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III. The International Court of Justice
3.2. Procedure before a Chamber Dealing with a Particular Case
(Article 26, Paragraph 2, 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, l.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 co-operation 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.

[pp. 7-8 Decl. Oda] The competence of the Chamber formed under Article 26, paragraph 2, of the Statute to deal with any application to intervene is, in my view, unequivocally established by Article 62 of the Statute, read together with Article 90 of the Rules of Court which states that:
"Proceedings before the Chambers mentioned in Article[s] 26... of the Statute shall, subject to the provisions of the Statute and of these Rules relating specifically to the Chambers, be governed by the provisions of Parts I to III of these Rules applicable in contentious cases before the Court",

and by Article 27 of the Statute, which provides that "[a] judgment given by any of the chambers provided for in Article[s] 26 ... shall be considered as rendered by the Court". "Intervention" is one of the "Incidental Proceedings" for which provision is made in Section D of Part III of the Rules of Court ("Proceedings in Contentious Cases"). Permission to intervene in a case being dealt with by a chamber can properly be requested only of that chamber; and it is in the nature of the present case that any approach made to the full Court by a third State cannot, however labelled, be seen as constituting a proper application for permission to intervene. The Court was accordingly under no obligation to ascertain the views of the Parties to the case with regard to this aspect of Nicaragua's Application. The Application for permission to intervene that Nicaragua addressed to the Registrar of the Court on 17 November 1989 could have been dealt with by the Chamber at once.
Although Nicaragua, in its Application to the full Court, undoubtedly did request permission of the Court to intervene, making it clear that it thereby meant the full Court, it also referred to "[t]he practical consequence of a favourable response to the present request", namely, "the reformation of the Chamber as presently constituted". In other words, Nicaragua contemplates the "reformation" of the Chamber seised of the present case by the Order of 8 May 1987 (as complemented by the Order of 13 December 1989). In the alternative, Nicaragua contemplates suggesting that the Court should exclude from the mandate of the Chamber some of the powers with which it had previously been invested. In either event a request of this kind, addressed to the full Court by a State not party to the case, is not one which can be entertained under any of the provisions of the Statute or Rules of Court that govern the Court's procedures. Furthermore, to the extent that such "reformation" might involve a claim by the intervener, or would-be intervener, to be entitled to appoint a judge ad hoc, such a claim could only properly be considered by the Chamber, but not by the full Court, as is implied in Article 26, paragraph 2, of the Statute and Article 17, paragraph 2, of the Rules of Court (both of which are chiefly concerned with the initial or original constitution of a chamber), and as is apparent from the very character of intervention as an incidental proceeding. Once a chamber has been constituted, the powers of the full Court are, in my view, limited, so far as the composition of that chamber is concerned, to the filling of any vacancy in the original constitution that may arise as a result of the death, resignation or incapacity of an original member of the chamber. It would have been preferable in my view for the Court to have incorporated an explicit finding in that sense into the Order which it has found it necessary to make.

[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.

