21 March 1984
General List No. 68
international Court of Justice
composed as above,
delivers the following Judgment:
1. By a notification dated 19 July 1982, received in the Registry of the Court on 26 July 1982, the Secretary of the People's Committee for the People's Foreign Liaison Bureau of the Socialist People's Libyan Arab Jamahiriya and the Minister for Foreign Affairs of the Republic of Malta notified the Court of a Special Agreement in the Arabic and English languages signed at Valletta on 23 May 1976 between the Socialist People's Libyan Arab Jamahiriya and the Republic of Malta, [p4] 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.
2. Pursuant to Article 40, paragraph 3, of the Statute and to Article 42 of the Rules of Court, copies of the notification 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 Libyan or of Maltese 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 27 July 1982 the Libyan Arab Jamahiriya designated Mr. Eduardo Jimenez de Arechaga, and the Parties were informed on 8 October 1982, pursuant to Article 35, paragraph 3, of the Rules of Court, that there was no objection to this appointment; on 26 April 1983 Malta designated Mr. Jorge Castaneda, and on 30 May 1983 the Parties were informed that there was no objection to this appointment.
4. By a Note Verbale of 10 June 1983, the Government [p5] of the Italian Republic, 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 26 April 1983, and documents annexed thereto. By a letter dated 13 October 1983, after the views of the Parties had been sought, and objection had been raised by the Government of Malta, the Registrar informed the Government of Italy that the Court had decided not to grant the request.
5. The Counter-Memorials of the Parties to the case, as contemplated by the Special Agreement of 23 May 1976, and in accordance with an Order made by the President of the Court on 26 April 1983, were required to be filed on or before 26 October 1983. 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 filed within the time-limits fixed.
6. By an Application dated 23 October 1983 and received [p6] in the Registry of the Court on 24 October 1983, the Government of Italy, 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 Italy for permission to intervene were forthwith communicated to the Libyan Arab Jamahiriya and Malta, 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 5 December 1983, 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 the Libyan Arab Jamahiriya and the Government of Malta submitted written observations on the Application of Italy for permission to intervene, in which they set out their respective reasons for, in the case of the Libyan Arab Jamahiriya, requesting the Court to decline to permit Italy to intervene, and, in the case of Malta, submitting that the Court should find that the Application of Italy [p7] for permission to intervene cannot be granted. The Parties and the Government of Italy were therefore notified on 5 December 1983 that the Court would hold public hearings, in accordance with Article 84, paragraph 2, of the Rules of Court, to hear the observations of Italy, the State seeking to intervene, and those of the Parties to the case.
8. On 25, 26, 27 and 30 January 1984 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 Italy should be granted, by the following representatives:
For the Italian Republic:
H.E. Mr. Roberto Gaja,
Professor Gaetano Arangio-Ruiz,
Professor Riccardo Monaco,
Professor Giuseppe Sperduti,
Mr. Marcello Conti,
Professor Michel Virally;
For the Socialist People's
Libyan Arab Jamahiriya:
Mr. Abdelrazeg El-Murtadi Suleiman,
Professor Claude-Albert Colliard,
Sir Francis A. Vallat, G.B.E., K.C.M.G., Q.C.,
Professor Etienne Grisel;
For the Republic of Malta:
Dr. Edgar Mizzi,
Mr. E. Lauterpacht, Q.C.
Questions were addressed to the representatives of Italy and of Malta by Members of the Court, and the replies [p8] were given in writing after the close of the hearings in accordance with Article 61, paragraph 4, of the Rules of Court.
9. In the course of the proceedings the following submissions were presented to the Court:
On behalf of the Italian Republic,
in the Application for permission to intervene:
"On the basis of the foregoing observations, Italy respectfully requests authorization to intervene in the present proceedings between Libya and Malta";
On behalf of the Socialist People's Libyan Arab Jamahiriya,
in the Observations of the Libyan Arab Jamahiriya on the Italian Application:
"On the basis of the foregoing Observations, Libya respectfully requests the Court to decline to permit Italy to intervene in the present proceedings between Libya and Malta";
in the course of the oral proceedings:
"We therefore would reaffirm the submissions made to the Court in the written Observations of Libya and would respectfully request that the Court decline to authorize Italy to intervene in the Libya/Malta case";
On behalf of the Republic of Malta,
in the Observations of Malta on the Italian Application:
"Malta respectfully submits that the Court should find that [p9] the Application of Italy for permission to intervene cannot be granted";
in the course of the oral proceedings:
"the formal submission [of the Republic of Malta is] that the Court be pleased to find that the Application of the Republic of Italy cannot be granted".
