Dr Alexander Wentker and Dr Robert Stendel (Senior Research Fellows at the Max Planck Institute for Comparative Public Law and International Law) will be presenting a draft paper on the Monetary Gold principle and public interest litigation before the ICJ.

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 facilitators and bystanders of a primary wrongdoing and thus raises the issue whether the ICJ would be barred from adjudicating claims against such States because the primary wrongdoing State would be an indispensable third party. Based on a comparison of different types of rules enabling to hold States responsible for the conduct of other States, the article shows that it is the structure of the obligation allegedly breached by the respondent State that will determine the extent to which the Monetary Gold rule bars the ICJ from adjudicating a claim. The article not only contributes to a clearer understanding of the interplay between the structure of substantive rules and their procedural enforceability. The findings can also help predicting the prospects of success of specific claims and procedural strategies in public interest litigation before the ICJ. The Monetary Gold rule precludes claims based on complicity-type duties to refrain from assisting or instigating other States’ wrongdoing. The same is true of some—but not all—duties of prevention, namely those that depend on another State’s violation for their breach. Crucially, we will show that even those duties of prevention can still successfully be invoked at the provisional measures stage of a case. Beyond duties of prevention, however, we will also demonstrate that there are other duties, for example in the Arms Trade Treaty, that require States to take specific acts—often of vigilance—vis-à-vis potential violations of other States but do not presuppose, for establishing their breach, that such violations have actually occurred. To the extent that the international legal order’s proceduralisation comes with a proliferation of such inchoate duties vis-à-vis the conduct of other States, this wider development also increases the prospects for the new strand of inter-State public interest litigation. Overall, a systematic analysis of the rule’s application to different types of obligations of States regarding the conduct of other States reveals that international law carefully balances respect for sovereign equality in inter-State dispute settlement with the need to enforce community interests in court. 
 
Bios: 
Dr Robert Stendel is a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law and Managing Editor of the Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV)/Heidelberg Journal of International Law (HJIL). He is a fully qualified German lawyer and holds a MJur from the University of Oxford as well as a PhD from Heidelberg University. He teaches at Free University Berlin, EBS Law School, and Heidelberg University. 
 
Dr Alexander Wentker is a senior research fellow at the Max Planck Institute for Comparative Public Law and International Law. He teaches public law and international law at HU and FU Berlin, as the Universities of Heidelberg and Potsdam. Alexander is a fully qualified German lawyer and holds a doctorate in law and an MJur from the University of Oxford as well as a Maîtrise en droit from Université Paris II-Panthéon-Assas. He is an associate fellow of Chatham House (The Royal Institute of International Affairs), and a former clerk of the Supreme Court of Namibia.