1 Introduction
Effectiveness and efficiency in judicial decision-making are the most important objectives of any court. While this concerns primarily the final decisions that are rendered, this is also relevant to the judicial process and the legal reasoning that a court or tribunal carries out to reach its decision, in order to ensure continuity and coherence. Traditional understandings of the international judiciary have seen the judges’ role as one where they discover and declare the law by applying it at face value to the legal issues that have arisen within the case, thereby achieving effectiveness through what is said to be direct and clear application of the law.Footnote 1 Indeed, ‘[international] judges have to apply the law and they have to apply the law in force’.Footnote 2 This would seemingly contrast with the picture of the judge as one who engages in developing the law in order to administer justice. This latter understanding sees the judges’ role as involving an inherent form of creativity to meet the needs of the case before them,Footnote 3 while they may be accused of entering the field of law creation.
This dichotomy sits rather uneasily with the identification of customary international law (CIL), which is by its very nature unwritten and established by identifying evidence of state practice and opinio juris.Footnote 4 Accordingly, custom needs to be understood as ‘the result of an informal process of rule-creation’.Footnote 5 This two-pronged approach to recognising CIL renders the degree of precision that is usually found in conventional law-making processes more difficult to achieve.Footnote 6 This is because of a paradoxical difficulty that exists between qualifying the rule as law while simultaneously seeking to apply and interpret it. This may lead to instances where courts are considered to assume the position of legislator by overstepping the powers granted to them, laying them more easily open to the reproach of engaging in judicial activism.
Although the concept of judicial activism has come to be frequently associated with the decisions of certain international courts,Footnote 7 it has particularly derogatory connotations, evoking the seemingly unorthodox judge who has taken the decision to derogate from established law and base their decision on a novel, or at least less common, interpretation of a legal principle. This raises the question of the possible role of activism in the determination of certain customary rules and the part it plays in their subsequent effectiveness or ambiguity.
The aim of this chapter is to examine instances of judicial activism in the decision-making of international courts and tribunals during the determination and application of CIL and how that allows for either judicial effectiveness or ambiguity. To do this, we will first set out the foundational parameters that need to be examined. We will describe the process by which custom is created and set out the customary rule on which our analysis will focus – namely, the indispensable parties principle.Footnote 8 We will then turn to judicial effectiveness, its definition and consequence for the judicial function, and in particular how it can be identified. We will then provide a definition of, and guidelines for identifying, judicial activism in international courts. With these elements in mind, the discussion will then return to an analysis of relevant case law regarding the indispensable parties principle and the use, or not, of judicial activism in such cases. Lastly, we will evaluate whether custom has been used as an instrument for judicial activism and, if yes, enquire into how the judicial function itself has enabled this.
2 CIL and the Judicial Process
Typically unwritten, CIL is determined through state practice and acceptance as law (opinio juris). Nevertheless, the recognition of customary international rules remains a difficult task,Footnote 9 as it requires a particular process through which the interpreter (the judge) can arrive at a conclusion of the existence of a law or rule under custom. Footnote 10 Further, the question arises as to what extent the courts engage in the identification and determination of CIL proper or fall victim to what has been termed ‘pulling a rabbit out of [their] hat’ by simply asserting what they think the law is.Footnote 11
The determination of custom has a direct relationship with the judicial function and the judicial process. As Maarten Bos has argued, proof of custom is a ‘process of thought’ leading to a judicial pronouncement, which thereafter forms undeniable proof of a legal relationship and indicates the existence of a legal norm or law.Footnote 12 Thus, the very identification of the customary rule can indicate the judge’s state of mind and, by extension, the possible use of activism or restraint. Furthermore, this process of reasoning to identify a customary rule reflects the progress and evolution of the judicial process.Footnote 13 This is because the element of identifying custom is so intrinsically linked to the judicial process – it being a process itself – that it may shed light as to the judicial function assumed.Footnote 14
In a similar vein, the present author considers that the interpretation of custom also reflects the state of the judge’s mind and the ‘process of thought’ followed to arrive at its possible application.Footnote 15 Indeed, while methodology in interpretation rests beyond the confines of this analysis, interpretation is more than just deciphering what the language of a rule means; it goes further and asks: ‘What law does this [rule] make? How does it fit into the rest of the corpus juris?’Footnote 16 By extension, if interpretation of custom comes in the form of interpretation of previous evidence of state practice and opinio juris, we can identify the ever-evolving judicial function and its role in the creation of the law.