10. The Application of the Italian Republic submitting a request to the Court for permission to intervene in the case 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 1, of the Rules of Court to be filed "as soon as possible, and not later than the closure of the written proceedings", and by Article 81, paragraph 2, 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 [p10] which is claimed to exist as between the State applying to intervene and the parties to the case."
The Application of Italy was filed in the Registry, of the Court only two days before the time-limit fixed for the filing of the Parties' Counter-Memorials. This fact has been emphasized by counsel for Libya in the context of a contention that Italy's legal or procedural position has been affected by delay. The Court notes however that the Application was filed before the expiry of the time-limit fixed by Article 81, paragraph 1, of the Rules. The substantive objections taken by the Parties in connection with (inter alia) the date of filing of the Application to intervene, in the context of these proceedings, need not be examined at this stage in the Judgment when the Court is concerned only with formal admissibility. So far as the three requirements set out in subparagraphs (a), (b) and (c) of Article 81. paragraph 2, of the Rules of Court are concerned, the Court notes that the Italian Application complies formally with these, even though objection has been taken by the Parties on the basis that, on the substance, in all three respects there are grounds for finding [p11] the Application of Italy inadmissible. The Court concludes that the Italian application is not out of time and has no formal defect which would render it inadmissible.
11. Certain questions have been raised as to the jurisdiction of the Court in relation to the Italian Application, inasmuch as it has been objected both by Libya and by Malta that Italy has not shown, and cannot show, the existence of "any basis of jurisdiction which is claimed to exist as between the State applying to intervene and the Parties to the case". It has not however been suggested by either of these States that the Court lacks jurisdiction to entertain the present Application, and to determine its admissibility: on the contrary, it is admitted that such jurisdiction is conferred on the Court by Article 62 of the Statute, a view which is shared by the Court itself. The contention of Libya and Malta is rather that the absence of what the Court in 1981 called "a valid link of jurisdiction with the parties to the case" (I.C.J. Reports 1981, p. 20. para. 36), constitutes a ground on which the Application of Italy for permission to intervene must be refused, or found to be inadmissible. Accordingly, although [p12] this question is one of the Court's jurisdiction, it has no priority of the kind which attaches to a jurisdictional objection stricto sensu, and need not be examined in advance of the other contentions put forward by the Parties either as objections to the admissibility of the Application, or as grounds for refusing it.
12. Before proceeding further, the Court would emphasize, as it did in the Judgment of 14 April 1981 on the application of Malta to intervene in the Continental Shelf case between Tunisia and Libya, that
"it does not consider paragraph 2 [of Article 62 of the Statute] 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." (I.C.J. Reports 1981, p. 12, para. 17.)
The Court will therefore now examine the contentions advanced by Italy in support of its application for permission to intervene, and the objections taken by the Parties to the admissibility of the Italian Application, [p13] in the light of the relevant provisions of the Statute.
13. Article 62 of the Statute begins by setting the condition that "should a State consider that it has an interest of a legal nature which may be affected by the decision in the case . . .". Taken literally, this is no more than an indication of the reasons which may impel a State to seek to intervene; but it is clear that the intention of the text is that the existence of such an interest is, objectively, a requirement for intervention. As the Court stated in its Judgment of 14 April 1981, what a State seeking to intervene
"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" (I.C.J. Reports 1981, p. 19, para. 33).