[pp. 9-10 D.O. Elias] My second reason is the almost absolute one that Article 27 of the Statute provides clearly that "A judgment given by any of the chambers provided for in Articles 26 and 29 shall be considered as rendered by the Court". It must follow that the Court and all its Members are bound by the judgment of a chamber, but not necessarily by a judgment arrived at by whatever means, or in defiance of a rule of justice overlooked or misconceived, or one subsequently overruled by the Court in the long run. This is so because, even though every Member of the court is bound by the decision of the chamber, no non-member of the chamber has the chance or indeed the right to take part or to intervene in the work of the chamber before its decision is handed down. This means that there is no opportunity for any Member to criticize, or to point out any lacunae before the case is ended by the particular chamber; nor has the Court any opportunity to intervene. Yet according to the present Statute the decision is one by which the Court must be regarded as also bound, without having had any opportunity of interference.
It is, however, invonceivable that the jurisdiction as conferred upon the Court by Article 36 of the Statute does not admit of any exception, and binds only the Court within the meaning of the law as envisaged by it. If, for any reason, a chamber exercises so-called jurisdiction which is vitiated by any rule of law or of justice, a judgment delivered by it may not be accepted in every respect as ipso facto binding, even though that judgment is apparently unexceptionable otherwise. It therefore follows that, unless Article 26 of the Statute itself, or the implementing Article of the Rules by which chambers are established, so define the scope and purpose of a chamber formed to deal with a particular matter referred to it, there cannot be a wholesale transfer of general jurisdiction of the Court by the assignment of a particular case to a particular chamber. It remains to be proved that a chamber is the equivalent of the Court in all respects. It may be noted that under Article 30 of the Statute the Court reserves the exclusive right to frame "rules for carrying out its functions. In particular, it shall lay down rules of procedure" (emphasis added). This shows that the chamber is not entirely its own master, and that it is possible that certain aspects of jurisdiction are residual or exerciseable only by the Court istself.

[p. 10 D.O. Elias] When the chamber procedure was conceived and framed - a process which may be regarded as having been somewhat hurried - not enough attention was paid to refining and considering its full implications in the administration of justice. That this has been so can easily be shown by going through the arcanum of decisions so far delivered under the chamber procedure since the wholesale adoption of the chamber procedure in the case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area. The entire machinery of chamber procedure has been shown time and again to be in need of a thorough overhaul, especially from the point of view of its implication in the declaration of general principles of international law, like that of intervention, which is necessarily wider than the narrow issues which Article 26 envisaged as the only work for a chamber. The chamber cannot be asked to undertake the finding of general principles of public international law, and is therefore not given the same authority and jurisdiction as the Court, unless specific provision is made in a particular case in the establishment or provenance of the chamber.
Finally, the present Order is too narrow, and seems consumed by preoccupation with a narrow conception of intervention, a concept which in all cases is wider than the Court Order itsell, or even its broader implications. The Order, in refusing to allow the request of Nicaragua to be dealt with by the Court fails to refer to the relevant consideration that it may raise problems such as the appointment of an ad hoc judge or other issues of the composition of the Chamber itself. If such problems were handled by the Court the matter could be dealt with by handing back the request of Nicaragua to the Chamber for disposal as appropriate. The Chamber cannot be expected to refer such matter or matters to the full Court for directions several times in succession in the course of its treatment of a single application. Clearly, a chamber of equal competence or jurisdiction cannot be expected to have matters referred in this way to "its" own organ within the ICJ system. The Chamber must also never be allowed to deal with such issues as appointment of an ad hoc judge, another problem of general international law the scope of which is too wide for the Chamber in any event.

[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).

[pp. 12-13 D.O. Tarassov] There are no provisions either in the Statute or in the Rules of Court which can be seen as prohibiting the full Court from considering these submissions of the Applicant. Neither the Statute and Rules of Court nor the Court's own practice serve to deprive it entirely of functions relating to chambers, once those chambers have been formed. It is precisely the full Court that makes changes in the composition of a chamber, electing new members or approving new judges ad hoc to fill any vacancies that may arise and fixing time-limits for written proceedings. It is only natural that it should fall to the full Court to deal with a request for the reformation of the Chamber. It is a fact that Nicaragua's Application, intentionally addressed to the full Court, is also directly related to the composition of the Chamber. Of the five judges composing the Chamber, no more than a minority of two are currently Members of the Court. (The President of the Chamber, whose term of office in the Court has expired, continues to sit in the Chamber in accordance with Article 17 of the Rules of Court. The other two judges are judges ad hoc chosen by El Salvador and Honduras respectively.)
It is clear that the Court, which is responsible for the Chamber it has formed, has full confidence in the high professional skills of its members and in their judicial impartiality. It should be presumed that the Applicant has the same confidence. It is nonetheless very difficult to ignore the fact that the initial Parties have exercised a certain and by no means negligible influence on the composition of the Chamber, not only by choosing their respective judges ad hoc but also by giving the President of the Court their views "regarding the composition of the Chamber", in application of Article 17 of the Rules of Court, even though Article 26, paragraph 2, of the Statute expressly provides that the parties are only required to approve the Court's determination of "The number of judges to constitute such a chamber ..." (Emphasis added.)
Article 17, paragraph 2, of the Rules of Court permits a broader interpretation of this provision of the Statute, enabling the President to ascertain the views of the parties regarding those judges whom they would wish to be elected as members of a chamber. The Court, when forming a chamber, normally complies with those views. It follows that the initial parties do exercise an influence not only on the numerical, but also on the personal composition of the chamber.
The intervening State does not have this possibility and its procedural position before a chamber is not on a par with the position of the initial parties. Such an inequality might be especially harmful to the intervening party if it were to seek the reformation of the existing composition of a chamber or a modification of that chamber's mandate.

