CYIL vol. 14 (2023)

CYIL 14 (2023) THE MONETARY GOLD PRINCIPLE form the very subject-matter of the decision ” 53 , the (Albanian) absence is an unsurmountable obstacle. Thus, it implicitly indicated that absence (no matter whether voluntary or not) of the third affected state, whose legal interests form subject-matter of the case, renders the case inadmissible. Without any exception, that is indeed a strict position and was later reviewed by the Court. When dealing with the Monetary Gold principle again in 1992 in Certain Phosphates , the ICJ referred to the Monetary Gold case judgment and when addressing the topic of the legal interests of the third state (Albania in the older case), it highlighted the fact that Albania did not use the right to apply to intervene under Art. 62 SICJ. 54 In para. 51, it also referred to the Military and Paramilitary Activities in and against Nicaragua 55 judgment that stated that if there is a third party whose legal interests might be affected by the decision on the merits (and possibly even when its interests form the very subject-matter 56 ) in a dispute to which it is not a party, the Monetary Gold principle does not render the case inadmissible, because third states could either request the right to intervene or institute a separate proceedings. 57 Indeed, a new exception to the application of the Monetary Gold principle seems to stem from this statement. In combination with reference to the Nicaragua judgment, that may legitimately be interpreted, as if the Court meant to indicate that successfully using the right to intervene would be satisfactory to guarantee the legal interests of the third state. Unfortunately then the ICJ avoided giving a clear answer and simply stated the (at the moment) necessary: “ the absence of such a request in no way precludes the Court from adjudicating upon the claims submitted to it, provided that the legal interests of the third State which may possibly be affected do not form the very subject-matter of the decision that is applied for. ” 58 Such a statement only confirms the obvious – if the third state’s interest do not form the very subject-matter of the claim, there is no Monetary Gold principle application necessary. It does not say anything about the situation when the third state’s legal interests in fact form the subject matter, and consequently whether the intervention would help to circumvent the Monetary Gold principle under those circumstances. On the other hand, it did refer to the Nicaragua judgment and also did not exclude the latter scenario as possible. Thus, the question that remains to be answered, is whether the right to seek permission to intervene in the proceedings (or alternatively the right to institute a separate proceedings) satisfactorily circumvents the reasons behind the Monetary Gold principle (i.e., whether it creates an exception to its applicability), and could thus be a way how to uphold the principle and yet allow contentious proceedings in front of the ICJ in the 21 st century effectively. Because the statutes of the judicial bodies applying the Monetary Gold principle, including the SICJ, do not contain the principle explicitly, the answer depends on what is the basis of 53 Ibid , p. 17. 54 ICJ, Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment (26 June 1992), ICJ Reports 1992, para. 50. 55 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment (26 November 1984), ICJ Reports 1984. 56 While the Court does not say that explicitly in the same sentence, reading the entire paragraph goes that way, especially with reference to the Monetary Gold limits mentioned in the end. 57 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment (26 November 1984), ICJ Reports 1984, para. 88. 58 ICJ, Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment (26 June 1992), ICJ Reports 1992, para. 54.

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