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[p.215]
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 48 and 63 of the Statute of the Court,
Having regard to Articles 82, 83 and 84 of the Rules of Court,
Having regard to the Application by Nicaragua filed in the Registry of the
Court on 9 April 1984, instituting proceedings against the United States of
America in respect of a dispute concerning military and paramilitary
activities in and against Nicaragua;
Having regard to the Declaration of Intervention, under the terms of Article
63 of the Statute, made by the Republic of El Salvador on 15 August 1984 and
filed in the Registry the same day, in relation to the proceedings
instituted by Nicaragua against the United States of America, as
supplemented by a letter dated 10 September 1984,[p 216]
Having regard to the written observations on that Declaration submitted by
the Government of Nicaragua and the Government of the United States of
America, respectively,
Makes the following Order:
1. Whereas by its Order of 10 May 1984 the Court decided inter alia that the
written proceedings in the case should first be addressed to the question of
the jurisdiction of the Court to entertain the dispute between Nicaragua and
the United States of America and of the admissibility of Nicaragua's
Application;
2. Whereas the Declaration of Intervention of the Republic of El Salvador,
which relates to the present phase of the proceedings, addresses itself also
in effect to matters, including the construction of conventions, which
presuppose that the Court has jurisdiction to entertain the dispute between
Nicaragua and the United States of America and that Nicaragua's Application
against the United States of America in respect of that dispute is
admissible;
3. Whereas the Court notes that in its Declaration of Intervention the
Republic of El Salvador
"reserves the right in a later substantive phase of the case to address the
interpretation and application of the conventions to which it is also a
party relevant to that phase";
The Court,
(i) By nine votes to six,
Decides not to hold a hearing on the Declaration of Intervention of the
Republic of El Salvador,
In favour: President Elias; Vice-President Sette-Camara; Judges Lachs,
Morozov, Nagendra Singh, Oda, El-Khani, Mbaye, Bedjaoui.
against: Judges Ruda, Mosler, Ago, Schwebel, Sir Robert Jennings, de
Lacharriere.
(ii) By fourteen votes to one,
Decides that the declaration of intervention of the Republic of El Salvador
is inadmissible inasmuch as it relates to the current phase of the
proceedings brought by Nicaragua against the United States of America,
In favour: President Elias; Vice-President Sette-Camara; Judges Lachs,
Morozov, Nagendra Singh, Ruda, Mosler, Oda, Ago, El-Khani, Sir Robert
Jennings, de Lacharriere, Mbaye, Bedjaoui.
Against: Judge Schwebel.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this fourth day of October, one thousand [p 217]
nine hundred and eighty-four, in four copies, one of which will be
deposited in the archives of the Court, and the others transmitted to the
Government of El Salvador, the Government of Nicaragua, and the Government
of the United States of America, respectively.
(Signed) T. O. Elias,
President.
(Signed) Santiago Torres Bernαrdez,
Registrar.
Judge Nagendra Singh appends a separate opinion to the Order; Judges Ruda,
Mosler, Ago, Sir Robert Jennings and de Lacharriere append a joint separate
opinion to the Order; Judges Oda and Bedjaoui append a separate opinion to
the Order.
Judge SCHWEBEL appends a dissenting opinion to the Order.
(Initialled) T.O.E.
(Initialled) S.T.B.
[p 218]
Separate opinion of judge Nagendra
Singh
A tribunal has normally always to respect the principle of judicial
propriety that an applicant before it has to be heard before its request is
rejected, unless of course the request is prima facie absurd or totally
inadmissible, which does not appear to be so in this case. Being a firm
believer in the salutary principle of giving a hearing to an applicant who
has particularly asked for it, I have strongly felt the need to explain the
circumstances which have led me to vote in this case.
It has been explained in paragraph 2 of the Court's Order that El Salvador's
Declaration in effect appears directed to the merits of the case -an
observation with which I do agree and which has also weighed with the Court.
I feel, therefore, that if a hearing were ever to be granted to El Salvador
at the present first phase there would inevitably be arguments presented
touching the merits, which aspect belongs to the second phase of the case
after the Court's jurisdiction to deal with the dispute has been
established. If, therefore, El Salvador's request for a hearing had been
granted at this stage, it would have amounted to two hearings on merits,
which could not be acceptable to any tribunal because of the confusion it
would cause all round. In fact this would be both undesirable and
untenable. In view of the aforesaid difficulty, I have found reason to
support the decision of the Court not to have a hearing at this stage, but
to keep alive the right of El Salvador to make a Declaration at the next
phase of the case when merits are dealt with vide paragraph 3 of the Court's
Order which does take note of the intention of the applicant. Furthermore,
the decision not to have a hearing at this stage was emphasized by the fact
that the Court had come to the conclusion on the basis of near unanimity (14
v. 1) that El Salvador's Declaration was inadmissible. The decision of
inadmissibility of El Salvador's Declaration taken by the Court before it
had heard the applicant intervener rendered the need for a hearing a mere
formality despite the principle that "justice has also to be shown to be
done". The Court's decision therefore directed towards placing things in the
order and sequence in which they rightly belong is a helpful one,
particularly as it does not totally reject the applicant's request but
agrees to consider it at the proper and appropriate time. In the
circumstances it would appear that the ends of justice would be adequately
met by the Court's Order which could not be interpreted to give a raw deal,
as it were, to El Salvador, the applicant before it. The aforesaid reasoning
weighed with me to the extent that I voted with the Court's majority
verdict.
(Signed) Nagendra Singh.
[p 219]
Separates opinion of judge Ruda, Mosler, Ago, sir Robert Jennings and de
Lacharriere
1. Article 63 of the Statute of the Court provides for a right of
intervention in proceedings before it, "Whenever the construction of a
convention to which States other than those concerned in the case are
parties is in question". Where those conditions are fulfilled, a State
wishing to intervene has a right to do so, and it is not for the Court to
grant or withhold permission. Nevertheless, it is for the Court to decide in
each case whether or not the conditions for such intervention, laid down in
Article 63, are fulfilled.
2. Accordingly, Article 82 of the Court's Rules provides that a State
desiring to avail itself of the right of intervention conferred upon it by
Article 63 shall file a declaration; which declaration shall contain inter
alia:
"(b) identification of the particular provisions of the convention the
construction of which it considers to be in question;
(c) a statement of the construction of those provisions for which it
contends".
3. We have voted with the majority of the Court in deciding that El
Salvador's declaration of intervention is inadmissible in the present phase
of the proceedings, because we have not been able to find, in El Salvador's
written communications to the Court, the necessary identification of such
particular provision or provisions which it considers to be in question in
the jurisdictional phase of the case between Nicaragua and the United
States; nor of the construction of such provision or provisions for which it
contends. Furthermore, the brief references made in this regard have not
convinced us that El Salvador's request is in accordance with what is
contemplated by Article 63 of the Court's Statute.
4. We differ, however, from the Court on the question whether or not El
Salvador should have been granted an oral hearing. In our opinion, it would
have been more in accordance with judicial propriety if the Court had
granted a hearing to the State seeking to intervene, and had not decided
only on the basis of the written communications.
(Signed) J. M. Ruda.
(Signed) Hermann Mosler.
(Signed) Roberto Ago.
