Professor Alexander Orakhelashvili
There can be no denial that Nicaragua’s lawsuit against Germany before the International Court of Justice involves heavy political emotion and expectations. At the same time, the Court is meant to decide the case on the basis of legal principle and evidence, and not be influenced by political factors. In their written pleadings and during hearings, both Nicaragua and Germany have discussed various aspects of the indispensable party doctrine that Germany is alluding to in order to have adjudication blocked in this case. If regrettably, many people including ones who work within the discipline are not fully aware of the indispensable party doctrine, and this post is aimed at increasing certainty about the underlying issues. In that spirit, I shall discuss here a number of issues: first, to what extent is the “prerequisite” issue relevant; second, what is “the very subject-matter” of the Court’s decision; third, what is the relevance of the principle of consent; fourth, what is a “given” and what difference it makes; and fifth, whether Germany’s reliance on Guyana v Venezuela is correct.
The “prerequisite” issue
Germany suggests that, in its previous decisions, “the Court has found without distinction that the Monetary Gold principle applies where it has to rule, as a prerequisite, on the lawfulness of an absent State’s conduct or on the responsibility of the absent State” (CR 2026/30, paras 11, 26, my emphasis), citing in a footnote only Nauru, and Guyana v Venezuela where the prerequisite issue was discussed via obiter dicta or similar general observations, rather than being faced on its head or applied to facts of the case. In the final round of pleadings, Germany has again described the prerequisite issue as the central aspect of the Court’s approach in East Timor (CR 2026/32, para. 4, Wordsworth). Hence, Germany says “the key question” is that “the Court would first have to decide that Israel has committed an act of genocide” (CR 2026/30, para. 11).
Vocal as it is about the “prerequisite” issue, Germany rather conveniently bypasses the context in which that term is used across the Court’s jurisprudence and factors that make that term relevant. In particular, both regarding East Timor and Monetary Gold, Germany plainly presents the prerequisite issue entirely out of context.
Germany claims that, in the present case, “Israel’s alleged wrongdoing is as squarely engaged as that of Albania in the Monetary Gold case” (id., para. 8). It bears recalling, however, that Monetary Gold which was about in rem claims related to contested gold assets of Albania. The Court would have to determine how much compensation Albania owed to Italy, and then enforce that determination through the disposal of those gold assets by its own judgment and decision (Monetary Gold, p.32). Not the “prerequisite” issue per se, but the risk of effective disposal of Albania’s gold in their absence – and through the binding judgment – is what made their interest amount to “the very subject-matter” of the case. Albania would have been affected materially and feasibly through the Court’s disposal of those gold assets, while in the present case Nicaragua’s claims are clearly in personam and directed exclusively towards Germany, with the consequence Israel is not going to be affected in any legal sense comparably to Albania.
It could not be more accurate, as Germany puts it, that in Monetary Gold “Italy no doubt considered that it had a good claim against Albania for delivery of the gold at issue” (CR 2026/32, para. 23). But what are Nicaragua’s claims against Israel in the present case? No one has been able to identify them so far.
Similarly, the “prerequisite” issue was consequential upon the underlying context of the case and nature of claims presented by Portugal in East Timor. Portugal expressly asked the Court to adjudge and declare that Australia must stop complying with the Timor Gap Treaty (East Timor, p.95). According to the Court’s judgment too, the real reason for using the indispensable party doctrine regarding facts of the case was the treaty issue, not the “prerequisite” issue as such (East Timor, paras 29, 34). Portugal’s claims were not simply about identifying the existence of antecedent breach of international law by Indonesia but also about the exclusive power to conclude a treaty relating to East Timor’s natural resources. Such or comparable factors do not materialise in the present case.
Even if you look at East Timor with some empathy, Australia would have to stop complying with the 1990 Timor Gap Treaty and trigger Indonesia’s claims about non-performance, and that position would be based on the Court’s binding judgment in a case in which Indonesia was not involved. Indonesia’s legal rights would have been disposed of with the practical effect and in Indonesia’s absence. In the present case, no legal rights of Israel are threatened. Israel has no international legal right to receive arms or ammunition from Germany and if Germany were to stop, suspend or restrict relevant deliveries, no legal claim against Germany would arise. German arms exports to Israel are not based on international legal obligations on which Israel could rely, but on Germany’s own and discretionary policy choice and through its domestic legal and administrative procedure. In practice, Germany unilaterally decides when to suspend or resume arms transfer to Israel, contracts and licences granted under German law are not transactions recognised or regulated under international law and hence, Israel has no legal rights to invoke against Germany.
