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The Monetary Gold Principle: Back to Basics

Published online by Cambridge University Press:  23 October 2020

Zachary Mollengarden  and
Noam Zamir
Zachary Mollengarden
Affiliation:
Associate, Three Crowns LLP. We would like to thank Dina Wecker for her research assistance. Thanks are also due to the anonymous reviewers and the Board of Editors of this Journal for their probing, challenging, and uniformly beneficial comments. We are also grateful for the less direct but no less important interventions of James Ashley Morrison and Allison Stanger. The opinions expressed in this Article are my own and do not reflect those of Three Crowns LLP or its clients.
Noam Zamir
Affiliation:
Associate Professor, Lyon Catholic University, Law Faculty.
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Abstract

In The Case of the Monetary Gold Removed from Rome in 1943, the International Court of Justice concluded that it cannot decide a dispute in which a third party's legal interests “would form the very subject-matter of the decision.” This Article argues that what has become known as the Monetary Gold principle conflicts with the Court's obligation to decide cases submitted by consenting parties and should be abandoned.

Type
Lead Article
Information
American Journal of International Law , Volume 115 , Issue 1 , January 2021 , pp. 41 - 77
Copyright
Copyright © 2021 by The American Society of International Law

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References

1 Proclamation No. 9683, 3 CFR 204 (Dec. 6, 2017).

2 Relocation of the United States Embassy to Jerusalem (Palestine v. U.S.), Application Instituting Proceedings, Annex 4 (Sept. 28, 2018). Palestine issued a Declaration Recognizing the Competence of the International Court of Justice on the same day. Id., Annex 5.

3 Application Instituting Proceedings, supra note 2, Annex 3.

4 Id. at 12–14 (arguing that “[t]he relocation of the United States Embassy in Israel to the Holy City of Jerusalem constitutes a breach of the Vienna Convention on Diplomatic Relations of 18 April 1961,” citing the appearance of the formula “in the receiving State” throughout the VCDR, and concluding that therefore “the diplomatic mission of a sending State must be established on the territory of the receiving State”).

5 White House Press Release, Press Briefing by Press Secretary Sarah Sanders, Small Business Administrator Linda McMahon, and National Security Advisor (Oct. 3, 2018), at https://www.whitehouse.gov/briefings-statements/press-briefing-press-secretary-sarah-sanders-small-business-administrator-linda-mcmahon-national-security-advisor-100318. This Article takes no position on the international legal personality of the political entity representing residents of the West Bank in Israel. We refer to this entity as “Palestine” in keeping with the ICJ in its press releases concerning Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America) [2018], at https://www.icj-cij.org/en/case/176.

6 Monetary Gold Removed from Rome in 1943 (It. v. Fr., UK and U.S.), Judgment, 1954 ICJ Rep. 19 (June 15).

7 Id. at 17. A word on vocabulary and scope: we will refer throughout to the “Monetary Gold principle” rather than the “indispensable party” principle or alternative formulations in order to underscore that our focus is the ICJ and international law. An analogous doctrine appears in some domestic jurisdictions—see, e.g., U.S. Federal Rules of Civil Procedure, Rule 19(b) (“If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.”); Geoffrey C. Hazard Jr., Indispensable Party: The Historical Origin of a Procedural Phantom, 61 Colum. L. Rev. 1254 (1961) (reviewing the principle's development in the UK and United States)—and although we anticipate that this Article's claims will have some bearing outside the ICJ, the statutory focus of much of the analysis precludes assuming our arguments apply mutatis mutandis elsewhere.

8 Kontorovich, Eugene, Israel/Palestine—The ICC's Uncharted Territory, 11 J. Int'l Crim. Just. 979, 989 (2013)CrossRefGoogle Scholar.

9 Marko Milanović, Palestine Sues the United States in the ICJ re Jerusalem Embassy, EJIL:Talk!, at https://www.ejiltalk.org/palestine-sues-the-united-states-in-the-icj-re-jerusalem-embassy.

10 “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” ICJ Statute, Art. 36(1).

11 “Should a state consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene.” Id. Art. 62(1).

12 “The decision of the Court has no binding force except between the parties and in respect of that particular case.” Id. Art. 59.

