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[p.92]
The Chamber of the International Court of Justice formed to deal with the
above-mentioned case,
composed as above,
after deliberation,
delivers the following Judgment:
1. By a joint notification dated 11 December 1986, filed in the Registry of
the Court the same day, the Ministers for Foreign Affairs of the Republic of
Honduras and the Republic of El Salvador transmitted to the Registrar a
certified copy of a Special Agreement in the Spanish language entitled "Compromiso
entre Honduras y El Salvador para someter a la decision de la Corte
Internacional de Justicia la controversia fronteriza terrestre, insular y
maritima existente entre los dos estados, suscrito en la ciudad de
esquipulas, Republica de Guatemala, el dia 24 de Mayo de1986", and entering
into force on 1 October 1986.
2. The Parties have not up to the present supplied the Court with an agreed
translation of the Special Agreement into one of the official languages of
the Court, and neither Party has submitted a translation of its own.
3. The Spanish text of the Special Agreement reads as follows:[p 95]
"Compromiso entre Honduras y El Salvador para someter aA laL drcision de la
CorteInternacional de Justicia laL controversia fronteriza terrestre,
insular y maritimaM existente entre los dos estados, suscrito en la ciudad
de esquipulas, Republica de Guatemala, el dia 24 de Mayo de 1986
El Gobierno de la Republica de Honduras y el Gobierno de la Republica de El
Salvador,
Considerando que el 30 de octubre de 1980, en la ciudad de Lima, Peru,
suscribieron el Tratado General de Paz, por medio del cual, inter alia,
delimitaron la frontera terrestre de ambas Republicas en aquellas secciones
en donde no existia controversia;
Considerando que dentro del plazo previsto en los articulos 19 y 31 del
Tratado General de Paz, de 30 de octubre de 1980, no se llego a un arreglo
directo sobre las diferencias de limites existentes con respecto a las demas
zonas terrestres en controversia, y en lo relativo a la situacion juridica
insular y de los espacios maritimos;
Han designado como sus respectivos Plenipotenciarios, Honduras al Senor
Ministro de Relaciones Exteriores, Abogado Carlos Lopez Contreras, y El
Salvador al Senor Ministro de Relaciones Exteriores, Licenciado Rodolfo
Antonio Castillo Claramount, quienes, una vez encontrados en buena y debida
forma sus Plenos Poderes;
Convienen en lo siguiente:
Articulo 1 [degree]
Constitucion de una Sala
1. En aplicacion del Articulo 34 del Tratado General de Paz suscrito el 30
de octubre de 1980, las Partes someten las cuestiones mencionadas en el
Articulo Segundo del presente Compromiso a una Sala de la Corte
Internacional de Justicia, compuesta por tres miembros, con la anuencia de
las Partes, las cuales la expresaran en forma conjunta al Presidente de la
Corte, siendo esta conformidad esencial para la integracion de la Sala, que
se constituira de acuerdo a los Procedimientos establecidos en el Estatuto
de la Corte y en el presente Compromiso.
2. Adicionalmente, integraran la Sala dos jueces ad-hoc especialmente
nombrados uno por El Salvador y otro por Honduras; los que podran tenet la
nacionalidad de las Partes.
Articulo 2 [degrees]
Objeto del litigio
Los Partes solicitan a la Sala:
1. Que delimite la linea fronteriza en las zonas o secciones no descritas en
el Articulo 16 del Tratado General de Paz, de 30 de octubre de 1980.
2. Que determine la situacion juridica insular y de los espacios maritimos.
Articulo 3 [degrees]
Procedimiento
1. Las Partes solicitan a la Sala autorizar que el procedimiento escrito
consista en:
[p 96]
a) una Memoria presentada por cada una de los Partes, a mas tardar diez
meses despues de la notificación de este Compromiso a la Secretaria de la
Corte Internacional de Justicia;
b) una Contramemoria presentada por cada una de los Partes, a mas tardar
diez meses despues de la fecha en que se haya recibido la copia certificada
de la Memoria de la otra Parte;
c) una replica presentada por cada una de las Partes, a mas tardar diez
meses despues de la fecha en que se haya recibido la copia certificada de la
Contramemoria de la otra Parte;
d) la Corte podra autorizar, o prescribir la presentacion de una Duplica, si
las Partes estan de acuerdo a este respecto o si la Corte decide de oficio o
a solicitud de una de las Partes si esta pieza de procedimiento es
necesaria.
2. Las piezas antes mencionadas del procedimiento escrito y sus anexos
presentadas al Secretario, no seran trasmitidas a la otra Parte, en tanto el
Secretario no haya recibido la pieza de procedimiento correspondiente a
dicha parte.
3. El procedimiento oral, la notificación del nombramiento de los
respectivos agentes de las Partes y cualesquiera otras cuestiones
procesales, se ajustaran a lo dispuesto en el Estatuto y el Reglamento de la
Corte.
Articulo 4 [degrees]
Idiomas
El caso se ventilara en los idiomas ingles y frances, indistintamente.
Articulo 5 [degrees]
Derecho applicable
Dentro del marco del apartado primero del Articulo 38 del Estatuto de la
Corte Internacional de Justicia, la Sala, al dictar su fallo, tendra en
cuenta las normas de derecho internacional aplicables entre las Partes,
incluyendo, en lo pertinente, las disposiciones consignadas en el Tratado
general de Paz.
Articulo 6 [degrees]
Ejecucion de la Sentencia
1. Las Partes ejecutaran la sentencia de la Sala en un todo y con entera
buena fe. A este fin. la Comision Especial de Demarcacion que establecieron
mediante el Convenio de 11 de febrero de 1986, iniciara la demarcacion de la
linea fronteriza fijada por la sentencia, a mas tardar tres meses despues de
la fecha de la misma y continuara diligentemente sos actuaciones hasta
conclairla.
2. Para tal efecto, se aplicaran las reglas establecidas sobre la materia,
en el mencionado Convenio de creacion de la Comision Especial de
Demarcacion.
Articulo 7 [degrees]
Entrada en vigor y Registro
1. El presente Compromiso entrara en vigor el 1 [degree] de octubre de 1986,
una vez que se haya cumplido con los procedimientos constitucionales de cada
Parte.
2. Sera registrado en la Secretaria General de las Naciones Unida
s de conformidad con el Articulo 102 de la Carta de la Naciones Unidas,
conjuntamente o por cualquiera de las Partes. Al mismo tiempo se hara del
conocimiento de la Organizacion de los Estados Americanos. [p 97]
Articulo 8 [degrees]
Notificación
1. En aplicacion del Articulo 40 del Estatuto de la Corte Internacional de
Justicia, el presente Compromiso serd notificado al Secretario de la misma
por nora conjunta de las Partes. Esta notificación se efectuara antes del 31
de diciembre de 1986.
2. Si esa notificación no se efectua de conformidad con el parrafo
precedente, el presente Compromiso podra ser notificado al Secretario de la
Corte por cualquiera de las Partes dentro del plazo de un mes siguiente a la
fecha prevista en el parrafo anterior."
4. The Special Agreement was, as indicated in its title, signed in the City
of Esquipulas, Republic of Guatemala, on 24 May 1986; its preamble refers to
the conclusion on 30 October 1980, in Lima, Peru, of a General Peace Treaty
between the two States, whereby, inter alia, they delimited certain sections
of their common land frontier; and the Special Agreement records that no
direct settlement had been achieved in respect of the remaining land areas,
or as regards "the legal situation of the islands and maritime spaces".
5. Pursuant to Article 40, paragraph 3, of the Statute of the Court and
Article 42 of the Rules of Court, copies of the joint notification and
Special Agreement were transmitted by the Registrar to the Secretary-General
of the United Nations, the Members of the United Nations and other States
entitled to appear before the Court.
6. The Parties were duly consulted, on 17 February 1987, as to the
composition of the chamber of the Court contemplated by the Special
Agreement, in accordance with Article 26, paragraph 2, of the Statute and
Article 17, paragraph 2, of the Rules of Court.
7. The Parties in the course of such consultation confirmed what was said in
the Special Agreement, that as regards the number of judges to constitute
such chamber, they approved, pursuant to Article 26 of the Statute, that
number being fixed at three judges with the addition of two judges ad hoc
chosen by the Parties pursuant to Article 31, paragraph 3, of the Statute.
8. In March 1987 the Court was notified of the choice by El Salvador of Mr.
Nicolas Valticos to sit as judge ad hoc in the chamber; in April 1987, the
Court was notified of the choice by Honduras of Mr. Michel Virally to sit as
judge ad hoc in the chamber.
9. By an Order of 8 May 1987 the Court decided to accede to the request of
the Parties to form a special chamber to deal with the case, and declared
that at an election held on 4 May 1987 Judges Oda, Sette-Camara and Sir
Robert Jennings had been elected to form, with the judges ad hoc referred to
above, a chamber to deal with the case, and declared further such a chamber
to have been duly constituted, with the following composition: Judges Oda,
Sette-Camara and Sir Robert Jennings and Judges ad hoc Valticos and Virally.
On 29 May 1987 the Chamber elected Judge Sette-Camara as its President,
pursuant to Article 18, paragraph 2, of the Rules of Court.
10. Judge ad hoc Virally died on 27 January 1989, and by a letter dated 8
February 1989 the Agent of Honduras informed the Court that his Government
had chosen Mr. Santiago Torres Bernardez to sit as judge ad hoc in his
place. By an Order dated 13 December 1989 the Court declared the composition
of the Chamber formed to deal with the case to be as follows: Judge
Sette-Camara, [p 98] President of the Chamber; Judges Oda and Sir Robert
Jennings; Judges ad hoc Valticos and Torres Bernardez.
11. By Article 3, paragraph 1, of the Special Agreeement the Parties
requested that the written proceedings should consist of a Memorial, a
Counter-Memorial and a Reply to be filed by each of the Parties within
time-limits there stated, and the Special Agreement further provided that
the Court might authorize or direct the filing of Rejoinders. By an Order
dated 27 May 1987, the Court fixed the time-limit for the Memorials, and by
an Order dated 29 May 1987 the Chamber authorized the filing of
Counter-Memorials and Replies pursuant to Article 92, paragraph 2, of the
Rules of Court, and fixed time-limits therefor.
12. The Memorials were duly filed within the time-limit of 1 June 1988 fixed
therefor. The time-limits for the remaining pleadings were, at the request
of the Parties, extended by Orders made by the President of the Chamber on
12 January 1989 and 13 December 1989. The Counter-Memorials and the Replies
were duly filed within the extended time-limits thus fixed, namely 10
February 1989 and 12 January 1990 respectively. The Special Agreement,
however, included a provision for a possible further exchange of pleadings,
so that even when the Replies 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.
13. Pursuant to Article 53, paragraph 1, of the Rules of Court, requests by
the Governments of Nicaragua and Colombia for the pleadings and annexed
documents to be made available to them were granted, in the case of
Nicaragua on 15 June 1988, and in the case of Colombia on 27 January 1989,
and in each case after the views of the Parties had been ascertained.
14. On 17 November 1989 the Republic of Nicaragua filed in the Registry of
the Court an Application for permission to intervene in the case, which
Application was stated to be made by virtue of Article 36, paragraph 1, and
Article 62 of the Statute of the Court. In that Application, the Government
of Nicaragua contended that its request for permission to intervene, "not
only because it is an incidental proceeding but also for . . . reasons of
elemental equity (that of consent and that of the equality of States)", was
"a matter exclusively within the procedural mandate of the full Court".
15. By an Order dated 28 February 1990, the Court, after considering the
written observations of the Parties on the question thus raised, whether the
Application for permission to intervene was to be decided upon by the full
Court or by the Chamber, and the observations of Nicaragua in response to
those observations, stated that
"the question whether an application for permission to intervene in a case
under Article 62 of the Statute should be granted requires a judicial
decision whether the State seeking to intervene 'has an interest of a legal
nature which may be affected by the decision' in the case, and can therefore
only be determined by the body which will be called upon to give the
decision on the merits of the case";
and found that it was for the Chamber formed to deal with the present case
to decide whether the Application by Nicaragua for permission to intervene
under Article 62 of the Statute should be granted.
16. Pursuant to Article 83, paragraph 1, of the Rules of Court, the two
Parties were on 5 March 1990 invited to furnish their written observations
on the Appli-[p 99]cation for permission to intervene filed by Nicaragua on
17 November 1989. Both Parties submitted such observations within the
time-limit fixed by the President of the Chamber. Honduras stated that it
would see no objection to Nicaragua being permitted to intervene for the
sole purpose of presenting its views on the legal status of the waters
within the Gulf of Fonseca; El Salvador requested the Chamber to deny the
permission sought by Nicaragua.
17. Since objection had thus been made to the Application for permission to
intervene, public sittings were held, pursuant to Article 84, paragraph 2,
of the Rules of Court, in order to hear the State seeking to intervene and
the Parties, on 5, 6, 7 and 8 June 1990. In the course of those sittings the
Chamber was addressed by:
For Nicaragua: H.E. Mr. Carlos Arguello Gomez,
Mr. Ian Brownlie,
Mr. Antonio Remiro Brotons.
For El Salvador: H.E. Dr. Alfredo Martinez Moreno,
Mr. Prosper Weil,
Mr. Elihu Lauterpacht,
Mr. Keith Highet.
For Honduras: H.E. Dr. Ramon Valladares Soto,
Mr. Derek W. Bowett.
18. In its Application for permission to intervene, Nicaragua stated by way
of conclusion that it
"respectfully requests the Court to recognize the validity of Nicaragua's
claim to intervene in the proceedings between the Republic of El Salvador
and the Republic of Honduras" (para. 20).
At the outset of the oral proceedings it was stated that
"Nicaragua maintains, before this Chamber of the Court, its Application for
permission to intervene but modified in the sense that the requests made in
Sections 23 and 24 of its original Application of 17 November 1989 are not
being submitted for decision by this Chamber."
(The requests referred to are set out in paragraph 41 below.)
19. On behalf of El Salvador, the following submission was presented during
the oral proceedings:
"That the Application of the Republic of Nicaragua to intervene in the case
in process between El Salvador and Honduras be rejected."