If, suppose, in East Timor there was no Timor Gap Treaty with its complex inter-State cooperation mechanism, and Australia had conducted the use of East Timor’s natural resources on the basis of ad hoc discretionary licences granted to its commercial entities by Indonesia – which would make the East Timor context similar to relations between Germany and Israel in the current case – it would be a rather far-reaching assumption that the “prerequisite” factor alone would still have the same determinative effect in the absence of the Treaty as it was accorded against the background of that Treaty. It is certain that, in the absence of the Treaty, the impact on Indonesia’s legal rights or interests would not have been qualitatively the same.
The above also, if incidentally, demonstrates that Germany’s reliance on the allusion to the “prerequisite” issue in Nauru is misplaced. Germany asserts that “Cases such as Nauru simply demonstrate how the Monetary Gold principle is not engaged where the Court does not have to rule, as a prerequisite, on the lawfulness of the absent State’s conduct.” (CR 2026/30, para.13). However, Nauru demonstrates considerably more than that.
It is true that Nauru concerned simultaneous conduct of the respondent State (Australia) and the two absent States (New Zealand and the UK). It is also true, however, that in Nauru the Court admitted the possibility of doing to UK and New Zealand’s rights more than it would do to Israel’s rights in the present case, namely determine by implication the amount of compensation that could be owed to Nauru by the two other States. The judgment was made over the objection by Judge Sir Robert Jennings that, whether Australia would be liable for the whole or for the part of compensation owed to Nauru, “in either case … the Court will unavoidably and simultaneously be making a decision in respect of the legal interests of those two other States”. But the Court did not think that would be the case, as neither of those two States would ever face a binding judgment of the Court and hence, the Court rejected Australia’s preliminary objection. The Nauru case is therefore about much more than simply drawing a distinction between “prerequisite” situations and other situations; it is about the fact that no binding judgment to be faced by UK and New Zealand, even though their legal position would be affected somehow, in the sense that their share of reparation owed to Nauru could be determined by implication. The Court has made a strong emphasis on Article 59 of the Statute that protects third parties’ rights, and responded to Australia’s point on the distinction between the “prerequisite” issue and simultaneous involvement of two or more States in the same internationally wrongful act thus: “In the Monetary Gold case the link between, on the one hand, the necessary findings regarding Albania’s alleged responsibility and, on the other, the decision requested of the Court regarding the allocation of the gold, was not purely temporal but also logical” (Nauru, paras 54-55, my emphasis). Therefore, the key criterion was not whether a “prerequisite” was involved or not, but whether third party conduct was intrinsically connected to the Court’s actual decision.
In the present case too, and whether the “prerequisite” issue is involved or not, the Court’s judgment against Germany would not determine whether Israel has to pay reparation or impose on it any other obligation. Israel wouldn’t even be mentioned in the Judgment’s operative paragraphs, nor would those operative paragraphs determine by implication what Israel has to do.
Germany’s position further illustrates how far the indispensable party doctrine would be stretched – certainly on terms not recognisable in any court decision on that matter – if the “prerequisite” element was a central and solely governing criterion. Germany argues that “there is no reason for a consent-based principle such as Monetary Gold suddenly becoming inapplicable in a case involving for example obligations of prevention or differing forms of ancillary liability”, and that “there is no basis for adding, as Nicaragua seeks to add, a further requirement that the legal interests of the third State be identical or similar to those of the respondent State” (CR2026/30, para. 12, my emphasis).
In the first place, Germany’s semantic tone draws some attention, and the words “becoming inapplicable” carry with them a presumption that a comprehensive doctrine applicable to all forms of liability or third-party relation cases. Here, Germany chooses to overlook the fact that in both cases where adjudication was prevented through the use of the indispensable party doctrine, the identity or similarity of the two State’s legal interests was clearly present, also choosing to blur that issue by its excessive reliance on the “prerequisite” factor.
