CYIL vol. 14 (2023)

MILAN LIPOVSKÝ CYIL 14 (2023) A matter that has not been clearly addressed though (because the ICJ did not need to address it), is whether such “a given” would need to be settled by a binding way. This was left for another case reasoning, of even another judicial body, the PCA in the next described case. Larsen v. “Hawaiian Kingdom” Case This case is of a slightly different nature because only one party was (claimed to be) a state. 38 Nonetheless, it indicates that the Monetary Gold principle’s applicability is not limited to inter-state proceedings. It is rather limited to proceedings applying international law where the exercise of jurisdiction of the body is based upon consent of the parties. The entire issue concerned a curiously intricate system of claims that raised various problems. But in general, it may be summarized that it was originally a claim raised by a private person acting as an applicant, against the respondent denoted as the “Hawaiian Kingdom by its Council of Regency”, which, as he claimed, was still a sovereign over its territory in the end of 20 th century and kept violating international law by allowing the USA to exercise its rights within Hawaii. 39 In rare agreement, the respondent also agreed that the rights of the claimant were being violated, it however claimed the responsible state was the United States of America. 40 The applicant subsequently changed the claim, although only slightly, in order to attempt to avoid the Monetary Gold principle’s application, the PCA still relied on it however, referring to case law of the ICJ, 41 and refused to continue in the proceedings, because, as it stated, it would have to first adjudicate upon the legality of US activities within the Hawaiian territory. 42 The award unsurprisingly confirms the reading of the Monetary Gold principle in its narrow understanding – in the temporal preconditioning form. To make an assessment of the merits, the arbitrators would in every possible way have to first make a finding upon the legality of the presence of the USA in Hawaii. While intervention of a third party was not possible for the PCA, it made interesting statements upon “the givens”. As stated above, in the East Timor Case, the ICJ did not rule out the possibility of “givens”, i.e., legally settled topics, being an exception to the applicability of the Monetary Gold principle. But it did not express its opinion about the (non)binding nature of the sources of the givens. The PCA in the Larsen case explicitly allows for the givens to be legal issues previously settled by an authoritative statement of the UN Security Council regarding the very matter. 43 Thus, in general, by accepting “givens” as settling the third-state’s (not party to the proceedings) legal interests, it formulated another exception to the applicability of the Monetary Gold principle. But it also left open the questions of whether the same would apply to a non-binding source, such as a UNGA resolution. Indeed, the ICJ relied on the content of the resolutions in the East Timor case as a reason for them not forming “a given”. But it also explicitly refused to rule on the role of their (non) binding character. 44 That means it did not rule such possibility out either. Should for example, 38 We may talk about mixed claims jurisdiction – CRAWFORD, James. Brownlie’s Principles of Public International Law . 8 th ed., Oxford: OUP, 2012, p. 715. 39 PCA, Larsen v. Hawaiian Kingdom , 1999-01, Award (5 February 2001), paras. 2.3., 5.3. and 6.2. 40 Ibid , paras. 5.4.–5.5. 41 Ibid , paras. 11.8.–11.15. 42 Ibid , para. 12.15. 43 Ibid , para. 11.24. 44 ICJ, East Timor (Portugal v. Australia), Judgment (30 June 1995), ICJ Reports 1995, para. 32.

68