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[p. 5]
The Court,
Composed as above,
After deliberation,
Delivers the following Judgment:
1. By a letter of 25 November 1978, received in the Registry of the Court on
1 December 1978, the Minister of Foreign Affairs of the Republic of Tunisia
notified the Court of a Special Agreement in the Arabic language signed at
Tunis on 10 June 1977 between the Republic of Tunisia and the Socialist
People's Libyan Arab Jamahiriya, providing for the submission to the Court
of a dispute concerning the delimitation of the continental shelf between
those two States; a certified copy of the Special Agreement was enclosed
with the letter, together with a translation into French. Pursuant to
Article 40, paragraph 2, of the Statute, and to Article 39, paragraph 1, of
the Rules of Court, a certified copy of the notification and of the Special
Agreement was forthwith transmitted to the Government of the Socialist
People's Libyan Arab Jamahiriya. By a letter of 14 February 1979, received
in the Registry of the Court on 19 February 1979, the Secretary of Foreign
Affairs of the Socialist People's Libyan Arab Jamahiriya made a like
notification to the Court, enclosing a further certified copy of the Special
Agreement in the Arabic language, together with a translation into English.
2. Pursuant to Article 40, paragraph 3, of the Statute and to Article 42 of
the Rules of Court, copies of the notifications and Special Agreement were
transmitted to the Secretary-General of the United Nations, the Members of
the United Nations and other States entitled to appear before the Court.
3. Since the Court did not include upon the bench a judge of Tunisian or of
Libyan nationality, each of the Parties proceeded to exercise the right
conferred by Article 31, paragraph 3, of the Statute to choose a judge ad
hoc to sit in the case. On 14 February 1979 the Libyan Arab Jamahiriya
designated Mr. Eduardo Jimenez de Arechaga, and the Parties were informed on
25 April 1979, pursuant to Article 35, paragraph 3, of the Rules of Court
that there was no objection to this appointment; on 11 December 1979 Tunisia
designated Mr. Jens Evensen, and on 7 February 1980 the Parties were
informed that there was no objection to this appointment.
4. By a letter of 18 August 1980, the Government of the Republic of Malta,
in reliance on Article 53, paragraph 1, of the Rules of Court asked to be
furnished with copies of the pleadings in the case, which at that date
comprised the Memorials filed on 30 May 1980, and documents annexed thereto.
By letters dated as hereafter indicated, the Governments of the following
States had previously submitted similar requests: the United States of
America (12 June 1980); Canada (13 June 1980); Netherlands (18 June 1980);
Argentina (23 June 1980); and subsequently, on 8 October 1980, the
Government of Venezuela also made a similar request. By letters of 24
November 1980, after the views of the Parties had been sought, and objection
had been raised by one of them, the Registrar informed the Government of
Malta and those other Governments that the President of the Court had
decided that the pleadings in the case and documents annexed would not, for
the present, be made available to States not parties to the case. [p 6]
5. The Counter-Memorials of the Parties to the case, as contemplated by the
Special Agreement of 10 June 1977, and in accordance with an Order made by
the President of the Court on 3 June 1980, were required to be filed within
the following time-limits: for the Counter-Memorial of the Republic of
Tunisia, 1 December 1980; for the Counter-Memorial of the Libyan Arab
Jamahiriya, 2 February 1981. The Special Agreement, however, included a
provision for a possible further exchange of pleadings, so that even when
the Counter-Memorials of the Parties had been filed, the date of the
closure of the written proceedings, within the meaning of Article 81,
paragraph 1, of the Rules of Court, would remain still to be finally
determined. The Counter-Memorials were each, in turn, filed within the
appropriate time-limits, that of the Libyan Arab Jamahiriya being received
in the Registry on 2 February 1981.
6. By a letter from the Prime Minister of the Republic of Malta dated 28
January 1981 and received in the Registry of the Court on 30 January 1981,
the Government of Malta, invoking Article 62 of the Statute, submitted to
the Court a request for permission to intervene in the case. In accordance
with Article 83, paragraph 1, of the Rules of Court, certified copies of the
Application by Malta for permission to intervene were forthwith communicated
to Tunisia and the Libyan Arab Jamahiriya, the Parties to the case, and
copies were also transmitted, pursuant to paragraph 2 of that Article, to
the Secretary-General of the United Nations, the Members of the United
Nations and other States entitled to appear before the Court.
7. On 26 February 1981, within the time-limit fixed for that purpose by the
President of the Court as provided by Article 83, paragraph 1, of the Rules
of Court, the Government of Tunisia and the Government of the Libyan Arab
Jamahiriya submitted written observations on the Application of Malta for
permission to intervene, in which they set out their respective reasons for
contending that the Application did not satisfy the conditions laid down by
the Statute and Rules of Court. The Parties and the Government of Malta were
therefore notified by letters of 3 March 1981 that the Court would hold
public hearings, in accordance with Article 84, paragraph 2, of the Rules of
Court, to hear the observations of Malta, the State seeking to intervene,
and those of the Parties to the case, on the question whether the
Application of Malta for permission to intervene should be granted.
8. By a letter of 2 March 1981, received in the Registry of the Court on 4
March 1981, the Government of Malta notified the Court that in reliance on
Article 31, paragraph 3, of the Statute of the Court it nominated a judge ad
hoc "for the purpose of the intervention proceedings", and raised questions
related to the participation of the two judges ad hoc designated by the
Parties to the case, suggesting that Tunisia and the Libyan Arab Jamahiriya
should be considered as "in the same interest" in the proceedings on the
application for permission to intervene. The Court, sitting without the
participation of the judges ad hoc, decided on 7 March 1981 that, on their
face, the matters which were the subject of the letter of 2 March 1981 did
not at that time fall within the ambit of Article 31 of the Statute of the
Court; that a State which seeks to intervene under Article 62 of the Statute
has no other right than to submit a request to be permitted to intervene,
and has yet to establish any status in relation to the case; that pending
consideration of and decision on a request for permission to intervene, the
conditions under which Article 31 of the Statute may become applicable do
not exist; and therefore that the letter of 2 March 1981 being in the
circumstances [p 7] premature, the matters to which it referred could not be
taken under consideration by the Court at that stage of the proceedings. By
a letter from the Registrar dated 7 March 1981 the Agent of Malta was
informed of that decision.
9. On 19,20,21 and 23 March 1981 public hearings were held, in the course of
which the Court heard oral argument, on the question whether the permission
to intervene under Article 62 of the Statute requested by Malta should be
granted, by the following representatives:
For the Republic of Malta: Dr. Edgar Mizzi,
Professor Pierre Lalive,
Mr. M. E. Bathurst, C.M.G., C.B.E., Q.C.
Mr. E. Lauterpacht, Q.C.;
For the Socialist People's
Libyan Arab Jamahiriya: H.E. Mr. Kamel H. El Maghur,
Sir Francis A. Vallat, K.C.M.G., Q.C,
Professor Antonio Malintoppi,
Mr. Keith Highet;
For the Republic of Tunisia: H.E. Mr. Slim Benghazi,
Professor Sadok Belaid,
Professor R. Y. Jennings, Q.C.
10. No formal submissions were addressed to the Court by any of the three
States participating in the proceedings; the principal contentions of these
States on the questions raised in the proceedings are however set out below
(paragraphs 12-16).
*
11. The Application of the Republic of Malta (hereinafter referred to as
"Malta") submitting a request to the Court for permission to intervene is
based on Article 62 of the Statute of the Court which provides:
" 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."
Such an application under Article 62 is required by Article 81, paragraph 2,
of the Rules of Court to specify the case to which it relates and to 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".
Malta's Application to be permitted to intervene in the present case set out
its contentions with respect to the matters specified in each of those three
subparagraphs, and those contentions were further explained and de-[p
8]veloped in the oral argument addressed to the Court by its
representatives at the hearings. The Republic of Tunisia (hereinafter
referred to as "Tunisia") and the Socialist People's Libyan Arab Jamahiriya
(hereinafter referred to as "Libya"), in written observations on the
Application of Malta, gave their respective reasons for maintaining that
Malta's request for permission to intervene did not satisfy the conditions
set out in the Statute and Rules of Court; and their views were further
explained and developed in the oral argument of their representatives at the
hearings. The positions taken in the written and oral proceedings on these
matters by the three States concerned may be summarized as follows.
*
12. Malta maintains that no condition is prescribed by the Statute as
necessary to found a request for permission to intervene under Article 62
other than that the State seeking to intervene should "consider that it has
an interest of a legal nature which may be affected by the decision" to be
given in a case. It points to the absence of any mention in Article 62 of
the existence of a basis of jurisdiction between a State seeking to
intervene and the parties to a case as a condition of intervention. While
noting and complying with the provision in Article 81, paragraph 2 (c), of
the Rules requiring the Application to set out any basis of jurisdiction
claimed to exist as between the applicant State and the parties to the case,
Malta stresses that this provision did not figure in any earlier version of
the Rules. That provision of the Rules, Malta contends, cannot have created
a new substantive condition of the grant of permission to intervene. The
Court's rule-making power, it argues, cannot be employed for the purpose of
introducing a requirement not expressed, and not to be found by any process
of necessary implication, in Article 62 of the Statute, which it considers
must prevail. Malta also calls attention to its declaration in paragraph 22
of its Application that it is not its object to obtain from the Court by way
of the intervention any form of ruling or decision concerning Malta's own
continental shelf boundaries with either or both of the parties to this
case. Counsel for Malta emphasized that it did not seek to be admitted as a
veritable "party" to the proceedings having a status on a footing of
complete equality with the Parties to the case, but was seeking the
procedural position of a "participant" by way of intervention. Since the
intervention for which it has applied would not seek any substantive or
operative decision against either Party, Malta further maintains that "no
question of jurisdiction in the strict sense of the word could arise" as
between Malta and the Parties to the Tunisia/Libya case.
13. The interest of a legal nature which Malta claims to possess in the
Tunisia/Libya case and considers may be affected by the decision is the
interest that, according to Malta, it has in the legal principles and rules
for determining the delimitation of the boundaries of its continental shelf.
