95

DISSENTING OPINION OF SIR HERSCH LAUTERPACHT

In its Judgment, after rejecting three preliminary objections of
the United States of America, the Court has declared the Application
of the Government of Switzerland to be inadmissible on account of
non-exhaustion of local remedies in the courts of the United States.
By doing so the Court has assumed jurisdiction both in the present
case and in any future case connected with the present proceedings
after the local remedies have been exhausted. In my view, there
being before the Court no valid declaration of acceptance of its
jurisdiction and no voluntary submission to it, the Court is not in
a position to exercise any kind of jurisdiction over this case, in-
cluding that of declaring the claim to be inadmissible. The same—
subject to one exception—applies to its jurisdiction to decide on
any of the preliminary objections. That exception arises from the
objection based on the so-called automatic reservation which
- peremptorily and decisively rules out any jurisdiction of the Court
with regard to a crucial aspect of the dispute and which renders the
other objections irrelevant. That objection also necessarily involves
the question of the validity of the Declaration of Acceptance of the
defendant State.

#*
* *

In its Application of October 2nd, 1957, instituting proceedings in
the present case the Government of Switzerland asked the Court
to adjudge and declare that

‘“(x) the Government of the United States of America is under an
obligation to restore the assets of the Société internationale pour
participations industrielles et commerciales S. A. (Interhandel)
to that company;

(2) in the alternative, that the dispute is one which is fit for sub-
mission for judicial settlement, arbitration or conciliation under
the conditions which it will be for the Court to determine.”

In its Memorial and its Observations on the Preliminary Objections
of the United States the Government of Switzerland elaborated and
amplified the above principal requests formulated in the Application.
However, the substance of the Application—namely, the restitution
of the assets of Interhandel and the obligation of the Govern-
ment of the United States to submit the dispute to arbitration
or conciliation—has remained unchanged. The successive formula-
tions of the Swiss Conclusions are reproduced in the Judgment of
the Court.

The Government of Switzerland has invoked the jurisdiction of
the Court in reliance upon the Declaration of Acceptance, which

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took effect on August 26th, 1946, of the jurisdiction of the Court on
the part of the United States, as well as upon its own Declaration of
Acceptance of July 28th, 1948. Paragraph 2 (6) of the Declaration of
Acceptance of the United States provided that the Declaration shall
not apply to “disputes with regard to matters which are essentially
within the domestic jurisdiction of the United States of America as
determined by the United States of America’.

In its Preliminary Objections the Government of the United
States invoked the reservation thus formulated. It stated there,
in Part (a) of the Fourth Preliminary Objection, as follows:

“(a) The sale or disposition by the Government of the United
States of America of the stock in General Aniline & Film Corpo-
ration, vested as enemy assets under the United States Trading
with the Enemy Act, has been determined by the United States
of America, pursuant to paragraph (6) of the Conditions attached
to this country’s acceptance of the Court’s compulsory jurisdiction
to be a matter essentially within the domestic jurisdiction of the
United States. Accordingly, pursuant to paragraph (0) of the said
Conditions, the United States of America respectfully declines to
submit to the jurisdiction of the Court the matter of the sale or
disposition of such shares, including the passing of good and clear
title to any person or entity. Such determination by the United
States of America that the sale or disposition by the Government
of the United States of the stock in General Aniline & Film Corpo-
ration is a matter essentially within its domestic jurisdiction applies
to all the issues raised in the Swiss Application and Memorial,
including, but not limited to, the Swiss-United States Treaty of
Arbitration and Conciliation of 1931 and the Washington Accord
of 1946.”

In the course of the Oral Hearing the Agent of the United States of
America formally maintained that preliminary objection both in
his opening statement and in his Reply. However, while doing so, he
drew the attention of the Court to the fact that according to the
law of the United States the Government of the United States could
not dispose of the assets of Interhandel so long as the case was
pending before the courts of the United States. For that reason
he suggested that, at the present stage of the proceedings before
this Court, that preliminary objection was “‘moot’’—1.e., apparent-
ly, without practical importance. Nevertheless, in his Reply, while
insisting that that objection “is somewhat moot in the case at
this time”, he formally reiterated that objection and asked the
Court ‘‘to judge and decide as there requested”. He had previously
said: |
“Our use of the automatic reservation limited to the sale or
disposition of the G.A.F. vested shares is not arbitrary; the Court
has never examined and we assume will not examine into the
motives which lead nations to exercise the automatic reservation.”

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97 INTERHANDEL (DISS. OP. SIR HERSCH LAUTERPACHT)

It may be added that the Government of the United States had,
on a previous occasion, invoked that reservation in connection
with—and as a reason of its opposition tothe request submitted
by the Government of Switzerland for an indication of provisional
measures of protection. The Court, in its Order of October 24th,
1957, declined—for reasons not connected with that reservation—to
indicate preliminary measures there requested (7.C.J. Reports 1957,

p. 105).

3. * Ù
* +

In the case now before the Court the Government of the United
States has invoked the automatic reservation only in the matter of
the sale and disposition of the assets of Interhandel, but not
with regard to certain other aspects of the dispute, in particular the
legality of the original seizure of the assets of the Company. The
Government of the United States has, in repeated statements,
attached importance to that limitation of its reliance on the
“automatic reservation”. However, it does not appear that any
such differentiation corresponds to the terms or objects of the
application of the Swiss Government or that it is of decisive prac-
tical or legal importance. The Swiss Application asks the Court to
declare and adjudicate that the “Government of the United States
of America is under an obligation to restore the assets of Inter-
handel”. Now it is clear that if the Government of the United States,
in reliance upon the automatic reservation, proceeds to sell or
otherwise to dispose of the assets of Interhandel, notwith-
standing any judgment of or proceedings before this Court, it will
not be in the position “to restore the assets’ of Interhandel.
It may, in pursuance of any judgment of the Court, offer to pay
compensation in place of the assets to be restored. Yet that is not
the object of the Swiss Application which asks for the restoration
of the assets—with the concomitant and, in the estimation of the
Swiss Government, essential rights of control over the affairs of
Interhandel.

In view of this, no decisive importance attaches to the fact that
the Government of the United States has refrained from invoking
the reservation in question with regard to the original seizure and
subsequent retention of the stock of Interhandel—an aspect of the
question which does not appear in the application of the Swiss
Government; with regard to that question the United States, in
Objection 4 (6), challenges the jurisdiction of the Court as being
a matter which according to international law—though not accord-
ing to the determination of the United States—is within its
domestic jurisdiction. The more relevant fact is that the automatic
reservation invoked in Objection 4 (a) has been invoked with
regard to the exclusive subject-matter of the Application and the
principal Conclusion advanced by the applicant Government.

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98 INTERHANDEL (DISS. OP. SIR HERSCH LAUTERPACHT)

Moreover, in so far as there arises in the present case the question
of the validity of the automatic reservation and of the Declaration
as a whole—and it is these questions which inevitably call for an
answer before the Court can in any way assume jurisdiction in the
matter, even to the extent of deciding on the other preliminary
objections—it seems immaterial whether the automatic reservation
covers all or merely one aspect of the case.

The same considerations apply to the alternative request and
conclusion of the Swiss Government, namely, that relating to the
obligation of the United States to submit the dispute to the pro-
cedures of arbitration or conciliation. As the Preliminary Objection
4 (a)—the objection which invokes the automatic reservation—
of the United States is specifically stated to apply also to the ques-
tion of arbitration and conciliation, it is impossible for the Court to
_ declare itself competent to decide on that aspect of the Swiss

Application without assuming a position in relation to the validity
of the automatic reservation and of the Declaration of Acceptance
as such. If that reservation is effective then it is impossible for
the Court to declare that the United States is bound to submit the
entire dispute to arbitration or conciliation for in that case—that
is to say, if the automatic reservation is valid—an arbitration
tribunal or conciliation commission has no power to decide or to
make recommendations on the main Swiss Application and Con-
clusion, namely, the obligation of the United States to restore the
assets of Interhandel. The Court can assume jurisdiction with
regard to the obligation of arbitration or conciliation only on the
assumption that the reservation in question is ineffective and
invalid or that it has been unreasonably invoked and must therefore
be disregarded for these reasons or at least that it is within the
power of the arbitration tribunal or conciliation commission to
disregard that reservation on these grounds. The same applies, for
reasons which will be stated presently, to the request to join this
aspect of the dispute to the merits. The Court cannot, at any stage
of the proceedings, act without regard to the instrument which
purports to confer jurisdiction upon it or, for reasons outside the
realm of legal considerations, postpone a decision on the subject.

Neither can the Court consider itself to be relieved of that duty
for the reason that the Government which has made the automatic
reservation part of its Declaration of Acceptance and which
formally maintains it, as does the defendant Government in the
present case, finds it opportune at a particular stage of the pro-
ceedings to describe it as being of no practical importance—as
being ‘“‘moot’’. This is so for reasons more cogent than that a
Government cannot formally maintain an objection and at the
same time invite the Court to treat it as being of no importance.
If that objection is maintained and if it is not dismissed by the

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99 INTERHANDEL (DISS. OP. SIR HERSCH LAUTERPACHT)

Court, it can subsequently be acted upon by the interested Govern-
ment whenever it deems it convenient to do so. In the present case
it has been submitted on behalf of the Government of the United
States that it is prevented by the law of the United States from
selling or otherwise disposing of the assets of Interhandel so
long as a final decision of an American court has not declared these
assets to be validly vested in the United States of America. Yet
there is room for the possibility that, unless the automatic reser-
vation has been withdrawn by the United States, or declared
invalid by the Court, the Government of the United States may
be at liberty, subsequent to any such final decision of its courts
in its favour, to proceed to sell or otherwise dispose of the assets
of Interhandel notwithstanding any judgment of the Court declaring
itself competent with regard either to the principal request or the
subsidiary request relating to arbitration or merely declaring the
application inadmissible pending the exhaustion of local remedies
before American courts. It is not certain to what extent the Govern-
ment of the United States of America could be prevented from
doing so as the result of any indication of provisional measures of
protection—assuming that the sale had not been accomplished
with utmost expedition prior to any request for interim measures—
seeing that the United States has invoked the automatic reservation
as applying to all aspects and stages of the dispute. The possibility
cannot be ruled out, although it cannot fittingly be anticipated, of
a change in the law of the United States which at present prevents
the Government from selling the assets of Interhandel prior to
a final decision of American courts.