20. On behalf of Honduras, the following submission as to the Application
for permission to intervene was presented during the oral proceedings:
"First, Honduras would see no objection to Nicaragua being permitted to
intervene in the existing case for the sole purpose of expressing its views
on the legal status of the waters within the Gulf. Nicaragua has, under
Article 62, no right to intervene, and the Court in granting its permission,
may limit that permission to the extent necessary to safeguard the legal
interests of the requesting State. Indeed, it can be argued that the Court
is bound to impose such limits on its permission."[p 100]
21. During the oral proceedings, both Parties also made clear their
continued opposition to the requests contained in paragraphs 23 and 24 of
the Nicaraguan Application (set out in paragraph 41 below).
**
22. Nicaragua's request to be permitted to intervene is in respect of the
proceedings instituted by the notification of the Special Agreement
concluded on 24 May 1986 between El Salvador and Honduras. Article 2 of the
Special Agreement, which defines the subject of the dispute, reads, in the
original Spanish text, as follows:
"Las Partes solicitan a la Sala:
1. Que delimite la linea fronteriza en las zonas o secciones no descritas en
el Articulo 16 del Tratado General de Paz, de 30 de octubre de 1980.
2. Que determine la situacion juridica insular y de los espacios maritimos."
As noted above (paragraph 2), the Parties have not so far supplied the
Chamber with an agreed translation of the Special Agreement into English or
French, notwithstanding the fact that the Special Agreement itself provides
(Art. 4) for the proceedings to be conducted in English or French. For the
purposes of the present Judgment, however, the Chamber considers that it can
make use of the following translation of Article 2, prepared by the Registry
of the Court:
"The Parties request the Chamber:
1. To delimit the frontier line in the areas or sections not described in
Article 16 of the General Peace Treaty of 30 October 1980.
2. To determine the legal situation of the islands and maritime spaces."
23. The dispute between El Salvador and Honduras which is the subject of the
Special Agreement concerns several distinct though in some respects
interrelated matters. The Chamber is asked first to delimit the land
frontier line between the two States in the areas or sections not described
in Article 16 of the General Peace Treaty concluded by them on 30 October
1980; Nicaragua is not seeking to intervene in this aspect of the
proceedings (paragraph 40 below). The Chamber is also to "determine the
legal situation of the islands", and that of the "maritime spaces". The
geographical context of the island and maritime aspects of the dispute, and
the nature and extent of that dispute as appears from the Parties' claims
before the Chamber, is as follows.
24. The Gulf of Fonseca lies on the Pacific coast of Central America,
opening to the ocean in a generally south-westerly direction. The northwest
coast of the Gulf is the land territory of El Salvador, and the southeast
coast that of Nicaragua; the land territory of Honduras lies between
[p 101] the two, with a substantial coast on the inner part of the Gulf. The
entry to the Gulf, between Punta Amapala in El Salvador to the north-west,
and Punta Cosiguina in Nicaragua to the south-east, is some 19 nautical
miles wide. The penetration of the Gulf from a line drawn between these
points varies between 30 and 32 nautical miles. Within the Gulf of Fonseca,
there is a considerable number of islands and islets.
25. El Salvador recognizes the sovereignty of Honduras over Zacate Grande,
the largest island of the Gulf, which is linked by a road to the Honduran
mainland, and asks the Chamber to find that
"El Salvador has and had sovereignty over all the islands in the Gulf of
Fonseca, with the exception of the Island of Zacate Grande which can be
considered as forming part of the coast of Honduras".
Honduras for its part invites the Chamber to find that the islands of
Meanguera and Meanguerita are the only islands in dispute between the
Parties, so that the Chamber is not, according to Honduras, called upon to
determine sovereignty over any of the other islands, and to declare the
sovereignty of Honduras over Meanguera and Meanguerita. Although the
Farallones are not mentioned in their submissions, the Chamber understands
from the pleadings of the Parties and from their oral arguments in the
course of the present incidental proceedings that those islands, which lie
on Nicaragua's side of the Gulf, are excluded from the claims of the
Parties. Neither Party has laid claim to the Farallones, and counsel for
Nicaragua has stated before the Chamber, without contradiction by either of
the Parties, that Nicaragua's sovereignty over the Farallones has been
expressly recognized by the Parties. For the purposes of the present
Application for permission to intervene, there appears to be no need to
determine at this stage the extent of the Chamber's jurisdiction in respect
of the islands of the Gulf; both Parties are agreed that the Chamber should
determine sovereignty over Meanguera and Meanguerita, and -- with the
exception of the Farallones -- these are the islands which lie closest to
the coast of Nicaragua.
26. The detailed history of the dispute is not here to the purpose, but two
events concerning the maritime areas must be mentioned. First, the waters
within the Gulf of Fonseca between Honduras and Nicaragua were to an
important extent delimited in 1900 by a Mixed Commission established
pursuant to a Treaty concluded between the two States on 7 October 1894. The
published records of the delimitation established by the Mixed Commission
describe that delimitation line as follows:
"Desde el punto conocido con el nombre de Amatillo, en la parte inferior del
rio Negro, la linea limitrofe es una recta trazada en direccion al volcan de
Cosiguina, con rumbo astronomico Sur, ochenta y seis grados, treinta minutos
Oeste (S. 86 [degrees] 30' O.), y distancia aproximada de treinta y siete
kilometros (37 Kms) hasta el punto media de la bahia de Fonseca, [p 102]
equidistante de las costas de una y otra Republica, por este lado; y de este
punto, sigue la division de las aguas de la bahia por una linea, tambien
equidistante de las mencionadas costas, hasta llegara al centro de la
distancia que hay entre la parte septentrional de la Punta de Cosiguina y la
meridional de la isla de El Tigre." ("Limites definitivos entre Honduras y
Nicaragua", Honduran Ministry of Foreign Affairs, 1938, p. 24.)
[Translation]
"From the point known as Amarillo, in the lower reaches of the River Negro,
the delimitation is a straight line drawn in the direction of the volcano of
Cosiguina, astronomic bearing south, 86 degrees, 30 minutes west (S. 86
[degrees] 30' W.), for a distance of approximately thirty-seven kilometres
(37 km) to the central point of the Bay of Fonseca, equidistant from the
coasts of the two Republics, on this side; and from that point it follows
the division of the waters of the bay by a line, also equidistant from the
said coasts, to arrive at the centre of the distance between the northern
part of Punta de Cosiguina and the southern part of the island of El Tigre."
There was some controversy between Honduras and Nicaragua at the hearings as
to the position of the seaward terminus of this delimitation line, but it
appears that for both States the line does not extend so far as to meet a
closing line between Punta Amapala and Punta Cosiguina.
27. The second event to be mentioned is the following. In 1916 El Salvador
brought proceedings against Nicaragua in the Central American Court of
Justice, claiming inter alia that the Bryan-Chamorro Treaty concluded by
Nicaragua with the United States of America, for the construction of a naval
base, "ignored and violated the rights of co-ownership possessed by El
Salvador in the Gulf of Fonseca". According to the Judgement in the case, El
Salvador's contention was:
"Que por el hecho de haber pertenecido esas aguas, por largos anos, a una
sola entidad politica, cual era el dominio Espanol en Centro-America y
despues a la Republica Federal Centroamericana, resulta una verdad
concluyente que, disuelta la Federacion sin haberse efectuado delimitacion
entre los tres Estados riberenos relativa a su soberania en las aguas del
Golfo, han continuado esos tres Estados con un dominio com'n en ellas."
(Corte de Justicia Centroamericana, Sentencia, 9 de marzo de 1917, p. 8.)
In an English translation published in 1917 by the Legation of El Salvador
in Washington, and printed in the 1917 volume of the American Journal of
International Law:
"That because, for a long period of years, those waters belonged to a single
political entity, to wit, the Spanish Colonial Government in Central
America, and, later, to the Federal Republic of the Center of [p 103]
America, the fact conclusively results that, on the dissolution of the
federation without having effected a delimitation among the three riparian
States of their sovereignty therein, the ownership of those waters continued
in common in those three States." (AJIL, 1917, p. 677.)
Nicaragua appeared in the proceedings and resisted the claim, contending
(inter alia)
"que las antiguas provincias espanolas de Nicaragua, Honduras y El Salvador,
por su adyacencia, son duenas del Golfo, en el sentido de que a cada una
corresponde una parte de el; pero no en el sentido de que por eso exista
entre las referidas Republicas, una comunidad en la acepcion juridica de la
palabra. Hay indemarcacion de fronteras, lo cual es distinto de dominio
comun" (CJC, Sentencia, p. 20),
i.e., that
"the ancient Spanish provinces of Nicaragua, Honduras and El Salvador, by
reason of the fact that they are adjacent, are owners of the Gulf in the
sense that to each belongs a part thereof, but not in the sense that,
thereby, a community in the legal acceptation of the word exists among those
republics. Demarcation of frontiers therein is lacking; but this . . . does
not result in common ownership." (AJIL, 1917, p. 688.)
28. The Decision of the Central American Court of Justice dated 9 March 1917
was divided into three parts. In the first part, the voting of the judges
was recorded on a number of specific questions arising in the case, and this
part records the unanimous view of the judges that the international status
of the Gulf of Fonseca was that it was "an historic bay possessed of the
characteristics of a closed sea" (AJIL, 1917, p. 693). The second part is an
"Examination of facts
and law", and the third part the formal decision, adopted by four votes to
one. In the second part, the Court found:
"Considerando: que reconocida por este Tribunal la condicion juridica del
Golfo de Fonseca como Bahia historica, con caracteres de mar cerrado, se ha
reconocido, en consecuencia, como conduenos de sus aguas a los tres palses
riberenos, El Salvador, Honduras y Nicaragua, excepto en la respectiva legua
marina del litoral, que es del exclusivo dominio de cada uno de ellos; y
queen orden al condominio existente entre los Estados en litigio . . . se
tomo en cuenta que en las aguas no litorales del Golfo existe una porcion de
ellas en donde se empalman o confunden las jurisdicciones de inspeccion para
objetos de policia, de seguridad y fines fiscales; y otra en donde es
posible que no suceda lo mismo. Por lo tanto, el Tribunal ha decidido que
entre El Salvador y Nicaragua existe el condominio en ambas porciones,
puesto que estan dentro del Golfo; pero con la salvedad expresa de los
derechos que [p 104]corresponden a Honduras como coparticipe en esas mismas
porciones." (CJC, Sentencia, pp. 55-56.)
"Whereas: The legal status of the Gulf of Fonseca having been recognized by
this Court to be that of a historic bay possessed of the characteristics of
a closed sea, the three riparian States of El Salvador, Honduras and
Nicaragua are, therefore, recognized as coowners of its waters, except as to
the littoral marine league which is the exclusive property of each, and with
regard to the coownership existing between the States here litigant, the
Court . . . took into account the fact that as to a portion of the
non-littoral waters of the Gulf there was an overlapping or confusion of
jurisdiction in matters pertaining to inspection for police and fiscal
purposes and purposes of national security, and that, as to another portion
thereof, it is possible that no such overlapping and confusion takes place.
The Court, therefore, has decided that as between El Salvador and Nicaragua
coownership exists with respect to both portions, since they are both within
the Gulf; with the express proviso, however, that the rights pertaining to
Honduras as coparcener in those portions are not affected by that decision."
(AJIL, 1917, p. 716.)
It is a matter of public record that on 24 November 1917 Nicaragua addressed
to the States of Central America a lengthy Note
"for the purpose of explaining and justifying the attitude that was forced
upon [the Nicaraguan] Government of ignoring and rejecting the two
Judgements rendered against it by the Central American Court of Justice",
i.e., the 1917 Judgement and an earlier Judgement in a case brought by Costa
Rica against Nicaragua.
29. The Central American Court of Justice had been informed of the existence
of the delimitation of part of the waters of the Gulf effected by Honduras
and Nicaragua, and referred to above. In its Judgement that Court noted that
"la linea trazada . . . solo llego hasta un punto medio entre la isla del
Tigre y Punta de Cosiguina, dejando sin dividir . . . una considerable
porcion de aguas comprendida entre la linea trazada desde Punta Amapala a
Punta Cosiguina y el punto terminal de la division entre Honduras y
Nicaragua" (CJC, Sentencia, p. 50).
"the line drawn . . . only extends as far as a point midway between Tigre
Island and Cosiguina Point, thus leaving undivided . . . a considerable
portion of the waters embraced between the line drawn from Amapala Point to
Cosiguina Point and the terminal point of the division between Honduras and
Nicaragua" (AJIL, 1917, p. 711).
[p 105]
Referring also to an overlap or intersection, at the entrance to the Gulf,
of "the two lines (distant twelve miles from the coast) that mark the
respective limits of the zone of maritime inspection" (AJIL, 1917, p. 702)
of El Salvador and Nicaragua, the Central American Court of Justice stated
that
"Por consiguiente, hay que conduit en que, exceptuando esa parte, el resto
de las aguas del Golfo ha quedado pro-indiviso, en estado de comunidad entre
El Salvador y Nicaragua, y en que por la particular configuracion del mismo,
esas aguas quedan frente a frente, confundiendose por un empalme . . ."
(CJC, Sentencia, p. 50.)
"Consequently, it must be concluded that, with the exception of that part
[sc., the area delimited between Honduras and Nicaragua], the rest of the
waters of the Gulf have remained undivided and in a state of community
between El Salvador and Nicaragua, and that, by reason of the particular
configuration of the Gulf, those waters, though remaining face to face, were
. . . confounded by overlapping." (AJIL, 1917, p. 711.)
30. It is claimed by El Salvador in its Memorial in the present case that
"On the basis of the 1917 judgement an objective legal regime has been
established in the Gulf. Even if initially the judgement was binding only in
respect of the direct parties to the litigation, Nicaragua and El Salvador,
the legal status recognized therein has been consolidated in the course of
time; its effects extend to third States, and in particular, they extend to
Honduras"
and further that the juridical situation of the Gulf "does not permit the
dividing up of the waters held in condominium", with the exception of "a
territorial sea within the Gulf", recognized by the Central American Court
of Justice. It therefore asks the Chamber to adjudge and declare that
"The juridical position of the maritime spaces within the Gulf of Fonseca
corresponds to the juridical position established by the Judgement of the
Central American Court of Justice rendered March 9th 1917, as accepted and
applied there after."