Malta observes that "the continental shelf rights of States are derived from
law, as are also the principles and rules on the basis of which such areas
are [p 9] to be defined and delimited", and it contends that it has a
"specific and unique interest" in the present proceedings which arises out
of its "involvement in the facts" of the Tunisia/Libya case. It is involved
in the facts of that case, it argues, by virtue of its geographical location
vis-à-vis the two Parties to the case. The effect of this would be, it
urges, that any pronouncement made by the Court in the context of the
dispute between Tunisia and Libya may "prove relevant in one way or another
... to Malta's own legal situation" and thus "inescapably . . . affect this
situation". It would do so, according to Malta, by reason of the process of
"the identification and assessment of local or regional factors", required
for the delimitation of the boundary between Libya and Tunisia. In Malta's
view there can be little doubt that the Tunisia/Libya case, "considered in
legal and physical terms, meshes closely with the continental shelf
interests of the Republic of Malta". Stressing that the Statute requires
only that the interest be capable of being "affected", without any
demonstration of its being impaired or compromised being necessary, Counsel
for Malta pointed to a number of ways in which the interest of Malta would
be so affected. Amongst examples Counsel gave were the impact on a possible
equidistance line that might be drawn between Malta and the North African
mainland of the adoption in the delimitation between Libya and Tunisia of
any special baselines along their respective coasts; or the identification,
in such delimitation, of any particular geographical or other factors found
to be relevant either as constituting "special circumstances" or as a matter
of the application of equitable principles. Malta, moreover, contends that
its interests will necessarily be affected by the Court's decision in the
case notwithstanding the fact that, as stated in Article 59 of the Statute,"
the decision of the Court has no binding force except between the parties
and in respect of that particular case". It considers that its interests
might be affected not only by the formal operative part of the Court's
decision in the case, but by the "effective decision contained in the
Court's reasoning", which is bound to contain substantive elements that in
content must inevitably have, or at any rate are likely to have, an impact
upon subsequent relations between Malta and Libya and Tunisia.
14. The precise object of Malta's intervention in the Tunisia/Libya case is
stated in the Application to be to enable Malta to submit its views to the
Court on the issues raised in the pending case before the Court has given
its decision in that case. At the hearing, Counsel for Malta explained that
what Malta seeks is "to make its submissions on those issues in the case
which subsequent examination of the pleadings might indicate could affect
Malta's interests". Malta however stresses that it is not its object "by
way, or in the course, of intervention" in the Tunisia/Libya case, "to
obtain any form of ruling or decision from the Court concerning its
continental shelf boundaries with either or both of those countries". It
draws attention to the fact that the very purpose of that case, as defined
in the Special Agreement of 10 June 1977, is to secure a statement from the
Court of what the appropriate law is, not to formulate claims on which the
Parties ask the Court to reach judgment. It argues that there is accordingly
no justification [p 10] for suggesting that "the object of Malta in seeking
to intervene must be more exact, more precise, more operative in formal
terms" than the object of the Parties. Nor would it be correct, the Agent of
Malta emphasized, to conclude from Malta's insistence that it does not seek
any ruling or decision of the Court against either Tunisia or Libya, that
Malta does not accept to be bound by the decision of the Court. Pointing out
that the extent to which an intervening State is bound by the decisions of
the Court is independent of acceptance or non-acceptance by that State, he
declared that by its Application to intervene Malta submits itself to all
the consequences and effects of intervention, whatever these may be. He
further maintained that the pertinence of Malta's request for intervention
could in no way be affected by the possibility that Malta might appear
before the Court as a principal party in parallel proceedings against one or
both of the Parties to the present case, since any decision given in such
proceedings would be bound to be rendered considerably later than that in
the current Tunisia/Libya case.
*
15. Libya, in its observations, has opposed the application of Malta on the
ground that the jurisdiction of the Court is governed by Article 36 of the
Statute, and contends that Malta does not possess any jurisdictional link
with both Parties within the meaning of that Article. It argues that Article
62 of the Statute does not confer an independent title of jurisdiction upon
a State seeking to intervene, that an intervention cannot be admitted unless
the Court is satisfied that there exists a valid jurisdictional link between
the parties and the intervening State, and that Article 81, paragraph 2
(c), of the Rules of Court is simply an accurate interpretation of the
meaning and scope of Article 62 of the Statute in respect of jurisdiction.
Libya moreover contends that, in any event, for intervention to be possible
under Article 62 the legal interest invoked must be so related legally to
the subject-matter of the proceedings that, whatever the decision of the
Court, the legal interest will be affected, and that for the purposes of
Article 62, the "decision" of the Court referred to in the English text of
that Article does not include the consideranda of the judgment. Libya argues
that Malta does not in fact have any interest of a legal nature which might
be affected by the decision, inasmuch as the Special Agreement does not
contemplate a delimitation of the continental shelf by the Court, but by the
Parties, nor does it contemplate any delimitation of any continental shelf
areas other than those appertaining to Libya and Tunisia. Any interest of
Malta in respect of the delimitation of its continental shelf would, in
Libya's view, be safeguarded by the Court in delivering its judgment, and
would be adequately protected by Article 59 of the Statute. Furthermore,
having regard to Malta's indication of the object of its intended
intervention, Libya also questions whether what Malta is seeking is an
intervention at all within the meaning of Article 62 of the Statute, since
it considers that the purpose of intervention in contentious proceedings
must be more than to [p 11] "submit views". To comply with Article 81,
paragraph 2 (b), of the Rules of Court, a State seeking to intervene must,
Libya maintains, go further than a mere assertion; it must state the precise
object, the purpose of its intended action, and not merely the means by
which it intends to achieve that object. If Malta is merely preoccupied with
the principles and rules of law which may hereafter be stated in the Court's
judgment, this does not constitute a proper or sufficient justification for
intervention under Article 62.
16. Tunisia, for its part, considers that for Malta to be able to intervene
and be heard before judgment is rendered, it would be necessary for the
Government of Malta to prove the existence of a basis of jurisdiction
between it and the Parties to the case. Article 62 of the Statute must,
according to Tunisia, be read subject to the provisions of Article 36,
governing the jurisdiction of the Court; and, in its view, from the
overriding principle of international law that jurisdiction is based upon
consent it follows that a basis of jurisdiction must always be a requirement
of intervention, at least where the State seeking to intervene wishes in any
degree to be a party. Referring to the English text of Article 62, Tunisia
further maintains that for the purposes of that Article the interest
asserted must be such as to be affected by the "decision" in the case, that
is to say the operative clause, constituting res judicata between the
parties, and not the reasoning in the judgment. It maintains that the
Special Agreement would not permit the Court to adjudicate upon the extent
of the continental shelf boundaries of any State other than the Parties
thereto; therefore, while conceding that Malta, in common with other States,
has an interest of a legal nature that might be "touched", but not
"affected", by the decision in the case, Tunisia argues that Malta's
interest is not sufficient to justify intervention under Article 62. The
effect, in Tunisia's view, of a decision by the Court on the principles and
rules of international law concerning continental shelf boundaries cannot of
itself be a good reason for intervention; all factors taken into account in
such a decision are relative, and not necessarily applicable to other
delimitations even in the same geographical region, since the relevant
circumstances must vary in accordance with the differing geographical
relationships. Tunisia also observes that, on the basis of the object of the
intervention as explained by Malta, the Application amounted to a request to
intervene in a case in order to argue points of general law, simply because
the resulting judgment might form an important precedent as a subsidiary
means for the ascertainment of the law; and this Tunisia considers to be
inadmissible, the more so if Malta, as seemed to be its intention, does not
propose to be bound in any way by the precedent. Tunisia, indeed, suggests
that the avowed object of Malta has in fact already been achieved by the
hearings on the question of intervention, in view of the explanations Malta
has there been able to give of its preoccupations. [p 12]
*
17. The Court will now examine the legal problems involved in Malta's
request for permission to intervene in the present continental shelf case
between Tunisia and Libya. Certain objections have been raised to Malta's
request by each of the Parties in relation to all three matters specified in
Article 81, paragraph 2, of the Court's Rules. One objection is that Malta
has not succeeded in showing the existence of "an interest of a legal nature
which may be affected by the decision in the case" within the meaning of
Article 62 of the Statute. Another is that the object of Malta's request, as
declared and defined in its Application, falls altogether outside the scope
of the form of intervention for which Article 62 provides. The objection has
further been made that, even if not expressly mentioned in Article 62, a
link of jurisdiction between the States seeking to intervene and the parties
to the case has necessarily, under Article 36 of the Statute, to be
considered an essential condition of the grant of permission to intervene,
more especially when the case is submitted to the Court by special
agreement; and that Malta has not established any such jurisdictional link
in the present instance. The Court observes that under paragraph 2 of
Article 62 it is for the Court itself to decide upon any request for
permission to intervene under that Article. The Court, at the same time,
emphasizes that it does not consider paragraph 2 to confer upon it any
general discretion to accept or reject a request for permission to intervene
for reasons simply of policy. On the contrary, in the view of the Court the
task entrusted to it by that paragraph is to determine the admissibility or
otherwise of the request by reference to the relevant provisions of the
Statute.
18. In the present case, if any one of the objections raised by the Parties
should be found by the Court to be justified, it will clearly not be open to
the Court to give any further consideration to the request. As the questions
of the interest of a legal nature which Malta alleges may be affected by the
Court's decision in the present case and of the object of Malta's
intervention are closely connected, the Court will examine these two
questions together.
*
19. The interest of a legal nature invoked by Malta does not relate to any
legal interest of its own directly in issue as between Tunisia and Libya in
the present proceedings or as between itself and either one of those
countries. It concerns rather the potential implications of reasons which
the Court may give in its decision in the present case on matters in issue
as between Tunisia and Libya with respect to the delimitation of their
continental shelves for a subsequent delimitation of Malta's own
continental shelf. In particular, as the Court has previously indicated,
Malta says that its legal interests may be affected by the Court's
appreciation of certain geographical and geomorphological features in the
area and by its assessment of their legal relevance and value as factors in
the delimitation of areas of the continental shelf which, it says, are
adjacent to its own continental shelf, as well as by any pronouncements by
the Court on, for [p 13] example, the application of equitable principles or
special circumstances in regard to that area. The object of its
intervention, Malta explains, would be to enable it to submit its views on
issues raised in the present case of the kind just mentioned before the
Court has given its decision in the case. At the same time, however, Malta
is at pains in paragraph 22 of its Application to stress that:
"it is not Malta's object, by way, or in the course, of intervention in the
Libya/ Tunisia case, to obtain any form of ruling or decision from the Court
concerning its continental shelf boundaries with either or both of those
countries".
