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| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.11. | Intervention |
| 3.11.2. | Article 62, Prerequisites in General |
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Case Concerning Sovereignty over
Pulau Ligitan and Pulau Sipadan
(Indonesia v. Malaysia)
Application by the Philippines
for Permission to Intervene
Judgment of 23 October 2001
[pp. 583-586] 19. Both Indonesia
and Malaysia argue that the Philippine Application
should not be granted because of its “untimely nature”.
20. The Court will consider this objection
ratione temporis by applying the relevant requirements
of its Rules dealing with the intervention procedure
to the factual circumstances of the case.
Article 81, paragraph 1, of the Rules of
Court, referred to above (see paragraph 16), stipulates
that:
“[a]n Application for permission to intervene under the terms of Article 62 of the Statute, ... shall be filed as soon as possible, and not later than the closure of the written proceedings. In exceptional circumstances, an application submitted at a later stage may however be admitted.”
The Court recalls that the Special Agreement
between Indonesia and Malaysia was registered with
the United Nations on 29 July 1998 and notified to
the Court on 2 November 1998. Pursuant to Article 40,
paragraph 3, of the Statute of the Court and Article
42 of the Rules of Court, copies of the notification
and of the Special Agreement were transmitted to all
the Members of the United Nations and other States
entitled to appear before the Court (see paragraph
2 above). Thus, the Philippines had been aware that
the Court had been seised of the dispute between Indonesia
and Malaysia for more than two years before it filed
its Application to intervene in the proceedings-under
Article 62 of the Statute. By the time of the filing
of the Application, 13 March 2001, the Parties had
already completed three rounds of written pleadings
as provided for as mandatory in the Special Agreement
- Memorials, Counter-Memorials and Replies - their
time-limits being a matter of public knowledge. Moreover,
the Agent for the Philippines stated during the hearings
that his Government “was conscious of the fact that
after 2 March 2001, Indonesia and Malaysia might
no longer consider the need to submit a final round
of pleadings as contemplated in their Special Agreement”.
21. Given these circumstances, the time
chosen for the filing of the Application by the Philippines
can hardly be seen as meeting the requirement that
it be filed “as soon as possible” as contemplated in
Article 81, paragraph 1, of the Rules of Court. This
requirement which, although when taken on its own might
be regarded as not sufficiently specific, is nevertheless
essential for an orderly and expeditious progress of
the procedure before the Court. In view of the incidental
character of intervention proceedings, it emphasizes
the need to intervene before the principal proceedings
have reached too advanced a stage. In one of the recent
cases, dealing with another type of incidental proceeding
the Court observed that: “the sound administration
of justice requires that a request for the indication
of provisional measures . . . be submitted in good
time” (LaGrand (Germany v. United States
of America), Provisional Measures, Order of 3 March
1999, I.C.J. Reports 1999, p. 14, para. 19). The
same applies to an application for permission to intervene,
and indeed even more so, given that an express provision
to that effect is included in Article 81, paragraph
1, of the Rules of Court.
22. As to the argument of the Philippines
that the delay in the filing of its Application for
permission to intervene was caused by its wish first
to secure access to the pleadings of the Parties, the
Court does not find anything in its Rules or practice
to support the view that there exists an inextricable
link between the two procedures or, for that matter,
that the requirement of the timeliness of the Application
for permission to intervene may be made conditional
on whether or not the State seeking to intervene is
granted access to the pleadings. Furthermore, the Philippine
argument is undermined by the fact that the Philippines
asked the Court to furnish it with copies of the pleadings
and other documents of the Parties only on 22 February
2001, that is less than ten days before the completion
of the last compulsory round of written pleadings.
It is not unusual in the practice of the Court that
in reliance on Article 53, paragraph 1, of its Rules,
States entitled to appear before the Court ask to be
furnished with copies of the pleadings of the Parties
at an early stage of the written proceedings (see,
for example, case concerning the Continental Shelf
(Tunisia/Libyan Arab Jamahiriya), Application for Permission
to Intervene, Judgment, I.C.J. Reports 1981, p.
5, para. 4; case concerning Continental Shelf (Libyan
Arab Jamahiriya/Malta), Application for Permission
to Intervene, Judgment, I.C.J. Reports 1984, p.
5, para. 4).
