interpret.its words as meaning
that the relevant Government had an arbitrary power to settle
any question of jurisdiction, then it would have been necessary
for him to conclude that the Declaration of France was null and
void as contrary to Article 36 (6) of the Statute. “It is inadmissible,
by a process of interpretation, to rewrite the Clause in question
as if it read ‘disputes relating to matters as regards which the
Government ... has declared that it understands that they are
essentially within the national jurisdiction’.”’ (P. 95.) That would
have conferred an arbitrary power. The reservation in this case
is at least as strong. The word “determined” is one of very definite
content.

In my opinion there is no room whatever for construing the
United States reservation by implying into it a concept that the
determination must be reasonable or that it must not be unrea-
sonable.

There remains to be considered whether the reservation should
be interpreted in the sense that the Court has jurisdiction to
decide whether it is invoked in good faith.

56
59 INTERHANDEL (SEPAR. OPIN. OF SIR PERCY SPENDER)

This reservation left the question of jurisdiction specifically
to be “determined” by the United States of America and by it
alone. It cannot be construed as meaning that the words inserted
by the United States as a reservation from the Declaration of
Acceptance should be read as containing the words “provided it
is so determined by the United States of America in good faith”.
There is no room for redrafting the reservation and giving it an
entirely different meaning to that which its words bear and which
they clearly enough were intended to bear.

To do so would involve rewriting proviso (0) of the United States
Declaration of Acceptance, would distort the meaning of the Decla-
ration by imposing a quite different reservation upon the United
States to that inserted by it as a condition of its acceptance.
There is no room for questions of abuse of power or good faith
or bad faith in relation to a determination by the Government
concerned that the dispute is within its domestic jurisdiction.

In my opinion, the reservation of the United States proviso (8)
to its Declaration of Acceptance is invalid. Neither it nor any
part of it can be severed therefrom since it is of the essence of the
Declaration of Acceptance. The Declaration is incompatible with
any compulsory legal obligation and with Article 36 (6). It has
no legal force as a declaration under Article 36 (2). Accordingly, I
am compelled to the conclusion that the United States Declaration
of Acceptance is, and has from its inception been, null and void.
The United States cannot sue or be sued in this Court on the
basis of its Declaration. It has, in short, never legally submitted
to the jurisdiction of the Court.

In the result I am of opinion that the Court has no jurisdiction
to deal with the Application of the Government of Switzerland
except so to declare. Since however the majority of the Court
take the view that the objection should not be decided at the
present stage of the proceedings, I deem it my duty to express
my views on the other objections put forward by the United States.

First Objection

The United States Declaration of Acceptance of the compulsory
jurisdiction of the Court is limited to disputes “hereafter arising’ —
that is arising after the 26th August 1946. Disputes which had there-
tofore arisen are accordingly excluded.

The purpose and intent of such a provision is clear. It accepts
the Court’s jurisdiction on disputes arising after the relevant date.
It excludes from it all disputes which have arisen before the
27th August 1946. If a dispute existed before this date, it matters
not in what form it may subsequently be presented to the Court
or what the legal issues directly connected with and relevant to the

57
60 INTERHANDEL (SEPAR. OPIN. OF SIR PERCY SPENDER)

dispute may be or become, or what the nature of the relief claimed,
that dispute is not within the competence of the Court.

Such a provision, if it is not to be interpreted in a manner to
exceed the intention of the State accepting the jurisdiction of the
Court, should receive a broad construction.

A “dispute” within the meaning of the provision need not be
spelt out or defined with legal exactitude or particularity. It is
enough if its subject-matter and its nature are identifiable. A dispute
may arise long before it crystallizes into its component parts or
reveals all its different facets. No special formality is necessary.
It need not arise in the course of diplomatic negotiations. It may
do so independently thereof and may precede negotiations.

Nor is it a condition precedent to a “dispute” arising that one
State must indicate that it intends to resort to international judicial
or arbitral procedure or action unless its claim is satisfied. A State
party to a dispute may temporarily abandon its contention; may
subsequently revive it and then decide to seek a remedy by judicial
or other proceedings or action.

A dispute may lie dormant for years. The decision to take action
and the nature of the action to be taken, the forum to be chosen, or
the remedy to be sought are not decisive as to whether a dispute at
any given time exists or existed.

A dispute may, as not infrequently happens, enter upon a new
phase. An entirely separate dispute may of course arise between
the parties with which the existing dispute is only casually con-
nected. But if the substance of the dispute remains the same, the fact
that it has entered upon a new phase or that other issues directly
connected with and relevant to the dispute in which the parties
are also in disagreement are subsequently added or appear, or that
new claims for relief are presented, cannot alter the problem such
as is here presented to the Court. Were it otherwise, legal ingenuity
would usually be able to transmute a dispute which clearly enough
was beyond the jurisdiction of the Court, into one within its
competence. The Court should concern itself with substance, not
form. |

“Disputes” within the meaning of the United States Declaration
must bear the same interpretation as the same word appearing in
Article 36 of the Statute, with which it is co-terminous in meaning.
A State submitting to the jurisdiction of the Court is entitled to
place reliance upon the judicial pronouncements of this Court and
its predecessor, as to the meaning to be given to this word when
settling and agreeing upon the terms of its Declaration of Accept-
ance.

58
61 INTERHANDEL (SEPAR. OPIN. OF SIR PERCY SPENDER}

The Permanent Court of International Justice and this Court
have on a number of occasions considered the meaning of this
word. In my opinion it is not necessary to go beyond the pronoun-
cement of the Permanent Court of International Justice in the
Mavrommatis Palestine Concessions (P.C.I.J., Series A, No. 2 at
p. 14), “a dispute is a disagreement on a point of law or fact, a
conflict of legal views or interests between two persons”. See, too,
German Interests in Polish Upper Silesia (P.C.1.J., Series A, No. 6
at p. 14); Chorzdw Factory Case (P.C.I.J., Series A, No. 13 at
pp. 10 and 1x); Asylum Case (I.C.]. Reports 1950, at p. 403).
Nothing which appears in the Right of Passage over Indian Territory
(I.C.J. Reports 1957) qualifies this definition.

In the light of these observations, did then the dispute, the
subject of the litigation, arise before or after the 26th August 1946?

To provide the correct answer it is necessary to determine what
the dispute is.

The dispute ‘rates’ to an alleged obligation of the United
States to restore to Interhandel certain assets within the United
States. These assets were the shares in G.A.F. But to say that the
dispute “relates” to a certain subject-matter does not state or
identify the nature of the dispute.

There could not be other than complete agreement with the view
expressed in the Court’s judgment that facts and situations which
lead to a dispute must not be confused with the dispute itself.
Neither should the ‘dispute’ be confused with the “claim” or
claims for relief, which normally may be expected to follow the
dispute itself, or with the subject-matter of each claim. The present
case is an example of the need in particular to distinguish between
the “subject-matter of the dispute”, the “dispute” and the “claim”.

The relevant facts in the present case which constitute the dispute
have not altered since 2nd October 1957 when the Swiss Application
was filed. Yet since the date thereof a number of new claims have
been put forward. Nonetheless, the “dispute’’ has remained the
same.

In the Swiss Application the dispute is referred to in the pream-
bular paragraph as having arisen “relating” to the restitution
by the United States of the assets above mentioned. The Application
then proceeds to set out the facts on which the Application is
founded. It refers to ‘‘dispute’” throughout in the singular. It
states inter alia that “the dispute” concerns the interpretation of
a treaty and questions of international law and that its settlement
‘involves interpretation of the Washington Accord and an examin-
ation of questions of international law’’. Nowhere in the Application,
except in so far as is to be determined from the facts stated, is
“the dispute” defined. To state that the dispute ‘‘relates to, etc.”
does not itself indicate or determine its nature.

59
62 INTERHANDEL (SEPAR. OPIN. OF SIR PERCY SPENDER)

Although two different claims for relief were put forward in the
Application, Switzerland itself only refers throughout to one
dispute which it had sought to have settled first by negotiation, then
by seeking recourse to arbitration, etc., and finally by application
to this Court.

It is that dispute—whatever it was—that the Application asks
the Court either to determine itself on the merits, or, alternatively,
to declare is one fit for submission for “judicial settlement, arbitra-
tion or conciliation”.

What then, on a proper examination of the facts, was the nature
of the dispute to which Switzerland is referring?

It is, I think, clear enough that it was, whether or not Inter-
handel, the nominal owners of the shares in G.A.F. at the time of
vesting, was Swiss-owned or German-owned or controlled.

This, I think, is borne out by the correspondence and documents
which passed between the Parties, and is supported by the Appli-
cation itself and the Memorial.

