Corroded Monetary Gold: Impurities in the 2023 Arbitral Award Judgment

[Dylan Jesse Andrian studies law at Universitas Gadjah Mada and Maastricht University and has drafted legal opinions for Amnesty International and the Indonesian National Human Rights Commission (KOMNAS HAM). He is an associate editor at Maastricht University’s student law journal and has contributed to the Annotated Leading Cases of International Criminal Tribunals.]

The International Court of Justice’s (“ICJ”) 2023 Preliminary Judgment on Venezuela’s Objection to Admissibility in the Arbitral Award (Guyana v. Venezuela) case is unique in that it is the first time (both before the ICJ and before any international tribunal) that the applicability of the Monetary Gold principle (or doctrine, depending on whom you ask) was rejected not because the legal interests of a third party did not form the “very subject-matter of the dispute”, but because that third party, through an agreement concluded with the parties to the dispute (“Geneva Agreement”), supposedly “consented to the Court’s exercise of jurisdiction” (see, for example, 2023 Arbitral Award, para. 83). The Court, however, did not explain why this consent had the consequence of the Monetary Gold principle not applying. Judge ad hoc Wolfrum attempted to provide an explanation by suggesting that either (1) the third party had consented to the Court continuing the proceedings without its participation; or (2) the Geneva Agreement excluded the Monetary Gold principle as lex specialis (Declaration of Judge ad hoc Wolfrum in Arbitral Award, para. 4).

In my view, neither explanation is satisfactory, and I explain my reasoning below, addressing firstly Judge Wolfrum’s second (and preferred) view that the Geneva Agreement displaces Monetary Gold as a lex specialis regime. There, I argue that if Monetary Gold can be displaced by a lex specialis regime, then the ICJ Statute should be able to exclude Monetary Gold, which would mean that all previous uses of the Monetary Gold principle, including its eponymous decision, were missteps. My second point addresses Judge Wolfrum’s first explanation that the United Kingdom gave its consent for the Court to exercise jurisdiction over it and why it is problematic.

The Displacement of Monetary Gold by the ICJ Statute as a Lex Specialis Regime

Because a single set of facts or legal interests can result in the application of two or more conflicting legal regimes, the principle lex specialis derogat legi generali determines which law would apply by asking which law is more closely connected to those facts or legal interests. For example, in his Declaration to the 2023 Arbitral Award judgment, Judge Wolfrum considered that both the Geneva Agreement and the Monetary Gold principle “procedurally protect[ed] the interests of a third State”, but because the Geneva agreement regulated “the particular situation before the Court” and the Monetary Gold principle only “cover[ed] the issue in the abstract”, the Geneva Agreement could exclude the Monetary Gold principle as lex specialis (Declaration of Judge ad hoc Wolfrum in Arbitral Award, para. 4).

If, however, the only criterion for one regime to exclude the other is that it regulates more specific conditions between the two, then the ICJ Statute should be able to exclude the Monetary Gold principle.

Before elaborating on this claim further, I would like to first establish that the Monetary Gold principle is not part of the ICJ Statute, but instead, a product of the broader principle of consent. In Monetary Gold, the ICJ stated that there was a well-established principle of international law reflected in the Court’s Statute that prevented it from exercising jurisdiction over a State without its consent (Monetary Gold, page 32). Unfortunately, the Court never mentioned precisely where in the Statute this principle was reflected. In fact, I would go so far as to argue that this principle is neither explicitly recognized nor implicitly reflected in the Court’s Statute at all. Indeed, in Nauru, the Court recognized that there was no bar to its exercise of jurisdiction over claims involving third party interests, as long as those interests did not “form the very subject-matter” of this dispute (Nauru, para. 54). This was an obvious reference to the Monetary Gold principle, but not to the Statute of the Court. Furthermore, in other cases in which the Court attempts to provide a basis for its unwillingness to adjudicate on matters relating to third party interests, it does not refer to its Statute, but rather, to the broader notion of consent (I would think of Chagos, para. 85and Western Sahara, para. 33as examples). The inclusion of Article 62 in the ICJ Statute (which allows third party States with a legal interest in a case to intervene) further bolsters this claim, as its existence evidences foresight that the Court might have to deal with cases that involve third party interests. Taking these factors into consideration, I submit that the Monetary Gold principle should be treated as separate from the ICJ Statute.