As we will see in the following analysis, the method of identification and interpretation of custom grows to become a vital element in the very creation of the judicial function. By contrast, if this method is lacking, the court has fallen into the trap of ‘pulling a rabbit out of its hat’, contributing to inconsistency and incoherence, where the court simply ‘asserts the law as it sees fit’.Footnote 17
2.1 The Indispensable Parties Principle and CIL
As custom forms a broad corpus of law, the present analysis will be confined to the principle of indispensable parties, as articulated by the International Court of Justice (ICJ) in the Monetary Gold Removed from Rome case.Footnote 18 Aware of the difficulties surrounding the history and legal origins of this principleFootnote 19 and the objections that exist as to its nature as a rule or principle of customary international lawFootnote 20 the present author nevertheless argues that it is precisely this confusion that makes it worth examining, as the role played by the international judiciary in its evolution offers ample scope for discussion. This, in turn, provides the opportunity to scrutinise the work and analysis carried out and to open a discussion on the role of activism and restraint in relation to custom in general.Footnote 21
Recognised in international law as a governing principle and a piece of conventional wisdom,Footnote 22 this principle essentially affirms that a court or tribunal will not decide a case if the decision will affect the legal rights of a third state which is indispensable to the resolution of the dispute before it. This principle is most often framed as an absolute,Footnote 23 yet without any particular source attributed to it.Footnote 24 Considering that different principles may be derived from ‘different sources of international law at different times and even the same principle may be simultaneously shaped by various elements of the legal order’,Footnote 25 we can see how the principle can be the result of a variety of sources, one of which could arguably be CIL.Footnote 26
As this analysis sets out to demonstrate, the indispensable parties principle has by now not only acquired general acceptance within the international legal system but is also called upon quite frequently in practice.Footnote 27 The principle affords an opportunity to analyse both its identification and its subsequent application as a customary rule: while Monetary Gold may or may not reflect a rule of custom that existed at the time of the ruling, subsequent international courts have allowed us to understand it as such today. Furthermore, as the principle has a procedural character,Footnote 28 this enables a direct link between judicial effectiveness and judicial activism, because the very need for effective procedures is directly linked to the effective administration of justice.Footnote 29
3 The Judicial Function and Its effectiveness
Judicial effectiveness in international law is a controversial concept.Footnote 30 This is but a natural corollary to the diverging opinions of what the judicial function precisely entails and what the role of a judge is. Indeed, various definitions and models of effectiveness have been introduced in an attempt to define the concept of judicial effectiveness.Footnote 31 One common definition is what has been described as the goal-based rationaleFootnote 32 according to which ‘an action is effective if it accomplishes its specific objective aim’.Footnote 33 In other words, the court or tribunal must be fulfilling the judicial function which it was tasked to fulfil.Footnote 34 To do this, one must identify what that judicial function consists of and the desired outcomes it ought to generate:Footnote 35 international courts and tribunals are created to settle the disputes referred to them, ‘to do justice’ between the litigant states and render a binding judgment.Footnote 36 By contrast, judicial ambiguity reflects the judge who does not render effective decisions, one who is not able to fulfil the full spectrum of the judicial function, so that the judgment, while possibly resolving the case, also raises ancillary questions as to its effectiveness and coherence. This, of course, can only be measured by defining what that judicial function is. To be able to so define, or measure, the judicial function, three components are proposed that will allow the examination of the decision-making of the courts and tribunals at the international level.Footnote 37
The first component is the idea that decisions serve a public, in addition to a private, function.Footnote 38 On the one hand, there exists the commonly accepted task consisting in resolving the dispute between the two parties to the case the so-called private function.Footnote 39 On the other hand, there exists the public function of an international court, which goes beyond the settlement of that dispute and extends into the realm of positively creating norms that can generate obedience among the members of the community regulated by that system of norms.Footnote 40 This latter function is linked to the proper administration of international justice by helping to create a body of coherent rules and laws and ensuring overall efficiency in judicial decision-making.Footnote 41
This is closely related to our second component: the emergence of a ‘new posture of international courts and tribunals [that] is the “spirit of systemic harmonisation”’.Footnote 42 Although the international legal system has been described as fragmented, giving the impression of isolated regimes, there is a growing rapprochementFootnote 43 and the creation of common standards, as exemplified through court decisions that allow for a more unified system than that which initially meets the eye.Footnote 44 This describes the web that is gradually being woven in the international legal system through progressive collectivisation, with many components of international law being endorsed through mutual recognition and respect between states.Footnote 45 Customary international law forms part of this collectivised web.
