|III.||The International Court of Justice|
|3.||THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE|
|3.11.3.||Article 62, Jurisdictional Link|
Case Concerning Sovereignty over
Pulau Ligitan and Pulau Sipadan
(Indonesia v. Malaysia)
Application by the Philippines
for Permission to Intervene
Judgment of 23 October 2001
[pp. 588-599] 35. As a Chamber of the Court has already had occasion to observe:
Intervention under Article 62 of the Statute is for the purpose of protecting a States 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 ... An incidental proceeding cannot be one which transforms [a] case into a different case with different parties. (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, pp. 133-134, paras. 97-98.)
Moreover, as that same Chamber pointed out, and as the Court itself has recalled:
It ... follows ... 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. (Ibid., p. 135, para. 100; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Application to Intervene, Order of 21 October 1999, I.C.J. Reports 1999, pp. 1034-1035, para. 15.)
Thus, such a jurisdictional link between the intervening State and the Parties to the case is required only if the State seeking to intervene is desirous of itself becoming a party to the case (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, p. 135, para. 99).
36. That is not the situation here. The Philippines is seeking to intervene in the case as a non-party. Hence the absence of a jurisdictional link between the Philippines and the Parties to the main proceedings does not present a bar to the Philippine intervention.
[pp. 643-647 S.O. Weeramantry] 24. (i) Tension between Article 62 of the Statute and the consensual principle
26. There are no words in Article 62 indicative of an intent to restrict the right to intervene only to States which have already submitted to the jurisdiction.
One way of looking at the matter is to assume that when a party so seeks to intervene, it is implicitly submitting to the Courts jurisdiction, thereby becoming subject to any orders the Court may make.
Another approach is to consider Article 62 to be an exception to the usual jurisdictional rule. The framers of the Courts Statute could well have laid down a jurisdictional link as a precondition to the right to intervene, but they chose not to do so. Consent could be viewed as necessary where the intervener seeks to become a party, but not otherwise.
(ii) Legislative history of Article 62
The retention of Article 62 despite the
abandonment of the principle of compulsory jurisdiction
is thus significant. Whether it was an oversight or
deliberate, the fact remains that this statutory provision
remained and as such it needs to be given all force
It cannot be neutralised by interpretation or indeed even by Rules which the Court may make in the exercise of its undoubted power to regulate its procedure.
(iii) Statutory provisions to be rendered effective rather than negatived by interpretation
27. That important provision of the Statute
must be given effect as far as is practicable. If the
requirement of a jurisdictional link be postulated,
that could in many cases render nugatory an express
provision in the Statute of the Court.
One must have regard to the general principle that statutory provisions are to be given effect as far as possible and not nullified by contrary interpretation.
The separate opinions rendered in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) Application for Permission to Intervene2 are of interest on this matter. While Judge Morozov was of the view that the intervener must show a jurisdictional basis for its claim, Judges Oda and Schwebel were both specific in their view that an intervening State does not need to show a jurisdictional link with the original litigant State. The inconclusive nature of the Courts decision in relation to this problem concerning intervention was the subject of adverse comment, among others by Judge Philip C. Jessup 3.
The jurisdictional link was not a basis for the Courts decision in that case.
The present Judgment 4 goes far towards settling this issue, consolidating the law on this matter along the lines indicated by the decisions in Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) 5 and Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) 6. I agree that a jurisdictional link is required only if the State seeking to intervene is desirous of itself becoming a party to the case 7.
(iv) Article 81 (2) (c) of 1978 Rules
28. Article 81, paragraph 2, of the 1978 Rules of Court represents a fundamental departure from the 1972 Rules inasmuch as Article 81, paragraph 2 (c), requires the application to set out any basis of jurisdiction which is claimed to exist as between the State applying to intervene and the parties to the case. There was no reference to this jurisdictional link in the 1972 Rules which only required a description of the case, a statement of law and fact justifying intervention and a list of the documents in support.
This reference to a jurisdictional basis, it will be noted, does not specify it as a necessary factor for intervention. It is only mentioned as a circumstance which the applicant needs to set out a circumstance which would no doubt be of assistance to the Court in making its overall decision. The use of the expression any basis of jurisdiction rather than the basis of jurisdiction is also significant.
A Rule of the Court cannot nullify a provision of the Courts Statute and must always be read in conformity with it. In the Continental Shelf case between Tunisia and Libya 8 it was Maltas argument that this provision went in fact beyond the authority given to the Court to regulate its procedure 9. It argued that the Courts rule-making power could not be employed to introduce a new substantive condition for the grant of permission to intervene.
29. The legislative history of Article 62, the rules of interpretation, the need for enhancing the services rendered by the Court to the international community and the jurisprudence of the Court thus combine to point to the conclusion that a jurisdictional link is not a prerequisite to intervention.
|2||I.C.J. Reports 1981, pp. 22 ff.|
|3||In an Editorial Comment in the American Journal of International Law, 75 (1981) AJIL 903 at 908.|
|4||See paras. 35 and 36.|
|5||I.C.J. Reports 1990, p. 135.|
|6||I.C.J. Reports 1999, pp. 1034-1035, para. 15.|
|8||I.C.J. Reports 1981, p. 8, para. 12.|
|9||Cf. Wolfgang W. Fritzemeyer, Intervention in the International Court of Justice, 1983, p.|