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[p.530]
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 48 and 62 of the Statute of the Court,
Having regard to the application of the Government of Fiji dated 16 May 1973
for permission to intervene in these proceedings,
Having regard to the Order of the Court in this case dated 12 July 1973,
Makes the following Order:
1. Whereas by a Judgment of 20 December 1974 in this case the Court finds
that the claim of Australia no longer has any object and that the Court is
therefore not called upon to give a decision thereon,
2. Whereas in consequence there will no longer be any proceedings before the
Court to which the Application for permission to intervene could relate,[p
531]
The Court,
Unanimously,
Finds that the Application of the Government of Fiji for permission to
intervene in the proceedings instituted by Australia against France lapses,
and that no further action thereon is called for on the part of the Court.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this twentieth day of December, one thousand nine
hundred and seventy-four, in four copies, one of which will be deposited in
the archives of the Court, and the others transmitted to the Government of
Fiji, the Government of Australia, and the French Government, respectively.
(Signed) Manfred Lachs,
President.
(Signed) S. Aquarone,
Registrar.
Judge Gros makes the following declaration :
Je vote la presente ordonnance pour des motifs differents de ceux qu'elle
indique. Le document presente par le Gouvernement fldjien le 16 mai 1973 ne
pouvait à aucun titre être considere comme une demande d'intervention au
sens de l'article 62 du Statut et cette demande aurait dû être rejetee dès
l'origine.
Judge Onyeama makes the following declaration:
I have voted in favour of the Order, although, in my view, the reason given
for it, namely that the claim of the applicant State no longer has any
object and in consequence there will no longer be any proceedings before the
Court in which intervention would be possible, carries an implication with
which I am unable to agree. The implication is that if the claim had had an
object and the Court had been called upon to give a decision thereon, there
would have been a possibility of intervention in this case.
Fiji was not, at any time material to these proceedings, a party to the
General Act of 1928 nor to the optional clause of the Statute of the Court
on which the applicant State sought to base the Court's jurisdiction, nor [p
532] has she invoked any basis of jurisdiction vis-a-vis France in her
request to intervene.
The Court should have decided upon this request itself as required by
Article 62 of the Statute of the Court and should, in my view, have rejected
it on the ground that the condition of reciprocity of an obligation to
accept the Court's jurisdiction was wholly absent between Fiji and France.
Judges Dillard and Sir Humphrey Waldock make the following joint
declaration:
The Order states that, the Court having found that the claim of Australia
no longer has any object, the Court is not called upon to give a decision
thereon and consequently there will no longer be any proceedings to which
intervention can relate. The Application of the Government of Fiji has,
according to the Order, therefore lapsed.
The conclusion flows logically from the premise. As Members of the Court,
bound by its decision in the Nuclear Tests case, we are therefore impelled
to vote in favour of the Order. It is clearly not possible for the
Government of Fiji to intervene in proceedings, when, by the Judgment of the
Court, no proceedings exist.
Having said this we feel it incumbent on us to state that we do not agree
with the premise which furnishes the ground on which the Court's conclusion
rests. As indicated in detail in the dissenting opinion of ourselves and
some of our colleagues, we do not agree that the Court should have decided
that no further action is called for on the claim of Australia against
France.
If, in the case of Australia v. France, the views of the minority had
prevailed, the issue of Fiji's intervention would have required examination
in order to determine whether or not there existed a sufficient
jurisdictional link between Fiji and France to justify the former's
intervention under Article 62 of the Court's Statute. Furthermore, in our
view an opportunity should have been given to Fiji to be heard on the issue
before this determination was made.
It follows from what we have said above that, while we feel impelled to vote
for the Order of the Court, our reasons for doing so differ in certain
respects from those advanced by the Court.
Judge Jimenez de Arechaga makes the following declaration:
I have concurred in voting for the dismissal of Fiji's application to
intervene under Article 62 of the Statute for a reason other than that [533]
on which the Order is based: because Fiji, which is not a party to the 1928
Act and to the optional clause system, has failed to invoke in its
applica-tion any title of jurisdiction in relation to France.
In my view, in order to be entitled to intervene under Article 62 of the
Statute for the purpose of asserting a right as against the respondent a
State must be in a position in which it could itself bring the respondent
before the Court.
When Article 62 of the Statute was drafted, its authors were proceeding on
the assumption that the intervening State would have its own title of
jurisdiction in relation to the respondent, since the draft Statute then
provided for general compulsory jurisdiction. When that system was replaced
by the optional clause, Article 62 remained untouched, but it must be
interpreted and applied as still subject to that condition. Otherwise,
unreasonable consequences would result, in conflict with basic principles
such as those of the equality of parties before the Court and the strict
reciprocity of rights and obligations among the States which accept its
jurisdiction. A State which cannot be brought before the Court as a
respondent by another State can neither become an applicant vis-à-vis that
State nor an intervener against that same State, entitled to make
independent submissions in support of an interest of its own. In my view the
provision in Article 69, paragraph 2, of the Rules of Court requiring "a
statement of law and of fact justifying intervention" must in circumstances
like those in the present case be interpreted as including the requirement
of establishing an independent jurisdictional link between intervener and
respondent.
Judge ad hoc Sir Garfield Barwick makes the following declaration:
I have voted in favour of the Order made in respect of the Application by
Fiji to intervene in these proceedings not because of the Order made by the
Court in the cases Australia v. France and New Zealand v. France but solely
for the reasons expressed by Judge Jimenez de Arechaga and Judge Onyeama in
their declarations concerning the Fiji Order, with which I entirely agree.
(Initialled) M.L.
(Initialled) S.A. |
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