Comparisons between organisations

153 (NGOs) and public international organization to appear before the court and maintain suits against states for actions by such states which violates international humanitarian norms and practices. The moral and psychological boost a decision of the ICJ could engender will checkmate the inclination for armed conflict as none of the parties would want to court the international opprobrium that will be visited upon it for disobeying the judgment of the court.

Moreover, such decisions could be the yardstick for measuring international morality and minimum standard of states responsibility to their citizens. The fact that it may lead to more pressure on the current workload of the court should not be a bar.

154 The said Article provides as follows: ―Should a state consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the court to be permitted to intervene.‖

Thus, by the provision of the aforesaid Article, the right to intervene is restricted to matters over which a third state feels it has a legal interest in its determination one way or the other.

However, by the provisions of Article 62 (2), the duty of determining what constitutes legal interest for purposes of Article 62 (1) is solely that of the court.¹⁸² Construing interests that are of a legal nature is a matter of law and in fact which the court decides on after the adduction of proof that alleged legal interest is truly involved.

Considering the importance Treaties play in inter-state intercourse, Article 63 of the Statute provides that where the construction of a Convention to which states other than those concerned in the case are parties is in question, the registrar of the court shall notify all such states forthwith. The essence of the notification is to avail the states so notified of the right to intervene in the proceedings and canvas a view that may particularly protect her rights under the Convention or Treaty but which none of the parties directly involved have deemed fit to do so.

The procedural formalities required of a party seeking to intervene in a case before the courts are as provided in the rules of the court.

Article 81 (1) of the Rules of the Court provides the procedural formalities required of a party seeking to intervene in a case before the court. It states as follows:

―An application for permission to intervene under the terms of Article 62 of the Statute signed in the manner provided for in Article 38 paragraph 3 of these Rules shall be filed as

182 T O Elias, The International Court of Justice and Some Contemporary Problems, (Dordrecht: Martinus Nijhoff, 1983) pp. 84-99.

155 soon as possible and not later than the closure of the written proceedings. In exceptional circumstances, an application submitted at a later stage may however be admitted‖.

Paragraph 2 of the said Article 81 states that every application apart from stating the name of an agent shall set out:

(a) The interest of a legal nature, which the state applying to intervene considers may be affected by the decision in that case;

(b) The precise object of the intervention;

(c) Any basis of jurisdiction, which is claimed to exist as between the state applying to intervene and the parties to the case.

The court have had course to determine the actual scope and contents of Article 81 of the Statute. With regards to the words ―as soon as possible and not later than the closure of the written proceedings,‖ as provided for in Article 81 (1) of the Statute, the court ruled in The Libya/Malta Continental Shell (Application of Italy to Intervene) Case ¹⁸³ that the application by Italy which had been filed before the time limit fixed for the filing of the parties‘ counter memorials was within the stipulations of Article 81 (1) and was thus not out of time nor have any formal defects which would render it inadmissible. Consequently, where a special agreement envisaged the possibility of a further exchange or pleadings, even when the replies of the parties had been filed, the date of the closure of the written proceedings within the meaning of paragraph 1 would remain open-ended and finally to be determined.¹⁸⁴

With regards to Article 81 (2) (a) of the Rules of the Court, the indication of legal interests which may be affected by the decision in the case, the court has held severally in the cases of application for permission to intervene, that once the application sets out such an indication,

183 ICJ Reports, (1984) 3 and 8.

184 Land, Island and Maritime Frontier Dispute (Application of Nicaragua to Intervene) Case, (1990) ICJ Rep. 92 and 134; Rosenne, Vol. 111, op. cit. p. 1467.

156 the formal requirements are met and whether the indication does show a legal interest which might be affected by the decision or is otherwise adequate is a matter of substance.¹⁸⁵ In The Land, Island and Maritime Frontier Dispute (Application of Nicaragua to intervene) Case,¹⁸⁶ the Chamber of the court emphasized that the word ―may‖ as appearing in Article 62 of the Statute and in Article 81 (2) (a) of the Rules means that the applicant state has only to show that its interest ―may‖ be affected, not that it will or must be affected. The requirement of Article 81 Paragraph 2(b) which requires the party seeking to intervene to state the precise object of the intervention, is met if the application to intervene itself contain an appropriate Paragraph. The question of whether the object is indeed sufficient to support an intervention is one of substance which is to be determined on the application for permission to intervene.

Questions arising from third party intervention before the court revolve around the following:

(a) What would be the status of an intervener in the main proceedings? Would he by virtue of such intervention become a full party, such that decisions given in the case would be binding upon it? Or would it be only a participant, without committing itself to be bound by the eventual decision of the court in the principal case.

(b) Whether or not it Is necessary for the intervening state to establish that it has a jurisdictional link with the original litigating state.¹⁸⁷

Answers to the above questions were provided by a Chamber of the Court in The Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador V. Honduras).¹⁸⁸ The dispute revolves around mainly on the interpretation involving both parties with respect to the waters in the Gulf of Fonseca.