13 Monetary Gold, supra note 6; East Timor (Port. v. Austl.), Judgment, 1995 ICJ Rep. 90 (June 30).

14 Drawing on the Oxford Public International Law database, we have identified thirty-six disputes before the ICJ that discuss the Monetary Gold principle. That tally does not include East Timor, Monetary Gold, Palestine v. USA, or any of the sixteen cases currently pending before the Court. As of November 2019, this figure constituted approximately 20% of the cases entered on the Court's general list since its inception.

15 See, e.g., Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court's Territorial Jurisdiction in Palestine, ICC-01/18-12, para. 35 n. 60 (Jan. 22, 2020) (International Criminal Court); Panel Report, Turkey–Restrictions on Imports of Textiles and Clothing Productions, WT/DS34/R, para. 9.10 n. 249 (adopted Nov. 19, 1999) (World Trade Organization); The M/V “Norstar” Case (Pan. v. It.), No. 25, Preliminary Objections, Judgment, para. 172 (Nov. 4, 2016) (International Tribunal for the Law of the Sea); Ping An Life Insurance Company of China, Ltd. and Ping An Insurance (Group) Co. of China, Ltd. v. Kingdom of Belgium, ICSID Case No. ARB/12/29, Award, paras. 127–28 (Apr. 30, 2015) (International Centre for Settlement of Investment Disputes); see also Noam Zamir, The Applicability of the Monetary Gold Principle in International Arbitration, 33 Arb. Int'l 523 (2017).

16 Corfu Channel (UK v. Alb.), Merits, Judgment, 1949 ICJ Rep. 4 (Apr. 9).

17 See Lon L. Fuller, The Law in Quest of Itself 140 (1940) (“The common law works itself pure and adapts itself to the needs of a new day.”).

18 We begin in the mid-twentieth century because our focus is the ICJ, but to be clear, international tribunals had been wrestling with the jurisdictional implications of third-party interests long before the Court's establishment after World War II. See, e.g., Costa Rica v. Nicaragua, CACJ, Judgment of 30 September 1916, 11 AJIL 181 (1917).

19 Michael Waibel, Corfu Channel Case, in Max Planck Encyclopedia of Public International Law Vol. II, at 792, para. 21 (2013).

20 Corfu Channel (UK v. Alb.), Documents Submitted by the Government of the United Kingdom, 1947 ICJ Rep. 88 (Oct. 1).

21 Corfu Channel (UK v. Alb.), Minutes from the Sittings Held from November 9th, 1948 to April 9th, 1949, Statement by Sir Hartley Shawcross, 1950 ICJ Rep. 240 (Mar. 25); see also id. (“Yugoslavia practically conducted the whole of Albania's foreign relations . . . she had naval, military and air-force missions in Albania guiding the organization of the military arrangements in that country.”).

22 Corfu Channel (UK v. Alb.), supra note 16.

23 Id.

24 East Timor (Port. v. Austl.), supra note 13, at 167.

25 Aerial Incident of 3 July 1988 (Iran v. U.S.), Order, 1989 ICJ Rep. 132, 140 (Dec. 13) (sep. op., Schwebel, J.).

26 Reparation from Germany: Final Act and Annex of the Paris Conference on Reparation, November 9-December 21, 1945, 24 Int'l Conciliation 215, 230 (1946).

27 Agreement between the Governments of the French Republic, the United Kingdom of Great Britain and Northern Ireland and the United States of America for the Submission to an Arbitrator of Certain Claims with Respect to Gold Looted by the Germans from Rome in 1943, 91 UNTS 21 (1951) and 100 UNTS 304 (1951).

28 Corfu Channel (UK v. Alb.), Judgment, 1949 ICJ Rep. 244, 250 (Dec. 15).

29 Specifically, the three states declared that they would “accept as defendants the jurisdiction of the Court for the purpose of the determination of such applications by Italy or by Albania or by both.” Statement Accompanying the Agreement, 100 UNTS 306 (1951).

30 Monetary Gold, supra note 6, at 32. Judge McNair appended a “declaration” to the judgment in which he questioned the mechanics—and implicitly, the good faith—of Italy's application: “[T]hese proceedings are not brought against Albania, nor does the Application name Albania as a respondent.” Id. at 35 (dec., Sir Arnold McNair, Pres.). Judge Read also filed an “Individual Opinion” in which he maintained that Italy's application failed to meet the requirements set forth in the Washington Agreement for bringing the dispute before the Court as well as Article 40(1) of the ICJ Statute, the latter providing that “the subject of the dispute and the parties shall be indicated.” Id. at 37–38 (ind. op., Read, J.)

