Long Live Monetary Gold

A helpful starting point for doctrinal arguments about a procedural principle before an international tribunal is the jurisprudence of the tribunal itself. That judgments of the ICJ are “subsidiary means for the determination of rules of law” in the technical sense is not, as Mollengarden and Zamir suggest, a reason for downplaying them. The International Law Commission (ILC) recently noted, in a conclusion positively received by States,Footnote ³ that “[t]he term ‘subsidiary means’ denotes the ancillary role of such decisions in elucidating the law, rather than being themselves a source of international law” but “does not, and is not intended to, suggest that such decisions are not important.”Footnote ⁴ Before exploring the subtleties of Monetary Gold jurisprudence, why not acknowledge the central point? In the past 30 years, the Monetary Gold principle has been routinely considered by the Court or a substantial number of judges writing individually,Footnote ⁵ and its wholesale rejection has found favor with, at most, one Judge.Footnote ⁶ There may be good reasons to argue that a particular reading of Monetary Gold does not fit within the broader structure and jurisprudence of the Court or other tribunals, that new developments require revisiting older consensus, or that the jurisprudence, while doctrinally persuasive, is normatively unappealing. But none of these is the claim made by Mollengarden and Zamir. Some readers will therefore not be immediately persuaded by the argument against the Monetary Gold principle tout court, when measured against the benchmark of crushing judicial consensus within living memory in its support.Footnote ⁷

Judicial endorsement, of course, is not everything. South West Africa is an example of how a narrowly bilateralist approach to admissibility by the ICJ can get the issue very wrong indeed by failing to appreciate broader multilateral shifts in the international legal order.Footnote ⁸ Fortunately, public international law is an advanced legal order, identifying and calibrating rules by reference to the shifting consensus of relevant actors, and is not beholden to the whims of apex courts that primitive legal orders such as domestic or regional law may be subject to. What sorts of things would one expect to see if the Monetary Gold principle were on the verge of being swept away from the ICJ? With an eye to South West Africa, some examples of the approaching tempest would be severe criticisms in individual judicial opinions and the work of the ILC as well as disapproval in state practice, expressed in political bodies of international organizations, avoidance of submission of disputes or even creation of alternative judicial bodies excluding the principle. I do not immediately see any comparable hints of mistrust and disapproval; quite the contrary.Footnote ⁹ Indeed, Timor-Leste, the purported beneficiary of the only modern case stopped by a Monetary Gold objection, has both accepted the ICJ's jurisdiction in remarkably broad terms and successfully resorted to it.Footnote ¹⁰ A further layer of endorsement comes from outside the ICJ. While other tribunals and relevant actors take different views on how (well) the principle fits and applies within their regimes,Footnote ¹¹ this otherwise diverse practice uniformly takes the ICJ's approach as the starting point and thus necessarily endorses it.Footnote ¹² Far from undermining the overwhelming judicial consensus in support of the principle, the broader reactions to the Monetary Gold principle in judicial and state practice strengthen it yet further.

*Terms and Conditions Apply

It is possible to remain unpersuaded by Mollengarden and Zamir's argument against the Monetary Gold principle and be sympathetic to their policy concerns about its possible implications for multilateral disputes. But a rejection of Monetary Gold, while sufficient, is not necessary for addressing these concerns, as the Court's jurisprudence reveals credible substantive and procedural avenues for engaging with complex multilateral disputes. I will sketch three sets of questions helpful for calibrating the Monetary Gold principle for the modern world, considering in turn its ambiguous foundations and character, interaction with state responsibility, and fit within the broader universe of tribunals and institutions.

Source and Character

The brevity of Monetary Gold's formula and its endorsement by the Court's jurisprudence noted above disguise genuine doctrinal uncertainties about its underpinnings, opening avenues for criticism and refinement, as it were, from within. First, what precisely is the source of the “well-established principle of international law embodied in the Court's Statute”? The Court's language is ambiguous, and not for a lack of ability to explain the pedigree of procedural principles, as it did brilliantly on competence-competence in the contemporaneous Nottebohm case.Footnote ¹³ The ambiguity is deepened by the backdrop practice on arbitration and third-party rights. This practice ranges from bilateral treaty exclusion of consent to arbitration where disputes “concern the interests of third Parties” (before World War One) to a sharp regional division between endorsement of that approach in the Inter-American setting and explicit rejection in the Locarno Treaties and the General Act of Arbitration (in the second half of 1920s).Footnote ¹⁴ Second, the question that divided even the Lauterpachts: does Monetary Gold relate to jurisdiction or admissibility?Footnote ¹⁵ In my view, the better answer is “both”: the real debate is not about the right reading of the principle but rather between its two conceptions, with different policy goals of (rainmaking) protection of actors that are capable, in principle, of appearing before the particular inter-state adjudicator and (altruistic) concerns about due process treatment of actors of various kinds.Footnote ¹⁶ For the former reading, the enlightened self-interest of the adjudicator in increasing the docket motivates them to take seriously the perspective of absent actors because they are capable of modifying the general scope of their consent and choosing (not) to bring particular cases in the future. For the latter, concerns about propriety apply even if actors absent from various adjudicators are not potential parties. Ultimately, whatever view one takes on these questions, there are good doctrinal reasons for debating Monetary Gold less as a first-principles proposition to be particularized in an internally consistent manner and more as an amalgam of rules pursuing tenuously related and sometimes even conflicting policies. In short, Monetary Gold is perfectly open to doctrinal elaboration for those dissatisfied with particular readings.