23. The Court notes, however, that despite
the filing of the Application at a late stage in the
proceedings, which does not accord with the stipulation
of a general character contained in Article 81, paragraph
1, of the Rules requiring that “[a]n application for
permission to intervene ... shall be filed as soon
as possible”, the Philippines cannot be held to be
in violation of the requirement of the same Article,
which establishes a specific deadline for an application
for permission to intervene, namely “not later than
the closure of the written proceedings”.
It will be recalled that the Special Agreement
provided for the possibility of one more round of written
pleadings - the exchange of Rejoinders - “if the Parties
so agree or if the Court decides so ex officio or
at the request of one of the Parties”. It was only
on 28 March 2001 that the Parties notified the Court
by joint letter “that [their] Governments ... ha[d]
agreed that it is not necessary to exchange Rejoinders”.
Thus, although the third round of written pleadings terminated on 2 March 2001, neither the Court nor third States could know on the date of the filing of the Philippine Application whether the written proceedings had indeed come to an end. In any case, the Court could not have “closed” them before it had been notified of the views of the Parties concerning a fourth round of pleadings contemplated by Article 3, paragraph 2 (d), of the Special Agreement. Even after 28 March 2001, in conformity with the same provision of the Special Agreement, the Court itself could ex officio “authoriz[e] or prescrib[e] the presentation of a Rejoinder”, which the Court did not do.
25. For these reasons, the filing of the
Philippine Application on 13 March 2001 cannot be viewed
as made after the closure of the written proceedings
and remained within the specific time-limit prescribed
by Article 81, paragraph 1, of the Rules of Court.
In somewhat similar circumstances, dealing
with the Nicaraguan Application for permission to intervene
in the case concerning the Land, Island and Maritime
Frontier Dispute (El Salvador/Honduras), a Chamber
of the Court found that, since the Special Agreement
included a provision for a possible further exchange
of pleadings, even when the Replies of the Parties
had been filed, “the date of the closure of the written
proceedings, within the meaning of Article 81,
paragraph 1, of the Rules of Court, would
remain still to be finally determined” (I.C.J. Reports
1990, p. 98, para. 12). The Court had pronounced
itself in similar terms some ten years earlier in the
case concerning the Continental Shelf (Tunisia/Libyan
Arab Jamahiriya) (Application for Permission to Intervene,
Judgment, I.C.J. Reports 1981, p. 6, para. 5),
although in the latter proceedings the question of
timeliness was not in issue.
26. The Court therefore concludes that
it cannot uphold the objection raised by Indonesia
and
Malaysia based on the alleged untimely
filing of the Philippine Application.
[pp. 586-587] 27. Article 81, paragraph 3, of the Rules of Court provides that an application for permission to intervene “shall contain a list of documents in support, which documents shall be attached”. In relation to this requirement, Indonesia argues in its written observations that
“[i]n so far as it is claimed that the Philippines’ request is directed to safeguarding its historical and legal rights over the territory of North Borneo, such an alleged interest is unsupported by any documentary or other evidence contrary to the requirements of Article 81 (3) of the Rules of Court”.
For its part, Malaysia submitted no argument on this point.
28. The Philippines states that the fact
that it has not annexed a list of documents in support
of its Application does not concern the question of
the admissibility of the Application, but rather that
of evidence. It maintains that it was left with only
two options: either “to try to document and argue [its]
entire case for North Borneo, which would be impermissible
and would be an affront to the Court, and would, [it]
believe[s], properly be rejected by the Court” or “to
decide not to attach documents, since [it] could not
know which ones would be relevant to the pending case”,
with the risk that, in the latter case, one of the
Parties would then complain about the failure to annex
documents.
29. The Court confines itself to observing
in this regard that, while Article 81, paragraph 3,
of the Rules of Court indeed provides that the application
shall contain a list of any documents in support, there
is no requirement that the State seeking to intervene
necessarily attach any documents to its application
in support. It is only where such documents have in
fact been attached to the said application that a list
thereof must be included. A Chamber of the Court took
care to emphasize, “it is for a State seeking to intervene
to demonstrate convincingly what it asserts, and thus
to bear the burden of proof” (Land, Island and Maritime
Frontier Dispute (El Salvador/Honduras), Application
to Intervene, Judgment, I.C.J. Reports 1990, p.