_ For these reasons, whatever may be the accuracy of the suggestion
advanced on behalf of the United States of America that the
question of the automatic reservation ‘had become moot” at the
present stage of the proceedings, a proper administration of justice
requires that its validity—as well as, in that connection, that of
the Declaration of Acceptance as a whole—must be decided at
the very first stage of the proceedings before the Court. The auto-
matic reservation has been invoked by the defendant State; it has
been maintained by it; it has been challenged by the applicant
State; it is of immediate legal relevance. There is, therefore, no
room for accepting the submission of the Government of the United
States of America that the question of the automatic reservation,
having somehow become ‘‘moot’’, should be postponed to a further
stage of the proceedings.

The same considerations render it impossible to accede to the
submission of the Government of Switzerland that that objection
be joined to the merits. The objection based on the automatic
reservation cannot be properly joined to merits for the reason that
being of a formal and peremptory character, namely, being depen-

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100 INTERHANDEL (DISS. OP. SIR HERSCH LAUTERPACHT)

dent solely upon the determination by the United States, it cannot
by definition be examined upon its merits in relation to the substance
of the dispute. For it operates automatically, irrespective of the
merits of the dispute, by its own propulsion—as it were—as the
result of the physical act of having been invoked. This is so unless
the Court decides, at the very first stage of the proceedings, that
the question of the reasonableness and good faith of the reliance
on the automatic reservation must in any case be within the juris-
diction of the Court. For these reasons, the Court has, in my view,
no power to declare itself competent to consider, either directly or
by joining it to the merits, the subsidiary request of the Swiss
Government relating to the obligation of the United States of
America in the matter of arbitration or conciliation until it has
decided that the automatic reservation is invalid; and cannot be
acted upon, or that, if valid, the Court has the power to pass in
every individual case upon the propriety of the action of the
Government which invokes it. For, as noted, the Government of
the United States has expressly declared that the objection based
on the automatic reservation applies also to the question of arbi-
tration and conciliation. The Court cannot properly declare itself
competent or, by joining the objection to the merits, envisage such
competence, without examining the principal and fundamental
questions decisive for the very possibility of its competence.

These considerations are also relevant to the preliminary ob-
jection of the Government of the United States relating to the non-
exhaustion of local remedies. Any decision of the Court allowing
that objection implies an assumption of the jurisdiction of the
Court both at the present stage and for the future in the event if,
after the local remedies have been unsuccessfully exhausted,
Switzerland once more submits her application to the Court.
A Judgment of the Court, based on the fact of non-exhaustion of
local remedies, implies the assurance to the applicant State that,
once it has done its best to exhaust local remedies, the Court will
proceed to the adjudication of the dispute on the merits—unhamp-
ered by any other objections to its jurisdiction. There would
otherwise be no point in requiring the injured party to exhaust
local remedies—only, once it had done so, to see its claim defeated
on account of some other preliminary objection. It is largely for
that reason that according to the established practice of the Court
preliminary objections must be examined—and rejected—before
the plea of admissibility is examined. If this is so, then the very
decision of the Court declaring the application to be non-admissible
on account of non-exhaustion of local remedies calls for—it implies
—a previous decision as to the validity of the automatic reservation
and of the manner in which it has been invoked.

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rol INTERHANDEL (DISS. OP. SIR HERSCH LAUTERPACHT)

*
* *

Moreover—and this is the crucial aspect of the jurisdictional
issue before the Court—the automatic reservation now invoked by
the United States of America and contained in its Declaration of
Acceptance raises, for reasons to be outlined presently, the question
of the effectiveness and validity of that Declaration of Acceptance
as a whole. Upon the answer to that question depends whether it
is possible for the Court to enquire into any preliminary objection
other than that based on the automatic reservation. If the Court
is not confronted with an effective and valid Declaration of Accept-
ance, there is no object in examining any other preliminary ob-
jections.

In my judgment, there is not before the Court a legally effective
and valid Declaration of Acceptance by reference to which it is in
the position to assume jurisdiction with regard to any aspect of
the dispute or by reference to which it is incumbent upon it—or
permissible for it—to examine any preliminary objection other
than that relying upon the automatic reservation. In my view, the
Government of the United States, having in its Declaration of
Acceptance of August 26th, 1946, purported to accept the jurisdiction
of the Court subject to the reservation of matters essentially within
the domestic jurisdiction of the United States as determined by
the Government of the United States, did not, in legal effect,
become a party to an instrument which confers upon it rights
and which imposes upon it obligations. This is so for the following
reasons:

(a) the reservation in question, while constituting an essential
part of the Declaration of Acceptance, is contrary to paragraph 6
of Article 36 of the Statute of the Court; it cannot, accordingly,
be acted upon by the Court; which means that it is invalid;

(6) that, irrespective of its inconsistency with the Statute, that
reservation by effectively conferring upon the Government of the
United States the right to determine with finality whether in any
particular case it is under an obligation to accept the jurisdiction
of the Court, deprives the Declaration of Acceptance of the charac-
ter of a legal instrument, cognizable before a judicial tribunal,
expressing legal rights and obligations;

(c) that reservation, being an essential part of the Declaration of
Acceptance, cannot be separated from it so as to remove from the
Declaration the vitiating element of inconsistency with the Statute
and of the absence of a legal obligation. The Government of the
United States, not having in law become a party, through the pur-
ported Declaration of Acceptance, to the system of the Optional
Clause of Article 36 (2) of the Statute, cannot invoke it as an appli-
cant; neither can it be cited before the Court as defendant by refer-
ence to its Declaration of Acceptance. Accordingly, there being

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before the Court no valid Declaration of Acceptance, the Court
cannot act upon it in any way—even to the extent of examin-
ing objections to admissibility and jurisdiction other than that
expressed in the automatic reservation.

In some, but not all, respects, the position in the case now
before the Court is the same as in the case of Certain Norwegian
Loans in which, however, it was the defendant State which, availing
itself of the operation of the principle of reciprocity, invoked the
automatic reservation incorporated in the Declaration of Acceptance
of the applicant Government. In that case the Court in refraining
from entering into the question of the validity of the automatic
reservation and of the Declaration of Acceptance attached import-
ance to the fact that these questions were not put in issue by
either Party. In my Separate Opinion in that case I expressed
the view that the validity of the instrument invoked as a basis
of the jurisdiction of the Court’ must be a matter for the decision
of the Court proprio motu regardless of whether that issue has
been raised by the parties (I.C.J. Reports 1957, p. 61). In the pre-
sent case both the validity of the automatic reservation and the
manner of its exercise have been challenged by the applicant
State. Upon the answer to these challenges depends the decision
of the Court upon one of the vital aspects of its jurisdiction. More-
over, the answer of the Court to the challenge to the validity of the
automatic reservation inevitably raises the issue of the effectiveness
and the validity of the Declaration of Acceptance as a basis of any
pronouncement of the Court on any aspect either of jurisdiction
or of the merits. Whatever may be the inconvenience and the diffi-
culties, from various points of view, of a decision on these questions,
it is not possible for a judicial tribunal to postpone it.

* * *

My view as to the validity of the automatic reservation and of the
Declaration of Acceptance which incorporates it, is the same as that
expressed in my Separate Opinion in the case of Certain Norwegian
Loans. In order to avoid repetition I must refer generally to
that Opinion for a more detailed exposition of some of the grounds
on which my conclusions in the present case are based. However,
the present case is concerned with different parties, one of which
is the United States of America—a party which has invoked and
maintained the automatic reservation incorporated in its Declara-
tion of Acceptance. Having regard to the long association of the
United States of America with this type of reservation and to the
availability of evidence surrounding the circumstances of its
adoption by that State in its Declaration of Acceptance, it is ne-
cessary to review some aspects of that Opinion in the light of the
above circumstance. On page 57 of that Opinion J stated as follows:

100
103 INTERHANDEL (DISS. OP. SIR HERSCH LAUTERPACHT)

“As is well known, that particular limitation is, substantially,
a repetition of the formula adopted, after considerable discussion,
by the Senate of the United States of America in giving its consent
and advice to the acceptance, in 1946, of the Optional Clause by
that country. That instrument is not before the Court and it would
not be proper for me to comment upon it-except to the extent of
noting that the reservation in question was included therein having
regard to the decisive importance attached to it and notwithstanding
the doubts, expressed in various quarters, as to its consistency
with the Statute.”

No such considerations obtain in the present case. On the con-
trary, the historic antecedents surrounding the adoption of that
Declaration of Acceptance are directly relevant to its interpretation.

It is convenient, before proceeding, to state the meaning of the
expression “‘automatic reservation”. That expression is intended to
convey that once that reservation has been invoked by the Govern-
ment in question the part of the Court is limited to the automatic
function of registering the fact that the reservation has been invoked
and that the Court is bound to hold, without examining its merits,
that it is without jurisdiction.

*

* *

In the Separate Opinion in the Norwegian Loans case I stated (on
p. 43) as follows my view that it was not open to the Court to act
upon the “automatic” reservation:

“T consider it legally impossible for the Court to act in disregard
of its Statute which imposes upon it the duty and confers upon it
the right to determine its jurisdiction. That right cannot be exercised
by a party to the dispute. The Court cannot, in any circumstances,
treat as admissible the claim that the parties have accepted its
jurisdiction subject to the condition that they, and not the Court,
will decide on its jurisdiction. To do so is in my view contrary to
Article 36 (6) of the Statute which, without any qualification,
confers upon the Court the right and imposes upon it the duty to
determine its jurisdiction. Moreover, it is also contrary to Article 1
of the Statute of the Court and Article 92 of the Charter of the
United Nations which lay down that the Court shall function in
accordance with the provisions of its Statute.”’