31 Id. at 32.

32 Id.

33 Id. at 33.

34 Id.

35 Monetary Gold, supra note 6, at 34. The lone dissenter, Judge Carneiro, argued that the Court could have addressed Italy's second claim, and that its refusal to resolve any aspect of the dispute threatened to only “aggravate the difficulties” among the parties. Id. at 39 (diss. op, Levi Carneiro, J.).

36 Hersch Lauterpacht, The Development of International Law by the International Court 33 (1958).

37 Covey T. Oliver, The Monetary Gold Decision in Perspective, 49 AJIL 216, 219 (1955).

38 See, e.g., Continental Shelf (Tunis./Libya), Application by Malta for Permission to Intervene, Judgment, 1981 ICJ Rep. 3, 15 (Apr. 14); Case Concerning the Frontier Dispute (Burk. Faso/Mali), Judgment, 1986 ICJ Rep. 554 (Dec. 22).

39 James R. Crawford, Military and Paramilitary Activities in and Against Nicaragua Case (Nicar. v U.S.), in Max Planck Encyclopedia of Public International Law, para. 1 (2019).

40 ICJ Pleadings, Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Vol. II, 134.

41 Id. at 134–35.

42 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Jurisdiction of the Court and Admissibility of the Application, Judgment, 1984 ICJ Rep. 392, 431 (Nov. 26).

43 Id.

44 See GA Res. 140 (II) (Nov. 1, 1947).

45 Certain Phosphate Lands in Nauru (Nauru v. Austl.), Preliminary Objections of the Government of Australia, Vol. I, at 143 (Dec. 1990).

46 Certain Phosphate Lands, Preliminary Objections, Judgment, 1992 ICJ Rep. 240, 261 (June 26)

47 Id. (emphasis added).

48 For a thoughtful explanation (and critique) of the judgment's approach, see Hugh Thirlway, The Law and Procedure of the International Court of Justice 1960–1989: Part Nine, 69 Brit. Y.B. Int'l L. 1, 48–50 (1999); see also Tobias Thienel, Third States and the Jurisdiction of the International Court of Justice: The Monetary Gold Principle, 57 German Y.B. Int'l L. 321, 327 (2014).

49 Certain Phosphate Lands, supra note 46, at 293 (sep. op, Shahabuddeen, J.) (emphasis added).

50 Id. (emphasis added).

51 Id. at 331 (diss. op., Schwebel, J.) (emphasis added).

52 Id. at 335.

53 East Timor (Port. v. Austl.), Counter-Memorial of the Government of Australia, at 90, Annex 5 at A13 (Int'l Ct. Just. June 1, 1992) (adding for good measure that “[t]he petition has been made with complete free will and with full awareness of the future of East Timor without any form of coercion from outside”)

54 SC Res. 384, para.1 (Dec. 22, 1975).

55 Announcement Made by the Minister for Foreign Affairs, Mr. A.S. Peacock, 20 Jan. 1978, in Dietrich Rauschning, East Timor and the International Community: Basic Documents 333 (1997).

56 Id. at 335.

57 Treaty Between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area Between the Indonesian Province of East Timor and Northern Australia, Austl.-Indonesia, Dec. 11, 1989, 1654 UNTS 105.

58 East Timor (Port. v. Austl.), Counter-Memorial of the Government of Australia, supra note 53, at 97; see also id. at 100 (“The Court cannot judge this case without first deciding the rights and obligations, or status and competence of Indonesia in East Timor. As Indonesia is not a party to these proceedings, this case is indistinguishable from the Monetary Gold Case.”).

59 East Timor (Port. v. Austl.), supra note 13, at 101.

60 East Timor (Port. v. Austl.), Reply of the Government of the Portuguese Republic, at 206 (Int'l Ct. Just. Dec. 1, 1992).