117, para. 61). The Court considers, however, that
the choice of the means whereby the State wishing to
intervene seeks to prove its assertions lies in the
latter’s sole discretion. In the Court’s view, paragraph
3 of Article 81 of its Rules has the same purpose,
mutatis mutandis, as paragraph 3 of Article
50 of the said Rules, which provides that “[a] list
of all documents annexed to a pleading shall be furnished
at the time the pleading is filed”. It follows that
the Philippine Application for permission to intervene
cannot be rejected on the basis of Article 81, paragraph
3, of the Rules of Court.
[pp. 595-598] 46. ... the Court will at the outset consider whether a third State may intervene under Article 62 of the Statute in a dispute brought to the Court under a special agreement, when the State seeking to intervene has no interest in the subject-matter of that dispute as such, but rather asserts an interest of a legal nature in such findings and reasonings that the Court might make on certain specific treaties that the State seeking to intervene claims to be in issue in a different dispute between itself and one of the two Parties to the pending case before the Court.
47. The Court must first consider whether the terms of Article 62 of the Statute preclude, in any event, an “interest of a legal nature” of the State seeking to intervene in anything other than the operative decision of the Court in the existing case in which the intervention is sought. The English text of Article 62 refers in paragraph 1 to “an interest of a legal nature which may be affected by the decision in the case”. The French text for its part refers to “un intérêt d’ordre juridique ... en cause” for the State seeking to intervene. The word “decision” in the English version of this provision could be read in a narrower or a broader sense. However, the French version clearly has a broader meaning. Given that a broader reading is the one which would be consistent with both language versions and bearing in mind that this Article of the Statute of the Court was originally drafted in French, the Court concludes that this is the interpretation to be given to this provision. Accordingly, the interest of a legal nature to be shown by a State seeking to intervene under Article 62 is not limited to the dispositif alone of a judgment. It may also relate to the reasons which constitute the necessary steps to the dispositif.
48. Having reached this conclusion, the Court must now consider the nature of the interest capable of justifying an intervention. In particular, it must consider whether the interest of the State seeking to intervene must be in the subject-matter of the existing case itself, or whether it may be different and, if so, within what limits.
49. In the majority of the applications for permission to intervene that have come before the Court, the applicant has claimed to have an interest in the very subject-matter of the dispute or the territory in which a delimitation is to be effected. Further, in the two cases where a request for intervention under Article 62 has been authorized by the Court, that authorization was in respect of an interest related to the subject-matter of the dispute (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, p. 121, para. 72: Nicaragua’s rights in the Gulf of Fonseca necessarily being affected by the definition of a condominium; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Application to Intervene, Order of 21 October 1999, I.C.J. Reports 1999, p. 1029: Equatorial Guinea’s maritime rights could be affected by the determination by the Court of the maritime boundary between Cameroon and Nigeria).
50. In 1981 Malta, seeking to intervene, invoked an interest of a legal nature which:
“does not relate to any legal interest of its own directly in issue as between Tunisia and Libya in the present proceedings or as between itself and either one of those countries. It concerns rather the potential implications of reasons which the Court may give in its decision in the present case on matters in issue as between Tunisia and Libya ...” (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, Judgment, I.C.J. Reports 1981, p. 12, para. 19.)
51. The Court specified that Malta thought that any pronouncements on special circumstances or on equitable principles in that particular region would be certain, or very likely, to affect Malta’s own rights on the continental shelf:
“what Malta fears is that in its decision in the present case the reasoning of the Court ... may afterwards have a prejudicial effect on Malta’s own legal interests in future settlement of its own continental shelf boundaries with Libya and Tunisia” (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, Judgment, I.C.J. Reports 1981, p. 17, para. 29).
52. The Court did not, however, find this a pertinent factor in deciding whether or not to allow Malta to intervene. The Court noted that a State could not hope to intervene “simply on an interest in the Court’s pronouncements in the case regarding the applicable general principles and rules of international law” (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, Judgment, I.C.J. Reports 1981, p. 17, para. 30). But the interest in the Court’s findings and pronouncements was not in that case such a generalized interest. The Court thus turned to an examination of the interests that Malta had specified, notwithstanding that they did not lie in the very outcome of the case.
53. Malta’s Application was rejected, but not on the grounds that its expressed intention did not fall within the scope of the dispute as defined in the Special Agreement. Malta’s Application to intervene was not granted because the Court felt it was in effect being asked to prejudge the merits of Malta’s claim against Tunisia in a different dispute, which Malta had nonetheless not put before the Court.
54. The situation is different in the present case. Indeed, the Court considers that the request of the Philippines to intervene does not require the Court to prejudge the merits of any dispute that may exist between the Philippines and Malaysia, and which is not before the Court.
