CYIL vol. 14 (2023)

CYIL 14 (2023) THE MONETARY GOLD PRINCIPLE determine first “ certain legal questions upon the solution of which depends the delivery of the gold” 17 . Later, on the next page of the judgment, the ICJ went on to say that in order to decide to whom the gold should be given, it would first need to decide upon whether Albania committed a violation of international law (towards Italy), and if so, whether compensation was due, and if so, it would have to determine the exact amount of compensation. All that with Albania absent in front of the ICJ! Consequently, in order to decide upon the merits of the case, the ICJ would first have to make assumptions upon the legal interests of a third state that has not given its consent to the exercise of the Court’s jurisdiction. This necessary step-by-step process combined with lack of consent to the first step by a relevant state, was bothering the judges and so they declared that: “ To adjudicate upon the international responsibility of Albania without her consent would run counter to a well-established principle of international law embodied in the Court’s Statute, namely, that the Court can only exercise jurisdiction over a State with its consent .” 18 In other words, absent the third state’s consent, if its legal interests constitute the very subject-matter of the case (as the Court added) the Court is prevented from exercising jurisdiction in that case. 19 What was here called step-by-step, the ICJ referred to a as a temporal (we may also call it conditional) approach – a decisions on the merits of a submitted claim could only be taken if another assumption/decision on legal interests (international responsibility) of an absent party would be done first. And because the Statute of the ICJ is based upon a consensual exercise of jurisdiction, to do so would run counter the basic principles of the Statute. The ICJ did not rely on an explicit rule in the Statute, it rather developed it from the systematics and purpose of the contentious proceedings combined with the consensual nature of exercise of the ICJ’s jurisdiction. Thus, it pretty much relied on the development of the procedural rules in front of the ICJ from arbitral proceedings of the 19 th and beginning of the 20 th century. While, it was right to see the roots, especially considering the refusal of its creators, to endow the ICJ with compulsory jurisdiction that would completely obliterate the need for any principle of this nature, it unfortunately did not distinguish between cases where consent to the exercise of ICJ’s jurisdiction is given by an agreement between the parties to the dispute (or a compromissory clause in an agreement binding the parties of the proceedings only), from cases where the consent was present through a declaration of acceptance of jurisdiction of the ICJ in accordance with Art. 36(2) SICJ where even the possibly affected third party has declared so. On the one hand, the ICJ did not need it. On the other, it failed to see the need for an interpretation of the SICJ in a way that would allow for the development of international law trending toward an improvement of the functionality of the system of judicial settlement of disputes. Had it done so, some of the still questionable topics would be clearer. Particularly regarding the affected third party in case of its passivity.

17 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, p. 16.

18 Ibid, p. 16. 19 Ibid, p. 17.

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