The fundamental Swiss contention, in whatever different forms
it seeks relief, or whenever a demand for restitution was made, is,
that Interhandel was Swiss (neutral), not German (enemy). It is
on the resolution of this dispute that any obligation by the United
States to make restitution basically depends.

Whether the dispute were determined by this Court on its merits,
or dealt with by arbitration or conciliation, the dispute—as distinct
from the forms in which relief is claimed, which have I think too
greatly controlled the decision of the Court—is the same. And this
remains so whether the Swiss Government, in seeking to have the
shares restored to Interhandel, calls in aid Article IV of the Wash-
ington Accord, the decision of the Swiss Authority of Review, or
the Arbitration and Conciliation Treaty of 1931.

If the dispute did not arise after 26th August 1946, it is not in
my opinion competent for the Court to deal with that dispute in
any way either on its merits or by declaring that that dispute “is
fit for submission for judicial settlement, arbitration or concilia-
tion’’. Such a dispute is wholly outside the jurisdiction of the Court.

There are I think certain signposts before and after the 26th Au-
gust 1946 that give direction to our enquiry.

(a) The main, if not the only substantial reason why the United
States repeatedly maintained that the “blocking” of Interhandel in
Switzerland should be continued was because its principal asset
was its participation in G.A.F. then being administered by the
U.S. Alien Property Custodian. This was known to the Swiss
authorities from at least July 1945 (Exposé of Swiss Compensation

60
63 INTERHANDEL (SEPAR. OPIN. OF SIR PERCY SPENDER)

Office, 24th September 1947, Annex 3 to the Swiss Memorial,
P- 7).

(b) The United States Authorities from July 1945 to August 1946
“repeatedly maintained to the Swiss authorities that the connection
with I.G. Farben was still maintained”. (Ibid.)

(c) In the opinion of the Swiss Compensation Office the German
interest in Interhandel could not be proved.

(à) “Like the earlier enquiry the second investigation (Footnote
November 1945-February 1946) established that Interhandel was
in no degree under German influence.” (Swiss Application 3 (0).)

(e) “Despite this quite categorical outcome the Swiss Compensa-
tion Office continued to block Interhandel—taking into account
the fact that the allied members of the Joint Commission, which
meanwhile had been set up under the Washington Accord, had not
been willing to accept the findings of the second enquiry.” {Jbid.)

(7) The G.A.F. remained under the administration of the Alien
Property Custodian from 1942 onwards because it was considered
by the United States ‘to be a company under German control”.
(Decision of Swiss Authority of Review, Annex 19 to Swiss Memo-
rial, para. B.)

(g) The question decided by the Swiss Authority of Review was
whether Interhandel was under German control. (Ibid., para. 4.)

(h} The Swiss Authority of Review found this issue in favour of
Interhandel and ordered the blocking to be annulled. (Ib:d., paras.
11 and 12.)

(z) This decision provides one of the main supports relied on by
the Swiss Government in this case.

(7) The Memorial of the Government of Switzerland under Part I
thereof ‘Statement of Facts’ states that Interhandel attempted
many years before the Second World War “‘to free itself from all
German influence and succeeded as we shall show”. (First para-
graph.) In paragraph 6 “To decide whether a preponderant German
interest existed”’ in Interhandel the distribution of shares in that
Corporation is examined. In paragraph 7 “To determine whether
or not” Interhandel “was subject to German control” some impor-
tance was attributed to the composition of the machinery of the
Corporation which subsequent paragraphs deal with. In paragraph
18 referring to the two decisions of the Swiss Office of Compensa-
tion it is stated that the first “found... that Interhandel had
completely severed its tres with I.G. Farben in 1940 and therefore
there was no need to decree the blocking of its property’’, the
second enquiry ‘‘confirmed that Interhandel was not controlled by
the Germans’. In Part II under “Statement of the Law’’ para-

6x
64 INTERHANDEL (SEPAR. OPIN, OF SIR PERCY SPENDER)

graph 8x states “The Swiss Government alleges that the property
of the G.A.F. is Swiss. It is therefore incumbent upon it to prove
that fact. Such proof would appear to us to be furnished as soon
as it is established that the preponderant interest in the Corporation
under the control of which G.A.F. is (in other words Interhandel)
ts in Swiss hands. This conclusion also results from the investiga-
tions of the Swiss Compensation Office and from the decision of the
Authority of Review which also cover the American assets. It is up
to the respondent to furnish proof to the contrary.”

(k) The Submissions to the Memorial recite (inter alia) :

(i) The United States was by virtue of Article IV of the Wash-
ington Accord under an obligation to unblock Swiss assets in the
U.S.A. including those of Interhandel. (rst recital.)

(ii) Interhandel was not under enemy control at the time of the
entry of the United States into the Second World War. (2nd recital.)

(iii) G.A.F. was controlled by Interhandel. (2nd recital.)

(iv) The decision of the Swiss Authority of Review recognizes
the Swiss character of Interhandel. (3rd recital.)

(v) That decision became res judicata vis-à-vis the parties to the
Accord and so internationally binding on the United States of
America. (4th recital.)

(vi) Independently of the above decision general international
law prohibited the confiscation of private property belonging to
nationals of neutral States. (5th recital.)

(vii) Accordingly the United States was bound as a result of the
decision of the Swiss Authority of Review to restore the assets
of Interhandel. (6th recital.)

(i) “Despite” the decision of the Swiss Authority of Review ‘‘the
American authorities categorically refused to comply with the
Swiss request for the release of the G.A.F. shares in the United
States”. (Paragraph 4 of Application.)

The essential nature of the dispute referred to by Switzerland
in its Application and Memorial was whether or not Interhandel,
the nominal owners of the shares at the time of vesting, was
“Swiss” owned or “German” owned or controlled, in other words
whether Interhandel had completely severed its ties with I.G.
Farben.

The dispute so described may be put in different words, as
indeed at times it has been, but it is that dispute, however described,
which is presently before the Court and it is upon the resolution

62
65 INTERHANDEL (SEPAR. OPIN. OF SIR PERCY SPENDER)

of that dispute that the Swiss claim ultimately depends. If Inter-
handel were Swiss (neutral), not “German” (enemy), the Swiss
claim is that its shareholding in G.A.F. was “Swiss” and should
be restored to it.

Within this dispute there have arisen, as is not unusual, other
issues between the Parties which are themselves the subject of
dispute. But when examined it will be seen that they are but
aspects or parts or phases of the same fundamental dispute.

The Swiss Government in its Application and Memorial stated
in detail facts upon which it claimed to be in a position to establish
that Interhandel was “Swiss” and accordingly that its share-
holding in G.A.F. was Swiss. In its view whether this was “Swiss”
was dependant upon whether Interhandel was Swiss as it claimed
it was in a position to prove. In support of its case it has, however,
placed much reliance upon the Washington Accord.

Thereunder it claims that by virtue of Article IV, paragraph 1
thereof, the United States assumed the obligation to unblock
Swiss assets among which it claims are the assets in G.A.F. alleged
to belong to the “Swiss” Corporation Interhandel. If Interhandel
were Swiss, if, the Swiss Authority of Review found, it had
severed its connections with I.G. Farben, then this share-
holding it is contended was also Swiss. But assuming that this
Article has any relevance to this case, the dispute remained the
same.

Switzerland, in the Observations and Submissions on the Preli-
minary Objections, sought to supplement its claims by an alter-
native claim in which it requested the Court to declare that the
“property” which Interhandel “possesses” in G.A.F. “have the
character of non-enemy (Swiss) property and consequently (the
italics here are mine) to declare that by refusing to return the
said property the United States was acting contrary to the
decision of the Swiss Authority of Review of January 1948 and
was in breach of Article IV, paragraph 1, of the Washington
Accord and of the obligations binding upon them under the general
rules of international law’’.

Assuming that the decision of the Swiss Authority of Review
is relevant to these proceedings, and this issue is also in dispute,
it is clear that the Government of Switzerland is relying upon it
as conclusive evidence against the United States of America on
the real dispute before the Court, namely, as to the Swiss character
of Interhandel and consequently the Swiss character of its share-
holding in G.A.F. |

The fundamental dispute—notwithstanding all the other issues
within it—is and has always been whether Interhandel—the
nominal holder of the shares in the United States of America—was

63
66 INTERHANDEL (SEPAR. OPIN. OF SIR PERCY SPENDER)

“Swiss”. And the enquiry under the objection is whether a dispute
on that issue arose before the 26th August 1946.