Moreover, to leave no doubt whatever on this point, Malta again underlines
in paragraph 24 of its Application that the intervention for which it
requests permission "would not seek any substantive or operative decision
against either party".
20. The limited object of the intervention which Malta seeks has already
been referred to by the Court. Malta has explained that, in applying for
permission to intervene in the Tunisia/Libya proceedings it "is not seeking
to appear as a plaintiff or claimant against either of those States, or to
assert any specific right against either of them as such". "Malta", its
Counsel said, "is not seeking to take sides" in the Tunisia/Libya case, or
"to obtain from the Court a decision on the continental shelf boundary"
between itself and Tunisia and Libya. Such a determination, Malta
recognized, would not be the proper object either of the present
Application or of the intervention if it were allowed.
21. The limit thus placed by the Government of Malta on the scope of the
intervention which it seeks, and the very character of that intervention,
raise both the question whether its Application is really based on an
interest of a legal nature which may be affected by the decision in the
Tunisia/Libya case, and the question whether the form of intervention for
which Article 62 of the Statute provides includes the intervention that is
the object of Malta's Application. The Statute of the Court provides for two
different forms of intervention: one under Article 62 which allows a State
to request permission to intervene if it should consider itself to have "an
interest of a legal nature which may be affected by the decision in the
case"; and the other under Article 63 which gives parties to a convention
the construction of which is in question in a case "the right to intervene
in the proceedings". The two Articles with their two forms of intervention,
the records show, were taken into the present Statute directly from the
corresponding Articles 62 and 63 of the Statute of the Permanent Court of
International Justice and with only minor changes of language.
22. Article 62 had no forerunner in State practice in 1920, being
introduced into the draft Statute by the Advisory Committee of Jurists in
the course of their consideration of what is now Article 63. The Committee
had before it, inter alia, a plan for the Court previously worked out by a
Conference of Five Neutral Powers, paragraph 1 of Article 48 of which [p 14]
read : "Whenever a dispute submitted to the Court affects the interests of a
third State, the latter may intervene in the case." When the Advisory
Committee began its consideration of Article 63 of the Statute, the
suggestion was made that it should be completed by the addition of Article
48 of the Five Powers plan. The point having been made that "the interests
affected must be legitimate interests", the President of the Advisory
Committee, Baron Descamps, proposed:
"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. It will be for the Court to decide upon
this request."
This formula was adopted by the Committee, subject to revision, and it was
decided to make the new provision a separate article inserted immediately
before Article 63. In the French text — the text established by the
Committee — it was sought to make the phrase "un interet d'ordre juridique
le concernant est en cause" more precise by revising it so as to read "un
interet d'ordre juridique est pour lui en cause". In the English text, the
corresponding phrase "interest of a legal nature which may be affected by
the decision in the case" was at the same time completed by adding the words
"as a third party". What was intended to be the precise significance of that
addition is not stated in the Committee's records. However, when the words
"as a third party" added to the English text are read together with the
revised wording of the French text "est pour lui en cause", it becomes clear
that the interest of a legal nature to which Article 62 was intended to
refer was an interest which is in issue in the proceedings and consequently
one that "may be affected by the decision in the case".
23. When the Permanent Court began, in 1922, to consider its rules of
procedure for applying Article 62 of the Statute, it became apparent that
different views were held as to the object and form of the intervention
allowed under that Article, and also as to the need for a basis of
jurisdiction vis-à-vis the parties to the case. Some Members of the
Permanent Court took the view that only an interest of a legal nature in the
actual subject of the dispute itself would justify the intervention under
Article 62 ; others considered that it would be enough for the State seeking
to intervene to show that its interests might be affected by the position
adopted by the Court in the particular case. Similarly, while some Members
of the Court regarded the existence of a link of jurisdiction with the
parties to the case as a further necessary condition for intervention under
Article 62, others thought that it would be enough simply to establish the
existence of an interest of a legal nature which might be affected by the
Court's decision in the case. The outcome of the discussion was that it was
agreed not to try to resolve in the Rules of Court the various questions
which had been raised, but to leave them to be decided as and when they
occurred in practice and in the light of the circumstances of each
particular case.
24. In the event, the Permanent Court was confronted with intervention under
Article 62 in only one case, the S.S. "Wimbledon" case, in which [p 15]
Poland's application to intervene had been framed on the basis of that
Article. In the application, however, Poland had referred to its
participation in the Treaty of Versailles, the provisions of which
regarding the Kiel Canal were the subject-matter of the case; and at the
suggestion of one of the Parties to the case it supplemented the basis of
its application by also invoking Article 63, before the Court came to
pronounce upon it. As to the Parties to the case, they did not raise any
objection to Poland's intervention. The Permanent Court decided to uphold
the application simply on the basis of Article 63 and found it unnecessary
to consider whether the intervention might equally have been "justified by
an interest of a legal nature, within the meaning of Article 62 of the
Statute" (P. C.I.J., Series A, No. 1, pp. 11-14). Thus when the Permanent
Court revised its Rules it had not had any real experience of the operation
of Article 62 in practice; and in consequence its further debates on the
Rules do not throw a great deal of new light on the problems involved in the
application of that Article. For present purposes it is enough to say that
in these debates the differences of view as to the precise object or objects
of intervention contemplated by Article 62 and as to the need for a
jurisdictional link with the parties to the case still remained to be
decided. At the same time, it seems to have been assumed that a State
permitted to intervene under Article 62 would become a "party" to the case.
That was only to be expected as the English text of Article 62 then spoke
specifically of permission to intervene "as a third party".
25. When the present Statute was drafted, a change was made in the English
text of paragraph 1 of Article 62: the words "as a third party", which had
no corresponding expression in the French text, were omitted. This was done
in the Committee of Jurists responsible for preparing the new Statute on the
basis of a proposal from its drafting committee which considered the phrase
to be "misleading". The Rapporteur of the Committee at the same time
underlined in his report that no change had been found necessary in the
French text and that the elimination of the phrase "as a third party" from
the English text was not intended to "change the sense thereof".
26. The present Court was first led to address itself to the problems of
intervention in 1951 in the context of Article 63 of the Statute when Cuba,
as a party to the Havana Convention of 1928 on Asylum, filed a declaration
of intervention in the Haya de la Torre case (/. C.J. Reports 1951, pp. 74,
76-77). In that case the Court stressed that, under Article 63,
intervention by a party to a convention the construction of which is in
issue in the proceedings is a matter of right. At the same time, however, it
also underlined that the right to intervene under Article 63 is confined to
the point of interpretation which is in issue in the proceedings, and does
not extend to general intervention in the case. Intervention under Article
62 of the Statute was brought briefly, if very indirectly, to the Court's
notice three years later in the case concerning Monetary Gold Removed from
Rome in 1943 (I.C.J. Reports 1954, p. 32). Subsequently, these and other
problems involved in the application of Articles 62 and 63 of the Statute
were [p 16] studied within the Court and its Committee for the Revision of
the Rules of Court.
27. In 1974 one of the fundamental questions raised in connection with
Article 62 — the question whether or not a link of jurisdiction with the
parties to the case is necessary - was directly raised when Fiji applied for
permission to intervene in the Nuclear Tests cases. These cases having
become moot, the court did not itself make any pronouncement on that aspect
of Fiji's application for permission to intervene under Article 62. A number
of Judges, on the other hand, drew attention to it in declarations appended
to the Court's Orders in the matter (I. C.J. Reports 1974, pp. 530, 535)
emphasizing its importance. Afterwards, on the completion in 1978 of the
revision of the Rules, the Court introduced, in Article 81, paragraph 2,
thereof, a new subparagraph (c) requiring an application for permission to
intervene under Article 62 of the Statute to specify: "any basis of
jurisdiction which is claimed to exist as between the State applying to
intervene and the parties to the case". This it did in order to ensure that,
when the question did arise in a concrete case, it would be in possession of
all the elements which might be necessary for its decision. At the same time
the Court left any question with which it might in future be confronted in
regard to intervention to be decided on the basis of the Statute and in the
light of the particular circumstances of each case. Accordingly, it is on
the basis of the applicable provisions of the Statute and in the light of
the particular circumstances of the present case that the Court will now
examine whether the interest of a legal nature in the case invoked by Malta
and the stated object of Malta's intervention are such as to justify the
granting of its request for permission to intervene.
*
28. The Court has earlier in this Judgment (paragraphs 13, 14, 19 and 20)
set out the contentions by which Malta seeks to justify its request for
permission to intervene in the present case between Tunisia and Libya. As
appears from that summary, the interest of a legal nature which Malta
invokes consists essentially in its possible concern with any findings of
the Court, identifying and assessing the relevance of local or regional,
geographical or geomorphological factors in the delimitation of the Libya/
Tunisia continental shelf, and with any pronouncements made by the Court
regarding, for example, the significance of special circumstances or the
application of equitable principles in that delimitation. Any such findings
or pronouncements, in Malta's view, are certain or likely to affect or have
repercussions upon Malta's own rights and legal interests in the continental
shelf, whenever there may be similarities or analogies between their basic
factors and those of the rights and legal interests on which the Court has
pronounced. Malta points to a number of specific geographical and
geomorphological features as possible subjects of findings or
pronouncements of the Court which might have repercussions on Malta's legal
interest in regard to the continental shelf; and it maintains that, given
the [p 17] particular geography of the area, Malta would have a continental
shelf boundary with both Libya and Tunisia and that the boundaries between
all three States would converge at a single, as yet undetermined, point.
