Abstract This article develops an analytical framework for applying the Monetary Gold rule in public interest litigation before the International Court of Justice (ICJ). A new dimension of this litigation expands the circle of potential respondent states to also include facilitators and bystanders of a primary wrongdoing. This litigation raises the question as to whether the ICJ would be barred from adjudicating claims against such states because the primary wrongdoing state would be an indispensable third party. To build its framework, the article compares different types of rules that enable states to be held responsible for the conduct of other states. These rules range from complicity-type duties of non-assistance and non-instigation to duties of prevention. All of these duties share a certain ‘moral sophistication’ in that they bear a connection to another state’s (potential) wrongdoing. The character of this connection determines the extent to which the Monetary Gold rule bars the ICJ from adjudicating a claim. The way in which different duties structure their moral sophistication is key. Wider developments in the structure of the international legal order, with an increase in free-standing obligations imposed on states, suggest that the room for such public interest litigation may be growing. For obligations of prevention, in particular, requests for provisional measures offer pathways to adjudication in spite of Monetary Gold, as can seeking and using determinations of third states’ legal position in authoritative decisions, including advisory opinions. By testing the limits of these paths, public interest litigation against facilitators and bystanders may further recalibrate the balance in interstate dispute settlement between respect for sovereign equality, on the one hand, and the possibility of judicially enforcing community interests, on the other hand.
Stendel et al. (Thu,) studied this question.