CYIL vol. 14 (2023)

MILAN LIPOVSKÝ CYIL 14 (2023) of a preceding violation of international law by a third state, it would rather have implied consequences to the third states. Still, Judge Tomka would have applied the Monetary Gold principle in this case and by doing so, seems to agree with the wider understanding of the principle. Although being in conflict with the narrow understanding in this regard, he does not go far from the previous case law though, he rather builds upon different reasons. His reasoning for the application of the Monetary Gold principle lies in the bilateral nature of contentious proceedings in front of the ICJ. That nature is reflected in the need to give consent to the exercise of jurisdiction (which is the reason for the narrow understanding) as well, but in wider sense, his Monetary Gold principle understanding seems to lean rather on the safeguarding of rights of the third states to express their opinions, 50 than on the consent to exercise of jurisdiction. In that regard, Judge Tomka expressed the need for wider understanding of the Monetary Gold (although quite unhappily because of the consequences to functioning of the ICJ). In that regard, the author of this article, agrees with Judge Tomka. The principle, as the Court established it, is not exactly “friendly” to the exercise of ICJ’s jurisdiction in the 21 st century of increasingly interconnected world and legal interests. On the other hand, there remains an already briefly mentioned way how to avoid the unfriendliness of the Monetary Gold principle in its wider understanding and yet allow effective contentious proceedings between parties that have consented to it, despite possible existence of third affected states. It could be persuasively claimed that affected third states can request to become intervening parties to the proceedings under Art. 62 SICJ and thus safeguard their potentially affected legal interests. By doing so, under the condition that the Court allows it under Art. 62(2) SICJ, they would be allowed to present their opinions, as that is understood as one of the reasons for the existence of the Monetary Gold principle, and attempt to safeguard their own legal interests. That is not the same as winning of course. But neither parties to the dispute have any guarantee of victory. The right to seek intervention could thus be a way how to uphold (even the wider understanding of) the Monetary Gold principle and prevent blocking of contentious proceedings where at least two states agree to submit a case. If such an exception to the Monetary Gold principle is not accepted though, it would certainly be true that the principle “ is irreconcilable with the ICJ Statute’s jurisdictional architecture, and that, even when assessed with a broader set of metrics, its time has come ”. 51 The case law of the ICJ concerning the third party’s intervention (and assessing whether it could create an exception to the Monetary Gold principle) is rather confusing though. Such a claim was raised in the Monetary Gold case already. 52 And while addressing the argument, the ICJ raised a significant question – there is indeed a right to request intervention but what if the relevant third state does not request it? The Court remained on safe ground and claimed that when the third party’s “ legal interests [are] not only […] affected by a decision, but […] 50 Separate opinion of Judge Tomka 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. 38. 51 MOLLENGARDEN, Z., ZAMIR, N., ‘The Monetary Gold Principle: Back to Basics’, in 115(1) American Journal of International Law (2021), p. 42. 52 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. 17.

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