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Third-Party Intervention Before the International Court of Justice

  • C. M. Chinkin (a1)

Extract

Until lately, the procedure of third-party intervention before the International Court of Justice provided for by Articles 62 and 63 of the Statute of the Court had been underutilized; as a result, there was scant judicial authority and comparatively little academic discussion on its use and limitations. This situation has now dramatically changed, as three recent cases before the Court have involved claims of third-party intervention: that between Tunisia and Libya, where Malta made the request to intervene; that between Libya and Malta, where Italy was the requesting state; and, most recently, the case between Nicaragua and the United States, where El Salvador made a declaration of intervention.

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1 The only cases involving intervention were: S.S. Wimbledon (UK, Fr., Italy & Japan v. Ger.), 1923 PCIJ, ser. A, No. 1 (Judgment of June 28) (Poland intervening); Haya de la Torre (Colom. v. Peru), 1951 ICJ Rep. 71 (Judgment of June 13) (Cuba intervening); Nuclear Tests (Austl. v. Fr.; NZ v. Fr.), Application to Intervene, 1973 ICJ Rep. 320 (Orders of July 12) (Fiji requesting intervention). There have been dicta in other cases that will be referred to where appropriate.

2 Most general books on international law make reference to intervention, but more detailed studies have tended not to be in English. See, e.g., Hudson, M., The Permanent Court of International Justice, 1920–1942, at 419 (1943); Rosenne, S., The Law and Practice of the International Court (1965) [hereinafter cited as Law and Practice]; and more recently, Rosenne, S., Procedure in the International Court 17378 (1983) [hereinafter cited as Procedure]; Miller, , Intervention in Proceedings before the International Court of Justice, in 2 The Future of the International Court of Justice 550 (Gross, L. ed. 1976). Several articles have appeared since the recent cases before the ICJ and will be referred to below.

3 Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, 1981 ICJ Rep. 3 (Judgment of Apr. 14) [hereinafter cited as Malta].

4 Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, 1984 ICJ Rep. 3 (Judgment of Mar. 21) [hereinafter cited as Italy].

5 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Declaration of Intervention, 1984 ICJ Rep. 215 (Order of Oct. 4) [hereinafter cited as El Salvador].

6 Malta, 1981 ICJ Rep. at 14 (citing drafting history of Article 62).

7 Article 62 states: “1 . 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. 2. It shall be for the Court to decide upon this request.”

8 Article 63 states:

  1. 1.

    1. Whenever the construction of a convention to which states other than those concerned in the case are parties is in question, the Registrar shall notify all such states forthwith.

  2. 2.

    2. Every state so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it.

9 See submissions of P. Lalive, counsel for Malta, in oral argument, ICJ Doc. CR 81/2 (Mar. 19).

10 Article 59 states: “The decision of the Court has no binding force except between the parties and in respect of that particular case.”

11 A point made by Elias in the chapter on intervention in T. Elias, The International Court of Justice and Some Contemporary Problems 89 (1983). Elias is only one of several judges of the ICJ (former or present) to have written on intervention. In Völkerrecht als Rechtsordnung Internationale Gerichtsbarkeit—Menschenrechte: Festschrift für Hermann Mosler (1983), there are also articles by Judges Jiménez de Aréchaga and Oda, both of whom wrote extensive opinions in the cases discussed. See also Jessup, , Intervention in the International Court, 75 AJIL 903 (1981).

18 See, e.g., Malta, 1981 ICJ Rep. at 14, 24 (Oda, J., sep. op.); Italy, 1984 ICJ Rep. at 27.

13 Article 81, paragraph 2 states that the application shall set out:

  • (a)

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

  • (b)

    (b) the precise object of the intervention;

  • (c)

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

International Court of Justice, Rules of Court Adopted on April 14, 1978, reprinted in 73 AJIL 748, 774 (1979).

14 In the Order on the Declaration of Intervention of El Salvador, 1984 ICJ Rep. 215, the Court held by 14 to 1 that the Declaration was inadmissible. Miller states that declarations of intervention are treated “as though they were applications for permission to intervene.” Miller, supra note 2, at 552.