It is not necessary to reiterate here in detail the reasons formu-
lated in that Opinion and substantiating the view that the auto-
matic reservation is contrary to the Statute. They include some such
considerations as that if the Court must treat as binding the
determination by one of the parties to the effect that the Court is
without jurisdiction then the Court cannot exercise the duty im-
posed upon it by Article 36 (6) of the Statute (except for registering,

TOI
104 INTERHANDEL (DISS. OP. SIR HERSCH LAUTERPACHT)

by way of a necessarily automatic act, the fact that it is without
jurisdiction for the reason that a party to the dispute has so deter-
mined) ; that the Court, as shown by its practice and as indicated
by compelling legal principle, cannot act otherwise than in accord-
ance with its Statute, of which it is the guardian; that while gov-
ernments are free not to accept the jurisdiction of the Court at all
or to accept it subject to reservations and limitations, they cannot
do so in derogation of express provisions of the Statute; and that that
applies with special force to a provision of the Statute relating to
an indispensable—and, indeed, obvious—safeguard of such com-
pulsory jurisdiction as may, by their own free will, be accepted by
the parties to the Statute.

“Article 36 (2) speaks of the recognition by the parties to the
Statute of the ‘compulsory’ jurisdiction of the Court. But there is
no question of compulsory jurisdiction if, after the dispute has
arisen and after it has been brought before the Court, the defendant
State is entitled to decide whether the Court has jurisdiction.”

(I.C.J. Reports 1957, at p. 47.)

The Court is the guardian of its Statute. It is not within its
power to abandon, in deference to a reservation made by a party, a
function which by virtue of an express provision of the Statute is an
essential safeguard of its compulsory jurisdiction. This is so in
particular in view of the fact that the principle enshrined in Article
36 (6) of the Statute is declaratory of one of the most firmly estab-
lished principles of international arbitral and judicial practice.
That principle is that, in the matter of its jurisdiction, an inter-
national tribunal, and not the interested party, has the power of
decision whether the dispute before it is covered by the instrument
creating its jurisdiction.

What is the legal meaning of the fact that the Court is unable
to act upon—that it is by its Statute precluded from acting upon—
the “automatic” reservation? The legal meaning of that fact is that
the reservation in question is invalid, that is to say, that the
Court being bound by its Statute is not in a position to apply it;
that that reservation is therefore without force and legal effect.
There is no element of disapproval or adverse moral or legal judg-
ment, offensive to the dignity of a sovereign State, in a proposition
of that nature. Invalidity, in the contemplation of the law, is
nothing else than inherent incapacity to produce legal results.
Sovereign States are free to append to their Acceptance any kind
of reservation or limitation—subject only to the qualification that
reservations and limitations which are contrary to the Statute
cannot be acted upon by the Court. There is otherwise no element
of illegality in an Acceptance of that character. The Court is not
concerned. with the political implications of, and possible objections
to, a Declaration which, while in law incapable of achieving that
object, purports to give expression and support to the principle of

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105 INTERHANDEL (DISS. OP. SIR HERSCH LAUTERPACHT)

obligatory judicial settlement of disputes between nations. Neither
is the Court called upon to examine in detail arguments of some
dialectical complexion intended to infuse into such Declaration an
element of consistency with the Statute—such as that by per-
forming the automatic function of registering the determination
made by the State in question that a matter is essentially within
its domestic jurisdiction the Court in law exercises the substantive
and decisive function entrusted to it by Article 36 (6) of the Statute.

It is impossible for the Court to attach importance to the ar-
gument that as Governments are free to accept or not to accept
the obligations of the Optional Clause of Article 36 of the Statute,
they are free to do so subject to reservations of their unlimited
free choice. A person or a State may be free to join an association
or to accede to a treaty. This does not mean that they are entitled
to join or accede on their own terms in disregard of the rules of the
association or of the provisions of the treaty. Governments possess
no unlimited right to make reservations. In the Advisory Opinion on
the Reservations to the Genocide Convention the Court rejected the
contention that the unanimous consent of all parties to the treaty
is necessary to enable the State to become a party to the treaty sub-
ject to a reservation. But the Court equally declined to accept the
view that the right to append reservations is unlimited. On the
contrary, it made “the compatibility of a reservation with the
object and purpose of the Convention” the decisive test of their
admissibility (7.C./. Reports 1957, p. 24). It said: “The object and
purpose of the Convention thus limit both the freedom of making
reservations and that of objecting to them” (at p. 24). It is for that
reason that while most of the recent conventions allow reservations
to their articles, they expressly exclude them with regard to some
of the essential articles of the Convention. Of that practice, the
Conventions of 1958 relating to the law of the sea provide an in-
structive example. This applies also to conventions regulating
subjects of limited scope such as the Convention of July 28th, 1951,
relating to the Status of Refugees (Article 42 of the Convention).

It must be noted that, unlike in the case of some other States
which adhered to the system of the Optional Clause subject to the
automatic reservation, in the case of the United States of America
the question of the conformity of that reservation with the Statute
of the Court was clearly present to the minds of, and discussed by,
the members of the legislative organ responsible for that reservation.
In fact that question constituted the main and most prominent
subject of the discussion in the Senate (see Congressional Record,
Vol. 92 (1946), p. 10763 (Senator Donnell) ; 2h24. (Senator Connally) ;
pp. 10764 and 10770 (Senator Morse); p. 10837 (Senator Pepper) ;
pp. 10837-10839 (a general discussion) ; p. 10840 (Senator Donnell).

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There is thus no question here of a State being confronted with
the consequences of an action the legal import of which was not
clear to the organ responsible for it. This is so quite apart from the
fact, to which detailed reference is made elsewhere in the present
Opinion, that that action—approved by a very substantial majority
of fifty-one votes to twelve—was in keeping with the continuous
attitude of the legislative organ in question to obligatory arbitral
and judicial settlement in so far as it concerns the United States
of America.

*
* *

The second ground why, apart from its inconsistency with the
Statute, it is impossible for the Court to apply the reservation in
question is that, in consequence thereof, the instrument in which
it is contained is not an instrument conferring legal rights and
creating legal obligations. This is so for the reason that a purported
undertaking in which one party reserves for itself the exclusive
right to determine the extent or the very existence of its obligation
is not a legal undertaking and that the instrument embodying
it is not a legal instrument cognizable before a court of law. That
aspect of the question is elaborated on pages 43-48 of my Separate
Opinion in the case of Certain Norwegian Loans and it is
not therefore necessary to repeat here the views there expressed,
in particular those derived from general principles of law applicable
alike to all instruments, whether bilateral or unilateral, intended
to create legal rights and obligations. The only elaboration that
is required in this connection of that view is that dictated by the
fact that the automatic reservation now before the Court is one
incorporated in the Declaration of Acceptance of the United States
of America.

The insistence on the right of unilateral determination of the
existence of a legal obligation to submit a dispute to arbitral or
judicial settlement has been the unvarying feature of the practice
of the United States and, in particular, of the branch of the Govern-
ment of the United States endowed by the Constitution with the
power of decisive participation in the process of ratification of
treaties. Although occasionally, in treaties other than treaties
providing generally for compulsory arbitral or judicial settlement,
the United States of America has accepted in advance the juris-
diction of international tribunals in the matter of the interpretation
and the application of those treaties, including necessarily those
relating to the jurisdiction of those tribunals to determine their
competence when acting in that capacity, it has been unwilling to
do so with regard to treaties providing generally for obligatory
arbitral or judicial settlement. With regard to those treaties the
consistent attitude of the legislative body entrusted by the Con-

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stitution with advising and consenting to ratification has been to
reserve the right, for itself or the United States generally, to
determine with regard to any particular dispute whether there
rested upon the United States the obligation of arbitral or judicial
settlement as generally provided for in the instrument.

As already stated, any such condition must be considered to
constitute, in terms of law, a denial of the legal obligation of
compulsory judicial or arbitral settlement. However, that has been
the attitude of the United States both generally and in relation to
the particular instrument now before the Court, namely, the
Declaration of Acceptance of August 26th, 1946. The United States
of America has accepted the obligations of Article 36 (2) of the
Statute on condition that in any particular case it is for the Govern-
ment of the United States of America, and not for the International
Court of Justice, to determine whether a matter is essentially within
the domestic jurisdiction of the United States of America. That
condition, covering as it does a potentially all-comprehensive
category of disputes relating to matters essentially within domestic
jurisdiction, has replaced—in addition to another wide reservation
in the American Declaration of Acceptance relating to the inter-
pretation of multilateral treaties—the traditional formula requiring
the consent of the Senate, or of the Government of the United
States of America, to the submission of any particular dispute
to the international tribunal. This Court, whose jurisdiction is
grounded solely and exclusively in the consent of the defendant
State, must respect that essential condition of the Declaration of
Acceptance.

*
* *

It is of importance, as showing both the consistency of the
determination of the United States of America to preserve the
ultimate power of decision with regard to its commitments on the
subject and the absolute character of that condition, to review
some of the principal events in the history of the attempts, since
the beginning of the modern practice of compulsory arbitration at
the end of the nineteenth century, to associate the United States
of America with the practice of compulsory judicial and arbitral
settlement.

On January 11th, 1897, a general treaty of arbitration was signed
between the United States of America and Great Britain containing
provisions for the adjudication of disputes concerning pecuniary
claims against either Party and controversies involving the deter-
mination of “territorial claims”. Provisions of some stringency
surrounded both groups of disputes. Thus with regard to territorial
claims it was laid down that disputes shall be submitted to a
tribunal composed of six members, three of whom were to be judges
of the Supreme Court of the United States or of the circuit courts

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and the other three were to be judges of the British Supreme Court
of Judicature or members of the Judicial Committee of the Privy
Council. It was laid down that only an award given by a majority
of not less than five to one was to be final (unless within three
months either party protested against it). Moreover, it was provided
that, in case one of the tribunals, constituted for the decision of
matters not involving the determination of territorial claims, should
decide that the determination of the case before it necessarily
involved ‘‘the decision of a disputed question of principle of grave
general importance affecting the national rights of such party as
distinguished from the private rights whereof it is merely the inter-
national representative”, the jurisdiction of the tribunal should
cease and the case should “be dealt with in the same manner as
if it involved the determination of a territorial claim’ (Moore,
A Digest of International Law, Vol. VII (1906), p. 77). Notwith-
standing these safeguards the Senate declined to give its consent
to the treaty.

