| III. | The International Court of Justice |
| 2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
| 2.2. | Conditions for a Decision on the Merits |
| 2.2.4. | Admissibility |
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Land, Island and Maritime Frontier Dispute
(El Salvador/Honduras: Nicaragua intervening),
Judgment of 11 September 1992,
I.C.J. Reports 1992, p. 351
[pp. 716-717 S.O. Torres Bernárdez] 184. Having found, as
indicated above, that the waters of the Gulf of Fonseca are held in sovereignty
by the Republic of El Salvador, the Republic of Honduras and the Republic of
Nicaragua jointly (subject to defined exceptions) and that entitlements to
territorial sea, continental shelf and exclusive economic zone in the Pacific
Ocean seawards of the central portion of the closing-line of the Gulf of Fonseca
appertains to the said three Republics, the Chamber cannot, in my opinion,
proceed to any delimitation of the maritime spaces concerned, within or outside
the Gulf, for the simple reason that this would amount to delimiting maritime
spaces in which the Judgment has recognized the existence of rights and
entitlements of the Republic of Nicaragua. Although granted by the Chamber a
limited intervention in the case, the Republic of Nicaragua has not, by virtue
of this authorization, become a "party" to the case because, inter
alia, the Parties to the case did not give their consent for the Republic of
Nicaragua to participate in the proceedings as a "party". Furthermore,
following the Chamber's granting it a non-party intervention under Article 62 of
the Statute of the Court, the Republic of Nicaragua declared that, in the light
of the conditions attached to its participation in the proceedings as an
intervening State, the Judgment would not have for it the res judicata force
provided for in the case of parties by Article 59 of the Statute. Given this
situation, the question of the competence of the Chamber to effect delimitations
in the maritime spaces concerned in the present case - an issue which has
divided the Parties so much at the current proceedings - has become a "moot"
issue. It is so because, independently of the competence vested in the Chamber
by the Parties under their Special Agreement, the Chamber is not now entitled to
delimit maritime spaces in which rights and entitlements of the Republic of
Nicaragua have been recognized by the Judgment.
185. This supervening "mootness" is consequent upon decisions
reached by the Chamber itself. Procedurally, however, the consequences are
identical to those in cases of "mootness" resulting from circumstances
external to the proceedings. A perusal of operative clauses of judgments and
orders of the Court reveals that when submissions or claims made by the parties
or a party become "moot" the fact that the cause of such "mootness"
is internal or external to the proceedings is irrelevant. In both hypotheses,
the Court has held consistently that it is no longer called upon to give a
judicial decision on the submission or claim concerned, the rationale behind
this being that the said submission or claim is as from that moment without
object and, therefore, pointless. Pronouncements of the Court in that sense may
be found, for example, in the following cases: Monetary Gold Removed from
Rome in 1943 (I.C.J. Reports 1954, pp. 32-34); Interhandel (I.C.J.
Reports 1959, p. 26); Northern Cameroons (I.C.J. Reports 1963, pp.
36-38); Fisheries Jurisdiction (United Kingdom v. Iceland), Merits
(I.C.J. Reports 1974, pp. 19-20); Nuclear Tests (Australia v.
France) and (New Zealand v. France) (I.C.J. Reports 1974,
pp. 270-272 and pp. 476-477); Application for Revision and
Interpretation of the Judgment of 24 February 1982 in the Case concerning the
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia
v. Libyan Arab Jamahiriya) (I.C.J. Reports 1985, pp. 221 and 230).
186. This is the course of action that, in my opinion, should also have been
followed by the Chamber in the present instance in responding to the plea of El
Salvador that the Special Agreement had not vested the Chamber with jurisdiction
to effect "delimitations" in the maritime spaces either inside or
outside the Gulf of Fonseca. For reasons of its own, however, the Judgment,
following a different path, has made a judicial determination on the issue in
subparagraph 2 of its operative paragraph 432. This determination leaves me no
option but to explain below my disagreement with the merits of a finding which,
in any case, concerns, as indicated above, an issue which, as the result of the
Chamber's determination of other points of law, has become "moot".
