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World Court Digest

Summaries of the Decisions

Land, Island and Maritime Frontier Dispute

(El Salvador v. Honduras)

On 11 December 1986 El Salvador and Honduras jointly notified to the Court a Special Agreement concluded between them on 24 May 1986 whereby a dispute referred to as land, island and maritime frontier dispute would be submitted for decision to a chamber to be constituted according to Article 26 para. 2 of the Statute. The Chamber should consist of three Members of the Court and two judges ad hoc chosen by each Party.

By an Order of 8 May 1987 the Court elected Judges Oda, Sette-Camara and Sir Robert Jennings to sit as members in the Chamber; El Salvador appointed Mr. Valticos and Honduras Mr. Virally to sit as judges ad hoc. After the death of Judge ad hoc Virally, Honduras, on 9 February 1989, appointed Mr. Torres Bernárdez as judge ad hoc. Since after a number of communications it appeared that El Salvador had no objection to the choice of Mr. Torrez Bernárdez, the Court, by an Order of 13 December 1989 took note of the new composition of the Chamber which was presided by Judge Sette-Camara.

Application for Permission to Intervene
(Order of 28 February 1990)

On 17 November 1989 Nicaragua filed an Application for permission to intervene under Article 62 of the Statute. This application was addressed to the Court, not to the Chamber, since Nicaragua was of the opinion that its request was a matter exclusively within the procedural mandate of the full Court.

In its Order of 28 February 1990 the Court found that it was for the Chamber formed to deal with the case to decide whether the application for permission to intervene should be granted, stating as the reason that the tribunal seised of a principal issue has to deal also with any issue subsidiary thereto. Furthermore, the Court argued, an application for permission to intervene under Article 62 of the Statute required a judicial decision on whether the State seeking to intervene "has an interest of a legal nature which may be affected by the decision" on the merits and this question could only be determined by the body which had to give the decision on the merits.

This view was not shared by Judges Elias, Tarassov and Shahabuddeen who each appended a dissenting opinion. Their concern was essentially that the methods by which the members of the Chamber were selected did not satisfy the criteria required to enable it to discharge the judicial mission of the International Court of Justice, considered as a court of justice, in relation to Nicaragua. They expressed severe doubts as to whether a Chamber constituted according to the wishes of the Parties would be prepared to permit the intervention of a third State against the will of the main Parties.

Application of Nicaragua for Permission to Intervene
Judgment of the Chamber of 13 September 1990

By its Judgment of 13 September 1990 the Chamber unanimously decided to permit the intervention of Nicaragua.
According to Article 62 of the Statute a request to intervene should be permitted if a State considers that it has "an interest of a legal nature which may be affected by the decision in the case". In the present case the Chamber found that Nicaragua had shown such an interest to exist, limited, however, exclusively to the part of the case concerning the legal régime of the waters of the Gulf of Fonseca. These findings were based essentially on the fact that El Salvador claimed that the waters of the Gulf should be subject to a condominum of the coastal States while Honduras' arguments started from the "community of interests". According to the Chamber both arguments thus embraced Nicaragua as one of the three riparian States of the Gulf.

Besides the legal interest which may be affected, the request for permission to intervene has to indicate the precise object of the intervention (Article 81 para. 2 b) of the Rules of Procedure). The Chamber found that, even though the request of Nicaragua might not have been formulated sufficiently clearly in this respect, it had to take into account the object actually aimed at. This object, namely generally to protect the legal rights of Nicaragua in the Gulf of Fonseca and the adjacent maritime areas by all means available, was not to be interpreted as involving a judicial pronouncement