61 East Timor (Port. v. Austl.), supra note 13, at 102.

62 Id. at 102 (emphasis added).

63 Id.at 105.

64 Id. at 249 (diss. op, Skubiszewski, J.).

65 Id. at 237.

66 Treaty on the Non-Proliferation of Nuclear Weapons, Art. VI, July 1, 1968, 21 UST 483, 729 UNTS 161.

67 In February 2007, after the Nuclear Disarmament case had come to a close, the UK amended its Optional Clause Declaration to exclude “any claim or dispute that arises from or is connected with or related to nuclear disarmament and/or nuclear weapons, unless all of the other nuclear-weapon States Party to the Treaty on the Non-Proliferation of Nuclear Weapons have also consented to the jurisdiction of the Court and are party to the proceedings in question.” Sir Alan Duncan, Minister of State for Foreign and Commonwealth Affairs, Amendments to the UK's Optional Clause Declaration to the International Court of Justice, HCWS489 (Feb. 23, 2017).

68 Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. UK), Preliminary Objections of the United Kingdom (Int'l Ct. Just. June 15, 2015).

69 Marsh. Is. v. UK, Preliminary Objections, Judgment, 2016 ICJ Rep. 833, 856 (Oct. 5).

70 Marsh. Is. v. UK, Preliminary Objections of the UK, supra note 68, at 16, 36–37 (emphasis added).

71 Although “necessarily” and “inevitably” stood on firmer ground as potential standards than “concurrently,” given the Court's rejection in Nauru of Australia's argument that the Monetary Gold principle also precluded “simultaneously” addressing the fault of third states. See id. at 11.

72 Marsh Is. v. UK, Preliminary Objections, Judgment, supra note 69, at 899 (sep. op., Tomka, J.).

73 Id. at 898.

74 Id. at 899.

75 Id.

76 Id. at 957 (diss. op., Cançado Trindade, J.).

77 Id. at 958.

78 The alliterative “duty to decide” is not of our own making. See, e.g., Nuclear Tests (Austl. v. Fr.), Judgment, 1974 ICJ Rep. 253. 454 (Dec. 20) (diss. op., Sir Garfield Barwick, J.) (“In my opinion, there is no discretion in this Court to refuse to decide a dispute submitted to it which it has jurisdiction to decide. Article 38 of its Statute seems to lay upon this Court a duty to decide”); East Timor (Port. v. Austl.), supra note 13, at 90, 158 (diss op., Weeramantry, J.) (juxtaposing “[t]he third party principle and the judicial duty to decide”); Case Concerning the Frontier Dispute (Burk. Faso/Mali), supra note 38, at 579 (“The Chamber therefore concludes that it has a duty to decide the whole of the petitum entrusted to it.”).

79 East Timor (Port. v. Austl.), supra note 13, at 241, para. 57 (diss. op., Skubiszewski, J.).

80 See Thirlway, supra note 48, at 4 (“It is a truism that international judicial jurisdiction is based on and derives from the consent of States.”).

81 See Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicar. v. Colom.), Preliminary Objections, Judgment, 2016 ICJ Rep. 3, 19 (Mar. 17) (noting that “[a]n a contrario reading of a treaty provision—by which the fact that the provision expressly provides for one category of situations is said to justify the inference that other comparable categories are excluded—has been employed by both the present Court and the Permanent Court of International Justice”) (internal citations omitted).

82 See Thirlway, supra note 48, at 35 (noting that “[n]o textual warrant” for the proposition, “in the Statute or elsewhere, has however been asserted by the Court”).

83 See Vienna Convention on the Law of Treaties, Art. 31(1), May 23, 1969, 1155 UNTS 331 (“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.); Art. 32 (“Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31 . . . .”)

84 Article 33 of the proposed PCIJ Statute states: “When a dispute has arisen between States, and it has been found impossible to settle it by diplomatic means, and no agreement has been made to choose another jurisdiction, the party complaining may bring the case before the Court. The Court shall, first of all, decide whether the preceding conditions have been complied with; if so, it shall hear and determine the dispute according to the terms and within the limits of the next Article.” See PCIJ Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of the Committee, June 16th–July 24th, 1920, at 726 (1920) (hereinafter Procès-Verbaux).

85 Christian Tomuschat, Article 36, in The Statute of the International Court of Justice: A Commentary 638–39 (Andreas Zimmermann, Christian Tomuschat, Karin Oellers-Frahm & Christian J. Tams eds., 2012) (hereinafter Commentary).