[pp. 14-15 D.O. Tarassov] What main conclusions can be drawn from these views of the initial Parties? In the first place, it is quite clear that their general attitude is not favourable to that aspect of Nicaragua's Application that relates to its request that the full Court, not the Chamber, should consider its suggestions regarding a possible reformation of the Chamber or reformulation of its mandate, and that they are, to put it bluntly, not in favour of any intervention by Nicaragua in the case. Could such a negative attitude have some impact upon the way in which the Applicant's request may be considered by the Chamber in its present composition? In theory, there could not be any such impact as all the members of a chamber, including the judges ad hoc, are independent of the parties and preserve their full impartiality during the whole of the proceedings in the case. Nobody, of course, should still be mindful of the procedural positions of the Parties during the formation of the chamber, and the various options available to them at that time. The same considerations hold good for all chambers and might be only slightly more specific in case of chambers formed on the basis of a compromis. Parties which have agreed by compromis to submit their dispute to a chamber may, if they both are not satisfied with the course of the proceedings or with the intermediate decisions of the chamber, put an end to it by a simple withdrawal of their compromis - although, in theory, the fact that this possibility exists can in no way exert pressure on the chamber. However, the problem is whether it is right that a State which has to protect what may be vital interests, and which finds itself in procedural circumstances like those currently affecting the procedural position of Nicaragua, should find itself entirely at the mercy of a theoretical construction of this kind. I am of the opinion that the Court, taking account of all the circumstances of the case and of the different submissions made in the Nicaraguan Application which, as was shown earlier, goes far beyond a simple request for permission to intervene and raises issues with which the Chamber is not competent to deal, should itself give the Applicant an opportunity to defend its own position before it in oral proceedings - or at least to defend its position with regard to the procedural issues. I think that such an attitude on the part of the Court would be particularly justified in that its governing documents provide it with no direct indications as to how to deal with an application for permission to intervene in a case pending before a chamber, in the event that such an application simultaneously makes a request for the reformation of that same chamber 1. Any decision of the Court will accordingly establish an important precedent for future practice.

[pp. 16-17 D.O. Tarassov] According to Article 27 of the Statute, a judgment given by an ad hoc chamber is to be considered as rendered by the full Court. As a result of the present Order adopted by a majority of judges, the Applicant will have no more than two possible courses of action - it can either abandon its intention of preserving and defending its interests against possible violation as a result of judicial processes in the International Court of Justice or it can submit its Application to the Chamber. If it opts for the latter course, the Applicant will have to abide by the decision of five judges, only two of whom are Members of the Court, but whose decision will have the status of a judgment of the Court. In the event that permission to intervene is summarily rejected, or if the judgment on its merits fails to provide a proper safeguard of its lawful interests as an intervening Party, the Applicant will not be able to appeal, as the Court's judgment will have been rendered!
However, in theory, it might be possible in such a situation for the judgment to be adopted by a majority of non-members of the Court, with both Members of the Court voting against it. This possibility is no mere paradox - there are very important practical consequences for the Applicant. If the case were not to be considered by a chamber of the Court but by an Arbitration Tribunal, and if the decision of that Tribunal were to be seen by the third State as harmful to its interests, such a State would have the possibility of trying to defend those interests before the International Court of Justice, regardless of the fact that the Tribunal in question might have consisted entirely of Members of the International Court. However since, in the instant case, the Parties have decided not to submit their dispute to arbitration, but to refer it to a chamber of the Court, the third State is automatically deprived of that recourse to the full Court. Only as a result of hearings, with the full participation of all the States concerned and in which all those States would have had equal procedural rights, could the Court have properly arrived at a prima facie conclusion as to whether or not there were any possibilities of intrusion into the sphere of interests of the third State.

