Corroded Monetary Gold (Part II): A Nicaragua-Germany-Israel Boogaloo

[Dylan Jesse Andrian is a legal assistant for the Al Hassan Defence Team at the International Criminal Court and an LL.M. candidate at Cambridge University]

Not even a year after the Monetary Gold principle was litigated in the ICJ’s 2023 Arbitral Award judgment (which I criticized in a post on Opinio Juris previously), Germany has invoked the same principle in its oral pleadings (Pleadings of Mr. Wordsworth, paras. 5-23) in the recent proceedings before the ICJ instituted by Nicaragua involving Germany’s alleged breach of its international obligations in respect of the Occupied Palestinian Territory. To recall the key point of the case, Nicaragua claimed Germany violated international law by providing “political, financial, and military support to Israel fully aware at the time of authorization that the military equipments would be used in the commission of great breaches of international law by this State and in disregard of its own obligations” (para. 13). One of Germany’s preliminary objections in response was that Israel is an indispensable third party to the proceedings because an examination of the merits of Nicaragua’s case necessitates an investigation into Israel’s international responsibility. According to the Monetary Gold principle, such litigation of an absent third State’s legal interests would be inadmissible.

Longobardo here proposes an elegant solution as to how Monetary Gold could be excluded specifically for the duty to respect IHL (but likely not for other violations, such as that of the Genocide Convention. Similar arguments are posited by Stendel and Wentker). Nicaragua, in its oral pleadings, has argued that Monetary Gold was more doctrine than principle, claiming that absent third parties enjoy sufficient protection through Article 59 of the ICJ Statute, which limits the binding effect of judgments to the parties of that particular case (Pleadings of Mr. Pellet, para. 9). Nicaragua has also argued that even if this principle did exist, Monetary Gold does not apply at a provisional measures stage and, alternatively, only applies where “la question essentielle” was one that bore on a third State’s responsibility, which was not true in this case (paras. 10-11). 

In this post, I submit a further argument to disapply Monetary Gold can be made based on the following premises: First, the Monetary Gold principle cannot exclude cases involving a third State’s (former) legal interests that have already been “settled” under international law. Second, matters decided by the Court inter partes can become “settled” for third States. The conclusion of these two points is that when a matter involving State A’s former legal interests has become “settled” under international law, State B may sue State C in a case involving, as an essential element, State A’s “settled” legal interests without falling afoul of the Monetary Gold principle. Thus, Israel’s international responsibility, if “settled” by the 2004 Wall Advisory Opinion and the 2024 Palestinian Genocide proceedings, may form an essential element of Nicaragua’s case against Germany without falling afoul of the Monetary Gold principle. Third, assuming Nicaragua can prove it falls within this situation, it should seek a stay or bifurcation of its own proceedings until the Palestinian Genocide case is resolved.  

Point 1: The Monetary Gold Principle Cannot Exclude Cases Involving a State’s (Former) Legal Interests That Have Already been Settled Under International Law

Consider an example where State A contains province B. Whenever proceedings are instituted before the Court affecting the legal status of province B, State A’s legal interests are affected. Thus, if State A is absent to those proceedings, the Court should throw out that case under the Monetary Gold principle. But what happens if province B successfully secedes from State A and becomes State B, a completely distinct entity from State A? Logically, any issues relating to the status of State B or the legality of its actions cannot be claimed by State A as evidence that its own (State A’s) legal interests are affected. (For example, the ICJ would never throw out a case involving the United States just because it was a former colony of the United Kingdom, who may be absent from those proceedings.) We may therefore conclude that a State’s legal interests are not affected by matters which at some point pertained to it but which have become “settled” under international law.

Similarly, the question of a State’s international responsibility can become as “settled” as the question of a territory’s legal status. In a bit of poetic irony, the case that best illustrates this point is the 1954 Monetary Gold judgment. In short, Monetary Gold was concerned with whether gold belonging to Albania should be handed over to Italy or the United Kingdom. Both States claimed that they were entitled to Albania’s gold because Albania had breached its international obligations to them separately. In the end, the Court held that adjudicating on Italy’s claim would require an examination of Albania’s international responsibility towards Italy, which it considered it could not do because Albania was an indispensable but absent party to the proceedings. However, the Court made no mention of Albania’s international responsibility to the United Kingdom, which was established in the Corfu Channel proceedings and which was also an essential aspect of determining who was entitled to the gold. But why not? Implicit in the Court’s reasoning was the idea that Corfu Channel “settled” the question of Albania’s international responsibility towards the United Kingdom. Evidently, the Court’s own practice confirms that a matter once “settled” cannot be excluded by the Monetary Gold principle. 

Point 2: Matters Decided by the Court inter partes Can Become “Settled” for Third States

Assuming my first argument holds true, how do matters become “settled”? Without delving into each particular situation, it suffices to say that, by virtue of Article 59 ICJ St, a question of international law (including international responsibility) submitted to the ICJ becomes “settled” when the ICJ issues a judgment binding on the two parties to those specific proceedings. But how can a matter in an ICJ decision become “settled” for third States?

