III. | The International Court of Justice |
3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
3.11. | Intervention |
3.11.2. | Article 62, Prerequisites in General |
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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
[p. 111] First, El Salvador claims that the Application fails to fulfil the
requirement in Article 81, paragraph 2 (c), of the Rules of Court that a
State seeking to intervene is to set out in its application "any basis of
jurisdiction which is claimed to exist as between the State applying to
intervene and the parties to the case". Nicaragua does not set out any such
basis in its Application but argues that Article 62 of the Statute "does
not require a_separate title of jurisdiction" (para. 7). The Chamber does
not see here any formal defect, justifying dismissal of the Application in limine,
since the Rule only requires statement of "any basis of jurisdiction which
is claimed to exist". El Salvador also advances the view that a "jurisdictional
link" between the State seeking to intervene and the parties is a necessary
condition for intervention. The Court, however, has observed in an earlier case
that
"although this question is one of the Court's jurisdiction, it has no
priority of the kind which attaches to a jurisdictional objection stricto
sensu and need not be examined in advance of the other contentions put
forward by the Parties either as objections to the admissibility of the
Application, or as grounds for refusing it" (I.C.J. Reports 1984,
p. 8, para. 11).
El Salvador's contentions on the question of the jurisdictional link will
therefore be examined later (paragraphs 93-101).
[pp. 111-112] Second, El Salvador contends that Nicaragua's
Application is defective because it does not comply with the requirement of
Article 81, paragraph 2 (b), of the Rules of Court that a State applying
to intervene indicate in its Application "the precise object of the
intervention". Nicaragua's Application has two paragraphs (quoted in
paragraph 38 above) stating the object of the intervention. El Salvador
nonetheless contends (inter alia) that Nicaragua has not complied with
the requirement to indicate "the precise object": it does not "indicate
its position with respect to the fundamental issue in the case, which is to
define the object of the litigation and consequently the scope of the powers of
the Chamber", and "these omissions make the Application defective".
In the Chamber's view, however, Nicaragua has given an indication of an object
which could certainly be defined in a more precise way but is not so evidently
lacking in precision as to justify the Chamber in rejecting the Application in
limine for non-compliance with Article 81 of the Rules of Court.
[pp. 113-114] Finally, El Salvador relies on the fact that there has
been "no discussion whatsoever between Nicaragua and either of the original
Parties regarding the position of the Gulf of Fonseca". Therefore, it is
argued, it is premature to bring such issues before the Chamber, and counter to
the established rule "that before proceedings are brought in the Court,
there must be a defined dispute which... has matured through the process of
negotiation between the parties".
The Chamber does not consider that there is any requirement for the
definition of a dispute in prior negotiations before an application can be made
for permission to intervene. The function of intervention is, as indicated in
the 1984 Judgment on the Application of Italy for permission to intervene in the
case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta),
and as explained below, something wholly different from the determination of a
further dispute between the State seeking to intervene and one or both of the
parties. In that Judgment the Court found that that Application could not be
granted because, inter alia, to give effect to it "the Court would
be called upon... to determine a dispute, or some part of a dispute, between
Italy and one or both of the principal Parties" (I.C.J. Reports 1984,
p. 20, para. 31), without the consent of those parties. It would therefore be
inappropriate to require, as a condition of intervention, the existence of such
a dispute, defined by prior negotiations.
[p. 116] If in the present case the legal interests of Nicaragua
would form part of "the very subject-matter of the decision", as
Nicaragua has suggested, this would doubtless justify an intervention by
Nicaragua under Article 62 of the Statute, which lays down a less stringent
criterion. The question would then arise, however, whether such intervention
under Article 62 of the Statute would enable the Chamber to pronounce upon the
legal interests of Nicaragua which it is suggested by Nicaragua would form the
very subject-matter of the decision. The Chamber will therefore first consider
whether Nicaragua has shown the existence of an "interest of a legal nature
which may be affected by the decision", so as to justify an intervention;
and if such is the case, will then consider whether that interest may in fact
form "the very subject-matter of the decision" as did the interests of
Albania in the case concerning Monetary Gold Removed from Rome in 1943.
[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.
[p. 119] The Chamber concludes that, insofar as the dispute relates
to sovereignty over the islands, it should not grant permission for intervention
by Nicaragua, in the absence of any Nicaraguan interest liable to be directly
affected by a decision on that issue. Any possible effects of the islands as
relevant circumstances for delimitation of maritime spaces fall to be considered
in the context of the question whether Nicaragua should be permitted to
intervene on the basis of a legal interest which may be affected by a decision
on the legal situation of the waters of the Gulf.
