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CASE COMMENT:

CASE OF THE MONETARY GOLD


REMOVED FROM ROME IN 1943

(JUDGMENT OF JUNE 15th, 1954: I.C. J. Reports 1954, p. 19.)

3.2- INTERNATIONAL LAW

Submitted by

Aakash Chakole

UID: UG2018-02

B.A.L.LB. (Hons.) 2nd Year- III Semester

Submitted to

Dr. Shuvro Prosun Sarker

(Assistant Professor of Law)

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR


CASE COMMENT:
CASE OF THE MONETARY GOLD
REMOVED FROM ROME IN 1943
(PRELIMINARY QUESTION)
ITALY v. FRANCE, UNITED KINGDOM OF GREAT
BRITAIN AND NORTHERN IRELAND AND
UNITED STATES OF AMERICA
JUDGMENT OF JUNE 15th, 1954: I.C. J. Reports 1954, p. 19.

INTRODUCTION
The story begins in 1925 when a group of Italian financiers concluded with the Albanian
Government a Banking Convention which was approved by the Albanian Parliament and
promulgated as a law of the Albanian State by virtue of a Presidential Decree.8 By this
Convention the Albanian Government undertook to grant, for a period of fifty years, to the
National Bank of Albania (which was to be established by the group) the exclusive privilege
of issuing notes which would be legal tender in Albania and of carrying on banking
operations there. By September 16, 1943, the Italian Government had acquired 88.5 per cent.
of the share capital of the National Bank of Albania. The significance of this date is that it
was on that day that the Germans seized and removed to Germany 2,33887565 kilograms of
monetary gold which belonged to the National Bank of Albania as backing for the Albanian
currency and which was held in various buildings in Rome. On January 13, 1945, the
Albanian Anti-Fascist Committee of Liberation adopted a law which abrogated the Banking
Convention of 1925 and confiscated without indemnity the assets of the National Bank of
Albania.1

FACTS AND ISSUES


In the month of September 1943 the gold was seized by the Germans from Rome. After the
world war, according to the Part III of the Agreement on Reparation From Germany, which
provided that the monetary gold found in Germany should be distributed among the countries

1 D. H. N. Johnson, THE CASE OF THE MONETARY GOLD REMOVED FROM ROME IN 1943, Published
by Cambridge University Press, p. 96.
Source: The International and Comparative Law Quarterly, Vol. 4, No. 1 (Jan., 1955), pp.93-115.
entitled to receive it. The implementation of the provisions of Part I11 having been entrusted
to the Governments of France, the United Kingdom and the United States, these three
Governments appointed a Tripartite Commission for the Restitution of Monetary Gold2 to
assist them in this matter. Both Albania and Italy claimed that the gold seized by the Germans
was theirs, and that the Tripartite Commission should return it to them. In respect of a
quantity of gold removed from Rome in 1943, which belonged to the National Bank of
Albania, the Tripartite Commission, confronted by competing claims of Albania and Italy,
was unable to give a decision. The three Governments then agreed to submit the question to
an arbitrator (Washington Agreement of April 25th, 1951). 3At the same time, they declared
that if the finding of the arbitrator should be in favour of Albania, they would be confronted
by another problem, since the gold was claimed by Italy and by the United Kingdom for
reasons not covered by Part III of the Paris Agreement; and they decided that the gold would
delivered to the United Kingdom in partial satisfaction of the Judgment of the court: of
December 15th, 1949, in the Corfu Channel case unless within a certain time-limit from the
date of the arbitrator's Opinion, either Albania applied to the Court requesting it to adjudicate
on her rights, or Italy made an Application to the Court for the determination of the questions,
first, whether by reason of any rights which she claimed to possess as a result of the Albanian
law of January 13th. 1945, or under the provisions of the Italian Peace Treaty, the gold
should be delivered to her rather than to Albania, and second, whether the Italian claim
should or should not have priority over the claim of the United Kingdom, if this issue should
arise.

Thus, within the prescribed time-limit, Italy made an Application to the Court which was
communicated in the customary manner to States entitled to appear before the Court and also
transmitted to the Albanian Government. Time-limits for the filing of the pleadings were then
fixed by the Court. However, instead of presenting its Memorial on the merits, the Italian
Government questioned the jurisdiction of the Court to adjudicate upon the first question
relating to the validity of the Italian claim against Albania. The Parties having been requested
to submit their views on the problem thus raised, the Italian Government contended that the
Court did not have a sufficient basis for adjudication on the ground that the proceedings
contemplated by the Washington Statement were in reality directed against Albania and that

2
The Tripartite Commission for the Restitution of Monetary Gold also known as Tripartite Gold Commission,
was a panel established in September 1946 by the United Kingdom, United States and France to recover gold
stolen by Nazi Germany to eventually return it to the rightful owner.
3
Supra footnote 1.
Albania was not a Party to the suit. As regards the United Kingdom, it saw in the challenge to
the Court's jurisdiction made by Italy a ground for questioning the validity of the Application
which, in the submission of the United Kingdom, should be regarded as not conforming to
the Washington Statement or as invalid and void, or as withdrawn. The two other respondent
Governments, France and the United States, did not deposit formal Submissions.