[p. 17 D.O. Tarassov] My vote against the present Order constitutes a reflection of my sincere hope that the decision of the Court, contained in this Order, will not be given the status of a precedent, serving to preclude - on purely formalistic grounds - any possibility of the Court considering questions relating to cases being dealt with by chambers but which those chambers are not able to resolve. Any such justification of future inaction could not only lead to a depreciation of the Court's own role, but might also bring about an unfortunate depreciation of the functioning of chambers by placing an insurmountable barrier between them and the full Court and, as a consequence, estranging them from the principal judicial organ of the United Nations. If that happened, ad hoc chambers would be transformed into some kind of hybrid between international judicial process and arbitration.

[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. 34 D.O. Shahabuddeen] The material makes it clear that the concept of judges being selected by the parties was regarded as being a characteristic of arbitral procedures; that, as such, that concept was essentially opposed to the judicial character of the Court; that, on special grounds, it was, after anxious debate, nevertheless allowed a limited operation within the constitution of the Court in relation to ad hoc judges; but that this limited operation could not be extended consistently with the judicial character of the Court without an appropriate enabling amendment of its Statute.

[pp. 38-39 D.O. Shahabuddeen] Although considering that the names of members of an ad hoc chamber who were to be requested by the President to "step down" in favour of judges chosen by the parties could also be the subject of consultation between the President and the parties, Judge Jiménez de Aréchaga clearly recognized that what I would for convenience call the "standing-down procedure", as laid down by Article 31, paragraph 4, of the Statute, would continue to apply to such a chamber even after the 1972 amendments (Eduardo Jiménez de Aréchaga, loc. cit., p. 3). A neglect in the Rules to reflect that fact was rightly cured by an appropriate change made in 1978 in Article 17, paragraph 2, of the Rules. As I sought to point out more fully in the separate opinion which I appended to the Order made in this case on 13 December 1989 (I.C.J. Reports 1989, pp. 165-167), the prescribed procedure was correctly observed in the case of the Delimitation of the Maritime Boundary in the Gulf of Maine Area, Constitution of Chamber (I.C.J. Reports 1982, pp. 4, 8 and 9). It was not applied in the case concerning Elettronica Sicula S.p.A. (ELSI), Constitution of Chamber (I.C.J. Reports 1987, pp. 3-4) for the reason that (however it came about) the elected judges included two serving national judges. It was not applied in the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali), Constitution of Chamber (I.C.J. Reports 1985, pp. 6-7) nor in the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Constitution of Chamber (I.C.J. Reports 1987, p. 10). The Orders of Court in these two cases simply show the election of three serving judges and the addition of two named ad hoc judges. The Court did not, as it ought to have done under the prescribed procedure, elect five serving judges subject to two being asked to stand down in favour of ad hoc judges to be later chosen by the parties. Contrary to the laid down sequence, the two ad hoc judges were chosen by the parties before the election by the Court of any serving judges. The observance of the standing-down procedure prescribed by Article 31, paragraph 4, of the Statute made no practical sense in a situation in which the Court was in fact electing serving judges who had been previously designated by the parties (see Shabtai Rosenne, Procedure in the International Court, A Commentary on the 1978 Rules of the International Court of Justice, 1983, p. 43). The logic of allowing the parties a right to exercise "decisive influence" over selection would naturally lead to dispensation with that procedure. The question remains whether it was competent for the Court to confer such a right on them by Rules of Court.
A negative answer to that question is suggested by the inescapable fact that the standing-down procedure continues to apply to ad hoc chambers by virtue of the express provisions of Article 31, paragraph 4, of the Statute itself. Neither the Rules of Court nor any practice adopted by the Court can vary the scheme as laid down in those overriding provisions of the master law. Indeed, as has been noticed, the applicability of that scheme to ad hoc chambers was expressly and correctly recognized by an amendment made in Article 17, paragraph 2, of the Rules of Court in 1978. It applies to other chambers by virtue of Article 91, paragraph 2, of the Rules. What does therefore emerge is that the very decision to dispense with the standing-down procedure in relation to ad hoc chambers is an indication of the extent to which practical control over selection of serving judges as members of such chambers has been conceded to the parties; for it is only on this basis that the observance of a procedure still legally commanded both by the Statute and by the Rules would become the pointless ritual which presumably led to the decision to ignore its continuing existence in law.