The key issue is not whether any type of (ancillary or other) liability is involved in the case but whether the implementation of that liability would make third State legal interests amount to “the very subject-matter” of the Court’s decision on that liability. That is not something that the Court’s judgment could accomplish, because the third State would remain legally untouched and the “prerequisite” factor alone would do nothing to alter that position.
Germany’s submission effectively invites the Court to declare the whole range of liability categories inherently non-justiciable, such as issues of complicity and participation, liability for violations of prevention duties on the State-to-State plane, or issues of joint and several liability. Also on Germany’s position, a breach of the duty not to recognise or assist under Article 41 ASR would almost inherently become non-justiciable, because that would require ascertaining that a third State has violated the relevant peremptory norm. While that outcome would gratify the expectations of legal advisers of some governments, it would also do a sterling job to emasculate the practical effect of non-recognition and non-assistance obligations which the Court has affirmed and consolidated through its successive advisory opinions rendered from 1971 onwards. And it is still the case the purpose and rationale of the indispensable party rule in Monetary Gold and jurisprudence that followed it has been far narrower than Germany asserts it to be in the present case. The fact remains that no previous case has been blocked by reference to those ancillary liability issues. Therefore, it is not Nicaragua who asks the Court to add a further requirement to the indispensable party doctrine, but it is Germany who asks the Court to extend the indispensable party doctrine to contexts in relation to which it has never before been used by the Court to avoid adjudication over a case.
To sum up on this point, the legitimate use of the indispensable party doctrine ought to be focus not on substantive legal relations involved, or even on political risks that are possible to ensue, but solely on the nature of adjudication process under the Court’s Statute. Here, the key issue whether the Court makes an actual decision on third party legal interests.
What is “the very subject-matter”?
To begin with, and how the Court has always defined it across its jurisprudence over several decades, the range of matters encompassed by the “very subject-matter” criterion ought to be something narrower, and be identified subject to a higher threshold, than the range of matters merely affected through the relevant adjudication. There could well be steps in judicial reasoning leading to the Court’s decision but not amounting to the very subject-matter of that decision. It is difficult to see how anything could amount to a very subject-matter of the Court’s judgment unless it relates to the respondent State’s conduct, and is either contained in or organically linked to findings contained in the operative paragraphs, which pronounce with the binding force, about the legality of that State’s conduct and appropriate reparation and remedies to be provided by that State.
In Monetary Gold, only Italy and Albania were interested in the disputed gold assets, and there was essentially nothing else in the case that was litigated, which is what made Albania’s legal interests the very subject-matter of the Court’s prospective judgment on merits. Satisfying Italy’s claims was not separable from establishing how much compensation Albania was owing to Italy and, to that very extent, transferring Albania’s property to Italy without Albania’s consent was risked, with irreversible effects. That would have been practically indistinguishable from making a binding judgment on Albania’s legal interests. As Nicaragua’s counsel put it in the final round of pleadings, in Monetary Gold “l’Albanie n’aurait eu aucun moyen de récupérer son or,” and that Israel faces no comparable risk in the case at hand (CR 2026/33, paras 29, Pellet).
East Timor was still an extension from the approach from Monetary Gold that focused on in rem claims. At the same time, the concrete risk of effective, if veiled, disposal of Indonesia’s rights was identified by the Court, and the practical effect of Australia’s disregard of the Timor Gap Treaty arrangements in compliance with the Court’s judgment on the merits of the case could be as though a formal judgment was made on the Indonesia’s conduct or legal rights. The exercise of Indonesia’s specific legal capacity would also be put at risk. Nothing similar is going to happen in the present case with regard to Israel.
Thus, in both Monetary Gold and East Timor, concrete impact that third States would suffer in practice as though a binding judgment had been given against them was a risk. And the Court was asked in both cases to make an actual decision on what the third State considered to be a matter of its legal right and entitlement. And how else could a third State’s legal interest form a very subject matter of the Court’s decision? The Court cannot make any decision on any State’s conduct except through the operative paragraphs of its judgment, and then the way that commands the binding force under the Statute. Decision is not the same as allusion or discussion, not even the same as fact-finding or legal description or classification of the underlying conduct. A decision is, instead, a binding disposition of the relevant rights, claims and entitlements. All those other above things could be done without making a decision on the relevant matter and Article 59 of the Statute will protect third States in any event. Alluding to the elements of Monetary Gold, Nicaragua is clear that “la Cour n’est pas appelée à porter un jugement juridique sur le comportement d’Israël.” Instead, the case is about Germany’s violation of its own obligations towards Nicaragua and the international community as a whole (CR 2026/31, paras 8, 11, Pellet).
