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