It also contends in its Counter-Memorial that
"So far as the maritime spaces are concerned, the Parties have not asked the
Chamber either to trace a line of delimitation or to define the Rules and
Principles of Public International Law applicable to a delimitation of
maritime spaces, either inside or outside the Gulf of Fonseca."[p 106]
31. Honduras in its Reply rejects the view that the 1917 Judgement produced
or reflected an objective legal regime, contending that in the case of
"a judgment or arbitral award laying down a delimitation as between the
parties to a dispute, the solution therein adopted can only be opposed to
the parties. As for other States, which are alien to the case, a decision
which affects their rights cannot be opposed to them. This is indeed the
case for Honduras with respect to the 1917 Judgement of the Central American
Court, which was the outcome of proceedings in which it did not
participate."
It also observes that
"it is not the 1917 Judgement which confers sovereignty upon the riparian
States over the waters of the Bay of Fonseca. That sovereignty antecedes
considerably that judgment between two riparian States, since it dates back
to the creation of the three States concerned."
Honduras's contention as to the legal situation of the maritime spaces, to
be examined further below, involves their delimitation between the Parties.
It considers that the Chamber has jurisdiction under the Special Agreement
to effect such delimitation, and has indicated what, in the view of
Honduras, should be the course of the delimitation line.
32. As regards maritime spaces situated outside the closing line of the
Gulf, Honduras asks the Chamber to find that the "community of interests"
between El Salvador and Honduras as coastal States of the Gulf implies that
they each have an equal right to exercise jurisdiction over such spaces. On
this basis, it asks the Chamber to determine a line of delimitation
extending 200 miles seaward, to delimit the territorial sea, the exclusive
economic zone and the continental shelf of the two Parties. El Salvador
however contends that the Chamber does not, under the Special Agreement,
have jurisdiction to delimit maritime areas outside the closing line of the
Gulf. El Salvador denies that Honduras has any legitimate claim to any part
of the continental shelf or exclusive economic zone in the Pacific, outside
the Gulf; it is however prepared to accept that this question be decided by
the Chamber.
33. A feature of the present case is that on none of the three aspects of
the dispute referred to in Article 2, paragraph 2, of the Special Agreement,
to which the Application for permission to intervene relates, -- the
islands, the waters of the Gulf, and the waters outside the Gulf -- are the
Parties in agreement as to the issues to be decided by the Chamber under the
Special Agreement. In considering whether Nicaragua has a legal interest
which may be affected by the decision in the case, so as to justify [p 107]
its intervention, the Chamber has accordingly to bear in mind that a number
of issues may or may not fall to be determined by it under each head.
**
34. By a letter dated 20 April 1988, the Ambassador of Nicaragua to the
Netherlands requested that the pleadings be made available to Nicaragua
under Article 53, paragraph 1, of the Rules of Court, a request granted
(above, paragraph 13) on 15 June 1988 after ascertainment of the views of
the Parties. That letter referred to the Order of the Court of 8 May 1987
constituting the Chamber in this case, and stated:
"Whilst Nicaragua does not at this stage intend to avail itself of the
provisions of Article 62 of the Statute of the Court, the purpose of the
present communication is to inform the Court that the possibility offered by
Article 62 is under active consideration. In this context I am instructed to
convey the view of my Government that Nicaragua has an interest of a legal
nature which may be affected by a decision of the Chamber constituted for
the purpose of deciding the Case concerning the Land, Island and Maritime
Frontier Dispute between El Salvador and Honduras. Moreover, in the light of
the principle of consent as invoked by the Court in the Monetary Gold case,
I.C.J. Reports 1954, p. 19, at p. 32, my Government considers it necessary
to reserve its position generally in relation to the Court's Order of 8 May
1987."
Copies of this letter were transmitted to the two Parties by the Registrar
of the Court.
35. In its Application for permission to intervene, filed on 17 November
1989, Nicaragua stated that the Application was made by virtue of Article
36, paragraph 1, and Article 62 of the Statute. 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". The Application of Nicaragua was filed in the Registry of the
Court two months before the time-limit fixed for the filing of the Parties'
Replies.
36. By Article 81, paragraph 2, of the Rules of Court a State seeking to
intervene is required to specify the case to which it relates and to set
out:
"(a) the interest of a legal nature which the State applying to intervene
considers may be affected by the decision in that case;
(b) the precise object of the intervention;
(c) any basis of jurisdiction which is claimed to exist as between the State
applying to intervene and the parties to the case".
Nicaragua's contentions on each of those requirements are as follows.[p 108]
37. As to the interest of a legal nature (Article 81, paragraph 2 (a), of
the Rules of Court), Nicaragua states as follows in its Application: "As can
be appreciated in Article 2 of the Special Agreement . . ., the Government
of Nicaragua has an interest of a legal nature which must inevitably be
affected by a decision of the Chamber." (Para. 2.) It then proceeds to
enumerate the "particular considerations supporting this opinion" as
including the following:
"(a) The phrasing of paragraph 2 of Article 2 of the Special Agreement,
which refers comprehensively to 'la situacion juridica insular y de los
espacios maritimos'.
(b) The title of the Special Agreement which refers to 'la controversia
fronteriza terrestre, insular y maritima existente entre los dos Estados'.
(c) The geographical situation in the Gulf of Fonseca and the adjacent
maritime areas.
(d) The essential character of the legal principles, including relevant
equitable principles, which would be relevant to the determination of the
questions placed on the agenda by the Special Agreement.
(e) The general recognition by authoritative legal opinion that the issues
relating to the Gulf of Fonseca involve a trilateral controversy.
(f) The leading role of coasts and coastal relationships in the legal regime
of maritime delimitation and the consequence in the case of the Gulf of
Fonseca that it would be impossible to carry out a delimitation which took
into account only the coasts in the Gulf of two of the three riparian
States.
(g) The fact that a possible element in the regulation of the legal
situation of maritime spaces, especially in a case like that of the Gulf of
Fonseca, would be the designation of one or more zones of joint exploration
and exploitation: see the Report of the Conciliation Commission in the Jan
Mayen Continental Shelf case, International Law Reports (ed. E.
Lauterpacht), Vol. 62, p. 108." (Application, para. 2.)
38. Article 81, paragraph 2 (b), of the Rules of Court requires a statement
of "the precise object of the intervention". In Nicaragua's Application, it
is stated that
"The intervention for which permission is requested has the following
objects:
First, generally to protect the legal rights of the Republic of Nicaragua in
the Gulf of Fonseca and the adjacent maritime areas by all legal means
available.
Secondly, to intervene in the proceedings in order to inform the Court of
the nature of the legal rights of Nicaragua which are in issue in the
dispute. This form of intervention would have the conservative [p 109]
purpose of seeking to ensure that the determination of the Chamber did not
trench upon the legal rights and interests of the Republic of Nicaragua . .
." (Application, paras. 4-6.)
Nicaragua goes on to state that it "intends to subject itself to the binding
effect of the decision to be given" (Application, para. 6). The Chamber
takes note of that statement.
39. The further requirement of Article 81, paragraph 2 (c), of the Rules of
Court, that an application for permission to intervene set out "any basis of
jurisdiction which is claimed to exist as between the State applying to
intervene and the parties to the case", is dealt with in the Application as
follows. Nicaragua contends that, for reasons which are there briefly
stated, "In the opinion of the Government of Nicaragua Article 62 of the
Statute, which is the governing instrument, does not require a separate
title of jurisdiction . . ." (Application, para. 7.) Nicaragua does not
assert the existence of any basis of jurisdiction other than the Statute
itself; it adds that
"Moreover, Article 36, paragraph 1, of the Statute states that the
jurisdiction of the Court 'comprises . . . all matters specially provided
for . . . in treaties and conventions in force'; and the Statute is itself a
'treaty in force'." (Application, para. 7.)
40. In its Application Nicaragua further states that its request to
intervene is "limited to that part of the object of the Special Agreement
contained in paragraph 2 of Article 2", i.e., the request that the Chamber
"determine the legal situation of the islands and maritime spaces" and that
it "wishes to make very clear that it has no intention of intervening in
those aspects of the procedure relating to the land boundary which is in
dispute between El Salvador and Honduras" (Application, "Preliminary
Statements").
41. In its Application to the Court for permission to intervene dated 17
November 1989 Nicaragua also stated that
"The practical consequence of a favourable response to the present request
will be the reformation of the Chamber as presently constituted and the
re-ordering of the written proceedings as arranged by the Order of 27 May
1987. Whilst my Government is bound to take all available steps in order to
protect its legal interests, it is concerned to proceed in a spirit of
goodwill and co-operation in face of a procedure which has already been
initiated. Consequently, it is the intention of my Government to propose not
a reformation of the Chamber and its jurisdictional basis tout court but
only the making of those changes strictly necessary in order to maintain the
minimum standards of efficacy and procedural fairness" (para. 23 of that
Application),
and that[p 110]
"Nicaragua in the alternative would request that, for those reasons of
elemental fairness explained above . . ., the Court should, in any case,
exclude from the mandate of the Chamber any powers of determination of the
juridical situation of maritime areas both within the Gulf of Fonseca and
also in the Pacific Ocean and, in effect, limit the Chamber's mandate to
those aspects of the land boundary which are in dispute between El Salvador
and Honduras." (Para. 24 of that Application.)
In its Order of 28 February 1990, the Court observed on the first of these
contentions that
"while Nicaragua has thus referred to certain questions concerning the
composition of the Chamber, it has done so only in contemplation of a
favourable response being given to its request for intervention";
and on the second, that "while Nicaragua contemplates a limitation of the
mandate of the Chamber, its request to that effect is put forward only 'in
the alternative'"; and the Court concluded that it "is thus not called upon
to pronounce on any of these questions", which it referred to as "contingent
on the decision whether the application for permission to intervene is to be
granted", that decision being an "anterior question".
42. At the hearings, the Agent of Nicaragua, in his first statement to the
Chamber, referred to the Court's Order and stated that
"now that Nicaragua is before the Chamber reiterating its petition to
intervene, it does so without submitting to the Chamber on this opportunity
the two questions that the full Court stated could only be resolved after
the decision on the Application for permission to intervene was made by the
Chamber . . . Nicaragua maintains, before this Chamber of the Court, its
Application for permission to intervene but modified in the sense that the
requests made in Sections 23 and 24 of its original Application of 17
November 1989 are not being submitted for decision by this Chamber".
In reply to a question by the Chamber, the Agent made it clear that
Nicaragua accepted that the decision on intervention is entirely for the
Chamber, which has full authority to decide on it and stated further:
"The Chamber is correct in understanding that Nicaragua accepts that it is
the Chamber which is properly seised of an application by Nicaragua for
permission to intervene before it in the case concerning the Land, Island
and Maritime Frontier Dispute (El Salvador/Honduras); and that Nicaragua
recognizes that the eventual decision of the Chamber granting or refusing
permission to intervene will be binding and final . . .
The only limitation we have made to our original application to the [p 111]
full Court was that we are not putting at this moment before the Chamber any
request that it reconstitute itself or that it exclude from its own
competence ratione materiae those aspects of the case that Nicaragua had
requested that the full Court exclude from the mandate of this Chamber . . .
. . . what we are putting before the Chamber is the simple and unconditional
request to be allowed permission to intervene in the present case based on
Article 62 of the Statute . . ."
**
43. Some of the arguments of El Salvador have been put forward as grounds
for the Chamber to reject the Application of Nicaragua in limine, without
there being any need for further examination of its compliance with Article
62 of the Statute of the Court. These will therefore be examined first.
44. First, El Salvador claims that the Application fails to fulfil the
requirement in Article 81, paragraph 2 (c), of the Rules of Court that a
State seeking to intervene is to set out in its application "any basis of
jurisdiction which is claimed to exist as between the State applying to
intervene and the parties to the case". Nicaragua does not set out any such
basis in its Application but argues that Article 62 of the Statute "does not
require a separate title of jurisdiction" (para. 7). The Chamber does not
see here any formal defect, justifying dismissal of the Application in
limine, since the Rule only requires statement of "any basis of jurisdiction
which is claimed to exist". El Salvador also advances the view that a
"jurisdictional link" between the State seeking to intervene and the parties
is a necessary condition for intervention. The Court, however, has observed
in an earlier case that
"although 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" (I.C.J. Reports 1984, p. 8,
para. 11).
El Salvador's contentions on the question of the jurisdictional link will
therefore be examined later (paragraphs 93-101).
45. Second, El Salvador contends that Nicaragua's Application is defective
because it does not comply with the requirement of Article 81, paragraph 2
(b), of the Rules of Court that a State applying to intervene indicate in
its Application "the precise object of the intervention". Nicaragua's
Application has two paragraphs (quoted in paragraph 38 above) stating the
object of the intervention. El Salvador nonetheless contends (inter alia)
that Nicaragua has not complied with the requirement to indicate "the
precise object": it does not "indicate its position with respect to the
fundamental issue in the case, which is to define the object of the
litiga-[p 112]tion and consequently the scope of the powers of the Chamber",
and "these omissions make the Application defective". In the Chamber's view,
however, Nicaragua has given an indication of an object which could
certainly be defined in a more precise way but is not so evidently lacking
in precision as to justify the Chamber in rejecting the Application in
limine for non-compliance with Article 81 of the Rules of Court. Whether, as
El Salvador also claims, Nicaragua's object in intervening is not a proper
one is a separate matter to be considered below (paragraphs 85-92).
46. Thirdly, El Salvador contends further that "Nicaragua is time-barred or
estopped from seeking changes in the procedural aspects of the principal
proceedings". El Salvador refers to the provision of Article 81, paragraph
1, of the Rules of Court whereby an application for permission to intervene
is to be filed "as soon as possible, and not later than the closure of the
written proceedings". In its written observations on the Application, El
Salvador emphasized the words "as soon as possible", and contended that, in
view of Nicaragua's requests in paragraphs 23 and 24 of the Application, for
the reformation of the Chamber and the re-ordering of the written
proceedings (paragraph 41 above), it should not have postponed its
Application for nearly three years after being notified of the proceedings;
and that the Application for permission to intervene should be declined
because Nicaragua is "out of time". At the hearings the Agent of El
Salvador, continuing to urge that the Application was "untimely", stated
that El Salvador was fully aware that the relevant time-limits "have in the
technical sense been complied with by Nicaragua", and explained that it was
requesting the Chamber to reject the Nicaraguan Application, "not because it
fails to meet a technical requirement of the Rules but because it fails to
meet the substantive requirements of the Statute". The contention appears to
be that Nicaragua's Application is untimely, not only in itself but because
of the late raising of the matters in paragraphs 23 and 24 thereof, which
would be disruptive at the present advanced stage of the proceedings; and
that the Chamber has and should exercise a discretion to reject the
Application in limine on this ground.
