23 October 2001

 

General List No. 102

 
     

international Court of Justice

     
 

Sovereignty over Pulau Ligitan and Pulau Sapadan

 
     

Indonesia

 

v. 

Malaysia

     
     
 

Judgement

 
     
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BEFORE:

President: Guillaume;
Vice-President: Shi;
Judges: Oda, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawnek, Buergenthal.
Judges ad hoc: Weeramantry, Franck

   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/2001.10.23_pulau.htm
   
Citation: Sovereignty over Pulau Ligitan and Pulau Sapadan (Indon. v. Malay.), 2001 I.C.J. 575 (Oct. 23)
   
Represented By: Indonesia: H. E. Dr. N. Hassan Wirajuda, Director General for Political Affairs,
as Agent;
H. E. Mr. Abdul Irsan, Ambassador of Indonesia to the Kingdom of the Netherlands, as Co-Agent;
Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, Member of the International Law Commission;
Mr. Rodman R. Bundy, avocat a la cour d'appel de Paris, Member of the New York Bar, Frere Cholmeley/Eversheds, Paris as Counsel and Advocates;
Mr. Alfred H. A. Soons, Professor of Public International Law, Utrecht University;
Ms Loretta Malintoppi, avocat a la cour d'appel de Paris, Member of the Rome Bar, Frere Cholmeley/Eversheds, Paris;
Mr. Charles Claypoole, Solicitor of the Supreme Court of England and Wales, Frere Cholmeley/Eversheds, Paris, as Counsel;
Mr. Hasyim Saleh, Deputy Chief of Mission, Embassy of the Republic of Indonesia in the Netherlands;
Mr. Donnilo Anwar, Director for Treaties and Legal Affairs, Department of Foreign Affairs;
Major-General Djokomulono, Territorial Assistant to Chief of Staff for Territorial Affairs, Indonesian Armed Forces Headquarters;
Rear-Admiral Yoos F. Menko, Intelligence Assistant to Chief of Staff for General Affairs, Indonesian Armed Forces Headquarters;
Mr. Kria Fahmi Pasaribu, Minister Counsellor, Embassy of the Republic of Indonesia in the Netherlands;
Mr. Eddy Pratomo, Head of Sub-Directorate for Territorial Treaties, Department of Foreign Affairs;
Mr. Abdul Kadir Jaelani, Officer, Embassy of the Republic of Indonesia in the Netherlands, as Advisers;

