Reassessing State Consent to Jurisdiction. The Indispensable Third Party Principle before the ICJ

Abstract

In Monetary Gold Removed from Rome, the International Court of Justice first articulated the ‘Monetary Gold rule’: the principle that it cannot rule on cases in which the conduct of a State not party to the proceedings forms the ‘very subject-matter’ of the dispute, even where its jurisdiction over the parties is established. That principle is now commonly taken to be a rule of international law of a fundamental character, deriving its force from the sovereignty of States and the nature of the international legal system. This article will dispute that claim, and will argue that the principle of consent underpinning Monetary Gold is an empty formalism. Through a comparison of the Court’s approach in its contentious and advisory jurisdictions, it will ask to what States consent and for what purpose they do so, when they ‘consent to jurisdiction’, and no satisfactory answer will be found. It will be concluded that the focus on consent in international adjudication is discretionary; it is a choice, and its rationale therefore deserves to be fully interrogated.

Keywords: adjudication; advisory opinions; Certain Phosphate Lands; Chagos Archipelago; consent; East Timor; indispensable third party principle; International Court of Justice (ICJ); jurisdiction; Monetary Gold.