Having addressed the separateness of the Monetary Gold principle and the ICJ Statute, I now posit that the ICJ Statute, in Judge Wolfrum’s words: “protect[s] procedurally the interests of a third State” (Declaration of Judge ad hoc Wolfrum in Arbitral Award, para. 4). In Nauru, the Court itself recognized that: “Where the Court is so entitled to act, 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, which provides that ‘The decision of the Court has no binding force except between the parties and in respect of that particular case’” (Nauru, para. 54). As both the Monetary Gold principle and Article 59 of the ICJ Statute regulate the same situation, but the ICJ Statute regulates the particular situation of cases before the Court, the ICJ Statute should exclude the Monetary Gold principle as lex specialis.

I am well aware that critics of this reading will most likely rely on the fact that Article 59’s protection for absent States is more, in the words of Judge Schwebel, “notional than real” (Judge Schwebel’s Dissenting Opinion in Nauru, p. 342). The practicality of Article 59 has also been questioned by Akande, Rosenne, and Chinkin. I would respond by saying that the issue to be considered is whether the ICJ Statute can function as a lex specialis regime, which is inherently a question of whether the ICJ Statute protects the same interest as Monetary Gold as a matter of law, and not fact. Whether Article 59 achieves the same effect as the Monetary Gold principle is a different question altogether.

Conditions for Consenting to the Court’s Jurisdiction Ratione Materiae

As above, I have argued that the ICJ Statute is already a sufficient instrument to guarantee that third party legal interests are left unharmed by contentious proceedings before the Court. But assuming, arguendo, that a third party’s legal interests might be seriously affected by the ruling of the Court, how explicitly should their consent be formulated to allow the Court to exercise its jurisdiction ratione materiae? I say only ratione materiae, because, as in the Arbitral Award case, the United Kingdom’s putative consent to allow the Court to continue proceedings did not make it a party to the proceedings (or, in other words, confer jurisdiction ratione personae. I would also add that Judge ad hoc Covereur does not believe that allowing this can be reconciled with the Court’s Statute or would conform to the principles of reciprocity, equality, and adversariality: see his Opinion, paras 31-32). Among other things, this should be sufficiently evident from the fact that the case’s name has not been changed to Guyana and the UK v. Venezuela. But then, does this mean the consent threshold is lowered from what would normally be needed to be a party to a case?

As noted by Judge ad hoc Covereur, the conditions for consent to trigger the Court’s jurisdiction, even in cases of forum prorogatum, have always been highly exacting (Judge ad hoc Covereur in his Partly Separate and Partly Dissenting Opinion in Arbitral Award, para. 31 et seq., especially para. 41). In Mutual Assistance, for example, “the attitude of the respondent State must ‘be capable of being regarded as an unequivocal indication of the desire of that State to accept the Court’s jurisdiction in a voluntary and indisputable manner” and “the element of consent must be either explicit or clearly to be deduced from the relevant conduct of a State” (Mutual Assistance, para. 62). Judge Couveruer adds to these criteria, by requiring that any conferral of jurisdiction to the Court be “sans l’ombre d’un doute”, or, in English, “without a shadow of a doubt”. I would also add that silence is far from indicative of consent to the Court’s exercise of jurisdiction, particularly in light of the fact that, in Monetary Gold, Albania’s silence was not construed as acquiescing to the proceedings.

The usual conditions for consent to the Court’s exercise of jurisdiction were not fulfilled in this case. Without going into the detail Judge Covereur already did in his Opinion, what may be reasonably inferred from the Geneva Agreement is that the United Kingdom only consented to the general notion that the dispute between Guyana and Venezuela should be settled, but not that it specifically be settled by the Court and that any discussion of its international responsibility by the Court was permissible. It is difficult to tell whether the Court’s approach here was erroneous, or whether it really meant to say that consent can be drawn so broadly in these scenarios than in other cases before the Court.

Concluding Remarks

Just the same way metals corrode when exposed to the elements for extended periods of time, the Monetary Gold principle’s exposure to decades of litigation reveals its imperfections. Of course, this analogy may be tenuous at best, given that gold in its purest form is impervious to corrosion; however, the two points I have highlighted from the 2023 Arbitral Award judgment may be indicators that Monetary Gold contains impurities. Putting bad puns aside, in my opinion, the legacy of Monetary Gold should have followed that of Nottebohm: that is, a so-called principle the Court “discovered” to accommodate a very particular set of facts should have been confined to that set of facts and abandoned in subsequent jurisprudence.