Max Planck Institute for Comparative Public Law and International Law Logo Max Planck Institute for Comparative Public Law and International Law

You are here: Publications Archive World Court Digest

World Court Digest

III. The International Court of Justice
4.1. General Questions

¤ Land, Island and
Maritime Frontier Dispute
(El Salvador/Honduras)
Application to Intervene,
Order of 28 February 1990,
I.C.J. Reports 1990, p. 3

[pp. 16-17 D.O. Tarassov] According to Article 27 of the Statute, a judgment given by an ad hoc chamber is to be considered as rendered by the full Court. As a result of the present Order adopted by a majority of judges, the Applicant will have no more than two possible courses of action - it can either abandon its intention of preserving and defending its interests against possible violation as a result of judicial processes in the International Court of Justice or it can submit its Application to the Chamber. If it opts for the latter course, the Applicant will have to abide by the decision of five judges, only two of whom are Members of the Court, but whose decision will have the status of a judgment of the Court. In the event that permission to intervene is summarily rejected, or if the judgment on its merits fails to provide a proper safeguard of its lawful interests as an intervening Party, the Applicant will not be able to appeal, as the Court's judgment will have been rendered!
However, in theory, it might be possible in such a situation for the judgment to be adopted by a majority of non-members of the Court, with both Members of the Court voting against it. This possibility is no mere paradox - there are very important practical consequences for the Applicant. If the case were not to be considered by a chamber of the Court but by an Arbitration Tribunal, and if the decision of that Tribunal were to be seen by the third State as harmful to its interests, such a State would have the possibility of trying to defend those interests before the International Court of Justice, regardless of the fact that the Tribunal in question might have consisted entirely of Members of the International Court. However since, in the instant case, the Parties have decided not to submit their dispute to arbitration, but to refer it to a chamber of the Court, the third State is automatically deprived of that recourse to the full Court. Only as a result of hearings, with the full participation of all the States concerned and in which all those States would have had equal procedural rights, could the Court have properly arrived at a prima facie conclusion as to whether or not there were any possibilities of intrusion into the sphere of interests of the third State.