Community Interests in the Adjudication of the International Court of Justice

This thesis analyses the challenges of adjudicating disputes relating to community interests in contentious cases before the International Court of Justice (ICJ). Community interests are shared collectively by groups of states, which can lead to tensions with the bilateral and consensual procedure of the ICJ. The present thesis examines the ICJ’s jurisprudence and relevant scholarly writings to evaluate how the principle of consensual jurisdiction and the so-called Monetary Gold principle may impact the ICJ’s ability to adjudicate disputes involving community interests. The principle of consensual jurisdiction requires states to consent to submit their disputes to the ICJ. In contrast, the Monetary Gold principle prevents the ICJ from adjudicating a dispute when the interest of a third state would form “the very subject-matter of the decision”. A conclusion in the thesis is that the principle of consent and the Monetary Gold principle restrict access to the ICJ for cases concerning community interests. It may not be possible to obtain the necessary consent, and even though the parties to the case have agreed to submit the dispute to the ICJ, the Court must consider the legal interests of absent third states. However, in most of the examined cases, the ICJ has been able to separate the obligations of the parties from those of absent third parties. The thesis also analyses adjustments proposed by other scholars to circumvent the Monetary Gold principle and thereby improve access to the ICJ for cases involving community interests. It considers four different models: the first is to abandon the Monetary Gold principle, the second is to bilateralise the dispute, the third is to introduce an exception to the Monetary Gold principle when community interests are involved, and the fourth is to rely on legal findings by other institutions. The thesis concludes that the optimal approach from the perspective of community interests is to bilateralise the dispute. While the ICJ has indicated its acceptance of the alternative of applying legal findings by other institutions, it has not applied the model in any contentious case. It seems unlikely that the ICJ would abandon the Monetary Gold principle, and the ICJ’s later jurisprudence has precluded the possibility of introducing an exception.