Thirdly, while the notion of judicial law-making may be difficult to reconcile with the traditional understanding of the role of the international judiciary, it has come to be accepted that a judge’s role also comprises an element of law creation through its identification, interpretation and application.Footnote 46 This is not to contradict the idea that judges must identify and apply the law at hand, but to argue that, in identifying and applying that law, they are, through the very nature of the judicial process, also creating it. In other words, through the act of judicial reasoning and interpretation, judicial law-making ipso facto exists, in some shape or other, under the guise of judicial interpretation.Footnote 47
For present purposes, effectiveness reflects a combination of these three components. It should be noted that while precedent and any attention given to previous court decisions is largely denied at the international level,Footnote 48 the international judicial function nevertheless aims to create coherence and consistency through its decision-making. The ICJ ascribes considerable authority to previous decisions, over and above the habitual practice of citation.Footnote 49 In fact, it has been said that it ‘commonly formulates new rules under the cover of interpretation’Footnote 50 and, further, that the ‘Court’s interpretation … contributes to the creation of what it finds’.Footnote 51
Ambiguity, here, refers not only to judgments that are ineffective or textually unclear, but reflect a judge who deviates from this triad, rendering decisions that neither contribute to norm creation nor form a part of the collectivised web of international law but instead leave the resolution of the dispute unclear and do not necessarily fit within the overall systemised collective. Where the coherence and consistency of a decision are in question, we find ambiguity.
4 Judicial Activism and Judicial Restraint
4.1 A Definition
Before commencing the analysis, it is important that the terms ‘judicial activism’ and ‘judicial restraint’ be defined. As former CJEU judge Pescatore noted ‘[w]hat is described by one as activism is seen by another as a just and necessary safeguard’.Footnote 52 Therefore, the determination of a judicially activist or restraint decision will always be a matter of degree.Footnote 53 Despite its relatively widespread usage, the term ‘judicial activism’ has no unified meaning. Although judicial activism is commonly attributed to the law-creating nature of the role of judges, and restraint to rejection of that law-creating role, these attributions provide little as to the nature or content of these principles. Indeed, it has even been asserted that ‘judicial activism is simply the label used for decisions one does not like’.Footnote 54
International legal scholars have nevertheless attempted various definitions of judicial activism, which offer some indication as to how it might be discerned. Hugh Thirlway identified two types of activism: activism in the ‘formal sense’, which arises when the judge ‘deals with an issue the decision on which is not essential to the resolution of the dispute before him … [but wishes] to “enrich and develop” the law’;Footnote 55 and ‘substantive activism’, which arises when the judge is ‘dissatisfied with existing law … [and] … will be ready to indulge in something close to open law-creation in order to base his decision’.Footnote 56 Former ICJ judge Kooijmans objected to both activism and restraint before the ICJ, steering away from the ‘destructive trap’ of activism and the ineffectiveness of restraint, ‘which closes windows’,Footnote 57 and introducing instead the concept of ‘proactive judicial policy’.Footnote 58 To him, the judicial role is ‘to utilise those aspects of the case which have a wider interest or connotation in order to enrich and develop the law’.Footnote 59 Lara Pair considered the ‘ultimate criterion for judicial activism’Footnote 60 to be the focus on ‘avoidance of an unjust result’ and ‘creative reasoning rather than strict application of the law’.Footnote 61
Judicial restraint has been even more illusory, yet some helpful definitions can also be found. Lauterpacht described a court that exercises restraint as one which ‘refrains from explaining rules in detail’Footnote 62 as it ‘may create … the impression the court was laying down new rules of law’.Footnote 63 Judge Kooijmans similarly qualified restraint as the court that ‘wilfully abstain[s] from using the opportunity … to provide clarification on a matter which […] is highly controversial’.Footnote 64
Former ECtHR judge Mahoney defined the two concepts in parallel. He did not approach activism and restraint as two ‘conflicting theories as to how judges should go about decision-making’.Footnote 65 Instead, he referred to ‘making interpretation choices’, with judicial activism being ‘neutralised’ by the exercise of judicial self-restraint.Footnote 66 Therefore, activism involves ‘[modifying] the law from what it previously was or was stated to be in the existing legal sources’,Footnote 67 while restraint is a technique necessary in order to move ‘proceedings forward by incremental steps in specific contexts rather than by dramatic leaps in the dark’.Footnote 68 These two forces ultimately work together within judicial decision-making in a ‘coherent path of continuity’.Footnote 69 Activism and restraint are ‘two sides of the same coin’,Footnote 70 both aimed at giving the law a coherent structure.
Judge Mahoney’s description seems to be the one best suited to the nature of the international judicial function and the legal system within which it acts. Viewing the two notions in terms of their complementarity is an effective way of understanding activism and restraint, transcending traditional black-and-white definitions to better reflect the true nature of the judicial process. After all, ‘rules are not picked from trees’:Footnote 71 even if the legal principles are clear and the law is clearly enunciated, ‘someone’ will have had to develop them – a competent law-determining agency, a court.Footnote 72
4.2 Identifying Activism and Restraint within the Overall Context of International Law
With the above in mind, identifying activism and restraint remains a difficult exercise, as observed through the lack of any such theoretical framework within the literature on international law.Footnote 73 Further, identifying activism and restraint must be placed within the overall context of the international legal system, whose characteristics are inseparably linked to how and why certain decisions may or may not be considered instances of judicial activism.