The “neutral’’ or “enemy’’ character of Interhandel was, of
course, material under the Washington Accord.for the purpose of
carrying out its primary objective, namely, the uncovering, the
census and the liquidation of German property in Switzerland.
But the character of Interhandel had a significance both for
Switzerland and the United States of America which went beyond
this because of the assets in the United States of America which
had stood in the name of Interhandel before they became ‘‘vested’’.
Once the procedure under the Accord was completed, the Swiss
case on this aspect is, and at all material times must have been,
that it covered American assets and applies to ‘‘vested” property
in the United States of America. (Annex 22 to Swiss Memorial;
para. 8x of Swiss Memorial.) The United States for its part “because
the principal assets’ of Interhandel were the shares in G.A.F.,
had “repeatedly. maintained to the Swiss Authorities that the
connection with I.G. Farben was still maintained’’. (Annex 3 to
Swiss Memorial.) It is, I think, a proper conclusion that both the
United States of America and Switzerland in the discussions
and correspondence which took place between the two countries
after May 1946 at the latest, regarded the character of Interhandel
in relation to the liquidation of German property in Switzerland
as having a connected and significant bearing on Interhandel’s
shares in G.A.F.

Interhandel was a holding company. Its most important asset
were the shares in G.A.F. It held over go per cent of the shares
therein. Somewhat less than half of the ordinary shares of Inter-
handel were the property of G.A.F. If Interhandel were held by the
Swiss authorities to be “Swiss”, whilst that could not—apart from
the Swiss arguments based on Article III of the Annex to the
Washington Accord (res judicata)—have decided the fate of Inter-
handel “assets” in G.A.F., it could assume considerable importance
in relation to them and any alleged obligation upon the United
States to restore them to Interhandel. On the other hand, were
Interhandel determined by them to be “German” or German
controlled, this would have had an important practical bearing
on any claim by Interhandel to have the shares restored to it.

It is contended by Switzerland that prior to the 26th August
1946, the Swiss authorities were not concerned with the fate of
Interhandel’s shareholding in G.A.F, Any difference of opinion, if
any, which took place prior thereto, could, therefore, it is said, have
had no relation to that shareholding.

To the extent to which it is necessary to deal with this con-
tention, I cannot accept this as accurate. The United States were
expecting Interhandel to bring suit in the United States to recover
the shares in G.A.F. The letter of 2oth August 1946 from the Swiss

64
67 INTERHANDEL (SEPAR. OPIN. OF SIR PERCY SPENDER)

Compensation Office to Mr. Le Roy Jones, described as Chief of the
Alien Property Section Department of Justice of the United States
(Annex 3 to Swiss Memorial, p. 9), appears sufficiently to establish
that Switzerland shared the view that Interhandel would probably
bring such a suit.

Whether any difference of opinion which took place before the
date of the Washington Accord did or did not bear a relation to
Interhandel’s holding in G.A.F., [ am of the opinion that after the
date thereof it did have such a relation, and a direct one.

1. The Swiss Compensation Office, under the Washington
Accord; was the authority empowered to uncover, take into
possession and liquidate the property in Switzerland of Germans
in Germany.

2. The view of the Swiss authorities is, and consistent with the
case it makes out must, it seems to me, at the relevant times have
been that:

(a) The Swiss Authority of Review was created by the Accord
and its duty was, when required so to do, to review the decisions
which the Swiss Compensation Office was called upon to take
under the Accord.

(b) The fact that the Swiss Compensation Office began its in-
vestigations in respect to Interhandel before the conclusion of the
Accord in no way would prevent a decision of the Authority of
Review from having been taken within the framework of the Accord
because of the provisions of Article 1 thereof. “In other words,
though the investigations of the Swiss Compensation Office began ...
before the conclusion of the Accord ... they were continued and
completed within the framework of the Accord”’ (Swiss oral argu-
ment of 11th November 1958). The decision of the Swiss Compen-
sation Office ‘“‘was made in observance of the Articles of the Accord”
(Swiss Note of 7th September 1948, Annex 22 to Swiss Memorial).
The significance of this viewpoint becomes apparent when seen
against the light of the Swiss contention that the decision of the
Swiss Authority of Review ‘‘confirming the non-German character
of Interhandel became res judicata’ since it was an appeal from the
Swiss Compensation Office made by “the party (Interhandel) in
interest’? under the Accord.

3. The procedure laid down in Article ITI of the Annex to the
Accord, the Swiss Government claims, would determine what were
Swiss assets in the United States under Article IV of the Accord
(Swiss Note of 7th September 1948, Annex 22 to Swiss Memorial).
“The Washington Accord specifies in Article IV, Section I, that the
Government of the United States is under an obligation to unblock
Swiss assets in the United States, that is to say,-all Swiss assets
without any exception whatsoever. Who decides whether any part-
cular property should be described as Swiss assets? Who decides on the
criterion for distinguishing Swiss assets from German assets blocked
in the United States ?

65
68 INTERHANDEL (SEPAR. OPIN. OF SIR PERCY SPENDER)

“Tf we study the Washington Accord in this connection, one thing
is certain. When property belongs to Swiss physical or legal persons
whose Swiss character has already been confirmed in a binding and
final manner by the Authority of Review under the Washington
Accord, they must inevitably follow the fate of property unblocked in
Switzerland” (Swiss oral argument, 11th November, 1958).

4. Under the Accord (Article ITI of Annex thereto) decisions of
the Authority of Review, made under the provisions of the Accord,
were final. But so also were the decisions of the Swiss Compensation
Office, unless the Joint Commission was “‘unable to agree to the
decision of that Office’, or unless “the party in interest” desired
the matter to be submitted to the Authority of Review. Article III
of the Annex provides “The decisions of the Compensation Office
or of the Authority of Review, should the matter be referred to it,
shall be final.”

5. A decision of the Swiss Compensation Office was, on the
Government of Switzerland’s case as I understand it, the
initial step in the chain of proof to establish under Article IV of
the Accord, whether Interhandel’s ‘assets’ in the United States
were or were not “blocked” assets, which under Article IV of the
Accord, the United States of America was under obligation to
unblock. If the Swiss Office of Compensation decided that Inter-
handel was ‘‘Swiss’—as,' of course, it had already done—and it
confirmed its determination or conclusion after the Washington
Accord, and if the United States (or Joint Commission) did not
contest its determination or conclusion, the view of the Government
of Switzerland must have been it seems to me that that would
decide the fate of Interhandel’s “‘assets’” in G.A.F. If the Joint
Commission Powers refused to accept the decision of the Swiss
Compensation Office and the matter went before the Authority of
Review, its decision would become Switzerland claims res judicata
unless the Allied Governments requested arbitration. In other
words, if the Swiss character of Interhandel in Switzerland, as
determined by the Swiss Compensation Office, was admitted or
not contested or if on review Interhandel was determined by the
Swiss Authority of Review to be Swiss, the shares in G.A.F., on
the Swiss view of the Accord, would “inevitably follow the fate of
property unblocked in Switzerland”.

It is not without significance that as at the r2th December 1945,
454,948 ‘A’ shares in G.A.F. were deposited in Switzerland in the
form of certificates and these were claimed by Interhandel to be
fully under its control.

Did or did not the Swiss Government, as from the date of the
Accord, and before the 26th August 1946, hold the opinion that
Interhandel was not “German” or under German control but
“Swiss” and that consequently Interhandel’s “assets” were ‘‘Swiss’”

66
69 INTERHANDEL (SEPAR. OPIN. OF SIR PERCY SPENDER)

not “German’’? If it did, it was an opinion directly opposed to
that of the United States authorities. I am satisfied it did, irre-
spective of whether that opinion could be described as ‘“provisional”’
or subject to possible change, or not. It was a firmly held opinion
put forward in direct conflict with that held by the United States
authorities since 1942. Moreover it seems to me clear enough that on
Switzerland’s case, it knew at least that the determination of the
Swiss Compensation Office was a not unimportant factor in estab-
lishing the Swiss character of G.A.F. ‘‘assets’ in the U.S.A. The
Swiss Compensation Office was on its case a definite link in the
procedure necessary to prove that Interhandel’s “assets” in G.A.F.
were Swiss assets in the U.S.A. The Swiss Compensation Office was
the competent Swiss authority for this purpose.

Whether the convictions and contentions of the Swiss authorities
are to be called provisional or otherwise—whatever terms are used
to diminish the significance of the official Swiss attitude after the
Accord and before 26th August 1946—it is [ think sufficiently clear
that the Swiss attitude must have been that Interhandel was Swiss,
and accordingly its holding in G.A.F. was Swiss, with the conse-
quence which flowed from that if their claim as to the applicability
of Article IV of the Accord was correct.

It said in terms quite sufficient to establish a dispute—our
opinion is that Interhandel is Swiss—that is our contention—that
is our determination. If you persist in claiming otherwise, prove it,
if you can.