29. Thus, what Malta fears is that in its decision in the present case the
reasoning of the Court regarding particular geographical and
geomorphological factors, special circumstances or the application of
equitable principles may afterwards have a prejudicial effect on Malta's
own legal interests in future settlement of its own continental shelf
boundaries with Libya and Tunisia. At the hearing Malta underlined that it
is only elements in the Tunisia/Libya case of such a kind that are the
object of its request for permission to intervene, and also that it is not
concerned with the choice of the particular line to delimit the boundary as
between those two countries. It further underlined that it is not concerned
with the laying down of general principles by the Court as between Libya and
Tunisia.
30. In order to determine the precise implications of Malta's request for
permission to intervene, the Court must have regard to the description which
has been given by Malta of the nature of its legal interest and the object
of its intervention. The Court notes that Malta does not base its request
for permission to intervene simply on an interest in the Court's
pronouncements in the case regarding the applicable general principles and
rules of international law. In its Application and at the hearing Malta has
laid heavy emphasis on the fact that it bases its request on quite specific
elements in the Tunisia/Libya case. It described these elements in its
Application only in general terms, and then gave the following as examples
of what it has in mind:
"(1) the question of the particular factors, equitable or other, which
determine the character of boundaries in the seabed bordered by Libya,
Tunisia and Malta;
(2) the question of whether equidistance as a principle or method of
delimitation gives effect to such factors in accordance with international
law;
(3) the effect of any geomorphic features of the relevant seabed areas that
separate Malta from the African coasts;
(4) the question of applicable base-lines, including bay-closing lines;
(5) the question of whether there is a concept of coastline proportionality
which a State may validly invoke as a method of delimiting its seabed
boundaries with other States".
These specific elements on which Malta bases its request were further
particularized at the hearing, when its Counsel spelt them out for the Court
point by point. Coast by coast, bay by bay, island by island, sea area by
sea area, Counsel for Malta indicated local and regional factors which it
claimed as having possible relevance in determining the continental shelf [p
18] boundaries of the States concerned. He also referred to various drilling
concessions that have been granted in the region, and to correspondence
between Malta and Libya and Malta and Tunisia regarding their respective
continental shelf claims. He further referred to the existence of a Special
Agreement between Libya and Malta for the purpose of bringing their
differences concerning their continental shelf claims before the Court,
which now remains to be notified to the Court.
31. Malta thus makes it plain that the legal interest which it alleges and
on the basis of which it seeks to justify its request for permission to
intervene would concern matters which are, or may be, directly in issue
between the Parties in the Tunisia/Libya case. These matters, as Malta
presents them, are part of the very subject-matter of the present case. Yet,
Malta has at the same time made it plain that it is not the object of its
intervention to submit its own interest in those matters for decision as
between itself and Libya or as between itself and Tunisia now in that case.
In its Application and at the hearing, as has already been stated, Malta
underlined that it is not its object "by way, or in the course, of
intervention in the Libya/Tunisia case, to obtain any form of ruling or
decision from the Court concerning its continental shelf boundaries with
either or both of those countries". However, even while thus disavowing any
intention of putting its own rights in issue in the present case, Malta
emphasized that its "object and interest in intervening does relate to the
general area in which those two States also claim continental shelf rights".
In short, Malta's position in its argument before the Court assumes existing
rights of Malta to areas of continental shelf opposable to the claims of the
two States Parties to the dispute before the Court. In effect, therefore,
Malta in its request is asking the Court to give a decision in the case
between Tunisia and Libya which in some measure would prejudge the merits of
Malta's own claims against Tunisia and against Libya in its separate
disputes with each of those States.
32. Thus, the intervention for which Malta seeks permission from the Court
would allow Malta to submit arguments to the Court upon concrete issues
forming an essential part of the case between Tunisia and Libya. Malta would
moreover do so, not objectively as a kind of amicus curiae, but as a closely
interested participant in the proceedings intent upon seeing those issues
resolved in the manner most favourable to Malta. Nor would it be the object
of Malta's intervention at the same time to submit its own legal interest in
the subject-matter of the case for decision as between itself and Libya or
as between itself and Tunisia in the present proceedings. Malta, in short,
seeks permission to enter into the proceedings in the case but to do so
without assuming the obligations of a party to the case within the meaning
of the Statute, and in particular of Article 59 under which the decision in
the case would hereafter be binding upon Malta in its relations with Libya
and Tunisia. If in the present Application Malta were seeking permission to
submit its own legal interest in the subject-matter of the case for decision
by the Court, and to become a party to the case, another [p 19] question
would clearly call for the Court's immediate consideration. That is the
question mentioned in the Nuclear Tests cases, whether a link of
jurisdiction with the parties to the case is a necessary condition of a
grant of permission to intervene under Article 62 of the Statute. Indeed, it
was suggested by Libya and Tunisia that the limit placed by Malta on the
object of its intervention is to be explained by its desire to avoid, or
minimize, the question of a need for a jurisdictional link with the
Parties.
33. Clearly, as Malta asserts, it has a certain interest in the Court's
treatment of the physical factors and legal considerations relevant to the
delimitation of the continental shelf boundaries of States within the
central Mediterranean region that is somewhat more specific and direct than
that of States outside that region. Even so, Malta's interest is of the same
kind as the interests of other States within the region. But what Malta has
to show in order to obtain permission to intervene under Article 62 of the
Statute is an interest of a legal nature which may be affected by the
Court's decision in the present case between Tunisia and Libya. This case
has been brought before the Court by a Special Agreement between those two
countries under which the Court is requested to decide what are the
principles and rules of international law which may be applied and to
indicate the practical way to apply them in the delimitation of the areas
of continental shelf appertaining to Libya and Tunisia. That is the case
before the Court and it is one in which Tunisia and Libya put in issue their
claims with respect to the matters covered by the Special Agreement.
Accordingly, having regard to the terms of Article 59 of the Statute, the
Court's decision in the case will certainly be binding upon Tunisia and
Libya with respect to those matters. Malta now requests permission to
intervene on the assumption that it has an interest of a legal nature that
is in issue in the proceedings in that case. It seeks permission to submit
its views with respect to the applicable principles and rules of
international law, not merely from the point of view of their operation as
between Libya and Tunisia but also of their operation as between those
States and Malta itself. Yet Malta attaches to its request an express
reservation that its intervention is not to have the effect of putting in
issue its own claims with regard to those same matters vis-à-vis Libya and
Tunisia. This being so, the very character of the intervention for which
Malta seeks permission shows, in the view of the Court, that the interest of
a legal nature invoked by Malta cannot be considered to be one "which may be
affected by the decision in the case" within the meaning of Article 62 of
the Statute.
34. Likewise, it does not appear to the Court that the direct yet limited
form of participation in the subject-matter of the proceedings for which
Malta here seeks permission could properly be admitted as falling within the
terms of the intervention for which Article 62 of the Statute provides. What
Malta in effect seeks to secure by its application is the opportunity to
argue in the present case in favour of a decision in which the Court would
refrain from adopting and applying particular criteria that it might
otherwise consider appropriate for the delimitation of the continental
shelf of Libya and Tunisia. In short, it seeks an opportunity to submit
arguments to
[p 20] the Court with possibly prejudicial effects on the interests either
of Libya or of Tunisia in their mutual relations with one another. To allow
such a form of "intervention" would, in the particular circumstances of the
present case, also leave the Parties quite uncertain as to whether and how
far they should consider their own separate legal interests vis-à-vis Malta
as in effect constituting part of the subject-matter of the present case. A
State seeking to intervene under Article 62 of the Statute is, in the view
of the Court, clearly not entitled to place the parties to the case in such
a position, and this is the more so since it would not be submitting its own
claims to decision by the Court nor be exposing itself to counterclaims.
35. Malta has voiced the preoccupations which it has regarding possible
implications for its own interests of the Court's findings and
pronouncements on particular elements in the present case between Tunisia
and Libya. The Court understands those preoccupations; even so, for the
reasons which have been set out in this Judgment, the request for
permission to intervene is not one to which, under Article 62 of the
Statute, the Court may accede. The Court at the same time thinks it proper
to state that it has necessarily and at all times to be sensible of the
limits of the jurisdiction conferred upon it by its Statute and by the
parties to the case before it. The findings at which it arrives and the
reasoning by which it reaches those findings in the case between Tunisia and
Libya will therefore inevitably be directed exclusively to the matters
submitted to the Court in the Special Agreement concluded between those
States and on which its jurisdiction in the present case is based. It
follows that no conclusions or inferences may legitimately be drawn from
those findings or that reasoning with respect to rights or claims of other
States not parties to the case.
36. Having reached the conclusion, for the reasons set out in the present
Judgment, that Malta's request for permission to intervene is in any event
not one to which it can accede, the Court finds it unnecessary to decide in
the present case the question whether the existence of a valid link of
jurisdiction with the parties to the case is an essential condition for the
granting of permission to intervene under Article 62 of the Statute.
**
37. For these reasons,
The Court,
Unanimously,
Finds that the Application of the Republic of Malta, filed in the Registry
of the Court on 30 January 1981, for permission to intervene in the
proceedings under Article 62 of the Statute of the Court, cannot be
granted. [p 21]
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this fourteenth day of April, one thousand nine
hundred and eighty-one, in four copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of the
Republic of Tunisia, the Government of the Socialist People's Libyan Arab
Jamahiriya, and the Government of the Republic of Malta, respectively.
(Signed) Humphrey Waldock,
President.
(Signed) Santiago Torres Bernárdez,
Registrar.
Judges Morozov, Oda and Schwebel append separate opinions to the Judgment of
the Court.
(Initialled) H.W.
(Initialled) S.T.B.
[p 22]
Separate opinion of judge Morozov
1. I voted for the operative part of the decision because from my point of
view no application to intervene under Article 62 of the Statute can be
entertained by the Court unless jurisdictional links (within the meaning of
Articles 36 and 37 of the Statute) exist between the State presenting the
request to intervene and the States parties to the case.
