CYIL vol. 14 (2023)

CYIL 14 (2023) THE MONETARY GOLD PRINCIPLE and other judicial bodies to formulate the Monetary Gold principle in order to protect the third states that might be affected by those judgments. When dealing with the obvious in Art. 59 SICJ, it might seem that the ICJ largely ignored this “quasi-precedential” value of its judgments in Certain Phosphates . There the Court stated that “ the interests of the third State which is not a party to the case are protected by Article 59 of the Statute of the Court .” 63 Nonetheless, it must be read in context. In the same paragraph, the Court first addressed the issue of the right to apply for permission to intervene under Art. 62 SICJ for states whose legal interests might be affected by the decision in the case. Subsequently, it also stated that if there are such states, should their interests additionally form the very subject-matter of the decision in question, it would be prevented from exercising the jurisdiction. Thus, what the Court says is that only if there are no non parties to the proceedings whose rights would form the subject-matter of the decision, and the claim can thus be entertained by the Court, are other states protected against binding effects of the decision guaranteed by Art. 59 SICJ. Consequently, the Court only meant to highlight the protection against binding effects as limited to states whose rights are not affected by the decision in question at all. It did not say, however, that there are no effects at all. Rather, it left the quasi-precedential effects unaddressed. Logically, as indicated above, the quasi-precedential value stems from the fact that, despite no binding effects outside the scope of parties to the original dispute, should there be a similar legal question in new proceedings in future, the ICJ (and similar international judicial bodies) will very likely turn to the previous solutions of those legal matters and only divert from them if there are distinguishing factors. Otherwise, the judicial bodies are likely to solve the legal questions the same way. Case law of the judicial bodies very often refers to jurisprudence of its predecessors, other judicial bodies, and logically its own as well. The quasi-precedential value is thus no imagination but reality. And so, if there is a third state legally interested in proceedings that it is not a party to, the decision on the merits will particularly concern this third state. Should it ever commence its own proceedings, it will likely be influenced by the previous judgment. Thus, the reason for the Monetary Gold principle lays in the interplay between res iudicata and the quasi-precedential value of the judgments. The last major rationale behind the Monetary Gold principle may be seen very close the quasi-precedential value but is still independent. It is the right of a state potentially influenced by a decision to be heard in order to be able to influence it. If the state is not heard, it should be protected against the consequences. Implicitly, it is also interconnected with the consensual nature of the exercise of jurisdiction and consensus to bear the consequences of the exercise of jurisdiction, i.e., even the quasi-precedential nature of decisions on the merits. This rationale is thus also related to the due process right, those that the right to be heard is part of. The opinion of author of this article is that all three raised roots of the Monetary Gold principle may be safeguarded with the right to intervene as a third state in proceedings between other states. The role of the right to intervene being an appropriate mechanism for safeguarding rights of third states is confirmed by doctrine as well, sometimes it is even claimed to work in the opposite direction than the Monetary Gold principle itself. 64 While 63 ICJ, Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment (26 June 1992), ICJ Reports 1992, para. 54. 64 MOLLENGARDEN, Z., ZAMIR, N., ‘The Monetary Gold Principle: Back to Basics’, in 115(1) American Journal of International Law (2021), p. 43.

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