Malaysia: H. E. Tan Sri Abdul Kadir Mohamad, Secretary General of the Ministry of Foreign Affairs, as Agent;
H. E. Ms Noor Farida Ariffin, Ambassador of Malaysia to the Kingdom of the Netherlands, as Co-Agent;
Sir Elihu Lauterpacht C.B.E., Q.C., Honorary Professor of International Law, University of Cambridge, Member of the Institut de droit international;
Mr. Jean-Pierre Cot, Emeritus Professor, Universite de Paris I, Advocate, Paris and Brussels Bars;
Mr. James Crawford, S.C., F.B.A., Whewell Professor of International Law, University of Cambridge, Member of the International Law Commission;
Mr. Nico Schrijver, Professor of International Law, Free University Amsterdam and Institute of Social Studies, The Hague; Member of the Permanent Court of Arbitration, as Counsel and Advocates;
Datuk Heliliah Yusof, Solicitor General of Malaysia;
Mrs. Halima Hj. Nawab Khan, Acting State Attorney-General of Sabah;
Mr. Athmat Hassan, Legal Officer, Sabah State Attorney-General's Chambers, as Counsel;
H. E. Ambassador Hussin Nayan, Under-Secretary, Territorial and Maritime Affairs Division, Ministry of Foreign Affairs;
Mr. Muhamad bin Mustafa, Deputy Director-General, National Security Division, Prime Minister's Department, as Advisers;
Mr. Zulkifli Adnan, Principal Assistant Secretary, Territorial and Maritime Affairs Division, Ministry of Foreign Affairs;
Mr. Raja Aznam Nazrin, Counsellor of the Embassy of Malaysia in the Netherlands;
Mr. Nik Aziz Nik Yahya, First Secretary of the Embassy of Malaysia in the Philippines;
Mr. Tan Ah Bah, Principal Assistant Director of Survey, Boundary Division, Department of Survey and Mapping;
Ms Haznah Md. Hashim, Assistant Secretary, Territorial and Maritime Affairs Division, Ministry of Foreign Affairs;
Mr. Shaharuddin Onn, Assistant Secretary, Territorial and Maritime Affairs Division, Ministry of Foreign Affairs, as administrative staff;
Philippines:
H. E. Mr. Eloy R. Bello III, Ambassador of the Republic of the Philippines to the Kingdom of the Netherlands, as Agent;
Mr. Merlin M. Magallona, Under-Secretary of Foreign Affairs,
as Co-Agent and Counsel;
Mr. W. Michael Reisman, Myres S. McDougal Professor of International Law of Yale Law School, associe de l'Institut de droit international, as Counsel and Advocate;
Mr. Peter Payoyo, University of the Philippines, as Counsel;
Mr. Alberto A. Encomienda, Secretary-General, Maritime and Ocean Affairs Center, Department of Foreign Affairs;
Mr. Alejandro B. Mosquera, Assistant Secretary, Office of Legal Affairs, Department of Foreign Affairs;
Mr. George A. Eduvala, Attache, Embassy of the Republic of the Philippines in the Netherlands;
Mr. Eduardo M. R. Menez, Second Secretary, Embassy of the Republic of the Philippines in the Netherlands;
Mr. Igor G. Bailen, Acting Director, Office of Legal Affairs, Department of Foreign Affairs, as Advisers.

 
     
 
 
     
 

[p.575]

THE COURT,

composed as above,

after deliberation, [p 579]

delivers the following Judgment:

1. By joint letter dated 30 September 1998, filed in the Registry of the Court on 2 November 1998, the Ministers for Foreign Affairs of the Republic of Indonesia (hereinafter "Indonesia") and of Malaysia informed the Registrar of a Special Agreement between the two States, which was signed in Kuala Lumpur on 31 May 1997 and entered into force on 14 May 1998, the date of the exchange of instruments of ratification.

In accordance with the aforementioned Special Agreement, the Parties request the Court to

"determine on the basis of the treaties, agreements and any other evidence furnished by the Parties, whether sovereignty over Pulau Ligitan and Pulau Sipadan belongs to the Republic of Indonesia or to Malaysia";

in paragraph 2 of Article 3 of the Special Agreement, the Parties agreed that the written pleadings should consist of the following documents:

"(a) a Memorial presented simultaneously by each of the Parties not later than 12 months after the notification of this Special Agreement to the Registry of the Court;

(b) a Counter-Memorial presented by each of the Parties not later than 4 months after the date on which each has received the certified copy of the Memorial of the other Party;

(c) a Reply presented by each of the Parties not later than 4 months after the date on which each has received the certified copy of the Counter-Memorial of the other Party; and

(d) a Rejoinder, if the Parties so agree or if the Court decides ex officio or at the request of one of the Parties that this part of the proceedings is necessary and the Court authorizes or prescribes the presentation of a Rejoinder".

2. Pursuant to Article 40, paragraph 3, of the Statute of the Court, copies of the joint notification
and of the 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.

3. By an Order dated 10 November 1998, the Court, having regard to the provisions of the Special Agreement concerning the written pleadings, fixed 2 November 1999 and 2 March 2000 as the respective time-limits for the filing by each of the Parties of a Memorial and then a Counter-Memorial. The Memorials were filed within the prescribed time-limit. By joint letter of 18 August 1999, the Parties asked the Court to extend to 2 July 2000 the time-limit for the filing of their Counter-Memorials. By an Order dated 14 September 1999, the Court agreed to that request. By joint letter of 8 May 2000, the Parties requested the Court for a further extension of one month to the time-limit for the filing of their Counter-Memorials. By Order of 11 May 2000, the President of the Court also agreed to that request. The Parties' Counter-Memorials were filed within the time-limit as thus extended.