(Signed) R. Y. Jennings.
(Signed) Guy de Lacharriere.
[p 220]
Separate opinion of judge Oda
1. For purely procedural reasons, I did not support the request of El
Salvador for an oral hearing relating to its Declaration of Intervention at
this present stage. I wish in this opinion to clarify those reasons and to
express my unease at what I believe to have been unfortunate aspects of the
procedure followed by the Court in this case.
*
2. El Salvador's Declaration of Intervention dated 15 August 1984, which
appeared mainly directed to the merits of the case, was vague and did not
appear to satisfy the requirements of Article 82, paragraph 2 (b) and (c),
of the Rules of Court for an intervention at the present stage. On the same
date, the Court asked the Parties for their written observations on El
Salvador's Declaration, and Nicaragua and the United States responded on 10
and 14 September respectively. El Salvador's Declaration was later
supplemented by its communications of 10 and 17 September, which could be
said to meet the terms of Article 82 of the Rules. Since El Salvador's
requests should have been considered as a whole, I regret that the Court did
not attempt to ascertain the views of Nicaragua and the United States on
these two subsequent communications from El Salvador. There seems to me to
have been no reason why the Court should not, ex proprio motu, have ensured
that it was in possession of the views of Nicaragua and the United States
on these important additions to El Salvador's Declaration and, in
particular, on the admissibility of El Salvador's intervention at this
jurisdictional stage.
3. Article 84, paragraph 2, of the Rules of Court states:
"If... an objection is filed to an application for permission to intervene,
or to the admissibility of a declaration of intervention, the Court shall
hear the State seeking to intervene and the parties before deciding."
If the observations by Nicaragua dated 10 September had been interpreted,
as I believe they should, as objecting to El Salvador's intervention at this
stage, Article 84, paragraph 2, would have clearly applied. Yet, as I
understand it, the majority of the Court did not take that view; otherwise
the Court would have been obliged to hear the views of El Salvador and of
the Parties. I voted against a hearing only because the Court was of the
view that Nicaragua had not objected.
*[p 221]
4. It was also regrettable that the date of Monday 8 October had already
been fixed for the commencement of the oral hearings between Nicaragua and
the United States, and that a communique was issued on 27 September to that
effect, even before the Court met to deal with El Salvador's Declaration on
Thursday 4 October. Thus the impression could have been gained that the
Court already took it for granted that the oral hearing of El Salvador's
Application would not be necessary and that its Declaration would be found
inadmissible. In fact, El Salvador's request for an oral hearing at the
jurisdictional stage was denied and the question of the admissibility of El
Salvador's intervention at the present stage was dealt with on 4 October,
after only one day's deliberations.
*
5. Had El Salvador's initial Declaration been properly formulated, had
Nicaragua's observations been properly interpreted, and had the procedures
of the Court been properly pursued, El Salvador's Declaration might well
have been the first case of intervention under Article 63 of the Statute to
be considered by the Court at a jurisdictional phase of a case.
(Signed) Shigeru Oda.
[p 222]
Separate opinion of judge Bedjaoui
[Translation]
To my regret, I was unable to vote in favour of the idea of giving a hearing
to the Republic of El Salvador.
As it had been shown to be impossible for the Court to proceed to a separate
examination, first of the question whether a hearing should be held and,
secondly, of that of the Application to intervene itself, it seemed to me
that under these circumstances a decision on the Application to intervene
would inevitably entail the same conclusion with regard to the question of
holding a hearing.
One cannot, at one and the same time, support the rejection of the
Application to intervene while agreeing to the holding of a hearing to
examine such an Application. Once the Court reached the conclusion that the
Application by El Salvador to intervene was inadmissible, to hold a hearing
became logically pointless, procedurally artificial and equivocal, and
dangerously likely to inspire El Salvador with vain hopes.
(Signed) Mohammed Bedjaoui.
[p 223]
Dissenting opinion of judge Schwebel
I regret that I must dissent from the Court's Order. I dissent because of
the decision of the Court not to hold a hearing on the Declaration of
Intervention of El Salvador, a decision which departs from the observance of
due process of law which the Court has traditionally upheld. Moreover, in
the absence of hearing El Salvador, it has not been possible to resolve
satisfactorily questions which its Declaration poses. That Declaration
raises doubts, but for my part I am unwilling to resolve those doubts
against El Salvador without affording it the opportunity of clarifying its
position. Accordingly, once the Court declined to hear El Salvador, I felt
obliged to vote in favour of admitting its right of intervention under
Article 63 of the Statute, even though I recognize that neither the terms of
its Declaration nor the law of the matter are altogether clear.
I. The Terms and Meaning of El Salvador's Declaration of Intervention
Article 63 of the Court's Statute provides:
"1. Whenever the construction of a convention to which States other than
those concerned in the case are parties is in question, the Registrar shall
notify all such States forthwith.
2. Every State so notified has the right to intervene in the proceedings;
but if it uses this right, the construction given by the judgment will be
equally binding upon it."
El Salvador filed a Declaration of Intervention under Article 63 on 15
August 1984. Paragraph XIV of that Declaration sets forth what El Salvador
maintains are the grounds of its intervention:
"... Nicaragua bases its jurisdictional claim on Article 36 of the Statute
of the Court... Nicaragua founds its principal claim against the United
States on supposed violations of the Charter of the United Nations, the
Charter of the Organization of American States, the Convention on Rights and
Duties of States, and the Convention Relative to the Duties and Rights of
States in the Event of Civil Strife...
Assuming arguendo the supposed validity of Nicaragua's jurisdictional
allegation, El Salvador also is a party to the Statute of the International
Court,... and... the Charter of the United Nations ... It became a member of
the Organization of American States ... It [p 224] became a member of the
Convention Relative to the Duties and Rights of States in the Event of Civil
Strife... It ratified the Convention on Rights and Duties of States ...
Therefore, El Salvador is party to all the multilateral conventions on which
Nicaragua alleges the jurisdictional basis of its substantive claims.
These treaties give to El Salvador equally the right to demand that
Nicaragua cease in its overt intervention in our internal affairs, and El
Salvador considers, and this is a reason for intervening in the case of
Nicaragua v. the United States, that all these multilateral treaties and
conventions constitute the lawful mechanisms for the resolution of
conflicts, having priority over the assumption of jurisdiction by the
International Court of Justice ...
In the opinion of El Salvador,... it is not possible for the Court to
adjudicate Nicaragua's claims against the United States without determining
the legitimacy or the legality of any armed action in which Nicaragua claims
the United States has engaged and, hence, without determining the rights of
El Salvador and the United States to engage in collective actions of
legitimate defence. Nicaragua's claims against the United States are
directly interrelated with El Salvador's claims against Nicaragua.
Any case against the United States based on the aid provided by that nation
at El Salvador's express request, in order to exercise the legitimate act of
self defence, cannot be carried out without involving some adjudication,
acknowledgment, or attribution of the rights which any nation has under
Article 51 of the United Nations Charter to act collectively in legitimate
defence. This makes inadmissible jurisdictional action by the Court in the
absence of the participation of Central America and specifically El
Salvador, in whose absence the Court lacks jurisdiction.