I do not intend to detail all the further evidence which persuades
me that the dispute existed before the 26th August 1946. I shall
content myself with the following:

(a) The Swiss Compensation Office investigated Interhandel
June-July 1945. It ‘drew ... the logical conclusion that Interhandel
was a Swiss company...” (para. 3 (b) of Application). This con-
clusion was diametrically opposed to the official determination of
the United States.

(b) The Swiss Compensation Office, against its conviction and
only at the direction of the Swiss Federal Political and another
Department, continued the “temporary” blocking of Interhandel.
This was done, the Swiss Government states, under pressure by
or as the result of representations from the Allied Governments,
particularly the U.S.A. The blocking was continued not because
there is any reason to suppose the Swiss Political Department
differed with the conclusion of the Swiss Compensation Office, but
because of the pressure or representations. The Swiss Compensation
Office subsequently gave support to Interhandel’s appeal to the
Swiss Authority of Review. From at least July 1945 the Swiss

67
70 INTERHANDEL (SEPAR. OPIN. OF SIR PERCY SPENDER)

Compensation Office persisted in its view that Interhandel was
“Swiss”.

(c) The United States continued at all material times to assert
that Interhandel was not “Swiss” but ‘‘German’’.

(d) An official statement of the Government of Switzerland
contained in its letter of 6th November 1945 (Exhibit 12 to United
States Preliminary Objections), after referring to the investigation
of the Swiss Compensation Office, went on to state that a decision
had been made recently to block for a limited time “in order to
permit your authorities, if they persisted in regarding this holding
as under German influence to furnish the proof for it. This way one
has taken into account the zmportance which your Government
attaches to the matter.”

(e) At this stage (November 1945), as appears from this letter,
the Swiss position may be summed up as follows:

Our conclusion is that Interhandel is Swiss-owned. That is
our opinion. You dispute it. We realize the importance your
Government places on the result, but if you persist in your
contention that the “holding” is under German influence, you
prove it before the 31st January 1946.

(f) At least from February 1946 onwards, the Swiss Compensa-
tion Office remained adamant in its contention that Interhandel
was “Swiss”, not “German”. It adhered throughout to this contention.
The fact that it indicated to United States officials that if they
could produce evidence to establish Interhandel was German-
controlled, it was prepared to consider it, in no way dimin-
ishes the fact that it adhered firmly to its determination and was in
disagreement with the United States authorities.

(g) The Swiss Political Department was informed not only of
the determinations of the Swiss Compensation Office, but of dis-
cussions with United States officials. (See e.g. letter of roth Decem-
ber 1945, President of the Swiss Compensation Office to M. Petit-
pierre, Head of Political Department of the Government of Swit-
zerland, Annex 2 to Swiss Observations, and letter next referred to.}

Only a few further documents need be specifically referred to:
roth August 1946—Letter Swiss Compensation Office to Mr. Harry
Le Roy Jones

This letter stated that:

The Swiss Compensation Office was of opinion that Interhandel
should not be blocked, and for the reason that Interhandel was in
its view “Swiss”, not ‘““German”. This was a view diametrically
opposed to and in disagreement with the opinion of the United

68
71 INTERHANDEL (SEPAR. OPIN. OF SIR PERCY SPENDER)

States. It was a difference between the two countries on an issue of
prime importance, in the Swiss view at least, and hardly less impor-
tant from the point of view of the United States Alien Property
Control in relation to the G.A.F. holding of Interhandel. There
was a dispute on the real issue (cf. Annex 22 to Memorial, pp. 144
and 146). If Interhandel were unblocked, in the Swiss view of the
Accord, the fate of G.A.F. shares “inevitably followed” that event.

Having stated its opinion as above, it refers to the United States
opinion to which Swiss opinion was opposed as—"Your opinion
that the Interhandel firm is controlled by Germans”’.

In this letter one was saying Interhandel is not controlled by
Germans, or it is our opinion it is not; the other was saying it zs
controlled by Germans, or it is our opinion that it is. And the
relation of this clash of opinion on Interhandel’s G.A.F. holding
is at this stage manifest.

Minutes of Conference at Federal Political Department,
16th August 1946

The United States record of the meeting is set out in Exhibit 15
to its Preliminary Observations. Mr. Fontanel, who represented
the Swiss Federal Political Department, stated that M. Petitpierre—
the official head of that Department—had said that Interhandel
would not be immediately unblocked, that Interhandel “after two
investigations by the Swiss Compensation Office had been determined
to be Swiss-owned’”’, and that M. Petitpierre therefore felt it was
incumbent upon the American authorities to present evidence to
contradict these findings. (Cf. para. 81 of the Swiss Memorial.)

The Swiss Record (Annex 5 to Swiss Observations) supports this,
though it reads somewhat differently. It is, however, quite sufficient
to rely upon the Swiss Record. Mr. Fontanel asked Mr. Le Roy
Jones, who represented the United States at the conference, what
stage had been reached in the Interhandel ‘affair”. “If the Ameri-
cans desire the blocking to be maintained, they would have to
justify their request by furnishing us, if not with proof, at least
with serious indications that I.G. Chemie is under German control.”

It is, in my opinion, not possible to accept the argument that
because no so-called ‘‘final position” was taken by Switzerland, no
dispute existed. Parties in dispute frequently change their position.
No so-called final deadlook is necessary to establish a dispute. On
any realistic approach to the matter, the United States and Swit-
zerland were then in dispute on the real issue on which they are
now in dispute.

69
72 INTERHANDEL (SEPAR. OPIN. OF SIR PERCY SPENDER)

Letter of 20th August, Swiss Compensation Office to Mr. Jones

This is six days before the operative date of the United States
Declaration of Acceptance. There G.A.F. is clearly in the picture.
The Swiss Compensation Office, which at that time was of opinion
that the German interest ‘cannot be proved” (p. 9 of Annex 3 to
Memorial), was stating that what was involved in the United
States’ request for further investigation by the Swiss Compensation
Office, in collaboration with the United States Department of
Justice and Office of the Alien Property Custodian, was “not
merely an enquiry concerning the question of the blocking of I.G.
Chemie or measures to be taken under the Washington Accord, but
rather the discovery of documents in the interests of the Office of
the Alien Property Custodian’’.

It is in my view not possible, on any reasonable reading of this
letter, not to be satisfied that if the dispute had not arisen before
this date, as I am of the opinion it had, it certainly at this time
had. The Swiss Compensation Office had, before sending this letter,
submitted the matter to the Federal Political Department. The
whole letter merits special attention, but particularly the para-
graph commencing with the words “Considering that the object...,
etc.”. The reply of that Department was to the effect that in the
main ‘it confirms the point of view which I have already indicated
to you and which I have outlined above. Namely, on the Swiss side,
the opinion is held that it is now for the American authorities to
furnish to the Swiss Compensation Office the means of proof which
in the American view should lead the Swiss Office to block LG.
Chemie definitively, that it to say, to consider it ... as being under
German influence.”

A few final observations:

In my opinion, it is not permissible to treat this objection as
divisible into two parts corresponding to the principal and alter-
native submissions or claims as if there were two separate disputes,
the first, one in which the Government of Switzerland espouses the
cause of its national, the second, one in which she claims relief in an
independent capacity.

To do so leads to error. Such an approach to this objection
mistakes form for substance. It blurs the distinctions between the
subject-matter of a dispute, the dispute itself and the submissions
or claims for relief, which spring from the dispute. It disregards, in
my view, the essential unity of the dispute in this case—the single
dispute referred to in the Swiss Application and Memorial. It focus-
ses attention on the submissions or claims for relief rather than
on the dispute itself.

All submissions and claims for relief are directed to one common
purpose, to obtain for Interhandel restitution of its “assets” in
G.A.F. The alternative submission or claim for relief, which directs

70
73 INTERHANDEL (SEPAR. OPIN. OF SIR PERCY SPENDER)

itself to a means by which this purpose might be achieved, has, to
use the words of the Swiss Memorial (para. go), “simply a subsi-
diary character”.

To divide the objection in the manner indicated has, it seems to
me, led to the error of seeking in respect of the first submission or
claim for relief, the initial request by Switzerland for the return to
Interhandel of its “assets” in G.A.F. and the first negative reply
given by the United States to that request, and so disposing of the
objection on this part, and then in turn disposing of what was
considered a separate dispute by finding that the same fate should
attend that, since it could not have arisen until after the first had.

In any event, I cannot agree that a test of demand and refusal
in this case can be decisive in determining the date of the dispute.
The “neutral” or “enemy” character of Interhandel being the essen-
tial dispute between the Parties, the fact that no claim or demand
for restitution was made by Switzerland until after 26th August
1946 is irrelevant to the issue raised by the objection. When the
demands or requests connected with either the principal or subsi-
diary claim for relief were made the dispute, in my view, already
existed.