2. Article 62, which is included in the Statute under the title "Chapter
III. Procedure", does not contain any provisions on the basis of which it
can be considered as an Article which nullifies any provisions relating to
the competence of the Court standing in Chapter II of the Statute under the
title "Competence of the Court". Moreover, paragraph 2 of Article 62, which
establishes the right of the Court "to decide upon this request", cannot be
considered as some lex specialis which provides exemption from general
jurisdictional requirements and leaves the Court free to entertain the
intervention irrespective of the cornerstone provisions of Articles 36 and
37 of the Statute. All that this paragraph really provides is that the
Court, subject to the exigencies of its Statute, including Articles 36 and
37, may grant or refuse the request. Thus even if jurisdictional links
exist, the Court may still, for a valid reason, refuse the request. However,
if they do not exist, the Court has no choice but to refuse.
3. This is the first time in the administration of international justice
and, more particularly, in the experience of the International Court of
Justice, that the Court has been obliged to take a decision on a request
invoking Article 62. Therefore the impact of this decision unavoidably goes
far beyond the specific request of Malta and may in future be considered as
a precedent which, from my point of view, could be used for justification of
a practice which is not consistent with the Statute and might, moreover,
undermine the guiding principle of the consent of States.
4. As is well known, Malta recognized that there were no jurisdictional
links between it and Libya and Tunisia. Libya and Tunisia objected to the
jurisdiction of the Court and stated that only Article 36 of the Statute
could be considered as a basis for the Court's jurisdiction.
5. I would finally like to recall paragraph 6 of Article 36 of the Statute,
which provides: "In the event of a dispute as to whether the Court has
jurisdiction, the matter shall be settled by the decision of the Court."
From my point of view, whenever a request is submitted for permission to
intervene under Article 62 of the Statute, the question of jurisdiction
must, as a matter of principle, be considered first, particularly when, as
in the current instance, an objection to jurisdiction has been presented by
both of the original Parties (Libya and Tunisia).
(Signed) Platon Morozov.
[p23]
Sepatrate opinion of judge Oda
1. I have voted in favour of the Judgment in deference to the competence
conferred upon the Court by the second paragraph of Article 62 of its
Statute. That paragraph expressly entrusts the Court with the authority to
decide upon a request for permission to intervene. In exercising that
authority, the Court may take into account considerations of judicial
propriety. Furthermore, I believe that the legal interests of Malta, which
it has sought to protect by intervention in the Tunisia/Libya case, will be
sufficiently safeguarded by the Court, the more so because Malta has by its
argument brought its understandable preoccupations to the Court's
attention. In my view, however, the Court's reasoning places too
restrictive a construction upon the first paragraph of Article 62. I regret
that the institution of intervention is afforded so narrow a focus on
essentially the first occasion of its application.
**
2. Intervention within the meaning of Article 62 of the Statute should in my
opinion be considered to have a far broader scope than the Court's Judgment
allows (paras. 32-34). The records of the proceedings of the Advisory
Committee of Jurists of 1920 which prepared the Statute of the Permanent
Court of International Justice shed little light on what kind of functions a
third State permitted to intervene under Article 62 of the Statute (which
was identical to Article 62 of the Statute of the International Court of
Justice as far as the French text is concerned) can exercise, and on what
kind of effects may flow from its intervention. Although the Rules of Court
adopted in 1922 at the preliminary session of the Permanent Court of
International Justice contained provisions governing the application for
permission to intervene, they did not deal with the scope of intervention,
or the way in which the intervention of a third party, once granted, should
be conducted. As the Court properly states in the present Judgment (paras.
23 and 27), the Permanent Court of International Justice and its successor
left such questions of intervention to be decided in the light of the
particular circumstances of each case. In 60 years, there has hardly been a
case before the Court in which Article 62 could be said to have been a key
issue, but the time has now come for the Court to grapple with the problem
of intervention.
3. I do not share the Court's evaluation of the fact that the English text
of Article 62 of the Statute of the Permanent Court of International Justice
spoke of intervention "as a third party", and that these words were omitted
[ 24] when the Statute of the International Court of Justice was drafted in
1945 by the United Nations Committee of Jurists. From the outset, the French
text of the Statute of the Permanent Court of International Justice did not
contain any phrase corresponding to "as a third party". Article 62 of the
Statute, when redrafted for the present Court in 1945, did not undergo any
change as far as the French text was concerned, and the report of the
Committee expressly stated :
"[T]he formal emendations made in the English text of. . . Article 62,
paragraph 1 (elimination of the words: 'as a third party') do not change the
sense thereof." (Documents of the United Nations Conference on International
Organization, San Francisco, 1945, Vol. XIV, p. 676.)
It is true that both the English and the French texts of the Statute of the
Permanent Court of International Justice are authentic, as expressly
mentioned in the Protocol of Signature of that Statute. On the other hand,
the Preface to the Procès-verbaux of the Proceedings of the Advisory
Committee of Jurists clearly indicated that :
"As all the members of the Committee, with the exception of Mr. Elihu Root,
spoke in the French language, the English text of the Procès-Verbaux is to
be looked upon as a translation, except in so far as concerns the speeches
and remarks of Mr. Root." (P. IV.)
The reason why, in 1920, the phrase "as a third party" was introduced into
the English text, as a translation from the French text, is not known. At
all events, this introduction would not seem to have been explicable on the
basis of the change in the French text from "un interet d'ordre juridique le
concernant est en cause" to "un interet d'ordre juridique est pour lui en
cause" (Judgment, para. 22). There is in the records of the discussions no
suggestion that in 1920 the drafters had specifically in mind the idea of
intervention "as a party". Given this want of information, it does not seem
justified to draw conclusions about the meaning of intervention "as a third
party" based essentially on the English text of the Statute. Thus I cannot
agree with the Court that any debates in the Permanent Court showed that "it
seems to have been assumed that a State permitted to intervene under Article
62 would become a 'party' to the case" (para. 24).
4. It is far from clear that participation qua party is a conditio sine qua
non of the institution of intervention. Moreover, the question of whether or
not the institution of intervention under Article 62 of the Statute requires
the participation of a third State solely "as a party" is closely
interrelated with two further questions: first, whether or not a
jurisdictional link which connects the intervening State with the original
litigant States in the principal case should be required ; and, second,
whether or not the judgment of the Court in the principal case should also
be binding upon the intervening State. Although the Court does not pass upon
the question of jurisdiction in these proceedings (para. 36), it is
difficult to discuss the [p 25] institution of intervention without taking
into account these two further questions, which are so closely interrelated
with the nature of the institution under Article 62.
*
5. I believe it is arguable that a jurisdictional link between the
intervening State and the original parties to the case would be required if
the intervening State were to participate as a full party, and that, in such
a case, the judgment of the Court would undoubtedly be binding upon the
intervening State. Such a right of intervention is basically similar to
that provided for in the municipal law of many States. As a result of the
participation of the third party as a full party in the principal case, the
case will become a litigation among three parties. In the case of municipal
law, of course, the link of jurisdiction between the third party seeking
intervention and the original litigants is not at issue. This municipal
institution has existed for many years to protect the right of a third party
which might otherwise be affected by the litigation between two other
parties and to promote economy of litigation. In such circumstances two or
three causes of action concerning the same set of rights or obligations are
dealt with as a single case.
6. Similarly, before the International Court of Justice, there may be cases
in which the third State seeking intervention to secure its alleged right,
which is involved in the very subject-matter of the original litigation, is
linked with the original litigant States by its acceptance of the
compulsory jurisdiction of the Court under the optional clause of the
Statute or through a specific treaty or convention in force, or by special
agreement with these two States. In such cases the third State may
participate as a plaintiff or a defendant or as an independent claimant.
Probably, in fact, this third State would in such circumstances also be
entitled to bring a separate case on the same subject before the Court. On
the other hand, participation in the proceedings by a third State as a full
party without having any jurisdictional link with the original parties,
while remaining immune from the binding force of the judgment, would
certainly be tantamount to introducing through the back door a case which
could not otherwise have been brought before the Court because of lack of
jurisdiction. This seems inadmissible prima facie, because the jurisdiction
of the International Court of Justice is based on the consent of sovereign
States and is not otherwise compulsory.
*
7. Nevertheless, it is by no means clear that the only hypothesis
contemplated when the draft of Article 62 was under discussion was the
hypothesis of the intervening State being connected by a jurisdictional link
with the original litigants in the principal case. When the Permanent Court
[p 26] of International Justice met in 1922 for its preliminary session to
discuss, among other things, the Rules of Court, the Committee on Procedure
prepared questionnaires in which the Court was asked, in connection with
intervention: "Have third parties interested in a case the right of
intervention only when the original parties to a dispute have accepted the
compulsory jurisdiction of the Court ?" (P.C.I.J., Series D, No. 2, p. 291).
As was pointed out in the argument in the current proceedings and in the
Court's Judgment (para. 23), the Court in 1922 was divided in its answer and
did not come to any definite conclusion. Yet it must be noted that the
President, Judge Loder, ruled at the seventeenth meeting on 24 February
1922 that he
"could not take a vote upon a proposal the effect of which would be to limit
the right of intervention (as prescribed in Article 62) to such States as
had accepted compulsory jurisdiction. If a proposal in this sense were
adopted, it would be contrary to the Statute" (ibid., p. 96).
8. The possibility in respect of Article 62 of a somewhat broader scope of
overall interpretation is traceable in the proceedings of the preliminary
session of the Permanent Court of International Justice. In this respect, it
may be pertinent to quote from the Summary of Previous Discussions on the
Question of the Right of Intervention, submitted by Judge Beichmann, also at
the seventeenth meeting on 24 February 1922. In the circumstances of Article
62, he said:
"no State has a right to intervene, but may only ask the Court for
permission to do so; permission shall only be given if the Court considers
that the State in question has an interest of a legal nature in the case.
This condition, however is not necessarily the only one, and its fulfilment
does not necessarily involve the right of intervention. Even though the
Court is of opinion that this condition is fulfilled, it may refuse the
request.
Article 62 of the Statute lays down that the question shall be decided in
each particular case as it arises; there is therefore no need to adopt any
decision at the moment either with regard to the interpretation of the
words 'interest of a legal nature which may be affected by the decision', or
with regard to the question whether the right of intervention is subject to
other conditions of a legal nature, for example, the acceptance of the
compulsory jurisdiction of the Court by the original parties and the party
desiring to intervene, or the consent of the original parties. The question
whether, when the right to intervene has been admitted and exercised, the
intervening State is to be bound by the judgment, as well as the original
parties, must also remain open.