[pp. 121-122] The Chamber however notes that El Salvador in its
pleadings has specifically claimed the existence of an "objective legal régime"
of condominium in the waters of the Gulf (paragraph 67 above). Further, the fact
that this regime was found to be applicable by the Central American Court of
Justice in a case in which Nicaragua was the respondent party, appears to the
Chamber to reinforce Nicaragua's assertion of a legal interest which may be
affected by any decision in this matter. As appears from the above quotation, El
Salvador's argument starts from the proposition that the 1917 Judgement of the
Central American Court is res judicata between El Salvador and
Nicaragua. The Chamber has noted above (paragraph 28) that in 1917 Nicaragua
informed the States of Central America that it did not accept that Judgement.
That very question of res judicata, even though not directly in issue
before the Chamber since El Salvador does not contend that Honduras was a party
to the case and as such bound by the decision, underlies the asserted
opposability of the Judgement to Honduras, so that a decision on such
opposability may affect the interests of Nicaragua.
Quite apart from the question of the legal status of the 1917 Judgement,
however, the fact is that El Salvador now claims that the waters of the Gulf are
subject to a condominium of the coastal States, and has indeed suggested that
that régime "would in any case have been applicable to the Gulf
under customary international law". Nicaragua has referred to the fact that
Nicaragua plainly has rights in the Gulf of Fonseca, the existence of which is
undisputed, and contends that
"The condominium, if it is declared to be applicable, would by its very
nature involve three riparians, and not only the parties to the Special
Agreement."
In the opinion of the Chamber, this is a sufficient demonstration by
Nicaragua that it has an interest of a legal nature in the determination whether
or not this is the régime governing the waters of the Gulf: the very
definition of a condominium points to this conclusion. Furthermore, a decision
in favour of some of the Honduran theses would equally be such as may affect
legal interests of Nicaragua. The "community of interests" which is
the starting-point of the arguments of Honduras is a community which, like the
condominium claimed by El Salvador, embraces Nicaragua as one of the three
riparian States, and Nicaragua must therefore be interested also in that
question. Nicaragua contends that in this respect
"any decision taken by the Chamber - whether in deciding in favour of
one Party or the other or by deciding otherwise - is necessarily a decision
whose very subject-matter would be the determination of the rights of the three
riparian States in respect of the Gulf of Fonseca, and of the waters outside the
Gulf".
The Chamber, therefore, finds that Nicaragua has shown to the Chamber's
satisfaction the existence of an interest of a legal nature which may be
affected by its decision on these questions; and that this is so notwithstanding
the fact that, as its Agent explained at the opening hearing, Nicaragua has "considered
it unnecessary to allege or claim a specific right inside the Gulf of Fonseca".
[pp. 122] On the other hand, while the Chamber is thus satisfied
that Nicaragua has a legal interest which may be affected by the decision of the
Chamber on the question whether or not the waters of the Gulf of Fonseca are
subject to a condominium or a "community of interests" of the three
riparian States, it cannot accept the contention of Nicaragua that the legal
interest of Nicaragua "would form the very subject-matter of the ",in
the sense in which that phrase was used in the case concerning Monetary Gold
Removed from Rome in 1943 to describe the interests of Albania (see
paragraphs 52-56 above). So far as the condominium is concerned, the essential
question in issue between the Parties is not the intrinsic validity of the 1917
Judgement of the Central American Court of Justice as between the parties to the
proceedings in that Court, but the opposability to Honduras, which was not such
a party, either of that Judgement itself or of the régime declared by the
Judgement. Honduras, while rejecting the opposability to itself of the 1917
Judgement, does not ask the Chamber to declare it invalid. If Nicaragua is
permitted to intervene, the Judgment to be given by the Chamber will not
declare, as between Nicaragua and the other two States, that Nicaragua does or
does not possess rights under a condominium in the waters of the Gulf beyond its
agreed delimitation with Honduras, but merely that, as between El Salvador and
Honduras, the régime of condominium declared by the Central American
Court is or is not opposable to Honduras. It is true that a decision of the
Chamber rejecting El Salvador's contentions, and finding that there is no
condominium in the waters of the Gulf which is opposable to Honduras, would be
tantamount to a finding that there is no condominium at all. Similarly, a
finding that there is no such "community of interests" as is claimed
by Honduras, between El Salvador and Honduras in their capacity as riparian
States of the Gulf, would be tantamount to a finding that there is no such "community
of interests" in the Gulf at all. In either event, such a decision would
therefore evidently affect an interest of a legal nature of Nicaragua; but even
so that interest would not be the "very subject-matter of the decision"
in the way that the interests of Albania were in the case concerning Monetary
Gold Removed from Rome in 1943. As explained above (paragraph 56), it
follows from this that the question whether the Chamber would have power to take
a decision on these questions, without the participation of Nicaragua in the
proceedings, does not arise; but that the conditions for an intervention by
Nicaragua in this aspect of the case are nevertheless clearly fulfilled.