If the above considerations are understood, it will become clear that Germany is trying to pull wool over the Court’s eyes by asserting that “Israel is and remains an essential and inevitable target of Nicaragua’s claims. … [and] all of Nicaragua’s major claims would require the Court to adjudicate upon the lawfulness of Israel’s conduct in the absence of its consent or participation” (Germany’s Preliminary Objections, para. 194). How is Israel “an essential and inevitable target” if Nicaragua asks nothing from it, or from the Court to do anything to it? To adjudicate in a legal case is to “make a formal judgment on a disputed matter” (Compact OED, 3rd ed., 2005, 11), and hence certainly more than discussion or even putting blame on someone, which latter thing the Court would not do at the merits stage of this case in any event. And that is also how the Monetary Gold understood that word. As Nauru specified, “In the Monetary Gold case the link between, on the one hand, the necessary findings regarding Albania’s alleged responsibility and, on the other, the decision requested of the Court regarding the allocation of the gold, was not purely temporal but also logical” (Nauru, paras 54-55, my emphasis). The present case could entail “necessary findings” about Israel, but it definitely will not feature Israel in the Court’s decision. Decision is not a matter of the Court’s subjective will or utterance, but it is about the exercise of statutory authority on the terms of its Statute only. The Court would not be able to decide on any of Israel’s conduct, even if it was very keen to do so. It lacks statutory authority to do so. The legal effect of binding judgment would not go anywhere beyond Nicaragua and Germany relations.
There is also, and as explained above, a substantial difference of the content of what the Court would need to say in its merits judgment and what effect those findings would command through the legal framework of the Court’s Statute. Germany’s confusion of facts and terminology also continues when different cases are compared with each other. Germany claims that “as in South Africa v. Israel, the Court is being asked to accept that Israel has breached the Genocide Convention” (Preliminary Objections, para. 162). However in South Africa v Israel, the Court has been asked to do that with binding force for Israel and to be followed up through remedial obligations. In the present case, the Court is being asked, at the very most, to speak about Israel’s violations and leave it alone afterwards, and then decide only on the conduct of and legal consequences arising for Germany.
Also in the similar spirits, Germany at times says that “the Court would first have to decide that Israel has committed an act of genocide” (CR 2026/30, para. 11) and in at other times Germany says that “for the purposes of Monetary Gold, the Court would indeed have to find the commission of a genocide by Israel as a prior and necessary step to finding a breach by Germany” (id., para. 20). A finding and a decision are not the same thing. If your politics and ideology beats your law, you might not necessarily be able to tell the difference between legal impact on someone’s rights, on the one hand, and innuendo, adverse publicity or inconvenience, on the other.
The relevance of consent
Germany’s written statement on preliminary objections suggests that “the Monetary Gold principle exists to protect” a State from being subjected to the Court’s jurisdiction without its consent, and that “Israel has not consented to the determination of its rights and obligations by the Court” (para. 186). However, Germany addresses the consent factor as a free-standing idea and bypasses the basic features of contentious legal proceedings before the Court, namely that the principle of consent is relevant only as part of the arrangement of contentious proceedings under the Court’s Statute. Jurisdictional consent of a State is required so that a binding judgment could then be issued against that State. Consent and jurisdiction are not free-standing ideas that the proponents of the indispensable party doctrine could advertise in the style of natural lawyering. The statutory process consisting of the consent given by a State, jurisdiction exercised over and binding judgment given against the same State is the sequence in which the adjudication process is arranged under the Statute as an instrument of positive international law. Unless all the above conditions are cumulatively met, the International Court has no means of determining or ruling on any, including third, State’s rights and interests. In advisory proceedings, where consent is not inherently a requirement because no binding judgment is envisaged to be given, the insistence on the relevance of consent crept in practice over decades, nonetheless. In the Wall advisory proceedings, Israel was clearly withholding its consent and the UK’s counsel also tried to persuade the Court to decline jurisdiction on that basis. Rejecting UK’s submissions in that advisory case would had the same effect on Israel’s legal position as rejecting Germany’s submission in this contentious case would have. The Court’s judgment in this contentious case would do discretely to Israel’s legal rights no more than the Advisory Opinion has done. It would not affect Israel’s rights and legal interests anymore than similar findings contained in advisory opinions or reports of special rapporteurs affect those rights and interests. It would, at the very most, contain mere pronouncements not even addressed to, let alone binding, on Israel. It would produce no discrete effect on Israel’s rights.