Finally, El Salvador points to the fact that it has entered a reservation
concerning acceptance of the Court's jurisdiction, with specific reference
to disputes relating to facts or situations involving hostilities, armed
conflicts, individual or collective acts of legitimate defence, resistance
to aggression, fulfilment of obligations imposed by international
organizations, and other similar acts, measures, or situations in which El
Salvador is, has been, or might be an involved party."
This Declaration did not adequately meet the specifications set forth in
Article 82, paragraph 2, of the Rules of Court ; in particular, it failed to
identify the particular provisions of the conventions whose construction El
Salvador considered to be in question, and it did not contain a state [p
225] ment of the construction of those provisions for which El Salvador
contends.
However, on 10 September 1984, El Salvador submitted to the Registrar a
letter which amplified its Declaration in clearer terms, which conformed to
the essential requirements of Article 82, paragraph 2, of the Rules.
Paragraphs 1 and 3 of that letter read as follows:
"1. The construction of international conventions to which El Salvador is a
party is centrally involved in the Court's forthcoming consideration of the
Jurisdiction of the Court and of the admissibility of Nicaragua's
application. El Salvador asserts its automatic right to intervene in this
phase or stage of the proceedings in order to address the threshold
questions of the construction of Article 36 of the Statute of the Court, and
correlatively the construction of the relevant provisions of the Charter of
the United Nations, in particular Articles 39, 51 and 52. El Salvador is a
party to both these conventions, as set forth in its Declaration. El
Salvador will contend that those provisions should be construed to deny the
jurisdiction of the Court to consider and apply the conventional principles
of international law relied on by Nicaragua to an ongoing armed conflict
such as is presently underway in Central America, and will contend that the
application of Nicaragua is inadmissible by a process of similar reasoning.
El Salvador will particularly contend that this construction is appropriate
with respect to Articles 39, 51 and 52 of the Charter, inter alia, and to
Article 36 of the Statute, because:
- these provisions, properly construed, contemplate that the application of
the principles on which Nicaragua relies to an ongoing armed conflict is a
political, not a judicial question, and that the exclusive appropriate fora
for consideration of the search for peace in ongoing armed conflict is
through the established processes of the political organs of the
international system;
- these conventional provisions properly construed deny jurisdiction to the
Court with respect to an ongoing armed conflict, make clear that nothing in
the Charter including the actions of the Court under the Statute shall
affect the right of individual or collective self-defence and make clear
that such armed conflict is not a legal dispute within the competence of the
Court; and
- that those provisions properly construed make the States of Central
America indispensable parties to any proceeding concerned with the ongoing
Central American conflict, and since these States are not parties to the
proceeding it cannot go forward.
[p 226]
3. El Salvador thus invokes its right to intervene in a way which strictly
conforms to the conditions of Article 63. Its intervention is limited. It
seeks to speak only to the construction of the conventions to which it is a
party. Thus, it does not propose to address the question whether Nicaragua
ratified the Protocol of Signature of the Statute of the Permanent Court of
International Justice, referred to in the Court's Order of 10 May 1984... El
Salvador may address the effectiveness of the declaration of the United
States of 6 April 1984, under Article 36, paragraph 2, of the Statute,
referred to in ... the Order of 10 May 1984, only to the extent that the
Court's determination of the question might affect the reservation of El
Salvador to the Court's jurisdiction."
It is accordingly clear that El Salvador sought to intervene in the
jurisdictional phase of the proceedings between Nicaragua and the United
States to argue that a proper construction of Article 36 of the Statute of
the Court, and of Articles 39, 51 and 52 of the Charter, debar the Court
from addressing the merits of Nicaragua's claims. Its argument appears to be
more addressed to the admissibility of the claims of Nicaragua than to the
Court's jurisdiction over them ; the principal thrust of El Salvador's
contentions is that the resolution of an ongoing armed conflict is remitted
to the political organs of the international system (in this case, the
United Nations and regional arrangements) rather than to the Court.
However, this does not appear to be the whole of El Salvador's argument,
for it also relies on the terms of Article 36 of the Statute and on
adherences to the Court's compulsory jurisdiction under the Optional Clause
of that article, as well as on provisions of the OAS Charter and two other
inter-American conventions. The intendment of El Salvador's argument in
these respects requires clarification, clarification which could have been
sought by putting questions to El Salvador, either in the course of an oral
hearing of otherwise.
In the absence of that hearing, and because the Court declined to put such
questions to El Salvador before the Court convened to examine its
Declaration, it is not possible to be certain of the meaning of El
Salvador's contentions. But as far as I can make them out, at least as they
relate to the United Nations Charter, the Statute and the Optional Clause,
they appear to be as follows.
El Salvador maintains that Nicaragua's substantive case against the United
States, which is essentially based on four multilateral treaties to which El
Salvador equally is party, bears upon exercise of El Salvador's right of
collective self-defence together with the United States. El Salvador
observes that it has not consented (by the terms of its adherence to the
Optional Clause which excludes disputes relating to individual or
collective actions taken in self-defence), and does not consent, to a case
being brought before the Court by Nicaragua against it. El Salvador thus
argues [p 227]that Nicaragua's case against the United States is equally
inadmissible and beyond the Court's jurisdiction. The logic of this aspect
of El Salvador's claim to intervene under Article 63 in the jurisdictional
phase of the instant case may be summarized in this way:
First, El Salvador claims to be acting in collective self-defence with the
United States to resist Nicaraguan intervention and aggression;
Second, the United States claims to be acting in collective self-defence
with El Salvador to resist Nicaraguan intervention in and aggression against
El Salvador;
Third, El Salvador itself, by reason of the terms of its adherence to the
Court's compulsory jurisdiction, is not subject to the Court's jurisdiction
in this class of matter involving claims of aggression, self-defence, etc.,
and El Salvador does not consent to the Court's jurisdiction;
Fourth, the Court cannot adjudge the legality of the actions of the United
States of which Nicaragua complains without in effect adjudging the legality
of the actions of El Salvador, for the United States and El Salvador act
jointly in collective self-defence against Nicaragua;
Fifth, since the Court cannot exercise jurisdiction either in the absence of
El Salvador whose rights are at issue, or where Nicaragua directly seeks to
bring El Salvador before the Court in this class of matter, it equally
cannot exercise jurisdiction where the effect of Nicaragua's action against
the United States - were the Court to assume jurisdiction over it - would be
indirectly to bring El Salvador's rights before the Court in the very class
of matter which El Salvador's adherence to the Court's compulsory juris
diction excludes.
II. The Failure to Accord El Salvador a Hearing
Article 84 of the Rules of Court provides:
"1. The Court shall decide... whether an intervention under Article 63 of
the Statute is admissible, as a matter of priority unless in view of the
circumstances of the case the Court shall otherwise determine.
2. If,... an objection is filed... to the admissibility of a declaration of
intervention, the Court shall hear the State seeking to intervene and the
parties before deciding."
Pursuant to Article 83 of the Rules, Nicaragua and the United States were
invited to furnish their written observations on El Salvador's Declaration.
