Q: ‘Given the bilateral nature of inter-state dispute settlement, does the law and practice of international courts and tribunals adequately safeguard the interests of a ‘third state’?

Discuss by reference to Monetary Gold case and other rules and principles recognized by ICTs.

Questions to be considered:

– How interest of third states in Monetary Gold is protected?

– Does the practice demonstrated in Monetary Gold case adequately protect the interest of third states?

– Are there other principles identified by ICTs, are they satisfactory?

Monetary Gold case

This case brings to light about the notion of ‘indispensable third’ party. The object of the case is to decide whether the claims raise by UK or the claims raised by Italy in relation to some monetary gold from Rome should have priority. One preliminary issue to this dispute is whether Italy can lawfully get the Monetary gold from Albania due to Albania’s wrongful acts against Italy. The court found that it could not decide the dispute between Italy and the UK without making a preliminary decision with regard to the international responsibility of Albania. Since it could not get Albania’s consent to decide the preliminary issue, the court found itself has no jurisdiction. It can be deduced from the case a rule that if the interest of a third state constitutes the very subject matter of the case present to the court, the court shall not have jurisdiction over the case without the consent of the third state.

The Monetary Gold case constitutes a valid precedent and the approach was followed in later cases. In East Timor case, for example, Portugal made a claim against Australia, claiming that Australia by inter alia concluding an agreement with Indonesia, violated the right to self-determination of people of East Timor. The court found that the case unavoidably involved a pronouncement of an issue in relation to a third state, i.e, whether Indonesia had the capacity to conclude a treaty on behalf of people of East Timor with one party to the dispute. The court found it has no jurisdiction, without consent of the third state.

In cases like Monetary Gold and East Timor, in order to protect the interest of third state, the court provides a rule to allow third states who consider their rights of a legal nature may be affected by the decision of a court to intervene (Art. 62 of ICJ Statute), either as a party or non-party.(Land, Island and Maritime Delimitation case between El Salvador/Honduras). The definition of ‘interest of a legal nature’ is not clearly defined. (Rosenne) It is informed from Monetary Gold case that in cases where the interest of a third state form the very subject matter of the case, such interest would constitute ‘interest of a legal nature’ in the sense of Art. 62 of ICJ Statute and make it possible for a third state to intervene. (El Salvador/Honduras case)

To the extent that third states in case like Monetary Gold can intervene to present their opinions, and the court could not decide the case without their consent, their rights can be considered to be adequately protected. However, Monetary Gold case also presents a potential problem which might be opposed to the function of international courts to solve disputes. In cases like Monetary Gold, if it is required that third states can intervene as a party, but in absence of jurisdictional link with parties to the dispute, a paradoxical consequence would happen, i.e, the court would neither have jurisdiction to hear the case or the third state could not protect its interest through intervention.（Bonafe）

Reference Beatrice I. Bonafe, ‘International Court of Justice: Interest of a Legal Nature Justifying Intervention before the ICJ’, LJIL (2012), 25, pp. 739-757.