The Case of the Monetary Gold Removed from Rome in 1943 is familiar to all international lawyers. Like a catechism, we are taught that the ICJ will not proceed with a case where the legal interests of a State not before the Court “would not only be affected by a decision, but would form the very subject-matter of the decision.” Mollengarden and Zamir's proposal that the Court should dispense with the Monetary Gold principle feels almost heretical. The authors contend that the ICJ Statute sets out a framework for balancing the interests of third parties through the use of the intervention procedure, and that Monetary Gold “disrupts that balance.” Monetary Gold is, they submit, to be treated as only a judicial decision, entitled under Article 36(1)(d) of the Statute to little deference as a source of legal principle. I suggest taking an altogether different approach. The best way to understand the place of the Monetary Gold principle is in the context of the ICJ's rule making powers pursuant to Article 30(1) of the Court's Statute. These rule making powers are not limited to the promulgation of formal Rules of Court but extend to the determination of appropriate procedures during the hearing of a case. These procedural rules (small r), articulated in the context of particular cases, may in time evolve into formal Rules of Court through an iterative process. Monetary Gold is an instance of the Court defining a small r procedural rule in a manner that is consistent with the Court's Statute.
Review - Constitutional Conscience: The Moral Dimension of Judicial Decision, by H. Jefferson Powell, and How Judges Think, by Richard A. Posner