As expected Germany’s submissions pay almost zero attention to the Statute factor or the statutory nature of the adjudication process. Similarly, Judge ad hoc Couvreur (Declaration in Heroic Idun, para. 8) has also handled consensualism as an abstract idea, rather than as part of the single normative process beginning with the consent to jurisdiction under the Statute and ending with the Court’s binding decision under Article 59. In the present case, legal impact on Israel would be zero, Germany would be the only State affected by the Court’s judgment and that judgment would not contain any legal requirement that Israel move a finger with regard to any of matters dealt with in that judgment.
Germany has also played the due process card, suggesting that “there would be no such opportunity for Israel to respond, in this case, to allegations of genocide and serious breaches of other fundamental norms, and yet somehow that is thought not to matter” (CR 2026/30, para. 45) and that “it could readily be said that issues were being predetermined against Israel before it had had a fair hearing” (CR 2026/32, para. 15). However, Israel is not facing any discrete legal prejudice, a risk of binding judgment, injunction or damages within the framework of this case.
What is fair hearing for? Fair hearing is a legal device to enable the relevant person or entity avail of it when they are going to face a binding legal judgment and a consequential disposal of their rights and legal interests. There is no right to fair trial against one’s affairs being discussed in public, nor does any State has an international legal right to be protected from libel, and that issue would not arise in any case, given that the Court would make its findings at the merits stage with due factual accuracy and reliance on evidence.
To sum up on this point, Israel has nothing to do with this case on legal terms. Germany is trying to save its own beacon, protect its own political interests and free hand, by excessively alluding to Israel’s various rights, none of which are involved here or would be effectively disposed through the Court’s judgment.
The issue of “givens”
One wonders how many elements or differentials could the indispensable party doctrine be legitimately seen to include. The “given” issue does not seem to be an inherent or original element of the indispensable party doctrine and it did not feature in Monetary Gold. The Court had to deal with this issue in East Timor given that Portugal insisted that, as an administering authority, it had an exclusive right to exercise treaty-making authority for and regarding East Timor, among others on the basis of the relevant UN resolutions. In a brief overview of underlying practices (paras 31-32, East Timor), the Court has formed a view that Portugal’s claim to such exclusive authority was not established. However, what the indispensable party doctrine is discretely about is not whether UN resolutions amounted to a “given” but what specific and feasible impact their recognition as “given” (or, for that matter, a decision on merits of the case in the absence of or without reference to those “givens”) would have on Indonesia’s rights. It seems that, in either case, the issue of treaty-making authority contested as between Portugal and Indonesia would not have been done away with. This could lead to a legal requirement arising for Australia not to comply with the Timor Gap Treaty, with feasible practical impact on Indonesia’s legal treaty rights. No such thing, or anything similar, is being contested as between Nicaragua or Israel. Nicaragua is not proposing to exercise any right that Israel also wants to exercise and, therefore, the Court’s judgment referring to Israel’s conduct in any relevant context would not take away from it, or practically infringe upon on, any legal right that it can otherwise exercise.
Both parties have discussed whether or not prevention obligations under the relevant treaties, such as the Genocide Convention or IHL treaties, are activated only if the final harmful outcome has materialised and prohibited outcome happened through the conduct of the third State, and whether or not (or to whatever extent) the material available from the UN system, whether court decisions, opinions or reports and resolutions, determine Israel’s responsibility for underlying violations of international law. It is still the case, whatever the outcome would be on any of those substantive legal issues at the merits stage that whether by relying either on that material containing “prior determinations” (as Nicaragua’s counsel has put it, CR 26/31, para. 36, Pellet) or on sources and analysis beyond, or whether by focusing on general practices and policies or on particular facts (by “case-specific determinations of fact and law in a contentious case”, as Germany puts it, CR 2026/32, para. 20, Wordsworth), the ensuing findings and conclusions would make no original or discrete difference for any legal right or legal interest that Israel could currently claim pursuant to any source of international law.