15 1923 PCIJ, ser. A, No. 1.

16 1951 ICJ Rep. at 76. This characterization has been much relied on in subsequent cases.

17 S. Rosenne, Law and Practice, supra note 2, at 422. Other incidental proceedings include indication of interim measures and revision of judgments.

18 Nuclear Tests (Austl. v. Fr.; NZ v. Fr.), Application to Intervene, 1974 ICJ Rep. 530, 535 (Orders of Dec. 20).

19 See, e.g., Separate Opinion of Judge Morozov in Malta, 1981 ICJ Rep. at 22; and Separate Individual Declarations by Judges Onyeama and Jiménez de Aréchaga in Nuclear Tests, 1974 ICJ Rep. at 532, 533.

20 Convention for the Pacific Settlement of International Disputes, July 29, 1899, 32 Stat. 1779, TS No. 392; as revised Oct. 18, 1907, 36 Stat. 2199, TS No. 536.

21 Ann. VI to the United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, reprinted in United Nations, The Law of The SEA: United Nations Convention on the Law of the Sea (UN Pub. Sales No. E.83.V.5).

22 Article 37 states:

Member States and institutions of the Community may intervene in cases before the Court.

The same right shall be open to any other person establishing an interest in the result of any case submitted to the Court, save in cases between Member States, between institutions of the Community and between Member States and institutions of the Community.

Submissions made in an application to intervene shall be limited to supporting the submissions of one of the parties.

Protocol on the Statute of the Court of Justice of the European Economic Community, Apr. 17, 1957, 298 UNTS 147.

23 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 222. The Rules of the European Court of Human Rights were revised effective from Jan. 1, 1983. Rule 37(2) states:

The President may in the interest of the proper administration of justice invite or grant leave to any contracting State which is not a Party to the proceedings to submit written comments within a time limit and on issues which he shall specify. He may also extend such an invitation or grant such leave to any person other than the applicant.

5 ECHR 312 (1983).

24 Article 25 is an optional clause that only applies where the state party has specifically accepted the right of individual petition to the Commission. Cases can go on to the European Court of Human Rights in accordance with Articles 44–48 of the European Convention.

25 Malta, 1981 ICJ Rep. at 12.

26 See, e.g., references to policy considerations by Judges Oda and Schwebel throughout their opinions in the three recent cases.

27 For example:

On the one hand, there is the private suitor’s interests in having his own lawsuit subject to no one else’s direction or meddling. On the other hand, however, is the great public interest... of having a disposition at a single time of as much of the controversy to as many of the parties as is fairly possible consistent with due process.

Atlantis Dev. Corp. v. United States, 379 F.2d 818, 824 (5th Cir. 1967) (Brown, J.). And, “[there are] two potentially conflicting goals: to achieve judicial economies of scale by resolving related issues in a single lawsuit, and to prevent the single lawsuit from becoming fruitlessly complex or unending.” Smuck v. Hobson, 408 F.2d 175, 179 (D.C. Cir. 1969) (Bazelon, C.J.).

28 See arguments of P. Lalive in Malta, ICJ Doc. CR 81/3, at 7 (Mar. 20), where he refers to the work of a consultant, Professor Habscheid, who concludes that there is a general tendency in modern procedural law to widen and liberalize intervention. Lalive cites in particular U.S. and French practice in support of this proposition.

29 See, e.g., Italy, 1984 ICJ Rep. at 35 (Mbaye, J., sep. op.); and id. at 90 (Oda, J., dissenting

30 The others are negotiation, inquiry, mediation, conciliation, arbitration and resort to regional arrangements.

31 Judge Schwebel’s term, Malta, 1981 ICJ Rep. at 35. He feels that, to some extent, an intervenor always has an inherent advantage in that the parties have set out their cases. Other disadvantages will emerge in the course of the discussion.