4. Under the terms of the Special Agreement, the two Parties were to file a Reply not later than four months after the date on which each had received the certified copy of the Counter-Memorial of the other Party. By joint letter dated 14 October 2000, the Parties asked the Court to extend this time-limit by three months. By an Order dated 19 October 2000, the President of the Court fixed [p 580] 2 March 2001 as the time-limit for the filing by each of the Parties of a Reply. The Replies were filed within the prescribed time-limit. In view of the fact that the Special Agreement provided for the possible filing of a fourth pleading by each of the Parties, the latter informed the Court by joint letter of 28 March 2001 that they did not wish to produce any further pleadings. Nor did the Court itself ask for such pleadings.

5. Since the Court did not include upon the Bench a judge of Indonesian or Malaysian nationality, both Parties exercised their right under Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case: Indonesia chose Mr. Mohamed Shahabuddeen and Malaysia Mr. Christopher Gregory Weeramantry.

6. By letter of 22 February 2001, the Government of the Republic of the Philippines (hereinafter "the Philippines"), invoking Article 53, paragraph 1, of the Rules of Court, asked the Court to furnish it with copies of the pleadings and documents annexed which had been filed by the Parties. Pursuant to that provision, the Court, having ascertained the views of the Parties, decided that it was not appropriate, in the circumstances, to grant the Philippine request. The Registrar communicated that decision to the Philippines, Indonesia and Malaysia by letters dated 15 March 2001.
7. On 13 March 2001, the Philippines filed in the Registry of the Court an Application for permission to intervene in the case, invoking Article 62 of the Statute of the Court. In that Application, the Philippines explained that it considered its "request for copies of the pleadings and documents annexed as an act separate and distinct from [that] Application" and that the latter "does not affect, and is independent from, the earlier submissions made by the Philippine Government". According to the Application, the Philippine interest of a legal nature which may be affected by a decision in the present case "is solely and exclusively addressed to the treaties, agreements and other evidence furnished by Parties and appreciated by the Court which have a direct or indirect bearing on the matter of the legal status of North Borneo". The Philippines also indicated that the object of the intervention requested was,

"(a) First, to preserve and safeguard the historical and legal rights of the Government of the Republic of the Philippines arising from its claim to dominion and sovereignty over the territory of North Borneo, to the extent that these rights are affected, or may be affected, by a determination of the Court of the question of sovereignty over Pulau Ligitan and Pulau Sipadan.

(b) Second, to intervene in the proceedings in order to inform the Honourable Court of the nature and extent of the historical and legal rights of the Republic of the Philippines which may be affected by the Court's decision.

(c) Third, to appreciate more fully the indispensable role of the Honourable Court in comprehensive conflict prevention and not merely for the resolution of legal disputes."

The Philippines further stated in its Application that it did not seek to become a party to the dispute before the Court concerning sovereignty over Pulau Ligitan and Pulau Sipadan, and that the Application "is based solely on Article 62 [p 581] of the Statute, which does not require a separate title of jurisdiction as a requirement for this Application to prosper".

8. On 14 March 2001, pursuant to Article 83, paragraph 1, of the Rules of Court, the Registrar transmitted copies of the Application for permission to intervene to the two Parties in the case, Indonesia and Malaysia, as well as to the United Nations Secretary-General, the Members of the United Nations and other States entitled to appear before the Court. At the same time, both Parties to the case were invited to furnish, by 2 May 2001 at the latest, their written observations on the Application for permission to intervene; each of them submitted such observations within the time-limit fixed for that purpose. Those observations were exchanged between the Parties and transmitted to the Philippines. In their written observations, both Indonesia and Malaysia objected to the Application for permission to intervene submitted by the Philippines. Accordingly, by letters of 11 May 2001 the Parties and the Philippine Government were notified that the Court would hold public sittings pursuant to Article 84, paragraph 2, of the Rules of Court to hear the views of the Philippines, the State seeking to intervene, and those of the Parties in the case.

