Rules are Rules: Reconceiving Monetary Gold as a Rule of Procedure

The Case of the Monetary Gold Removed from Rome in 1943 is familiar to all international lawyers. Like a catechism, we are taught that the ICJ will not proceed with a case where the legal interests of a State not before the Court “would not only be affected by a decision, but would form the very subject-matter of the decision.”¹ Mollengarden and Zamir's proposal that the Court should dispense with the Monetary Gold principle feels almost heretical.² The authors contend that the ICJ Statute sets out a framework for balancing the interests of third parties through the use of the intervention procedure, and that Monetary Gold “disrupts that balance.”³ Monetary Gold is, they submit, to be treated as only a judicial decision,⁴ entitled under Article 36(1)(d) of the Statute to little deference as a source of legal principle.⁵ I suggest taking an altogether different approach. The best way to understand the place of the Monetary Gold principle is in the context of the ICJ's rule making powers pursuant to Article 30(1) of the Court's Statute. These rule making powers are not limited to the promulgation of formal Rules of Court but extend to the determination of appropriate procedures during the hearing of a case. These procedural rules (small r), articulated in the context of particular cases, may in time evolve into formal Rules of Court through an iterative process. Monetary Gold is an instance of the Court defining a small r procedural rule in a manner that is consistent with the Court's Statute.

Article 30(1) and the Court's Rule Making Power

The Court's power to make rules of procedure is articulated in Article 30(1) of the Statute. It states: “[t]he Court shall frame rules for carrying out its functions. In particular, it shall lay down rules of procedure.”⁶ The Statute of the Permanent Court of International Justice (PCIJ) provided likewise.⁷ From the outset, the drafters of both the PCIJ and ICJ Statutes adopted the view that matters of procedure “should only be dealt with in the Statute of the Court where they involve fundamental points of principle which it is desirable to settle once and for all.”⁸ To that end, the Statute grants the Court “wide-ranging autonomy in regulating the exercise of its functions,”⁹ including the power to fill gaps or lacunae in the Statute. The power is, however, confined by the parameters of the Statute itself: the Court cannot in applying Article 30(1) make a rule that is directly in conflict with the Statute,¹⁰ a point to which we will return.

Article 30(1) is the statutory authority for the Rules of Court, which have seen several iterations over the life of the PCIJ and ICJ combined.¹¹ The PCIJ adopted its first Rules of Court in a preliminary session, prior to its first sitting. As the Court's experience grew and as it encountered unforeseen problems in practice, so the Rules adapted and evolved. Indeed, this was a deliberate design feature.¹² The PCIJ Rules were silent in respect of a number of important matters,¹³ with the intention that procedural decisions that were made by the Court in its case law would eventually be incorporated into the Rules.¹⁴ The ICJ took the same approach when it adopted its first Rules of Court in 1946.¹⁵

As such, rules promulgated in case law may in time become Rules. This evolution is best illustrated by the history of the preliminary objection procedure. The first iteration of the PCIJ Rules contained no procedure for separating preliminary objections from the merits. But in Mavrommatis,¹⁶ the PCIJ was faced with a contention by Britain that it lacked jurisdiction to proceed with the case. The PCIJ observed that:

Neither the Statute nor the Rules of Court contain any rule regarding the procedure to be followed in the event of an objection being taken in limine litis to the Court's jurisdiction. The Court therefore is at liberty to adopt the principle which it considers 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.¹⁷

When the Court revised its Rules in 1926, Article 38 was amended to set out the substantive requirements of such an objection.¹⁸ This was further amended in 1936, with the introduction of an entirely separate procedure for preliminary objections in Article 62.¹⁹

The Court's power under Article 30(1) is not limited to the promulgation of formal Rules of Court. On the contrary, Article 30(1) empowers the Court to address matters of procedure tout court.²⁰ For example, in recent years, it has provided the legal basis for the Court to adopt Practice Directions.²¹ Crucially, the power also extends to answering unforeseen questions of procedure that may arise during the conduct of a case,²² and even where this requires developing procedure in a “wholly novel way.”²³