14. In order to assess the interest of a legal nature claimed by Italy and to appreciate in what way Italy considers that its interest is en cause, or may be affected by the decision in the present case, it is necessary to recall the subject-matter of the case as defined by the Special Agreement concluded by the Parties on 23 May 1976 and notified to the Court on 26 July [p14] 1982. Articles I and III of that Special Agreement provide as follows:
The Court is requested to decide the following question:
What principles and rules of international law are applicable to the delimitation of the area of the continental shelf which appertains to the Republic of Malta and the area of continental shelf which appertains to the Libyan Arab Republic, and how in practice such principles and rules can be applied by the two Parties in this particular case in order that they may without difficulty delimit such areas by an agreement as provided in Article III.
Following the final decision of the International Court of Justice the Government of the Republic of Malta and the Government of the Libyan Arab Republic shall enter into negotiations for determining the area of their respective continental shelves and for concluding an agreement for that purpose in accordance with the decision of the Court."
No express indication is given in the Special Agreement which would in any way limit the area in which the delimitation referred to in Article I is to be effected, and reference is there made to delimitation of "the area of the continental [p15] shelf which appertains to" Malta and to the Libyan Arab Jamahiriya respectively, without saying in which direction it extends or indicating the identity of the State whose shelf might border on it. It is clear however from, in particular, the reference in Article III to a delimitation agreement to be concluded between Malta and Libya "in accordance with the decision of the Court" that the Court's task is confined to indication of the principles and rules of international law applicable to the delimitation to be effected between those two States, and how in practice they can be applied. Furthermore, it is a fundamental principle that the Court has no jurisdiction to determine matters in dispute between States without their consent. Thus the content of the future decision by the Court in the case brought before it by the Libya/Malta Special Agreement of 23 May 1976 cannot determine the delimitation of the respective continental shelves appertaining to those States vis-a-vis any third State.
15. The interest of a legal nature contemplated by the Statute has been defined in the present case by counsel for Italy as "an interest of the Applicant State covered vis-a-vis other States, namely [p16] the principal Parties, by international legal rules or principles". The specific legal interest relied on by Italy is claimed to be "nothing less than respect for its sovereign rights over certain areas of continental shelf in issue in the present case". Briefly expressed, the contention of Italy is that, so far as it is acquainted with the claims of Libya and Malta to areas of continental shelf in the central Mediterranean, it is of the view that those claims extend to areas which would be found to appertain to Italy if a delimitation were to be effected between Italy and Libya, and between Italy and Malta, on the basis of international law. At the hearing counsel for Italy demonstrated on a map of the central Mediterranean what were understood by Italy to be the claims of the Parties to continental shelf areas, and indicated broadly where Italy considered that it had rights in such areas. In response to a question put by a judge, the Agent of Italy, in a written reply enclosed with a letter dated 6 February 1984 (to which was attached a map) indicated
"the zones of continental shelf over which Italy considers that it has rights and which are comprised within the region which [p17] is probably the subject-matter of the case pending before the International Court of Justice".
The legal interest of Italy is thus not merely an interest, but the "sovereign rights" over the appropriate areas of continental shelf for the purpose of exploration and exploitation recognized by customary law and explicitly mentioned in the 1958 Geneva Convention on the Continental Shelf and the 1982 United Nations Convention on the Law of the Sea. "The interest relied upon by Italy", said counsel at the hearing, "is the protection of its claims to its sovereign rights over areas claimed by the Parties to the present case". Furthermore, its interests are involved inasmuch as it has reservations as to what it understands to be the views of Libya on such matters as the status of a considerable part of the Gulf of Sirt.
16. In its Application for permission to intervene, and in the arguments of its counsel before the Court, Italy gives the following indications of the way in which it considers that its interest of a legal nature is en cause, or may be affected by the decision in the present case. The areas of continental shelf to be delimited between the Parties all belong to one and [p18] the same region of the central Mediterranean, of which Italy is a coastal State, and in which, consequently, some of the continental shelf areas over which it considers it possesses rights are situated. The whole bed of the sea area in question is part of the continental shelf, within the meaning of the definition in Article 76 of the 1982 United Nations Convention on the Law of the Sea, and the greater part of such sea-bed consists of areas of overlap of the rights of such States. Some of the areas of continental shelf disputed between Malta and Libya in the present proceedings are areas over which Italy considers that it has undeniable rights. In the light of a comparison of the Special Agreement by which the Court was seised in the present case with that concluded in 1977 by Tunisia and the Libyan Arab Jamahiriya, on the basis of which the Court gave its Judgment of 24 February 1982, Italy expects that the future judgment of the Court in the present case will be as precise as that previous Judgment and will necessarily exclude any uncertainty with regard to the location and size of the continental shelf belonging to each of the Parties as a consequence of the establishment of the [p19] demarcation line. The Court's future judgment, it is suggested, will therefore inevitably decide, albeit implicitly, namely by delimiting between States other than Italy, that given areas do not appertain to Italy.