[pp. 40-41 D.O. Shahabuddeen] The whole nature of the Court, as a court of justice, constitutes a prohibition, no less clear for being implied, against giving the parties any say in the selection of judges to hear a case, whether through the Rules of Court or otherwise, and whether in whole or in part, except in the case of ad hoc judges. So fundamental was that prohibition to the character of the Court as a court of justice, as distinguished from an arbitral body, that it was no more necessary to express it in its Statute than it would have been to do so in the constitution of any other "court of justice" within the normal acceptation of the meaning of this expression.
This implied prohibition is not neutralized by approaching the matter from the point of view of the doctrine of implied powers. True, the fact that specific powers are conferred on a body does not necessarily imply the non-existence of others. But the latter do not float around at large. In the last analysis, all the powers of a body must be conferred by its constituent instrument, whether expressly or impliedly.

[pp. 47-48 D.O. Shahabuddeen] To sum up, the field of operation of the rule-making power of the Court, as defined by Article 30 of the Statute, is wide but not unlimited. The Court, it may be said, has a certain autonomy in the exercise of its rule-making competence; but autonomy is not omnipotence, and that competence is not unbounded. Rules of Court could only be made in exercise of powers granted by the Statute, whether expressly or impliedly. The Statute did not expressly grant power to the Court to confer by Rules a right on the parties to have their views taken into account in the selection of serving judges to be members of an ad hoc chamber. Nor was any such power granted by the Statute impliedly: however generous may be the principle regulating the ascertainment of the extent of the Court's implied powers, such powers encounter an ultimate limit when they collide with the intrinsic nature of the Court itself. For the reasons given, the selection, whenever necessary, of serving judges to sit in any particular case is an integral part of the inalienable judicial power confided to the Court by the world community. The Court cannot, directly or indirectly, convey away that power in whole or in part, or share it with others, without destroying its essential character as a court of justice. A Rule of Court which purports to do so is contrary to the Statute.

[p. 48 D.O. Shahabuddeen] The foregoing considerations suggest that the requirement in Article 17, paragraph 2, of the Rules of Court 1978 for the President to ascertain the views of the parties regarding the "composition" of an ad hoc chamber should be construed harmoniously with the Statute, and that, when so construed, it is restricted to ascertainment of the views of the parties as to the "number" of members of the chamber. Failing that construction - a construction which does not correspond either with the general understanding of the provision or with the actual practice under it - it would seem that Article 17, paragraph 2, of the Rules is pro tanto ultra vires the Statute.