The United States, in a letter of 14 September 1984, extensively examined
the right of intervention under Article 63, and concluded that it is:[p 228]
"... in the nature of intervention under Article 63 that it could be limited
to one or another stage of proceedings, depending on the questions of treaty
interpretation which form the basis for the right to intervene. Moreover,
the interpretation contended for by the intervening State may itself imply
such a limitation. This would appear to be the case here, since a major
purpose of El Salvador's intervention is to argue that consideration of the
merits of the Nicaraguan Application would be contrary to the Charter of
the United Nations, with serious prejudice to El Salvador's interests and
rights.
In sum, the United States respectfully submits its view that El Salvador is
entitled to intervene in this case pursuant to Article 63 of the Statute of
the Court, as a State party to multilateral conventions whose construction
is at issue in this phase of the case. Further, as we understand the object
and scope of El Salvador's proposed intervention, it is appropriately
related and inherently limited to the current phase of proceedings.
Accordingly, the United States sees no ground for objection to the
admissibility of this intervention."
Nicaragua's letter of 10 September 1984 was not as straightforward. Since
interpretation of the terms of that letter is essential to evaluating the
Court's application of Article 84 of its Rules, it will be extensively
quoted:
"1. Nicaragua has no objection in principle to a proper intervention by El
Salvador in this case in accordance with Article 63 of the Statute of the
Court and Articles 82-85 of the Rules of Court. Nicaragua's Application, in
addition to claims under general international law, asserts claims under
certain conventions. It is well established that any State may intervene as
of right under Article 63 in a case involving the interpretation of a
convention to which it is a party if it meets the requirements of the
Article and the relevant Rules.
2. Although Nicaragua has no intention to oppose El Salvador's intervention,
it feels bound to call the Court's attention to certain deficiencies, both
as to form and substance, in the Declaration of Intervention.
3. As to form: The declaration purports to be made under Article 63 of the
Statute of the Court. (That Article permits intervention by a State that is
party to a convention the construction of which is in question in the case.)
Article 82 of the Rules of the Court, which governs interventions under
Article 63, provides that a declaration of intervention
'shall contain:
..
[p 229]
(b) identification of the particular provisions of the convention the
construction of which (the declarant) considers to be in question;
(c) a statement of the construction of those provisions for which it
contends.'
The Declaration of El Salvador contains no such 'identification' and no such
'statement'.
4. The requirements of Article 82 of the Rules are not mere matters of form.
They are necessary to ensure that the intervention falls properly within the
provisions of Article 63 of the Statute, and to make clear what portions of
the Court's judgment are binding on the intervenor in accordance with that
Article.
5. As to substance: The declaration states that El Salvador seeks to
intervene for the sole and limited purpose of arguing that this Court does
not have jurisdiction over Nicaragua's application of the claims set forth
therein, that for multiple reasons the Court should declare itself unable to
proceed concerning such application and claims, and that such application
and claims are inadmissible.
To another point the Declaration states that El Salvadore:
'also wishes to participate in order to make it a matter of record that
contrary to what Nicaragua has asserted in its allegation in this case, El
Salvador considers itself under the pressure of an effective armed attack on
the part of Nicaragua'.
Article 63 of the Statute, however, does not permit intervention for the
purpose of opposing jurisdiction or to make things a 'matter of record', but
only for the purpose of the interpretation of an identified provision of a
convention to which the intervenor is a party...
In Nicaragua's view, the prompt disposition of the present jurisdictional
phase of the case and a speedy determination of the merits is a matter of
utmost urgency. In agreeing in principle to the intervention of El
Salvador, Nicaragua does so on the understanding that such intervention
shall not become the occasion for delaying the proceedings."
Thus, while Nicaragua purported in its letter not to have filed "an
objection" to the admissibility of El Salvador's Declaration of
Intervention, it voiced objections. It characterized these objections as
"deficiencies, both as to form and substance, in the Declaration of
Intervention". Those of form related to requirements which Nicaragua
describes as "necessary to ensure that the intervention falls properly
within the provisions of Article 63 of the Statute". Those of substance led
Nicaragua to conclude[p 230] that "Article 63 of the Statute . . . does not
permit intervention for the purpose of opposing jurisdiction...", that is,
the very purpose for which El Salvador sought to intervene. Now it is plain
that if what Nicaragua called deficiencies in form were so serious as to
result in El Salvador's having failed to do what was "necessary" to comply
with Article 63, and that if what Nicaragua called deficiencies of substance
were so serious as not to "permit intervention" under Article 63, then
Nicaragua objected to El Salvador's Declaration on these grounds. It
objected in fact even if it professed to agree "in principle".
El Salvador, by letter of 17 September 1984, arrived at the following
evaluation of Nicaragua's written observations:
4. Nicaragua's observations constitute an attempt to object to El Salvador's
Declaration of Intervention while, at the same time, preventing El Salvador
from exercising its procedural right to oral proceedings before the Court
in the event of an objection. On the one hand, Nicaragua purports not to
object in order to avoid triggering El Salvador's automatic right to a
hearing under Article 84 (2) of the Rules of the Court when an 'objection'
is received. On the other hand, Nicaragua then launches a full-scale attack
on both the form and the substance of the Declaration in what constitutes as
strong and clear an 'objection' as one can imagine. Nicaragua, in short,
disclaims opposing El Salvador's intervention, but then offers lengthy
alternative explanations why the Court should find the intervention
inadmissible. It is inconceivable that the Court should proceed in the
peremptory and injudicious fashion that Nicaragua invites. Either Nicaragua
should be taken at its word and the Declaration of Intervention admitted as
the exercise of an automatic right fully consistent with Article 63 of the
Statute and Article 84 of the Rules due to the absence of any objection from
either party, or Nicaragua's observations must be recognized as the
objection that the document undeniably is and El Salvador allowed the oral
proceedings which Article 84 (2) of the Rules requires when an objection is
received."
The Court, however, disregarded not only what El Salvador's letter of 17
September says but what Nicaragua's letter of 10 September says. The Court
insisted on taking at full and face value what Nicaragua's letter says it
says rather than what it plainly said. The Court thereby found it possible
not to apply the mandatory terms of Article 84, paragraph 2, of its Rules,
which prescribe that, if an objection is filed to the admissibility of a
declaration of intervention, "the Court shall hear the State seeking to
intervene and the Parties before deciding". Nicaragua's written
observations contained in its letter of 10 September were carefully, indeed
artfully, crafted, but this was hardly reason to reward them with such an
application [p 231] of the Court's Rules. It is not the business of the
Court to restore the forms of action the wording of pleadings to that
exalted and determinative state from which they were long ago toppled in the
common law. If the Court is to deserve and maintain the confidence of
States, it must act with scrupulous regard to the letter and spirit of its
Rules. I am pained to find myself constrained to say that, in my view, the
Court has not demonstrated that regard in this case.
It should be added that, once the Court took the position, as it did, that
Nicaragua had not filed an objection to El Salvador's intervention, it
followed that neither Party to the principal case opposed according El
Salvador the right to intervene. That would appear to be a substantial
consideration in favour of the Court's treating El Salvador's Declaration as
admissible. But there is no indication that the Court gave weight to that
consideration.