It is not without significance that the Memorial of Switzerland
contains a number of paragraphs (35-40) which fall under the
heading “Swiss Attempts to settle the Dispute”. From a perusal of
these paragraphs it is at once evident that the dispute with which
we are here concerned and to which both the Swiss Application and
its Memorial direct themselves had, as of course it must have,
already arisen before any proposal to have recourse to arbitration or
conciliation to settle the dispute was or could be made.

For the reasons above advanced, I think the first objection
should have been upheld.

Second Objection

In dealing with this Objection the Court, following the course it
did on the First Objection, has again divided what, in my opinion,
is one dispute into two, elevating what was purely a subsidiary sub-
mission or claim for relief into a separate and. distinct dispute.
I have already expressed my reasons why I think this procedure
inadmissible.

My approach to the Second Objection assumes, contrary to the
view already expressed by me on the First, that the dispute arose
after the 26th August 1946, and before the 28th July 1948. On that
assumption I agree with the decision of the Court and with its
reasons.

ves
74 INTERHANDEL (SEPAR. OPIN. OF SIR PERCY SPENDER)

If instead of the words “‘hereafter arising” there had been inserted
the words “arising after the 26th August 1946’, the Objection of
the United States would, I think, hardly have been arguable. In my
opinion the conclusion to be reached would be the same in both.
A proper test in this case is to compare the Declarations of Accept-
ance of the two States and by so doing determine the scope of the
Court’s jurisdiction covered by each. This I think leads to the
conclusion that the consensual agreement, the common ground,
between the Parties includes all disputes arising after the effective
date of the United States’ Declaration, namely the 26th August
1946. The Declarations of each State concur in comprising the
dispute in question within their scope.

The Second Objection should be dismissed.

I agree with the decision of the Court and its reasons in uphold-
ing the Third Objection and in rejecting Part (2) of the Fourth
Objection.

(Signed) Percy C. SPENDER.

72


DISSENTING OPINION OF JUDGE IGNACIO-PINTO
[Translation]

To my regret, ] am unable to support the Order of the Court upholding
Australia’s request for the indication of interim measures of protection
pending the settlement on the merits of the dispute between that State
and France with regard to the nuclear tests which the French Govern-
ment wishes to carry out in the South Pacific.

I voted against the grant of those interim measures because I find this
decision legally unjust, or in any event without sufficient basis. But J
wish to emphasize that my negative vote does not mean that I am in
favour of nuclear tests,—on the contrary, J am strongly opposed to all
such tests, and align myself with those who wish to see the prohibition of
all these experiments which are dangerous for our planet, and of which
the least one can say is that we do not yet fully know what harmful
consequences they may have, and how long the effects of atomic tests
last in the atmosphere.

In the dispute brought before the Court by Australia, however, we must
not be swayed by sentiment, and still less must we permit ourselves to be
affected by the feelings—which in fact are very understandable—prompt-
ed by the decision of the French Government to carry out nuclear tests,
just as other States, in exercise of their rights of sovereignty, have carried
out such tests, and a further State, and no minor one at that, still con-
tinues to do so, using devices which produce explosions which give rise to
still greater pollution. It is therefore important that I should examine
calmly and lucidly the question of the Court’s jurisdiction, confining
myself strictly to existing rules of international law.

It is to be observed that the case of which the Court is seised is sui
generis, and is not on all fours with any other case in which, up to the
present, the Court has had to examine in order to determine the question
of its jurisdiction. It is in vain that reliance has been placed upon the
Fisheries Jurisdiction case, by way of reference to recent jurisprudence of
the Court, in order to claim that the Court has jurisdiction. In the
Fisheries Jurisdiction case, the legal basis of the request for the indication
of interim measures is clear and definite, and is to be found clearly set out
in the Exchange of Notes of 11 March 1961 between Iceland and the
United Kingdom, the penultimate paragraph of which reads as follows:

“The Icelandic Government will continue to work for the im-
plementation of the Althing Resolution of May 5 1959, regarding
the extension of fisheries jurisdiction around Iceland, but shall give
to the United Kingdom Government six months’ notice of such

33
NUCLEAR TESTS (DISS. OP. IGNACIO-PINTO) 129

extension and, in case of a dispute in relation to such extension, the
matter shall, at the request of either party, be referred to the Inter-
national Court of Justice.”

There is no possible doubt as to the consent of the parties; the re-
course had to this precedent in order to justify Australia’s request must
therefore be rejected.

In the case now before the Court, there is nothing comparable to the
legal situation created by the penultimate paragraph of the Exchange of
Notes of 11 March 1961 between Iceland and the United Kingdom.

Australia does of course rely on the General Act of 26 September 1928,
to which it and France were parties, but there is still doubt as to the
validity thereof, and the controversy on the point is such that in my
opinion the Act cannot possibly be a sufficient ground to turn the scale of
the Court’s decision, and result in the award to Australia of the interim
measures asked for. Nor is there any more validity in the argument
which has been based on another decision of the Court, the Judgment of
6 July 1957 on the Certain Norwegian Loans case, in which proceedings
the Agent of the French Government relied on the validity of the General
Act. The Court in fact did not accept this point, despite the contrary
opinion expressed by Judge Basdevant.

Of what is it a question in the present case?

The request amply answers this question, adducing:

“() The right of Australia and its people, in common with other
States and their peoples, to be free from atmospheric nuclear
weapon tests by any country is and will be violated;

(ii) The deposit of radio-active fall-out on the territory of Australia
and its dispersion in Australia’s airspace without Australia’s
consent:

(a) violates Australian sovereignty over its territory;

(b) impairs Australia’s independent right to determine what
acts shall take place within its territory and in particular
whether Australia and its people shall be exposed to
radiation from artificial sources;

(iii) The interference with ships and aircraft on the high seas and in
the superjacent airspace, and the pollution of the high seas by
radio-active fall-out, constitutes infringements of the freedom of
the high seas.”

The majority of the Court finds that these submissions are sufficient to
enable it to say that this request appears to fall within the purview of
international jurisdiction.

But the French Government, with full right, has from 1966 onward
excluded from the Court’s jurisdiction all “disputes concerning activities

34
NUCLEAR TESTS (DISS. OP. IGNACIO-PINTO) 130

connected with national defence’, and its assent under Article 36,
paragraph 2, of the Statute is therefore limited by the categorical expres-
sion of its will. In my view, this limitation has its raison d’étre, moreover,
in Article 2, paragraph 7, of the Charter, which provides:

“Nothing contained in the present Charter shall authorize the
United Nations to intervene in matters which are essentially within
the domestic jurisdiction of any State or shall require the Members
to submit such matters to settlement under the present Charter; but
this principle shall not prejudice the application of enforcement
measures under Chapter VII.”

The arguments put forward by Australia, in particular with regard to
the validity of the 1928 General Act, are not relevant, for it is admitted in
international law that a special rule overrides the general rule. In the
present case, events after the war of 1939-1945 having completely over-
turned conceptions of national security through the introduction of the
nuclear bomb, it is difficult not to accept that the reservation of the
French Government overrides the General Act dating from before the
Second World War, an era in which no State possessed the atomic
bomb.

Moreover, whereas the General Act of 1928 is the subject of serious
controversy and appears at all events never to have been invoked as a
basis of the Court’s jurisdiction by any State ever since its entry into
force, the declaration of the French Government constitutes the funda-
mental element of its acceptance of compulsory jurisdiction under
Article 36, paragraph 2, in so far as it is based on its formal and un-
equivocal consent.

There is another important point which does not seem to have been
sufficiently taken into account in the arguments put forward by the
French Government. I refer to its reiterated request to the Australian
Government, expressed in its Ambassador’s letter of 7 February 1973 to
the Australian Prime Minister and Foreign Minister (Application, Annex
10, p. 57), that it be given some indication of the precise rules of inter-
national law which France is said to violate:

“But the French Government finds it hard to see what is the
precise rule on whose existence Australia relies. Perhaps Australia
could enlighten it on this point.

In reality, it seems to the French Government that this complaint
of the violation of international law on account of atomic pollution
amounts to a claim that atmospheric nuclear experiments are auto-
matically unlawful. This, in its view, is not the case. But here again
the French Government would appreciate having its attention drawn
to any points lending colour to the opposite opinion.”

