CYIL vol. 14 (2023)

CYIL 14 (2023) THE MONETARY GOLD PRINCIPLE allow a third state’s interests to be properly addressed by the right to seek intervention in proceedings. The goal of this article is thus to analyse the case law of international judicial bodies that discussed and applied the principle, comment upon it, and consider its strengths and weaknesses as well as to highlight remaining opened questions. Before turning to next chapter, one thing should be mentioned. While stemming from the consensual character of the exercise of jurisdiction, the principle is a matter propriety of exercise of jurisdiction. Thus, it is not a question of existence of jurisdiction, it is rather a matter of admissibility. There are of course contrary opinions 8 and because the roots of the principle are based in the regulations of existence of jurisdiction, they are not few. In any way however, the ICJ and other bodies deal with the Monetary Gold principle as having the potential to render cases inadmissible. The author of this article agrees with that conclusion. Existence of jurisdiction is given in the binary relationship between the claimant and the defendant, while the matter of the Monetary Gold principle relates to a third party. The way how the third-party joins (and thus creates an exception to the applicability of the Monetary Gold principle) does not stem from giving consent to the jurisdiction (in the binary relationship that it does not belong to), but rather to its exercise . In that vein, the ICJ often debates exercising of jurisdiction in relation to the principle, not its existence. 2. Nature of the rule – general principle of law, case law, logical conclusion of various provisions of the Statute of the ICJ? The ICJ has never properly paid attention to the source of law in which it found the principle. By referring to the Statute of the ICJ (SICJ), it most likely meant that the principle stems from the systematics of the Statute and a combination of effects of various principles present therein. 9 While the principle could also be considered as a general principle of law under Art. 38(1) c) SICJ, for such conclusion, it would have to be found in many domestic legal systems around the world. Not only has the ICJ not made an effort to find it so, it would probably not even be possible considering that exercise of jurisdiction before domestic courts is usually compulsory (as opposed to consensual in front of the ICJ and some other international judicial bodies). Thus, as identified in judgments of the ICJ, awards of tribunals, and other decisions of international judicial bodies, and at the same time, because the principle is not explicitly stated in the written applicable law, it is formalistically case law under Art. 38(1)(d) SICJ, i.e., a subsidiary source of international law. 10 While such conclusion is purely formalistic, it has its consequences in case of any judicial body deciding to disregard the principle. To do so, it would “only” have to reinterpret its sources, rather than identify differentiating rules in sources of primary sources of international law. 8 See e.g., the Dissenting opinion of Judge Skubiszewski to ICJ, East Timor (Portugal v. Australia), Judgment (30 June 1995), ICJ Reports 1995, para. 40. 9 Dissenting opinion of Judge Weeramantry to ICJ, East Timor (Portugal v. Australia), Judgment (30 June 1995), ICJ Reports 1995, p. 163. 10 MOLLENGARDEN, Z., ZAMIR, N., ‘The Monetary Gold Principle: Back to Basics’, in 115(1) American Journal of International Law (2021), p. 70.

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