Be that as it may, the Court remained free to hold a hearing on El
Salvador's Declaration, however it chose to interpret the written
observations of Nicaragua. El Salvador had requested a hearing. The
unanswered questions raised by El Salvador's communications, the fact that
this was only the second instance in this Court's history in which a State
sought to invoke Article 63 and the first in which it sought to intervene in
a jurisdictional phase of a case, as well as the fact that there were
questions which at least one judge of the Court wished to put to El
Salvador, indicated that a hearing should be held. Considerations of
judicial propriety, of the sovereign equality of States before the law, and
of fair play, required a hearing. Moreover, failure to hold a hearing
conflicts with the single prior precedent of the Court.
In the Haya de la Torre case, Cuba sought to intervene in terms to which a
Party to the case, Peru objected. The Court held a hearing (I.C.J.
Pleadings, Haya de la Torre, pp. 149-150), and granted Cuba the right to
intervene on a much more limited aspect of the case than Cuba initially
sought. The Court held that:
"Reduced in this way, and operating within these limits, the intervention
of the Government of Cuba conformed to the conditions of Article 63 of the
Statute, and the Court. . . decided ... to admit the intervention ..." (Haya
de la Torre, Judgment, I.C.J. Reports 1951, p. 77.)
Now it is important to recall that the Rules of Court in force at that time
did not provide for a hearing in respect of the admissibility of
declarations filed under Article 63. The pertinent Rule then provided: "If
any objection or doubt should arise as to whether the intervention is
admissible under Article 63 of the Statute, the decision shall rest with the
Court." Nev-ertheless, in the face of an objection or doubt, the Court did
accord Cuba a hearing, and was able to narrow the scope of the intervention
which Cuba [p 232] sought to permissible limits. In this case, the Court has
disregarded the instructive precedent which the Haya de la Torre case
provides. Far from holding a hearing which the current Rules do require, and
far from endeavouring to reduce El Salvador's intervention to those limits
which it adjudged to be appropriate, the Court has contented itself with
dismissing El Salvador's Declaration in terse terms.
That dismissal appears to have been foreshadowed by the Court's press
communique No. 84/28 which the President of the Court caused to be issued on
27 September 1984. The communique announced that, on 8 October 1984, the
Court will open a hearing on the questions of whether it has jurisdiction to
deal with the merits of the case brought by Nicaragua against the United
States and whether Nicaragua's application is admissible. The release
concluded with the following paragraph:
"Meanwhile, El Salvador has filed a declaration of intervention within the
meaning of Article 63 of the Court's Statute, which enables States to
intervene if notified that the interpretation of a treaty to which they are
party is in issue ... The Court's decision in regard to this declaration
will be made known to the press in a subsequent communique."
At the time of the issuance of this release, the Court had not met, and was
not scheduled to meet until 4 October 1984, but was in receipt of a
communication from the Agent of El Salvador of 24 September to the Registrar
which recounted that he had been informed by the Registry that any decision
the Court might take in connection with the Declaration of Intervention will
be communicated to the Agents of the Parties and to the Agent of El Salvador
prior to 8 October, on which date the President had fixed the opening of
oral proceedings on the questions of jurisdiction and admissibility. El
Salvador's communication of 24 September requested a postponement of the 8
October date, on the ground that it would be "difficult in the extreme for
El Salvador adequately to prepare" to take part in those hearings, the more
so since it had not yet been afforded access to the written pleadings of
Nicaragua and the United States on these questions.
In these circumstances, it must have been clear to El Salvador and others
who were closely following the matter that the time schedule fixed by the
President and announced to the press in the terms in which it was announced
had been shaped on the assumption that El Salvador's Declaration of
Intervention would be denied. The Court of course remained free to override
that assumption. But it hardly seems to be an assumption to have been made,
the more so since, in a letter of 14 September 1984 to the Registrar, the
United States had already drawn the matter to the Court's attention in these
terms:
"Article 86 of the Rules of Court provides that a State whose intervention
as of right under Article 63 of the Statute is admitted 'shall be furnished
with copies of the pleadings' of the Parties to the [p 233] case, and shall
be entitled to submit written observations on the subject-matter of its
intervention 'within a time-limit to be fixed ...'. In his letter of 10
September, the Agent of El Salvador requested a reasonable period of time in
which to review the pleadings in order to determine how they bear on El
Salvador's construction of the various conventions the meaning of whose
provisions are at issue at this phase of the case.
The United States respectfully submits that consideration of the scheduling
of further proceedings on the questions of the jurisdiction of the Court and
the admissibility of the Nicaraguan Application should be deferred until
after such time as a determination has been reached by the Court on the
admissibility of the Salvadoran intervention as of right."
III The Right of El Salvador to Intervene in the Jurisdictional Phase of the
Current Proceedings on the Grounds Stated by it
While under Article 63 of the Statute, a State has "the right" to intervene
whenever the construction of a convention to which it is a party is in
question in proceedings before the Court, it always has been accepted that
the Court must pass upon whether the State seeking to intervene is such a
party, and whether the construction of the convention cited is in question
in the proceedings. If the Court so finds, the Court does not need to grant
permission to intervene; it simply and, as the distinguished President of
the Court has put it, "rather significantly" (Taslim O. Elias, The
International Court of Justice and Some Contemporary Problems, 1983, p. 86)
"records" that the declarant State intends to avail itself of the right to
intervene conferred upon it by Article 63 of the Statute and "accepts" its
intervention. (S.S. "Wimbledon", Judgments, 1923, P.C.I.J, Series A, No. 1,
p. 13. But in the Haya de la Torre case, supra, the Court "decided ... to
admit" the intervention.)
A State has the right to intervene whether or not it has been notified by
the Registrar that the construction of a convention to which it is a party
is in question; Article 82, paragraph 3, of the Rules of Court so provides.
By an administrative decision of this Court taken early in its history under
the Presidency of Judge Basdevant, and affirmed by President Winiarski, the
Registrar does not routinely send notifications to States parties when the
United Nations Charter is cited before the Court, particularly because,
under the terms of Article 40, paragraph 3, of the Statute, the Registrar,
when a case is brought before the Court, shall forthwith communicate the
application to the Members of the United Nations and any other States
entitled to appear before the Court. It was accordingly decided that, since
States which could intervene under Article 63 have already had the
application communicated to them under Article 40, there is no need to send
them a new communication in such cases even though their attention had [p
234] not been expressly drawn to Article 63. While, in general, the
Registrar subsequently has been so guided in respect of the Charter,
otherwise he has usually sent out notices specifically referring to Article
63. The practice of the Court appears to indicate that an intervention based
on Article 63 cannot be aimed at the interpretation of a convention referred
to but which is not at issue in the dispute brought before the Court. (Cf.
Appeal Relating to the Jurisdiction of the ICAO Council, Judgment, I.C.J.
Reports 1972, p. 48, where the Court recorded that, Pakistan having advanced
the contention that questions concerning the construction of the Convention
on International Civil Aviation and the International Air Services Transit
Agreement were "in issue", States were notified in accordance with Article
63.)
Unprecedented questions not resolved by the foregoing body of practice have
arisen in the instant case. They are these:
- May intervention under Article 63 take place in the jurisdictional phase
of a proceeding?
- If so, is such intervention confined to conventions other than the Statute
of the Court and the Charter of the United Nations?
- If such intervention is not so confined, does it embrace the Statute as
well as the Charter?
- If so, may intervention embrace not only the Charter and the Statute but
declarations submitted under the Optional Clause of the Statute?
It will be convenient to begin with jurisdictional intervention in general.