This request for specific enlightenment has received no reply, and
Australia has confined itself to presuming the existence of a right which
in my view does not really exist, alleging moreover more or less hypothe-

35
NUCLEAR TESTS (DISS. OP. IGNACIO-PINTO) 131

tical damage, the assessment of which is difficult in the extreme. Never-
theless the majority of the Court has seen fit to recognize that such dam-
age, however uncertain or imprecise it may be, is sufficient to justify
acceding to the request for the indication of provisional measures
without any clear statement of the nature of the rights which have to be
protected or preserved.

Of course, Australia can invoke its sovereignty over its territory and
its right to prevent pollution caused by another State. But when the
French Government also claims to exercise its right of territorial sover-
eignty, by proceeding to carry out tests in its territory, is it possible
legally to deprive it of that right, on account of the mere expression of the
will of Australia?

In my opinion, international law is now, and will be for some time to
come, a law in process of formation, and one which contains only a
concept of responsibility after the fact, unlike municipal law, in which
the possible range of responsibility can be determined with precision a
priori. Whatever those who hold the opposite view may think, each
State is free to act as it thinks fit within the limits of its sovereignty, and
in the event of genuine damage or injury, if the said damage is clearly
established, it owes reparation to the State having suffered that damage.

There is, so far as I am aware, in international law no hierarchy in the
exercise of the right of sovereignty, and the Order issued by the Court
has—at least, for the moment—no legal ground for preventing the
French Government from making use of its right of sovereignty and
exploding an atomic device, as other States have done before it, and as
one other State is still doing at the present time, in order to obtain the
means of ensuring their own security.

Is Australia’s right, in the exercise of its sovereignty, to be regarded as
superior to the identical right possessed by France, which would thus
rank second when it came to exercise of its own right?

By directing the French Government to “avoid nuclear tests causing
the deposit of radio-active fall-out in Australian territory” (operative clause
of the Order; emphasis added), the Court certainly oversteps the limits
of its powers, and appears thereby to be innovating in declaring unlawful
the exercise of a right which up to now has been regarded as falling
within the sovereignty of a State. The Court is not yet a supreme court as
in municipal law, nor does it have legislative powers, and it has no right
to hand down a decision against a State which by a formal declaration
excludes its jurisdiction over disputes concerning activities connected
with national defence.

I entirely agree with Australia that that country runs considerable risk
by seeing atomic fall-out descend upon its territory and seeing its people
suffer the harmful effects thereof, and for my own part, I would like to
see that risk finally exorcised, but I see no existing legal means in the
present state of the law which would authorize a State to come before
the Court asking it to prohibit another State from carrying out on its own
territory such activities, which involve risks to its neighbours.

36
NUCLEAR TESTS (DISS. OP. IGNACIO-PINTO) 132

This is so pertinent that I find it expressed even in the Moscow Treaty
of 5 June 1963, the object of which is in fact the prohibition of atmospher-
ic nuclear tests—the French Government, incidentally, is not a party to
this Treaty—for Article IV thereof embodies a reservation which is so
substantial, probably in order to satisfy the major States which hold the
greatest stocks of nuclear weapons, that the prohibition becomes
practically ineffective. Article IV provides that:

“This Treaty shall be of unlimited duration.

Each Party shall in exercising its national sovereignty have the
right to withdraw from the Treaty if it decides that extraordinary
events, related to the subject matter of this Treaty, have jeopardized
the supreme interests of its country. It shall give notice of such
withdrawal to all other Parties to the Treaty three months in
advance.” (Emphasis added.)

Is it admissible that the reservation effected by these States should
remain valid, so as to authorize them to recommence their nuclear
experiments if extraordinary events should have jeopardized the supreme
interests of their countries, while the Court’s Order forbids France to
exercise its right to carry out its tests at the present time, when no valid
treaty obligation now exists to prevent it from doing so?

Does not the existence of such a treaty, containing such a reservation,
demonstrate the lack of legal basis which should have led the Court to
dismiss the Australian request for the indication of interim measures?

The point is that if the Court were to adopt the contention of the
Australian request it would be near to endorsing a novel conception in
international law whereby States would be forbidden to engage in any
risk-producing activity within the area of their own territorial sovereignty;
but that would amount to granting any State the right to intervene pre-
ventively in the national affairs of other States. Yet Article 2, paragraph 7,
of the Charter is categorical on that point.

In the present state of international law, the “apprehension” of a
State, or “anxiety”, “the risk of atomic radiation”, do not in my view
suffice to substantiate some higher law imposed on all States and limiting
their sovereignty as regards atmospheric nuclear tests.

Those who hold the opposite view may perhaps represent the figure-
heads or vanguard of a system of gradual development of international
law, but it is not admissible to take their wishes into account in order to
modify the present state of the law.

To conclude, there is one consideration which, or so it seems to me,
has not sufficiently been taken into account and which it is important
not to overlook. I refer to the fact that Australia had itself accepted the
conducting by the United Kingdom of nuclear tests above its own
territory, more particularly at Maralinga in South Australia, with

37
NUCLEAR TESTS (DISS. OP. IGNACIO-PINTO) 133

devices notably more powerful than those to be used in the French tests,
which are located in an area over 6,000 kilometres distant from Australia.

If Australia thus allowed the United Kingdom, with its consent, to
proceed to such actions directly above an area subject to its own national
sovereignty, it ought to be declared without title to request that the French
Government be prohibited from acting in the same manner above an
area under French sovereignty.

Consequently, in my opinion, there is no reason to accede to the request
for the indication of provisional measures. The question of the illegality
of nuclear tests exceeds the competence of the Court and becomes, as I
see it, a political problem. No further proof is in my view needed than the
statements of the Prime Minister and Foreign Minister himself in his
Note to the Minister for Foreign Affairs of the French Government,
dated 13 February 1973 (Application, Annex 11, p. 62), in which we find
the following words:

“In my discussion with your Ambassador on 8 February 1973, I
referred to the strength of public opinion in Australia about the
effects of French tests in the Pacific. I explained that the strength of
public opinion was such that, whichever political party was in
Office, it would be under great pressure to take action. The Australian
public would consider it intolerable if the nuclear tests proceeded
during discussions to which the Australian Government had agreed.”

By way of conclusion, I am inclined to think that the decidedly political
character of the case ought, or so it seems to me, to have prompted the
Court to exercise greater circumspection and to have caused it to take the
decision of purely and simply rejecting the request of Australia for the
indication of provisional measures. It is not for the Court to declare
unlawful the act of a State exercising its sovereignty within its own
territorial limits, or at least to lend credence by its decision to the propo-
sition that the act in question is unlawful. It was therefore wrong for
Australia to have secured the benefit of the provisional measures which
it sought, and a violation of Article 2, paragraph 7, of the Charter.

(Signed) L. IGNACIO-PINTO.

38


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

EFFECT OF AWARDS OF
COMPENSATION MADE BY THE UNITED
NATIONS ADMINISTRATIVE TRIBUNAL

(REQUEST FOR ADVISORY OPINION)

ORDER OF JANUARY 14th, 1954

1954

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

EFFET DE JUGEMENTS DU TRIBUNAL
ADMINISTRATIF DES NATIONS UNIES
ACCORDANT INDEMNITE
(REQUETE POUR AVIS CONSULTATIF)

ORDONNANCE DU 14 JANVIER 1954
This Order should be cited as follows :

“Effect of awards of compensation made by the U.N. Administrative
Tribunal, Order of January r4th, 1954: I.C.J. Reports 1954, p. 4.”

La présente ordonnance doit être citée comme suit :

«Effet de jugements du Tribunal administratif des N. U. accordant
indemnité, Ordonnance du 14 janvier 1954: C.I. J.
Recueil 1954, p. 4.»

Sales number 112
Ne de vente:

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1954

I4 janvier 1954

EFFET DE JUGEMENTS DU TRIBUNAL
ADMINISTRATIF DES NATIONS UNIES
ACCORDANT INDEMNITE
(REQUETE POUR AVIS CONSULTATIF)

ORDONNANCE

Le Président de la Cour internationale de Justice,

vu l’article 66, paragraphe 2, du Statut de la Cour ;

Considérant que le 9 décembre 1953 l’Assemblée générale des
Nations Unies a adopté une résolution demandant à la Cour inter-
nationale de Justice de rendre un avis consultatif sur les questions
suivantes :

«1) Vu le Statut du Tribunal administratif des Nations Unies
et tous autres instruments et textes pertinents, l’Assemblée
générale a-t-elle le droit, pour une raison quelconque, de
refuser d'exécuter un jugement du Tribunal accordant une
indemnité à un fonctionnaire des Nations Unies à l’engage-
ment duquel il a été mis fin sans l’assentiment de l'intéressé ?

