Abstract:



1- Introduction: This article focuses on the tension between procedural formalism and substantive justice in international judgment by focusing on the different approaches of the International Court of Justice and the European Court of Human Rights on the principle of "monetary gold" and shared responsibility. The principle of "monetary gold", which is rooted in government consent, prohibits courts from dealing with disputes that the legal interests of a third country are not satisfied with the case and this lack of satisfaction forms the "very subject" of the case. The purpose of this study is to systematic analysis of the European Court's approach to the principle of the Indispensable Parties, arguing that its judicial procedure reinforces a model of "shared responsibility" that holds the Contracting Governments on the outsourced impacts of human rights, even when third -party or international organizations are involved. The main question of this study is how the European Court examines the principle of the Indispensable Parties in cases related to unjustified governments or international organizations, and what are the consequences of this approach to implement shared responsibility under international human rights laws?

2- Research Gap and Objective: While the International Court of Justice strongly adheres to monetary gold doctrine and prioritizes government sovereignty, the European Court of Human Rights has adopted a practical approach to systematic human rights violations. While the strict adherence of the International Court of Justice to this principle weakens systemic justice. The European Court, in some cases, dismisses third -party governments with the framework of responsibility for a state's duty to prevent predictable damage, thereby promoting the model of "shared responsibility". The hypothesis is that the European Court adopts a pragmatic and ultimate interpretation of the European Convention on Human Rights that ignores its procedural strictness and enables it to handle the systematic human rights violations without formal judgments of third -party responsibility. This approach re-defines the common responsibility by linking the actions of the Contracting States to predictable damage caused by third parties and thus expanding the scope of jurisdiction, while maintaining formal respect for the state's consent.

3- Methodology: The innovation of this study lies in the combination of less well-known two branches: first, the European Court's indirect judgment of the behavior of the third state in the dismissal cases, and the second, the assignment of its responsibility to the states for the actions of international organizations. This article challenges the strict use of the International Court of Justice by bridging these themes and contributes to wider discourses on global responsibility. The study, through the analysis of the doctrine of prominent cases and scientific criticism, argues that the European Court's judicial procedure re-defines shared responsibility by linking the actions of the member states to predictable damage caused by third parties and thus enhancing responsibility without direct judgment of non -unsuccessful institutions. The structure of this article will include these six sections: The "monetary gold" doctrine of the International Court of Justice, The Indispensable Parties Rule: Origins and ICJ Practice, Eastern Timur and the approach International Court of Justice, The European Court's pragmatic approach to third state conduct, Shared Responsibility for Acts of International Organizations, Scholarly Critiques and Theoretical Implications and The ICJ’s Inconsistent Application and Advisory Opinions.



4- Key Findings:



A- The ICJ’s Rigidity: Sovereignty Over Systemic Justice: The ICJ’s strict application of the Monetary Gold principle, as seen in East Timor (Portugal v. Australia) and Certain Phosphate Lands in Nauru, prioritizes state consent over the enforcement of peremptory norms (jus cogens).

B- The ECtHR’s Pragmatism: Indirect Adjudication and Shared Responsibility: In contrast, the ECtHR employs a teleological interpretation of the European Convention on Human Rights (ECHR) to hold states accountable for extraterritorial harms. Cases like Soering v. UK (extradition to the U.S.) and Saadi v. Italy (expulsion to Tunisia) demonstrate the Court’s focus on the foreseeable consequences of member states’ actions rather than directly judging third states.

C- Shared Responsibility in Multilateral Contexts: The ECtHR extends accountability to states’ participation in international organizations. In Matthews v. UK, the Court held the UK responsible for EU-imposed voting rights violations in Gibraltar, emphasizing that states cannot evade Convention obligations by transferring powers to multilateral bodies.

D- Normative Implications: Reconciling Sovereignty and Accountability: The ECtHR’s jurisprudence challenges traditional notions of state sovereignty by redefining shared responsibility. By linking member states’ actions to third-party harms (e.g., Hirsi Jamaa v. Italy on collective expulsion to Libya), the Court fosters a model of “functional necessity” that prioritizes human rights over procedural barriers.

E- Theoretical Tensions: Jus Cogens vs. Procedural Formalism: The article highlights unresolved tensions between peremptory norms and procedural doctrines. While the ECtHR often elevates jus cogens (e.g., Mocanu v. Romania on torture investigations), inconsistencies persist. In Al-Adsani v. UK, the Court controversially upheld state immunity for Kuwait despite torture allegations, revealing a reluctance to fully subordinate procedural doctrines to substantive justice.

5- Contribution to the Field: Different approaches of the European Court of Human Rights and the International Court of Justice in the face of the principle of the case ("Monetary Gold") and the tension between procedural formalism and substantive justice are a reflection of two distinct perspectives in international law: On the one hand, prioritizing the sovereignty of the state and judicial satisfaction, and on the other hand, emphasizing the implementation of human rights and the responsibility of states.

6- Implications and Applications: Theoretically, these disputes between the European Court of Human Rights and the International Court of Justice reflect the fundamental tensions between the sovereignty of the state and the world law. As Erika De wet argues, the rules of the state must go beyond the consent of the state to allow the courts to investigate the systematic violation of human rights. By prioritizing the "teleological interpretation" of the European Convention on Human Rights, the European Court provides a model in which the shared responsibility of states is defined not on the basis of direct judgment on the conduct of third -party states, but on the basis of the "predictable harm" arising from their actions.

7- Conclusion: The ECtHR’s pragmatic reinterpretation of the Monetary Gold principle offers a blueprint for balancing sovereignty with global accountability. By prioritizing substantive justice over procedural rigidity, the Court addresses interconnected human rights violations without requiring third-state consent. In contrast, the ICJ’s formalism risks rendering it obsolete in an era of transnational harms. The study advocates for evolving procedural doctrines to reflect the interdependence of modern human rights challenges, urging courts to harmonize state consent with the imperative of systemic justice. This normative shift, exemplified by the ECtHR’s jurisprudence, redefines shared responsibility and reinforces the role of courts as guardians of a cohesive international legal order.