47. In its observations on the Nicaraguan Application for permission to
intervene, El Salvador in fact sets out a number of grounds of objection to
the matters raised in paragraphs 23 and 24 of that Application. To give
effect to Nicaragua's stated intention to seek a "reordering of the written
proceedings" would, it is contended, "infringe the Rules of Court", "fail to
recognize the acquired rights of the litigant Parties", and "create an
unfair situation by placing Nicaragua in an advantageous position vis-à-vis
the Parties, already committed as they are by the contents of their
pleadings, to which Nicaragua has been given access". Nicaragua's intended
request for the "reformation of the Chamber as presently constituted" is
described by El Salvador as an "extravagant and unprecedented claim", to
allow which would "violate essential legal principles". To modify the
constitution of the Chamber without the consent of the Parties [p 113]
"would infringe Article 26, paragraph 2, of the Statute". Nicaragua's
proposal that the Court should "exclude from the mandate of the Chamber any
powers of determination of the juridical situation of maritime areas... and,
in effect, limit the Chamber's mandate" to the land boundary dispute is an
"extraordinary request" which "can only be explained by the mistaken
assumption that a Chamber is a body subordinated to the Court". All these
matters are, in the view of El Salvador, "totally disruptive of the orderly
unfolding of the judicial process". El Salvador concludes that
"All these serious defects in the Nicaraguan Application, resulting from the
extravagant requests it advances, lead to the necessary rejection by the
Chamber of such a defective application. The Chamber is not confronted here
with a serious request for what the Court has qualified as a 'genuine
intervention' . . ."
At the hearings, El Salvador urged rejection of the Nicaraguan Application
because acceptance of it "would wreak havoc on the Parties to this case and
would create an unconscionable situation of interference, rather than one of
orderly advancement of the proceedings".
48. The Chamber is here only concerned to consider whether the objections
addressed by El Salvador to paragraphs 23 and 24 of that Application would
justify its rejection in limine. This point has to be considered
notwithstanding the fact that the Court has categorized the content of those
paragraphs as contingent on the decision whether or not to grant permission
to intervene, and Nicaragua has made it clear that it is not
"putting at this moment before the Chamber any request that it reconstitute
itself or that it exclude from its own competence ratione materiae those
aspects of the case that Nicaragua had requested that the full Court exclude
from the mandate of this Chamber" (paragraph 42 above).
49. A rejection of the Application on these grounds would only be
appropriate if the Chamber were to conclude that the inclusion of the
requests in paragraphs 23 and 24 of the original Application invalidated the
entire Application. The Chamber does not however consider that this is the
case.
50. Finally, El Salvador relies on the fact that there has been "no
discussion whatsoever between Nicaragua and either of the original Parties
regarding the position of the Gulf of Fonseca". Therefore, it is argued, it
is premature to bring such issues before the Chamber, and counter to the
established rule "that before proceedings are brought in the Court, there
must be a defined dispute which . . . has matured through the process of
negotiation between the parties".
51. The Chamber does not consider that there is any requirement for the
definition of a dispute in prior negotiations before an application can be
made for permission to intervene. The function of intervention is, as [p
114] indicated in the 1984 Judgment on the Application of Italy for
permission to intervene in the case concerning the Continental Shelf (Libyan
Arab Jamahiriya/Malta), and as explained below, something wholly different
from the determination of a further dispute between the State seeking to
intervene and one or both of the parties. In that Judgment the Court found
that that Application could not be granted because, inter alia, to give
effect to it "the Court would be called upon . . . to determine a dispute,
or some part of a dispute, between Italy and one or both of the principal
Parties" (I.C.J. Reports 1984, p. 20, para. 31), without the consent of
those parties. It would therefore be inappropriate to require, as a
condition of intervention, the existence of such a dispute, defined by prior
negotiations.
**
52. As the Court has made clear in previous cases (I.C.J. Reports 1981, p.
19, para. 33; I.C.J. Reports 1984, p. 9, para. 13), in order to obtain
permission to intervene under Article 62 of the Statute, a State has to show
an interest of a legal nature which may be affected by the Court's decision
in the case, or that un interet d'ordre juridique est pour lui en cause --
the criterion stated in Article 62. In the present case, Nicaragua has gone
further: citing the case concerning Monetary Gold Removed from Rome in 1943
(I.C.J. Reports 1954, p. 19), it has argued that its interests are so much
part of the subject-matter of the case that the Chamber could not properly
exercise its jurisdiction without the participation of Nicaragua. It will be
convenient to examine this contention first.
53. In the view of Nicaragua, the decision in the Monetary Gold case
"emphasized the impropriety of exercising jurisdiction in face of a
substantial interest of a third State in the very subject-matter of the
decision" (Application, para. 12). During the oral proceedings the Agent of
Nicaragua claimed, adapting to the present case the terms of the decision in
the Monetary Gold case, that
"where . . . the vital issue to be settled concerns the rights of Nicaragua
in the Gulf of Fonseca and the waters outside it, the Court cannot, without
the consent of that third State, give a decision on that issue binding upon
any State . . .".
What is apparently being suggested is that in such circumstances the failure
of a third State to intervene, or even refusal of a request for permission
to intervene, may deprive the Court of the right with propriety to exercise
a jurisdiction conferred upon it by a special agreement between two other
States.
54. In the Monetary Gold decision, the Court was dealing with the following
argument (as reported in the Court's Judgment) which had been addressed to
it:[p 115]
"It has been suggested that Albania might have intervened. The provisions of
Article 62 of the Statute give to a third State, which considers that it
'has an interest of a legal nature which may be affected by the decision in
the case', the right to request permission to intervene. It has been
contended that the inclusion of the provisions for intervention indicate
that the Statute contemplates that proceedings may continue, notwithstanding
that a third State may have an interest of a legal nature which might enable
it to intervene. It is argued that the fact that a third State, in this case
Albania, may not choose to intervene should not make it impossible for the
Court to give judgment on rights as between the Parties." (I.C.J. Reports
1954, p. 32.)
The Court did not reject this contention; as was to be expressly stated in a
later Judgment, a State which considers that its legal interest may be
affected by a decision in a case has the choice, to intervene or not to
intervene; and if it does not, proceedings may continue, and that State is
protected by Article 59 of the Statute (I.C.J. Reports 1984, p. 26, para.
42). The Court's reply in the Monetary Gold case to the argument addressed
to it was as follows:
"Albania has not submitted a request to the Court to be permitted to
intervene. In the present case, Albania's legal interests would not only be
affected by a decision, but would form the very subject-matter of the
decision. In such a case, the Statute cannot be regarded, by implication, as
authorizing proceedings to be continued in the absence of Albania." (Loc.
cit., p. 32.)
What then was "the very subject-matter of the decision" in that case? The
first submission in the Italian Application was
"(1) that the Governments of the French Republic, Great Britain and Northern
Ireland and the United States of America should deliver to Italy any share
of the monetary gold that might be due to Albania under Part III of the
Paris Act of January 14th, 1946, in partial satisfaction for the damage
caused to Italy by the Albanian law of January 13th, 1945." (I.C.J. Reports
1954, p. 22, emphasis added.)
Thus the circumstances of the Monetary Gold case were such that a decision
would determine a question of the international responsibility of Albania
vis-a-vis Italy. As the Court put it:
"To adjudicate upon the international responsibility of Albania without her
consent would run counter to a well-established principle of international
law embodied in the Court's Statute, namely, that the Court can only
exercise jurisdiction over a State with its consent." (I.C.J. Reports 1954,
p. 32.)
55. Thus the Court's finding was that, while the presence in the Statute of
Article 62 might impliedly authorize continuance of the proceedings in
[p116] the absence of a State whose "interests of a legal nature" might be
"affected", this did not justify continuance of proceedings in the absence
of a State whose international responsibility would be "the very
subject-matter of the decision". The Court did not need to decide what the
position would have been had Albania applied for permission to intervene
under Article 62.
56. If in the present case the legal interests of Nicaragua would form part
of "the very subject-matter of the decision", as Nicaragua has suggested,
this would doubtless justify an intervention by Nicaragua under Article 62
of the Statute, which lays down a less stringent criterion. The question
would then arise, however, whether such intervention under Article 62 of the
Statute would enable the Chamber to pronounce upon the legal interests of
Nicaragua which it is suggested by Nicaragua would form the very
subject-matter of the decision. The Chamber will therefore first consider
whether Nicaragua has shown the existence of an "interest of a legal nature
which may be affected by the decision", so as to justify an intervention,
and if such is the case, will then consider whether that interest may in
fact form "the very subject-matter of the decision" as did the interests of
Albania in the case concerning Monetary Gold Removed from Rome in 1943.
**
57. Article 62 of the Statute contemplates intervention on the basis of an
interest of a legal nature "which may be affected by the decision in the
case". In the present case however, what is requested of the Chamber by the
Special Agreement is not a decision on a single circumscribed issue, but
several decisions on various aspects of the overall dispute between the
Parties, as indicated in paragraphs 30 to 33 above. The Chamber has to
consider the possible effect on legal interests asserted by Nicaragua of its
eventual decision on each of the different issues which might fall to be
determined, in order to define the scope of any intervention which may be
found to be justified under Article 62 of the Statute.
58. If a State can satisfy the Court that it has an interest of a legal
nature which may be affected by the decision in the case, it may be
permitted to intervene in respect of that interest. But that does not mean
that the intervening State is then also permitted to make excursions into
other aspects of the case. This is recognized by Nicaragua; it claims only
that its interests of a legal nature may be affected by the decision of the
Chamber on the "legal situation of the islands and maritime spaces", but not
by the decision on the land frontier, and accordingly states in its
Application "that it has no intention of intervening in those aspects of the
procedure relating to the land boundary which is in dispute between El
Salvador and Honduras" (Application, "Preliminary Statements"). Since the
scope of any permitted intervention has to be determined, the Chamber has to
consider the matters of the islands, the situation of the waters within the
[p 117]Gulf, the possible delimitation of the waters within the Gulf, the
situation of the waters outside the Gulf, and the possible delimitation of
the waters outside the Gulf.
59. Whether all of these matters are indeed raised by the wording of Article
2, paragraph 2, of the Special Agreement is itself disputed between the
Parties to the case. Accordingly, the list of matters to be considered must
in this phase of the proceedings be entirely without prejudice to the
meaning of Article 2, paragraph 2, as a whole, or of any of the terms as
used in that Article. The Chamber clearly cannot take any stand in the
present proceedings on the disputes between the Parties concerning the
proper meaning of the Special Agreement: it must determine the questions
raised by Nicaragua's Application while leaving these questions of
interpretation entirely open.
60. In its Application for permission to intervene, Nicaragua gave a list
(set out in paragraph 37 above) of considerations supporting its contention
that it has an interest of a legal nature which may be affected by the
decision of the Chamber. No further or more specific indication was given in
the Application either of the legal interest or interests claimed to exist
or of the way in which the future decision of the Chamber might affect that
interest. During the hearings, the Agent of Nicaragua explained that
"In describing the legal interests Nicaragua wants to protect in this case,
we have considered it unnecessary to allege or claim a specific right inside
the Gulf of Fonseca. It is enough to indicate . . . that both Parties, among
other questions that affect our interests, are asking the Chamber to define
or clarify the general or overall status of the whole Gulf of Fonseca in
which Nicaragua plainly has rights that are even recognized according to
their respective convenience by the Parties . . . On the other hand, if the
Chamber were to consider the request of Honduras and proceeded to delimit
the waters inside the Gulf, it is obvious from looking at any chart that no
such delimitation is possible without affecting our interests, if this
delimitation involves the whole of the Gulf of Fonseca."
61. There was in this connection some argument before the Chamber on the
question of the extent of the burden of proof on a State seeking to
intervene: how far such a State needs to demonstrate the elements required
in order to satisfy Article 62. Nicaragua was of the view that it need only
show a "provisional standard of proof; and that it would be "inappropriate
for the applicant to go too far on the question of the validity of the
interests it claims". The Parties to the case took issue with these
arguments. In the Chamber's opinion, however, it is clear, first, that it is
for a State seeking to intervene to demonstrate convincingly what it
asserts, and thus to bear the burden of proof; and, second, that it has only
to show that its interest "may" be affected, not that it will or must be
affected. What needs to be shown by a State seeking permission to inter-[p
118]vene can only be judged in concreto and in relation to all the
circumstances of a particular case. It is for the State seeking to intervene
to identify the interest of a legal nature which it considers may be
affected by the decision in the case, and to show in what way that interest
may be affected; it is not for the Court itself -- or in the present case
the Chamber -- to substitute itself for the State in that respect.
62. It needs, moreover, to be recalled in this connection that the present
case raises a further problem, namely that the Parties to the case are in
dispute about the interpretation of the very provision of the Special
Agreement -- paragraph 2 of Article 2 -- which is invoked in Nicaragua's
Application. This means that the legal interests of Nicaragua have to be
assessed, in relation to the issues in the case, under two different
possible situations: an eventual finding by the Chamber in favour of El
Salvador's view of the meaning of Article 2, paragraph 2; or an eventual
finding in favour of the view of Honduras. This difficulty is not only one
for the Chamber in considering the present Application -- for obviously, as
mentioned above, it must not in any way anticipate its decision of these
matters on the merits -- but also for Nicaragua in framing its Application,
even though it was given access to the pleadings under Article 53, paragraph
1, of the Rules of Court. Nevertheless, there needs finally to be clear
identification of any legal interests that may be affected by the decision
on the merits. A general apprehension is not enough. The Chamber needs to be
told what interests of a legal nature might be affected by its eventual
decision on the merits.
63. Nicaragua has presented a particular argument whereby it would
apparently be dispensed from producing evidence of the existence of the
legal interests on which it relies, by reason of the assertions of the
Parties. This argument has at times been denominated "equitable estoppel"
and at times "recognition"; in its clearest form it was put forward at the
hearings as follows:
"In the submission of the Government of Nicaragua the assertions of fact and
law on the part of El Salvador and Honduras in the course of these
proceedings constitute recognition of the existence of major legal interests
pertaining to Nicaragua which form an inherent part of the parcel of legal
questions placed in front of the Chamber by the Special Agreement."
