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World Court Digest

III. The International Court of Justice
3.11. Intervention
3.11.3. Article 62, Jurisdictional Link

¤ 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. 132-133] The question is whether the existence of a valid link of jurisdiction with the parties to the case - in the sense of a basis of jurisdiction which could be invoked, by a State seeking to intervene, in order to institute proceedings against either or both of the parties - is an essential condition for the granting of permission to intervene under Article 62 of the Statute. In what follows, therefore, the expression "jurisdictional link" or "link of jurisdiction" is used in this sense. The question has been raised in previous cases before the Court in which permission has been sought to intervene under Article 62. In the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), the Court found it unnecessary to decide the question, since it had reached the conclusion that, for other reasons, Malta's request for permission to intervene was not one to which it could accede (I.C.J. Reports 1981, p. 20, para. 36). In the case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), the Court again found it possible "to reach a decision on the present Application without generally resolving the vexed question of the 'valid link of jurisdiction'" (I.C.J. Reports 1984, p. 28, para. 45). It did so however by stating two alternative lines of argument, one on the basis that such a link would be required, and one on the basis that it would not, and observing that in the circumstances of the case before it, "either of two approaches... must result in the Court being bound to refuse the permission to intervene requested by Italy" (I.C.J. Reports 1984, p. 22, para. 34). Although that Judgment contains a number of valuable observations on the subject, the question remains unresolved. Since in the present case the Chamber has reached the conclusion that Nicaragua has shown the existence of an interest of a legal nature which may be affected by the decision, and that the intervention of Nicaragua has a proper object, the only remaining question is whether a jurisdictional link is required; and since it is conceded that no such link exists, the Chamber is obliged to decide the point. In order to do so, it must consider the general principle of consensual jurisdiction in its relation with the institution of intervention.

[pp. 133-135] Normally, therefore, no other State may involve itself in the proceedings without the consent of the original parties.
Nevertheless, procedures for a "third" State to intervene in a case are provided in Articles 62 and 63 of the Court's Statute. The competence of the Court in this matter of intervention is not, like its competence to hear and determine the dispute referred to it, derived from the consent of the parties to the case, but from the consent given by them, in becoming parties to the Court's Statute, to the Court's exercise of its powers conferred by the Statute. There is no need to interpret the reference in Article 36, paragraph 1, of the Statute to "treaties in force" to include the Statute itself; acceptance of the Statute entails acceptance of the competence conferred on the Court by Article 62. Thus the Court has the competence to permit an intervention even though it be opposed by one or both of the parties to the case; as the Court stated in 1984, "the opposition [to an intervention] of the parties to a case is, though very important, no more than one element to be taken into account by the Court" (I.C.J. Reports 1984, p. 28, para. 46). The nature of the competence thus created by Article 62 of the Statute is definable by reference to the object and purpose of intervention, as this appears from Article 62 of the Statute.
Intervention under Article 62 of the Statute is for the purpose of protecting a State's "interest of a legal nature" that might be affected by a decision in an existing case already established between other States, namely the parties to the case. It is not intended to enable a third State to tack on a new case, to become a new party, and so have its own claims adjudicated by the Court. A case with a new party, and new issues to be decided, would be a new case. The difference between intervention under Article 62, and the joining of a new party to a case, is not only a difference in degree; it is a difference in kind. As the Court observed in 1984,
"There is nothing in Article 62 to suggest that it was intended as an alternative means of bringing an additional dispute as a case before the Court - a matter dealt with in Article 40 of the Statute - or as a method of asserting the individual rights of a State not a party to the case." (Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, I.C.J. Reports 1984, p. 23, para. 37.)

It is noteworthy that intervention is dealt with in Chapter III of the Court's Statute, which is headed "Procedure". This approach was adopted by the Court also when it drew up and revised its Rules of Court, where intervention appears in Section D of the Rules, headed "Incidental Proceedings". Incidental proceedings by definition must be those which are incidental to a case which is already before the Court or Chamber. An incidental proceeding cannot be one which transforms that case into a different case with different parties.
Intervention cannot have been intended to be employed as a substitute for contentious proceedings. Acceptance of the Statute by a State does not of itself create jurisdiction to entertain a particular case: the specific consent of the parties is necessary for that. If an intervener were held to become a party to a case merely as a consequence of being permitted to intervene in it, this would be a very considerable departure from this principle of consensual jurisdiction. That the incidental jurisdiction conferred by Article 62 of the Statute is circumscribed by the general principle of consensual jurisdiction over particular disputes was stated by the Court in its Judgment on the Italian Application to intervene in the case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), when the Court was careful not to adopt a position in which
"it would be admitting that the procedure of intervention under Article 62 would constitute an exception to the fundamental principles underlying its jurisdiction; primarily the principle of consent, but also the principles of reciprocity and equality of States. The Court considers that an exception of this kind could not be admitted unless it were very clearly expressed." (I.C.J. Reports 1984, p. 22, para. 35.)

It is therefore clear that a State which is allowed to intervene in a case, does not, by reason only of being an intervener, become also a party to the case. It is true, conversely, that, provided that there be the necessary consent by the parties to the case, the intervener is not prevented by reason of that status from itself becoming a party to the case. That the competence given to the Court in Article 62 of the Statute is not extendable to making an intervener a party to the case unless the parties to the case have consented to the change appears also to be the view of Nicaragua, which stated during the oral proceedings that "Article 62 is a part of the incidental jurisdiction and there is no compelling logic requiring its provisions to be seen as an 'exception' to the principle of consent". There is furthermore in international law no process for joinder of a new party, or parties, whether as appellant or respondent, by move of the Court itself. The Court referred in 1984 to "the absence in the Court's procedures of any system of compulsory intervention, whereby a third State could be cited by the Court to come in as party..." (Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, I.C.J. Reports 1984, p. 25, para. 40) and again to the fact that the Court does not possess the power "to direct that a third State be made a party to proceedings" (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1984, p. 431, para. 88).
It thus follows also from the juridical nature and from the purposes of intervention that the existence of a valid link of jurisdiction between the would-be intervener and the parties is not a requirement for the success of the application. On the contrary, the procedure of intervention is to ensure that a State with possibly affected interests may be permitted to intervene even though there is no jurisdictional link and it therefore cannot become a party. Article 81, paragraph 2 (c), of the Rules of Court states that an application under Article 62 of the Statute shall set out "any basis of jurisdiction which is claimed to exist as between the State applying to intervene and the parties to the case"; the use of the words "any basis" (and in French the formula "toute base de compétence ... existerait") shows that a valid link of jurisdiction is not treated as a sine qua non for intervention (cf. also Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, I.C.J. Reports 1981, p. 16, para. 27).
The Chamber therefore concludes that the absence of a jurisdictional link between Nicaragua and the Parties to this case is no bar to permission being given for intervention.