A. Intervention under Article 63 in the Jurisdictional Phase of Proceedings
The terms of Article 63 of the Statute are comprehensively cast: "Whenever"
the construction of "a convention" is "in question ...". There is no hint in
these terms or in their travaux preparatoires that they mean other than
what their plain meaning says. "Whenever" that is, whatever time in the
proceedings of a case imports not some but all, not some phases of a case
but any phase. Moreover, the Rules of Court support the interpretation that
"Whenever" indeed means whenever. Article 82, paragraph 1, of the Rules
provides:
"A State which desires to avail itself of the right of intervention
conferred upon it by Article 63 of the Statute shall file a declaration to
that effect... Such a declaration shall be filed as soon as possible, and
not later than the date fixed for the opening of the oral proceedings. In [p
235] exceptional circumstances a declaration submitted at a later stage may
however be admitted."
It will be observed that that Rule does not provide that a declaration under
Article 63 shall be filed not later than the date fixed for the opening of
the oral proceedings "on the merits" but simply the opening of "the oral
proceedings". If the intention had been to confine intervention to the stage
of the merits, the Rule presumably would have so stated.
Indeed, that conclusion is more than a presumption. The fact is that the
question of barring intervention under Article 63 of the Statute in the
jurisdictional phase of a case never seems to have been proposed to,
considered or accepted by the Court. In contrast, the Court did give careful
consideration to limiting intervention under Article 62 of the Statute only
to the merits of the case before the Court, so as to exclude intervention
under Article 62 in respect of interlocutory proceedings (though ultimately
the Court did not so provide in the version of its Rules it adopted). The
reason which was given for so proposing in respect of Article 62 recognized
that a third State could have a legal interest in the jurisdictional phase
of a case, but it was suggested that that interest was too remote to be
admitted. However, a showing of "an interest of a legal nature which may be
affected by the decision in the case" is a condition of intervention under
Article 62. There is no such condition in Article 63; there it suffices if
the third State is party to a convention whose construction is in question
in the principal case.
Thus the terms of Article 63 and the Rules which the Court has adopted in
implementation of those terms both indicate that intervention under Article
63 in the jurisdictional phase of a case is permitted. The sense of Article
63 implies no less. Why should intervention at the jurisdictional phase of a
case not be admitted? There are multilateral conventions that, in whole or
in part, relate to jurisdictional questions. Their construction by the Court
in a case between two States can affect the legal position of a third State
under such conventions no less than it can affect their position under other
conventions, or parts of other conventions, whose clauses are substantive
rather than jurisdictional. Take, for example, the controversies that have
come before the Court more than once over the force and effect of the
General Act of 26 September 1928 for the Pacific Settlement of International
Disputes. If one State maintains that that Act remains in force and is a
basis of the Court's jurisdiction, and another contests those contentions,
why should not a third State party to the Act be able to intervene under
Article 63 at the jurisdictional stage of the proceedings to submit a
statement of the construction of the relevant provisions of that Act for
which it contends?
In fact, as will be shown below, the Court and the Registrar have acted
consistently with the conclusion that intervention in the jurisdictional [p
236] phase of a proceeding is within the scope of the right with which
States are endowed by the terms of Article 63.
B. Intervention in Respect of Construction of the United Nations Charter
It has been shown that the terms and the intendment of Article 63 of the
Statute generally embrace intervention in the jurisdictional phase of the
proceedings over the construction of conventions, such as the 1928 General
Act. Another convention which has been the subject of jurisdictional
controversy before the Court and described as a convention whose
construction was susceptible of such intervention is the Convention on the
Prevention and Punishment of the Crime of Genocide. (See the dissenting
opinion of Judge Petren in the case concerning Trial of Pakistani Prisoners
of War, Interim Protection, Order of 13 July 1973, I.C.J. Reports 1973, pp.
334-335.) Even if intervention in the jurisdictional phase of a case is
generally permitted, however, may a State intervene under Article 63 over
the construction of provisions of the United Nations Charter?
Since the provisions and purpose of Article 63 suggest no reason why a State
should not be permitted to intervene over the construction of the United
Nations Charter, the burden of showing that intervention to construe
articles of the Charter is impermissible rests on those who so maintain. No
arguments in support of such an exceptional conclusion have come to light.
On the contrary, the understanding of the Court and of its Registry appears
to have been that intervention in construction of the Charter is
appropriate, and that such intervention may be made at a jurisdictional
stage.
The pertinent provision of Article 63 is unqualified: whenever the
construction of "a convention" is in question, the right to intervene
arises. The United Nations Charter is not only a convention, it is the most
important existing component of the body of conventional international law.
The first distinguished Registrar of the International Court of Justice, the
late Edvard Hambro, who studied Article 63 intensively in a number of
published papers, concluded:
"Article 63 uses the word Convention, which must be given the same
interpretation here as under Article 38 which uses the same term. According
to the Vienna Convention on the law of treaties, which to a very large
extent is a codification of international customary law, this means: 'An
international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or in
two or more related instruments and whatever its particular designation'."
(Edvard Hambro, "Intervention under Article 63 of the Statute of the
International Court of Justice", Il processo internazionale. Studi in onore
di Gaetano Morelli, 1975, pp. 388-389.) [p 237]
When the Court had cause to consider the meaning of the term "a convention"
as it is found in Article 63, in the course of revision of its Rules, it was
accepted that the definition of treaties contained in the Vienna Convention
on the Law of Treaties applied to it. Indeed, it was understood that "a
convention" as used in Article 63 referred to multilateral conventions as
described in the following definition which the International Law
Commission of the United Nations had composed for what ultimately became the
Vienna Convention:
"(a) Treaty means any international agreement in written form, whether
embodied in a single instrument or in two or more related instruments and
whatever its particular designation (treaty, convention, protocol,
covenant, charter, statute, act, declaration, concordat, exchange of notes,
agreed minute, memorandum of agreement, modus vivendi or any other
appellation), concluded between two or more States or other subjects of
international law and governed by international law." (Draft Articles on
the Law of Treaties, Article 1, Definitions, Yearbook of the International
Law Commission, 1962, Vol. II, p. 161.)
Moreover, the Rules of Court which are in force give no suggestion that the
term "the convention" as used in Article 82 does not embrace the United
Nations Charter.
The practice of the Court in implementation of Article 63 of the Statute and
its pertinent Rules supports two conclusions: first, that intervention under
Article 63 may occur in a jurisdictional phase of a case; and second, that
such intervention may concern the construction of the Statute of the Court
and of the United Nations Charter.
In the very first case to come before the Court as it was constituted with
the coming into force of the United Nations Charter, the Corfu Channel case,
the Court took a position on these questions which it has never modified. In
its Application instituting proceedings, the British Government relied,
inter alia, on construction of Article 36, paragraph 1, of the Statute, and
of Articles 25, 32 and 36 of the Charter. In its Preliminary Objection,
Albania invoked a construction of paragraphs 1 and 3 of Article 36, and
Article 40, of the Statute, and Articles 25 and 32 of the Charter (Corfu
Channel, Preliminary Objection, Judgment, 1948, I.C.J. Reports 1947-1948,
pp. 17, 20-23). The Court's Judgment on the Preliminary Objection records:
"The Albanian Preliminary Objection was transmitted, ... to the Agent for
the United Kingdom and was communicated... to the Members of the United
Nations, pursuant to the provisions of Article 63 of the Statute." (Ibid, p.