2) Si la Cour répond par l’affirmative à la question I), quels
sont les principaux motifs sur lesquels l’Assemblée générale
peut se fonder pour exercer légitimement ce droit ? »

Considérant que la copie certifiée conforme des textes anglais et
français de la susdite résolution de l’Assemblée générale a été
transmise à la Cour par une lettre du Secrétaire général des Nations

4

1954
Le 14 janvier
Rôle général
n° 21
JUGEMENTS DU TRIB. ADM. DES N. U. (ORD. DU I4 I 54) 5

Unies du 16 décembre 1953, enregistrée au Greffe le 21 décembre
1953 ;

Fixe au 15 mars 1954 la date d'expiration du délai dans lequel
des exposés écrits peuvent être présentés par tout État admis à
ester devant la Cour et toute organisation internationale jugés par
le Président susceptibles de fournir des renseignements sur les ques-
tions soumises à la Cour ;

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 quatorze janvier mil neuf cent
cinquante-quatre.

Le Président,
(Signé) ARNOLD D. McNarr.

Le Greffier,
(Signé) J. Lopez OLIVAN.


246

SEPARATE OPINION OF JUDGE SCHWEBEL

While I am largely in accord with the Judgment, there are aspects of its
reasoning with which I do not agree. I have particular reservations about
the Court’s treatment of the question of whether, in 1982, it appreciated
that the petroleum concessions of Tunisia and Libya overlapped. When the
Court in 1982 declared that “the phenomenon of actual overlapping of
claims did not appear until 1974, and then only in respect of areas some 50
miles from the coast” — and specified that this was “the actual situation” —
(para. 117), the Court clearly acted on the understanding that, before 1974,
and within 50 miles of the coast, the concessions which had been granted
by Tunisia and by Libya did not overlap. If the Court in 1982 really
understood that there was a measure of overlapping before 1974 within 50
miles of the coast, but nevertheless cast its Judgment in the terms in which
it is cast, those terms are inexplicable. ,

Whatever may have been the understanding of one or more judges, and
whatever exiguous indications the record of the pleadings may reveal of
overlap, it is clear to me, from the language of the Judgment quoted above,
that the Court as a whole when it adopted its 1982 Judgment was under the
impression that there was no “actual overlapping” at the time and in the
zone specified. In its Application for Revision and Interpretation, Tunisia
has demonstrated the error of that impression. Nevertheless, I agree with
the Court in its holding that the request for revision is inadmissible,
because that error is not of such a nature as to be a decisive factor. Had the
Court been actively aware of the minor measure of overlapping which
obtained, that would not have changed the decision of the Court on the
first sector of the delimitation line.

(Signed) Stephen M. SCHWEBEL.

58


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE
DU DIFFEREND TERRITORIAL

(JAMAHIRIYA ARABE LIBYENNE/TCHAD)

ORDONNANCE DU 26 OCTOBRE 1990

1990

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
THE TERRITORIAL DISPUTE

(LIBYAN ARAB JAMAHIRIYA/CHAD)

ORDER OF 26 OCTOBER 1990
Mode officiel de citation :

Différend territorial (Jamahiriya arabe libyenne/Tchad),
ordonnance du 26 octobre 1990, C.L.J. Recueil 1990, p. 149

Official citation :

Territorial Dispute (Libyan Arab Jamahiriya/Chad),
Order of 26 October 1990, I.C.J. Reports 1990, p. 149

N° de vente : 5 89
Sales number

149

INTERNATIONAL COURT OF JUSTICE

YEAR 1990

26 October 1990

CASE CONCERNING
THE TERRITORIAL DISPUTE

(LIBYAN ARAB JAMAHIRIYA/CHAD)

ORDER

Present: President Rupa; Vice-President MBAYE; Judges LACHS, ELIAS,
Opa, AGO, SCHWEBEL, Sir Robert JENNINGS, BEDJAOUI, NI,
EVENSEN, TARASSOV, GUILLAUME, SHAHABUDDEEN, PATHAK;
Registrar VALENCIA-OSPINA.

The International Court of Justice,

Composed as above,
After deliberation,

Makes the following Order:

Having regard to Articles 40 and 48 of the Statute of the Court,
Having regard to Articles 38, 39, 44 and 46 of the Rules of Court; and

Whereas on 31 August 1990 the Government of the Socialist People’s
Libyan Arab Jamahiriya filed in the Registry of the Court a notification,
under Article 40, paragraph 1, of the Statute of the Court, of an agreement
entitled “Framework Agreement on the Peaceful Settlement of the Terri-
torial Dispute between the Great Socialist People’s Libyan Arab Jamahi-
riya and the Republic of Chad”, done in the Arabic and French languages
at Algiers on 31 August 1989, a copy of which was annexed to the notifica-
tion;
TERRITORIAL DISPUTE (ORDER 26 X 90) 150

Whereas the Framework Agreement provides, in Article 1, that

“The two Parties undertake to settle first their territorial dispute by
all political means, including conciliation, within a period of approx-
imately one year, unless the Heads of State otherwise decide”

and, in Article 2, that

“In the absence of a political settlement of their territorial dispute,
the two Parties undertake:

(a) to submit the dispute to the International Court of Justice...”;

Whereas according to the notification

“the question put to the Court may be defined in the following
terms:

‘In further implementation of the Accord-Cadre [Framework
Agreement], and taking into account the territorial dispute
between the Parties, to decide upon the limits of their respective
territories in accordance with the rules of international law appli-

EL

cable in the matter’ ”;

Whereas it was stated in the notification that Mr. Abdulati Ibrahim
El-Obeidi was appointed as Agent of the Libyan Arab Jamahiriya in the
case;

Whereas on 31 August 1990 a certified copy of the notification and
annex was, in accordance with Article 39, paragraph 1, of the Rules of
Court, communicated by the Deputy-Registrar to the Government of
Chad;

Whereas on 1 September 1990 a telefax communication was received in
the Registry of the Court from the Embassy of the Republic of Chad in
Brussels setting out the text of an Application by Chad instituting pro-
ceedings against the Socialist People’s Libyan Arab Jamahiriya; whereas
that Application was based on Article 2 (a) of the “Framework Agree-
ment” and subsidiarily on Article 8 of a Franco-Libyan Treaty of Friend-
ship and Good Neighbourliness of 10 August 1955;

Whereas by that Application the Republic of Chad
“respectfully requests the Court to determine the course of the fron-
tier between the Republic of Chad and the Libyan Arab Jamahiriya,

in accordance with the principles and rules of international law
applicable in the matter as between the Parties”;

Whereas it was stated in the Application that Mr. Abderahman
Dadi was appointed as Agent of the Republic of Chad in the case, and

5
TERRITORIAL DISPUTE (ORDER 26 X 90) 151

whereas Mr. Abdoulaye Lamana was subsequently appointed as Co-
Agent ;

Whereas on 3 September 1990 the Ambassador of the Republic of Chad
to the Netherlands filed in the Registry of the Court the original of the —
said Application;

Whereas the same day a certified copy of the Application was, in
accordance with Article 38, paragraph 4, of the Rules of Court, trans-
mitted by the Registrar to the Libyan Arab Jamahiriya;

Whereas by a letter dated 28 September 1990, received in the Registry
by telefax the same day, and received in original on 5 October 1990, the
Agent of Chad informed the Court {inter alia) that his Government had
noted that “its claim coincides with that contained in the notification
addressed to the Court on 31 August 1990 by the Libyan Arab Jamahi-
riya” and considered that

“those two notifications relate to one single case, referred to the
Court in application of the Algiers Agreement, which constitutes the
Special Agreement, the principal basis of the Court’s jurisdiction to
deal with the matter”;

Whereas a copy of the letter of 28 September 1990 was transmitted by
the Deputy-Registrar to the Agent of the Libyan Arab Jamahiriya;

Whereas at a meeting between the President of the Court and represen-
tatives of the Parties held on 24 October 1990 it was agreed between the
Agents of the Parties that the proceedings in the present case had in effect
been instituted by two successive notifications of the Special Agree-
ment constituted by the “Framework Agreement” of 31 August 1989, that
filed by the Libyan Arab Jamahiriya on 31 August 1990, and the com-
munication from the Republic of Chad filed on 3 September 1990 read
in conjunction with the letter from the Agent of Chad of 28 September
1990, and that the procedure in the case should be determined by the
Court on that basis, pursuant to Article 46, paragraph 2, of the Rules of
Court;

Having ascertained the views of the Parties as to the time-limits for the
written proceedings;

Decides that, as provided in Article 46, paragraph 2, of the Rules of
Court, each Party shall file a Memorial and Counter-Memorial, within
the same time-limit;

Fixes 26 August 1991 as time-limit for the Memorials; and
Reseryes the subsequent procedure for further decision.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this twenty-sixth day of October, one thou-

6
TERRITORIAL DISPUTE (ORDER 26 X 90) 152

sand nine hundred and ninety, in three copies, one of which will be placed
in the archives of the Court and the others transmitted to the Government
of the Socialist People’s Libyan Arab Jamahiriya and the Government of
the Republic of Chad, respectively.