32 See T. Elias, supra note 11, at 91–92.

33 The Court in the Libya/Malta case stated that Article 59 adequately protected Italy’s rights. Italy, 1984 ICJ Rep. at 26. See also id. at 157 (Jennings, J., dissenting); id. at 103 (Oda, J., dissenting); and id. at 87 (Sette-Camara, J., dissenting).

34 See North Sea Continental Shelf Cases (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3, para. 71 (Judgment of Feb. 20).

35 E.g., Article I of the Special Agreement between Tunisia and Libya, signed June 10, 1977, requested that the Court take account of “recent trends admitted at the Third Conference on the Law of the Sea.” Quoted in Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 ICJ Rep. 18, 21 (Judgment of Feb. 24).

36 The use of the words “states . . . are parties” in Article 63 indicates that it must refer to a convention in force. See note 8 supra.

37 Malta, 1981 ICJ Rep. at 19.

38 Statute of the International Court of Justice, Art. 34(1).

39 1978 Rules of Court, supra note 13, Art. 81(1) and Art. 82(1).

40 Miller proposes a role for third persons as amici curiae, but he acknowledges that it would require a change of attitude by the Court. Miller, supra note 2, at 560.

41 Barcelona Traction, Light & Power Co., Ltd. (Belg. v. Spain) (New Application), 1970 ICJ Rep. 4 (Judgment of Feb. 5).

42 Italy, 1984 ICJ Rep. at 31.

43 This is Starke’s definition of the purpose of Article 62. Starke, , Locus Standi of a Third State to Intervene in Contentious Proceedings before the International Court of Justice , 58 Austl. L J. 356 (1984).

44 Malta, 1981 ICJ Rep. at 9.

45 See, e.g., id. at 35 (Schwebel, J., sep. op.); and id. at 32 (Oda, J., sep. op.).

46 Italy, 1984 ICJ Rep. at 10, 12. Judge Sette-Camara felt that the Court should not link interest and purpose in this way, for “interest of a legal nature” is demanded by the article itself and should not be confused with the extra requirement of “precise purpose.” Id. at 81 (Sette-Camara, J., dissenting).

47 The Italian request was rejected by a majority of 11 to 5, while the Maltese request was rejected unanimously; thus, in the Italian case intervention came closer to being accepted.

48 Malta, 1981 ICJ Rep. at 19. For a discussion of the purpose of the Maltese request, see Jessup, supra note 11; and for a comparison between the two cases, see Starke, supra note 43.

49 Italy argued that there was no dispute between itself and the original parties; it merely wished to safeguard its rights. This position was ironically supported by Libya, which argued that as there had been no dispute, there could be no intervention. The Court held that it was for itself to determine whether the request in fact raised a new dispute that the Court would be required to resolve. Article 62 requires only a subjective apprehension that interests may be affected; their protection should be possible without ruling the request impossible as raising a new dispute. This illustrates how difficult the Court has made it for a state to satisfy it with a precise purpose without being deemed to have said too much.

50 See Reisman, W.M., Nullity and Revision 329 (1970).

51 Fiji requested to be permitted to intervene in the case between Australia and France on May 16, 1973, 1974 ICJ Rep. at 255, and in the New Zealand case on May 18, 1973, 1974 ICJ Rep. at 459.

52 T. Elias, supra note 11, at 94.

53 Case of the monetary gold removed from Rome in 1943 (Italy v. Fr., UK, U.S.), Preliminary Question, 1954 ICJ Rep. 19, 32 (Judgment of June 15).

54 Trial of Pakistani Prisoners of War (Pak. v. India), Interim Protection, 1973 ICJ Rep. 328 (Order of July 13).

55 Italy, 1984 ICJ Rep. at 25.

56 1970 ICJ Rep. at 80 (Fitzmaurice, J., sep. op.), where he said that “the intervention of the Canadian Government under Article 62 . . . should have been sought, in order that its views might be made known.”

57 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392, 431, para. 88 (Judgment of Nov. 26) [hereinafter cited as Nicaragua Jurisdiction].