[p. 51 D.O. Shahabuddeen] Even if there is room for argument as to what is meant by the reference to "cases which they may have begun" in the governing provisions of Article 13, paragraph 3, of the Statute, it is not admissible to assign to that phrase one meaning in relation to cases heard before the full Court and another in relation to cases heard before a chamber. The form assumed by the Court in hearing a case has nothing to do with the question whether a case has been "begun" by a judge or not. The Court being in legal theory the same whether sitting en banc or in chamber, the question whether a judge has "begun" a case must be answered in the same way regardless of whether it is being heard before the one or the other. Whatever may be the meaning of the word "begun" as it appears in the Court's constituent text, that meaning can only be one and singular in relation to all judges. Different meanings may be given to the same word appearing in different places of an instrument or indeed in different places in the same provision of an instrument, but hardly to one and the same word appearing in a particular place in a particular provision, and certainly not where the meanings would be contradictory, as in this case 2.

[p. 55 D.O. Shahabuddeen] In my opinion, reached with reluctance but with conviction, the methods by which the members of the Chamber have been selected do not satisfy the criteria required to enable it to discharge the judicial mission of the International Court of Justice, considered as a court of justice, in relation to the Applicant; and the fundamental reason for this is that the Chamber has been constituted not in accordance with the Statute, but in accordance with an unauthorized arrangement under which the Court has been essaying to transform itself into the Permanent Court of Arbitration, or something akin to it. This represents a major flaw which the Court, as the avowed guardian of its own judicial integrity, cannot correctly overlook. The existing practice may well continue unabated. My views may make no difference. It was nevertheless my duty to state them.

[pp. 56-57 D.O. Shahabuddeen] Viewing the matter at the level of general principles, I think it is first necessary to consider the relationship between the full Court and a chamber of any kind. No doubt, unless a chamber is indicated by the context, a reference in the Statute to the "Court" is a reference to the full Court, and evidently there are differences between these two bodies, but these differences are those between related and not mutually alien entities. In principle, the same Court is acting whether it acts through the full Court or through a duly established chamber. The first chamber judgment, given in 1924, began with the carefully chosen words, "The Court, sitting as a Chamber of Summary Procedure ...", and ended with a dispositif beginning significantly with the words, "For these reasons the Court decides..." (Treaty of Neuilly, P.C.I.J., Series A, No. 3, pp. 4 and 9 respectively). By Article 1 of the relevant Special Agreement, the case had been correspondingly submitted by the parties "to the Permanent Court of International Justice, in its Chamber for summary procedure ... (P.C.I.J., Series C, No. 6, p. 9). In effect, the functions of a chamber are as much the functions of the "Court" as are those of the full body. Thus, however desirable it may be for a chamber to be left to discharge its actual functions as autonomously as possible, the relationship between it and the full Court is not one between strangers. Nicaragua has drawn attention to significant instances of action taken by the full Court in relation to a chamber even after the latter has been established. The full Court, having set up a chamber, cannot interfere in its actual work; but I think it retains a continuing responsibility to ensure that the composition of the chamber is such as to enable it to function with a sufficient degree of procedural rectitude in order to qualify it as a convincing manifestation of the Court as a court of justice. If I mistake not, something of this view is implicit in the reference in the Court's Order to its "power to form a chamber to deal with a particular case, and consequently to regulate matters concerning its composition".
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.

1This lacuna in the guiding documents of the Court is quite understandable, however, as the Statute of the Court and the Rules of Court (even the most recent 1978 version) were elaborated and adopted at a time when ad hoc chambers for the most part did not exist. It is well known that, if procedural rules are to be both sound and helpful, they must be developed on the basis of prolonged practical experience and embody the sum total of such experience. The theoretical elabora-tion of the present rules in this field was mainly based on the good intention of making it easier for States to attain a peaceful settlement of their disputes while enhancing the activity of the International Court of Justice. It is significant that it is precisely the practical experience of recent chamber cases that has aroused interest in this useful and promising institution among the judges of the Interna-tional Court of Justice (see dissenting opinion of Judge Shahabuddeen to this Order, p. 21, infra, footnote).
2 Footnote omitted