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World Court Digest

III. The International Court of Justice
3.11. Intervention
3.11.1. General Questions (Article 62 and 63 of the Statute)

¤ Land, Island and Maritime Frontier Dispute
(El Salvador/Honduras: Nicaragua intervening),
Judgment of 11 September 1992,
I.C.J. Reports 1992, p. 351

[pp. 609-610] 421. The Chamber recalls that this case is the first in the history of the Court and its predecessor in which a third State has been permitted to intervene in accordance with Article 62 of the Statute. In its Judgment of l3 September 1990 giving permission to intervene, the Chamber considered it appropriate "to give some indication of the procedural rights acquired by the intervening State as a result of that permission" (I.C.J. Reports 1990, p. 135, para. 102). Similarly, at the present stage, it appears appropriate for the Chamber to make some observations on the effect of the present Judgment for the intervening State. The terms on which intervention was granted, as stated in paragraph 102 of the 1990 Judgment, were that Nicaragua would not, as intervening State, become party to the proceedings. The binding force of the present Judgment for the Parties, as contemplated by Article 59 of the Statute of the Court, does not therefore extend also to Nicaragua as intervener.
422. In its Application for permission to intervene (para. 6) Nicaragua stated that it "intends to subject itself to the binding effect of the decision to be given", that is to say the decision in the main proceedings, and in its Judgment authorizing the intervention the Chamber formally took note of that statement (I.C.J. Reports 1990, p. 109, para. 38). However, in its written statement, presented to the Chamber in its capacity as intervening State, Nicaragua stated its position as follows:

"It is the understanding of Nicaragua that as a non-party in this case, it cannot be affected by the decision of the Chamber on the merits. As a non-party Nicaragua is under the protection of Article 59 of the Statute of the Court and the right it has acquired by having its Application admitted is fundamentally the right to be heard by the Chamber. With respect to Nicaragua, the decision to be rendered by the Chamber on the merits will remain res inter alios acta. Nicaragua understands that this is the clear meaning of paragraph 102 of the Judgment of 13 September 1990 ..." (Para. 37.)

Nicaragua thus does not now regard itself as obligated to treat the Judgment as binding upon it.
423. The Chamber considers that it is correct that a State permitted to intervene under Article 62 of the Statute, but which does not acquire the status of party to the case, is not bound by the Judgment given in the proceedings in which it has intervened. As the Chamber observed in its Judgment of 13 September 1990:

"the intervening State does not become party to the proceedings, and does not acquire the rights, or become subject to the obligations, which attach to the status of a party, under the Statute and Rules of Court, or the general principles of procedural law" (I.C.J. Reports 1990, pp. 135-136, para. 102).

In these circumstances, the right to be heard, which the intervener does acquire, does not carry with it the obligation of being bound by the decision.
424. The question however remains of the effect, if any, to be given to the statement made in Nicaragua's Application for permission to intervene that it "intends to submit itself to the binding effect of the decision to be given". In the Chamber's Judgment of 13 September 1990, emphasis was laid on the need, if an intervener is to become a party, for the consent of the existing parties to the case, either consent ad hoc or in the form of a pre-existing link of jurisdiction. This is essential because the force of res judicata does not operate in one direction only: if an intervener becomes a party, and is thus bound by the judgment, it becomes entitled equally to assert the binding force of the judgment against the other parties. A non-party to a case before the Court, whether or not admitted to intervene, cannot by its own unilateral act place itself in the position of a party, and claim to be entitled to rely on the judgment against the original parties. In the present case, El Salvador requested the Chamber to deny the permission to intervene sought by Nicaragua; and neither Party has given any indication of consent to Nicaragua's being recognized to have any status which would enable it to rely on the Judgment. The Chamber therefore concludes that in the circumstances of the present case, this Judgment is not res judicata for Nicaragua.

[p. 620 Decl. Oda] In my view, Nicaragua, as a non-party intervener, will certainly be bound by this Judgment in so far as it relates to the legal situation of the maritime spaces of the Gulf. I have already expressed my views on the effect of Judgments of the Court upon intervening States in my separate or dissenting opinions appended respectively to the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene, Judgment (I.C.J. Reports 1981, p. 22) and the Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to Intervene, Judgment (I.C.J. Reports 1984, p. 90), the sense of which I do not need to repeat here.

[pp. 730-731 S.O. Torres Bernárdez] 208. I agree with the finding of the Judgment that "in the circumstances of the present case, this Judgment is not res judicata for Nicaragua" (paragraph 424 of the reasoning). There remains, however, the question of the effects of the Judgment other than that of res judicata (Art. 59 of the Statute) on a non-party State intervening under Article 62 of the Statute. In this respect, I concur with the statement contained in the declaration of Vice-President Oda appended to the Judgment. My position is based upon the fact that I cannot, as a general proposition, conceive of rights without obligations as well as upon the general economy of the institution of intervention as embodied in Articles 62 and 63 of the Statute of the Court. Interventions under Article 63, for example, are non-party interventions and nevertheless the intervening State is under the obligation set forth in that Article. Mutatis mutandis, an obligation of that kind also exists, in my opinion, for a non-party State intervening under Article 62, notwithstanding the fact that that Article does not say so in plain words. My reading of the travaux préparatoires of the 1920 Statute of the Permanent Court of International Justice as well as of the observations of the British Government signed by the British Agent, Cecil J.B. Hurst, concerning the original Application of the Government of Poland for permission to intervene in the S.S. "Wimbledon" case under Article 62 (P.C.I.J., Series C, No. 3, Vol. I, pp. 105-108), confirms rather than negates the above conclusion.