Monetary Gold as a Rule of Procedure

While the Court made no explicit reference to its Article 30(1) powers in Monetary Gold, the rule it promulgated functions as a rule of procedure and should be conceived as such.²⁴ It is not a general principle of law. Mollengarden and Zamir suggest this is because it “falls short of the requisite pedigree and prevalence.”²⁵ I would rather argue that it is because principles and rules are separate concepts.²⁶ Principles “express general truth,”²⁷ while a rule is the practical and binding articulation of a broader principle or principles. A rule of procedure represents a choice, by a Court, to control how proceedings develop,²⁸ made either in advance in the formal Rules, or spontaneously during a case. As expressed by S.I. Strong, rules “reflect but one way to implement a particular principle, and the underlying concept may be given effect through a variety of different means.”²⁹

The Monetary Gold rule gives effect to the principle that “no State can, without its consent, be compelled to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement.”³⁰ Additionally, it concretely applies the Court's duty to “uphold the sound administration of justice,”³¹ insofar as application of the rule contributes broadly to the prevention of multiplicity of proceedings, and ensures that any judgment the Court renders is capable of practical effect.³² Importantly, the rule applied by the Court in Monetary Gold was not a foregone conclusion. Although on the facts it is difficult to see what other decision the Court could have reached, the Court was not compelled by substantive law to proceed as it did. As Mollengarden and Zamir point out, the Court was ostensibly vested with jurisdiction in respect of the parties before it.³³ But the Court elected to create a procedural rule that places an objective and fundamental limit on the exercise of its jurisdiction, one which, as Amerasinghe observes, “must be applied when the appropriate circumstances are present, leaving no room for a discretionary decision not to apply it.”³⁴ To that end, as Tams observes, the Monetary Gold rule “should not be seen as a necessary implication of consensualism, but as a deliberate extension.”³⁵

So, Monetary Gold can be reconceived as a rule of procedure, enacted pursuant to the Court's statutory authority in Article 30(1) in order to give effect to broader principles that the Court has determined to uphold. The content of the rule is quite simple. The applicant State must bring their action against the necessary party or parties, and where there is a contention that this has not occurred, the Court must decide whether the case is able to proceed. In this respect, the Monetary Gold rule can be viewed as part and parcel of the obligations for applicant states under Article 38 of the present Rules of Court³⁶ and Article 40 of the Statute, that cases brought to the Court must identify in the application or special agreement both the subject of the dispute and the parties involved. Judge Read identified this issue in his individual opinion in Monetary Gold when he observed that, “as Albania was a necessary and indispensable party to the proceedings . . . there was a fundamental defect in the Application by which these proceedings were commenced.”³⁷ Sometimes the Court's lack of jurisdiction or another defect in the application is obvious,³⁸ but in Monetary Gold this was not immediately apparent.

A Rule Consistent with the Statute

The Court's power under Article 30(1) is subject to one inherent limitation: rules of procedure cannot conflict with the Statute. Mollengarden and Zamir imply that the ICJ Statute neatly triangulates all aspects of jurisdiction, and Monetary Gold undermines this structure, or is at least “in tension” with it.³⁹ But the Court's attitude to procedure has generally been that whatever is not expressly forbidden by the Statute is permitted.⁴⁰ Moreover, the Statute very much requires states to submit applications that are not defective, and are capable of resulting in an effective judgment.⁴¹

The simple fact is that the drafters of the Statute did not foresee all possibilities, and nor did they expect to, or even want to, attempt such a feat. Instead, they empowered the Court through Article 30(1) to address procedural difficulties. As the Court stated in the Nottebohm case, the “seising of the Court is one thing, the administration of justice is another. The latter is governed by the Statute, and by the Rules.”⁴² Monetary Gold is a prime example of this distinction.

Conclusion

If Monetary Gold is reconceived as a rule of procedure, any contention that it lacks normative authority falls away.⁴³ Rather than perceiving it as a general principle of law or simply a judicial decision, it should be considered a small r procedural rule made in the exercise of the Court's authority pursuant to Article 30(1) of its Statute. It sits alongside, with equal authority to, the Court's jurisdictional architecture. All that remains to be seen is whether Monetary Gold will be incorporated in future iterations of the Rules of Court.