55. Whether a stated interest in the reasoning of the Court and any interpretations it might give is an interest of a legal nature for purposes of Article 62 of the Statute can only be examined by testing whether the legal claims which the State seeking to intervene has outlined might be thus affected. Whatever the nature of the claimed “interest of a legal nature” that a State seeking to intervene considers itself to have (and provided that it is not simply general in nature) the Court can only judge it “in concreto and in relation to all the circumstances of a particular case” (Chamber of the Court in Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, p. 118, para. 61).
[p. 598] 58. As the Chamber said
in the case concerning the Land, Island and Maritime
Frontier Dispute (El Salvador/Honduras), “it is
for a State seeking to intervene to demonstrate convincingly
what it asserts”. Further, “[i]t is for the State seeking
to intervene to identify the interest of a legal nature
which it considers may be affected by the decision
in the case, and to show in what way that interest
may be affected” (I.C.J. Reports 1990, pp. 117-118,
para. 61).
59. The Court would add that a State which,
as in this case, relies on an interest of a legal nature
other than in the subject-matter of the case itself
necessarily bears the burden of showing with a particular
clarity the existence of the interest of a legal nature
which it claims to have.
60. In order to make concrete its submission that it has an interest of a legal nature which might be harmed by the reasoning of the Court in the forthcoming Judgment as to sovereignty over Pulau Ligitan and Pulau Sipadan, the Philippines may not introduce a new case before the Court nor make comprehensive pleadings thereon, but must explain with sufficient clarity its own claim of sovereignty in North Borneo and the legal instruments on which it is said to rest, and must show with adequate specificity how particular reasoning or interpretation of identified treaties by the Court might affect its claim of sovereignty in North Borneo.
[pp. 599-600] 63. The Court observes,
however, that the Philippines must have full knowledge
of the documentary sources relevant to its claim of
sovereignty in North Borneo. While the Court acknowledges
that the Philippines did not have access to the detailed
arguments of the Parties as contained in their written
pleadings, this did not prevent the Philippines from
explaining its own claim, and from explaining in what
respect any interpretation of particular instruments
might affect that claim.
64. In outlining that claim, for purposes
of showing an interest of a legal nature that might
be affected by the reasoning or interpretation of the
Court in the dispute over Pulau Ligitan and Pulau Sipadan,
the Philippines has emphasized the importance of the
instrument entitled, in English translation, “Grant
by Sultan of Sulu of territories and lands on the mainland
of the island of Borneo”, dated 22 January 1878 (hereinafter
the “Sulu-Overbeck grant of 1878”).
65. This instrument which bears the official seal of the Sultan of Sulu is said by the Philippines to be its “primal source” of title in North Borneo. The Philippines interprets the instrument as a lease and not as a cession of sovereign title. It also acknowledges that the territorial scope of the instrument described in its first paragraph (“together with all the islands which lie within nine miles from the coast”) did not include Pulau Ligitan and Pulau Sipadan.
66. The Court observes, however, that the
Philippine claims of sovereignty, as shown on the map
presented by the Philippines during the oral proceedings,
do not coincide with the territorial limits of the
grant by the Sultan of Sulu in 1878. Moreover, the
grant of 1878 is not in issue as between Indonesia
and Malaysia in the case, both agreeing that Pulau
Ligitan and Pulau Sipadan were not included in its
reach. Also, the question whether the 1878 grant is
to be characterized as a lease or a cession does not
form part of the claim to title of either Party to
the islands in issue.
Neither Indonesia nor Malaysia relies on
the 1878 grant as a source of title, each basing its
claimed title upon other instruments and events.
67. The burden which the Philippines carries under Article 62, to show the Court that an interest of a legal nature may be affected by any interpretation it might give or reasoning it might adduce as to its “primal source” of title, is thus not discharged.
[pp. 603-604] 81. The Philippines needs to show to the Court not only “a certain interest in ... legal considerations” (Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment, I.C.J. Reports 1981, p. 19, para. 33) relevant to the dispute between Indonesia and Malaysia, but to specify an interest of a legal nature which may be affected by reasoning or interpretations of the Court. The Court has stated that a State seeking to intervene should be able to do this on the basis of its documentary evidence upon which it relies to explain its own claim.
...