In 1904 and 1905 the Government of the United States, following
the pattern of the arbitration treaty concluded in 1903 between
Great Britain and France, negotiated arbitration treaties with a
number of States, including France, Switzerland, Great Britain,
Italy, and Mexico. The treaties contained the then customary
reservations of vital interests, independence and national honour.
The Senate amended these treaties by stipulating that the ‘‘special
agreement” therein provided in respect of any particular dispute
should be in the form of a treaty requiring the consent and advice
of two-thirds of the Senate (Congressional Record, February 13th,
1905, p. 2477).

When in 1907 the United States signed the Hague Convention
on Pacific Settlement of International Disputes, the “advice and
consent” in respect of ratification was given by the Senate subject
to the “understanding” in the matter of Article 53 of the Convention
relating to the formulation of the “compromis” by the tribunal in
case the parties are unable to agree on the subject; the “‘under-
standing” expressly excluded from the competence of the Permanent
Court of Arbitration the power to frame the “compromis’’ (Malloy,
Treaties between the United States and Other Powers, Vol. IL (1910),
pp. 2247, 2248). |

On August 3rd, 1913, the Government of the United States, in an
effort to achieve a measure of obligatory arbitration, signed two
bilateral general arbitration treaties—commonly known as the
Taft-Knox treaties—providing for submission to arbitration of
disputes involving a “claim of right” made by one party against
another and “‘justiciable in their nature by reason of being suscept-
ible of decision by the application of the principles of law or equity’”’.
The treaties, which in each case provided for a special agreement,
laid down that should the parties disagree as to whether a dispute

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is justiciable the question of justiciability should be submitted to
a Joint High Commission of Enquiry and that the dispute should
proceed to arbitration only if all but one members of the Commission
reported that the dispute was justiciable. The Senate amended the
treaties but substituted the term ‘‘treaty’’—requiring the consent
of two-thirds of the Senate—for “agreement” in relation to the
requirement of special agreement; it struck out the provisions
relating to determination of the matter by the Joint Commission.
Thereupon the Government of the United States abstained from
proceeding with the ratification of those treaties (S. Doc. 476;
62nd Congress, Ist and 2nd Sessions).

On occasions the power of final decision on the part of the Senate
has been reserved even in bilateral treaties limited to arbitral
settlement of pecuniary claims. This was the case in the Special
Agreement of August 18th, 1910, between the United States of
America and Great Britain providing for the submission to arbitra-
tion of pecuniary claims between the two countries. Article 1 of that
Agreement provided that the claims submitted to arbitration ‘‘shall
be grouped in one or more schedules which, on the part of the
United States, shall be agreed on by and with the advice and
consent of the Senate” (International Arbitral Awards, Vol. VI, p. 9).

At the close of the First World War the insistence on the right
of final determination with regard to matters of domestic juris-
diction showed itself, in a different sphere, in the fifth reservation of
the “Lodge reservations” approved by the Senate on November 13th,
1919, in connection with the Treaty of Versailles and the Covenant
of the League of Nations. The Senate reserved to the United States
“exclusively the right to decide what questions are within its
domestic jurisdiction’.

Similar considerations, as shown by a study of the record of the
discussions in the Senate, underlay the principal reservation of the
United States when on January 27th, 1926, the Senate passed a
Resolution consenting to the adherence of the United States to
the Statute of the Permanent Court of International Justice. That
reservation provided that the Court shall not entertain without the
consent of the United States a request for an advisory opinion
touching any dispute or question in which the United States had
or claimed to have an interest. Members of the League of Nations
were not in a position to accept the reservation in that form and,
in consequence, the United States did not become a party to the
Statute (League of Nations, Official Journal, Suppl. 75, p. 122;
Official Journal, 1929, p. 1857).

The insistence on the part of the United States, in the matter
of treaties of obligatory arbitration and judicial settlement, that
it must reserve for itself the ultimate right to determine the
existence of the obligation to submit a particular dispute to arbi-

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L]

tration or judicial settlement continued to manifest itself in the
period preceding and following the Second World War. Between
1928 and 1931 the United States concluded a large number of
arbitration treaties—nearly thirty of them, including the Treaty
with Switzerland of February 16th, 1931—which, while invariably
incorporating the reservation of matters which are “within the
domestic jurisdiction of either of the Contracting Parties”, provided
at the same time for the necessity of a special agreement in each
case. Such agreement was ‘‘in each case [to] be made on the part of
the United States of America by the President thereof, by and
with the advice and consent of Senate”.

On January 5th, 1929, the United States of America signed the
General Treaty of Inter-American Arbitration—a treaty which
contained the reservation relating to disputes “which are within
the domestic jurisdiction of any of the Parties to the dispute and
are not controlled by international law’. The following ‘‘under-
standing” was made part of the ratification of the United States of
America: “that the special agreement in each case shall be made only
by the President, and then only by and with the advice and consent
of the Senate, provided two-thirds of the Senators present concur’’
(Systematic Survey of Treaties for the Pacific Settlement of International
Disputes 1928-1948, Pp. 504).

In the period following upon its Declaration of Acceptance, of
August 26th, 1946, of the compulsory jurisdiction of the Court subject
to the automatic reservation, the United States have attached
importance to extending the principle involved therein to other
instruments, both multilateral and bilateral, of obligatory judicial
or arbitral settlement to which they have become a party. They did
so, for instance, in relation to the American Treaty of Pacific
Settlement of April 30th, 1948 (Pact of Bogota) which, inits Article V,
provided that the procedures of pacific settlement laid down therein
shall not apply “‘to matters which, by their nature, are within the
domestic jurisdiction of the State” and that “if the parties are not
in agreement as to whether the controversy concerns a matter of
domestic jurisdiction, this preliminary question shall be submitted
to decision by the International Court of Justice, at the request
of any of the parties”. The United States appended to that Treaty
a reservation which reads, in part, as follows:

“The acceptance by the United States of the jurisdiction of the
International Court of Justice as compulsory #pso facto and without
special agreement, as provided in this Treaty, is limited by any
jurisdictional or other limitations contained in any Declaration
deposited by the United States under Article 36, paragraph 4, of
the Statute of the Court, and in force at the time of the submission
of any case” (1bid., p. 1174).

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TIL INTERHANDEL (DISS. OP. SIR HERSCH LAUTERPACHT)

A similar limitation has been incorporated in a number of bilateral
agreements relating to specific matters, such as economic aid.
Thus the Treaty of July 3rd, 1948, between the United States and
China relating to economic aid provides as follows:

“It is understood that the undertaking of each Government
(relating to the jurisdiction of the Court] ... is limited by the terms
and conditions of such effective recognition as it has heretofore
given to the compulsory jurisdiction of the International Court of
Justice under Article 36 of the Statute of the Court” (Yearbook,
I.C.J., 1948-1949, pp. 152-155).

* * *

In view of this consistent and persistent assertion, as here
surveyed, of freedom of action in the matter of the justiciability
or arbitrability of any particular dispute, notwithstanding the
general obligation of arbitral or judicial settlement, and in view
of the determination of the United States of America to retain the
right of decision as to the existence of its obligation in any parti-
cular case, it must be abundantly clear that the Court must give
full effect and weight to that attitude, so uniformly manifested,
of the United States of America. As a matter of possible develop-
ments that attitude may not be enduring for all time; sovereign
States, including the United States of America, have occasionally
changed their historic attitude in matters equally or more funda-
mental. But it is not within the province of the Court to speculate
on—or anticipate—these developments. Neither can it with any
propriety be influenced by any speculation as to differing attitudes
of the legislative and executive branches of the Government of the
United States in this matter. The principle as expressed in the
automatic reservation of the Declaration of the United States of
America must be regarded as representing the consistent and deli-
berate position of that country.

The Court cannot arrogate to itself the competence to curtail
that right of final determination by assuming the power to decide
whether that right has been exercised reasonably or in good faith.
To assume any such power would mean to deny to the United States
of America the very right which it stipulated as a condition of its
Declaration of Acceptance and which, if there were any doubt on
the subject, is substantiated as rooted in an historic tradition of
striking continuity. Of that tradition it is beyond the power of
the Court to approve or to disapprove. This would be so even if
there did not exist the additional and weighty reason that the
greatest caution must guide the Court, in the matter of its juris-
diction, in attributing to a sovereign State bad faith, an abuse of
a right, or unreasonableness in the fulfilment of its obligations.

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II2Z INTERHANDEL (DISS. OP. SIR HERSCH LAUTERPACHT)

No assistance can be derived in this respect from the suggestion
that, in deciding whether a matter is essentially within the
domestic jurisdiction, the Court shall assume that, unless there
are obvious reasons to the contrary, the Government in question
has made the determination reasonably and in good faith. Even
assuming that a differentiation between a determination which is
wrong, one whichis obviously and unreasonably wrong, andone which,
although unreasonable, is not arbitrarily and abusively so, provides
a proper basis for judicial decision in a matter affecting the juris-
diction of the Court itself, the fact remains that the United States
of America has not conceded to the Court—that it has expressly
denied to it—the right to make any such decision, however fa-
vourably influenced in advance by a presumption that the United
States has acted correctly in determining a matter to be essentially
within its domestic jurisdiction. It is impossible for the Court to
base its decision on the shifting sands of the proposition that a
contention advanced by a party is plausible, or at least that it may
be given the benefit of being held plausible, although it is in law
wholly untenable. I find it juridically repugnant to acquiesce in the
suggestion that in deciding whether a matter is essentially within
the domestic jurisdiction of a State the Court must be guided not
by the substance of the issue involved in a particular case but by a
presumption—by a leaning—in favour of the rightfulness of the
determination made by the Government responsible for the auto-
matic reservation. Any such suggestion conveys a maxim of policy,
not of law. Moreover, the very existence, if admitted, of any such
presumption in favour of the State relying upon its automatic
reservation would make particularly odious and offensive a finding
of the Court to the effect that, notwithstanding that presumption,
the reservation has been invoked unreasonably and in bad
faith. Any such construction of the function of the Court which is
calculated to put the Court in the invidious position of having to
make pronouncements of that kind in the matter of its own juris-
diction is, for that additional reason, open to objection.