17. In accordance with Article 81, paragraph 2 (b), of the Rules of Court, the Application of Italy contains a statement of the "precise object" of the intervention. Italy explains first that:
"The object of the intervention which Italy seeks authorization to make directly follows both from the definition of its legal interest which may be affected, and from the very object of the case which has been brought before the Court."
The Application goes on to indicate that: "The object of Italy's application to intervene is to ensure the defence before the Court of its interest of a legal nature", so that the principles and rules of international law to be determined by the Court as applicable to the delimitation of the continental shelf between Malta and Libya "and, in particular, the practical method of applying them, are not determined by the Court without awareness of that interest, and to its prejudice", and continues:
"In other words, Italy seeks to participate [p20] in the proceedings to the full extent necessary to enable it to defend the rights which it claims over some of the areas-claimed by the Parties, and to specify the position of those areas, taking into account the claims of the two principal Parties and the arguments put forward in support of those claims, so that the Court may be as fully informed as possible as to the nature and scope of the rights of Italy in the areas of continental shelf concerned by the delimitation, and may thus be in a position to take due account of those rights in its decision."
During the oral proceedings, a co-Agent for Italy offered a further summary of the object of the intervention. Italy, he said, is not requesting the Court to determine the course of the delimitation line dividing the areas of continental shelf appertaining to Italy from the areas appertaining respectively to Malta or Libya, nor to determine the principles and rules of international law applicable to that delimitation.
"Italy is asking the Court, when it accomplishes the mission entrusted to it by the Special Agreement of 23 May 1976, that is to say, when it answers the questions put to it in Article I of that Special Agreement, [p21] to take into consideration the interests of a legal nature which Italy possesses in relation to various areas claimed by the main Parties, on certain parts of those areas, and accordingly to provide the two Parties with every needful indication to ensure that they do not, when they conclude their delimitation agreement pursuant to the Court's judgment, include any areas which, on account of the existence of rights possessed by Italy, ought to be the subject either of delimitation between Italy and Malta, or of delimitation between Italy and Libya, or of a delimitati%n agreement as `etween all three countries."ar
At a later stage, counsel emphasized that Italy is not seeking to intervene solely to inform the Court of its claims, but so that the Court can give the Parties all the requisite guidance to ensure non-encroachment on areas over which Italy has rights. The object of the Italian intervention is thus claimed to be "strictly within the framework of the case brought before the Court by the 1976 Special Agreement", and in no way to affect the interests of the main Parties. Another aspect of its intervention emphasized by Italy is that
"the Government of Italy, once permitted [p22] to intervene, will submit to such decision as the Court may make with regard to the rights claimed by Italy, in full conformity with the terms of Article 59 of the Statute of the Court".
Its status in such circumstances would, it was suggested, be that of an "intervening party", entitled to make submissions.
18. The Court has noted above the formal compliance by Italy in its Application with the requirement of paragraph 2 (c) of Article 81 of the Rules of Court, requiring the applicant State to set out "any basis of jurisdiction which is claimed to exist" as between itself and the parties to the case. Italy's contention is that
"the Italian legal interest which may certainly be affected . . . and the object of the present application . . . are automatically, and in accordance with the Statute of the Court, creative of jurisdiction of the Court to the extent necessary to justify the admission of Italy to participate in the present proceedings as an intervener".