Submissions by the respective States


By Italy-

That the Statement to accompany publication of the Agreement between the Governments of
the French Republic, the United Kingdom of Great Britain and Northern Ireland and the
United States of America for the submission to an arbitrator of certain claims with respect to
gold looted by the Germans from Rome in 1943 is not a sufficient basis upon which to found
the jurisdiction of the Court to deal with the merits of the claim set forth under No. 1 of the
Sub- missions of the Application submitted to the Court by the Government of the Italian
Republic on May 19th, 1953; That the Court is consequently without jurisdiction to
adjudicate upon the merits of the said claim; That the Court, whatever may be its decision on
the question of jurisdiction referred to above, is without jurisdiction to adjudicate upon the
claims contained in No. 1 and No. 2 of the Submissions of the Government of the United
Kingdom dated March 26th, 1954.4

By United Kingdom in reference with the submissions of Italy-


In view of the Italian Government's Objection on the question of competence, its Application
to the Court of May 19th, 1953, does not conform, or no longer conforms, to the conditions
and intentions of the Tripartite Washington Statement of April 25th, 1951, and is accordingly
invalid and void, so that there is no longer before the Court any "application . . . for the
determination of" the question which, under the Tripartite Statement, Italy was entitled to put
to the Court; Alternatively, that the action of the Italian Government in objecting to the
competence of the Court amounts to a withdrawal or cancellation of its Application of May
19th, 1953, and disqualifies Italy from proceeding any further under the Tripartite
5
Washington Statement;

4
Oliver J. Lissitzyn, Case of the Monetary Gold Removed from Rome in 1943 (Preliminary Question) , p. 653.
Source: The American Journal of International Law,Vol. 48, No. 4 (Oct., 1954), pp. 649-655
(available at- http://www.jstor.org/stable/2195036)
5
Ibid.
In consequence, the United Kingdom is entitled by the Tripartite Washington Statement to
receive a transfer of the gold in the same manner as if Italy, as well as Albania, had not
applied to the Court under the relevant provisions of the Statement.

Final submission-

1. That, in view of Italy's objection on the ground of the alleged lack of competence of
the Court, her Application to the Court of May 19th, 1953
(a) Does not conform to the conditions and intentions of the Tri- partite Washington
Statement of April 25th, 1951, or alternatively
(b) Has been in effect withdrawn or cancelled by Italy, and is there- fore invalid and
void;6
2. That Italy is, in the circumstances, to be deemed not to have made any application to
the Court within the meaning and for the purposes of the Tripartite Washington
Statement. Alternatively
3. That, if the Court holds, contrary to the contentions of the United Kingdom, that the
Italian Application is still valid and subsisting, the Court has jurisdiction to determine
on their merits the questions put to the Court in the Italian Application.

France and the United States did not deposited there formal submissions.

Judgement and Reasoning of the Court

The Court dealt first with the Italian Submission that it had no jurisdiction to adjudicate upon
the two United Kingdom Submissions which in turn asked the Court to find that the Italian
Application was void or had in effect been withdrawn. This argument was dismissed in the
following words:

“The Court cannot consider itself as lacking jurisdiction to adjudicate upon the validity,
withdrawal or cancellation of an application which has been submitted to it: to adjudicate
upon such questions with a view to deciding upon the effect to be given to the Application
falls within the purview of its judicial task.”7

6 Oliver J. Lissitzyn, Case of the Monetary Gold Removed from Rome in 1943 (Preliminary Question) , p. 654.
Source: The American Journal of International Law,Vol. 48, No. 4 (Oct., 1954), pp. 649-655
(available at- http://www.jstor.org/stable/2195036)
7
Original Judgement, p. 28
The Court next dismissed the two United Kingdom Submissions in question. After stating
that Article 62 of the Rules of Court did not preclude the Applicant from presenting a
Preliminary Objection, it drew a distinction between the acceptance of jurisdiction involved
in making an Application and the question of jurisdiction to deal with the merits. Thus, the
Court said:

“The Court finds that Italy's acceptance of jurisdiction is one thing, while her raising of a
legal issue on jurisdiction is quite another. It cannot be inferred from the making of the
Preliminary Objection that Italy’s acceptance of jurisdiction has become less complete or less
positive than was contemplated in the Washington Statement. She continues to hold herself
out as being subject to the Court's jurisdiction in these proceedings after the raising of the
Preliminary Objection as much as she did before taking that step. The same considerations
apply to her request for the determination of the questions submitted in her Application. She
has requested the Court to settle the problem of jurisdiction before determining those
questions. This does not mean that she is asking the Court not to determine those questions
under any circumstances.”8 The Court therefore found that it had been “validly seized of the
Application and that this Application, contrary to the Submissions of the United Kingdom
Government, still subsists.” There had been no discontinuance of proceedings within the
meaning of Article 69 of the Rules of Court.

