Reflections on the indispensable party principle in the wake of the judgment on preliminary objections in the Norstar case

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Abstract

In the Norstar case, ITLOS dismissed Italy’s attempt to invoke the indispensable party objection at the jurisdictional stage. The Tribunal’s finding that Spain (which did not partake in the proceedings) merely aided or assisted Italy in the execution of the acts under review largely prejudged this conclusion. The Tribunal’s statement that the responsibility of Spain did not have to be assessed in order to determine Italy’s position is consonant with the established treatment of this objection in the case law of the ICJ, since the Monetary Gold case. An analysis of the judicial tests and heuristics used to apply this objection reveals two aspects about its nature and function. First, the objection could equally go to the jurisdiction of a tribunal or to the admissibility of the claim. Hence, it is not surprising that parties and judges use both characterisations interchangeably. Second, and in spite of the Court’s own proclamations, the principle is used to preserve the legitimacy of the Court’s consensual jurisdiction, rather than the legal position of third parties. The latter undoubtedly benefit from the principle’s sparse application, but cannot count on it to safeguard their interests from judicial interference in all instances.
Original languageEnglish
Pages (from-to)112-132
JournalRivista di Diritto Internazionale
Volume100
Issue number1
Publication statusPublished - 31 Dec 2017

Keywords

  • ITLOS
  • International Court of Justice
  • monetary gold
  • jurisdiction

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