This indication is however prefaced by the observation that "there is no provision in Article 62 of the Statute that the existence of a basis of jurisdiction is a condition for intervention", and that Article 81, [p23] paragraph 2 (c), was not intended to impose such a condition but "does no more than lay down a mere requirement for information to be supplied with a view to fuller knowledge of the circumstances of the case". Italy argues that every State party to the Statute is ipso facto made subject to the "jurisdictions which are directly established by the Statute", including the direct jurisdiction created by Article 62. Provided the conditions laid down by that Article are fulfilled,
"Italy considers that the operation of Article 62 itself suffices to create the basis of jurisdiction of the Court to the extent necessary for the admission of an application for permission to intervene".
Accordingly, while mentioning its being a party to the European Convention for the Peaceful Settlement of Disputes, in order -- as counsel later explained -- "to satisfy the procedural obligations arising out of Article 81 of the Rules of Court", Italy has throughout maintained its view that Article 62 of the Statute afforded a sufficient basis of jurisdiction, either in itself or by the conjunction of the acceptance of the jurisdictional power of the Court by becoming a party to the Court's Statute, [p24] with a subsequent conferral of jurisdiction on it, for example by Special Agreement. This view it qualifies only to the extent of recognizing that it might be valid only for a "genuine intervention", one bearing exclusively on the subject-matter of the main case, and not concerning an independent dispute. Should the intervention, or purported intervention, be one in which the applicant seeks to assert a right against the parties, and thus equivalent to a mainline application, in such case either it would not be a genuine intervention at all, or
"the general title of jurisdiction constituted by Article 62 should be supplemented by a special jurisdictional link between the State seeking to intervene and the Parties to the case, by virtue of an interpretation reading Article 62 with Article 36, and taking into account the optional character of the Court's jurisdiction".
19. In its Observations on the Application of Italy, Libya first raises certain preliminary issues. Noting that there had been no negotiation, prior to that application, between Libya and Italy confirming the delimitation of their continental shelf and no dispute upon that subject had arisen, it observes that since [p25] the Italian claims were asserted for the first time in the application for permission to intervene, their validity was seriously open to challenge. To allow Italy to intervene at this late stage in the proceedings would create an unfair situation by placing Italy in an advantageous position vis-a-vis the main Parties, already committed as they were by the contents of their pleadings. During the oral proceedings, Libya contended that the absence of prior negotiations was abnormal in the case of a problem -- the delimitation of the continental shelf -- for whose solution international law prescribed agreement as the primary method, whereas it is only in the absence of such agreement that the States concerned should turn to procedures of pacific settlement. International practice accords with that principle, it observes, and Italy has itself concluded several delimitation agreements. But it has not entered into any negotiations with Libya with a view either to delimitation or to the conclusion of a special agreement for the institution of proceedings. Now Italy is seeking to make use of intervention procedure; but it is doing so by means of an application filed at so late a stage that, [p26] even if it was not in breach of Article 81, it runs counter to the tendency expressed by that Article in the 1978 Rules of Court.
20. Libya further denies that Italy has been able to establish the existence of any Italian interest of a legal nature which could be affected by the decision in the case. In its Observations it urges that the claims disclosed by the Italian Application remain so vague that they could not properly be the subject of an intervention; Italy's interest is neither defined nor localized. Furthermore, the 1976 Special Agreement does not in any way put in issue the rights of Italy but only rights and claims as between Libya and Malta. The Italian position could not be justified by any reference to "procedural law", since there is no precedent for permission to intervene in the Court's practice, and any analogy with municipal law would be misleading, since that law is based on compulsory jurisdiction. During the oral proceedings, Libya explained further that the Application "does not in fact take the Special Agreement of 23 May 1976 properly into consideration". The Italian argument based on similarity with the 1977 Tunisia/Libya Special Agreement (referred to in [p27] paragraph 16 above), was unsound particularly since the Libya/Malta agreement of 1976 left the Parties a margin for negotiations leading to a treaty, whereas the 1977 text simply provided for experts to apply the decision of the Court. Italy failed to recognize the strictly bilateral character of the delimitation to be effected. That character is more strictly denoted in the 1976 Special Agreement than in that of 1977. The relativity of delimitations stands confirmed in judicial and arbitral case-law. This constitutes both a necessity, in that bilateral delimitations have to be settled one by one, and a guarantee for third States. Furthermore, in the case of a decision by the Court, Italy's rights would be safeguarded by the application of Article 59 of its Statute. Thus the rights of third States would be protected by the constant attitude of the Court, without it being necessary to have recourse to intervention.