(Signed) José Maria Rupa,
| President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.


66

OBSERVATIONS DE M. RABEL

Tout en me ralliant en général à l'arrêt qui vient d’être
prononcé, je me trouve, à mon regret, en dissentiment avec
lui sur certains points, dont un que je crois devoir relever
ci-après (n° II). Avant de ce faire, je désire expliquer briève-
ment en quel ordre d'idées j’ai adhéré à la solution donnée
par la Cour à la principale des questions relatives à la déter-
mination de l'indemnité due par la Partie défenderesse (n° I).

I. Dans son chapitre III, l’arrêt part de la considération
que si l’expropriation faite par le Gouvernement polonais
avait été licite, l'indemnité due par lui de ce chef correspon-
drait à la valeur qu'avait l’entreprise au moment de la dépos-
‘session, plus les intérêts de cette somme jusqu’au jour du
paiement. L’arrét continue en constatant que cette limitation
de l'indemnité n’est pas admissible dans le cas actuel, étant
donné que le Gouvernement polonais n'avait pas le droit
d’exproprier et que, partant, le Gouvernement allemand a le
droit d’être indemnisé pour toutes les pertes éprouvées par
ses ressortissants, à la suite de la mainmise.

Convaincu de la justesse de ces considérants, j’y ai adhéré,
en pensant que les principes découlant du caractère illicite de
l’expropriation et développés en la suite par l'arrêt, trouvent
leur application pratique toutes les fois que le préjudice causé
se montre supérieur à l'indemnité qui serait due si l’expropria-
tion avait été licite, comme il peut l'être dans le cas actuel.

Il est évident, en effet, que l’expropriateur doit souffrir une
aggravation de sa responsabilité, par le fait du caractère illi-
cite de son acte. Cependant, il est également évident, à mon
avis, que ce caractère illicite de son fait ne saurait jamais
placer Vexpropriateur dans une situation plus favorable et
l’exproprié dans une position plus défavorable, ni en diminuant
les sommes dues ni en alourdissant le fardeau de la preuve
qui incombe au demandeur. Cette thèse, que l'arrêt n’a pas cru
devoir traiter explicitement, me paraît conforme aux principes
généraux du droit. Elle correspond à l’idée que la législation
67 ARRÊT N° 13. — OBSERVATIONS DE M. RABEL

civile allemande, par exemple, a consacrée dans des applica-
tions très claires, à savoir que le caractère illicite d’un acte
comme son caractère dolosif ou fautif, tout en comportant en
principe des aggravations pour les suites de cet acte, laisse
toutefois subsister, en faveur et au choix du lésé, les droits
que cet acte aurait fait naître s’il avait été légitime ou moins
coupable. |

Il me semble, par conséquent, que l'obligation découlant
d’une mainmise illicite peut être simplement formulée de la
manière suivante. Le gouvernement qui a exproprié sans droit
une chose est obligé de payer la valeur de la chose au moment
de la dépossession, augmentée des intérêts de cette somme, et
il est responsable, en outre, du préjudice causé, en tant que
ce préjudice dépasse le montant susindiqué.

Les questions posées par la Cour aux experts donnent satis-
faction à cette manière de voir, bien que, selon moi, elles
ne soient pas en tous points nécessaires et opportunes.

II. — Je ne peux pas me rallier a la décision de la Cour
relative à la question dite de la compensation.

1. Cette question a pris naissance dans une note du Gouver-
nement polonais du 1% février 1927 déclarant que ce Gouver-
nement «est créancier à l'égard de l'Allemagne de différents
montants, dont l’un, résultant des assurances sociales en Haute-
Silésie, a été fixé par sentence de la Société des Nations
à 25 millions de Reichsmarks. Dans ces conditions, la néces-
sité d’une compensation s'impose.» Il est à noter que cette
déclaration se rattachait à la note et à l’aide-mémoire du
Gouvernement allemand du 19 janvier 1927 qui, «dans la
question du mode de paiement, devenue de plus en plus la
question primordiale», exigèrent, «en principe, un paiement
intégral et immédiat » et proposèrent, pour certaines parties du
paiement, la délivrance de lettres de change.

Comme on le voit, le Gouvernement polonais, en faisant
valoir une compensation, ne spécifia point les créances y rela-
tives, sauf la créance qui résulterait des assurances sociales en
Haute-Silésie. Or, le Tribunal arbitral d'interprétation, institué
68 ARRÊT N° 13. — OBSERVATIONS DE M. RABEL

entre la Commission des Réparations et Allemagne pour juger
de différends concernant le plan des experts dit plan Dawes,
avait jugé à la date du 24 mars 1926, avec force de chose
jugée entre l'Allemagne et la Pologne, que le paiement des-
dits 25 millions est compris dans les annuités que le plan
Dawes prescrit à l'Allemagne de faire à l'agent général des
paiements de réparation. Ces annuités consistant dans des
sommes fixées, la prétention du Gouvernement polonais avait
donc pour objet de faire supporter par le Gouvernement alle-
mand, à l'encontre de la sentence du Tribunal arbitral -d’inter-
prétation, la valeur en question en lui faisant perdre l’indem-
nité due pour la dépossession de l’Oberschlesische qui était
constatée par un autre jugement international, savoir l’Arrêt
n° 7 de la Cour.

2. Au cours de la procédure précédant tant l’Arrét n° 8
que le présent arrêt, malgré les invitations adressées à ce sujet
au défendeur par le demandeur et nonobstant les amples
exposés des deux Parties relatifs à la question de la compensa-
tion, le Gouvernement polonais n’a ni excipé de créances
déterminées lui revenant, ni déclaré qu'il renonce à faire valoir
une compensation soit judiciaire soit extra-judiciaire contre le
futur jugement.

Le Gouvernement allemand a insisté dans la procédure à
plusieurs reprises pour que la Cour veuille bien trancher cette
question qui en tant qu'ayant été la véritable cause de la
rupture des négociations diplomatiques est, selon lui, une
question primordiale du procès et sans la décision de laquelle
le litige relatif à l'affaire de Chorzéw ne serait pas réellement
vidé.

3. La Cour est d’avis que la compétence pour juger cette
divergence d'opinions ne lui revient pas sur la base de
l’article 23 de la Convention de Genève.

Il convient d'observer que la conclusion finale de l'arrêt,
en rejetant la conclusion allemande relative à la question de
la compensation et en tant qu’elle est fondée sur ladite opinion,
ne me semble:-pas pouvoir toucher des demandes tendant
directement à ce que le jugement ordonne un paiement
effectif en monnaie. En effet, la Cour, ayant décidé dans son
arrêt que ledit article 23 de la Convention de Genève lui
69 ARRÊT N° 13. — OBSERVATIONS DE M. RABEL

confère la compétence pour déterminer les formes et moda-
lités de la réparation due, semble embrasser sans doute
par cette définition de la compétence la question de savoir
si, dans le cas concret, une indemnité en argent doit être
payée effectivement en monnaie ou autres espèces.

4. L'arrêt s'occupe plutôt de la question abstraite soulevée
par le demandeur de savoir si et dans quelles conditions le
défendeur condamné par un arrêt de la Cour à payer une
certaine somme, peut faire valoir contre cette obligation une
compensation. Cette question, elle encore, me semble entrer
dans la procédure actuelle et ne pas viser un point nécessaire-
ment distinct de celle-ci et qui n’appartiendrait donc qu’à
un stade postérieur au jugement.

Le jugement de condamnation crée une obligation et il en
fixe le contenu. Dans un système de droit national, le juge
peut et doit se borner à certaines locutions techniques qu’on
pourra éclairer à la lumière des dispositions de la législation
nationale. C'est ainsi que les dispositions de la loi nationale
viendront préciser ce qu’il faut entendre par un paiement
ordonné au défendeur et si et sous quelles conditions, spéciale-
ment, une compensation vaut paiement en monnaie de la
dette judiciaire. Si, au contraire, dans un procès international,
il est litigieux entre les Parties de savoir quel acte sera de-
mandé par le jugement au défendeur, il me semble appartenir
à ce jugement d’éclaircir la nature de cet acte, afin d'éviter
toute équivoque possible. '

Quant aux autres conditions juridiques nécessaires, pour.
faire droit à la demande en question, je me borne à faire.
remarquer qu’elles aussi, à mon avis, sont remplies dans le
cas actuel.

(Signé) E. RABEL.