The circumstances of the case now before the Court show clearly
the delicate and wholly discretionary nature of the task with which
the Court may be confronted if it were to assume the function of
deciding the accuracy or propriety or good faith of the determin-
ation made by the Government of the United States that the sale
and disposition of the assets of Interhandel is a matter falling
essentially within the domestic jurisdiction of the United States.
What are the considerations to which the Court must attach weight
in this connection? Is it the fact that Interhandel is incorpo-
rated under the laws of one of the States of the United States of
America; that its physical assets are located in the United States
of America; that it is engaged in fields of production essential to

IIo
II3 INTERHANDEL (DISS. OP. SIR HERSCH LAUTERPACHT)

the defence efforts and war-time needs of the United States of
America; that the law of the United States (the Trading with the
Enemy Act) empowers the President to vest the property of
Interhandel, to sell or liquidate it in the interests of and for the
benefit of the United States; and, moreover, that it requires the
President to sell that property to American citizens only—all
these facts confirming, it is asserted, the contention that the
matter is essentially within the domestic jurisdiction of the United
States? Or shall the Court attach importance to the view that the
sale and disposal of assets which have become, or may become, the
subject-matter of a Judgment of this Court or of an arbitration
tribunal are excluded by that very fact from the sphere of domestic
jurisdiction; that, according to the firmly established jurisprudence
of the Court, the fact that a matter is governed by national legis-
lation does not prevent it from being governed at the same time by
the international obligations of the State; and that the differen-
tiation, adopted by the Government of the United States, between
the seizure of the assets by virtue of the legislation of the United
States (a seizure which is merely asserted to be essentially within
the domestic jurisdiction of the United States of America) and the
sale and disposal of the proceeds of that seizure (which sale and
disposal are conclusively determined by the United States to be
within its domestic jurisdiction) is solely an act of will authorized
by the terms of the Declaration of Acceptance but wholly unrelated
to the merits of the case? Can the Court say that such differentiation,
though unreal, is not unreasonable; or that, though unreasonable,
it is not wholly arbitrary; or that, if arbitrary, it is not in bad
faith seeing that it relies on the unqualified terms of the Declaration
of Acceptance? These questions, which it is not intended to answer
in this Opinion, show the nature of the task confronting the Court,
if it were to sit in judgment on the legality or good faith of the
determination made by the Government of the United States of
America.

In my separate opinion in the case of Certain Norwegian Loans
I pointed to the special difficulties arising in applying the
tests of good faith and reasonableness—assuming that the
application of any such tests were consistent with the terms of the
Declaration of Acceptance—to the elastic, indefinite and potentially
all-comprehensive notion of matters essentially within the domestic
jurisdiction of the State. It may comprise practically every act or
omission within national territory. That comprehensiveness of the
notion of matters of domestic jurisdiction renders impracticable
the attempt to review the accuracy of the determination, made by
a government, that a matter is essentially within domestic juris-
diction. There is no question here of ruling out altogether the abiding
duty of every State to act in good faith. The decisive difficulty is
that in view of the comprehensiveness of the notion of domestic
jurisdiction—coupled in the case of the United States with a uniform

III
II4 INTERHANDEL (DISS. OP. SIR HERSCH LAUTERPACHT)

insistence on the right of unilateral determination—that right
assumes in effect the complexion of an absolute right not subject
to review by the Court. This might not necessarily be the case if,
for instance, a government were to make a reservation of matters
arising in the course of hostilities as determined by that govern-
ment and if subsequently it were to proceed to determine as such
an event which arose in time of peace undisturbed by any armed
contest, whether amounting to war or not.

The above considerations apply also to the question whether, as
requested by Switzerland, the Court can join to the merits the
preliminary objection of the Government of the United States of
America based on the automatic reservation. To join the objection
to the merits is to assert the competence of the Court to decide,
by reference to the merits of the case, whether the matter of the
sale and disposition of the assets of Interhandel is in law essen-
tially within the domestic jurisdiction, or whether it can reasonably
and in good faith be determined that it is so. However, it is exactly
the power to make a decision of this kind that has been denied
to the Court by virtue of the explicit reservation of the United
States. If the Court has the power to declare that the determination
made by the Government of the United States is wholly devoid
of legal foundation so as not to constitute a reasonable exercise of
the right reserved in the Declaration then, contrary to that Declara-
tion, it is the Court and not the United States of America that makes
the decisive determination in question. The joining of that objec-
tion to the merits would arrogate to the Court the power of a
decision of that nature; it could have no other purpose. It cannot
aim at enabling the Court to decide on the validity of the auto-
matic reservation or of the Declaration as a whole. For these ques-
tions cannot conceivably be answered by reference to the merits of
the dispute. In fact, the joining of the objection based on the auto-
matic reservation to the merits implies the recognition in principle
of the validity of that reservation as well as of the Declaration
as a whole.

Any decision of the Court which arrogates to it a competence
denied to it by the express terms of the jurisdictional instrument
relied upon by the parties disturbs the continuity of the established
jurisprudence of the Court. That jurisprudence has been based on
the accepted principle of international law that the jurisdiction of
the Court is based invariably on the consent of the parties, given
in advance or in relation to a particular dispute. Admittedly, once
that consent has been given the Court will not allow the obligation
thus undertaken, or the effectiveness of that obligation, to be
defeated by technicalities or evasion. Thus the Court has assumed
jurisdiction by virtue of implied consent through so-called forum
prorogatum ; on occasions, in order to make its jurisdiction effective,
it has declared itself competent to award compensation in cases in

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I15 INTERHANDEL (DISS. OP. SIR HERSCH LAUTERPACHT)

which the parties conferred upon it jurisdiction to adjudicate upon
the main issue of responsibility. But the Court has not assumed
jurisdiction—and cannot properly do so—if jurisdiction is expressly
denied to it. The Court cannot pronounce whether a State has
reasonably determined that a matter is essentially within its
domestic jurisdiction if that State has expressly, deliberately and
aS a conspicuous condition of its Declaration of Acceptance,
reserved to itself—and to itself alone—the right to determine that
question. This is so in particular in relation to a State whose
attitude in that matter has for over half a century exhibited a
pronounced degree of uniformity and consistency.

In fact, by virtue of its Judgment in the case of Certain Norwegian
Loans the Court is precluded, unless it decides to depart from the
principle therein acted upon, from reviewing the propriety or the
accuracy or the good faith of the determination made by the
United States of America. There the Court applied the French
automatic reservation, as invoked by Norway, without entering into
the question whether the subject of the dispute was in law actually
within the domestic jurisdiction of Norway:

“The Court considers that the Norwegian Government is entitled,
by virtue of the condition of reciprocity, to invoke the reservation
contained in the French Declaration of March ist, 1949; that this
reservation excludes from the jurisdiction of the Court the dispute
which has been referred to it by the Application of the French
Government; that consequently the Court is without jurisdiction
to entertain the Application.” .C.J. Reports 1957, D. 27.)

The position was made even clearer by the passage immediately
following. The Court said: “In view of the foregoing it is not
necessary for the Court to examine the first ground of the first
Objection’, namely, the objection of Norway that the matter was
according to international law—and not merely by virtue of her
own determination—essentially within her domestic jurisdiction.

The very fact that, by virtue of its Statute, the Court, in inter-
preting a particular jurisdictional instrument, is the ultimate judge
of the question, imposes upon it a special and exacting responsi-
bility. The circumstance that the Court has no power to pronounce
on the manner and justification of the exercise of the automatic
reservation adds substance to the view that, in a Declaration of
Acceptance of that kind, there is absent the indispensable element
of legal obligation. The Court being a legal tribunal cannot apply
what, as a matter of legal effect, is essentially no more than a
declaration of principle and of general willingness to submit disputes
to the jurisdiction of the Court.

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Attention has been drawn in this connection to the protestations,
the sincerity of which is open neither to examination nor doubt,
that the faculty of determination would not be used capriciously
but with due regard to the reputation and the traditions of the
United States in the matter of international judicial and arbitral
settlement. However, these very assurances emphasize the sense of
the absence of a legal bond—as distinguished from political and
moral considerations—restricting the freedom of action of the
United States in this respect. Moreover, while the nation which
accepts the Optional Clause subject to the automatic reservation
may vouch for its own good faith and moderation in invoking that
reservation, it is not in a position to do so with regard to the other
signatories of the Optional Clause who, by virtue of reciprocity,
automatically acquire as against that State the right to invoke the
automatic reservation. In the case of Certain Norwegian Loans,
Norway—who had adhered to the Optional Clause without
reservations—considered herself fully entitled to invoke the auto-
matic reservation against the State which had incorporated it in
its Declaration of Acceptance. The Court held that she was entitled
to do so. The legal consequences of the automatic reservation are
not limited to the State which incorporates it in its Declaration of
Acceptance; these consequences are automatically multiplied, as
against the Declaring State, by the number of other Signatories
of the Optional Clause. In fact, in so far as it is possible or per-
missible at all to refer to any legal sanction for what is an entirely
legitimate act, this is the only legal sanction of the automatic
reservation.

The preceding considerations also supply, substantially, an answer
to the question whether although the Court cannot act upon the
automatic reservation—that is to say, although that reservation is
invalid—the Declaration of Acceptance may, apart from that
reservation, be treated as otherwise subsistent and given effect by
the Court. In the case concerning Certain Norwegian Loans
I gave reasons in my Separate Opinion—which must be read
as forming part of the present Opinion—why that question
must be answered in the negative. These reasons included the
general principle of law governing the subject, namely, the principle
that a condition which, having regard to the intention of the party
making it, is essential to and goes to the roots of the main obligation,
cannot be separated from it. This is not a mere refinement of
private law, or of any municipal system thereof, but—as all general
principles of law—a maxim based on common sense and equity.
A party cannot be held to be bound by an obligation divested of

II4
117 INTERHANDEL (DISS. OP. SIR HERSCH LAUTERPACHT)

a condition without which that obligation would never have been
undertaken.