One must first recall that the international legal system is considered to be a system of states:Footnote 74 the settlement of disputes remains largely dependent on the consent of the states involved,Footnote 75 and the exercise of jurisdiction by international courts and tribunals is not integrated into an institutionalised and mandatory legal system as at the domestic level.Footnote 76 It must also be recalled that states have the upper hand by choosing whether to create a court in the first place, by deciding on the nature of the agreement that will institute a court or tribunalFootnote 77 and the substantive law which will applyFootnote 78 and, in most instances and particularly important here, by choosing to be a party to a case.
As a result, the first indisputable factor pointing to judicial activism would be a ruling that explicitly goes against the will of the parties and the principle of state consent. Ruling against the accepted law in force would be an example of this, but so too would be deciding against what states have previously explicitly accepted as the law, be it in treaties and conventions, statements, public opinions or judicial proceedings.Footnote 79 Next, and flowing from this first factor, judicial activism involves modifying the law from what it was previously accepted to be. The focus here would be on the legal rules or principles themselves and their amendment, as opposed to the will or the consent of the state. It could involve departing from previous interpretations of a principle that were already accepted as law in such a way as to create incoherence or uncertainty. These are all indications of a judge who is ‘making sense’Footnote 80 of new law, possibly due to dissatisfaction with existing law, the law which was, by and large, already recognised and accepted by that system of states. A third indication of activism, which is somewhat related to the former two, would consist in changing a judicial process or procedure in flagrant opposition to accepted customary practice.
Another characteristic of the international legal system, which leads to our next criterion, is the material incompleteness of international law.Footnote 81 This is the presumption that international law, by its very nature, has not evolved or become detailed enough to be seen as a complete system of laws, rules or norms,Footnote 82 thus leaving huge gaps in legal regulation. Despite this, legal certainty through judicial decisions is required. The act of deriving legal reasoning from abstract ideas or principles without any necessary legal certainty as to their true definition could reflect judicial activism but also restraint, as it might lead the judge to refrain from deciding.Footnote 83 However far-fetched they may be, judicial decisions are expected to ensure certainty, and coherent reasoning is needed to support the ultimate decision rendered. Equally, a clearly result-oriented decision, either lacking in judicial interpretation or pulling a rabbit out of its hat, can be a characteristic of both activism and restraint, since the result sought could indicate the mental state of the court in taking the decision and its intention to either expand or retract the law. Finally, refusing to interpret or expand upon a legal point raised by the parties or to even carry out any interpretation would be an indication of judicial restraint, as Lauterpacht and Kooijmans noted.
5 Recognition of the Indispensable Parties Principle
Although the indispensable parties principle has come to be accepted as a governing principle or conventional wisdom in international law, its true origins remain controversial.Footnote 84 The introduction of the principle in its current state occurred in the case of Monetary Gold, where the ICJ held that it ‘will not exercise its jurisdiction where the legal interests of a third State “would not only be affected by a decision, but would form the very subject-matter of the decision”’.Footnote 85 In its reasoning, the ICJ turned to the principle of consent to explain its rationale, holding that ‘to adjudicate … would run counter to a well-established principle of international law embodied in the Court’s statute, namely, that the Court can only exercise jurisdiction over a State with its consent’Footnote 86 In other words, the ICJ found that even in a duly constituted bilateral contentious case it would not have jurisdiction if it appeared that the principal issue to be decided affected a third state which was not a party to the proceedings.Footnote 87 Even though that third state would not be bound by the court’s decision,Footnote 88 it nevertheless considered that state’s interests with such regard that it was precluded from exercising jurisdiction.Footnote 89 Arguably, in its attempt to protect the interests of unaware third states, the ICJ assumed a function that sought to protect the interests of the general international community.