So far as Nicaragua relies on estoppel, the Chamber will only say that it
sees no evidence of some essential elements required by estoppel: a
statement or representation made by one party to another and reliance upon
it by that other party to his detriment or to the advantage of the party
making it. The indications to be found in the pleadings of the views of the
Parties as to the existence or nature of Nicaraguan interests within or
without the Gulf, no doubt amount to some evidence which the Chamber can
take into account. None of these however amounts to an admission,
recognition or statement that, in the view of the Party concerned, there are
[p 119] interests of Nicaragua such that they may be affected by the
decision of the Chamber in the case.
64. The Chamber will now turn to consideration of the several specific
issues in the case which may call for decision, as indicated in paragraph 58
above, in order to determine whether it has been shown that such decision
may affect a Nicaraguan interest of a legal nature.
65. So far as the decision requested of the Chamber by the Parties is to
determine the legal situation of the islands, it is not clear whether
Nicaragua has advanced, or now maintains, a contention that its legal
interests may be directly affected by the decision of the Chamber as to
sovereignty over individual islands. Nicaragua referred in its Application
to the title of the Special Agreement and to Article 2, paragraph 2,
thereof, which refer both to the islands and to the maritime spaces (Que
determine la situacion juridica insular y de los espacios maritimos). During
the hearings, counsel for Nicaragua stated that, Nicaragua's sovereignty
over the Farallones being expressly recognized by the Parties, Nicaragua has
in principle no direct interest in the determination of the legal situation
of the other islands in the Gulf. It was however also stated on behalf of
Nicaragua during the hearings that, insofar as the decision concerning
sovereignty over the islands might have repercussions on a decision
concerning delimitation of the waters of the Gulf, Nicaragua is legitimately
and directly interested in the islands as a circumstance of possible
relevance for the delimitation of maritime areas within and without the
Gulf.
66. The Chamber concludes that, insofar as the dispute relates to
sovereignty over the islands, it should not grant permission for
intervention by Nicaragua, in the absence of any Nicaraguan interest liable
to be directly affected by a decision on that issue. Any possible effects of
the islands as relevant circumstances for delimitation of maritime spaces
fall to be considered in the context of the question whether Nicaragua
should be permitted to intervene on the basis of a legal interest which may
be affected by a decision on the legal situation of the waters of the Gulf.
The Chamber therefore turns to that question.
67. It is El Salvador's case that, as between El Salvador, Honduras and
Nicaragua, there exists "a regime of community, co-ownership or joint [p
120] sovereignty" over such of the waters of the Gulf of Fonseca "as lie
outside the area of exclusive jurisdiction", an "objective legal regime" on
the basis of the 1917 Judgement of the Central American Court of Justice.
The nature of that regime, as conceived by the Central American Court,
appears sufficiently for present purposes from the extracts from the 1917
Judgement in paragraphs 27 and 28 above. On that basis, El Salvador
considers that the juridical situation of the Gulf does not permit the
dividing up of the waters held in condominium. El Salvador also contends
that the Special Agreement does not confer jurisdiction to effect any such
delimitation.
68. Honduras on the other hand contends, inter alia,
-- that "the Gulf's specific geographical situation creates a special
situation between the riparian States which generates a community of
interests" which in turn "calls for a special legal regime to determine
their mutual relations";
-- that the community of interests "does not mean integration and the
abolition of boundaries" but, on the contrary, "the clear definition of
those boundaries as a condition of effective co-operation";
-- that each of the three riparian States "has an equal right to a portion
of the internal waters";
-- that the maritime spaces to be delimited have "the status of internal
waters because the Gulf of Fonseca is an historic bay"; but that
nevertheless it would not be correct "to rule out the application to such
delimitation of the principles and rules that have gradually been identified
in international case-law over the past twenty years" for the delimitation
of maritime spaces.
69. Honduras considers that Nicaragua has demonstrated a legal interest
which would be affected by the decision on the question whether the waters
of the Gulf are subject to a condominium, observing that it is inconceivable
that the waters could be a condominium as regards two of the riparian
States, but not as regards the third. It therefore does not oppose an
intervention limited to the protection of Nicaragua's legal interest in this
question.
70. El Salvador, however, denies that Nicaragua has a case for intervention
even in this matter. It argues that the Chamber is not called upon "to
attribute to the waters of the Gulf an objective legal regime valid erga
omnes and thereby applicable to Nicaragua without its having been able to
make its voice heard"; and that the question to be decided is whether the
regime of a condominium,
"which was declared applicable between El Salvador and Nicaragua in a Court
decision having the force of res judicata between the two countries, can be
regarded as applicable to Honduras. Whatever decision the Chamber reaches on
this issue the juridical situation of Nicaragua will remain unchanged, in
its relations both with El Salvador and with Honduras."[p 121]
71. The Chamber however notes that El Salvador in its pleadings has
specifically claimed the existence of an "objective legal regime" of
condominium in the waters of the Gulf (paragraph 67 above). Further, the
fact that this regime was found to be applicable by the Central American
Court of Justice in a case in which Nicaragua was the respondent party,
appears to the Chamber to reinforce Nicaragua's assertion of a legal
interest which maybe affected by any decision in this matter. As appears
from the above quotation, El Salvador's argument starts from the proposition
that the 1917 Judgement of the Central American Court is res judicata
between El Salvador and Nicaragua. The Chamber has noted above (paragraph
28) that in 1917 Nicaragua informed the States of Central America that it
did not accept that Judgement. That very question of res judicata, even
though not directly in issue before the Chamber since El Salvador does not
contend that Honduras was a party to the case and as such bound by the
decision, underlies the asserted opposability of the Judgement to Honduras,
so that a decision on such opposability may affect the interests of
Nicaragua.
72. Quite apart from the question of the legal status of the 1917 Judgement,
however, the fact is that El Salvador now claims that the waters of the Gulf
are subject to a condominium of the coastal States, and has indeed suggested
that that regime "would in any case have been applicable to the Gulf under
customary international law". Nicaragua has referred to the fact that
Nicaragua plainly has rights in the Gulf of Fonseca, the existence of which
is undisputed, and contends that
"The condominium, if it is declared to be applicable, would by its very
nature involve three riparians, and not only the parties to the Special
Agreement."
In the opinion of the Chamber, this is a sufficient demonstration by
Nicaragua that it has an interest of a legal nature in the determination
whether or not this is the regime governing the waters of the Gulf: the very
definition of a condominium points to this conclusion. Furthermore, a
decision in favour of some of the Honduran theses would equally be such as
may affect legal interests of Nicaragua. The "community of interests" which
is the starting-point of the arguments of Honduras is a community which,
like the condominium claimed by El Salvador, embraces Nicaragua as one of
the three riparian States, and Nicaragua must therefore be interested also
in that question. Nicaragua contends that in this respect
"any decision taken by the Chamber -- whether in deciding in favour of one
Party or the other or by deciding otherwise -- is necessarily a decision
whose very subject-matter would be the determination of the rights of the
three riparian States in respect of the Gulf of Fonseca, and of the waters
outside the Gulf".
The Chamber, therefore, finds that Nicaragua has shown to the Cham-[p
122]ber's satisfaction the existence of an interest of a legal nature which
may be affected by its decision on these questions; and that this is so
notwithstanding the fact that, as its Agent explained at the opening
hearing, Nicaragua has "considered it unnecessary to allege or claim a
specific right inside the Gulf of Fonseca".
73. On the other hand, while the Chamber is thus satisfied that Nicaragua
has a legal interest which may be affected by the decision of the Chamber on
the question whether or not the waters of the Gulf of Fonseca are subject to
a condominium or a "community of interests" of the three riparian States, it
cannot accept the contention of Nicaragua that the legal interest of
Nicaragua "would form the very subject-matter of the decision", in the sense
in which that phrase was used in the case concerning Monetary Gold Removed
from Rome in 1943 to describe the interests of Albania (see paragraphs 52-56
above). So far as the condominium is concerned, the essential question in
issue between the Parties is not the intrinsic validity of the 1917
Judgement of the Central American Court of Justice as between the parties to
the proceedings in that Court, but the opposability to Honduras, which was
not such a party, either of that Judgement itself or of the regime declared
by the Judgement. Honduras, while rejecting the opposability to itself of
the 1917 Judgement, does not ask the Chamber to declare it invalid. If
Nicaragua is permitted to intervene, the Judgment to be given by the Chamber
will not declare, as between Nicaragua and the other two States, that
Nicaragua does or does not possess rights under a condominium in the waters
of the Gulf beyond its agreed delimitation with Honduras, but merely that,
as between El Salvador and Honduras, the regime of condominium declared by
the Central American Court is or is not opposable to Honduras. It is true
that a decision of the Chamber rejecting El Salvador's contentions, and
finding that there is no condominium in the waters of the Gulf which is
opposable to Honduras, would be tantamount to a finding that there is no
condominium at all. Similarly, a finding that there is no such "community of
interests" as is claimed by Honduras, between El Salvador and Honduras in
their capacity as riparian States of the Gulf, would be tantamount to a
finding that there is no such "community of interests" in the Gulf at all.
In either event, such a decision would therefore evidently affect an
interest of a legal nature of Nicaragua; but even so that interest would not
be the "very subject-matter of the decision" in the way that the interests
of Albania were in the case concerning Monetary Gold Removed from Rome in
1943. As explained above (paragraph 56), it follows from this that the
question whether the Chamber would have power to take a decision on these
questions, without the participation of Nicaragua in the proceedings, does
not arise; but that the conditions for an intervention by Nicaragua in this
aspect of the case are nevertheless clearly fulfilled.
*[p 123]
74. If the Chamber were not satisfied that there is a condominium over the
waters of the Gulf of such a kind as to exclude any delimitation, it might
then be called upon, if it were satisfied that it has jurisdiction to do so,
to effect a delimitation. The Chamber has therefore at the present stage to
consider whether a decision as to delimitation of the waters of the Gulf
might affect an interest of a legal nature appertaining to Nicaragua, in
order to determine whether Nicaragua might be permitted to intervene in
respect of this aspect of the case also. It does not, however, have to
consider the possible effect on Nicaragua's interests of every possible
delimitation which might be arrived at; it is for the State seeking to
intervene to show that its interests might be affected by a particular
delimitation, or by delimitation in general. Honduras has already indicated
in its pleadings how, in its view, the delimitation should be effected. El
Salvador, consistently with its position, has not indicated its views on
possible lines of delimitation. Nicaragua, for its part, has not given any
indication of any specific line of delimitation which it considers would
affect its interests.
75. Honduras contends that Nicaragua has demonstrated no legal interest
which may be affected by a decision on a delimitation line within the Gulf
as between Honduras and El Salvador. It observes that
"Such a delimitation line is proposed by Honduras, not by El Salvador, and
the Honduran proposal is careful to avoid any encroachment into areas within
the Gulf which might be claimed by Nicaragua. Moreover, whatever the
Honduran proposal might be, the Court itself has all the powers necessary to
ensure that any line of delimitation which it might draw would not be to the
prejudice of Nicaragua's interests."
At the hearings it was explained that, for the delimitation claimed,
"Honduras has proposed a method which divides the Gulf into a western and
eastern section . . . It has been the aim of Honduras to confine the
relevant area for the purposes of a delimitation with El Salvador to the
western sector of the Gulf."
Honduras relied on what it asserted to be the reasonable assumption that
"there can be no justifiable claim by Nicaragua to any part of the waters of
this western sector". This argument was, in counsel's contention, reinforced
by the fact that "as between Honduras and Nicaragua, the waters of the Gulf
are in large part already delimited" by the 1900 Commission, which
delimitation would debar Nicaragua from making claims in the western half of
the Gulf. El Salvador also contends that if, contrary to its own arguments
on the competence of the Chamber under the Special Agreement, the Chamber
proceeds to effect a delimitation,[p 124]
"Nicaragua has rights in the Gulf and in the Pacific, but in the light of
the geographical and legal situation, these rights would not be affected by
any such decision in the present case".
76. As for the arguments advanced by Nicaragua which might touch on this
question of delimitation, the most general may be seen in its presentation,
as a consideration supporting its assertion of a legal interest, of the
"essential character of the legal principles, including relevant equitable
principles, which would be relevant to the determination of the questions
placed on the agenda by the Special Agreement" (Application, para. 2 (d)).
The Chamber does not however consider that an interest of a third State in
the general legal rules and principles likely to be applied by the decision
can justify an intervention. Even when, as in the case of Malta's
Application for permission to intervene in the case between Libya and
Tunisia, the State seeking to intervene "does not base its request for
permission to intervene simply on an interest in the Court's pronouncements
in the case regarding the applicable general principles and rules of
international law", but "bases its request on quite specific elements" in
the case (I.C.J. Reports 1981, p. 17, para. 30), the interest invoked cannot
be regarded as one which "may be affected by the decision in the case"
(I.C.J. Reports 1981, p. 19, para. 33). The consideration urged in paragraph
2 (d) of the Application is thus insufficient to show the existence of an
interest of a legal nature.
77. With specific reference to delimitation, Nicaragua's Application refers
to:
"The leading role of coasts and coastal relationships in the legal regime of
maritime delimitation and the consequence in the case of the Gulf of Fonseca
that it would be impossible to carry out a delimitation which took into
account only the coasts in the Gulf of two of the three riparian States"
(para. 2 (f));
but the "role of coasts and coastal relationships" in maritime delimitation
again involves general legal rules and principles. The contention that in
the Gulf of Fonseca "it would be impossible to carry out a delimitation
which took into account only the coasts in the Gulf of two of the three
riparian States" would be more convincing were it not for the fact that in
1900 a maritime boundary was defined in the Gulf between Nicaragua and
Honduras. In any event, the question is whether a legal interest of
Nicaragua would be "affected" by such maritime delimitation. It occurs
frequently in practice that a delimitation between two States involves
taking account of the coast of a third State; but the taking into account of
all the coasts and coastal relationships within the Gulf as a geographical
fact for the purpose of effecting an eventual delimitation as between two
riparian States -- El Salvador and Honduras in the instant case -- in no way
signifies that by such an operation itself the legal interest of a third
riparian State of the Gulf, Nicaragua, may be affected. In any case, it is
for the Applicant ate in the present proceedings to demonstrate to the
satisfac-[p 125]tion of the Chamber that this would be actually the case in
the present instance. This Nicaragua has failed to do. As for the other
arguments advanced by Nicaragua, in paragraph 2 (g) of its Application, in
support of its position, these appear to the Chamber to refer to altogether
too remote a contingency to justify an intervention in the present
proceedings.