These considerations of fair and reasonable interpretation must
be applied to a Declaration in which a State accepts the obligations
of the Optional Clause subject to the automatic reservation. If
that reservation is an essential condition of the Acceptance in the
sense that without it the declaring State would have been wholly
unwilling to undertake the principal obligation, then it is not open
to the Court to disregard that reservation and at the same time
to hold the accepting State bound by the Declaration. In the case
of the United States of America that aspect of the situation seems
so compelling as to be outside the realm of controversy. As has been
shown above in connection with the asserted right of the Govern-
ment of the United States of America to determine in each case
the existence of the obligation to resort to judicial or arbitral settle-
ment, that safeguard has been of the essence of every general
commitment which the United States of America has been willing
to undertake in that sphere. Having regard to these reasons—and
to the reasons which I set forth in greater detail in the Separate
Opinion in the case of Certain Norwegian Loans (I.C.]. Reports
1957, pp. 55-59)—I come to the conclusion that there is not
before the Court a valid and effective Declaration of Acceptance
by reference to which the Court can assume jurisdiction in the
present case with regard to any aspect of the dispute.

Neither is there any legal possibility of postponing the decision
of the Court on that fundamental jurisdictional issue. Unlike in
the case of Certain Norwegian Loans, that question is now
directly before the Court and, as a matter of ordinary adminis-
tration of justice, it must be decided before the Court gives a
judgment which implies the possibility of future proceedings on
the merits. The automatic reservation has been invoked; although
stated to have become “moot”, it has been formally maintained
by the defendant Government. It has been challenged by the
applicant Government. I have already given reasons why the
submission that the automatic reservation has become “moot” in
the present case cannot be accepted as a matter either of fact or
legal relevance. In the case of Certain Norwegian Loans it was
possible to maintain—though I was unable to subscribe to
that view—that as neither party challenged the validity either of
the automatic reservation or of the Declaration as such the Court
was not in a position to raise the issue proprio motu. In the present
case the question of the validity of the automatic reservation and
of the manner of its application—and, with it, inevitably the
question of the validity of the Declaration of Acceptance as a
whole—are squarely before the Court. There may be reasons
militating in favour of postponing a decision holding that that

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particular Declaration of Acceptance—and, by necessary impli-
cation, similar Declarations of Acceptance—are ineffective in law
whether invoked by or against the declaring State. However, these
are not reasons of a legal nature.

There is a further additional factor of decisive importance which,
in my view, renders it impossible to avoid the principal juris-
dictional issue as presented by the Parties. In the case of Certain
Norwegian Loans it was the applicant State which had made its
Declaration of Acceptance subject to the automatic reservation;
that State was not in a position to raise the issue of the validity
of that reservation and of its own Acceptance. The defendant
State, for reasons which need not be examined here, acted on the
view that the success of its case would be best assured by invoking,
through the mechanical operation of the principle of reciprocity,
the automatic reservation incorporated in the Acceptance of the
applicant State. The position is wholly different in the case now
before the Court. The defendant State has formally availed itself,
in respect of the crucial aspect of the dispute, of the automatic
reservation contained in its Declaration of Acceptance. Its right to
do so effectively was challenged by the applicant Government on
the alternative grounds of the invalidity of the automatic reserva-
tion and the alleged arbitrary manner in which it had been invoked.
Whatever may be the basis of the challenge to the automatic
reservation as such or the propriety of the appeal to it in the case
before the Court, it is clear that the issue has been raised before
the Court and that the Court cannot discharge its duty without
examining and answering it.

It is not permissible to attach importance to the circumstance
that a decision of the Court holding the Declaration of Acceptance
made by the United States of America to be ineffective and invalid
would, in this particular case, enure to the benefit of the very State
which made that kind of Declaration. This is not a case of a State
benefiting from its own wrong. As already stated, there is no element
of illegality involved in a Declaration of Acceptance which is in-
consistent with the Statute of the Court. No rule of international
law forbids governments to perform acts and make declarations
which are incapable of producing legal effects. The Court cannot
be concerned with the question of the propriety or effectiveness,
from any point of view other than the legal one, of a Declaration
which purports to accept the compulsory jurisdiction of the Court
but which, in law, fails to do it for the reason that it leaves it to
the State concerned to determine whether a particular dispute is
subject to the jurisdiction of the Court.

Neither is there any sanction involved in treating such a Decla-
ration of Acceptance as legally non-existent. For it operates equally

116
IIg INTERHANDEL (DISS. OP. SIR HERSCH LAUTERPACHT)

in relation to the declarant State and to its actual or potential
opponents. There is no sanction involved in giving full effect to the
condition on which, and on which alone, a State has accepted the
jurisdiction of the Court. The United States cannot avail itself of
its—legally ineffective—Declaration of Acceptance in order to
bring an action before the Court against another State; but for the
very reason that the Declaration is legally ineffective no State can
invoke it against the United States. Such indirect sanction as there
is—and it is one with which the Court cannot be concerned—is of
a different nature. While it unfailingly protects the declarant Gov-
ernment from the jurisdiction of the Court, it deprives it, with
equal certainty, of the benefits of that jurisdiction in cases in
which the declarant Government is the plaintiff.

ge 7

For the reasons which I have stated and which compel me to
dissent from the Judgment of the Court, I have come to the con-
clusion that, having regard to the invalidity of the automatic
reservation and, consequently, of the Declaration of Acceptance
as a whole, the scope of a jurisdictional judgment of the Court in
the present case must be reduced to a minimum. The Court is not
in a position to act negatively by declining jurisdiction on account
of Objections 1 and 2 (the Objections rafione temporis) and
Objection 4 (6) (relating to matters alleged, but not determined, by
the United States of America to be within its domestic jurisdiction).
For any such negative decision presupposes the existence of a valid
Declaration of Acceptance in relation to which jurisdictional ob-
jections can be examined and answered. For the same reason the
Court cannot declare the Application to be inadmissible on account
of non-exhaustion of local remedies. Moreover, any such declaration
of inadmissibility implies admissibility after local remedies have
been exhausted—a contingency which cannot properly be contem- -
plated on the basis of the existing Declaration of Acceptance of the
United States of America. The only course which, in my opinion,
is properly open to the Court is to hold that in view of the invalidity
of the automatic reservation and the consequent invalidity of the
Declaration of Acceptance there is not before it an instrument by
reference to which it can assume jurisdiction in relation to any
aspect of the dispute. These consequences may seem to be startling.
However, they appear to be so only if we disregard the nature and
the contents of the instrument by reference to which the jurisdic-
tion of the Court is here being invoked.

As the Court has decided, at least provisionally, to proceed
on the basis that the Declaration of Acceptance of the United States
is a valid legal instrument cognizable by the Court, I considered it
my duty to participate in the formation of the Court’s Judgment.

117
120 INTERHANDEL (DISS. OP. SIR HERSCH LAUTERPACHT)

I have concurred in it with regard to the first and second Objections
vatione temporis. On the other hand, I would have been in favour of
joining to the merits the third Objection, relating to the exhaustion
of local remedies, in so far as it bears upon the principal claim for
the restitution of the assets of Interhandel. In this respect I concur
generally in the reasons expressed in the dissenting opinions of
President Klaestad and Judge Armand-Ugon.

I have also been unable to associate myself with the decision hold-
ing that the subsidiary claim of the Government of Switzerland relat-
ing to the obligation of the United States to submit the dispute
to arbitration or conciliation is inadmissible on account of the non-
exhaustion of local remedies by Interhandel. I cannot accept the
contention of the United States that the demand for restitution
which forms the subject-matter of the Swiss Application and which,
in substance, is now being litigated before the Courts of the United
States and the demand by the Swiss Government for arbitration
and conciliation are essentially one dispute. I consider that with
regard to that aspect of the claim of Switzerland there apply, with
some cogency, the principles which are now firmly rooted in the
jurisprudence of the Court and which were clearly expressed in the
Judgment of the Permanent Court in the Chorzéw Factory case
(Series A, No. 17, p. 28). The Court said there:

“.. The rules of law governing the reparation are the rules of
international law in force between the two States concerned, and
not the law governing relations between the State which has com-
mitted a wrongful act and the individual who has suffered damage.
Rights or interests of an individual the violation of which rights
causes damage are always in a different plane to rights belonging
to a State, which rights may also be infringed by the same act.
The damage suffered by an individual is never therefore identical
in kind with that which will be suffered by a State; it can only
afford a convenient scale for the calculation of the reparation due
to the State.”

There must exist weighty reasons for any departure from that
principle so clearly formulated. That principle is not a mere doc-
trinal refinement. An international award may give to a State
satisfaction different from restitution of the property seized; a
State may have a legal interest, independent of any material
compensation and restitution, in vindicating the remedy of arbi-
tration provided for in the Treaty. It may also have.a legal interest
in having its right to arbitral proceedings determined as soon as
possible without being exposed, after the local remedies have been
exhausted, to a further considerable delay in establishing that
right by a decision of this Court.

Moreover, the Judgments of the Court in the Ambatielos case
(.C.J. Reports 1952, p. 44, and 1953, p. 18) were based on the
proposition that, in deciding whether the Court is competent to

118
IZI INTERHANDEL (DISS. OP. SIR HERSCH LAUTERPACHT)

determine whether a State is under an obligation to submit a
dispute to arbitration, this Court will not anticipate the decision of
that tribunal on any question dividing the Parties. Thus, the arbi-
tration tribunal may have views of its own on the extent of the obli-
gation, in the present case, to comply with the rule of exhaustion
of local remedies. This being so, it would seem to follow from the
Judgments in the Ambatielos case and from general considerations
that that question must be left to the decision of the arbitra-
tion tribunal and that the Court ought not to decline to consider
the request of Switzerland on the subject on the ground that local
remedies have not been exhausted.