A closer look at the language used by the ICJ is required. This is because while the ICJ alluded to an interpretation of the ICJ Statute, a reading of both the text of the Statute and the decision do not evidence such a link. In fact, even the use of the word ‘embodied’ seems problematic. Firstly, the term is technically unclearFootnote 90 and lacks any legal meaning. Further, the fact that the ICJ Statute is silent with regard to third partiesFootnote 91 and their consent leaves it unclear as to where the court identified this principle so ‘embodied’. Notably, Article 36 of the ICJ Statute that deals with consent focuses on the consent of the ‘parties that refer the case to it’, not that of third states.Footnote 92 Furthermore, a survey of other decisions from the same era fails to provide any indication as to the meaning of the word, even though the ICJ had proven itself capable of expanding upon legally unclear terms at the time.Footnote 93 Additionally, if the court meant to derive the Monetary Gold principle from the overarching principle of consent alone, it could have done so without the reference to the ICJ Statute and certainly without using the word ‘embodied’. Worthy to note, at this stage, is also the previous ICJ decision in the Corfu Channel case, where neither the court nor the parties seemed to have had any issue with addressing the dispute in the absence of a third state, Yugoslavia.Footnote 94
This ICJ’s ambiguous language, presented with little explanation and confined to one paragraph in a nineteen-page decision, provides little understanding as to the true source of the indispensable parties principle.Footnote 95 While the court used the words ‘principle of international law’, it certainly does not appear to be interpreting the issue of audi alteram partem, a general principle of law,Footnote 96 as it did not mention the case law of the Permanent Court of International Justice or other tribunals to support its reasoning.Footnote 97 In truth, the lack of justification by the court can only be interpreted as pure assertion, as pulling a rabbit out of its hat. In applying our judicial activism or judicial restraint criteria to this case, the situation gets even more complex. As already noted, a lack of justification is usually an indication of judicial restraint – something supported by Hersch Lauterpacht, who noted the ‘degree of caution’ with which the court decided this case.Footnote 98
The approach taken by the Court is also result-orientated, which supports a clear activist judgment. It introduced a new abstract principle, which it claimed it found in the Statute, but did so without legal certainty since the Statute itself is silent. It ultimately transformed the issues before it into a question of third-party legal interests and introduced the ‘essential parties’ concept, yet unclear as to where it applied it from, which could imply a change in judicial process of the court. On the one hand, the court created a principle of protection for states not parties to a dispute; on the other, it did so by ignoring the dispute before it, rendering an ineffective judgment.
The first case of interest to have followed Monetary Gold was Nicaragua,Footnote 99 where the indispensable parties principle was pleaded by one of the parties to the dispute as one of numerous grounds for objecting to the court’s jurisdiction.Footnote 100 In this instance, the court rejected the plea; dedicating a paragraph to the matter, it remarked that the ‘circumstances of the Monetary Gold case probably represent the limit of the power of the Court to refuse to exercise its jurisdiction’,Footnote 101 making it necessary for the third party to be ‘truly indispensable to the pursuance of the proceedings’.Footnote 102 One may wonder whether the wording ‘the limit of the power’ constitutes a reaffirmation of the principle of Monetary GoldFootnote 103 or rather reflects the discontent of the court, at the time, with the usefulness of this principle. Due to the lack of any reasoning, as an attempt to clarify the principle in substance, a restraint approach can be detected. However, considering the numerous other matters decided upon in the Nicaragua decision, the issue of the non-application of the Monetary Gold principle would seem inconsequential.
The principle was examined again in the case of Certain Phosphate Lands in Nauru.Footnote 104 Here, the ICJ held that while a decision in the case might have implications for a third party, ‘no finding in respect of that legal situation will be needed as a basis of the Court’s decision’.Footnote 105 This was in contrast to Monetary Gold, where determination of the legal interests of the third party would have been a prerequisite to decide upon the dispute.Footnote 106 In order to create a distinction, the court seems to have treated the issue in the Nauru case as one of degree of the possible implications for the third State,Footnote 107 expanding the principle of indispensable parties through an interpretation alone and without even having applied it, and despite the claim in Nicaragua that those were the limits of its application. This idea was clarified in the separate opinion of Judge Shahabuddeen, who noted that ‘the test is not merely one of sameness of subject-matter, but also one of whether … the Court is making a judicial determination of the responsibility of a non-party State’.Footnote 108 Here, there seems to be an allusion to the principle of consent, rather than an interpretation of the Statute as was alluded to in Monetary Gold, yet the court makes no such direct reference. In any event, a comparison of the facts of the two cases, Nauru and Monetary Gold, and their inherent similarities make it difficult to understand the resulting decision in each case.Footnote 109
The question that preoccupied the court seems to have been the intensity of the effect of the judgment on the legal interests of an absent state.Footnote 110 This shows a court attempting to translate Nicaragua’s allusions to ‘appropriate circumstances’ and ‘limits’ into a more judicially administrable test,Footnote 111 as suggested by Judge Shahabuddeen’s explanation. Accordingly, it would seem that the court borrowed its reasoning from domestic law,Footnote 112 possibly through normative deduction,Footnote 113 by introducing a form of joint and several responsibility into the reasoning of international law: while the breach was committed jointly by different states, it does not preclude the admissibility of the claim against one of those responsible actors.Footnote 114 This is arguably to protect the public function the court wishes to fulfil. The court’s judgment is an analysis, not of the ICJ Statute but instead of the practice of the court’s previous decision, an indication that it was interpreting its very own practice to reach a conclusion in the present case.