78. Paragraph 2 (c) of the Application advances "The geographical situation
in the Gulf of Fonseca and the adjacent maritime areas" as a consideration
supporting the contention that Nicaragua has an interest of a legal nature
which may be affected by the decision. Setting aside for the moment the
question of the "adjacent maritime areas", the essential difficulty in which
the Chamber finds itself, on this matter of a possible delimitation within
the waters of the Gulf, is that Nicaragua did not in its Application
indicate any maritime spaces in which Nicaragua might have a legal interest
which could be said to be affected by a possible delimitation line between
El Salvador and Honduras. The area in which such maritime spaces could exist
is in any event limited, in view of the delimitation effected in 1900 with
Honduras. In the oral proceedings counsel for Nicaragua did refer to "the
fact that it will be necessary to join some point on the closing line of the
Gulf with the western terminus of the line of 1900"; an observation which,
while at any rate focusing consideration on a particular area of the Gulf
waters, still failed to make any case that the Nicaraguan interest involved
would be affected by the Honduran proposed delimitation line. The Agent of
Nicaragua also suggested that the Chamber might, in making any delimitation
within the Gulf between El Salvador and Honduras, have to take account of
"navigation routes in a Gulf whose mouth is less than 20 miles wide and the
reasonable security interests of the riparians", but this consideration is
too general to justify intervention in relation to a decision on
delimitation in the present case.
79. Accordingly the Chamber is not satisfied that a decision in the present
case either as to the law applicable to a delimitation, or effecting a
delimitation, between Honduras and El Salvador, of the waters of the Gulf
(except as regards the alleged "community of interests"), would affect
Nicaragua's interests. The Chamber therefore considers that although
Nicaragua has, for purposes of Article 62 of the Statute, shown an interest
of a legal nature which may be affected by the Chamber's decision on the
question of the existence or nature of a regime of condominium or community
of interests within the Gulf of Fonseca, it has not shown such an interest
which might be affected by the Chamber's decision on any question of
delimitation within the Gulf. This finding also disposes of the question,
referred to in paragraph 66 above, of the possible relevance of a decision
in the island dispute.
*[p 126]
80. The Chamber now turns to the question of the possible effect on
Nicaragua's legal interests of its future decision on the waters outside the
Gulf, referred to by Nicaragua as "the adjacent maritime areas". In respect
of these waters the Parties to the case are again divided as to the meaning
of Article 2 of the Special Agreement. Honduras claims that
"In requesting the Court to determine 'the legal situation in the . . .
maritime areas', the Parties have necessarily endowed the Court with
competence to delimit the zones of territorial sea and the exclusive
economic zones pertaining to Honduras and El Salvador respectively."
Consistently with its interpretation of Article 2 of the Special Agreement,
Honduras asks the Chamber to endorse the delimitation line advanced by
Honduras for the waters outside the Gulf as "productive of an equitable
solution". El Salvador interprets the Special Agreement as not authorizing
the Chamber to effect any delimitation; it contends furthermore that there
is no connection between the rights of Honduras as a coastal State within
the Gulf having a right of access to the high seas, and any claim by
Honduras to a territorial sea and exclusive economic zone beyond the closing
line of the Gulf. El Salvador also refers to the Farallones, belonging to
Nicaragua, and to certain islands claimed by El Salvador, and contends that
"These islands and the waters associated with them effectively deprive
Honduras of direct contact with the Pacific through the mouth of the Gulf of
Fonseca."
81. Both Parties contend that Nicaragua has no legal interest which may be
affected by the decision on the "legal situation" of the maritime spaces
outside the Gulf. El Salvador observes that if its interpretation of the
Special Agreement is accepted, Nicaragua's rights vis-à-vis El Salvador will
subsist unaffected; but contends that even if the Chamber were to decide
that Honduras has rights over the waters outside the Gulf, and to delimit
them by its Judgment, it could do so "without Nicaragua being a party to the
proceedings". Both Parties deny that the carrying out by the Chamber of
their respective interpretations of Article 2 could affect Nicaragua's legal
interests. The State seeking to intervene is, however, of the view that its
own legal interests in these waters must be affected by a decision of the
Chamber on the basis of either interpretation of Article 2.
82. Whether a State is entitled to a territorial sea, continental shelf, or
exclusive economic zone is a question to be decided by application of the
principles and rules of the law of the sea on those matters. As observed
above (paragraph 76), an interest in the application of general legal rules
and principles is not the kind of interest which will justify an application
for permission to intervene. In the present case, the legal regime within
the Gulf -- whatever it may be found by the Chamber to be -- will no doubt
also be relevant to any decision delimiting the waters outside the Gulf; but
[p 127] this, in the view of the Chamber, tends solely to strengthen
Nicaragua's claim to intervene in relation to the legal regime of the
maritime spaces inside the Gulf, not to justify an intervention in relation
to the legal situation of the maritime spaces outside.
83. This question furthermore cannot be considered separately from the
question set by the Honduran thesis, according to which the Chamber is
required by the Special Agreement to effect a maritime delimitation in the
area outside the Gulf. As already observed (paragraph 74 above), the Chamber
does not have to consider the effects of every possible delimitation, but
merely to consider whether the State seeking to intervene has shown the
existence of a legal interest, and has shown that that interest may be
affected by a delimitation decision. Honduras moreover has in its pleadings
produced a proposed scheme of delimitation, and has charted it; and in the
context of the present proceedings Honduras has expounded this scheme to the
Chamber, and shown how it is designed to avoid entirely any impingement upon
waters outside the Gulf which might conceivably be claimed by Nicaragua.
Counsel for Honduras explained that only part of the Honduran coast had been
taken into account for that delimitation, the remainder of the Honduran
coast being ignored "because it is relevant to some future delimitation
between Honduras and Nicaragua"; and that
"by the same reasoning we have limited the relevant maritime area to the
east by a line drawn from [a point midway along the closing-line]
perpendicular to the general direction of the coast, out to 200 miles, . .
.".
He concluded that
"The result is that Nicaraguan claims, both in respect of the closing-line
and the maritime areas outside, are untouched. Provided, provided only, that
you can assume that Nicaragua has no plausible claim to the waters beyond
the mid-point of the closing line, . . . or to the waters west of the
perpendicular projected from that mid-point."
84. In these incidental proceedings, and before hearing argument on the
merits, the Chamber cannot pass upon Honduras's demonstration concerning its
proposal for delimitation of the waters outside the Gulf; but that
demonstration did call for some indication in response, by the State seeking
to intervene, of how those proposals would affect a specific interest of
that State, or what other possible delimitation would affect that interest.
Nicaragua has responded to this scheme of Honduras, but again very much in
general terms. At the hearings, the Agent of Nicaragua simply said that
"Outside the Gulf of Fonseca, it is plain from looking at [p 128] any chart
and from the graphics presented by the Parties in their written pleadings"
-- and he referred specifically to the charts showing Honduras's proposed
delimitation -- "that no such demands can be made in the Pacific Ocean
without affecting the legal interest of Nicaragua to a significant extent."
The Chamber does not find the matter so plain. Nicaragua was shown by
Honduras both a proposed delimitation line and a proposed line marking off
what Honduras calls the "relevant maritime area". The charted proposition of
Honduras thus gave Nicaragua the opportunity to indicate how the Honduran
proposals might affect "to a significant extent" any possible Nicaraguan
legal interest in waters west of that Honduran line. This Nicaragua did not
do. Nicaragua failed to indicate how this delimitation, or any other
delimitation regarded by it as a possible one, would affect an actual
Nicaraguan interest of a legal nature, and the Chamber therefore cannot
grant Nicaragua permission to intervene over the delimitation of the waters
outside the Gulf closing line.
**
85. Having found that Nicaragua has shown an interest of a legal nature
which may be affected by certain of the decisions which may be required by
the Special Agreement, the Chamber has now to turn to the question of the
object of Nicaragua's Application for permission to intervene in the case. A
statement of the "precise object of the intervention" is required by Article
81, paragraph 2 (b), of the Rules of Court; and it is clear from previous
decisions of the Court that it is bound to consider "the object of the
Application and the way in which that object corresponds to what is
contemplated by the Statute", and to satisfy itself that the object of the
intervention corresponds to what is envisaged by the Statute (I.C.J. Reports
1984, p. 18, para. 28).
86. Nicaragua's indication, in its Application for permission to intervene,
of the object of its intervention in the present case, already quoted in
paragraph 38 above, was as follows:
"The intervention for which permission is requested has the following
objects:
First, generally to protect the legal rights of the Republic of Nicaragua in
the Gulf of Fonseca and the adjacent maritime areas by all legal means
available.
Secondly, to intervene in the proceedings in order to inform the Court of
the nature of the legal rights of Nicaragua which are in issue in the
dispute. This form of intervention would have the conservative purpose of
seeking to ensure that the determination of the Chamber did not trench upon
the legal rights and interests of the Republic of Nicaragua . . ."[p 129]
That indication should be read in the light of the statement of the Agent of
Nicaragua at the hearings that
"if the Chamber should feel that the Application of Nicaragua goes too far
or remains too limited, Nicaragua would be willing to adjust to any
procedure indicated by the Chamber. The only thing that Nicaragua seeks is
to protect its legal interests and it will do so in any way the Statute
allows."
It has been contended, in particular by El Salvador, that Nicaragua has not
stated the "precise object" of its intervention in compliance with Article
81, paragraph 2 (b), of the Rules of Court, and that its stated object is
not a proper object, and that for these reasons Nicaragua's Application
should not be accepted.
87. El Salvador complains that although Nicaragua states that its object is
to "protect the legal rights of the Republic of Nicaragua in the Gulf of
Fonseca and the adjacent maritime areas", and to "inform the Court of the
nature of the legal rights of Nicaragua which are in issue in the dispute",
it does not sufficiently indicate what those rights are claimed to be, how
they may be affected, or what substantive purpose Nicaragua seeks to
achieve. In order to be permitted to intervene, a State does not have to
show that it has rights which need to be protected, but merely an interest
of a legal nature which may be affected by the decision in the case. This
matter of legal interests has however been dealt with and decided by the
Chamber in the earlier part of this Judgment (paragraphs 72, 79 and 84); so
it is in relation to those Nicaraguan interests of a legal nature which the
Chamber has found to exist that the Chamber must now examine the declared
object of the intervention. Nicaragua's substantive purpose appears to be to
inform the Chamber of its rights or interests, and to protect them "by all
legal means available", i.e., to prevent them being affected by the
Chamber's decision, or to ensure that a decision affecting them is only
taken after Nicaragua has been heard.
88. In its written observations on the Application for permission to
intervene, El Salvador referred to this aspect of the Application and argued
that
"[The] differing descriptions of the object of the intervention, oscillating
between the purpose of protecting its rights by all legal means available
and the conservative purpose of merely informing the Chamber of its rights,
constitute an attempt to avoid the dilemma confronting a State seeking to
intervene . . . If the object of the intervention is to inform the Court of
its rights or claims, Nicaragua will have a full opportunity to do so (as
Italy did) in the oral proceedings to be convened in accordance with Article
84, paragraph 2, of the Rules, without any need to allow its intervention.
If, on the other hand, the object of the application is to protect its
claims by all legal means, including that of seeking a favourable judicial
pronouncement on these claims, then such a purpose will signify the
introduce-[p 130]tion by Nicaragua of additional disputes, requiring a valid
link of jurisdiction, which does not exist."
89. It appears to the Chamber that the consequence of that argument would be
that intervention, not merely in the present case but in most cases, would
have to be refused, if not for the one reason, then for the other, and that
the purposes of Article 62 of the Statute would thus be frustrated. The
Chamber cannot accept such a position. In the first place, with regard to
the stated object of informing the Court of a third State's rights, it is
evident that if it were necessary for a State which considered that its
legal interests might be affected by the decision in a case to give an
exhaustive account of these interests in its application for permission to
intervene, or at the hearings held to consider whether permission to
intervene should be granted, there would be no point in the institution of
intervention and in the further proceedings to which it should give rise
under the Rules of Court. It is true that in the circumstances of the case
concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), the Court
found itself able to take into account, in its decision on the merits,
information about Italian claims presented to it during the proceedings on
Italy's unsuccessful application to intervene. But the reason for the
refusal of permission to intervene in that case was not that the Court was
already sufficiently informed of Italy's interests by those proceedings. Nor
was it a finding that Italy had not sufficiently indicated the interests to
be protected or presented them in an inappropriate manner.
90. So far as the object of Nicaragua's intervention is "to inform the Court
of the nature of the legal rights of Nicaragua which are in issue in the
dispute", it cannot be said that this object is not a proper one: it seems
indeed to accord with the function of intervention. It is true that
Nicaragua in its Application went on to state that it has "the conservative
purpose of seeking to ensure that the determinations of the Chamber did not
trench upon the legal rights and interests of the Republic of Nicaragua . .
.". The expression "trench upon the legal rights and interests" is language
not to be found in Article 62 of the Statute, which refers to the
possibility that an "interest of a legal nature" might be "affected" by the
decision. If "trench upon" was intended perhaps to go further than the
language of the Statute, then it should be borne in mind that it would
hardly be possible, given Article 59 of the Statute and indeed the decision
in the case concerning Monetary Gold Removed from Rome in 1943 (paragraphs
54-55 above), for a decision of the Court to "trench upon" the legal right
of a third State. It seems to the Chamber however that it is perfectly
proper, and indeed the purpose of intervention, for an intervener to inform
the Chamber of what it regards as its rights or interests, in order to
ensure that no legal interest may be "affected" without the intervener being
heard; and that the use in an application to intervene of a perhaps somewhat
more forceful expres-[p 131]sion is immaterial, provided the object actually
aimed at is a proper one. Nor can the Chamber disregard in this connection
the indication by the Agent of Nicaragua, quoted in paragraph 86 above, that
Nicaragua seeks to protect its legal interest solely in such way as the
Statute allows.
