02 Nov The ICC, the Monetary Gold Principle and the Determination of the Territory of Palestine
[Álvaro Rueda Rodríguez-Vila is a graduate in law (Bachelor, UNED) and in human rights (LL.M., Maastricht University).]
In an article published on June 16, 2020, Dapo Akande argued that, assuming that Palestine is a state, the Monetary Gold principle is applicable to the International Criminal Court (ICC or the Court) in the situation of Palestine as to the determination of the Palestine territory because of the territorial dispute between Palestine and Israel. In his words “A judicial determination by the ICC as to whether particular territory in dispute falls under the sovereignty of one state or another will implicate the Monetary Gold principle”.
In this post I argue that, in this case, the Monetary Gold principle, even if applicable to the ICC as Dapo Akande argues, is not applicable to the determination of the territory of Palestine and the Court not only is able to deal with this question but also is obliged to do so.
The Principle of Compétence de la Compétence
The principle of compétence de la compétence is a rule of general international law which establishes that “in absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction” (Nottebohm case (Liechtenstein v Guatemala) 1953, Preliminary Objection Judgement, p 119). This principle, as explained in Tadić, “is a necessary component in the exercise of the judicial function and does not need to be provided for in the constitutive documents of those tribunals”. However, “this is not merely a power in the hands of the tribunal. In international law […] the first obligation of the Court – as of any other judicial body – is to ascertain its own competence” (ICTY, Prosecutor v Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para 18).
This power of a tribunal to ascertain its own jurisdiction operates in two ways. First, the tribunal has the legal authority and the legal capacity to decide whether it can “act at all”; and second, the tribunal has the authority to decide over the “admissibility” of a claim. Whether, even if having the capacity to act in a given case, the tribunal ought to decline to exercise its jurisdiction because of reasons related to the nature of the claim, or to particular circumstances connected with it (see here at p 1040).
In this sense, the International Court of Justice (ICJ) held in the Northern Cameroons case that “even if the Court, when seised, find that it has jurisdiction, the Court is not compelled in every case to exercise that jurisdiction. There are inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never ignore” (Northern Cameroons case (Cameroon v UK) 1963, Preliminary Objections Judgement, para 29).
Chronologically, a tribunal needs, first, to determine whether it has the authority to act in a case, and then, decide whether there is a reason why it should not decide in that case. As such, for the ICC the Rule 58(4) of the Rules of Procedure and Evidence establishes that “The Court shall rule on any challenge or question of jurisdiction first and then on any challenge or question of admissibility”.
In summary, the principle of compétence the la compétence is the power and the obligation of a tribunal to decide, first of all, whether it has the authority or capacity to act in a given case, and second of all, whether there are reasons why it ought not to act.
The Monetary Gold principle as an admissibility criterion
The ICJ held in the Monetary Gold case that “the jurisdiction conferred upon it by the common agreement of France, the United Kingdom, the United States of America and Italy does not, in the absence of the consent of Albania, authorize it to adjudicate [in this case]” because “Albania’s legal interest would not only be affected by a decision, but would form the very subject-matter of the decision” (Monetary Gold case (Italy v France, UK and USA) 1954 Preliminary Question Judgement, p 32 and 34). As such, the principle implies that a court cannot rule without the consent of a third party if the “very subject-matter” of the case would affect the legal interests of that third party.
This principle has been latter applied by the ICJ rejecting it in the Phosphate Lands in Nauru case: “the Court cannot decline to exercise its jurisdiction” (Certain Phosphate Lands in Nauru case (Nauru v Australia) 1992 Preliminary Objections Judgement, para 55) and to uphold it in the East Timor case: “the Court […] cannot in the present case exercise the jurisdiction conferred upon it by the declarations made by the Parties” (East Timor case (Portugal v Australia) 1995 Judgement, para 38).
Other international tribunals have also applied it. For example arbitral tribunals in the Larsen v Hawaiian Kingdom (2001) (para 12.7): “there is no doubt that the Monetary Gold principle would have precluded the exercise of jurisdiction”; and in the South Sea Arbitration (Philippines v China) 2016 Award on Jurisdiction and Admissibility (para 187): “the Tribunal finds that Viet Nam is not an indispensable third party and that its absence as a party does not preclude the Tribunal from proceeding with the arbitration”.
In all these cases the wording of the tribunals shows that the absence of the consent of the third party whose legal interest is the very subject-matter of the case bans the tribunal from exercising its jurisdiction. As such, in the Monetary Gold case: “the jurisdiction conferred upon it […] does not, in the absence of the consent of Albania, authorize it to adjudicate”; in Nauru case, East Timor case and Larsen v Hawaiian Kingdom: “exercise its jurisdiction”; and in South Sea Arbitration: “proceeding with the arbitration”.