In considering the activism or restraint criteria, we can see this as a clearly result-oriented decision through borrowing principles from other legal systems, which indicates a proactive tendency on the part of the court. Arguably, in ‘clarifying’ the principle, the court seems to have caused, nevertheless, further confusion as to when the indispensable parties principle is applied, opening the door to future inconsistency, which can possibly imply a modification of the law or the procedure in question. This is furthered through the four dissenting opinions to the judgment, including both the president and the vice-president of the ICJ at the time,Footnote 115 one of whom noted that ‘the protection afforded the absent States by Article 59 in the quite exceptional situation of this case would be notional rather than real’.Footnote 116
Despite its activism, the Nauru case failed to establish an ‘administrable test’ for the principle,Footnote 117 as became evident in the case of East Timor,Footnote 118 where the ICJ attempted to build on its Monetary Gold analysis by changing the narrative yet again. In contrast to the treatment of the matter as one of degree seen in the Nauru case, the case of East Timor considered a temporal precondition insteadFootnote 119 – namely, by holding that it would first have to decide on that third state’s actions (or inactions), it could ‘not make such a determination in the absence of the consent of [the third party]’.Footnote 120 In determining that the treaty-making capacity of the third, absent, state would form an integral part of its decision, it effectively put a stop to the trend of rejecting the Monetary Gold principle. It ultimately delivered a narrow interpretation of the Monetary Gold principle, without any reasoning as to why it considered the issue in temporal terms rather than as a matter of degree.Footnote 121
This is clearly a result-oriented approach, whereby the decision itself can be regarded as a decision not to decide, turning the reasoning back to one of assertion. Although the court did engage in some analysis of the submissions of the parties, it rejected them without providing an explanation. It based its rejection on consent rather than on the ICJ Statute, which indicates an interpretation of an unwritten principle (though without any clear indications from the court, this remains speculation on the part of the present author). This case drew reactions from within the court in the form of two dissenting opinions,Footnote 122 which brought up the unresolved issue of the erga omnes nature of the subject matter.Footnote 123 By again modifying the process whereby the indispensable parties principle is identified, the ICJ went around its Nauru decision and returned to Monetary Gold, which resulted in greater lack of coherence regarding the principle.Footnote 124 The refusal of the court to decide on erga omnes rights, which involve a public concern, leaves questions as to the role of the court in this matter.Footnote 125 The principle was used to limit the possible public function the ICJ could have assumed as the principal judicial organ of the UN,Footnote 126 considering its widespread jurisdictional powers.Footnote 127 Τhe court furthermore elaborated the principle abstractly and without any legal certainty, which was a further indication of the restraint with which it acted. The lack of interpretation and any indication as to the source of the temporal element increased the already existing ambiguity over when the Monetary Gold principle applies or does not apply. Finally, this refusal to rule on a highly controversial matter shows judicial restraint par excellence.
6 Indispensable Parties and Other International Tribunals
6.1 The Principle Applied
As we have seen, one measure of judicial effectiveness is to consider whether the decisions of international courts are harmonised at a systemic level, meaning that principles of law accepted and endorsed by some courts become accepted as applying to other judicial institutions across the international stage. Telling, in this regard, are the decisions concerning the indispensable parties principle before other tribunals and courts.
Notable is the case of Larsen v. Hawaiian Kingdom,Footnote 128 which is the only case in which the principle was applied in such a manner as to prevent an international tribunal from exercising its jurisdiction.Footnote 129 The arbitral tribunal, constituted under the auspices of the Permanent Court of Arbitration (PCA), ultimately dismissed the case for lack of authority to ‘exercise jurisdiction over a State unless that State has given its consent to that jurisdiction’.Footnote 130 It upheld this test because the tribunal ‘operates within the general confines of public international law’,Footnote 131 thus extending the application of the principle beyond the ICJ’s mandate and beyond what the ICJ had pronounced on the principle. The tribunal can be said to have added to the definition of the Monetary Gold case, going beyond what the ICJ had previously considered to be a matter of the ICJ Statute, in a hint of judicial activism. Another possible consideration to take into account here is the fact that the parties’ real motive may have not been to resolve the dispute between them but rather to raise publicity for the cause of the Hawaiian nationalist movement by having the tribunal render an opinion on the legal status of Hawaii.Footnote 132 The tribunal’s choice to uphold the principle may have been heavily influenced by the need to reject the case in any way possible.
The indispensable parties principle was also raised in the South China Sea Arbitration (Philippines/China),Footnote 133 where an intervening third state, Malaysia, asked the tribunal to reject jurisdiction on the basis that it might affect its rights and obligations as an absent third state. Without providing any explanation beyond the decision of the ICJ in Nicaragua, the tribunal took the view that Malaysia ‘overstated’ the Monetary Gold principle, as the ‘more expansive reading would impermissibly constrain the practical ability of courts and tribunals to carry out their function’.Footnote 134 Remarkably, in contrast to the narrow interpretation the ICJ applied in East Timor, this tribunal saw an expansive reading as limiting the judicial function. Clarifying that the relevant issues in the case concerned ‘areas to which Malaysia makes no claim’,Footnote 135 it held the latter’s interests were not affected. Interestingly, the difference in reasoning between the ICJ’s shaping of the rule as we know it today and the tribunal’s approach to is suggestive of activism, leading to dis-harmonisation and, by consequence, ambiguity.