State Responsibility

The Monetary Gold principle is not just about state responsibility.Footnote ¹⁷ But the Monetary Gold case itself was, as were most ICJ cases to address the principle in the last thirty years.Footnote ¹⁸ Thus, the fit of the principle with the modern law of state responsibility is a helpful starting point for discussing its compatibility with multilateral disputes. This relationship may be summarized in five propositions,Footnote ¹⁹ for the first four of which the Monetary Gold principle is not an obstacle to consideration of the case on the merits. First, the primary rules allegedly breached by the respondent and the absent party are different and in no way contingent.Footnote ²⁰ Second, primary rules allegedly breached by the respondent require it to prevent certain conduct by the absent state or the harm caused by that conduct.Footnote ²¹ Third, the conduct of absent states becomes relevant as a matter of secondary rules of attribution.Footnote ²² Fourth, the breach having been committed jointly does not preclude the admissibility of the claim against one of the responsible actors.Footnote ²³ In these scenarios, despite possible inference or implication as to the legal position of the third state, the claim can proceed—but the Monetary Gold principle does apply in the fifth scenario, where a determination of the legal position of the third state is a necessary prerequisite to the determination of the case before the Court.Footnote ²⁴ There will be reasonable disagreement about the boundaries between these categories and their application to particular disputes,Footnote ²⁵ and applicants will carefully draft claims and prayers for relief to skirt around the fifth category.Footnote ²⁶ But it is hard to argue that this jurisprudence is insensitive to, or necessarily incompatible with, multilateral disputes.

Tribunals and Institutions

How does the Monetary Gold principle operate in the world of plurality of tribunals and international organizations, where some aspects of the dispute may have already been addressed in a judicial or political setting, or indeed both? Three cases dominate the field. The first is Monetary Gold itself, standing for the proposition that rights and responsibilities of absent parties are not protected if they have been determined res judicata by an inter-state arbitral or judicial body.Footnote ²⁷ Second, East Timor accepted in principle that decisions by the UN Security Council and General Assembly (UNGA) can also “be regarded as ‘givens’ which constitute a sufficient basis for determining the dispute between the Parties,” albeit setting in its judgment a demanding test for content and consistency of organizational and state practice to satisfy that benchmark.Footnote ²⁸ Third, Mauritius/Maldives evaluated the impact on the absent United Kingdom's rights of an ICJ advisory opinion and a follow-up UNGA resolution.Footnote ²⁹ For some, the rationale of Monetary Gold and the “givens” of East Timor was a waiver by the absent third party of the objection to admissibility, which could be provided only by accession to an instrument providing for binding determination, whatever the degree of political consensus or importance of rights at issue.Footnote ³⁰ For others, the two key takeaways from East Timor were the lack of an explicit requirement for resolutions to be binding and the general ambiguity and inconsistency of practice discussed, suggesting by implication that even non-binding clear and consistent UN practice could operate as an exception to Monetary Gold. The Special Chamber of the International Tribunal for Law of the Sea (ITLOS) took the latter approach, emphasizing the authoritative determination by a judicial body in an advisory opinion, further strengthened by “Resolution 73/295 of the General Assembly, within the remit of which the modalities necessary for ensuring the completion of the decolonization of Mauritius fall.”Footnote ³¹ Reasonable people will disagree on whether the cumulative criteria of an ICJ advisory opinion and the law of decolonization make “this case . . . ring-fenced. . . . literally, one of a kind”Footnote ³² or a how-to guide for sophisticated actors to fill in authoritative determinations of discrete points before approaching tribunals with limited jurisdiction (no doubt, a perspective that drafters of advisory opinions and those engaged in pending cases where opinions may have implications will carefully reflect upon). But for this essay, the key point is that Monetary Gold is hardly oblivious to the institutional realities of modern international law.