21. With regard to the object of the intervention, which according to Libya Italy had not been able to describe precisely, Libya refers in its Observations to Italy's statement of that object (quoted or summarized in paragraph 17 above), and contends that those declarations [p28] were so vague that they should induce the Court to adopt in their respect the same negative position as it had taken with regard to the Application of Malta for permission to intervene in the case between Tunisia and Libya. In any event, as the Court's Judgment on the dispute between Libya and Malta could not prejudice any Italian legal interest, the sole real object which the Italian Application could have was, in Libya's view, to make the Court aware of Italy's interest. But if that were so the Italian Application was not one in respect of which permission to intervene should be granted under Article 62 of the Statute. If, on the other hand, Italy really wishes to submit its claims against Libya (or Malta) to adjudication, the appropriate procedure should be negotiations between Italy and Libya or Malta, not that of an intervention, which would widen the scope and disrupt the development of the case already referred to the Court.
22. During the oral proceedings Italy did, Libya conceded, furnish certain indications regarding the object of its Application. These, however, had not removed all ambiguity. It remained unclear whether Italy proposed to defend its rights by merely supplying [p29] the Court with information or whether it intended to put in issue its own claims to certain areas. The purpose of merely informing the Court would not justify an intervention, while if, on the other hand, Italy sought to assert its rights against Libya or Malta as a party to the case, that could not be regarded as an intervention but would be an entirely new case. Moreover, the indications provided by Italy served to demonstrate that the Court could properly discharge its task without the admission of Italy to intervene. By the effect of Article 59 of the Statute, the Court's judgment would be binding only upon the Parties but would be relative and non-opposable to Italy; that State would in no way be bound by the operative provisions of that judgment. Italy would be protected by the relative effect of judicial decisions, the fact that delimitation agreements are always concluded subject to the rights of third States and, finally, the fact that the Special Agreement of 1976 did not place any rights in issue except as between Libya and Malta.
23. In its Observations Libya also contends that the Italian Application should be dismissed on account of the requirements imposed by the Statute [p30] and the Rules of Court in regard to jurisdiction. The sole possible basis of the Court's competence is the common and mutual consent of the States involved. But there was not even a prima facie link of jurisdiction between Libya and Italy. Article 62 in itself could not constitute such a link. If the Italian contentions were accepted, the provision of the Rules of Court concerning the basis of jurisdiction, which implies that Article 62 cannot create in itself that basis, would be meaningless. During the oral proceedings, Libya further observed that the fact that Italy had expressed its intention of becoming a party and requesting a judgment in its favour was highly relevant in determining whether the Court had jurisdiction. That jurisdiction flowed from a dual consent, made up of accession to the Statute and subsequent acceptance of a basis of jurisdiction. There could be no presumption of such acceptance and, whatever its form, it must be clearly and distinctly expressed. That basis of jurisdiction was not provided by Article 62. This conclusion could be drawn from the location of this Article within the Statute, from Article 81, paragraph 2 (c), of the Rules of Court (which, [p31] while unable to derogate from the Statute, provided an authoritative interpretation thereof, and at the least signified that the question of jurisdiction could be relevant or even decisive), by the authority of jurists of unimpeachable competence, including several judges of the Court, and. finally, by the respect owed to the principles of reciprocity and equality between States. Those principles would be violated if intervention was made exempt from the requirement of a common and mutual consent of the three States, since the initial Parties would be constrained to submit themselves to the Court's jurisdiction to a degree exceeding the corresponding obligations of the intervener, which would enjoy a right not possessed by the original Parties.
24. Libya also disputed each of the Italian arguments regarding the interpretation of Article 62. It argued that once the decision had been taken to subject the Court's jurisdiction to the consent of States, the draftsmen of the Statute would have said so in terms had they wished to exclude the case of intervention from that decision. All that Article 62 conferred upon the Court was an incidental jurisdiction, one quite distinct from jurisdiction [p32] for dealing with matters of substance; otherwise, that Article would automatically and covertly institute a form of compulsory jurisdiction, all possibility of reservations to which would be excluded. The Italian contention that States referring a dispute to the Court by means of a special agreement accept the provisions of the Statute authorizing the intervention of any State substantiating a legal interest would be correct only if such a derogation from the principle of the equality of States had a clear and express legal basis, which it had not. Even supposing such implicit consent to be conceivable, it should at least relate to a specific pre-existing dispute, which is not the case here. The Special Agreement could not serve as an implicit basis for the Italian intervention, which would virtually involve its revision.
