In June 2022, it was announced that Issa Shiraishi, a member of this Hub, was awarded the Oda Shigeru Award by the Japanese Society of International Law for his thesis, titled “Reconsideration of the raison d’être of the Monetary Gold Principle”. Issa is an international relations student at The University of Tokyo’s Department of Liberal Arts.
UN Photo/ICJ-CIJ | Credit: Frank van Beek
Issa’s paper focuses on on comparing existing theories which explain the rationale and applications by the International Court of Justice (ICJ) in the East Timor case. The Monetary Gold Principle, first invented by the ICJ in the Monetary Gold case, has been used to decline the adjudication of cases based on a lack of consent from a third country that is not a party to, but is intensely concerned with the case. Despite its frequent appearances in international adjudications, the explanation of its rationale has been insufficient. Although commentators have made a variety of arguments, it is often asserted that the principle is intended to protect the third country, so that its right is not adjudicated without its consent.
In this paper, Issa categorizes existing theories into four groups, based on the essence of the criteria for application of the principle. The first group argues that it is a matter of jurisdiction, while the other three argue that it is a matter of admissibility, implying that counterbalancing tests should be used. The second group argues that protection of the third country from the actual influence of the Court’s judgment, on one hand, and the duty of the Court to adjudicate should be weighed against each other. The third group argues that what matters is whether the determination involving the legal interests of the third country forms an integral and inseparable part of the res of the case, while the fourth group argues that what matters is rather whether the determination forms a necessary prerequisite for the judgment.
Through a close look at the Court’s case law, Issa concludes that the fourth theory is the most convincing.The rationale of the Monetary Gold Principle is to prevent a judgment from being moot by basing itself on the legal situation of the third country, which the Court cannot firmly determine due to the lack of consent. Therefore, contrary to common assumption, this principle is rather to protect the Court’s judicial function itself than the interests of a third country. Underlying the Monetary Gold Principle is the “mootness principle” set forth in the Northern Cameroon case and the Nuclear Test case.
Furthermore, Issa points out that both in the Nuclear Test case and the East Timor case, the Court passed on legal assessments of the legal situations of a country whose consent was not granted in considering the application of the mootness principle. What enabled such operations was, he argues, the inherent powers of the Court to protect its judicial function. However, such powers are not infinite and should be limited by the necessity of exercising them – in delimiting the exercise of inherent powers, the conclusion as to the rationale of the Monetary Gold Principle obtained in his thesis can be of help, he concludes.
The Oda Shigeru Award, named after former Japanese ICJ judge Oda Shigeru（小田滋）,was founded nine years ago, The application is open every summer, and all undergraduate and Master’s students are eligible.