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Interhandel: The Court’s Judgment of March 21, 1959, on the Preliminary Objections of the United States

Published online by Cambridge University Press:  16 May 2017

Herbert W. Briggs
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Extract

In its Judgment of March 21, 1959, on the Preliminary Objections of the United States, the International Court of Justice held, by a vote of 9 to 6, that the Swiss application of October 2, 1957, requesting the Court to decide that the United States was under an obligation to restore the vested American assets of Interhandel or to submit the dispute to arbitration or conciliation, was inadmissible because Interhandel had not yet exhausted local remedies available in the United States courts.

Type
Research Article
Information
American Journal of International Law , Volume 53 , Issue 3 , July 1959 , pp. 547 - 563
Copyright
Copyright © American Society of International Law 1959

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References

1 Switzerland v.United States, [1959] I.C.J. Rep. 6. See p. 671 below.

2 T.I.A.S., No. 1598; 1957-1958 I.C.J. Yearbook 212. Italics added. See also Briggs, Herbert W.: “The United States and the International Court of Justice: A He-Examination,” 53 A.J.I.L. 301, 306 ff. (1959);Google Scholar “Reservations to the Acceptance of Compulsory Jurisdiction of the International Court of Justice,” 93 Hague Academy Recueil des Cours 223, 328 ff. (1958, in press) ; “Towards the Rule of Law! United States Refusal to Submit to Arbitration or Conciliation the Interhandel Case,” 51 A.J.I.L. 517 (1957).

3 [1959] I.C.J. Rep. 9, 12.

4 Not yet published by the United States in T.I.A.S. For English text, see 14 Dept. of State Bulletin 1121-1124 (1946), and Exhibit 28, Appendix, Interhandel Case, Preliminary Objections of the Government of the United States of America, deposited with the Court, June 16, 1958. For French text, see Affaire de l’ Interhandel, Annexes au Mémoire du Gouvernement de la Conféderation Suisse, Annexe 12 (March, 1958).

5 U. S. Treaty Series, No. 844, Treaty between the United States of America and Switzerland, signed Feb. 16, 1931.

6 [1959] I.C.J. Rep. 13.

7 I.C.J., Interhandel Case, Oral Proceedings (Nov. 5 to 17, 1958), I.C.J. Distr. 58/185, p. 149 (Statement of Mr. Loftus Becker, U. S. Agent, Nov. 14, 1958).

8 [1959] I.C.J. Rep. 10.

9 Ibid.20.

10 Ibid.16-19.

11 Ibid.22.

12 Ibid.21-22.

13 Ibid.33-40.

14 Ibid.41-44.

15 Ibid.48-53.

16 Ibid.59-73.

17 See 36 Dept. of State Bulletin 350-358 (1957).

18 Interhandel Case, Oral Proceedings (cited note 7 above), p. 6 (Statement of Mr. Becker, Nov. 5, 1958). With this may be contrasted Mr. Becker's admission when he was denying that the Interhandel case came within the terms of the Washington Accord of 1946. “Interhandel's Swiss assets on the one hand, and the claimed American assets of Interhandel on the other hand, are entirely separate issues,” he said; the vesting of the GAF shares “was a wartime measure of the United States Government, not a postwar joint investigation of the Allies and Switzerland.” Ibid.,p. 130 (Nov. 14, 1958).

19 [1959] I.C.J. Rep. 33, 34, 38.

20 Ibid53.

21 Ibid.59-60.

22 Ibid.61-62.

23 Ibid.64.

24 Shabtai Rosenne, The International Court of Justice 410 ff. (1957). Citations here omitted.

25 See Briggs, 93 Hague Academy Recueil des Cours 237-268 (1958).

26 Interhandel Case, Preliminary Objections of the Government of the United States of America, deposited with the Court, June 16, 1958, pp. 9-14, at p. 12.

27 This argument is doubly wrong. A dispute arising afterAugust 26, 1946, but before July 28, 1948, would not be excluded from the Court's jurisdiction by either declaration. The Court correctly stated that it was disputes arising beforeAugust 26, 1946, which Switzerland, if a respondent, would have been able to exclude by invoking, on the basis of reciprocity, the United States reservation ratione temporis.[1959] I.C.J. Rep. 23.

28 P.C.I.J., Series A, No. 2, p. 35 (1924).

29 Judge Kojevnikov, although voting with the majority, stated that he was unable to concur with the reasoning of the Court in rejecting the Second Preliminary Objection. In his opinion, it should have been rejected on the factual circumstance that the dispute arose only after July 28, 1948, rather than “on the question of reciprocity, which is of very great importance.” [1959] I.C.J. Rep. 31. The Court itself rejected the Second Preliminary Objection in relation to the alternative submission of Switzerland on the factual ground that the dispute concerning the obligation of the United States to agree to arbitration or conciliation did not arise until 1957 (ibid.23), but since it had found that the dispute as to restitution of the assets arose on July 26, 1948—two days prior to the date of entry into force of the Swiss declaration—it had to deal with the so-called reciprocity contention of the United States.

