Reassessing State Consent to Jurisdiction: The Indispensable Third Party 
Principle before the icj

Sparks, Tom

doi:10.1163/15718107-91020005

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Reassessing State Consent to Jurisdiction: The Indispensable Third Party Principle before the icj

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Sparks, Tom
Max Planck Institute for Comparative Public Law and International Law, Max Planck Society;

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https://doi.org/10.1163/15718107-91020005
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Citation

Sparks, T. (2022). Reassessing State Consent to Jurisdiction: The Indispensable Third Party Principle before the icj. Nordic Journal of International Law, 91(2), 216-252. doi:10.1163/15718107-91020005.

Cite as: https://hdl.handle.net/21.11116/0000-000F-1D06-B

Abstract

In Monetary Gold Removed from Rome, the International Court of Justice first articulated the “Monetary Gold rule”: the principle that it cannot rule on cases in which the conduct of a State not party to the proceedings forms the “very subject-matter” of the dispute. That principle is taken to be a fundamental rule of international law, deriving its force from the sovereignty of States and the nature of the international legal system.

This article will dispute that claim, and will argue that the principle of consent underpinning Monetary Gold is an empty formalism. Through a comparison of the Court’s approach in its contentious and advisory jurisdictions, it will ask to what States consent and for what purpose they do so, when they “consent to jurisdiction”, and no satisfactory answer will be found. It will conclude that the focus on consent in international adjudication is discretionary.