The “given” argument is merely secondary in this context; the principal factor is that Israel would not face a binding judgment and the Court would not decide on anyone’s legal responsibility except Germany’s. The fact that Israel’s responsibility has already been discussed or affirmed by the Court itself and other bodies or rapporteurs could merely be an empirical confirmation that, in the present case, the Court would not be doing anything substantially more or different from what has already been done in other contexts. However, the most important thing is that there is no inherent or organic connection between the “givens” issue and the issue of whether the third party legal interests would become “the very subject-matter” of the Court’s decision. Whether there are “givens” involved in the present case or not, the Court’s judgment would not dispose any of third-party rights; at the merits stage, the Court can form its conclusions with the help of the material available within the UN system, or with the fresh evidence, or with some combination of the two, but the juridical impact of its decision would be the same regardless.
In addition, and in essence, upholding Germany’s assessment on what “givens” establish or not would be a discussion of merits at the stage of preliminary objections. Germany’s allusion to “limited nature of findings” reached in the Court’s two advisory opinions (Written preliminary objections, pp.83-84) invites the Court to straddle into the merits of the case, and form – at the preliminary objection stage – a view about factual and legal aspects of the merits of the case, namely whether Nicaragua’s submissions about the situation on the ground and Germany’s (or Israel’s) conduct is supported by sufficient facts and evidence. Findings about substantive legal assessment of a State’s conduct inherently belongs to the merits. In any event, the issue of whether certain facts are established in detail, or whether certain legal instruments or documents confirm the factual and legal assessment suggested by the applicant State is essentially different from the issue of whether, should those legal qualifications and factual findings prove to be correct, they would lead the Court to adopt a decision relating to Germany’s conduct whose “very subject-matter” is formed by Israel’s rights and legal interests. As explained above, the answer to that question is no.
Also, it should not be overlooked that in (East Timor, para. 42), the Court’s reasoning did straddle into merits of the case by focusing on whether Portugal had an exclusive treaty-making capacity and Indonesia did not. The Court said that it was not established that Portugal as the administering power had the exclusive right to enter into treaties with regard to East Timor. That was a finding suitable to be made at the merits stage. Nevertheless, the “given” issue did not have the sole determining effect in East Timor. What mattered most was not the existence of “givens” but the stakes involved with those “givens”, namely whether – with or without those “givens” – the Court was risking to effectively dispose Indonesia’s legal rights without its consent and thus turn Indonesia’s legal interests into “the very subject-matter” of its judgment. Again, no such think is being risked in the present case.
Likewise, and whichever way the Court were to use material labelled in the present case as “given”, whether it were to find that it is established or not established that Israel has committed genocide or other violations of international law, that would also be a discussion of merits of the case, however preliminary, condensed or perfunctory that discussion might be at the preliminary objections stage. However, and normatively speaking, the legal effect of that discussion, or of any conclusion reached on the basis of it at the merits stage would be the same whether such conclusion were to be included in a preliminary objections judgment, in a merits judgment or in an advisory opinion – and in all those cases Israel’s rights would be, at most, discussed but not determined or disposed through a binding decision.
If the issue of how far substantive legal issues underlying the applicant State’s merit-related claims are clearly established or determined, so that the Court could use them as guidance, was among central determining aspects of the indispensable party doctrine, then the distinction between substance of the case and consensual jurisdiction, endorsed rather vigorously in East Timor (para. 35), would not be as sacred as it is at times suggested to be. If that distinction means anything, then the clarity or (un)certainty of merit-related issues should not determine whether the indispensable party doctrine applies in the relevant case. Only the issue of whether the Court would end up effectively disposing third State legal interests should matter.
At the preliminary objections stage the Court merely needs to ascertain whether Israel’s rights would, at the merits stage, be treated as the “very subject-matter” its decision on merits. The Court could, though it does not need to, form at this stage a view about the qualification of Israel’s underlying conduct that would be preliminary and would need to be readdressed at the merits of the case. However, the sufficiency or “limited nature of facts” and evidence or otherwise, under the materials referred to by Nicaragua cannot solely determine the outcome of the case, because the Court’s allusion, at the preliminary objections stage, to issues of merits and saying that the relevant violations are not sufficiently evidenced would then prevent adjudication on merits by alluding precisely to the issues that have to be discussed at the merits stage.