[pp. 124-125] As for the arguments advanced by Nicaragua which might
touch on this question of delimitation, the most general may be seen in its
presentation, as a consideration supporting its assertion of a legal interest,
of the "essential character of the legal principles, including relevant
equitable principles, which would be relevant to the determination of the
questions placed on the agenda by the Special Agreement" (Application,
para. 2 (d)). The Chamber does not however consider that an interest of
a third State in the general legal rules and principles likely to be applied by
the decision can justify an intervention. Even when, as in the case of Malta's
Application for permission to intervene in the case between Libya and Tunisia,
the State seeking to intervene "does not base its request for permission to
intervene simply on an interest in the Court's pronouncements in the case
regarding the applicable general principles and rules of international law",
but "bases its request on quite specific elements" in the case (I.C.J.
Reports 1981, p. 17, para. 30), the interest invoked cannot be regarded as
one which "may be affected by the decision in the case" (I.C.J.
Reports 1981, p. 19, para. 33). The consideration urged in paragraph 2 (d) of the Application is
thus insufficient to show the existence of an interest of a legal nature.
With specific reference to delimitation, Nicaragua's Application refers to:
"The leading role of coasts and coastal relationships in the legal régime
of maritime delimitation and the consequence in the case of the Gulf of Fonseca
that it would be impossible to carry out a delimitation which took into account
only the coasts in the Gulf of two of the three riparian States" (para. 2 (f));
but the "role of coasts and coastal relationships" in maritime
delimitation again involves general legal rules and principles. The contention
that in the Gulf of Fonseca "it would be impossible to carry out a
delimitation which took into account only the coasts in the Gulf of two of the
three riparian States" would be more convincing were it not for the fact
that in 1900 a maritime boundary was defined in the Gulf between Nicaragua and
Honduras. In any event, the question is whether a legal interest of Nicaragua
would be "affected" by such maritime delimitation. It occurs
frequently in practice that a delimitation between two States involves taking
account of the coast of a third State; but the taking into account of all the
coasts and coastal relationships within the Gulf as a geographical fact for the
purpose of effecting an eventual delimitation as between two riparian States -
El Salvador and Honduras in the instant case - in no way signifies that by such
an operation itself the legal interest of a third riparian State of the Gulf,
Nicaragua, may be affected. In any case, it is for the Applicant State in the
present proceedings to demonstrate to the satisfaction of the Chamber that this
would be actually the case in the present instance. This Nicaragua has failed to
do.
[p. 125] Accordingly the Chamber is not satisfied that a decision in
the present case either as to the law applicable to a delimitation, or effecting
a delimitation, between Honduras and El Salvador, of the waters of the Gulf
(except as regards the alleged "community of interests"), would affect
Nicaragua's interests. The Chamber therefore considers that although Nicaragua
has, for purposes of Article 62 of the Statute, shown an interest of a legal
nature which may be affected by the Chamber's decision on the question of the
existence or nature of a régime of condominium or community of interests
within the Gulf of Fonseca, it has not shown such an interest which might be
affected by the Chamber's decision on any question of delimitation within the
Gulf.
[pp. 126-127] Whether a State is entitled to a territorial sea,
continental shelf, or exclusive economic zone is a question to be decided by
application of the principles and rules of the law of the sea on those matters.
As observed above (paragraph 76), an interest in the application of general
legal rules and principles is not the kind of interest which will justify an
application for permission to intervene. In the present case, the legal régime
within the Gulf - whatever it may be found by the Chamber to be - will no doubt
also be relevant to any decision delimiting the waters outside the Gulf; but
this, in the view of the Chamber, tends solely to strengthen Nicaragua's claim
to intervene in relation to the legal régime of the maritime spaces
inside the Gulf, not to justify an intervention in relation to the legal
situation of the maritime spaces outside.
[pp. 129-131] In order to be permitted to intervene, a State does
not have to show that it has rights which need to be protected, but merely an
interest of a legal nature which may be affected by the decision in the case.
