|III.||The International Court of Justice|
|2.||THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE|
|2.8.||Jurisdiction and Third States|
Case Concerning the Land and Maritime
Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria: Equatorial Guinea Intervening)
Judgment of 10 October 2002
[pp. ] 238. The jurisdiction of the Court is founded on the consent of the parties. The Court cannot therefore decide upon legal rights of third States not parties to the proceedings. In the present case there are States other than the parties to these proceedings whose rights might be affected, namely Equatorial Guinea and Sao Tome and Principe. Those rights cannot be determined by decision of the Court unless Equatorial Guinea and Sao Tome and Principe have become parties to the proceedings. Equatorial Guinea has indeed requested - and has been granted - permission to intervene, but as a non-party intervener only. Sao Tome and Principe has chosen not to intervene on any basis.
The Court considers that, in particular in the case of maritime delimitations where the maritime areas of several States are involved, the protection afforded by Article 59 of the Statute may not always be sufficient. In the present case, Article 59 may not sufficiently protect Equatorial Guinea or Sao Tome and Principe from the effects ¾ even if only indirect ¾ of a judgment affecting their legal rights. The jurisprudence cited by Cameroon does not prove otherwise. In its decision in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), the Court did not deal with rights of third States; what was principally at issue there was the question of proportionality of coastline lengths in relation to the process of delimitation between the parties (I.C.J. Reports 1982, p. 91, para. 130). It follows that, in fixing the maritime boundary between Cameroon and Nigeria, the Court must ensure that it does not adopt any position which might affect the rights of Equatorial Guinea and Sao Tome and Principe. Nor does the Court accept Cameroons contention that the reasoning in the Frontier Dispute (Burkina Faso/Republic of Mali) (I.C.J. Reports 1986, p. 554) and the Territorial Dispute (Libyan Arab Jamahiriya/Chad) (I.C.J. Reports 1994, p. 6) in regard to land boundaries is necessarily transposable to those concerning maritime boundaries. These are two distinct areas of the law, to which different factors and considerations apply. Moreover, in relation to the specific issue of the tripoint, the Court notes that both Parties agree that it should not fix one. It is indeed not entitled to do so. In determining any line, the Court must take account of this.
In view of the foregoing, the Court concludes that it cannot rule on Cameroons claims in so far as they might affect rights of Equatorial Guinea and Sao Tome and Principe. Nonetheless, the mere presence of those two States, whose rights might be affected by the decision of the Court, does not in itself preclude the Court from having jurisdiction over a maritime delimitation between the Parties to the case before it, namely Cameroon and Nigeria, although it must remain mindful, as always in situations of this kind, of the limitations on its jurisdiction that such presence imposes.
[pp. Decl. Herczegh] I cannot however subscribe to the proposition set out in paragraph 238 of the reasoning, which states inter alia:
"The court considers that, in particular in the case of maritime delimitations where the maritime areas of several States are involved, the protection afforded by Article 59 of the Statute may not always be sufficient. In the present case, Article 59 may not sufficiently protect Equatorial Guinea or Sao Tome and Principe from the effects even if only indirect of a judgment affecting their legal rights."
I see in this passage a scarcely veiled criticism, which I cannot share, of
the Court's Statute, which is an integral part of the United Nations Charter.
Article 59 of the Statute provides as follows: "The decision of the Court
has no binding force except between the parties and in respect of that
particular case." That is a necessary, indeed inevitable, consequence of
the fact that the Courts jurisdiction is founded on the consent of the parties.
The Court must ensure that it takes no decision which oversteps the limits laid
down by Article 59 and which would in consequence be without binding force and
remain dead letter. This is not only a principle of the sound administration of
justice, but also an obligation incumbent upon the Court deriving from its
function as laid down by its Statute, namely, in particular, to decide in
accordance with international law such disputes as are submitted to it.
In certain circumstance, satisfying the obligation not to affect the rights of third States may pose problems for the Court, which explains and justifies the inclusion in its Statute of a provision concerning the intervention of a State which considers that it has an interest in a dispute of a legal nature which may be affected by the decision in the case (Art. 62). The Judgment of 14 April 1981 in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene, and the separate opinions of Judges Morozov, Oda and Schwebel appended to that Judgment, and then the Judgment of 21 March 1984 in the case concerning Continental Shelf (Libyan Arab Jamahihiya/Malta), Application for Permission to Intervene, and the dissenting opinions of Judges Sette-Camara, Oda, Schwebel and Jennings clearly demonstrate the complexity of the problem and the Court's efforts to give a consistent interpretation of the relevant provisions of the Statute and to apply them in accordance with their letter and their spirit. The last word has yet to be said in this debate. However, as Judge Schwebel so aptly put it: "Article 59 cannot, by any canon of interpretation, be read so as to read Article 62 out of the Statute" (I.C.J. Reports 1984, p. 134, para. 9). Moreover, at least in my opinion, it cannot be said that the protection afforded to the rights of third parties by Article 59 of the Statute might be insufficient. The criticism of this Article strikes me as misplaced.
This is not a rule of law which, in itself, might be said sufficiently to protect or not to protect a legal interest of a particular country. It is, rather, a provision which it is for the Court to interpret and apply in such a way that such protection is made as effective as possible. Hence, whether that protection proves to be sufficient or not depends on the Court. In the present case the Court carefully considered the legal interests of Equatorial Guinea and Sao Tome and Principe and it was in that sense and in that spirit that it rendered its Judgment concerning the determination of the maritime boundary between Cameroon and Nigeria. In order to do so it had no need whatever to make a critical remark in regard to an Article of the Statute.