III. | The International Court of Justice |
3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
3.7. | Evidence |
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Land, Island and
Maritime Frontier Dispute
(El Salvador/Honduras)
Application to Intervene,
Judgment of 13 September 1990,
I.C.J. Reports 1990, p. 92
[pp. 117-118] There was in this connection some argument before the
Chamber on the question of the extent of the burden of proof on a State seeking
to intervene: how far such a State needs to demonstrate the elements required in
order to satisfy Article 62. Nicaragua was of the view that it need only show a
"provisional standard of proof'; and that it would be "inappropriate
for the applicant to go too far on the question of the validity of the interests
it claims". The Parties to the case took issue with these arguments. In the
Chamber's opinion, however, it is clear, first, that it is for a State seeking
to intervene to demonstrate convincingly what it asserts, and thus to bear the
burden of proof; and, second, that it has only to show that its interest "may"
be affected, not that it will or must be affected. What needs to be shown by a
State seeking permission to intervene can only be judged in concreto and
in relation to all the circumstances of a particular case. It 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; it is not for the Court itself - or in the
present case the Chamber - to substitute itself for the State in that respect.
It needs, moreover, to be recalled in this connection that the present case
raises a further problem, namely that the Parties to the case are in dispute
about the interpretation of the very provision of the Special Agreement -
paragraph 2 of Article 2 - which is invoked in Nicaragua's Application. This
means that the legal interests of Nicaragua have to be assessed, in relation to
the issues in the case, under two different possible situations: an eventual
finding by the Chamber in favour of El Salvador's view of the meaning of Article
2, paragraph 2; or an eventual finding in favour of the view of Honduras. This
difficulty is not only one for the Chamber in considering the present
Application - for obviously, as mentioned above, it must not in any way
anticipate its decision of these matters on the merits - but also for Nicaragua
in framing its Application, even though it was given access to the pleadings
under Article 53, paragraph 1, of the Rules of Court. Nevertheless, there needs
finally to be clear identification of any legal interests that may be affected
by the decision on the merits. A general apprehension is not enough. The Chamber
needs to be told what interests of a legal nature might be affected by its
eventual decision on the merits.