CYIL vol. 14 (2023)

MILAN LIPOVSKÝ CYIL 14 (2023) history, the principle belongs among the highly disputed topics of the obligation to settle international disputes peacefully 2 . Generally, the exercise of jurisdiction of many judicial mechanisms, including the ICJ, is based upon the consent in the binary relationship of applicant and respondent/parties to the dispute. That means that the body/mechanism can only act (conduct proceedings) with the consent of both parties to the dispute. The Monetary Gold principle builds upon that and guarantees that if at the same time, a decision on the merits in such proceedings would necessarily involve the legal interests of a third state (that has not given its consent to the exercise of such jurisdiction) the judicial mechanism may not continue, entertain the claim raised, and decide about it, provided that the claim’s subject-matter is formed by those legal interests of the third absent party. Thus, the principle is understood to be firmly rooted in the consensual character of the exercise of jurisdiction in proceedings 3 , as it is the case with contentious proceedings in front of the ICJ and some other international judicial bodies. It is quite an unusual issue from the perspective of domestic legal systems because those are usually based upon compulsory jurisdiction, i.e., there is no need for consent on both sides to become parties to the dispute. Nonetheless, compulsory jurisdiction was rejected when the ICJ Statute was negotiated and the consensual character of exercise of jurisdiction is a common feature for other international judicial bodies as well. Though the principle has already existed for decades, its content has been repeatedly doubted and even its very existence is sometimes being questioned. Judge Cançado Trindade even went as far as to declare it as “ nothing more than a concession to State consent, within an outdated State voluntarist framework ” 4 and instead recommended to focus on the people and the principle of humanity. 5 In doctrine, the principle was also criticised and even denoted as conflicting “ with the [ICJ”s] obligation to decide cases submitted by consenting parties and should be abandoned. ” 6 The principle was also criticized as outdated and weakening the position of those fighting for real equality between old and new and big and small states. 7 Indeed, it must be accepted that in an ever more interconnected world, preventing the exercise of jurisdiction for the reason of protecting an absent third party, will gradually become a more serious problem for the effective performance of functions of international judicial bodies. This article suggests however, that it is possible to maintain the existence of the Monetary Gold principle and allow for the effective function of judicial bodies at the same time. All that is needed is to interpret the sources of the principle in a way that will 2 Art. 2(3) of the Charter of the United Nations, 892 UNTS 119, adopted on 26 June 1945, entered into force on 24 October 1945 (UN Charter). 3 In combination with other reasons that are described further as roots of the principle. For making the argumentation simpler, the article refers to “the consensual nature/character” rather than consensual character, res iudicata (and quasi-precedential value of decisions) and right to be heard. In any way, those three elements are strongly interconnected. 4 Dissenting opinion of Judge Cançado Trindade to ICJ, Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom/Pakistan/India), Preliminary Objections, Judgment (5 October 2016), ICJ Reports 2016, para. 131. 5 Ibid , para. 131. 6 MOLLENGARDEN, Z., ZAMIR, N., ‘The Monetary Gold Principle: Back to Basics’, in 115(1) American Journal of International Law (2021), p. 41. 7 Although not using these exact words, Judge Skubiszewski went in that direction in Dissenting opinion of Judge Skubiszewski to ICJ, East Timor (Portugal v. Australia), Judgment (30 June 1995), ICJ Reports 1995, paras. 42–48.

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