The Court next turned to the question of its jurisdiction to deal with the merits. After
repeating that “the Application is in conformity with the offer made in the Washington
Statement” it said, in a passage of general importance, that the three Governments and the
Italian Government “ by their separate and successive actions-the adoption of the Washington
Statement, in the one case, and in the other case, the deposit on May 19, 1953, of the
Declaration of acceptance of the jurisdiction of the Court and the filing of the Application
have referred a case to the Court within the meaning of Article 36 (1)9 of its Statute. They
have thus conferred jurisdiction on the Court to deal with the questions submitted in the
Application of the Italian Government.”

The Court next considered the faculty given to a third State by Article 62 of the Statute to
intervene if it has “an interest of a legal nature which may be affected by the decision in the

8
Ibid, p. 29.
9
Article 36 (1) of the Statute reads: “The jurisdiction of the Court comprises all cases which the parties refer to
it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in
force.” The part in italics is the relevant part
case. “It decided, however, that a mere failure on the part of a third State to exercise this
faculty did not warrant a departure from the well- established principle that” the Court can
only exercise jurisdiction over a State with its consent.” The Court also rejected the
contention that it could exercise jurisdiction in the case since Albania, not being a party
before the Court, would not in any event be bound by the decision. The Court said, “ that,
under Article 5910 of the Statute, the decision of the Court in a given case only binds the
parties to it and in respect of that particular case. This rule, however, rests on the assumption
that the Court is at least able to render a binding decision. Where, as in the present case, the
vital issue to be settled concerns the international responsibility of a third State, the Court
cannot, without the consent of that third State, give a decision on that issue binding upon any
State, either the third State, or any of the parties before it.”11

Finally the Court found that it could not adjudicate upon the second Italian Submission (i.e.,
the question of the priority of the Italian and the United Kingdom claims “if this issue should
arise”) since this issue could not arise at all unless Italy first established her claim against
Albania.

ANALYSIS
At first sight Judge Levi Carneiro's conclusion may seem surprising, though it will command
a certain sympathy, partly for the reason that it is a perfectly tenable construction of the terms
of the Tri- partite Statement, but still more perhaps because of the fear he expressed that the
refusal of the Court to intervene in any way, after the three Allied Governments concerned
had addressed themselves to the Court asking it to give them guidance might well “ give rise
to a deadlock or aggravate the difficulties.” There was, it is submitted, a certain resemblance
between the action taken by the three Governments and the action sometimes taken by
trustees confronted with difficult problems in connection with the administration of a trust,
and on the whole there were cogent reasons why the Court should strive to find in favour of
its authority to adjudicate upon the issues if it could possibly do so.

The question whether the Italian Application complied or did not comply with the terms of
the Tripartite Statement, and the question whether the Application was subsequently
cancelled or withdrawn, are likewise only of ephemeral interest and will also not be

10
Article 59 states as: “The decision of the Court has no binding force except between the parties and in respect
of that particular case.”
11
Original Judgement, p. 33.
discussed. Given, however, the hypothesis-which all the judges accepted-that, for want of
Albania's consent, the Court lacked authority to adjudicate upon the first Italian Submission,
the view of Sir Arnold McNair and Judge Read that there was a fundamental defect in the
Application seems more logical than the Court’s opinion that the Application was both valid
and subsisting.12 It is difficult indeed to reconcile the Court's statement that it could not deal
with the first Italian submission “without the consent of Albania” with its other statement that
it was “validly seized of the Application.” So far as the future of the proceedings was
concerned, this difference of view was of course of no significance.

CONCLUSION
The Court’s judgment gives the impression that certain dicta, properly applicable to the
question whether or not the Court should exercise a discretion in favour of giving an advisory
opinion, were applied somewhat too literally to the different circum- stances of a contentious
case. It can be concluded that examples such as these deserve careful consideration before the
already limited jurisdiction of the Court is limited still further by undue respect for the
interests of third State.

12
D. H. N. Johnson, THE CASE OF THE MONETARY GOLD REMOVED FROM ROME IN 1943,
Published by Cambridge University Press, p. 15.
Source: The International and Comparative Law Quarterly, Vol. 4, No. 1 (Jan., 1955), pp.93-115.