To sum on this point, the whole “givens” issue straddles into the merits of the case and is merely incidental to the indispensable party doctrine as an admissibility issue. Nicaragua does not have to prove any aspect of the merits of the case at the stage of preliminary objection. At the merits stage, Nicaragua’s allegations about Israel’s violation of relevant rules of international law either would prove to be right or they would not; Germany’s prevention obligations under Genocide Convention or other relevant treaties will be deemed to have activated or they will not be so deemed. But in neither case would the Court’s finding on that go beyond mentioning, describing and alluding to Israel’s policies or activities or amount to the Courts judgment over or disposal of any of Israel’s rights under international law.
Let us now see how other international tribunals have handled this issue of “givens”.
Germany criticises Mauritius v Maldives for its handling of “givens” such as the International Court’s 2019 Advisory Opinion in Chagos; and has used Alain Pellet’s previous published work about Mauritius v Maldives in the final round of oral pleadings to refute his argument in this case (CR 2026/32, para. 21). It is important to see that ITLOS in Mauritius v Maldives used “givens” to offset an in rem claim about the UK’s territorial rights over Chagos archipelago, which is at variance with Monetary Gold’s initial underlying rationale and context, hence the adjudication was taken substantially further than Monetary Gold would warrant and certainly further than Nicaragua asks the Court to proceed. In effect, the Seabed Disputes Chamber has effectively straddled into the Monetary Gold and East Timor area and disposed of the UK’s concrete claimed legal status of territorial sovereign in its absence, and in a directly opposite way to the handling of “givens” in East Timor. Israel faces no such risk here and hence that aspect of Mauritius v Maldives is, quite simply, neither here nor there.
Moreover, it is not simply this one single case that matters, for the ITLOS jurisprudence has refused to use the Monetary Gold doctrine three times in a row: with regard to the “prerequisite” issue (Norstar), in rem claims (Mauritius v Maldives), and the complex situation in which the issues of joint perpetration of, or aid and assistance in committing, or direction to commit an internationally wrongful act actually or potentially arose, thus generating the “ancillary liability” challenge, to use Germany’s terms (Heroic Idun). If you have a harder look at the ITLOS jurisprudence, it will become obvious that no claim resembling what Germany is arguing in the present case has succeeded.
Germany’s misplaced reliance on Guyana v Venezuela
As mentioned above, Guyana v Venezuela did not address the indispensable party doctrine on its head. Germany relies on Guyana v Venezuela (CR 2026/30, paras 9, 26, Wordsworth) for the same reasons as it avoids focusing on the relevant or crucial detail in Monetary Gold and East Timor cases; namely to bring to the forefront the observation in Guyana v Venezuela that ruling “as a prerequisite, on the lawfulness of” a third State is a key aspect of the indispensable party doctrine (CR 2026, 30, para. 11), and thus to deflect the Court’s attention from the crucial elements of the indispensable party doctrine such as reparation, in rem claims, practical impact on third-party rights and binding judgment, all of which were involved in Monetary Gold and East Timor.
The key issue, arising from Guyana v Venezuela is precisely what the UK has forgone through becoming party to the 1966 Geneva Agreement that pre-empted the discussion of the indispensable party doctrine in the Court’s judgment. The UK did not thereby claim, let alone obtain any recognition (from other contracting parties back then, or from the Court in 2023) that, on the “prerequisite” premise, UK’s legal interests were so intricately connected to the ongoing case between Guyana and Venezuela that it amounted to “the very subject-matter” of that case. The only expectation the UK would legitimately have in the absence of the 1966 Agreement is that the Court would assess, by reference to all facts of the UK’s involvement in the relevant situation, as well as connection of that involvement to the substance of claims of Guiana against Venezuela, and decide whether or not the UK’s legal interests amounted to “the very subject-matter” of that decision. The UK did not thereby acquire, retain or abandon any ready-made right to have its relation or connection to the Guyana-Venezuela dispute ipso jure considered to be that dispute’s very “subject-matter” (given also, and in particular, that some allegations as to the conduct of British arbitrators several decades ago was rather unlikely to form the very subject-matter of the dispute between Guyana and Venezuela in 2020s, or create any legal consequences for the UK either back then or now).