185 Rosenne, Ibid.

186 Land, Island and Maritime Frontier Dispute (Application of Nicaragua to Intervene) Case, supra at 117.

187 J Macdonald and J Hughes,‖ Intervention before the International Court of Justice,‖ 5 RADIC (1993).p.4.

188 ICJ Reports, (1990) p. 92. As far as the interpretation of Articles 62 and 63 of the Statute is concerned, this case represents a watershed as it was the first successful case of third state intervention.

157 Honduras contended that the court has jurisdiction to delimit the waters in the Gulf of Fonseca and to delimit the territorial sea, economic zone and Continental Shelf of the parties outside the Gulf. El Salvador argued in contrario, denying that the court had jurisdiction to delimit those maritime areas. Nicaragua brought an application pursuant to Article 62 of the Statute and Article 81 of the Rules to intervene since it feels that it (ie Nicaragua) had an interest of a legal nature which might be adversely affected by the Chambers decision on the status of the waters of the Gulf.

With respect to the first question (ie status of an intervener), the Chamber stated 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.¹⁸⁹ For to hold otherwise would indeed breach the fundamental principle of consensual jurisdiction, as the purpose of intervention is not to enable third states tack on a new case to become a party and to have its own claims adjudicated. Flowing from the above postulation, it is to be noted too that Article 59 of the Statute of the ICJ is inapplicable as to make a judgment of the court binding on the third state intervener. This is so irrespective of the fact that the third state intervener has given undertaking to subject itself to the binding effect of the court‘s decision. In the words of the Chamber during the merit stage of The Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador V. Honduras):¹⁹⁰

189 Ibid. at p. 134.

190 ICJ Reports, (1992) p. 276; Macdonald and Hughes, op. cit. p. 9.

A non party whether or not permitted to intervene cannot by its own unilateral act place itself in the position of a party, and claim to be entitled to rely on the judgment against the original parties … the Chamber therefore concludes that this judgment is not res judicata for Nicaragua.

158 While the above reasoning might seem apt given the fact that the Chamber‘s decision was based on the procedure under Article 62 of the Statute and the court‘s veneration of the consensual element, it is our view that such a rule need not apply if the application for intervention was brought pursuant to Article 63 of the Statute. It is hereby contended that in such application, every state party to the interpretation of the treaty should be bound by the court‘s interpretation of the treaty provisions. Especially is this so when the essence of intervention is to afford a third party an interest which may be affected by a decision of the court.

The second question concerns the jurisdictional link between the original parties and the intervener. It seeks to determine whether the establishment of such a link pursuant to Article 36 (1) and (2) of the Statute is a condition precedent to the court being seised or do Articles 62 and 63 of the Statute suffice in conferring jurisdiction? This issue it is to be noted had long plagued the concept of intervention. The substance of the age-old debate was as follows:

The proponents of the view that a jurisdictional link is required premised their argument upon Article 36(1) and (2) of the Statute and emphasized the consensual element among states before the court can assume jurisdiction over states. Consequently to permit a state to intervene against one or both of the original parties would offend the principle of consent which forms the basis of the court‘s jurisdiction.

Opponents of Article 36(1) and (2) of the Statute as being a condition precedent to seising of jurisdiction were however of the view that Article 62 of the Statute was of itself sufficient to create a basis for jurisdiction, since all state parties to the Statute of the court are ipso facto subject to the jurisdiction established by the Statute, including the jurisdiction to grant permission to intervene. It was argued further that Article 36(1) of the Statute which states that the jurisdiction of the court ―comprises all … matters specially provided for in Treaties

159 or Conventions in force‖ was creative of jurisdiction since the Statute of the court was itself a Treaty.

Finally, they contended that Article 62 of the Statute did not impose a requirement for a jurisdictional link, and that the requirement in Article 81 (2) (c) of the Rules of the Court which provides that would-be interveners shall set out ―any basis of jurisdiction which is claimed to exist‖ should not be interpreted as modifying Article 62 of the Statute. Rather, the import of the rule was aimed at third states providing the court with all available information concerning application to intervene.¹⁹¹ Against the backdrop of the above polemics as to the actual scope of Article 62 of the Statute vis-à-vis the principle of consent as enshrined in Article 36(1) and (2) of the Statute, the court vide its Chamber in The Case Concerning the Land, Island and Maritime Dispute (El Salvador V. Honduras)¹⁹² laid to rest the uncertainties as to the jurisdictional basis for third state intervention. While conceding to the consensual element of states as a basis for the court‘s jurisdiction, it threw more light on the scope of Article 62 and 63 when it held thus:¹⁹³

191 Macdonald and Hughes, Ibid. p. 20.

192 Supra.

193 Ibid.

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.

160 Flowing from the above passage, it thus follows that the existence of a valid jurisdictional link between the would-be intervener and the parties is not a requirement for the success of the application. Rather the procedure for intervention is to ensure that a state with possibly affected interests may be permitted to intervene even though there is no jurisdictional link.¹⁹⁴ The onus of proof in intervention cases lie on the applicant to demonstrate what it asserts.¹⁹⁵ However, this burden of proof is just prima facie burden. The practice of intervention is closely defined and carefully circumscribed in terms of the protection of a states interest of a legal nature which may be affected by a decision in an existing case. A‘ priori, it cannot be used as a substitute for contentious proceedings.