86 Statute of the Court, Series D, No. 1, 19, available at https://www.icj-cij.org/files/permanent-court-of-international-justice/serie_D/D_01_1e_edition.pdf.

87 Documents of the United Nations Conference on International Organization, UNIO Vol. XIV, 841–42 (1945).

88 New Zealand's proposal provided, in relevant part: “Save as hereinafter excepted the court shall in particular have jurisdiction to hear and determine, and the parties to this Statute agree to submit to it, any legal dispute concerning . . . .” Documents of the United Nations Conference on International Organization, UNIO Vol. XIII, at 561 (1945) (emphasis added); see also Tomuschat, supra note 85, at 640 (noting that “the United States and the Soviet Union were staunch opponents of compulsory jurisdiction . . . . Therefore, the draft submitted by the Subcommittee was eventually approved by a broad majority of 31 to 14, following the logic of realpolitik.”).

89 Monetary Gold, supra note 6, at 32

90 East Timor (Port. v. Austl.), supra note 13, at 105 (emphasis added).

91 Vienna Convention on Diplomatic Relations, Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, 596 UNTS 487.

92 East Timor (Port. v. Austl.), supra note 13, at 100.

93 Monetary Gold, supra note 6, at 33.

94 Article 63 of the Statute grants parties to a convention the construction of which is in question in a case “the right to intervene in the proceedings,” and unlike Article 62(2), does not afford the Court discretion to reject such an intervention.

95 There have been fifteen requests for intervention under Article 62 of the PCIJ and ICJ Statutes over the course of nearly a century of disputes before the two courts. Of the fourteen requests made to the ICJ, six have lapsed, five have been rejected, and the Court has granted three. As Christine Chinkin summarizes, quoting an author writing three decades prior: “States have not come to ‘regard intervention as a predictable contingency of international life.’” See Christine Chinkin, Article 62, in Commentary, supra note 85, at 1529, 1537 (quoting Taslim Elias, The International Court of Justice and Some Contemporary Problems 91 (1983).

96 Procès-Verbaux, supra note 84, at 592–94.

97 Five Power Plan, Art. 48, para. 1, Feb. 6, 1922, 25 LNTS 202, reprinted in Procès-Verbaux, supra note 84, at 93.

98 See Lord Phillimore, Procès-Verbaux, supra note 84, at 593.

99 See M. Fernandes, Procès-Verbaux, supra note 84 at 593.

100 Procès-Verbaux, supra note 84, at 594.

101 Shabtai Rosenne, Intervention in the International Court of Justice 23 (1993).

102 Preparation of the Rules of Court, 1922 PCIJ (ser. D) No. 3, at 349.

103 Carnegie Endowment for International Peace: Division of International Law, 35 Pamphlet Series, at 131 (1920).

104 John Bassett Moore, Organisation of the Permanent Court of International Justice, 22 Colum. L. Rev. 497, 507 (1922).

105 The Committee recommended deleting the words “as a third party” after “to be permitted to intervene” in the ICJ Statute's English text.

106 UNIO XIV, supra note 87, at 613.

107 See Territorial and Maritime Dispute (Nicar. v. Colom.), Application by Costa Rica for Permission to Intervene, Judgment, 2011 ICJ Rep. 348, 393, para. 4 (May 4) (dec., Keith, J.) (noting that the “nature of the power which the Court exercises under Article 62 . . . is of a preliminary, procedural, interlocutory character,” and appropriately so, given that applications to intervene “involve[] the Court in making a future-looking, speculative assessment about the possible impact of the decision in the main proceeding on the interest asserted by the requesting State”); see also Chinkin, supra note 95, at 1546 (“A request to intervene is necessarily speculative.”).

108 Land, Island and Maritime Frontier Dispute (El Sal. v. Hond.), Application by Nicaragua for Permission to Intervene, Judgment, 1990 ICJ Rep. 92, 117 (Sept. 13).

109 Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria, Eq. Guinea Intervening), Judgment, 2002 ICJ Rep. 303, 421 (Oct. 10).