58 Elias comments that the Court “fell just short of inviting Albania to intervene in [that] case.” He was referring, of course, to Monetary Gold. T. Elias, supra note 11, at 89. A state cannot be compelled to intervene by the Court nor, by analogy with Corfu Channel, by the Security Council. Corfu Channel case (UK v. Alb.), Preliminary Objection, 1948 ICJ Rep. 15, 28 (Judgment of Mar. 25).

59 Under Article 82 of the 1978 Rules of Court, supra note 13, a declaration under Article 63 shall include the case and convention to which it relates, particulars of the basis of being a party to the convention, the relevant provisions, the desired construction and any supporting documents.

60 1951 ICJ Rep. at 74.

61 The Court held that Cuba’s Declaration of Intervention was “devoted almost entirely to a discussion of the questions which the Judgment of November 20th, 1950, had already decided with the authority of res judicata.” Id. at 77. The Judgment referred to was that in the Asylum case (Colom./Peru), 1950 ICJ Rep. 266 (Judgment of Nov. 20).

62 1980 ECR 3333, 3393. The purpose of the European Parliament’s intervention was to protect procedural requirements, for the Council had failed to consult it, as required by the Treaty of Rome. On intervention before the European Court, see 1 D. Valentine, The Court of Justice of the European Communities 57–60 (1965).

63 El Salvador, 1984 ICJ Rep. at 216.

64 Case of Certain Norwegian Loans (Fr. v. Nor.), 1957 ICJ REP. 9, 63–64 (Judgment of July 6) (Lauterpacht, J., sep. op.). This interpretation necessitates allowing for the possibility of intervention under Article 63 whenever jurisdiction is claimed under Article 36(2) of the Statute, or under another treaty. Given the complexities of Article 36(2), this appears to conform with the purpose of Article 63.

65 1954 ICJ Rep. 32.

66 Rosenne argues that since the facts of Monetary Gold are unique, the case can have little precedential value, and that it is still an open question whether the Court should refuse jurisdiction where the third party’s interests are not the very subject matter of the claim. S. Rosenne, Law and Practice, supra note 2, at 431. Judge Schwebel stated that it was likely that the requisite legal interest under Article 62 would be too remote at the jurisdictional phase. El Salvador, 1984 ICJ Rep. at 235. In that case, the Court rejected the argument that it should not take jurisdiction in the absence of other involved Central American states as parties or interveners. Nicaragua Jurisdiction, 1984 ICJ Rep. at 430–31.

67 See, e.g., Malta, 1981 ICJ Rep. at 23 (Oda, J., sep. op.); id. at 35 (Schwebel, J., sep. op.).

68 South West Africa (Eth. v. S. Afr.; Liberia v. S. Afr.), Second Phase, 1966 ICJ Rep. 6 (Judgment of July 18).

69 Id. at 34.

70 No distinction is drawn under Article 63 between “conduct” provisions and “special interest” provisions, as was drawn in the South West Africa Cases. Id. at 29. It seems that any provision of a convention should activate Article 63. Thus, if there had been any entity capable of bringing contentious proceedings, Ethiopia and Liberia would have been able to make a declaration of intervention under Article 63. Reisman argues that the distinction between “conduct” and “special interest,” if applied generally, would attenuate the dicta in Mavrommatis that any party to a multilateral treaty has an interest in its integrity and proper application (Mavrommatis Palestine Concessions, 1924 PCIJ, ser. A, No. 2, at 10–12), and would merge the grounds for intervention under Articles 62 and 63. W. M. Reisman, supra note 50, at 333. There is no indication of this development in subsequent cases.

71 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Request for Provisional Measures, 1984 ICJ Rep. 169, 190, 196 (Order of May 10) (Schwebel J., dissenting) [hereinafter cited as Nicaragua Provisional]; El Salvador, 1984 ICJ Rep. at 223 (Schwebel, J., dissenting).

72 1966 ICJ Rep. 6.

73 1970 ICJ Rep. 4.