This matter of legal interests has however been dealt with and decided by the
Chamber in the earlier part of this Judgment (paragraphs 72, 79 and 84); so it
is in relation to those Nicaraguan interests of a legal nature which the Chamber
has found to exist that the Chamber must now examine the declared object of the
intervention. Nicaragua's substantive purpose appears to be to inform the
Chamber of its rights or interests, and to protect them "by all legal means
available", i.e., to prevent them being affected by the Chamber's decision,
or to ensure that a decision affecting them is only taken after Nicaragua has
been heard.
In its written observations on the Application for permission to intervene,
El Salvador referred to this aspect of the Application and argued that
"[The] differing descriptions of the object of the intervention,
oscillating between the purpose of protecting its rights by all legal means
available and the conservative purpose of merely informing the Chamber of its
rights, constitute an attempt to avoid the dilemma confronting a State seeking
to intervene... If the object of the intervention is to inform the Court of its
rights or claims, Nicaragua will have a full opportunity to do so (as Italy did)
in the oral proceedings to be convened in accordance with Article 84, paragraph
2, of the Rules, without any need to allow its intervention. If, on the other
hand, the object of the application is to protect its claims by all legal means,
including that of seeking a favourable judicial pronouncement on these claims,
then such a purpose will signify the introduction by Nicaragua of additional
disputes, requiring a valid link of jurisdiction, which does not exist."
It appears to the Chamber that the consequence of that argument would be
that intervention, not merely in the present case but in most cases, would have
to be refused, if not for the one reason, then for the other, and that the
purposes of Article 62 of the Statute would thus be frustrated. The Chamber
cannot accept such a position. In the first place, with regard to the stated
object of informing the Court of a third State's rights, it is evident that if
it were necessary for a State which considered that its legal interests might be
affected by the decision in a case to give an exhaustive account of these
interests in its application for permission to intervene, or at the hearings
held to consider whether permission to intervene should be granted, there would
be no point in the institution of intervention and in the further proceedings to
which it should give rise under the Rules of Court. It is true that in the
circumstances of the case concerning the Continental Shelf (Libyan Arab
Jamahiriya/Malta), the Court found itself able to take into account, in its
decision on the merits, information about Italian claims presented to it during
the proceedings on Italy's unsuccessful application to intervene. But the reason
for the refusal of permission to intervene in that case was not that the Court
was already sufficiently informed of Italy's interests by those proceedings. Nor
was it a finding that Italy had not sufficiently indicated the interests to be
protected or presented them in an inappropriate manner.
So far as the object of Nicaragua's intervention is "to inform the
Court of the nature of the legal rights of Nicaragua which are in issue in the
dispute", it cannot be said that this object is not a proper one: it seems
indeed to accord with the function of intervention. It is true that Nicaragua in
its Application went on to state that it has "the conservative purpose of
seeking to ensure that the determinations of the Chamber did not trench upon the
legal rights and interests of the Republic of Nicaragua.. .". The
expression "trench upon the legal rights and interests" is language
not to be found in Article 62 of the Statute, which refers to the possibility
that an "interest of a legal nature" might be "affected" by
the decision. If "trench upon" was intended perhaps to go further than
the language of the Statute, then it should be borne in mind that it would
hardly be possible, given Article 59 of the Statute and indeed the decision in
the case concerning Monetary Gold Removed from Rome in 1943 (paragraphs 54-55
above), for a decision of the Court to "trench upon" the legal right
of a third State. It seems to the Chamber however that it is perfectly proper,
and indeed the purpose of intervention, for an intervener to inform the Chamber
of what it regards as its rights or interests, in order to ensure that no legal
interest may be "affected" without the intervener being heard; and
that the use in an application to intervene of a perhaps somewhat more forceful
expression is immaterial, provided the object actually aimed at is a proper one.
Nor can the Chamber disregard in this connection the indication by the Agent of
Nicaragua, quoted in paragraph 86 above, that Nicaragua seeks to protect its
legal interest solely in such way as the Statute allows.
[p. 131] In the light of these statements, it appears to the Chamber
that the object stated first in Nicaragua's Application, namely "generally
to protect the legal rights of the Republic of Nicaragua in the Gulf of Fonseca
and the adjacent maritime areas by all legal means available", is not to be
interpreted as involving the seeking of a judicial pronouncement on Nicaragua's
own claims. The "legal means available" must be those afforded by the
institution of intervention for the protection of a third State's legal
interests. So understood, that object cannot be regarded as improper.