The UK’s conduct and decision in that context cannot be used to attribute to the UK the intention or view to consider that UK’s own legal interests would necessarily amount to the very subject-matter of the case, for at least three reasons. First, the UK did not say anything of that kind. Second, that assumption would presuppose that the UK consciously and intentionally consented to let Guyana and Venezuela decide the issue relating to its essential legal interests as central element of dispute between those two States and without the UK’s involvement, and an unsound policy decision that would have been, too. Third, the UK could not unilaterally determine whether its legal interests would amount to “the very subject-matter” of the dispute between the two other States and impose that conclusion on the relevant dispute settlement process or organ. For if nothing else, a determination of whether that right or privilege is “the very subject-matter” that makes the case inadmissible would have to be the Court itself, not the State arguably conceding a putative pre-existing right or privilege.
Therefore, to interpret Guyana v Venezuela as coming down in any way in support of Germany’s position is to suggest that the Court’s 2023 Judgment has effectively, if impliedly, determined, on the “prerequisite” premise, that the UK’s legal interest would, in the absence of the 1966 Agreement, amount to the very subject-matter of that Judgment and lead the Court to declining its jurisdiction would be to ignore both facts and their context. It would have been contrary to any judicial economy imperative to impliedly or otherwise pronounce on the doctrine that could have determined the outcome of the inadmissibility claim in the absence of the 1966 Agreement, given that the 1966 Agreement was there. Conversely, if the Court wanted to address the indispensable party doctrine on its head, it would have to abstain from additionally discussing and assessing the impact of the 1966 Agreement.
All in all, Guyana v Venezuela does not support Germany’s position. Judge Wolfrum was also clear that 1966 Agreement was not an equivalent of the UK’s consent to have any UK’s rights disposed of in Guyana v Venezuela, and instead what the Court did in that case was to use the 1966 Agreement as lex specialis so that the lex generalis arguably contained in the indispensable party doctrine would not have to be used (para. 4).
The Statute, not politics
It is clear that Germany’s case fails to substantiate indispensable party doctrine. Germany cites aspects from Monetary Gold and other relevant cases by and large out of context, and the way that suits to it. At the same time, Germany is asking from the Court the excessive judicial creativity to use the indispensable party doctrine the way that has never been used before, and the way the Statute does not require it to be used, and hence essentially to reconstruct or re-design the indispensable party doctrine in order to prevent accountability, to avoid a projected but essentially unreal impact on Israel in order to let Germany evade all accountability for its own conduct.
Similarly, evidence to be used properly, and underlying notions or concepts be placed in their context and understood against the background of the proper statutory framework. To illustrate, loudly sounding notions such as “prejudice”, “ruling”, “consent”, “consensualism” or “prerequisite” are not abstractly floating ideas that could be waved as banners in support of the underlying policy agenda or thrown in with a detonator effect. Those inherently indeterminate notions have first, been used in relevant cases in context with other material factors, and second, notions are relevant only within and through the judicial process structured under the Court’s Statute, which ranges from a State’s initial consent of jurisdiction by a State, followed by the invocation of jurisdiction against, and the Court’s issuance of a judgment binding on that very same State. It is that process so arranged under the Statute, not any abstract ideas, that give essence to the indispensable party doctrine.
It should not be overlooked either that there are strong political expectations that the outcome will be a combination of vague judicial reasoning backed up with the authority of the bench. However, there is no symmetry between the political and the legal aspects of this controversy. Israel and Germany political interests may overlap, but their legal rights and interests are far apart from each other.
If you look at the political context, it is obvious that both Germany and Israel have a political interest that Germany should be able to provide to arms to Israel unrestrained. Legally speaking, however, Germany is trying to protect its own political free hand with regard to arms sales to Israel which it is conducting on discretionary basis as opposed to owing it to Israel under international law. Likewise, Israel has no legal rights or interests it could invoke against Germany on this matter and, even if had any such rights, the Court’s judgment would not make it lose any of those rights.