110 Id.

111 The Court is also well within its rights to encourage third parties to participate. As Matina Papadaki puts it citing Cameroon v. Nigeria and Nauru, “The Court can induce States to intervene” but it “cannot oblige States to intervene.” Matina Papadaki, Intervention: International Court of Justice, in Max Planck Encyclopedia of International Procedural Law (2018).

112 Tania Licari, Intervention Under Article 62 of the Statute of the I.C.J., 8 Brook. J. Int'l L. 267, 283 (1982). But see D. W. Greig, Third Party Rights and Intervention Before the International Court, 32 Va. J. Int'l L. 285, 322 (arguing that a party that has submitted an application to the ICJ with clear implications for third-party interests has implicitly consented to the Court apprising itself of those states’ interests).

113 See Land, Island and Maritime Frontier Dispute (El Sal. v. Hond.), supra note 108, at 130 (“It seems to the Chamber, however, that it is perfectly proper, and indeed the purpose of intervention, for an intervener to inform the Chamber of what it regards as its right or interests, in order to ensure that no legal interest may be ‘affected’ without the intervener being heard . . . .”).

114 Territorial and Maritime Dispute (Nicar. v. Colom.), supra note 107, at 434. See also Procès-Verbaux, supra note 84, at 747–49; Rosenne, supra note 101, at 32 (concluding that “there is probably only one thing that can be said with any degree of confidence . . . [i]t is clear that Article 62 is not intended to open the door to ‘political intervention’ (whatever that expression could mean in the context of international litigation)”).

115 Territorial and Maritime Dispute (Nicar. v. Colom.), supra note 107, at 421, 434.

116 Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, 1951–4: Questions of Jurisdiction, Competence and Procedure, 34 Brit. Y. B. Int'l L. 1, 126 (1958).

117 Continental Shelf (Tunis. v. Libya), supra note 38, at 17.

118 Id. at 18, 19–20.

119 Id. at 18.

120 Chinkin, supra note 5, at 1570.

121 Id. at 1561; see also Territorial and Maritime Dispute (Nicar. v. Colom.), supra note 107, at 421, 434 (“The decision of the Court granting permission to intervene can be understood as a preventive one.”).

122 Continental Shelf (Libyan Arab Jamahiriya v. Malta), Application by Italy for Permission to Intervene, Separate Opinion of Judge Nagendra Singh, 1984 ICJ Rep.. 3, 31 (Mar. 21).

123 See Rules of Court, 1978, Art. 85 (“If an application for permission to intervene under Article 62 of the Statute is granted, the intervening State . . . shall be entitled to submit a written statement,” and “shall be entitled, in the course of the oral proceedings, to submit its observations with respect to the subject-matter of the intervention.”).

124 See Chinkin, supra note 95, at 1534.

125 See Territorial and Maritime Dispute (Nicar. v. Colom.), supra note 107, at 349, 358, para. 25 (“It is indeed for the Court, being responsible for the sound administration of justice, to decide in accordance with Article 62, paragraph 2, of the Statute on the request to intervene, and to determine the limits and scope of such intervention.”).

126 Israel signed the VCDR in 1961 and ratified the Convention in 1970. It signed the Optional Protocol on the same day in 1961, but never ratified that agreement. If the Court reaches the merits of Palestine's arguments concerning the interpretation of the VCDR, Israel may therefore have “the right to intervene in the proceedings” under Article 63 of the Statute, with the critical caveat that “if it uses this right, the construction given by the judgment will be equally binding upon it.”

127 Land, Island and Maritime Frontier Dispute (El Sal. v. Hond.), supra note 108, at 92, para. 56.

128 We are grateful to the reviewers for highlighting this point.

129 There is some debate over just how close. Compare Interpretation of Judgments Nos. 7 and 8 Concerning the Factory at Chorzów (Ger. v. Pol.), 1927 PCIJ (ser. A) No. 13, 23 (Dec 16) (diss. op., Anzilotti, J.) (“[W]e have here [referring to Article 59] the three traditional elements for identification, persona, petitum, causa petendi.”) with Alain Pellet, Decisions of the ICJ as Sources of International Law?, in Decisions of the ICJ as Sources of International Law, Gaetano Morelli Lectures Series, Vol. 2 (2018) (quoting James Crawford, Brownlie's Principles of Public International Law 38 (2012)) (“The drafting history of Article 59 indicates that it ‘was not intended merely to express the principle of res judicata, but rather to rule out a system of binding precedent.’”).

