Third Party Intervention [2] : Interest of a Legal Nature

Q: 『Given the bilateral nature ofninter-state dispute settlement, does the law and practice of internationalncourts and tribunals adequately safeguard the interests of a 『third state』?

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Discuss by reference to Monetary Gold case andnother rules and principles recognized by ICTs.

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Questions to be considered:

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- nHow interest of third states innMonetary Gold is protected?

- nDoes the practice demonstrated innMonetary Gold case adequately protect the interest of third states?

- nAre there other principlesnidentified by ICTs, are they satisfactory?

Monetary Gold case

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This case brings to light about the notionnof 『indispensable third』 party. The object of the case is to decide whether thenclaims raise by UK or the claims raised by Italy in relation to some monetaryngold from Rome should have priority. One preliminary issue to this dispute isnwhether Italy can lawfully get the Monetary gold from Albania due to Albania』snwrongful acts against Italy. The court found that it could not decide thendispute between Italy and the UK without making a preliminary decision withnregard to the international responsibility of Albania. Since it could not getnAlbania』s consent to decide the preliminary issue, the court found itself has no jurisdiction. It can be deduced from the case a rule that if the interest ofna third state constitutes the very subject matter of the case present to thencourt, the court shall not have jurisdiction over the case without the consent ofnthe third state.

The Monetary Gold case constitutes a validnprecedent and the approach was followed in later cases. In East Timor case, fornexample, Portugal made a claim against Australia, claiming that Australia byninter alia concluding an agreement with Indonesia, violated the right tonself-determination of people of East Timor. The court found that the case unavoidablyninvolved a pronouncement of an issue in relation to a third state, i.e, whethernIndonesia had the capacity to conclude a treaty on behalf of people of EastnTimor with one party to the dispute. The court found it has no jurisdiction,nwithout consent of the third state.

In cases like Monetary Gold and East Timor,nin order to protect the interest of third state, the court provides a rule tonallow third states who consider their rights of a legal nature may be affectednby the decision of a court to intervene (Art. 62 of ICJ Statute), either as anparty or non-party.(Land, Island and Maritime Delimitation case between ElnSalvador/Honduras). The definition of 『interest of a legal nature』 is notnclearly defined. (Rosenne) It is informed from Monetary Gold case that in casesnwhere the interest of a third state form the very subject matter of the case,nsuch interest would constitute 『interest of a legal nature』 in the sense ofnArt. 62 of ICJ Statute and make it possible for a third state to intervene. (ElnSalvador/Honduras case)

To the extent that third states in casenlike Monetary Gold can intervene to present their opinions, and the court couldnnot decide the case without their consent, their rights can be considered to benadequately protected. However, Monetary Gold case also presents a potential problemnwhich might be opposed to the function of international courts to solvendisputes. In cases like Monetary Gold, if it is required that third states can intervenenas a party, but in absence of jurisdictional link with parties to the dispute,na paradoxical consequence would happen, i.e, the court would neither have jurisdictionnto hear the case or the third state could not protect its interest throughnintervention.（Bonafe）

Reference Beatrice I. Bonafe, 『InternationalnCourt of Justice: Interest of a Legal Nature Justifying Intervention before thenICJ』, LJIL (2012), 25, pp. 739-757.

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