The Monetary Gold principle acts as an admissibility criterion. The ICJ and the arbitral tribunals found that, having jurisdiction in their cases, having the legal capacity and the legal authority to act in that said case, they ought not to act because there is a condition (consent of a third party) whose lack of fulfilment prevents them from deciding on their cases. The tribunals have decided, first, that they have the legal authority to act in the cases brought before them but, because there is not the consent of the third party, they ought not to decide on the matter.
Compétence de la Compétence and Monetary Gold in the Situation of Palestine
One of the issues raised by the Prosecutor’s request and highlighted in Dapo Akande’s article is whether the ICC can determine the extent of Palestinian territory in circumstances where some of that territory is also claimed by Israel.
Prior to any other determination, the Court needs to decide whether it has jurisdiction in this case and what is the extent of such jurisdiction. In application of the principle of compétence de la compétence and, as said in Tadić, not only the Court has the power to do it but it is also its first obligation.
As Article 12(2) of the Rome Statute establishes that the Court has jurisdiction with respect to the crimes listed in Article 5 of the Rome Statute that have been committed in a) the territory of States parties and b) the territory of States not parties if the person accused is national of a State party, the assessment of the territory of a State Party is a necessary step in order to determine the jurisdiction of the Court (see here at p 166-169 for an overview of the jurisdiction of the ICC and here at p 65 for the territorial jurisdiction of the ICC).
In this case, because part of the territory of Palestine is contested, the Court needs to determine whether it is indeed part of Palestine in order to establish the limits of its jurisdiction. In other words, the Court needs to determine the territory of Palestine in order to establish its territorial jurisdiction.
Only after it has dealt with this question, the Court has to assess the existence of a condition that would prevent it from exercising that jurisdiction, including the condition set up by the Monetary Gold principle. The Monetary Gold principle would not prevent the Court from assessing its territorial jurisdiction because it comes into play in a subsequent stage. As Monetary Gold is an admissibility criterion, it is decided after the Court has assessed its jurisdiction. This implies that both principles, compétence de la compétence and Monetary Gold, are not contradictory, they apply to the Court at different stages.
An opposing interpretation, held in Dapo Akande’s article, would be that the Monetary Gold principle is applicable to the determination of the territory of Palestine. However, this interpretation would establish a deviation of the current application of the two mentioned principles.
First, because the Monetary Gold principle, which has only been applied to prevent a tribunal from exercising jurisdiction, from deciding on the merits of a case, would also limit the capacity of the Court to establish that jurisdiction, to establish whether the Court can act in the case. As such, the Monetary Gold principle would prevent the Court from assessing its territorial jurisdiction and, therefore, the Monetary Gold principle would be limiting the compétence de la compétence principle.
Second, because the compétence de la compétence principle would be limited without an express provision and, as said in Tadić, (para 19): “it is true that this power can be limited by an express provision in the arbitration agreement or in the constitute instruments of standing tribunals […]. But it is absolutely clear that such a limitation, to the extent to which it is admissible, cannot be inferred without an express provision”. As such, there is no express limitation in the Rome Statute to the capacity of the Court to assess its own jurisdiction. Furthermore, the Rome Statute expressly states in Article 19(1) that the Court “shall satisfy itself that it has jurisdiction in any case brought before it” (emphasis added).
In conclusion, the interpretation where the Monetary Gold principle prevents the ICC from deciding on the territory of Palestine would run against the current application and understanding of both principles.
This article tries to explain why the Monetary Gold principle would not prevent the ICC from establishing its territorial jurisdiction in the situation of Palestine. The principle of compétence de la compétence allows and requires a court to decide on its jurisdiction. In this case, the ICC needs to decide on the territory of Palestine to establish its territorial jurisdiction. The Monetary Gold principle does not prevent in any way the Court from doing that. If the Court is prevented from assessing its jurisdiction in application of the Monetary Gold principle, it would mean that the Monetary Gold principle does limit the principle of compétence de la compétence and that interpretation would go against the current application of both well-established principles.
A different question would be whether the Monetary Gold principle would prevent the Court from deciding on the merits of the case. However, the answer of this question would not, in any case, affect the question of the determination of the territory of Palestine because, as explained, it comes after the territory has been determined.
To a certain extent, this case is similar to the case of Palestine v USA over the relocation of the US embassy to Jerusalem at the ICJ. Even if the ICJ rules that it cannot decide on the merits of the case in application the Monetary Gold principle because of the lack of consent by Israel, it needs to deal, first, on its jurisdiction. As its jurisdiction ratione personae is reserved to States (Article 34(1) ICJ Statute), the determination of its jurisdiction in this case includes the question of whether Palestine is a State (even if for functional purposes, see here). In the case at the ICC, prior to decide whether the Monetary Gold prevents the Court from deciding on the merits, it needs to determine its jurisdiction which includes the question of the territory of Palestine to establish its territorial jurisdiction.