III. | The International Court of Justice |
3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
3.11. | Intervention |
3.11.3. | Article 62, Jurisdictional Link |
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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. 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.