130 See, e.g., League of Nations Advisory Committee of Jurists, Documents Presented to the Committee Relating to Existing Plans for the Establishment of a Permanent Court of International Justice 323, Draft Art. 53 (1920) (including a submission from Denmark, the Netherlands, Sweden, Norway, and Switzerland providing that the Court's decisions “shall only apply to the contesting parties, including any intervening parties, and to the particular case upon which judgment has been delivered”).

131 The substance of Article 61 of the draft Statute appears in Article 63 of the ICJ Statute.

132 Documents Concerning the Action Taken by the Council of the League of Nations Under Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent Court 50, 122 (1921).

133 Id.

134 Chester Brown, Article 59, in Commentary, supra note 85, at 1420.

135 William Malkin, et al., Report of the Informal Inter-Allied Committee on the Future of the Permanent Court of International Justice, reproduced in 39 AJIL Supp. 1, 20 (1945).

136 Certain Phosphate Lands, supra note 46, at 342 (diss. op., Schwebel, J.).

137 East Timor (Port. v. Austl.), supra note 13, at 90, para. 124 (sep. op., Shahabuddeen, J.).

138 Shabtai Rosenne, Essays on International Law and Practice 154 (2007).

139 C.M. Chinkin, Third-Party Intervention Before the International Court of Justice, 80 AJIL 495, 502 (1986); see also Tobias Thienel, Third States and the Jurisdiction of the International Court of Justice: The Monetary Gold Principle, 57 Ger. Y.B. Int'l L. 321, 341 (2014) (“[T]he relativity of res judicata is ineffective in protecting the third State from the practical effects of the judgment as a matter of fact. The practical or moral authority of the judgment for the third State would be nearly the same as its legal authority for the actual parties.”).

140 Though we appreciate that the discretion afforded to third parties and the Court under Article 62—“may submit a request . . . to be permitted to intervene”—does not suggest any sanction might follow from failing to use the procedure.

141 Continental Shelf (Libya v. Malta), Application by Italy for Permission to Intervene, Judgment, 1984 ICJ Rep. 3, 158 (Mar. 21) (diss. op., Jennings, J.).

142 Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indon. v. Malay.), Application by the Philippines for Permission to Intervene, Judgment, 2001 ICJ Rep. 575, 641 (Oct. 23) (sep. op., Weeramantry, J.).

143 Continental Shelf (Libya v. Malta), supra note 141, at 158 (diss. op., Jennings, J.).

144 We set to one side here whether adequacy with respect to Article 59 ought to incorporate the broader statutory scheme. For example, if adequacy should be measured with respect to principles such as due process or the right to be heard, then Israel's opportunity (even if not taken up) to intervene under Article 62 would enhance the adequacy of the remedies available to it. See also infra at 73–74.

145 Continental Shelf (Libya v. Malta), supra note 141, at 158 (diss. op., Jennings, J.).

146 Ruth Eglash, As Criticism of Israel Mounts, Guatemala Opens Its Embassy in Jerusalem, Wash. Post (May 16, 2018).

147 Brown, supra note 134, at 1437.

148 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serb.), Preliminary Objections, Judgment, 2008 ICJ Rep. 412, 428 (Nov. 18); but see, setting a somewhat lower standard, Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea Intervening), Preliminary Objections, Judgment, 1998 ICJ Rep. 275, 292 (June 11) (“There can be no question of holding Nigeria to decisions reached by the Court in previous cases. The real question is whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases.”)

149 Gilbert Guillaume, The Use of Precedent by International Judges and Arbitrators, 2 J. Int'l Disp. Sett. 5, 12 (2011).

150 See, e.g., Ori Pomson, Does the Monetary Gold Principle Apply to International Courts and Tribunals Generally?, 10 J. Int'l Disp. Sett. 88, 111–13 (2019).

151 Alain Pellet, Article 38, in Commentary, supra note 85, at 833.

152 Id. at 839.

153 Procès-Verbaux, supra note 84, at 493; UNIO XIII at 493.

154 Procès-Verbaux, supra note 84, at 337; see also Mohamed Shahabuddeen, Precedent in the World Court 77 (1996) (The argument is strong . . . that the reference to ‘the determination of rules of law’ visualised a decision which would merely elucidate the existing law, and not bring new law into being.”).