Mention must also be made of the M/V Norstar case before the International Tribunal for the Law of the Sea (ITLOS),Footnote 136 where the tribunal ‘acknowledge[d] that the notion of indispensable party is a well-established procedural rule in international judicial proceedings’.Footnote 137 It nevertheless refrained from applying the principle in that specific case,Footnote 138 leaving an unexplained reference to the principle, insufficient for deeper examination.
6.2 Lack of Relevance of the Principle
Although the indispensable parties principle has, by and large, been accepted as well established, the role of the ICJ in creating a new rule of law remains questionable, as its role as a rather reluctant lawmaker arises. This is particularly pertinent when one considers that certain other international courts have rejected the relevance of the principle. In this vein, we can see the complete rejection of the principle in the opinion of Advocate General Wathelet in the Western Sahara Campaign v. United KingdomFootnote 139case before the Court of Justice of the European Union (CJEU), who rejected its application as it would allegedly automatically preclude the possible examination or review of international agreements between the EU and third states.Footnote 140 The Advocate General’s lack of analysis suggests that he was exercising judicial restraint. Prior to that, a World Trade Organization (WTO) panel also held that there is no concept of ‘essential parties’ in WTO law,Footnote 141 despite examining the case law of the ICJ and using it as evidence to elaborate on the content of the principle.Footnote 142 Most recently, in 2021, the International Criminal Court refused to apply the principle when requested, on the grounds that its jurisdiction did not concern inter-state disputes but dealt instead with natural persons.Footnote 143 Without a doubt, these decisions indicate the failure of the Monetary Gold principle to achieve support within the international judicial community both in terms of fostering harmonisation and as a new rule of international law.
The European Court of Human Rights (the ECtHR) has also taken a differentiated approach to this principle. In the case of BankovicFootnote 144 the ECtHR ruled out any need to decide on an objection raised that was based explicitly on the Monetary Gold principleFootnote 145 as it declined jurisdiction over other issues in the case that apparently took precedence over any rights deriving from the absent third state principle. Similarly and maybe particularly tellingly is the fact that the same court has had no difficulty providing detailed consideration of the conduct of states not parties to its proceedings or sometimes not even members of the Council of Europe.Footnote 146 This, for instance, occurred when the facts of the case pointed to a possible violation of the Convention, as most famously occurred in Soering,Footnote 147 where the court decided against the extradition of the applicant to a third state because it was quite possible that that absent third state would violate the Convention. Interestingly, the question of the essential third party was not even raised, despite the court having explicitly taken decisions in that regard. It is thus evident that this was a result-oriented decision made with the intention of solidifying the law and as such is indicative of judicial activism.
7 Effectiveness or Ambiguity?
7.1 Consolidation of the Indispensable Parties Principle
As seen in the Introduction, the interaction between the use of certain principles of customary international law and judicial activism can yield an uncomfortable relationship. This is one where the inherent tension between custom’s recognition of unwritten law through the identification of state practice and opinio juris and judicial activism’s ‘creative reasoning rather than strict application of the law’ seek to co-exist.Footnote 148 An analysis of whether the indispensable parties principle as identified in Monetary Gold qualifies as custom lies outside the confines of the present discussion. However, it is interesting to note the overlap between custom and activism in the judicial process that enables the principle to be characterised as one of customary law. Although the principle had appeared in international decisions prior to Monetary Gold, the ICJ seems to have pulled a rabbit out of its hat when applying it in that case. The existence of prior references to the rule, of which the court made no mention, makes its approach a form of continuity in the judicial interpretation of this principle rather than a new apparition altogether. However, its vague terminology left the source of the rule openFootnote 149 and gave way to its subsequent evolution – a clear lack of coherence and consistency in the decision.
Additionally, it cannot be denied that, despite not having been applied by tribunals, the rule has been relied on repeatedly by states, which indicates its acceptance as law and in practice.Footnote 150 Indeed, it has also been argued that the lack of objections to a string of judicial decisions may signify support for a positive customary rule.Footnote 151 What this analysis has shown is a judicial process of thought which, through activism and restraint, has been able to create what can best be described as a principle of customary procedural law.
7.2 The Judicial Function and the Indispensable Parties Principle
Returning to the effectiveness or ambiguity of international courts in the application of the indispensable parties principle, and since its re-introduction in international legal discourse through the Monetary Gold case, there are several observations that can be made.