91. Secondly, as to the other aspect of the dilemma alleged by El Salvador,
it does not seem to the Chamber to follow that for a State to seek by
intervention "to protect its claims by all legal means" necessarily involves
the inclusion in such means of "that of seeking a favourable judicial
pronouncement" on its own claims. Counsel for El Salvador recognized that
Nicaragua was not seeking to introduce an additional dispute. He observed
however that
"Nicaragua does not declare as one of its objects that it seeks to join the
proceedings as a party and to be bound as such by the Court's decision";
and he suggested that its statements in this connection are equivocal. It
was also suggested that Nicaragua's reference, in paragraph 24 of its
Application, to a possible new case to be brought by agreement
"suggests strongly that Nicaragua recognizes that its participation in the
case in any meaningful sense is dependent upon the consent of the principal
Parties";
and El Salvador contends that a jurisdictional link is a requirement for
intervention. However, in the course of the oral proceedings Nicaragua made
very clear through counsel that it "is not claiming to introduce, via its
intervention, a new dispute in addition to that of the Parties"; and the
same point is made in paragraph 8 of the Application. Counsel for Nicaragua
also recognized that "intervention under Article 62 of the Statute of the
Court was not intended" for that purpose.
92. In the light of these statements, it appears to the Chamber that the
object stated first in Nicaragua's Application, namely "generally to protect
the legal rights of the Republic of Nicaragua in the Gulf of Fonseca and the
adjacent maritime areas by all legal means available", is not to be
interpreted as involving the seeking of a judicial pronouncement on
Nicaragua's own claims. The "legal means available" must be those afforded
by the institution of intervention for the protection of a third State's
legal interests. So understood, that object cannot be regarded as improper.
**
93. The Chamber has now further to consider the argument of El Salvador that
for Nicaragua to intervene in these proceedings between El [p 132] Salvador
and Honduras, it must in addition show a "valid link of jurisdiction"
between Nicaragua and those two States. The requirement of Article 81,
paragraph 2 (c), of the Rules of Court, for the statement in an application
for permission to intervene of "any basis of jurisdiction which is claimed
to exist as between the State applying to intervene and the parties to the
case", and Nicaragua's attitude to this, have been referred to above
(paragraph 39). In its Application, Nicaragua does not assert the existence
of any basis of jurisdiction other than the Statute itself, and expresses
the view that Article 62 does not require a separate title of jurisdiction.
Nicaragua also recalls, in paragraph 24 of the Application, that it has a
valid and unconditional declaration of acceptance of jurisdiction under
Article 36, paragraph 2, of the Court's Statute; but it does not rely on
that declaration in the present proceedings. El Salvador and Honduras have
also made declarations under that Article, but they contain reservations
which, according to those States respectively, would prevent their being
invoked to seise the Court of the matters the subject of the present case.
94. The question is whether the existence of a valid link of jurisdiction
with the parties to the case -- in the sense of a basis of jurisdiction
which could be invoked, by a State seeking to intervene, in order to
institute proceedings against either or both of the parties -- is an
essential condition for the granting of permission to intervene under
Article 62 of the Statute. In what follows, therefore, the expression
"jurisdictional link" or "link of jurisdiction" is used in this sense. The
question has been raised in previous cases before the Court in which
permission has been sought to intervene under Article 62. In the case
concerning the Continental Shelf (Tunisia/ Libyan Arab Jamahiriya), the
Court found it unnecessary to decide the question, since it had reached the
conclusion that, for other reasons, Malta's request for permission to
intervene was not one to which it could accede (I.C.J. Reports 1981, p. 20,
para. 36). In the case concerning the Continental Shelf (Libyan Arab
Jamahiriya/Malta), the Court again found it possible "to reach a decision on
the present Application without generally resolving the vexed question of
the 'valid link of jurisdiction'" (I.C.J. Reports 1984, p. 28, para. 45). It
did so however by stating two alternative lines of argument, one on the
basis that such a link would be required, and one on the basis that it would
not, and observing that in the circumstances of the case before it, "either
of two approaches . . . must result in the Court being bound to refuse the
permission to intervene requested by Italy" (I.C.J. Reports 1984, p. 22,
para. 34). Although that Judgment contains a number of valuable observations
on the subject, the question remains unresolved. Since in the present case
the Chamber has reached the conclusion that Nicaragua has shown the
existence of an interest of a legal nature which may be affected by the
decision, and that the intervention of Nicaragua has a proper object, the
only remaining question is whether a jurisdictional link is required; and
since it is conceded that no such link exists, the Chamber is obliged to
decide the point. [p 133] In order to do so, it must consider the general
principle of consensual jurisdiction in its relation with the institution of
intervention.
95. There can be no doubt of the importance of this general principle, upon
which the State seeking to intervene has itself, in its Application, laid
considerable emphasis. As the Permanent Court of International Justice
expressed it, the Court operates
"bearing in mind the fact that its jurisdiction is limited, that it is
invariably based on the consent of the respondent and only exists in so far
as this consent has been given" (Mavrommatis Palestine Concessions, Judgment
No. 2, 1924, P.C.I.J., Series A, No. 2, p. 16).
Thus the pattern of international judicial settlement under the Statute is
that two or more States agree that the Court shall hear and determine a
particular dispute. Such agreement may be given ad hoc, by Special Agreement
or otherwise, or may result from the invocation, in relation to the
particular dispute, of a compromissory clause of a treaty or of the
mechanism of Article 36, paragraph 2, of the Court's Statute. Those States
are the "parties" to the proceedings, and are bound by the Court's eventual
decision because they have agreed to confer jurisdiction on the Court to
decide the case, the decision of the Court having binding force as provided
for in Article 59 of the Statute. Normally, therefore, no other State may
involve itself in the proceedings without the consent of the original
parties.
96. Nevertheless, procedures for a "third" State to intervene in a case are
provided in Articles 62 and 63 of the Court's Statute. The competence of the
Court in this matter of intervention is not, like its competence to hear and
determine the dispute referred to it, derived from the consent of the
parties to the case, but from the consent given by them, in becoming parties
to the Court's Statute, to the Court's exercise of its powers conferred by
the Statute. There is no need to interpret the reference in Article 36,
paragraph 1, of the Statute to "treaties in force" to include the Statute
itself; acceptance of the Statute entails acceptance of the competence
conferred on the Court by Article 62. Thus the Court has the competence to
permit an intervention even though it be opposed by one or both of the
parties to the case; as the Court stated in 1984, "the opposition [to an
intervention] of the parties to a case is, though very important, no more
than one element to be taken into account by the Court" (I.C.J. Reports
1984, p. 28, para. 46). The nature of the competence thus created by Article
62 of the Statute is definable by reference to the object and purpose of
intervention, as this appears from Article 62 of the Statute.
97. Intervention under Article 62 of the Statute is for the purpose of
protecting a State's "interest of a legal nature" that might be affected by
a decision in an existing case already established between other States,
namely the parties to the case. It is not intended to enable a third State
to
[p 134] tack on a new case, to become a new party, and so have its own
claims adjudicated by the Court. A case with a new party, and new issues to
be decided, would be a new case. The difference between intervention under
Article 62, and the joining of a new party to a case, is not only a
difference in degree; it is a difference in kind. As the Court observed in
1984,
"There is nothing in Article 62 to suggest that it was intended as an
alternative means of bringing an additional dispute as a case before the
Court -- a matter dealt with in Article 40 of the Statute -- or as a method
of asserting the individual rights of a State not a party to the case."
(Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene,
I.C.J. Reports 1984, p. 23, para. 37.)
98. It is noteworthy that intervention is dealt with in Chapter III of the
Court's Statute, which is headed "Procedure". This approach was adopted by
the Court also when it drew up and revised its Rules of Court, where
intervention appears in Section D of the Rules, headed "Incidental
Proceedings". Incidental proceedings by definition must be those which are
incidental to a case which is already before the Court or Chamber. An
incidental proceeding cannot be one which transforms that case into a
different case with different parties.
99. Intervention cannot have been intended to be employed as a substitute
for contentious proceedings. Acceptance of the Statute by a State does not
of itself create jurisdiction to entertain a particular case: the specific
consent of the parties is necessary for that. If an intervener were held to
become a party to a case merely as a consequence of being permitted to
intervene in it, this would be a very considerable departure from this
principle of consensual jurisdiction. That the incidental jurisdiction
conferred by Article 62 of the Statute is circumscribed by the general
principle of consensual jurisdiction over particular disputes was stated by
the Court in its Judgment on the Italian Application to intervene in the
case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), when
the Court was careful not to adopt a position in which
"it would be admitting that the procedure of intervention under Article 62
would constitute an exception to the fundamental principles underlying its
jurisdiction; primarily the principle of consent, but also the principles of
reciprocity and equality of States. The Court considers that an exception of
this kind could not be admitted unless it were very clearly expressed."
(I.C.J. Reports 1984, p. 22, para. 35.)
It is therefore clear that a State which is allowed to intervene in a case,
does not, by reason only of being an intervener, become also a party to the
case. It is true, conversely, that, provided that there be the necessary
consent by the parties to the case, the intervener is not prevented by
reason of [p 135] that status from itself becoming a party to the case. That
the competence given to the Court in Article 62 of the Statute is not
extendable to making an intervener a party to the case unless the parties to
the case have consented to the change appears also to be the view of
Nicaragua, which stated during the oral proceedings that "Article 62 is a
part of the incidental jurisdiction and there is no compelling logic
requiring its provisions to be seen as an 'exception' to the principle of
consent". There is furthermore in international law no process for joinder
of a new party, or parties, whether as appellant or respondent, by move of
the Court itself. The Court referred in 1984 to "the absence in the Court's
procedures of any system of compulsory intervention, whereby a third State
could be cited by the Court to come in as party . . ." (Continental Shelf
(Libyan Arab Jamahiriya/Malta), Application to Intervene, I.C.J. Reports
1984, p. 25, para. 40) and again to the fact that the Court does not possess
the power "to direct that a third State be made a party to proceedings"
(Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), I.C.J. Reports 1984, p. 431, para. 88).
100. It thus follows also from the juridical nature and from the purposes of
intervention that the existence of a valid link of jurisdiction between the
would-be intervener and the parties is not a requirement for the success of
the application. On the contrary, the procedure of intervention is to ensure
that a State with possibly affected interests may be permitted to intervene
even though there is no jurisdictional link and it therefore cannot become a
party. Article 81, paragraph 2 (c), of the Rules of Court states that an
application under Article 62 of the Statute shall set out "any basis of
jurisdiction which is claimed to exist as between the State applying to
intervene and the parties to the case"; the use of the words "any basis"
(and in French the formula "toute base de competence qui . . . existerait")
shows that a valid link of jurisdiction is not treated as a sine qua non for
intervention (cf. also Continental Shelf (Tunisia/Libyan Arab Jamahiriya),
Application to Intervene, I.C.J. Reports 1981, p. 16, para. 27).
101. The Chamber therefore concludes that the absence of a jurisdictional
link between Nicaragua and the Parties to this case is no bar to permission
being given for intervention.
**
102. Since this is the first case in the history of the two Courts in which
a State will have been accorded permission to intervene under Article 62 of
the Statute, it appears appropriate to give some indication of the extent of
the procedural rights acquired by the intervening State as a result of that
permission. This is particularly desirable since the intervention permitted
relates only to certain issues of the many submitted to the Chamber. In the
first place, as has been explained above, the intervening State does not
become party to the proceedings, and does not acquire the rights, or become
subject to the obligations, which attach to the status of a party, under the
Statute and Rules of Court, or the general principles of procedural law.
Nicaragua, as an intervener, has of course a right to be heard by the
Chamber. That right is regulated by Article 85 of the Rules of Court, which
provides for submission of a written statement, and participation in the
hearings. Time-limits will be fixed for a written statement by Nicaragua,
and observations thereon by the Parties, in accordance with Article 85, so
soon after the delivery of the present Judgment as the appropriate
consultations can be held.
103. The scope of the intervention in this particular case, in relation to
the scope of the case as a whole, necessarily involves limitations of the
right of the intervener to be heard. An initial limitation is that it is not
for the intervener to address argument to the Chamber on the interpretation
of the Special Agreement concluded between the Parties on 24 May 1986,
because the Special Agreement is, for Nicaragua, res inter alios acta.
*
104. Nicaragua has disclaimed any intention of involving itself in the
dispute over the land boundary. The Chamber has found that Nicaragua has not
shown the existence of any interest of a legal nature which may be affected
by its decision on "the legal situation of the islands". As regards the
decision required of the Chamber concerning the legal situation of the
maritime spaces within the Gulf, the Chamber has indicated (paragraph 72
above) that Nicaragua has a legal interest which may be affected by a
decision as to the legal regime of those waters, i.e., a decision in favour
of the contention of El Salvador, that the waters of the Gulf are subject to
a regime of condominium, or a decision in favour of the contention of
Honduras, that there exists a "community of interests" between the three
States in the waters of the Gulf. Nicaragua has not demonstrated to the
satisfaction of the Chamber the existence of an interest of a legal nature
which may be affected by any decision of the Chamber delimiting the waters
of the Gulf of Fonseca between El Salvador and Honduras, or by any decision
as to the legal situation of the maritime spaces outside the Gulf, including
any decision on entitlement or on delimitation between El Salvador and
Honduras, and intervention in those respects has not been justified. The
Chamber therefore finds that Nicaragua should be permitted to intervene but
solely in respect of the Chamber's consideration of the legal regime of the
maritime spaces within the Gulf of Fonseca, and to participate in the
proceedings in the case in accordance with Article 85 of the Rules of Court.
***[p 137]
105. For these reasons,
The Chamber,
Unanimously,
1. Finds that the Republic of Nicaragua has shown that it has an interest of
a legal nature which may be affected by part of the Judgment of the Chamber
on the merits in the present case, namely its decision on the legal regime
of the waters of the Gulf of Fonseca, but has not shown such an interest
which may be affected by any decision which the Chamber may be required to
make concerning the delimitation of those waters, or any decision as to the
legal situation of the maritime spaces outside the Gulf, or any decision as
to the legal situation of the islands in the Gulf;
2. Decides accordingly that the Republic of Nicaragua is permitted to
intervene in the case, pursuant to Article 62 of the Statute, to the extent,
in the manner and for the purposes set out in the present Judgment, but not
further or otherwise.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this thirteenth day of September, one thousand nine
hundred and ninety, in four copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of
Nicaragua, the Government of El Salvador, and the Government of Honduras,
respectively.
(Signed) José Sette-Camara,
President of the Chamber.
(Signed) Eduardo valencia-Ospina,
Registrar.
Judge Oda appends a separate opinion to the Judgment of the Chamber.
(Initialled) J.S.C.
(Initialled) E.V.O.