Finally, in so far as the procedure of conciliation is concerned,
it must not be taken for granted that the legal requirement of
exhaustion of local remedies would be fully or invariably applied
by a conciliation commission which is not bound to proceed ex-
clusively on the basis of law.

I deem it necessary to add some observations with regard to
Preliminary Objection 4{b) in which the Government of the United
States challenges the jurisdiction of the Court on the ground that
the issues relating to the seizure and retention of the assets of
Interhandel “are, according to international law, matters within
the domestic jurisdiction of the United States” (as distinguished
from the question of the sale and disposition of the assets of Inter-
handel—a question which the Government of the United States has
determined, in reliance upon the automatic reservation, to be within
the domestic jurisdiction of the United States). The Court has
rejected Preliminary Objection 4 (6) by reference to the prin-
ciple enunciated by the Permanent Court of International Justice
in the Advisory Opinion on Nationality Decrees in Tunis and Mo-
rocco (P.C.I.J., Series B, No. 4). I concur in that result although
it is clear that the test adopted by reference to that Opinion reduces
to the bare minimum the practical effect envisaged by the reserv-
ation in question. For it is not often that a case may arise in which
the grounds of international law relied upon by the applicant State
are not, upon provisional examination, relevant to the issue.

However, the main interest of that preliminary objection lies
in the fact that there is in the Declaration of Acceptance of the
United States no reservation which covers that objection. While
concentrating on the reservation of matters of domestic jurisdiction
as determined by itself, the United States did not in fact append
the more usual reservation of matters which according to interna-
tional law are essentially within its domestic jurisdiction. Now a
State is not entitled to advance a preliminary objection against

IIg
122 INTERHANDEL (DISS. OP. SIR HERSCH LAUTERPACHT)

the jurisdiction of the Court unless there is a limitation to that
effect either in the Declaration of Acceptance or in the Statute of
the Court. The Court, in examining and rejecting that objection
on its merits, has held, by implication, that a reservation of that
kind is inherent in every Declaration of Acceptance and that there
is no need to spell it out expressly. J am in agreement with that
conclusion so indirectly formulated. As stated, and that view is
confirmed by the rejection by the Court of that objection in
conformity with the generous and elastic test laid down in the
Opinion on the Tunis and Morocco Nationality Decrees, the advan-
tage accruing to the defendant State by a recognition of an implied
existence of that reservation is distinctly limited. From whatever
angle the question is approached, it matters little whether a reser-
vation of this kind is incorporated in a Declaration of Acceptance.
States are in any case fully protected from any interference whatso-
ever by the Court in matters which are according to international
law essentially within their jurisdiction. They are so protected not
by virtue of any reservation but in consequence of the fact that
if a matter is exclusively within the domestic jurisdiction of a
State, not circumscribed by any obligation stemming from a source
of international law as formulated in Article 38 of its Statute, the
Court must inevitably reject the claim as being without foundation
in international law.

As the United States has made no reservation of matters which
according to international law are within its domestic jurisdiction,
Preliminary Objection 4/6) must properly be regarded as a defence
on the merits and normally—namely, if there existed a valid
Declaration of Acceptance—would have to be examined, during
the proceedings on the merits, as being a substantive plea in the
sense that there is no rule of international law limiting the freedom
of action of the United States on the subject. That defence, if
justified, is of a potency transcending that of any reservation. In
view of the difficulties and uncertainties to which the reservation
of matters of domestic jurisdiction has given rise in the past,
I consider it useful to draw attention to some considerations relevant
to the fact that the Court has treated the non-existing reservation
of matters which according to international law are within domes-
tic jurisdiction as if it were part of the American Declaration of
Acceptance.

_ (Signed) Hersch LAUTERPACHT.


[INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

NUCLEAR TESTS CASE
(NEW ZEALAND v. FRANCE)

APPLICATION BY FIJI FOR PERMISSION TO INTERVENE

ORDER OF 12 JULY 1973

1973

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DES ESSAIS NUCLÉAIRES
(NOUVELLE-ZÉLANDE c. FRANCE)

REQUÊTE DE FIDJI A FIN D’INTERVENTION

ORDONNANCE DU 12 JUILLET 1973
Official citation:

Nuclear Tests {New Zealand v. France), Application
to Intervene, Order of 12 July 1973, I.C.J. Reports 1973, p. 324.

Mode officiel de citation:

Essais nucléaires (Nouvelle-Zélande c. France), requête à fin
d'intervention, ordonnance du 12 juillet 1973, C.I.J.Recueil 1973, p. 324.

Nedeveate:, SOD

12 JULY 1973
ORDER

NUCLEAR TESTS CASE
(NEW ZEALAND v. FRANCE)

APPLICATION BY FIJI FOR PERMISSION TO INTERVENE

AFFAIRE DES ESSAIS NUCLEAIRES
(NOUVELLE-ZELANDE c. FRANCE)

REQUÊTE DE FIDJI À FIN D’INTERVENTION

12 JUILLET 1973
ORDONNANCE
324

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1973 1973
12 juillet
Rôle général
n° 59
12 juillet 1973

AFFAIRE DES ESSAIS NUCLÉAIRES
(NOUVELLE-ZÉLANDE c. FRANCE)

REQUÊTE DE FIDJI À FIN D’INTERVENTION

ORDONNANCE

Présents: M. Lacus, Président; M. AMMOUN, Vice-Président; MM. For-
STER, GROS, BENGZON, PETREN, ONYEAMA, IGNACIO-PINTO,
Morozov, JIMENEZ DE ARECHAGA, sir Humphrey WALDOCK,
RUDA, juges; sir Garfield BARWICK, juge ad hoc; M. AQUARONE,
Greffier.

La Cour internationale de Justice,

Ainsi composée,

Après délibéré en chambre du conseil,

Vu les articles 48 et 62 du Statut de la Cour,
Vu l'article 69 du Règlement de la Cour,

Vu la requête enregistrée au Greffe de la Cour le 9 mai 1973 par laquelle
la Nouvelle-Zélande a introduit une instance contre la France au sujet
d’un différend concernant la légalité des essais nucléaires réalisés en
atmosphère dans la région du Pacifique Sud,

4
ESSAIS NUCLÉAIRES (ORDONNANCE 12 VII 73) 325

Vu la requête en date du 18 mai 1973 et enregistrée au Greffe le même
jour par laquelle le Gouvernement fidjien demande à la Cour, en se fondant
sur l’article 62 du Statut, de l’autoriser à intervenir en l’instance introduite
par la Nouvelle-Zélande contre la France,

Rend l’ordonnance suivante:

1. Considérant que la requéte de Fidji présuppose, par sa nature méme,
que la Cour soit compétente pour connaitre du différend entre la Nou-
velle-Zélande et la France et que la requête de la Nouvelle-Zélande contre
la France relative à ce différend soit recevable;

2. Vu la position adoptée par le Gouvernement français dans une
lettre de l’ambassadeur de France aux Pays-Bas datée du 16 mai 1973 et
remise par celui-ci au Greffier le même jour, d’après laquelle la Cour n’a
manifestement pas compétence pour connaître de la requête de la Nou-
velle-Zélande ;

3. Considérant que, par son ordonnance du 22 juin 1973, la Cour a
décidé que les pièces écrites porteraient d’abord sur la question de la
compétence de la Cour pour connaître du différend entre la Nouvelle-
Zélande et la France et sur celle de la recevabilité de la requête de la
Nouvelle-Zélande,

La Cour,
par huit voix contre cinq,

Décide de surseoir à l’examen de la requête par laquelle le Gouverne-
ment fidjien demande à intervenir dans l’instance introduite par la
Nouvelle-Zélande contre la France jusqu’à ce qu’elle ait statué sur les
questions dont traiteront les pièces écrites mentionnées dans son ordon-

nance du 22 juin 1973.

Fait en anglais et en français, le texte anglais faisant foi, au palais de la
Paix, à La Haye, le douze juillet mil neuf cent soixante-treize, en quatre
exemplaires, dont l’un restera déposé aux archives de la Cour et dont les
autres seront transmis respectivement au Gouvernement fidjien, au
Gouvernement néo-zélandais et au Gouvernement français.

Le Président,
{ Signé) Manfred Lacus.

Le Greffier,
(Signé) S. AQUARONE.
ESSAIS NUCLÉAIRES (ORDONNANCE 12 VII 73) 326

M. Gros, juge, fait la déclaration suivante:

J'ai voté contre le renvoi de l’examen du document déposé le 18 mai
1973; la question pouvait et devait être tranchée immédiatement, et en
dehors du problème de la compétence de la Cour dans l'affaire visée au
dispositif de la présente ordonnance, en constatant que ledit document ne
répond pas aux dispositions de l’article 62 du Statut de la Cour sur l’inter-
vention.

M. PETRÉN, juge, fait la déclaration suivante:

Etant d’avis que c’est au stade actuel de la procédure que la Cour aurait
dû se prononcer sur la requête du Gouvernement de Fidji, j’ai voté contre
le renvoi de son examen à une phase ultérieure de l'affaire.

M. ONYEAMA, juge, fait la déclaration suivante:

Vai voté contre l'ordonnance parce que la requête à fin d’intervention
aurait dû, selon moi, être examinée au fond maintenant et non ultérieure-
ment; en effet, indépendamment de ce que la requête même postule, il
aurait fallu trancher immédiatement la question de savoir si, en l’absence
d’un lien juridictionnel avec la France, Fidji peut intervenir dans une
affaire où la France est en cause.

M. IGNACIO-PINTO, juge, fait la déclaration suivante:

Je ne partage pas l'opinion de la majorité de la Cour selon laquelle
l'examen de la requête à fin d'intervention de Fidji en l'instance Australie
c. France d’une part et Nouvelle-Zélande c. France d’autre part au sujet
des essais nucléaires devrait être renvoyé. Il n’y a aucun lien conventionnel
entre la France et ledit Etat susceptible d’habiliter ce dernier à une telle
intervention.

Il eût fallu en conséquence examiner dès à présent si cette requête est
fondée et le renvoi à une phase ultérieure de la procédure n’est nullement
justifié à mon avis; en conséquence Je vote contre.