25. Malta contends that Italy's application "relates to a claim which Italy has never before formulated". According to Malta, its discussions with Italy since 1965 have concerned only the areas of continental shelf between Malta and Sicily, or Malta and the Pelagian Islands, and have not concerned the areas to which it has in its Application indicated claims. Malta [p33] has further pointed out that, whereas in 1981 it had had occasion publicly to expound its own claims when presenting its own application for permission to intervene, Italy did not, either then or later, give utterance to any conflicting claims. In particular, Malta maintains that Italy has never made "reference to any claim to any continental shelf area anywhere extending beyond the median line", so that Malta is entitled to consider that Italy has never objected to the median line method it had accepted in regard to the Channel between Malta and Sicily and proposed for the delimitation between Malta and the Pelagian Islands. Malta accordingly concludes on the one hand that no dispute exists between it and Italy and, on the other hand, that "Italy is now estopped from asserting its claim against Malta by way of an application to intervene". The application must be rejected, as Italy has failed to provide evidence of a dispute. For, according to Malta, if a dispute cannot be submitted to the Court in direct contentious proceedings until its character and dimensions have been established by prior negotiation, the same must a fortiori apply to "a comparable application to intervene [p34] in proceedings commenced by agreement, and pending between two States". Since Italy has not availed itself of its many opportunities of clearly pointing out to Malta the existence of a disagreement or dispute concerning areas other than those between Malta and the Pelagian Islands, it has, by its "silence" and "inactivity", laid itself open to having the claims it would now seek to assert declared inadmissible by virtue of estoppel or preclusion.
26. Malta considers that the nature of the interest relied upon by Italy has been insufficiently specified and that the application makes the object of the intervention dependent upon that vaguely expressed interest, with the result that this object also is, necessarily, obscure. Malta asserts that Italy's interest could not in any event be affected by the decision in the present case, since the Court's decision, confined at it must be to the questions submitted in the Special Agreement, could not affect the rights and claims of third States, either in its reasoning or in its operative provisions. So far as those States are concerned, it will be res inter altos acta, and cannot be creative of more rights or obligations for Italy than [p35] any Libya-Malta delimitation resulting from direct negotiations between those two countries. Malta also remarks that, whereas Italy's present position differs little, from the formal viewpoint, from Malta's own at the time of its endeavour to intervene in 1981 in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) there is a distinction of substance in that Italy. Malta says, has not provided a shred of evidence concerning its claims. In Malta's view, Italy has remained ambiguous about the status and role in the proceedings which it has sought to acquire by its application for permission to intervene.
27. Malta contends that Italy has not established the existence of a jurisdictional link between it and the two main Parties. While admitting that in the case between Tunisia and Libya the Court did not have formally to decide whether the possession of a jurisdictional link was a necessary condition for the granting of an application for permission to intervene, it considers that both the Court's Judgment and the separate opinions appended on that occasion showed due
"concern to protect the exclusivity of the relationship between two States which by special [p36] agreement jointly submit a dispute to the Court, to preserve the basis on which that agreement was reached and to safeguard the principle that the Court's jurisdiction is based upon consent".
Malta contends that the result of allowing Italy's intervention would be to disregard the principles of reciprocity and of the equality of parties' rights and obligations, to modify and widen the scope of the Special Agreement drawn up between the Parties and to lead the Court to pronounce upon matters which are not only unenvisaged by that Special Agreement but even remain hitherto unknown to the Parties.