One method is through Article 63(2), which derogates from Article 59, and allows a third State to intervene and have the Court’s judgment become binding upon it. But what about methods outside the Court’s Statute?

Let us come back to Monetary Gold. The Court’s only issue with Italy’s claim was that it involved a prior examination of Albania’s international responsibility to Italy. In other words, if Italy had a claim to the gold that did not involve an examination of Albania’s international responsibility to Italy, the ICJ would have no other issue proceeding with the case. Working within this hypothetical, the Court would have no issue examining whether the United Kingdom could be entitled to the gold, because Albania’s international responsibility towards it had already been “settled” between those two parties through Corfu Channel. However, if we were to apply Article 59 strictly, Corfu Channel would have never “happened” for Italy, France, and the United States, especially since they could not and did not intervene in that case. Accordingly, the Court should have decided that the claim was inadmissible because it would have required a determination of Albania’s international responsibility to the United Kingdom in respect of Italy, France, and the United States. Unsurprisingly, the Court did not make such a finding, tacitly acknowledging that Corfu Channel was a “settled” matter for those three States. But how can this be possible? In my opinion, a matter can become “settled” for a third State, when, by their conduct, they demonstrate a willingness to accept a judgment as binding on them. This seems to be what States do anyway out of practicality. (After all, whenever the Court settles boundary disputes, how frequently do third States challenge the Court’s judgment through a strict reading of Article 59?) Thus, by omitting to outright reject the Corfu Channel judgment, the three States not party to those proceedings accepted what the Court said there to be “settled”. From this example, we can extrapolate the following: through acquiescence or even estoppel, what is binding inter partes may thus become binding erga alias partes. 

Conclusion from Points 1 and 2

To summarize the arguments made thus far, first, Monetary Gold does not exclude adjudication involving “settled” questions of a third State’s international responsibility even as an essential element of a case; and second, a matter of international responsibility “settled” by a judgment involving two States can be “settled” for a third State if that third State either intervenes in the proceedings through Article 63(2) ICJ St. or acts in a manner accepting the judgment as binding on itself. 

Currently, the Court is faced with questions of Israel’s international responsibility under the Genocide Convention through the Palestinian Genocide proceedings. Seeing as only Nicaragua and not Germany has intervened in these proceedings, the ICJ’s final decision on Israel’s responsibility under the Genocide Convention will probably not become a “settled” matter for them. (Moreover, Article 62 is not formulated in terms that would bind intervenors to respect the Palestinian Genocide judgment, especially when contrasted against the explicit binding language employed in Article 63.)

However, I find it highly unlikely that either Nicaragua or Germany would act as though the ICJ’s final pronouncement was limited to South Africa and Israel. In fact, Nicaragua has already expressed its intention to be bound by the Court’s ruling (para. 21(d)). Of course, it remains to be seen how Germany will react to the final judgment, but to reject it would spell a political and diplomatic catastrophe. Germany will likely, even if only begrudgingly, accept the Palestinian Genocide judgment as binding upon itself by halting support to Israel (which will serve as a far more explicit form of acceptance of the judgment than the three non-Corfu Channel parties in Monetary Gold), and Nicaragua may rely on this or conduct similar to this to suggest the matter has become “settled” between them and Israel.

Point 3: Why Nicaragua Should Seek a Stay or Bifurcation of Proceedings

Based on the arguments above, Nicaragua will have to wait out the Palestinian Genocide proceedings before it can successfully make its own arguments on whether Germany was complicit in Israel’s genocide. In my view, Nicaragua should pursue a remedy that keeps its case on the Court’s docket until this happens, considering the possibility of Germany withdrawing or modifying its instrument of consent to the Court’s jurisdiction. (Similar situations have occurred with Japan modifying its compulsory jurisdiction declaration after Whaling in the Antarctic, the United Kingdom doing the same after Nuclear Disarmament, and the United States withdrawing from the Optional Protocols to the Vienna Conventions on Consular and Diplomatic Relations after Avena, LaGrand, and Embassy Relocation.)

This is why I propose either a stay of proceedings, where the Court will only resume Nicaragua’s case after it makes a judgment on Palestinian Genocide; or a bifurcation of proceedings, where the Court will hear whether Germany was complicit in the IHL violations established in the Wall Advisory Opinion first while waiting for the Palestinian Genocide proceedings to finish before going on to discuss Germany’s possible complicity in violations of the Genocide Convention. Admittedly, while this remedy has never been exercised before the ICJ, Article 30 ICJ St. confers upon the Court freedom to determine matters of procedure. Given that the Court should consider what is “best calculated to ensure the administration of justice, most suited to procedure before an international tribunal and most in conformity with the fundamental principles of international law” (para. 38), the above remedies are the most suitable in this rather unique case.