The meaning of ‘very subject-matter of the dispute’ in the Monetary Gold rule of the International Court of Justice’s jurisprudence

Abstract The original formulation of the indispensable third-party rule is from the Monetary Gold case, which stipulates that the International Court of Justice (ICJ) would decline to exercise its jurisdiction over a dispute if the legal interests of an absent State form the ‘very subject-matter’ of the dispute. The rule has often been criticized for the uncertainties as to its doctrinal basis and difficulty in determining what the ‘very subject-matter’ of the dispute is. This article discusses an underexplored part of academic debates—that is, what amounts to the ‘very subject-matter’ of a dispute and in so doing seeks to show why the justification for the rule is consent, and the applicable test going forward should be that where the legal interest of an absent State is a prerequisite to be determined before the ICJ can hear the merits, the Court should decline to exercise its jurisdiction.