28. Some of the arguments of the Parties to the case, Malta and the Libyan Arab Jamahiriya, have been put forward in effect as grounds for rejecting the Italian Application in limine, without there being any need for further examination of its compliance with Article 62 of the Statute of the Court. For reasons that will become clear, the Court does not find it necessary to examine whether these contentions are really of a preliminary character, or to deal with them separately from the other objections made by the Parties. The Court will confine itself to those considerations which are [p37] in its view necessary to the decision which it has to give. On that basis, in order to determine whether the Italian request is justified, the Court should consider the interest of a legal nature which, it is claimed, may be affected. However, it must do this by assessing the object of the Application and the way in which that object corresponds to what is contemplated by the Statute, Article 62 of the Statute provides for intervention by a State which considers that it has an interest of a legal nature which "may be affected by the decision in the case" or which is "en cause", and thus envisages that the object of the intervening State will be to ensure the protection or safeguarding of its "interest of a legal nature", by preventing it from being "affected" by the decision. The Court has therefore to consider whether or not the object of the intervention is such protection or safeguarding. In its Judgment of 14 April 1981 in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) the Court noted that
"the very character of the intervention for which Malta seeks permission shows, in the view of the Court, that the interest of the legal nature invoked [p38] 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" (I.C.J. Reports 1981, p. 19, para. 33 in fine).
Italy has recognized that the object of the intervention and the nature of the legal interest invoked were linked; as noted in paragraph 17 above, the Application states that
"The object of the intervention which Italy seeks authorization to make directly follows both from the definition of its legal interest which may be affected, and from the very object of the case which has been brought before the Court."
29. Italy has emphasized in the present proceedings that it is making no claim against either of the two principal Parties, that it is not seeking a decision by the Court delimiting its own areas of continental shelf, nor a decision declaring the principles and rules of international law applicable to such a delimitation. Normally, the scope of a decision of the Court is defined by the claims or submissions of the parties before it and in the case of an intervention it is thus by reference to the definition of its interest of a legal nature and the object indicated by the State [p39] seeking to intervene that the Court should judge whether or not the intervention is admissible. However, as the Court observed in the Nuclear Tests cases with reference to an application instituting proceedings "it is the Court's duty to isolate the real issue in the case and to identify the object of the claim" (I.C.J. Reports 1974, p. 262, para. 291, and again:
"the Court must ascertain the true object and purpose of the claim and in doing so it cannot confine itself to the ordinary meaning of the words used; it must take into account the Application as a whole, the arguments of the Applicant before the Court, the diplomatic exchanges brought to the Court's attention, . . ." (ibid., p. 263, para. 30).
Similarly, in the case of the present Application for permission to intervene, the Court must take all these circumstances into account as well as the nature of the subject-matter of the proceedings instituted by Libya and Malta. While formally Italy requests the Court to safeguard its rights, it appears to the Court that the unavoidable practical effect of its request is that the Court will be called upon to recognize those rights, and hence, for the purpose of being [p40] able to do so, to make a finding, at least in part, on disputes between Italy and one or both of the Parties.
30. Italy is requesting the Court to pronounce only on what genuinely appertains to Malta and Libya, and to refrain from allocating to these States any areas of continental shelf over which Italy has rights. But for the Court to be able to carry out such an operation, it must first determine the areas over which Italy has rights and those over which it has none. As regards the first areas, once they are identified, the Court will be able to refrain from declaring that they appertain either to Libya or to Malta. As regards the second areas the Court will then be able to carry out the operation requested by the Special Agreement between Malta and Libya. Thus in a decision given by the Court after Italy had been admitted to intervene and assert its rights, the juxtaposition between, on the one hand, the areas involved in the Court's operation under the Special Agreement and, on the other hand, the areas in regard to which the Court would refrain from carrying out such an operation, would be tantamount to the Court's having made findings, first as to the existence of Italian rights [p41] over certain areas, or as from certain geographical points or sets of points; and secondly as to the absence of such Italian rights in other areas, or as from certain geographical points or sets of points.
Separate Opinion of
African Commission on Human and Peoples' Rights
Central American Court of Justice
Committee Against Torture
Committee on the Elimination of Discrimination against Women | Committee on the Elimination of Racial Discrimination
Economic Court of the Commonwealth of Independent States | International Commissions of Inquiry | International Court of Justice
International Prize Court | Permanent Court of International Justice
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