Nevertheless, the discussion has shown that intervention may be based on
other grounds: the intervening State may have a subjective right, which is
incompatible with the claims of the original parties or [p 27] of one of
them, or again it may be to the interest of the intervening State that
opinions contrary to its own should not prevail as regards the rules to be
applied. The last named reason for intervention might be regarded as
sufficient, at all events in the circumstances contemplated in Article 63.
The question whether this reason would also suffice in other circumstances
remains open." (Ibid., p. 349.)
9. The situation where a right erga omnes is at issue between two States,
but a third State has also laid a claim to that right, is a hypothesis which
here merits consideration. For instance, in the case of the sovereignty over
an island, or the delimitation of a territorial boundary dividing two
States, with a third party also being in a position to claim sovereignty
over that island or the territory which may be delimited by this boundary,
or in a case in which a claim to property is in dispute, an unreasonable
result could be expected if a jurisdictional link were required for the
intervention of the third State. If this link is deemed at all times
indispensable for intervention, the concept of intervention in the
International Court of Justice will inevitably atrophy. Accordingly, in my
submission, if the third State does not have a proper jurisdictional link
with the original litigant States, it can nevertheless participate, but not
as a party within the meaning of the term in municipal law. The role to be
played by the intervening State in such circumstances must be limited. It
may assert a concrete claim against the original litigant States, but that
claim must be confined to the scope of the original Application or Special
Agreement in the principal case. The intervening State cannot seek a
judgment of the Court which directly upholds its own claim. The scope of the
Court's judgment will also be limited: it will be bound to give judgment
only within the scope of the original Application or Special Agreement. The
intervening State cannot, of course, escape the binding force of the
judgment, which naturally applies to it to the extent that its intervention
has been allowed. The intervening State will have been able to protect its
own right merely in so far as the judgment declines to recognize as
countervailing the rights of either of the original two litigant States. On
the other hand, to the extent that the Court gives a judgment positively
recognizing rights of either of the litigant States, the intervening State
will certainly lose all present or future claim in conflict with those
rights. In this light, it does not seem tenable to argue that unless the
intervener participates as a party on an equal footing with the original
litigant States, it would unreasonably benefit without putting itself in any
disadvantageous position.
***
10. Intervention in the International Court of Justice is not necessarily
limited to the situation concerning some well-defined right which is in [p
28] dispute between litigant States. Relevant in this respect is Article 63
of the Statute. The subject-matter of the dispute between the original
parties in the case of Article 63 will certainly be concrete rights claimed
by both sides. But if any third State were to intervene, it would be because
that third State was concerned with the interpretation of the convention
falling to be construed in the judgment of the Court, but not with the
subject-matter itself. This kind of intervention is unique in international
law and, unlike Article 62, was borrowed from the provisions of Article 84
of the 1907 Convention for the Pacific Settlement of International Disputes,
which was inherited, with some minor modifications, from Article 64 of the
1899 Convention for the Pacific Settlement of International Disputes. This
was confirmed by the President of the Advisory Committee of Jurists in 1920
(Procès-verbaux, p. 594), although in fact no extensive discussions on this
point have been reported from that time.
11. In the application of Article 63, no jurisdictional link is apparently
required between the intervening State and the original litigant States. The
third State may participate in the case, but not "as a party" on an equal
footing with the orginal litigant States because the object of the
intervention is not necessarily connected with the claims of the original
parties. The third party participates, but not as a plaintiff or defendant
or even an independent claimant. This seems to be clear from some precedents
of the Court. In the Haya de la Torre case, the delivery of Haya de la
Torre, who was enjoying asylum at the Colombian Embassy in Peru, was the
subject-matter of the case, in which Cuba was not directly concerned. There
is no reason to maintain that Cuba's intervention was assumed to be a
participation "as a party" in the sense I have described above (although in
the list of participants in the case Cuba was mentioned as the "intervening
party"). In fact, Cuba's participation consisted simply in presentation of
its interpretation of the Havana Convention. Similarly, in the S.S.
"Wimbledon" case, the subject-matter was not the cargo in which Poland was
interested but the right of access of the vessel in question to the Kiel
Canal. In neither case was the intervention thought to be conditional on the
presentation of any concrete claim against both or either of the original
litigant States.
12. The judgment of the Court will certainly be binding upon the litigant
States, but all that will be binding upon the intervening State is, as
paragraph 2 of Article 63 provides, "the construction [of a convention]
given by the judgment". In other words, the intervening State will be bound
by the Court's interpretation of the convention if it becomes involved in a
case involving the application of that instrument. [p 29]
*
13. In this respect it seems pertinent to examine the meaning of Article 59
of the Statute, which provides for the binding force of the judgments of the
Court, particularly since the meaning of that Article is sometimes discussed
in connection with Article 63. Article 59 was not contained in the draft
prepared by the Advisory Committee of Jurists in June/July 1920. It stemmed
from comments of the British delegate at the Council of the League of
Nations in October 1920. Mr. Balfour submitted a note on the Permanent Court
of International Justice, a passage of which read:
"There is another point on which I speak with much diffidence. It seems to
me that the decision of the Permanent Court cannot but have the effect of
gradually moulding and modifying international law. This may be good or bad;
but I do not think this was contemplated by the Covenant; and in any case
there ought to be some provision by which a State can enter a protest, not
against any particular decision arrived at by the Court, but against any
ulterior conclusions to which that decision may seem to point." (P.C.I.J.
Documents concerning the Action taken by the Council of the League of
Nations under Article 14 of the Covenant, p. 38.)
The report of Mr. Leon Bourgeois of France, who had also once submitted a
report on the draft scheme of the Advisory Committee of Jurists at the
Council meetings at San Sebastian in August, was presented at the Council on
27 October 1920. It starts with these words: "The following are the points
which I propose that you should consider: . . .", and continues:
"8. The right of intervention in its various aspects, and in particular the
question whether the fact that the principle implied in a judgment may
affect the development of international law in a way which appears
undesirable to any particular State may constitute for it a sufficient basis
for any kind of intervention in order to impose the contrary views held by
it with regard to this principle." (Ibid., p. 46.)
Apparently taking into account the observation which had been made by Mr.
Balfour, the report continued in connection with the institution of
intervention in the case of the construction of a convention, as follows:
"This last stipulation establishes, in the contrary case, that if a State
has not intervened in the case the interpretation cannot be enforced against
it. No possible disadvantage could ensue from stating directly what Article
61 [now Article 63] indirectly admits. The addition of an Article drawn up
as follows can thus be proposed to the Assembly: 'The decision of the Court
has no binding force except between the Parties and in respect to that
particular case' [now Article 59]." (Ibid., p. 50.) [p 30]
It may accordingly be concluded that the drafters of the Statute
apprehended that the interpretation which the Court would place on
international law would be shaped by prior judgments of the Court, and
that, by adding this provision, they intended to inhibit the extension of a
modified interpretation of international law to those States which had not
participated in the case.
14. If Article 59 is interpreted against this background, it does not add
much to what was contemplated under Article 63, and thus has no direct
bearing on it. It may be asked, however, what significance it may have to
state, as implied by Article 63, that the construction of a convention will
not be binding on States not party to a case before the Court. For
regardless of such a postulate there is little doubt that, in a case where
the construction of a particular convention is in dispute, the construction
placed upon it by the Court in a previous case will tend to prevail. It is
submitted that in this sense there will not be much difference between those
States which have intervened in a case and those States which have not
intervened, so far as the practical effect of the Court's construction of an
international convention is concerned. It is questionable whether the
intention of the founders — i.e., not to make the interpretation of a
convention by the Court binding upon the States which have not participated
in the case — was really given effect by the formulation of Article 59.
**
15. If an interpretation of a convention given by the Court is necessarily
of concern to a State which is a party to that instrument, though not a
party to the case, there seems to be no convincing reason why the Court's
interpretation of the principles and rules of international law should be of
less concern to a State. If, therefore, the interpretation of an
international convention can attract the intervention of third States under
Article 63 of the Statute, it may be asked why the interpretation of the
principles and rules of international law should exclude a third State from
intervening in a case. Lack of jurisdiction is not a sufficient reason for
preventing a State from intervening as a non-party in a principal case in
which the application of the principles and rules of international law is at
issue, for the interpretation given by the Court of those principles and
rules will certainly be binding on the intervening State. What is more, as
in the case of Article 63, the provisions of Article 59 do not in fact
guarantee a State which has not intervened in the principal case any
immunity from the subsequent application of the Court's interpretation of
the principles and rules of international law.
16. I am not of course suggesting that such an intervention would fall
within the meaning of Article 63 of the Statute. I am simply saying that
such a type of intervention — i.e., non-party intervention in the case in
which a jurisdictional link is absent, but the interpretation given by the
Court is binding — was introduced under Article 63. And if such a type of [p
31] intervention is therefore possible, I submit that Article 62, if looked
at in the light of Article 63, can also be viewed as comprehending this form
of intervention as well, providing that the interest of a legal nature is
present. That is to say, intervention under Article 62 encompasses the
hypothesis where a given interpretation of principles and rules of
international law is sought to be protected by a non-party intervention. In
this hypothesis, the mode of intervention may be the same as under Article
63, so that the third State neither appears as a plaintiff or defendant nor
submits any specific claim to rights or titles against the original litigant
States.
17. It may be objected that the States which may be affected by the
interpretation of such principles and rules by the Court will be without
number, and that, if an interpretation of the principles and rules of
international law can open the door of the Court to all States as
interveners, this will invite many future instances of intervention. This
problem should be considered from the viewpoint of future judicial policy,
and more particularly from the viewpoint of the economy of international
justice. Yet this cannot be the reason why a request for intervention which
is actually pending should be refused when the requesting State claims that
its legal interest may be affected by the Court's rulings on the principles
and rules of international law. The possibility of an increasing number of
cases invoking Article 63 may likewise not be avoided. The fact that in the
past Article 63 has been rarely invoked does not guarantee that the
situation will remain unchanged in the future. Thus the problem is related
not only to Article 62, but also to Article 63.