23.)
That is to say, "pursuant to the provisions of Article 63 of the Statute",
the Court notified the Members of the United Nations who are parties to the
Statute of the Court and the Charter of the United Nations that construc{p
238]tion of the Statute and the Charter was at issue in the phase of a case
concerned with jurisdiction and admissibility, so that those Members might
consider employing their right under Article 63 to intervene.
In the Anglo-Iranian Oil Co. case, the Registrar addressed the following
letter to the States Members of the United Nations:
"le greffier aux etats membres des nations unies
21 fevrier 1952.
Monsieur le Ministre,
Par ma lettre en date du 12 fevrier 1952, j'ai fait savoir ΰ Votre
Excellence qu'en l'affaire de l'Anglo-Iranian Oil Company, introduite devant
la Cour internationale de Justice par requete du Gouvernement du
Royaume-Uni de Grande-Bretagne et d'Irlande du Nord, le Gouvernement
imperial de l'Iran, defendeur, avait presente, aux termes de l'article 62 du
Reglement de la Cour, un document intitule 'Observations preliminaires :
refus du Gouvernement imperial de reconnaξtre la competence de la Cour. '
J'ai aujourd'hui l'honneur, en me referant ΰ l'article 63 du Statut de la
Cour, de porter ΰ votre connaissance que, dans ce document, le Gouvernement
de l'Iran invoque, entre autres considerations, l'interpretation qu'il
donne de l'article 2, paragraphe 7, de la Charte des Nations Unies..."
(I.C.J. Pleadings, Anglo-Iranian Oil Co., p. 741.)
This letter records that, at the jurisdictional phase of that case, Iran,
among other preliminary objections, raised a question of interpretation of
an article of the United Nations Charter. Referring expressly to Article 63
of the Statute, the Registrar transmitted the Iranian preliminary objections
so that other Members of the United Nations might consider invoking their
right to intervene. This constitutes a renewed demonstration of the
understanding of the Court that Article 63 both permits intervention at the
jurisdictional stage and permits it on questions of construction of the
United Nations Charter.
In its Judgment on Iran's Preliminary Objections, the Court confirmed this
conclusion. It recorded that the British Application had been circulated
among States entitled to appear before the Court pursuant to Article 40 of
the Statut ; that these States were informed of the Iranian Objection; and
that:
"Finally, in pursuance of Article 63 of the Statute of the Court, the
Members of the United Nations were informed that in its Objection, the
Iranian Government, relied, inter alia, upon its interpretation of Article
2, paragraph 7, of the Charter of the United Nations." (Anglo-Iranian Oil
Co., Judgment, I.C.J. Reports 1952, p. 96.)
As has been observed above, the Registrar did not subsequently follow the
practice of sending notifications under Article 63 when the Charter was at
issue in a case before the Court, but rather relied upon transmission of the
application pursuant to Article 40 of the Statute, as has the Court. (Cf. [p
239] Aerial Incident of 27 July 1955 (Israel v. Bulgaria), Judgment, I.C.J.
Reports 1959, p. 129.) In respect of other conventions, usually but not
invariably notifications have been made with express reference to Article
63. See, for example, I.C.J. Pleadings, Appeal Relating to the Jurisdiction
of the ICAO Council, p. 781; I.C.J. Pleadings, Trial of Pakistani Prisoners
of War, pp. 113, 166; and I.C.J. Pleadings, United States Diplomatic and
Consular Staff in Tehran, p. 498. (A fuller listing is found in the Court's
Yearbooks, e.g., that of 1962-1963, pp. 101-103.)
C. Intervention in Respect of Construction of the Statute
While the foregoing analysis and exposition of practice indicate that a
State may exercise its right to intervene under Article 63 at a
jurisdictional phase of the proceedings over the construction of the Court's
Statute as well as the United Nations Charter, distinctions have been raised
between the two which may merit consideration.
In the first place, it is argued that, under Article 1 of its Statute, the
Court "shall function in accordance with the provisions of the present
Statute"; that, therefore, all the Court does engages the provisions of the
Statute; and that it cannot be that, by functioning under its Statute, the
Court furnishes ground for States to intervene under Article 63 on questions
that may arise in respect of those functions.
This argument is true as far as it goes, but that is not far. Article 63 is
not concerned with the application of provisions of a convention, including
the Statute, but their construction, i.e., interpretation, and questions of
interpretation of the Statute are not posed by its routine application.
Moreover, it has been established in the practice of the Court that Article
63 comes into play only if a provision of a convention is "at issue" in a
case. If a provision of the Statute is not incidentally engaged or
mentioned, but is at issue in a case between two States, then there is no
reason why a third State cannot intervene over the construction of that
provision. And, apart from Article 36, other provisions of the Statute are
not frequently at issue in a case.
In the second place, it is argued, as a consequence of the first argument,
that, if Article 63 meant that, whenever the construction of the Statute of
the Court arises in a case, notification shall be made under Article 63,
there would be no purpose in Article 40, pursuant to which the Registrar
forthwith communicates applications in cases to all States entitled to
appear before the Court. Article 63 assumes exceptional notification in some
cases, not notification in every case as under Article 40. But treating the
Statute as a convention within the meaning of Article 63 requires
notification under that Article in every case.[p 240]
The answer to this argument is that the purpose of notification under
Article 40 is simply to inform States that an application has been made and
of what the terms of that application are. The purpose of notification under
Article 63 is to alert States to the fact that the construction of a
convention to which they are party may be at issue in the case before the
Court. Such construction may be pleaded not only in the application but
otherwise, as in preliminary objections. Treating the Statute as a
convention within the meaning of Article 63 does not require that the
exceptional notification of Article 63 shall be made to the States parties
to the Statute in every case. It only requires that notification be made
or it only permits intervention under Article 63 - in those exceptional
cases where the pleadings in a case reveal that the construction of a
provision of the Statute is at issue.
In the third place, it is observed that the Registrar has not routinely sent
notifications under Article 63 whenever Article 36 or 38 or other Articles
of the Statute of the Court are invoked in a case. That is true, but it is
not probative, for the reason that the Registrar does not send notices under
Article 63 in respect of construction of the Charter, a practice which
appears to have included the Statute.
The apprehension has been expressed that, if the Statute were to be treated
as a convention within the meaning of Article 63, third States party to the
Statute would be entitled to intervene in a case whenever there is a
jurisdictional dispute between the Parties; and the result could be a
cascade of interventions. That does not follow, if the jurisdictional
dispute concerns - as it often does - not the terms of the Statute but of
other conventions or of declarations under the Optional Clause. But in any
event, the Court's Judgment in the Corfu Channel case which has been quoted
above surely is open to the interpretation that the Statute is a convention
within the meaning of Article 63; that Judgment was rendered 36 years ago;
and in that time, only one State (Cuba) has, before the instant case, sought
to intervene under Article 63 at all, and El Salvador is the first to seek
to intervene at a jurisdictional stage in construction of the Statute. Thus
there hardly seems ground to be concerned about a flood of interventions.
