CYIL vol. 14 (2023)

MILAN LIPOVSKÝ

CYIL 14 (2023)

3. Statutory and case law framework This chapter is dedicated to brief introduction of the cases that the ICJ and other significant international judicial bodies dealt with the Monetary Gold principle in, assessment of the conclusions and using that as a basis, pointing out significant legal development and remaining problems. Logically, the focus is primarily on the case law of the ICJ, as that judicial body itself has introduced the principle. The presented cases are limited to the most significant ones and their order is generally directed by the dates of their decisions. It may be expected however that the list will soon be enlarged because the Monetary Gold principle may very well play significant role in new proceedings in future, including those already commenced but undecided yet. 11 The chapter builds upon the preliminary conclusions and is finished with a summary of established elements and remaining opened questions. Monetary Gold Case The principle takes its name after dispute brought before the ICJ by Italy, acting as an applicant, and France, the United Kingdom, and the United States of America, acting as the respondents, and finished by a judgment on preliminary objections, instead of merits. 12 The reason for the entire proceedings was Albanian gold that was in Rome in 1943 and was removed from the city by the Germans the same year. 13 In the post war period, both the UK (indirectly via its claim against Albania) and Italy (also indirectly via its claims against Albania) raised claims over the gold. The UK’s claim was a follow-up of a previously decided case of the ICJ 14 in which the UK was awarded a compensation for the wrongdoing by Albania. 15 The Italian claim was based upon compensation for alleged wrongdoings caused to Italy by Albania by its law adopted on 13 January 1945. Despite its clear interest in the matter, Albania was not a party to the dispute and neither used the opportunity to seek permission to intervene in the proceedings under Art. 62 SICJ, 16 an issue that later haunted the principle as will be seen in the next pages. Ironically, the entire case never made it to merits due to the Italian (i.e., the applicants!) preliminary objection that doubted the ICJ’s jurisdiction. In response to the statement of the UK’s agent, claiming that Albanian consent to jurisdiction (that was in fact missing) was not necessary to determine the merits, the ICJ replied that such view was incorrect and instead highlighted that it was called upon to 11 Such as the case may be (if Israel does not become involved) in the case submitted to the ICJ: Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America), https://www.icj-cij.org/case/176. 12 ICJ, Case of the Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland, and the United States of America), Preliminary Question, Judgment (15 June 1954), ICJ Reports 1954. 13 The story of the gold found by the Allies in Germany and in other countries was much more complicated and did not involve Albania only. The facts in each case in this section are simplified for the purposes of not extending unnecessarily beyond the points needed to explain the Monetary Gold principle. For other details in this case, see for example the judgment on pp. 1–12. 14 ICJ, Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Compensation, Judgment (15 December 1949), ICJ Reports 1949. 15 Ibid, p. 10. 16 “Article 62 1. Should a state consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene. 2. It shall be for the Court to decide upon this request. ”

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