*
18. However, unlike Article 63 dealing with the case of the interpretation
of an international convention, Article 62 comprises certain restrictions.
Paragraph 2 of Article 62 provides that : "It shall be for the Court to
decide upon this request." This means that the Court has certain
discre-tionary powers to allow or not to allow any requesting State to
intervene in the litigation. Still more important is the restriction of
paragraph 1 of Article 62. This paragraph requires the State requesting
intervention to show that "it has an interest of a legal nature which may be
affected by the decision in the case". Thus any danger of expansive
application of Article 62 will certainly be restricted by the Court's
exercising its discretionary power, more particularly to determine whether
the requesting State has such an interest. In the present case, as it
happens, the Court has taken this line and come to a negative conclusion on
this point, imposing what is in my view an unduly severe test.
19. In fact, on the question whether Malta "has an interest of a legal
nature which may be affected by the decision in the case" or not, my [p 32]
conclusions differ from the Court's. The present Tunisia/Libya case has a
quite distinctive characteristic. It is not concerned with a general
interest in the development of international law in an abstract form; the
mere interpretation of principles and rules of international law is not at
issue. Otherwise the Court, which on such points may be requested simply to
perform an advisory or doctrinal function, would not be able to entertain
this case. The case being contentious, conflicting claims between Tunisia
and Libya should certainly exist. Yet, as is evident from the Special
Agreement, the subject-matter of this case does not concern any contractual
right disputed solely between two States or well-defined rights erga omnes
such as the sovereignty over an island or any specific land area or even
continental shelf area; neither of the principal Parties puts forward a
claim to a right or a title to any continental shelf area as precisely
specified. Hence the claims of the original litigant States, Tunisia and
Libya, against each other were themselves not quite clear, at least at the
intitial stage of the submission of the case to the Court. Therefore, if
Malta has failed to assert its own claims against either or both of the
litigant States, or to seek as plaintiff or defendant any substantive or
operative decision against either Party or to try to obtain any form of
ruling or decision from the Court concerning its own continental shelf
boundary with either or both of the orginal litigant States, or, then again,
to submit its own claims to decision by the Court and not to expose itself
to counter-claims, this cannot be any reason to question the admissibility
of Malta's request. More cannot be demanded of Malta than of Tunisia and
Libya.
20. Both Parties in this case wish to secure a statement from the Court of
what the appropriate law will be for the delimitation of the respective
areas of the continental shelf of Tunisia and Libya. On the face of the
Special Agreement, what will be argued before the Court by these two
countries will remain confined to the principles and rules of international
law to be applied in the delimitation of the continental shelf and not
relate to the concrete claim to any title. Thus the object of the request
for intervention may properly consist, as stated by Malta, in presenting
views on the principles and rules of international law during the
proceedings in the principal case (as intended by Cuba in the Haya de la
Torre case under Article 63). That being so, the position of Malta is
certainly different from that of Fiji in the Nuclear Tests cases, in which
the subject-matter was clearly defined in terms of specific claims. Aside
from the question of jurisdiction, Fiji could have identified its own
interests with those of Australia and New Zealand in specifying the legal
interests which might have been threatened by the action taken by France,
the legality of which was in dispute. Thus, although Fiji might have been
required to specify its own claim as a plaintiff together with Australia and
New Zealand against France, this requirement would have arisen out of the
very nature of the [p 33] case. The Tunisia/Libya case, however, is of a
completely different nature.
*
21. It has been contended by both Libya and Tunisia that the Court is
required to confine itself to the applicable principles and rules for the
delimitation of the area of the continental shelf of Libya and the area of
the continental shelf of Tunisia, in which, ex hypothesi, no third State can
be interested. However, this contention is unconvincing. The Special
Agreement provides in the beginning of Article 1:
"The Court is requested to render its judgment in the following matter:
What principles and rules of international law may be applied for the
delimitation of the area of the continental shelf appertaining to the
Socialist People's Libyan Arab Jamahiriya and to the area of the continental
shelf appertaining to the Republic of Tunisia, and the Court shall take its
decision according to equitable principles, and the relevant circumstances
which characterize the area, as well as the new accepted trends in the Third
Conference on the Law of the Sea." (Certified English translation filed by
Libya.)
The "area" of the continental shelf appertaining to Libya and the "area" of
the continental shelf appertaining to Tunisia are of course different. The
object of the principal case is to determine the principles and factors
governing delimitation of that line by the Parties, i.e., the dividing line
between these two "areas". These two "areas" themselves as a whole have not
been defined in the above request by Tunisia and Libya.
22. If the "area" as to which the relevant circumstances to be taken into
account by the Court is to be simply an aggregate of the "area"
appertaining to Libya and the "area" appertaining to Tunisia, so that it
does not affect any third State but only concerns these two States, how can
one identify that whole "area" without possessing any precise definition of
that aggregate? Is it not logical to suggest that when these two States
mention "the relevant circumstances which characterize the area", this
"area" must necessarily have a different connotation from what is implied by
the mere aggregate of the "area" appertaining to Libya and the "area"
appertaining to Tunisia to be delimited as a result of the Court's judgment?
This is borne out by the use of the words "propres àla region" (not "zone")
in Tunisia's certified French translation of the Special Agreement, where
the English has "which characterize the area". Certainly the delimitation of
the two "areas" is essentially a bilateral matter to be settled by agreement
between Tunisia and Libya. That delimitation ought not to intrude upon the
area-to-be of the continental shelf of any third State. Yet is it possible
to assume that when account is taken of the characteristics of the area as a
[p 34] whole, an area in which a third State may have some legal title to a
portion of continental shelf, there will be no legal interest of such a
State which may be affected by the decision of the Court aimed at the
principles and rules of international law applicable in that area?
Furthermore, is it proper to state that no conclusions or inferences may
legitimately be drawn from the findings or the reasoning with respect to
rights or claims of other States not parties to this Tunisia/Libya case
(Judgment, para. 35)? If any consideration is given by the Court to the
effect which, for example, the existence of an island or islands in this
"area" may have in the delimitation of the continental shelf between Tunisia
and Libya, how can Malta remain unaffected by a decision of the Court
indicating the principles and rules therein involved?
*
23. Without scrutinizing the details of the case, the Court cannot now
define the "area" of which the relevant circumstances to be taken into
account by the Court are characteristic. The Court cannot take a position in
advance in this respect without dealing with the principal case. Since this
"area" actually is not limited to the expanses in which it is evident that
no third State may have a claim, the possibility or probability of an
adverse effect upon a third State is not excluded. Theoretically, a number
of States may have a claim to the continental shelf in the "area", invoking
any justification which they may prefer for this purpose, because the
criteria for delimitation of the continental shelf have not yet been firmly
settled. Yet, in the light of developments in the law of the sea, it would
not have been difficult for the Court to exercise its discretionary powers
under Article 62, paragraph 2, and allow the intervention of the third State
particularly concerned, depending on the Court's evaluation of the imminent
and grave interests prima facie at stake and considering the relevant
factors. In this case, I cannot agree that Malta, which prima facie belongs
to the very "area" in issue, will escape any legal effect of the judgment of
the Court. This distinguishes Malta from all other countries (except
perhaps a few neighbouring States), many of which may of course be
interested in abstracto in the judgment of the Court concerning the
interpretation of the applicable "principles and rules of international
law".
(Signed) Shigeru Oda.
[p 35]
Separate opinion of judge Schwebel
I have voted in favour of the Judgment of the Court despite the
considerable case made out by Malta in support of its Application for
permission to intervene. I have done so for one essential and dispositive
reason.
The Court may reasonably interpret the institution of intervention, whose
scope neither the Statute nor the practice of the Court makes clear, so as
to debar what might be called "non-party intervention", or, perhaps,
"unequal intervention". Malta proposes to submit its views upon par-ticular
issues which may form an essential part of the subject-matter of the
Tunisia/Libya case without unreservedly submitting its own, related
interests to the Court for decision. The power of decision accorded the
Court under Article 62 of the Statute permits it to construe such a form of
proposed intervention as one outside the ambit of the Statute. There are
significant considerations of judicial policy which suggest that the Court
should so decide.
That is not to say that non-party intervention must necessarily and in every
case be viewed as beyond the pale of the Statute. To debar non-party
intervention on the ground that it gives unequal advantage to the
intervener is to overlook the fact that there is a measure of advantage
inherent in the capacity of intervenor. For example, a party that is granted
permission to intervene when two others have set out their cases and even
committed themselves to certain lines of argument has the advantage of
knowing its opponents' grounds while they have yet to confront those of the
intervenor. Possibly cases may in the future arise in which non-party
intervention might be justified under the Statute. But, in the circumstances
of this case, it is believed that the Court may reasonably decide not to
entertain it.
At the same time, the difficulty of the position in which Malta found itself
in casting its Application and argument to intervene should be acknowledged.
The Court had declined to respond positively to Malta's request for copies
of the pleadings. Accordingly Malta may argue that it could not know in what
precise ways its interests might be engaged by the case nor could it
responsively advance particular claims. Moreover, as counsel for Malta
pointed out, neither Tunisia nor Libya themselves, as far as their Special
Agreement reveals, advance particular claims or seek a decision of the Court
upon them. It is not clear why Malta, at this juncture, without the benefit
of the pleadings, should be held to a higher standard of precision and of
commitment than are the principal Parties to the case themselves. And most
fundamentally, Malta was obliged to interpret an [p 36] article of the
Statute which the Court itself heretofore has not had occasion to interpret.
I differ from the Judgment of the Court in so far as it holds that Malta has
not shown that it has an interest of a legal nature which may be affected by
the decision in the case. In this regard, I wish to draw attention to three
points: the meaning of Article 62 of the Statute of the Court; certain
considerations which Malta has advanced or might have advanced to
substantiate its conclusion that it has an interest of a legal nature which
may be affected by the decision in the case; and the Court's conclusions in
these respects.
The Text of Article 62
In its English text, Article 62 specifies that 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. Article 62 does not provide that, should a State consider that
"it has an interest of a legal nature which shall be determined by the
decision in the case", it may submit such a request. The State seeking to
intervene accordingly need not prove that it has a legal interest that the
Court's decision will determine; it need merely show that it has a legal
interest which just "may" be no more than "affected" — prejudiced, promoted
or in some way altered. This is not an exigent standard to meet.