155 Cf. Republic of the Philippines v. Pimentel, 553 U.S. 851, 863 (2008) (addressing the application of the indispensable party principle to an absent sovereign, the U.S. Supreme Court noted that this principle is “consistent with the fact that the determination of who may, or must, be parties to a suit has consequences for the persons and entities affected by the judgment; for the judicial system and its interest in the integrity of its processes and the respect accorded to its decrees; and for society and its concern for the fair and prompt resolution of disputes”).

156 E.g., Constanze Schulte, Compliance with Decisions of the International Court of Justice (2004); Aloysius P. Llamzon, Jurisdiction and Compliance in Recent Decisions of the International Court of Justice, 18 Eur. J. Int'l L. 815 (2007); Colter Paulson, Compliance with Final Judgments of the International Court of Justice Since 1987, 98 AJIL 434 (2004).

157 The United States might also refuse to comply with the decision due to Israel's absence from the proceedings.

158 See generally Beth A. Simmons, Compliance with International Agreements, 1 Ann. Rev. Pol. Sci. 75 (1998).

159 See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), supra note 42, at 425, para. 75 (“[I]t is only when the general lines of the judgment to be given become clear that the States ‘affected’ could be identified . . . obviously the question of what States may be ‘affected’ by the decision on the merits is not in itself a jurisdictional problem.”).

160 See Rosalyn Higgins, Policy Considerations and the International Judicial Process, 17 Int'l & Comp. L. Q. 58, 75 (1968).

161 E.g., Certain Phosphate Lands, supra note 46, at 293 (sep. op., Shahabuddeen, J.) (citing the “cardinal principle of judicial organization which forbids a court from adjudicating in violation of the audi alteram partem rule”).

162 See, e.g., Pomson, supra note 150, at 124–25 (“[T]he principle audi alteram partem does not seem to provide a strong enough basis for the Monetary Gold principle, considering the application of audi alteram partem in international law appears to be confined to the relationship of the actual parties to a case vis-à-vis the court or tribunal.”).

163 See also Katherine Florey, Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19, 58 UCLA L. Rev. 667, 680 (2011) (“[In U.S.] cases in which the absent party has the opportunity to intervene but has chosen not to, courts frequently discount the factor of prejudice to the absent party, reasoning that, if the possibility of prejudice was substantial, that party could have chosen to participate in the litigation.”).

164 Compare Alina Miron, Palestine's Application the ICJ, Neither Groundless nor Hopeless. A Reply to Marko Milanović, Eur. J. of Int'l L. Blog (Oct. 8, 2018), at https://www.ejiltalk.org/palestines-application-the-icj-neither-groundless-nor-hopeless-a-reply-to-marko-milanovic (“[T]he Monetary Gold principle should not be used as a pretext to evade highly debated issues, especially if the Court's jurisdiction is established. It is not a Joker to avoid deciding when the decision is difficult and politically significant.”) with Milanović, supra note 9 (“The case should thus be seen simply as one more example of Palestinian strategic litigation which pursues all possible legal avenues to exert pressure on Israel . . . .”).

165 Rosenne, supra note 138, at 158.

166 See also id. at 30–31.

167 See id. at nn. 14–15 (documenting the growing number of instances in which the Monetary Gold principle has been cited before and by the ICJ and other fora for interstate dispute resolution).

168 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serb.), supra note 148, at 428.

169 See Digest of United States Practice in International Law 723 (1980).

170 Final Report, Tripartite Commission for the Restitution of Monetary Gold, Brussels (Sept. 13, 1998).

171 Marston, Geoffrey, United Kingdom Materials on International Law, 63 Brit. Y.B. Int'l L. 615, 781–82 (1992)Google Scholar.

172 Barry James, A Final Settlement for 7 Tons of Nazi Gold, Int'l Herald Tribune (Oct. 28, 1996).

173 Id.

174 See Fred Shapiro, “You Can Quote Them,” Yale Alumni Mag. (2010) (discussing the origin of the phrase); see also William Penn, Some Fruits of Solitude 78 (1682) (“Our Law says well, to delay Justice is Injustice.”).