CYIL vol. 14 (2023)

CYIL 14 (2023) THE MONETARY GOLD PRINCIPLE the UNGA resolution in a hypothetical case be a part of much larger puzzle of other sources of international law confirming uniformly one way of analysis of a legal question concerning a third-state’s legal interests, one feels extremely uncomfortable with refusal to accept its contents as “a given”. Consider the assessment of illegality of the Russian invasion and subsequent declaration of annexation of the occupied territories of Ukraine into the Russian Federation. The illegality of those acts have not been settled authoritatively yet, certainly not be the UNSC. Nonetheless, it was stated by the UNGA resolutions, 45 by the Council of Europe, 46 many states and other relevant actors have confirmed its illegality as well. 47 Should there be a case in front of the ICJ, to which the Russian Federation would not be a party, regarding a claim that might only be entertained by first assessing the illegality of the Russian actions mentioned above, refusing to entertain such claim by relying on the Monetary Gold principle would run face-to-face to “a given” in question. And refusing the illegality of those actions as “a given” when the overwhelming majority of the international community has accepted it as such, runs against the very purpose of peaceful settlement of disputes. As will be seen below (in chapter on analysis of sources of the Monetary Gold principle), the Monetary Gold evolved in certain circumstances (mid-20 th century with its roots in the 19 th century) that have changed. The ever more interrelated international relations demand the evolutive interpretation of the applicable law, in order to sustain the effective functioning of international judicial bodies. Considering the activity of the Ukrainian government on the international judicial sphere, it may soon be a realistic question in front of either the ICJ or another international judicial body. Nuclear Disarmament Cases While it was not the Monetary Gold principle that the ICJ used as a reason not to proceed to merits in the Nuclear Arms Race cases 48 , it was rather the non-existence of a dispute between the parties, 49 the principle appeared in the Separate opinion of Judge Tomka. Considering the fact that the claim of not fulfilling obligations stemming from nuclear disarmament (including obligation to negotiate in good faith with that goal) could not be decided upon without presence of the other parties to such negotiations (i.e., other nuclear powers), who were not parties to the dispute, he concluded that the Monetary Gold principle would render the case inadmissible, had the Court not refused to exercise its jurisdiction even before on other grounds. His reasoning seems to build upon similar grounds like the above-stated criticism of the Certain Phosphates conclusions, i.e., upon criticism of the narrow understanding of the Monetary Gold principle. Like there, in order to apply the Monetary Gold principle, the consideration of merits would not have to be conditioned time wise by an assessment 45 E.g., the UNGA Res. ES-11/1, Aggression against Ukraine (18 March 2022). 46 E.g., Resolution 2436 (2022) of the Parliamentary Assembly of the Council of Europe (28 April 2022). 47 For an overview, see the international blogosphere. Also, for example LIPOVSKÝ, Milan, [New (special) international criminal tribunal for the crime of aggression against Ukraine or „old” paths?] (in Czech language), in Jurisprudence 2(2023). 48 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. 49 For analysis, see LIPOVSKÝ, M., ‘Existence of a dispute in front of the ICJ’, in 8 Czech Yearbook of Public & Private International Law (2017).

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