As to whether the Court's decision in a case is more than the dispositif as
to whether it may embrace as well the reasons and reasoning with which it
supports its final conclusions, the jurisprudence of the Court as it may be
related to the text of Article 62 may be open to more than one construction.
In my submission, it would not be reasonable to maintain that, if the
dispositif' of a decision may not affect an interest of a legal nature of a
State seeking to intervene but those interests may be legally affected by
other elements of the judgment, that State may not be granted permission to
intervene.
Malta's Legal Interests
Malta's continental shelf claims presumably are in its legal interests. They
are not easily distinguished from "an interest of a legal nature". For the
reasons set forth by Malta's counsel in the proceedings, which are
summarized in the Judgment of the Court, and having particular regard to the
contention that Malta sits on the very same continental shelf that is in
issue between Tunisia and Libya, it appears that Malta's continental shelf
claims "may" well be "affected" by the reasons and reasoning of the Court's
holdings that bear upon continental shelf claims of Tunisia and Libya, which
may compete at some points with those of Malta. [p 37]
The areas to be delimited pursuant to the Court's holdings in this case are
said to be situated in a common basin. Malta appears to be located inside
that basin, 184 nautical miles from the nearest point on the Libyan coast
and 155 nautical miles from the closest point on the Tunisian coast. Malta
apparently maintains that there is one and the same continental shelf to be
ultimately delimited among three or four States: Tunisia, Libya, Malta and
Italy. In view of the fact that the recent definition of the continental
shelf provisionally agreed upon in Article 76 of the Draft Convention on the
Law of the Sea establishes as a minimum limit for the continental shelf of
any coastal State the breadth of 200 nautical miles, Malta arguably may
maintain that it has an interest of a legal nature which may be affected by
the proceedings in the current case. This is especially so because Article 1
of the Special Agreement between Tunisia and Libya requests the Court to
take account of "the recent trends admitted at the Third Conference on the
Law of the Sea".
Moreover, under the Special Agreement the Court is requested "to specify
precisely the practical way" in which the principles and rules it decides
upon "apply in this particular situation". It would be perfectly possible,
in pursuance of this request, for the Court to decide, for example, on a
method of delimitation which involves drawing a bay-closing line in a
fashion which may affect the extent of the continental shelf which an
opposite State like Malta might be entitled to claim.
Having regard to the foregoing considerations, I do not share the
conclusion — which in my view the Court did not have to reach in order to
sustain its Judgment — that Malta does not have an interest of a legal
nature which may be affected by the decision in this case. In my respectful
submission, the Court could have essentially confined the ground of its
decision to Malta's failure to seek a form of intervention consistent with
the Statute, that is, to submit a proper "request to the Court to be
permitted to intervene". The fact that that request to intervene does not
unreservedly submit the relevant Maltese interests of a legal nature to the
Court for decision nevertheless is relevant to the judgment of whether Malta
has an interest of a legal nature which may be affected by the decision in
the case.
The Court's Conclusions
In paragraph 33 of the Judgment, the Court draws particular conclusions
which I do not fully share. It states that: "Malta's interest is of the same
kind as the interests of other States within the region" (the previous
sentence of the Judgment refers to the "central Mediterranean region").
Italy's interests may well be very much in point, but whether there are
interests of the same kind of other States than Malta and Italy in the
continental shelf in question — other, of course, than Tunisia and Libya —
is not quite clear. Moreover, even if other third States do enjoy the same
kind of interest as does Malta, it does not follow that this is a ground
supporting rejection of Malta's Application. [p 38]
Paragraph 33 of the Court's Judgment proceeds to refer to the case brought
before the Court by the terms of the Special Agreement, noting that Tunisia
and Libya "put in issue their claims" with respect to the matters covered by
it. It points out that, while Malta seeks permission to intervene on the
assumption that it has a legal interest in issue in the case, it
nevertheless attaches to its request an express reservation that its
intervention is not to have the effect of putting in issue "its own claims"
with regard to those same matters vis-à-vis Tunisia and Libya. The Court
concludes:
"This being so, the very character of the intervention for which Malta seeks
permission shows, in the view of the Court, that the interest of a legal
nature invoked by Malta cannot be considered to be one 'which may be
affected by the decision in the case' within the meaning of Article 62 of
the Statute."
Where I differ from the foregoing analysis of the Court is in this. While it
is true that Malta has maintained that it has not put in issue its own
continental shelf claims vis-a-vis Tunisia and Libya, this is not the same
as saying that it has not put in issue the views it seeks permission to
submit with respect to the applicable principles and rules of international
law.
The Attorney-General of Malta declared in the Court's public sitting of 23
March 1981:
"Malta is not seeking a settlement of its delimitation issues with either
Libya or Tunisia through the back door of intervention. Malta is genuinely
concerned that the Court may, or more likely would, in the course of the
Libya/ Tunisia proceedings decide specific issues directly concerning the
region in which Malta is placed and thereby affect one or more of her
interests of an undoubtedly legal character."
And, in response to the contention that Malta had in effect indicated that
it would not be bound by the Court's judgment, he declared: "By its
application to intervene Malta submits itself to all the consequences and
effects of intervention — whatever these may be." Counsel for Malta
amplified this statement by observing that:
"Malta has never asserted that it will not be bound by the decision of the
Court. . . What Malta has said is that it does not seek an order or a remedy
against Libya and Tunisia. But that is not the same thing as saying that
Malta will not be bound by the decision of the Court. . . What the Court
says the law is, is the law and it will bind Malta . . . And in so far as
the Court says what the law will be in relation to the continental shelf
features of the central Mediterranean Sea, Malta has a legal interest which
specially and uniquely will be affected by the Court's decision." [p 39]
Counsel for Malta further emphasized that what Tunisia and Libya themselves
seek in these proceedings is not the decision of the Court on their
respective claims but the identification by the Court of the principles and
rules of international law and the precise specification of the way in which
those principles and rules are to be applied in the delimitation of their
respective areas of continental shelf. Counsel for Malta particularly
stressed that Malta's action was founded on the view that a decision of the
Court relating to the specific features of the area would inevitably bind
Malta in her relations with Tunisia and Libya simply as a statement of law.
As far as Malta could judge, on the basis of its access not to the pleadings
but only to the Special Agreement, Tunisia and Libya do not put in issue
claims against one another. Indeed, all that is apparent from the Special
Agreement is that the object of the case is essentially limited to "the
principles and rules of international law which may be applied and . . . the
practical way to apply them in the delimitation of the areas of continental
shelf appertaining to Tunisia and Libya" (Judgment, para. 33).
But what is critical to a showing by Malta that it has a legal interest
which may be affected by the decision in the case is not the object of the
case as it may be stated in the Special Agreement or otherwise but the
subjects of the case as the Court may treat them. What is key is the
probability, or at any rate the possibility, that Tunisia and Libya are
seeking the Court's support for positions which, if sustained (whether in
the dispositif or other passages of the Court's Judgment), may actually
affect Malta's particular legal interests — despite Malta's not submitting
claims against Tunisia and Libya for delimitation.
Accordingly, I do not wholly share the conclusion which the Court reaches in
the last sentence of paragraph 33. In my submission, the very character of
the intervention for which Malta seeks permission does not show that the
interest of a legal nature invoked by Malta cannot be considered to be one
"which may be affected by the decision in the case" within the meaning of
Article 62 of the Statute. The character of the proposed intervention is
open to challenge, as I see it, not on the ground that Malta's actual legal
interest "may" not be "affected" by elements of the decision in the case.
Rather, precisely its very character is open to challenge on the ground that
Malta — however understandably in the circumstances — refrains from
endeavoring to join as a party to the suit and seeks to join as what might
be termed a "non-party". To the extent it comes in, it does not propose to
come all the way in. As submitted above, the Court may reasonably exercise
the power of decision expressly accorded it by paragraph 2 of Article 62 of
the Statute to deny it permission to intervene in this way.
At the same time, as I acknowledge above, the fact that Malta's request to
intervene does not unreservedly submit the relevant Maltese interests of a
legal nature to the Court for decision nevertheless is relevant to the [p
40] judgment of whether Malta has an interest of a legal nature which may be
affected by the decision in the case. That is why I say no more than that I
do not "wholly" share the conclusion which the Court reaches in the last
sentence of paragraph 33.
A jurisdictional link is not required
The Court's Judgment rightly takes no position on whether a State, in order
to intervene under Article 62, must demonstrate a title of jurisdiction
beyond that which Article 62 of itself may be argued to provide. Nor does
Article 81, paragraph 2 (c), of the Rules of Court take a position on this
complex question: its intention was merely to draw attention to the point
and to ensure that a State which could indicate such a title of jurisdiction
should so inform the Court. However, because some Judges of the Court have
recorded their views on this question, I should like to indicate
provisionally the essence of mine.
I am inclined to believe that the better view is that the State seeking to
intervene need not establish that it has jurisdiction to litigate with the
parties to the principal case in the absence of recourse to Article 62. I so
submit because, among other reasons:
— the terms of Article 62 make no reference to jurisdiction, either in their
original version or — it is instructive to recall — as amended in 1945;
— Article 36 of the Statute, in endowing the Court with jurisdiction in all
matters "specially provided for ... in treaties and conventions in force",
may be read as referring to Article 62, which is part of such a treaty;
— to read into Article 62 an additional requirement of jurisdiction would in
practice confine the institution of intervention to marginal limits, a fact
which suggests that the "plain meaning" of Article 62 which makes no mention
of jurisdiction is correct; and
— Article 63 apparently does not require a demonstration of jurisdiction
even where the party invoking the treaty under construction has not acceded
to the Court's jurisdiction to decide disputes over that treaty's
interpretation or application; why such jurisdiction should be required in
the complementary case of Article 62 accordingly is the less clear.
Admittedly, a substantial argument to the contrary may be made out, but, on
balance, I do not now find it persuasive.
(Signed) Stephen M. Schwebel. |
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