Stendel & Wentker: Monetary Gold in the Age of Public Interest Litigation

Robert Stendel (Max Planck Institute for Comparative Public Law and International Law) & Alexander Wentker (Univ. of Potsdam; Max Planck Institute for Comparative Public Law and International Law) have posted Monetary Gold in the Age of Public Interest Litigation (European Journal of International Law, forthcoming). Here's the abstract:

This article develops an analytical framework for applying the Monetary Gold rule in public interest litigation before the 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 that different duties structure their moral sophistication is key. Wider developments in the structure of the international legal order, with an increase in freestanding 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 may 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 re-calibrate the balance in inter-state dispute settlement between respect for sovereign equality on the one hand and the possibility of judicially enforcing community interests on the other hand.