[p 138]
Separate opinion of judge Oda
I agree strongly with the Chamber in permitting Nicaragua to intervene in
the case brought to the Court pursuant to the Special Agreement of 24 May
1986 between Honduras and El Salvador. The Chamber, however, limits
Nicaragua's intervention to the legal regime of the waters within the Gulf
of Fonseca, and excludes from the object of intervention the matters of
delimitation within the Gulf and the legal situation of the maritime spaces
(including any prospective delimitation) outside the Gulf. In my personal
view, the grounds for being so restrictive have not been persuasively
defined.
The present Judgment is written from the standpoint of the presumption
that, to justify intervention under Article 62 of the Statute, a legal
interest of a more concrete nature is required than a simple interest in the
interpretation of the rales of international law, whether general or
specific, which are applicable to the case in hand. This presumption, that
a clear distinction can be made between the interpretation of a rule and the
nature of its application in a concrete instance, remains, in my view, open
to challenge. It raises many difficult problems. Yet since, in this case, I
and my colleagues in the Chamber have decided that a more concrete legal
interest does indeed exist to justify an intervention by Nicaragua of the
kind specified in the Judgment, I find it appropriate to leave aside, for
the present occasion, the question of a possibly more general qualifying
interest and to confine my observations to the question why, in the
circumstances, the area of discussion in which Nicaragua has been permitted
to intervene has been so severely restricted.
1. Nicaragua's Interest of a Legal Nature
A State may submit a request to the Court — or in the present case, the
Chamber — to be permitted to intervene, "should a State consider that it has
an interest of a legal nature which may be affected by the decision in the
case" (Statute, Art. 62, para. 1) and the application "shall set out...
[such] interest of a legal nature" (Rules of Court, Art. 81, para. 2 (a),
emphasis added).
In fact Nicaragua, in its Application for permission to intervene, while
evidently seeking to cover all relevant aspects relating to the waters both
within and without the Gulf, indicated only in broad terms the interests of
a legal nature which might be affected by the decision of the Chamber:[p
139]
“The particular considerations supporting this opinion include, but are not
confined to, the following items:
(a) The phrasing of paragraph 2 of Article 2 of the Special Agreement,
which refers comprehensively to 'la situation juridica insular ó de los
espacios maritimos'.
(b) The title of the Special Agreement which refers to 'la
controversiafronteriza terrestre, insular ó maritima existente entre los dos
Esta-dos'.
(c) The geographical situation in the Gulf of Fonseca and the adjacent
maritime areas.
(d) The essential character of the legal principles, including
relevantequitable principles, which would be relevant to the determination
of the questions placed on the agenda by the Special Agreement.
(e) Fonseca involve a trilateral controversy.
(f) The leading role of coasts and coastal relationships in the legalregime
of maritime delimitation and the consequence in the caseof the Gulf of
Fonseca that it would be impossible to carry out adelimitation which took
into account only the coasts in the Gulfof two of the three riparian States.
(g) The fact that a possible element in the regulation of the legal
situation of maritime spaces, especially in a case like that of the Gulfof
Fonseca, would be the designation of one or more zones ofjoint exploration
and exploitation: see the Report of the Conciliation Commission in the Jan
Mayen Continental Shelf case,International Law Reports (ed. E. Lauterpacht),
Vol. 62, p. 108."( The general recognition by authoritative legal opinion
that theissues relating to the Gulf of Application, II.2.)
*
The Chamber, after having examined the oral pleadings by Nicaragua,
indicates that
"Nicaragua has shown to the Chamber's satisfaction the existence of an
interest of a legal nature which may be affected by its decision [on the
regime governing the waters of the Gulf]" (para. 72),
and concludes that
"Nicaragua has a legal interest which may be affected by a decision as to
the legal regime of those waters, i.e., a decision in favour of the
contention of El Salvador, that the waters of the Gulf are subject to a
regime of condominium, or a decision in favour of the contention of
Honduras, that there exists a 'community of interests' between the three
States in the waters of the Gulf" (para. 104).[p 140]
Thus the Chamber finds, and I agree with that finding, that Nicaragua "has
shown that it has an interest of a legal nature which may be affected by ...
[the Chamber's] decision on the legal regime of the waters of the Gulf of
Fonseca" (para. 105), and has thus provided a basis for the Chamber's
decision that "Nicaragua is permitted to intervene" (para. 105) "in respect
of the Chamber's consideration of the legal regime of the maritime spaces
within the Gulf of Fonseca" (para. 104).
On the other hand, the Judgment concludes that
"Nicaragua has not demonstrated to the satisfaction of the Chamber the
existence of an interest of a legal nature which may be affected by any
decision of the Chamber delimiting the waters of the Gulf of Fonseca between
El Salvador and Honduras, or by any decision as to the legal situation of
the maritime spaces outside the Gulf, including any decision ... on
delimitation between El Salvador and Honduras, and intervention in those
respects has not been justified" (para. 104)
and, in a variant of this language, finds that
"the Republic of Nicaragua... has not shown such an interest which may be
affected by any decision which the Chamber may be required to make
concerning the delimitation of those waters, or any decision as to the legal
situation of the maritime spaces outside the Gulf..." (para. 105),
thus not permitting Nicaragua to intervene in these respects.
*
At the hearings, the representatives of Nicaragua declined to be drawn into
a narrow specification of Nicaragua's legal interest, pointing out their
unwillingness to treat the occasion as one for revealing the substance of
their intervention. Neither I, nor the other members of the Chamber, have
however viewed this as a deficiency so severe as to preclude the granting of
permission to intervene on any basis whatsoever. The Judgment, however,
finds — as has been seen — that the degree of imprecision in respect of
parts of Nicaragua's claim to a legal interest is excessive and must result
in a denial of such permission in relation to certain areas. This
distinction I do not find wholly justified.
I find it, in other words, difficult on the evidence to state that
Nicaragua, while having sufficiently shown interest of a legal nature which
may be affected by the decision of the Chamber in the case of the legal
regime of the maritime spaces within the Gulf, has not done so as concerns
the delimitation of the maritime boundaries there and outside the Gulf. The
Applicant, after all, although required to show an interest of a legal
nature which may (but not will or must) be affected, does not at this stage
need to [p 141]indicate those positions and considerations which it can be
expected to draw to the Chamber's attention in its eventual declaration and
any subsequent oral observations. Nor is it required, as the Judgment
contends, "to show in what way that interest may be affected" (para. 61,
emphasis added).
2. Maritime Boundaries within the Gulf
The Judgment states that:
"Nicaragua, for its part, has not given any indication of any specific line
of delimitation which it considers would affect its interests" (para. 74);
"[Nicaragua] has not shown such an interest [of a legal nature] which might
be affected by the Chamber's decision on any question of delimitation within
the Gulf (para. 79).
Here it may be pertinent to recall the issues in dispute between the
original Parties in the present case. Honduras has indicated a concrete
delimitation line within the Gulf (which it wants to see confirmed by a
judgment of the Chamber) on Map C.5 in its Memorial and has given a
description of it in its Submission C.I. This line, drawn according to the
Honduran terminology in the "western sector" of the Gulf, though not
appearing to affect a legal interest of Nicaragua, is based upon the
assumption that several islands over which El Salvador claims sovereignty —
Meanguera and Meanguerita, in particular — belong to Honduras.
El Salvador, in Submission III.5 of its Counter-Memorial, considers that the
legal situation of the Gulf does not permit the dividing-up of the waters
and that the Special Agreement does not confer jurisdiction to effect any
such delimitation. El Salvador, however, in the Observations on the
Application by Nicaragua for permission to intervene, does not deny the
existence of a theoretical possibility that the Chamber might eventually
proceed to effect a delimitation within the Gulf.
Neither, in fact, does the Chamber, in the present Judgment, rale out the
eventuality of a decision effecting a delimitation within the Gulf (para.
74).
In an ensuing paragraph, the Judgment states:
"It occurs frequently in practice that a delimitation between two States
involves taking account of the coast of a third State; but the taking into
account of all the coasts and coastal relationships within the Gulf as a
geographical fact for the purpose of effecting an eventual delimitation as
between two riparian States — El Salvador and [p142]Honduras in the instant
case — in no way signifies that by such an operation itself the legal
interest of a third riparian State of the Gulf, Nicaragua, may be affected."
(Para. 77.)
In my view, however, this observation cannot in the present instance be made
with confidence, in view of "the leading role of coasts and coastal
relationships in the legal regime of maritime delimitation and the
consequence in the case of the Gulf of Fonseca", as asserted by Nicaragua
in its Application, II.2 (f).
I would stress that should some islands, Meanguera and Meanguerita in
particular, be determined to lie under the sovereignty of El Salvador, the
possibility could not be excluded that a delimitation line between El
Salvador and Honduras would not reach any closing line of the Gulf and would
have to be confined to the "eastern" sector of the Gulf, and that, owing to
the geographical situation in the Gulf of which all three States are
riparians, Nicaragua would then undoubtedly have a legal interest in the
fixing of the point where the delimitation between El Salvador and Honduras
terminates — in other words, where its own boundary with Honduras
terminates and its own boundary with El Salvador begins.
The Agent of Nicaragua stated in his oral argument on 5 June 1990:
"[I]f the Chamber were to consider the request of Honduras and proceeded to
delimit the waters inside the Gulf, it is obvious from looking at any chart
that no such delimitation is possible without affecting our interests, if
this delimitation involves the whole of the Gulf of Fonseca."
In his oral reply on 8 June 1990, the Agent of Nicaragua also stated:
"[I]n spite of the statement from counsel of Honduras that it was no use for
the Agent of Nicaragua saying that it was obvious that any delimitation
would affect Nicaragua's rights, because it was not obvious at all, the
Agent of Nicaragua reaffirms that it is perfectly obvious by just looking at
a map."
Of course, an assertion of what is "obvious" cannot normally be accepted as
equivalent to a demonstration. Yet, if what is asserted is in fact
"obvious", the need for demonstration by argument is surely diminished.
Even given the normal assumption that such argument is required, I do not
consider that counsel are obliged to invent hypotheses. Thus, although
Nicaragua did not indicate any specific line of delimitation which it
considered would affect its interests, I am satisfied that, under the
circumstances explained above, Nicaragua's assertion with regard to the
delimitation within the Gulf cannot be dismissed.[p 143]
3. Maritime Boundaries outside the Gulf
The Chamber states that the question of whether Honduras is entitled to a
territorial sea, an exclusive economic zone and a continental shelf outside
the Gulf is one "to be decided by application of the principles and rules of
the law of the sea on those matters" (para. 82). I agree that it would not
be proper for the Chamber to entertain argument by Nicaragua on the prior
question as to whether Honduras is entitled to any maritime zone outside the
Gulf, which is a matter not only of legal principle but also of specific
circumstances foreign to Nicaragua.
In respect of the delimitation line in this area of the Gulf, the Judgment
states that:
"Nicaragua was shown by Honduras both a proposed delimitation line and a
proposed line marking off what Honduras calls the 'relevant maritime area'.
The charted proposition of Honduras thus gave Nicaragua the opportunity to
indicate how the Honduran proposals might affect 'to a significant extent'
any possible Nicaraguan legal interest in waters west of that Honduran line.
This Nicaragua did not do. Nicaragua failed to indicate how [the]
delimitation [proposed by Honduras], or any other delimitation regarded by
it as a possible one, would affect an actual Nicaraguan interest of a legal
nature [in waters west of the Honduran line]..." (Para. 84.)
Honduras claims in its Submission C.2, however, that the Chamber is endowed
with the competence to delimit those maritime zones outside the Gulf
pertaining to El Salvador and Honduras respectively; El Salvador is aware of
the possibility that the Chamber will delimit these zones (para. 81). In
fact, the possibility of the Chamber's dealing with delimitation between
Honduras and El Salvador of those maritime zones is not excluded in the
event of Honduras being recognized to possess a title to such zones.
Since a delimitation line claimed by Honduras vis-à-vis El Salvador, as
shown on Map C.6 in its Memorial, is drawn with a bearing of 216.0°,
adjusted from a line drawn with a bearing of 215.5° (a line perpendicular to
the general direction of the coast as determined by Honduras while taking
account of the coasts of the neighbouring States, including Nicaragua) —
that adjustment being made in consideration of the ratio of sea areas to be
attributed to El Salvador and Honduras — and since Honduras has based its
calculations of its own sea areas on the assumption of the acceptance of a
line which would purport to delimit a Honduran boundary with Nicaragua (a
line bearing 215.5°), it appears that, if the Chamber were to determine a
line delimiting zones outside the Gulf, Nicaragua could reasonably claim to
possess a legal interest which may be affected by a Judgment of the
Chamber.[p 144]
The Agent of Nicaragua stated in his pleading on 5 June 1990:
"Outside the Gulf of Fonseca, it is plain from looking at any chart and from
the graphics presented by the Parties in their Written Pleadings —
particularly those contained in the Honduran Memorial and identified as 'C-6
and C-7' — that no such demands can be made in the Pacific Ocean without
affecting the legal interest of Nicaragua to a significant extent."
This statement was criticized by the Judgment when it was observed that "the
Chamber does not find the matter so plain" (para. 84). However the Agent of
Nicaragua, in his oral reply on 8 June 1990, went on to say that:
"Nicaragua and El Salvador are the only riparians situated at the mouth of
the Gulf at less than 20 miles of distance from each other. Now comes
Honduras with its allegation of a 'community of interests' that supposedly
gives it a right to launch an enormous protrusion into the Pacific and
Nicaragua is supposedly not affected by this curious contention.
………………………………………………………………………………………….
Any eventual delimitation affects the legal interests of Nicaragua. Whether
the protuberance into the Pacific sought by Honduras hangs to the south into
Nicaraguan territorial waters or rises into the north into Salvadorian
territory, certainly affects the legal interests of Nicaragua."
In the light of my statements in Section 1 above, I consider that Nicaragua
has sufficiently set out, under circumstances which are as plain to it as to
the two States Parties to the case, its interest of a legal nature in
respect of any eventual delimitation between the two Parties.
4. Conclusions
In short, I take the view that (i) Nicaragua, having now been permitted to
intervene in respect of the legal regime within the waters of the Gulf,
should not have been excluded from expressing its views in due course on any
delimitation between El Salvador and Honduras within the Gulf which may fall
to be effected by the Chamber; and that (ii) Nicaragua should not have been
excluded from expressing its views in due course with respect to any
delimitation which may fall to be effected outside the Gulf in the event
that some title may have been established in favour of Honduras.
(Signed) Shigeru Oda. |
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