83. ... The wish of a State to forestall interpretations by the Court that might be inconsistent with responses it might wish to make, in another claim, to instruments that are not themselves sources of the title it claims, is simply too remote for purposes of Article 62.
[pp. 604-606] 84. In respect of the “the precise object of the intervention” (Art. 81, para. 2 (b), of the Rules of Court), the Philippines states that its Application has the following objects:
“(a) First, to preserve and safeguard the historical and legal rights of the Government of the Republic of the Philippines arising from its claim to dominion and sovereignty over the territory of North Borneo, to the extent that these rights are affected, or may be affected, by a determination of the Court of the question of sovereignty over Pulau Ligitan and Pulau Sipadan.
(b) Second, to intervene in the proceedings in order to inform the Honourable Court of the nature and extent of the historical and legal rights of the Republic of the Philippines which may be affected by the Court’s decision.
(c) Third, to appreciate more fully the indispensable role of the Honourable Court in comprehensive conflict prevention and not merely for the resolution of legal disputes”.
The Philippines submitted during the oral proceedings “that the objects (a) and (b) in the Application make clear the objectives of the Philippines in applying to the Court for permission to intervene under Article 62, are consistent with the Court’s jurisprudence; and amply fulfil the requirements of the Statute”.
...
87. As regards the first of the three objects stated in the Application of the Philippines (see paragraph 84 above), the Court notes that similar formulations have been employed in other applications for permission to intervene, and have not been found by the Court to present a legal obstacle to intervention (Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to Intervene, Judgment, I.C.J. Reports 1984, pp. 11-12, para. 17; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) Application to Intervene, Judgment, I.C.J. Reports 1990, pp. 108-109, para. 38 and pp. 130-131, para. 90; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Application to Intervene, Order of 21 October 1999, I.C.J. Reports 1999, Order, p. 1032, para. 4).
88. So far as the second listed object of the Philippines is concerned, the Court, in its Order of 21 October 1999 in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Application to Intervene, recently reaffirmed a statement of a Chamber that:
“[s]o far as the object of [a State’s] intervention is ‘to inform the Court of the nature of the legal rights [of that State] which are in issue in the dispute’, it cannot be said that this object is not a proper one: it seems indeed to accord with the function of intervention” (I.C.J. Reports 1999, p. 1034, para. 14).
89. That the rights claimed by the Philippines lie in North Borneo rather than in Pulau Ligitan and Pulau Sipadan makes the second stated object of the Philippines no less a proper one.
90. As to the third object listed in its Application, very occasional mention was made of it during the oral pleadings. But the Philippines did not develop it nor did it contend that it could suffice alone as an “object” within the meaning of Article 81 of the Rules. The Court rejects the relevance under the Statute and Rules of the third listed object.
[p. 612 D.O. Oda] 8. ... Article 62 of the Court’s Statute should be interpreted liberally so as to entitle a State, even one not having a jurisdictional link with the parties, which shows “an interest of a legal nature which may be affected by the decision in the case” (emphasis added) to participate in the case as a non-party, not necessarily on the side of either the applicant State or the respondent State in the principal case. The institution of “non-party intervention” has developed greatly over the past 20 years and it is perhaps an exaggeration to say that the Court’s established jurisprudence limits intervention to participation as a party.
[p. 617 D.O. Oda] 11. Where participation as a non-party should be permitted, which is the case here, it is not for the intervening State ¾ which in the present case learned of the subject-matter of the dispute only through the Special Agreement of 31 May 1997 by means of which the dispute was brought to the Court ¾ to prove in advance that its interest will be affected by the decision in the case. Without participating in the merits phase of the case, the intervening State has no way of knowing the issues involved, particularly when it is refused access to the written pleadings. Rather, if a request for permission to intervene is to be rejected, the burden should be placed on the parties to the principal case to show that the interest of the third State will not be affected by the decision in the case.
[p. 625 Decl. Parra-Aranguren] Notwithstanding my vote for the operative part of the Judgment, I consider it necessary to state that, in my opinion, Article 62 of the Statute refers only to the dispositif part of the Judgment in the main case. The findings or reasoning supporting the future Judgment of the Court in the main case are not known at this stage of the proceedings. Therefore, it is impossible to take them into consideration, as the majority maintains (para. 47), in order to determine whether they may affect the legal interest of the State seeking for permission to intervene. Consequently, I cannot agree with other paragraphs of the Judgment which, after examining certain documents, conclude that the Philippines legal interest may not be affected by their interpretation.
