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III. The International Court of Justice
3.11. Intervention
3.11.1. General Questions (Article 62 and 63 of the Statute)

¤ Land, Island and
Maritime Frontier Dispute
(El Salvador/Honduras)
Application to Intervene,
Order of 28 February 1990
I.C.J.Reports 1990, p. 3

[pp. 4-6] Whereas under Article 26, paragraph 2, of the Statute the Court has power to form a chamber to deal with a particular case; and consequently to regulate matters concerning its composition; whereas it is for the tribunal seised of a principal issue to deal also with any issue subsidiary thereto; whereas a chamber formed to deal with a particular case therefore deals not only with the merits of the case, but also with incidental proceedings arising in that case (cf. Frontier Dispute, Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986, p. 3; Elettronica Sicula S.p.A. (ELSI), I.C.J. Reports 1989, p. 42, para. 49);
Whereas the rule of law that "every intervention is incidental to the proceedings in a case" (Haya de la Torre, I.C.J. Reports 1951, p. 76), applies equally whether the intervention is based upon Article 62 or Article 63 of the Statute;
Whereas the question whether an application for permission to intervene in a case under Article 62 of the Statute should be granted requires a judicial decision whether the State seeking to intervene "has an interest of a legal nature which may be affected by the decision" in the case, and can therefore only be determined by the body which will be called upon to give the decision on the merits of the case;
Whereas furthermore a State which has submitted a request for permission to intervene on which a decision has not yet been taken "has yet to establish any status in relation to the case" (Continental Shelf (Tunisian/Libyan Arab Jamahiriya), Application to Intervene, Judgment, I.C.J. Reports 1981, p. 6, para. 8), and therefore a State requesting such permission must, for the purposes of the decision whether that request should be granted, take the procedural situation in the case as it finds it;
Whereas in its Application for permission to intervene Nicaragua states that

"The practical consequence of a favourable response to the present request will be the reformation of the Chamber as presently constituted and the re-ordering of the written proceedings as arranged by the Order of 27 May 1987. Whilst my Government is bound to take all available steps in order to protect its legal interests, it is concerned to proceed in a spirit of goodwill and cooperation in face of a procedure which has already been initiated. Consequently, it is the intention of my Government to propose not a reformation of the Chamber and its jurisdictional basis tout court but only the making of those changes strictly necessary in order to maintain the minimum standards of efficacy and procedural fairness" (para. 23),

and that

"Nicaragua in the alternative would request that, for those reasons of elemental fairness explained above the Court should, in any case, exclude from the mandate of the Chamber any powers of determination of the juridical situation of maritime areas both within the Gulf of Fonseca and also in the Pacific Ocean and, in effect, limit the Chamber's mandate to those aspects of the land boundary which are in dispute between El Salvador and Honduras" (para. 24);

Whereas, in the first place, while Nicaragua has thus referred to certain questions concerning the composition of the Chamber, it has done so only in contemplation of a favourable response being given to its request for intervention; whereas, in the second place, while Nicaragua contemplates a limitation of the mandate of the Chamber, its request to that effect is put forward only "in the alternative"; whereas the Court is thus not called upon to pronounce on any of these questions;
Whereas the mention in the Application of these questions, which are thus contingent on the decision whether the application for permission to intervene is to be granted, cannot lead the Court to decide in place of the Chamber the anterior question whether that application should be granted; the Court, by twelve votes to three,
Finds that it is for the Chamber formed to deal with the present case to decide whether the application for permission to intervene under Article 62 of the Statute filed by the Republic of Nicaragua on 17 November 1989 should be granted.

[p. 9 D.O. Elias] I wish to dissent from the Order made by the Court because I believe that Nicaragua's Application for permission to intervene should be heard and disposed of by the full Court and not by the Chamber.
My first reason is based on the main question of the scope of chamber jurisdiction: the scope of the jurisdiction of this Chamber, or of any other chamber composed by the Court under the present Rules, is neither definitive nor final, so that one cannot regard jurisdiction as being transferable holus bolus from the International Court of Justice itself to its affiliate envisaged in Article 26 of the Statute, or by any other text.

[p. 12 D.O. Tarassov] All these statements make it quite clear that, in the Applicant's view, the present Chamber formed by the Court on the basis of a compromis between El Salvador and Honduras, without the participation of Nicaragua, can only become appropriate for the consideration of its Application if it is reformed, whether wholly or in part. Alternatively, the mandate of the present Chamber should be confined to the bilateral land frontier dispute between El Salvador and Honduras and a new chamber should be formed with the participation of Nicaragua on an equal footing with the initial Parties. It is obvious that all the proposed transformations, i.e., the full or partial reformation of the existing Chamber, or the modification or limitation of its mandate, cannot be effected by the existing Chamber itself. Only the full Court, which formed the present Chamber to deal with a land, island and maritime frontier dispute between El Salvador and Honduras and thus conferred upon it its mandate "to deal with the present case" (I.C.J. Reports 1987, Order of 8 May 1987, p. 12), has the power to undertake actions of that kind.
I believe that the Applicant, when making the above-mentioned submissions, was quite right to appeal to the body which is fully empowered to make the required changes. Moreover, the Applicant has opted for precisely this approach, emphasizing in its request that the matter raised by it is "exclusively within the procedural mandate of the full Court" (Nicaragua's Application, Preliminary Statements, last paragraph).

[p. 18 D.O. Shahabuddeen] Judged objectively and by universally accepted judicial standards, the selection of its members having been substantially determined or influenced by the Parties under the procedural arrangements referred to, the Chamber in this case cannot, in my respectful view, discharge the functions of the International Court of Justice, in its character as a court of justice, in relation to an application by a non-party for permission to intervene in the case pending before it. By itself disclaiming jurisdiction and instead leaving the Applicant with no recourse except to the Chamber, the Court effectively denies the Applicant its right to have its Application under Article 62 of the Statute judicially determined in the ordinary way.