(Paraphé) M.L.
(Paraphé) S.A.


                                                                                709

                            Déclaration de M. le juge Bennouna

                 [Texte original français]

                   Exceptio non adimpleti contractus — Obligations synallagmatiques — Contre-
                 mesures — Rôle du juge — Analyse dynamique du droit international.

                    Je souhaite, par cette déclaration, relever simplement que la Cour a
                 choisi d’esquiver certaines questions juridiques essentielles soulevées et
                 débattues longuement par les Parties, en s’abritant derrière son évalua‑
                 tion des faits avancés, pour conclure qu’il n’est pas nécessaire d’analyser
                 de telles questions.
                    Ainsi, la Cour, après avoir rappelé les arguments des Parties au sujet de
                 l’application à l’espèce de l’exceptio non adimpleti contractus, se contente
                 de conclure que « [l]e défendeur n’a donc pas établi qu’il avait été satisfait,
                 en l’espèce, aux conditions, énoncées par lui-même, qui seraient requises
                 pour que l’exceptio s’applique » et elle ajoute : « [d]ès lors, il n’est pas
                 nécessaire que la Cour détermine si cette théorie fait partie du droit inter‑
                 national contemporain » (arrêt, par. 161).
                    Tout d’abord, il ne s’agit pas de déterminer si une théorie fait partie ou
                 non du droit international mais plutôt de rechercher quelle est la portée,
                 en droit international général, du principe de réciprocité présenté comme
                 exceptio non adimpleti contractus, par rapport aux obligations des Parties
                 au titre de l’accord intérimaire, et notamment l’article 11 de celui-ci.
                    Si le statut de l’exceptio peut être considéré comme incertain en droit
                 international général, ainsi que l’a relevé la doctrine (J. Crawford et
                 S. Olleson, « The Exception of Non‑Performance : Links between the Law
                 of Treaties and the Law of State Responsibility », Australian Year Book of
                 International Law, 2000, vol. 21), il n’en demeure pas moins que, par le
                 passé, la Cour a souvent revisité des concepts, des institutions ou des
                 normes, en prenant en compte le processus de leur évolution dans le
                 temps en fonction des nécessités de la communauté internationale.
                    La Cour a démontré ainsi que son rôle, en tant que cour mondiale à
                 compétence générale, va au‑delà du règlement, au cas par cas, des diffé‑
                 rends qui lui sont soumis.
                    Dès lors, à l’occasion de cette affaire, la Cour aurait pu souligner que
                 l’exceptio ne peut être envisagée, en droit international général, que dans
                 le cadre d’une acception stricte de la réciprocité dans la mise en œuvre de
                 certaines obligations internationales, lorsque l’application de l’une est
                 inconcevable en dehors de celle de l’autre. Il s’agit donc d’obligations
                 strictement interdépendantes. La Cour a estimé ainsi, dans l’affaire rela‑
                 tive à Certaines questions concernant l’entraide judiciaire en matière pénale
                 (Djibouti c. France), que « Djibouti ne peut se fonder sur le principe de
                 réciprocité » car la convention d’entraide judiciaire qu’il a conclue avec la

                                                                                69

5 CIJ1026.indb 135                                                                                20/06/13 08:42

                           application d’accord intérimaire (décl. bennouna)                   710

                 France ne prévoit pas que « l’octroi par un Etat d’une assistance dans un
                 dossier donné impose à l’autre de faire de même lorsqu’il est sollicité à
                 son tour » (Certaines questions concernant l’entraide judiciaire en matière
                 pénale (Djibouti c. France), arrêt, C.I.J. Recueil 2008, p. 221, par. 119).

                    La Cour, dans la présente affaire, aurait pu parvenir à la même conclu‑
                 sion en abordant l’exceptio car l’obligation de la Grèce de ne pas s’opposer
                 à l’admission de l’ERYM à l’OTAN n’est pas fonction de la mise en œuvre
                 d’une autre obligation contenue dans l’accord intérimaire, à l’exception de
                 celle prévue par la deuxième clause du paragraphe 1 de l’article 11, à savoir
                 l’accès de l’ERYM à cette organisation sous son nom provisoire. Les deux
                 obligations peuvent être considérées comme synallagmatiques, soit l’accès
                 sous le nom provisoire d’un côté et la non‑objection à l’admission de
                 l’autre ; la portée de l’exceptio s’arrête là, elle ne peut concerner l’ensemble
                 de l’accord intérimaire présenté par la Grèce comme une transaction juri‑
                 dique, un negotium ou un échange équilibré d’engagements réciproques
                 dans le contexte d’un modus vivendi (CR 2011/8, Abi‑Saab).
                    Un autre moyen de défense a été avancé, à titre subsidiaire, par la
                 Grèce lorsqu’elle a soutenu que l’objection à l’admission de l’ERYM à
                 l’OTAN peut être justifiée en tant que contre‑mesure proportionnée aux
                 violations de l’accord intérimaire qu’elle lui impute. La Cour, là aussi,
                 après avoir rendu compte de l’argumentation des Parties, a conclu qu’elle
                 « rejette la prétention du défendeur selon laquelle son objection pourrait
                 se justifier comme une contre‑mesure excluant l’illicéité de l’opposition
                 manifestée par lui à l’admission du demandeur à l’OTAN » et ceci sur une
                 base factuelle, soit l’absence de violation de l’accord intérimaire imputée
                 au demandeur. Elle ajoute : « [la Cour] n’a donc pas à examiner les argu‑
                 ments supplémentaires que les Parties ont pu avancer au sujet du droit
                 régissant les contre‑mesures » (arrêt, par. 164).
                    Je pense que la Cour aurait pu, après avoir rappelé que, bien qu’il ne
                 soit pas établi que le régime juridique des contre‑mesures prévu aux
                 articles 49 à 54 du projet d’articles sur la responsabilité de l’Etat pour fait
                 internationalement illicite de la Commission du droit international
                 (annexé à la résolution de l’Assemblée générale des Nations Unies 56/83
                 du 12 décembre 2001) ait un caractère coutumier, il n’en demeure pas
                 moins que ce régime prévoit certaines conditions procédurales pour sa
                 mise en œuvre (art. 52) et que celles‑ci n’ont pas été remplies en l’espèce,
                 notamment l’obligation de « [n]otifier à l’Etat responsable toute décision
                 de prendre des contre‑mesures et offrir de négocier avec cet Etat ». Or, la
                 Grèce ne s’étant jamais acquittée de cette obligation, elle ne pourrait pas,
                 de toute façon, invoquer le droit de recourir à des contre‑mesures en la
                 présente affaire.
                    Bien entendu, lorsque la Cour se penche sur tel ou tel régime juridique
                 particulier, elle devrait le faire en ayant à l’esprit le contexte juridique glo‑
                 bal dans lequel il s’inscrit. Ainsi, lorsque la convention de Vienne sur le
                 droit des traités prévoit à l’article 31.3 c), relatif à la règle générale d’inter‑
                 prétation, qu’« [i]l sera tenu compte, en même temps que du contexte :

                                                                                70

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                          application d’accord intérimaire (décl. bennouna)                 711

                 … de toute règle pertinente du droit international applicable dans les rela‑
                 tions entre les parties », elle souligne l’interconnexion, non seulement entre
                 les différentes obligations des Etats, mais aussi entre les différents domaines
                 du droit international. En appréciant cette interconnexion, la Cour ne peut
                 ignorer l’architecture globale de cette branche du droit, y compris les
                 valeurs qui la fondent.
                    Dans une communauté fragmentée et régie par un droit lacunaire, telle
                 que la communauté internationale, le juge se doit de procéder à une ana‑
                 lyse dynamique du droit international, dans son évolution temporelle et
                 matérielle, et d’aller ainsi au-delà du règlement, au cas par cas, des diffé‑
                 rends qui lui sont soumis.

                                                           (Signé) Mohamed Bennouna.

                                                                                71

5 CIJ1026.indb 139                                                                                20/06/13 08:42


481

DECLARATION OF JUDGE KOROMA

While I concur with the Court’s findings in the operative paragraph of
the Judgment, I nevertheless consider it important to stress the following.

What the Court was asked to determine and has, in fact, ruled on
during this phase of the proceedings is the issue of jurisdiction.

The Applicant, the Government of Serbia and Montenegro, requested
the Court, inter alia, to adjudge and declare in respect of its jurisdiction
ratione personae.

At the oral proceedings, Canada requested the Court to adjudge and
declare that it lacked jurisdiction because the Applicant had abandoned
all the grounds of jurisdiction originally specified in its Application pur-
suant to Article 38, paragraph 2, of the Rules and had identified no alter-
native grounds of jurisdiction. In the alternative, Canada requested the
Court to adjudge and declare that the Court lacked jurisdiction over the
proceedings brought by the Applicant against Canada on 29 April 1999
on the basis of the purported declaration of 25 April 1999.

Thus, neither Party called upon the Court to uphold its jurisdiction or
asserted that it was entitled to enter into the merits of the case, but rather
requested it to decide on its jurisdiction and to determine whether, as a
matter of law, the Applicant was entitled to bring a claim before the
Court. This Judgment is the response to the question about jurisdiction.
As the Court has stated (para. 37), the function of a decision of the Court
on its jurisdiction in a particular case is solely to determine whether or
not it may entertain the case on the merits and not to make any deter-
mination on substantive issues. The Court is obliged to discharge this
function before entering into the merits of a case. Moreover, this function
to decide on its jurisdiction is both primary and imperative. It is at one
and the same time both determined and limited by the Charter of the
United Nations and the Statute of the Court. The Court cannot emanci-
pate itself from this statutory requirement. It is therefore not only in con-
formity with the Statute of the Court but also by the force of logic that
the point of departure for the Court in responding to that question would
have to be the determination of its jurisdiction ratione personae.

It is within this paradigm that the Judgment should be understood: as
a decision by the Court on its jurisdiction, without any position being
taken on the merits of the dispute.

(Signed) Abdul G. Koroma.

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