[pp. 628-629 Decl. Kooijmans] 12. Fear is sometimes expressed that a liberal policy of granting permission to intervene might encourage States to attempt to intervene more often, which might lead to a situation at odds with the system of consensual jurisdiction; moreover, the risk of potential interventions might make States parties to a dispute less inclined to conclude a special agreement to submit that dispute to the Court.
13. This line of reasoning is certainly not without ground; it seemingly, however, overlooks the fact that the discretion conferred upon the Court by Article 62, paragraph 2, of the Statute is not a “general discretion to accept or reject a request for permission to intervene for reasons simply of policy. On the contrary . . . (the Court’s task) is to determine the admissibility or otherwise of the request by reference to the relevant provisions of the Statute.” (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene, Judgment, I.C.J. Reports 1981, p. 12, para. 17.) Judicial policy alone therefore cannot allay the fears just mentioned.
14. The all-important criterion mentioned in Article 62, paragraph 1, of the Statute is the legal interest. In this respect the legal interest itself is as important as the risks to which it may be exposed by the Court’s decision if the intervention is not granted, and this is clear from the Court’s jurisprudence in previous cases. With all due respect, I have the impression that in this case the Court has concentrated too much on the second aspect.
15. In cases of requests for permission to intervene, the alleged legal interest will often not be a separate legal claim of the would-be intervener, whether that claim reflects an interest in the subject-matter of the main case or not. Parties to a dispute will, however, be extra-sensitive with regard to potential interveners which present as their legal interest a claim against one or both of them. In such cases, the Court should, for reasons of judicial policy, already give special attention to the plausibility of the claim and thereby to the specificity of the legal interest. In this respect, it is highly relevant that the Court has explicitly stated that a State which relies on an interest of a legal nature other than in the subject-matter of the case itself necessarily bears the burden of showing with a particular clarity the existence of the interest of a legal nature which it claims to have (paragraph 59 of the Judgment).
16. In the present case the Philippines has, in my opinion, failed to make its claim sufficiently plausible by not providing answers to highly pertinent questions which were put during the oral proceedings. I regret that the Court has not explicitly said so. A State which wishes to intervene should know that, in order to be allowed to do so, it must establish with fully convincing arguments the legal interest which may be affected by the Court’s decision.
[pp. 654-655 S.O. Franck] 7. ... Under Article 62, paragraph 2, of the Statute of the Court, it is for the Court itself to decide whether the applicant-intervener possesses a “legal interest” in the main action to be decided by the Court (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene, Judgment, I.C.J. Reports 1981, p. 12, para. 17). That the applicant-intervener has the right and obligation to demonstrate such legal interest does not end the matter. It remains for the Court to satisfy itself that international law does not bar the very interest that the Philippines seeks to have protected.
8. In this regard, it does not matter whether the Parties themselves have fully argued the legality of the interest the Applicant seeks to protect. It is important to draw a distinction between (i) cases in which the Court proceeds to decide issues not raised in the parties’ submissions (which would likely be precluded by the non ultra petita rule), and (ii) those cases in which, precisely in order to deal correctly with an issue which has been referred to it, the Court must take into account considerations of fact or of law other than those relied upon by the parties (Fitzmaurice, The Law and Procedure of the International Court of Justice, 1986, p. 531). The present case falls into category (ii). It is essential ¾ in determining whether the Philippines has a legal interest in protecting its claim of historic sovereignty over most of North Borneo ¾ that the Court take into account all the relevant international law, including the modern law of decolonization and self-determination. The mere fact that this law was but passingly raised by the Parties does not preclude Members of the Court taking judicial notice of the impact of so vital a legal principle, one that profoundly bears on the Applicant’s claim to possess a “legal interest”. As was stated by the Court in the Fisheries Jurisdiction case:
“The Court ... as an international judicial organ, is deemed to take judicial notice of international law, and is therefore required in a case falling under Article 53 of the Statute, as in any other case, to consider on its own initiative all rules of international law which may be relevant to the settlement of the dispute. It being the duty of the Court itself to ascertain and apply the relevant law in the given circumstances of the case, the burden of establishing or proving rules of international law cannot be imposed upon any of the parties, for the law lies within the judicial knowledge of the Court.” (I.C.J. Reports 1974, p. 9, para. 17.)
While this statement was made in the context of applying Article 53, the principle is equally applicable when giving effect to Article 62.