74 Id. at 32.

75 Under Article 36 of the Statute, the Court has jurisdiction over all “legal disputes”; whereas under Article 62, a state may intervene where it considers that it has “an interest of a legal nature.”

76 Under Article 53 of the Vienna Convention on the Law of Treaties, UNTS Regis. No. 18,232, UN Doc. A/CONF.39/27 (1969), “a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted.” Although there is much debate as to which norms constitute peremptory norms, those on the prohibition of the use of force, and on selfdefense are obvious contenders. See [1966] 2 Y.B. Int’l L. Comm’n 247–48, UN Doc. A/CN.4/SER.A/1966/Add.1.

77 Malta, 1981 ICJ Rep. at 19.

78 A view supported by the North Sea Continental Shelf Cases. See 1969 ICJ Rep. at 41–42.

79 It alleged violation of the UN Charter, the Charter of the Organization of American States, the Convention on Rights and Duties of States, 49 Stat. 3097, TS No. 881, 165 LNTS 19, and the Convention concerning the Duties and Rights of States in the Event of Civil Strife, 46 Stat. 2749, TS No. 814, 134 LNTS 45.

80 Nicaragua Provisional, 1984 ICJ Rep. at 196. “These fundamental rights of a State to live in peace, free of the threat or use of force . . . are rights of every State, erga omnes.”

81 “The United States has, in the specific term of Barcelona Traction, ‘a legal interest’ in the performance by Nicaragua of its fundamental international obligations; . . . ‘even if it is not immediately and directly affected’ by the breaches of international law.” Id. at 198 (Schwebel, J., dissenting).

82 U.S. Dep’t of State, Statement on the U.S. Withdrawal from the Proceedings Initiated by Nicaragua in the International Court of Justice, Jan. 18, 1985, reprinted in 24 ILM 246 (1985). See Franck, Icy Day at the ICJ, 79 AJIL 379 (1985).

83 In the request for intervention by Malta, the Court commented that Malta wished to present its views, “not objectively as a kind of amicus curiae,” which perhaps implies this would have been allowed; but there is no provision in the Statute or Rules allowing for such a procedure. Malta, 1981 ICJ Rep. at 18.

84 Article 34(2) states that the Court may seek information from public international organizations, and that the latter may submit it on their own initiative. This provision was added in 1945. On its use and that of the relevant rule, Article 69 of the Rules, see S. Rosenne, Procedure, supra note 2, at 142.

85 Italy, 1984 ICJ Rep. at 31.

86 Id. at 14. This is part of the requirement that the intervention must relate to the same subject matter as the contentious case; “it follows that a declaration filed as an intervention only acquires that character, in law, if it actually relates to the subject–matter of the pending proceedings.” Haya de la Torre, 1951 ICJ Rep. at 76. The Court was discussing intervention under Article 63, but this principle seems more applicable to intervention under Article 62. However, if the Court deems the subject matter of the requested intervention a fresh dispute upon which it will have to adjudicate, it will refuse the request. See supra note 49.

87 Malta, 1981 ICJ Rep. at 10.

88 Fisheries case (UK v. Nor.), 1951 ICJ Rep. 116, 138 (Judgment of Dec. 18).

89 1954 ICJ Rep. 32.

90 S. Rosenne, Law and Practice, supra note 2, at 431.

91 This article was added in 1978. For discussion, see S. Rosenne, Procedure, supra note 2, at 108.

92 1973 ICJ Rep. at 333.

93 See Art. 53 of the 1978 Rules, supra note 13.

94 Italy, 1984 ICJ Rep. at 33. “[I]t does not answer the call of judicial propriety if the would be intervener is asked to plead, blindfold . . .” (Nagendra Singh, J., Sep. op.).

95 See M. Hudson, supra note 2, at 423, cited in Miller, supra note 2, at 567 n.43.

96 E.g., in United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (Judgment of May 24), the pleadings were made public, but this led to no requests for or declarations of intervention.