30 Ibid.23.

31 [1957] I.C.J. Rep. 146, 143.

32 Interhandel, Oral Proceedings (cited note 7 above), p. 19 (Statement of Mr. Becker, Nov. 5, 1958).

33 [1959] I.C.J. Rep. 23-24.

34 ”. . . the United States respectfully submits that the Court, in the exercise of its powers under Article 36, par. 6, of the Statute, should deny its jurisdiction … “ Interhandel Case, Preliminary Objections of the United States (cited note 26 above), p. 20.

35 Ibid.,pp. 20-25. Cf.Mr. Loftus Becker's argument ‘ ‘ that when the United States decides that property in the United States (here, registered shares in a domestic corporation doing business in the United States) is enemy property as it did when it vested the G.A.F. shares … there is no international recourse in the absence of a claim of denial of justice, which has never been made in this case.” Interhandel, Oral Proceedings (cited note 7 above), p. 137 (Nov. 14, 1958).

36 P.C.I.J., Series B, No. 4, pp. 7 ff. (1923).

37 [1959] I.C.J. Rep. 24-25.

38 Ibid.121-122.

39 Cf.Briggs in 53 A.J.I.L. 303-306 (1959).

40 See U. S. Memorandum of Jan. 11, 1957, 36 Dept. of State Bulletin 350-358 (1957), and Briggs, “Towards the Rule of Law?” 51 A.J.I.L. 517-529 (1957).

41 See above, p. 554.

42 Interhandel Case, TJ. S. Preliminary Objections (cited note 26 above), pp. 19-20.

43 [1959] I.C.J. Rep. 26.

44 Ibid.54.

45 For their peremptory domestic jurisdiction reservations, see 1957-1958 I.C.J. Yearbook 199 ff.

46 The legal effect of reservation 1 (vi) of the United Kingdom Declaration of Nov. 26, 1958 (see 53 A.J.I.L. 323 (1959)) modifying reservation (v) of its Declaration of April 18, 1957, which excluded from acceptance of compulsory jurisdiction disputes “relating to any question which, in the opinion of the Government of the United Kingdom,affects the national security of the United Kingdom or of any of its dependent territories” is not entirely clear. Cf.E. Lauterpacht, 8 Int. and Comp. Law Quarterly 199-201 (1959).

47 [1959] 1.0 J . Rep. 98-100.

48 Ibid.95-119.

49 Ibid.54-59.

50 Ibid.75-79.

51 Ibid.32.

52 ibid.90-94.

53 Ibid.76-77.

54 ibid.119.

55 Cf.C. Wilfred Jenks, The Common Law of Mankind 155 (1958): “ It is not widely realised that the United States is the only power which can at the present time invoke the protection of compulsory arbitration in respect of claims by its nationals against a wide range of other countries. It is entitled to do so by clauses of a continuing character specifically applying to such cases which were included in the Economic Co-operation Agreements concluded in connection with the Marshall plan and other measures of international economic and financial assistance. The protection secured by the United States in this manner is limited by the reservations to the United States acceptance of the Optional Clause including the reservation of matters of domestic jurisdiction as determined by the United States; these reservations are applicable to these agreements in virtue of clauses contained therein and can presumably be invoked by either party thereto in its own favour.” For examples, see 1948-1949 I.C.J. Yearbook 152 fl.

56 No judge expressed a contrary view, although Judge Kojevnikov thought the Third Objection should also have been upheld as an objection to jurisdiction. [1959] I.C.J. Rep. 31.

57 Ibid.27.

58 lbid.29.

59 Ibid.80-81.

60 Ibid.32.

61 Ibid.83-84.

62 Ibid.22.

63 A Swiss attempt to modify the Swiss submissions so as to ask, alternatively, for a mere declaratory judgment that the United States refusal to restore Interhandel's vested assets was a violation of international law, was declared inadmissible by the Court “at the present stage of the proceedings” on the ground that it “does not constitute a mere modification; it constitutes a new claim involving the merits of the dispute” and liad been tardily introduced after proceedings on the merits had been suspended in order to hear arguments on the U. S. Preliminary Objections. Ibid.19-20.

64 lbid.31.

65 Interhandel Case, Oral Proceedings (cited note 7 above), p. 68.

66 See, for example, Henri, Rolin, “Les Principes de Droit International Public,” 77 Hague Academy Recueil des Cours 377-393 (1950, II ).Google Scholar