[p. 19 D.O. Shahabuddeen] The finding of the Court that it is for the Chamber to deal with Nicaragua's Application is based essentially on the ground that the Chamber was formed to deal with the particular case and must also deal with proceedings incidental to it. In the normal case, I would agree. But, in the circumstances of this case, is the decision as logical as the Court suggests? Under the Court's own Rules, as amended in 1972 and revised in 1978, apart from two of the five members of the Chamber being ad hoc judges appointed as of right by the existing Parties, the remaining three were elected by the full Court to the Chamber after the Court had taken into account the views of the existing Parties as to the particular Members of the Court who should be so elected. Whether it is in fact so or not - and it is the Court which knows best - the Applicant is entitled to, and, as appears from its Application and written arguments, clearly does, entertain a reasonable apprehension that the three Members so elected were elected in conformity with the expressed wishes of the existing Parties. In substance, therefore, the Applicant is being told by the Court that it has no option but to submit to a Chamber all of whose five members it is reasonably entitled to feel have been practically hand-picked by the existing Parties. Conceivably, Nicaragua may nevertheless accept that option and go to the Chamber, and, if it does so, its Application may conceivably be granted by the Chamber. However, this possibility cannot affect the legal situation, as I see it. For it is not difficult to see why Nicaragua has not so far gone to the Chamber and why it has in fact come to the full Court - an attitude which is in itself the first practical illustration of how far an interested non-party State is likely to regard such a chamber as a legitimate manifestation of the Court. When its presentation is fairly read, Nicaragua obviously takes the view that the Chamber, as it stands, cannot discharge the functions of the International Court of Justice, considered as a court of justice, in relation to itself. That that is the central issue, inescapably presented, seems plain to me.

[p. 21 D.O. Shahabuddeen] The vice, then, in which the Court is held is this. Regardless of ultimate results, the Applicant has a right under Article 62 of the Court's Statute to apply for permission to intervene. However, while closing its own doors to the Applicant, the full Court is unable, in my view, to indicate any judicially acceptable alternative forum to which the Applicant may turn. In consequence, the Applicant is effectively denied its right to have its Application for permission to intervene judicially considered.

[p. 57 D.O. Shahabuddeen] Under the system as it has so far worked, an ad hoc chamber, being composed of judges whose selection has been substantially influenced, if not determined, by the original parties (a proposition which cannot credibly be controverted), cannot function as a normal court of justice either in relation to an application for permission to intervene or, if the application is granted, in relation to the applicant as an intervening party to the case on the merits. A request for permission to intervene cannot but be coupled, as in this case, with a request for an appropriate reformation of the chamber. Ex hypothesi, the latter is beyond the competence of the chamber, which is thus incapable of dealing with either branch of the application.

[pp. 58-59 D.O. Shahabuddeen] The Court has cited the Haya de la Torre principle to the effect that "every intervention is incidental to the proceedings in a case" (I.C.J. Reports 1951, p. 76). In that case (decided under Article 63 of the Statute), the question was whether the purported intervention "actually relate[d] to the subject-matter of the pending proceedings" (ibid.). That is not the question here. While I accept that the principle would ordinarily mean that an application for permission to intervene under Article 62 of the Statute should be made to the tribunal dealing with the merits of the matter, this presupposes that the tribunal is one which can act judicially in relation to the application. That case was not concerned with the kind of issues arising here as to what should be done to give real effect to the applicant's right to apply where the tribunal, which should ordinarily act, does not satisfy the generally recognized criteria applicable to a court of justice in so far as the applicant at any rate is concerned. In particular, that case did not involve the concomitant application of the principle of equality of States which would ineluctably be breached if Nicaragua's only remedy was to go before a chamber composed of members selected as mentioned above.

[pp. 60-61 D.O. Shahabuddeen] Since, in my view, the Rules do not effectively provide for the case, the competence to deal with an application for permission to intervene in such a case falls to be considered as remaining with the full Court in keeping with the wording of Article 62 of the Statute. Under paragraph 1 of this, the request for permission to intervene is to be made to the "Court". Under paragraph 2, the decision is made by the "Court". Article 3 of the Statute makes it clear that references to the "Court" are references to the full Court. The Court may of course act through a chamber in proper instances. But where, as here, the Court cannot properly act through a chamber, the Court must of necessity act by itself. The jurisdiction belongs primarily to the Court and is retained by it to the extent that it has not, for any reason, become effectually exercisable by the chamber.
I appreciate that, by reason of the Special Agreement, it may be said that the case is pending before the Chamber and not before the Court. But if, as I consider, the right to apply for permission to intervene is applicable in relation to a case pending before such a chamber, this must be so because "the case" is in legal theory pending before the "Court" within the meaning of Article 62 of the Statute.

[pp. 61-62 D.O. Shahabuddeen] In sum, but with respect, I consider that the Court has misconceived Nicaragua's case. The essence of that case, as I understand it, is that the methods by which the Chamber has been formed entitle Nicaragua to take the view that the Chamber cannot exercise the judicial functions of the International Court of Justice in so far as Nicaragua is concerned. The Order of Court nowhere addresses this problem. The Haya de la Torre principle relied upon by the Court does not by itself suffice to provide a solution to that problem. A solution, if there is one, must, in the circumstances of this particular case, take account of the principle of equality of States, and there is no possibility of satisfying this principle without appropriate action taken by the full Court within the framework of the very special relationship existing between itself and the Chamber.
For these reasons, I would uphold the contention of Nicaragua that the full Court has jurisdiction to entertain its Application.