97 S. Rosenne, Law and Practice, supra note 2, at 358.

98 Id. Rosenne cites the case Société Commerciale de Belgique, 1939 PCIJ, ser. A/B, No. 78, at 173, to support this proposition.

99 Nuclear Tests (Austl. v. Fr.; NZ v. Fr.), 1974 ICJ Rep. 253, 457 (Judgments of Dec. 20). Separate declarations were entered by Judges Gros, Onyeama, Dillard and Waldock (jointly), and Jiménez de Aréchaga. Judge Gros thought the document filed by Fiji did not constitute a request to intervene, 1974 ICJ Rep. at 531; Judges Onyeama and Jiménez de Aréchaga thought the lack of jurisdictional link fatal, id. at 532 and 533; Judges Dillard and Waldock thought there was sufficient jurisdictional basis for intervention and that Fiji should have had a hearing, id. at 532.

100 El Salvador, 1984 ICJ Rep. 215. This contrasts unfavorably with the Court’s previous practice; Cuba was granted a hearing in the Haya de la Torre case, as was Poland in the S.S. Wimbledon.

101 Article 81(1) specifies this for Article 62, and Article 82(1) for Article 63. 1978 Rules of Court, supra note 13.

102 S. Rosenne, Procedure, supra note 2, at 177.

109 Italy, 1984 ICJ Rep. at 8.

104 See arguments of P. Lalive, counsel for Malta, ICJ Doc. CR 81/3, at 12 (Mar. 20).

105 Article 41 of the Statute says the Court “shall have the power to indicate . . . any provisional measures.”

106 S. Rosenne, Procedure, supra note 2, at 176 n.2.

107 Nicaragua Provisional, 1984 ICJ Rep. at 195 (Schwebel, J., dissenting).

108 1973 ICJ Rep. at 334.

109 W. M. Reisman, supra note 50, at 136.

110 1951 ICJ Rep. at 77.

111 W. M. Reisman, supra note 50, at 333. Costa Rica v. Nicaragua, Central American Court of Justice, 11 AJIL 181 (1917). President Cleveland had given in 1888 an arbitral award confirming the validity of the 1858 Treaty. W. M. Reisman, supra, at 334.

112 Italy, 1984 ICJ Rep. 3, separate opinions by Judges Nagendra Singh, Mbaye and Jiménez de Aréchaga, and dissenting opinions by Judges Sette-Camara, Oda, Ago, Schwebel and Jennings.

113 Notably, Judges Mbaye (Italy), Oda (Malta and Italy) and Schwebel (Italy). Views differ strongly among the various judges in the cases of the Fiji request, the Malta request and the Italy request as to whether a jurisdictional basis is required and when. Certain judges, e.g., Judges Morozov and Jiménez de Aréchaga, are adamant that there must be a basis for jurisdiction between a state requesting intervention and the original parties; others are more flexible.

114 Judge Jiménez de Aréchaga identified a number of types of intervention: principal, adjudicative, supporting and competing. Italy, 1984 ICJ Rep. at 67.

115 1951 ICJ Rep. at 77.

116 See supra note 99.

117 Lord Phillimore’s proposal was that if a “State considers] that a dispute submitted to the Court affects its interests, it may request to be allowed to intervene; the Court shall grant permission if it thinks fit.” Permanent Court of International Justice, Advisory Committee of Jurists, Procès–Verbaux and Report, June 16–July 12, 1920, at 593 (1920).

118 Malta, 1981 ICJ Rep. at 12.

119 Fitzmaurice, , The Law and Procedure of the International Court of Justice, 1951–4: Questions of Jurisdiction, Competence and Procedure , 34 Brit. Y.B. Int’l L. 1, 126 (1958). Fitzmaurice pointed out that intervention under Article 62 is not as of right and that therefore the Court must exercise a “quasi-discretionary” power under it, or else there would be no difference between Articles 62 and 63.

120 Malta, 1981 ICJ Rep. at 6.

121 Id.

122 I.e., to be furnished with copies of the pleadings and annexed documents (at last!) and to submit in writing observations on the subject matter of the intervention.

