The Monetary Gold Principle: A Matter of Submissions

Abstract

In “The Monetary Gold Principle: Back to Basics,” Zachary Mollengarden and Noam Zamir claim that the well-known principle runs against fundamental ICJ statutory provisions. It would “depart” from Article 36(1), “undermine” Article 62, “import factors external” to Article 59 and “obscure . . . rather than illuminate . . . the relevant rules of law” contrary to Article 38(1). Additionally, the policy considerations upon which the principle is allegedly based—compliance, due process, and legitimacy—would support its abolition, rather than its perpetuation. I argue that the authors’ claims are unpersuasive in relation to Article 36(1) of the ICJ Statute (consent of the parties to adjudication) since they fail to distinguish between having jurisdiction in a case and exercising jurisdiction to decide a claim. The authors also overestimate the role of Article 62 in securing third-party interests, since only intervention as a party, rather than a non-party, is sufficient to overcome the Monetary Gold limitation.