There is a very important distinction that need to be drawn between, on one hand, the cases where the principle was applied, and, on the other, the cases where the principle was recognised but not applied. In Monetary Gold we saw that the ICJ sought to uphold an indisputable public function, which was to protect the interests of third states not parties to the proceedings. It did so, even if this meant rejecting the entire case and despite the parties having consented to its jurisdiction. We must also consider the utility of leaving dispute unaddressed. A case in point is East Timor, where questions of erga omnes and self-determination arose. As former ICJ judge Kooijmans established, restraint is reflected in instances where the court refuses to decide on a matter which is highly controversial, as happened in this case. The ICJ did not even attempt to provide an answer to these long-standing questions, which would have benefitted the international legal scene – something it was perfectly qualified to do, given its wide jurisdictional powers. Even though reference was made to Article 59 of the ICJ Statute, according to which the decision would be binding only upon the states parties to the proceedings, the ICJ was nonetheless unwilling to decide upon the legal interests of any third state. The refusal to decide was clearly a policy decision, as it was also for the PCA tribunal in Larsen, where a decision would have promoted the wrong political gains.
By contrast, and quite interestingly, we can also see a public function in deciding on the dispute, as was apparent in Nicaragua and Certain Phosphates of Nauru, so much so that in this latter case the court considered that even though other states could also be held liable, it was sufficient that liability arose for that one state party alone. This was an interesting reasoning, outside the bounds of what had been previously accepted. Notable also are the approaches taken in other courts. Advocate General Wathelet’s comment in Western Sahara was indicative of the very bounds of the principle, yet also demonstrates the restraint implicit in a refusal to decide. What if a dispute arising out of a convention with a third party only affects the legal interests of a member state of the EU? Similarly, the rejection of the principle in the South China Sea arbitration and by the ECtHR in Bankovic show a public function quite different from the one assumed by the ICJ in those two cases in accepting the indispensable party principle. In truth, we can see how the reasoning of the tribunals alluded to greater public benefit in deciding rather than not deciding the cases.
As already observed, judicial effectiveness also calls for systemic harmonisation at the international level – something the indispensable party principle also fails to meet. If there is any consistency in the decisions examined, it ironically lies in their disharmony, for the manner in which the principle is applied, whether within a single court or across several courts. This is evidenced, for example, in the lack of coherent or continuous reasoning across the decisions of the ICJ. At the same time the principle was openly accepted by most international courts and tribunals as an established rule of international law, despite not being applied. If we come back to the utility of the principle and its effectiveness at the international level, the lack of its use could be indicatory of its lack of any effectiveness. If the idea is to create a form of ‘transnational public order’Footnote 152 whereby all the courts and tribunals share a set of principles, even at the procedural level, creating predictability and coherence at the international level, then the indispensable party rule certainly does not meet this standard.
Turning finally to the judge’s role as reluctant lawmaker, the question arises as to whether, in adjudicating Monetary Gold, or even East Timor, the ICJ has made law. The wording of the Monetary Gold judgment alludes to a principle already accepted in international law – something that could be reflected in previous decisions of international courts and tribunals, as seen above, despite the fact that the court did not mention any. Conceivably, the principle may have existed as one of custom, without further substance as to its content. Going beyond the acceptance of the principle, whatever its source might be, subsequent ICJ cases attempted to create a methodology through which this principle would be applicable. However, this methodology, or ‘law’, has been rejected repeatedly by other international courts and on most occasions by the ICJ itself. This is where the question of methodology in custom becomes even more important: does the occasional recognition, but not application, of a rule, make law?
8 Conclusion
Coming back to the use activism and restraint to drive customary international law forward to yield effectiveness, there are numerous questions posed within this analysis in that regard. Going back to the elements of the judicial function, the preceding paragraph has indicated the very inability of the Monetary Gold principle to create judicial effectiveness.Footnote 153 Instead, what can be seen is ambiguity, lack of coherence and a clear rejection of the principle by several courts.
The lack of certainty over both the source and true application of the indispensable third party principle leaves much to be desired. The ICJ’s assertion that the principle exists as embodied in the ICJ Statute and the subsequent recognition and evolution of its methodology raise questions about the relationship between customary norms and the use of activism to identify them. The lack of judicial reasoning points to the principle being used to avoid larger questions of law raised by the facts of a particular case. Such reticence is by and large an ingredient of judicial ambiguity and ineffectiveness. Although effectiveness may arguably have made an appearance in the original Monetary Gold case, depending on one’s perspective it appears to have been short-lived.
In conclusion, while a clear answer certainly cannot be provided through the examination of just one principle, the use of mere assertion, often under the guise of CIL, certainly alludes to the use of custom as a tool by which judicial activism manifests itself in excess.
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