123 Malta, 1981 ICJ Rep. at 27 (Oda, J., sep. op.).

124 Italy, 1984 ICJ Rep. at 148–49 (Jennings, J., dissenting).

125 T. Elias, supra note 11, at 95. Elias stresses the fact that the idea of allowing intervention without being a party was raised at the time of the 1972 revision of the Rules but was abandoned. He admits, however, that the “question remains as to precisely how far Malta should be deemed to have agreed to be bound in the light of Article 59 . . . and of the limited scope of the stated object of intervention.” Id. The precise relationship between Articles 59 and 62 remains indistinct. If Article 59 is read literally, Article 62 is redundant; but “the slightest acquaintance with the jurisprudence of the Court shows that Article 59 does by no manner of means exclude the force of positive precedent. So the idea that Article 59 is protective of third States’ interests in this sense at least is illusory.” Italy, 1984 ICJ Rep. at 157 (Jennings, J., dissenting).

126 1922 PCIJ, ser. D, No. 2, at 96. The Court in 1922 was divided over whether intervention was only available to those states which had accepted the compulsory jurisdiction of the Court. See Malta, 1981 ICJ Rep. at 14.

127 Italy, 1984 ICJ Rep. at 55. Judge Jiménez de Aréchaga made the same point in the Nuclear Tests cases.

128 S. Rosenne, Procedure, supra note 2, at 100.

129 1973 ICJ Rep. at 333.

130 Article 83 of the Rules, supra note 13, makes these principles applicable to both Article 62 and Article 63.

131 Article 84(2) of the Rules, id.

132 The decision not to give El Salvador a hearing was made 9–6; the majority gave no reason for this failure other than that jurisdiction must first be decided between the original parties. Presumably, the Court felt that the need to determine jurisdiction and admissibility derogated from the duty to give priority to a decision on the admissibility of a declaration of intervention under Article 84(1) of the Rules. If so, reasons would have improved the quality of the judgment. It is noticeable, but hardly surprising, that El Salvador did not follow the suggestion that it make a further declaration of intervention.

133 Rosenne comments that Article 84(1) is a new rule and discusses it in the context of the Fiji request. S. Rosenne, Procedure, supra note 2, at 180.

134 El Salvador, 1984 ICJ Rep. at 218.

135 1951 ICJ Rep. at 77.

136 S.S. Wimbledon, 1923 PCIJ, ser. A, No. 1, at 11. “It also states that it does not intend to ask the German Government for any special damages for the prejudice caused. . . .”

137 This conclusion is suggested most strongly by the recent cases (Tunisia/Libya; Libya/Malta) where the original dispute was framed in bilateral terms and most clearly represented adjudication as an essentially bilateral process. It is harder to fit the El Salvador claim into this characterization, as the parties had conflicting interests and had not defined the dispute between them, and the nature of the dispute was clearly plurilateral.

138 Although, as has been discussed, certain judges in their separate and dissenting opinions have favored a broader based concept of intervention and have expressed concern that the procedure might become a dead letter. See especially the opinions of Judges Oda, Schwebel, Jennings, Sette-Camara and Mbaye in the respective cases.

139 Franck, , Word Made Law , 69 AJIL 612 (1975); Lellouche, , The Nuclear Tests Cases , 16 Harv. Int’l L.J. 614 (1975); McWhinney, , International Law-Making and the Judicial Process: The World Court and the French Nuclear Tests Case , 3 Syracuse J. Int’l L. & Com. 9 (1975).

140 See, e.g., Franck, supra note 82, at 381.

141 Nicaragua Jurisdiction, 1984 ICJ Rep. 392. For discussion of the decision, see Briggs, Nicaragua v. United States: Jurisdiction and Admissibility, 79 AJIL 373 (1985); and Franck, supra note 82.

* The author wishes to thank Professor James Crawford for his many helpful comments on a first draft of this article, which was presented to the International Law Interest Group at the 1985 AULSA Conference in August 1985.

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