It may be added that the Statute affirms that the International Court of
Justice is established by the Charter of the United Nations as the principal
judicial organ of the United Nations (Art. 1). The Charter provides that the
Statute of the Court, which is annexed to the Charter, "forms an integral
part of the present Charter" (Art. 92). If a State has the right to
intervene under Article 63 of the Statute on a question of construction of
the Charter, does it not follow that it equally has the right to intervene
on a question of the construction of that Statute which is an integral part
of the Charter?[p 241]
29
D. Intervention in Respect of the Construction of Declarations under the
Optional Clause
Does intervention under Article 63 embrace disputes over the effect of
declarations of States under the Optional Clause of the Statute?
That great Judge and scholar of international law, Sir Hersch Lauterpacht,
expressed the conclusion in two separate opinions that intervention under
Article 63 is permissible at the jurisdictional phase and not merely with
regard to interpretation of the Statute but even of declarations under the
Optional Clause. In the Norwegian Loans case, Judge Lauterpacht said, in
referring to the self-judging element of the submission to the Court's
compulsory jurisdiction which was there at issue:
"The circumstance that a decision of the Court may affect Governments which
have had no opportunity to express their view on the subject is a cause of
concern. It would have been preferable if, in accordance with Article 63 of
the Statute, the Governments which had made a Declaration in these terms had
been given an opportunity to intervene." (Certain Norwegian Loans, Judgment,
I.C.J. Reports 1957, pp. 63-64.)
In the Interhandel case, Judge Lauterpacht concluded:
"I have refrained from referring to or elaborating the additional, and no
less decisive, reason why, in my view, the Court is without jurisdiction to
entertain the request for interim measures filed by the Swiss Government. In
my separate opinion in the case of Certain Norwegian Loans... I came to the
conclusion that a reservation of the kind as now before the Court is invalid
and that its invalidity entails the invalidity of the Declaration of
Acceptance as a whole. If that is so, the Government of the United States
cannot validly become either a plaintiff or a defendant under its
Declaration of Acceptance -although it is open to it, in respect of any
claim brought against it in reliance on its Declaration of Acceptance, to
submit to the jurisdiction of the Court on some other basis. However, I
have abstained from adopting that view as a ground of the present opinion
seeing that the question of the validity of the above reservation of the
United States of America is not now before the Court and that it may, with
the possible participation of other Signatories of the Optional Clause
intervening by virtue of Article 63 of the Statute, form the subject-matter
of a decision of the Court at a subsequent stage of the proceedings."
(Interhandel, Interim Protection, Order of 24 October 1957, I.C.J. Reports
1957, p. 120.)[p 242]
The views of Judge Lauterpacht are entitled to exceptional weight.
Nevertheless, there is room for another opinion, based upon the fact that
the declarations which States submit pursuant to Article 36, paragraphs 2, 3
and 4, of the Statute are not conventions. May it be maintained that Article
63 which expressly relates to the construction of "a convention" may be
extended to include declarations made pursuant to a convention? That
appears to be questionable.
The legal character of declarations made under the Optional Clause is at
issue in the jurisdictional phase of the current case between Nicaragua and
the United States. At this point, it would not be appropriate to note more
than that neither Party appears to view declarations made under the Optional
Clause as treaties or conventions.
E. The Scope of El Salvador's Declaration
As was shown in Section I of this opinion, El Salvador's Declaration invokes
the construction of provisions of the Statute (Art. 36), the United Nations
Charter (Arts. 39, 51 and 52), and, with insufficient specificity,
provisions of the OAS Charter and two inter-American treaties. It also
appears to invoke the construction of the terms of its declaration under the
Optional Clause, as well, in some limited measure, as that of the United
States.
In the light of the analysis set forth in this opinion, I conclude that El
Salvador's Declaration of Intervention is admissible, and should have been
found admissible by the Court, even though it relates to the current
jurisdictional phase of the proceedings brought by Nicaragua against the
United States. However, there might have been ground for the Court excluding
from the scope of such an admission construction by El Salvador of
declarations under the Optional Clause, particularly those of the Parties to
the case.
F. Should El Salvador's Declaration Have Been Barred on the Ground that it
Relates to Admissibility Rather than Jurisdiction and that Questions of
Admissibility Should Be Joined to the Merits?
A question which remains is this. Even if it is accepted that the right of
intervention under Article 63 applies to the jurisdictional phase of
proceedings, and even if it is accepted that it embraces the construction
of the Statute and Charter as well as other conventions, should the Court
have barred intervention by El Salvador at this stage on the ground that it
sought to intervene on questions of admissibility rather than jurisdiction
and that these questions can be properly dealt with only at the stage of
merits since they are so intertwined with the merits ? [p 243]
That is a substantial question, the answer to which, in my view, is
negative. I so conclude for the following reasons:
- While the main thrust of the contentions of El Salvador does appear to
relate essentially to questions of admissibility rather than jurisdiction,
those are questions which are before the Court at the stage of the
proceedings on which it is now about to embark. In the hearings which led
up to the issuance of the Court's Order of 10 May 1984, the United States
had advanced arguments which purported to demonstrate that Nicaragua's
claims were inadmissible, essentially on the ground that other organs and
modalities of the international system are to be charged, and have in this
case been charged, with resolution of a political dispute involving the
current use of armed force. Nicaragua advanced arguments to meet these
contentions of the United States. Having heard these arguments, the Court,
in its Order of 10 May, decided:
"that the written proceedings shall first be addressed to the questions of
the jurisdiction of the Court to entertain the dispute and of the
admissibility of the Application" (Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America), Provisional
Measures, Order of 10 May 1984, I.C.J. Reports 1984, p. 187.)
- In response to the Court's Order, the Memorial submitted by Nicaragua and
the Counter-Memorial submitted by the United States extensively address
questions of admissibility.
- In seeking to intervene, El Salvador seeks the construction of provisions
of the United Nations Charter and other conventions which relate to some of
the very questions of admissibility argued by the Parties to the case.
- Thus to deny El Salvador the right to intervene on the ground that it will
argue issues of admissibility is at odds with the Order of the Court and the
presumed course of the impending hearings.
- Moreover, such a conclusion is unnecessary. Suppose that it is assumed,
arguendo, that such arguments of admissibility of El Salvador (and of the
United States and Nicaragua) go more to the merits and should be joined to
the merits, on the ground, e.g., that the argument that another organ than
the Court should deal with an ongoing armed conflict requires a finding that
there is a conflict and that that is a question of finding a fact.
Nevertheless, for the purpose of appraising and admitting El Salvador's
Declaration of Intervention, it can equally be assumed, arguendo, and
without prejudice to an ultimate holding at the stage of the merits, that
there is an armed conflict. On such an assumption, I conclude that, on the
basis of its arguments of admissibility, El Salvador should have been
admitted to intervene at the current stage of the proceedings. That is not,
of course, to say that its arguments are, or are not, good arguments, any
more than it is to say at this juncture that the arguments on admissibility
of the [p 244]
United States and Nicaragua are or are not good arguments. But to deny the
admissibility of El Salvador's Declaration of Intervention on the ground
that it may involve assumptions of or findings of fact does not appear to me
to be either necessary or, given the state of the pleadings of the Parties,
equitable.
(Signed) Stephen M. Schwebel. |
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