9. Mr. Shahabuddeen, judge ad hoc, having resigned his duties on 20 March 2001, Indonesia informed the Court, by letter received in the Registry on 17 May 2001, that its Government had chosen Mr. Thomas Franck to replace him.
10. The Court, after ascertaining the views of the Parties, decided that the writtenobservations of both Parties on the Application for permission to intervene, and the documents annexed thereto, would be made accessible to the public on the opening of the oral proceedings.

11. At the public sittings held on 25, 26, 28 and 29 June 2001, the Court heard oral statements and replies from the following in regard to the question whether the Philippine Application for permission to intervene should be granted:

For the Philippines: H. E. Mr. Eloy R. Bello III,
Mr. Michael Reisman,
Mr. Merlin M. Magallona.

For Indonesia: H. E. Mr. Hassan Wirajuda,
Mr. Alain Pellet,
Mr. Rodman R. Bundy.

For Malaysia: H. E. Mr. Tan Sri Abdul Kadir Mohamad,
Mr. Jean-Pierre Cot,
Sir Elihu Lauterpacht,
Mr. James Crawford.

*
12. In its Application for permission to intervene, the Government of the Philippines statedin conclusion that it

"requests the Honourable Court to recognize the propriety and validity of this Application for permission to intervene in the proceedings between the Government of the Republic of Indonesia and the Government of Malaysia, to grant the same, and to participate in those proceedings in accordance with Article 85 of the Rules of Court" (para. 8). [p 582]

In its written observations on the Application by the Philippines for permission to intervene, Indonesia concluded that "the Philippines had not demonstrated that it has an interest of a legal nature which may be affected by a decision in the case and that the Application should, accordingly, be denied" (para. 17).

In its written observations on the Application by the Philippines for permission to intervene, Malaysia concluded as follows: "not merely has the Philippines no right to intervene, it has no claim to make. Malaysia urges the Court to reject the request." (Para. 50.)

13. At the oral proceedings, it was stated by way of conclusion that:

On behalf of the Government of the Philippines,

at the hearing of 28 June 2001:

"The Government of the Republic of the Philippines seeks the remedies provided for in Article 85 of the Rules of Court, namely,

-- paragraph 1: 'the intervening State shall be supplied with copies of the pleadings and documents annexed and shall be entitled to submit a written statement within a time-limit to be fixed by the Court'; and

-- paragraph 3: 'the intervening State shall be entitled, in the course of the oral proceedings, to submit its observations with respect to the subject-matter of the intervention'."


On behalf of the Government of Indonesia,

at the hearing of 29 June 2001:

"The Republic of Indonesia respectfully submits that the Republic of the Philippines should not be granted the right to intervene in the case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)."


On behalf of the Government of Malaysia,

at the hearing of 29 June 2001: "[Malaysia requests] that the Court should reject the Philippines Application".

***

14. The Philippine Application for permission to intervene relates to the case, brought to the Court by notification of the Special Agreement concluded on 31 May 1997 between Indonesia and Malaysia, concerning sovereignty over two islands, Pulau Ligitan and Pulau Sipadan (see paragraph 1 above). The intervention which the Philippines seeks to make is linked to its claim of sovereignty in North Borneo (see paragraph 7 above).

15. In its Application, the Philippines invokes Article 62 of the Statute of the Court, which provides:

"1. Should a State consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene.

2. It shall be for the Court to decide upon this request."

16. Paragraph 1 of Article 81 of the Rules of Court provides that the [p 583] application for permission to intervene shall "be filed as soon as possible, and not later than the closure of the written proceedings" and that "in exceptional circumstances, an application submitted at a later stage may however be admitted".

Article 81, paragraph 2, also provides that the State seeking to intervene must specify the case to which its application relates, and 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".

Paragraph 3 of Article 81 further provides that an application for permission to intervene "shall contain a list of the documents in support, which documents shall be attached".

17. The Philippines maintains that its Application to intervene satisfies both the requirementsof Article 62 of the Statute of the Court and those of Article 81 of the Rules of Court. On the other hand, both Indonesia and Malaysia oppose the Application by the Philippines on the grounds that the various requirements have not been met.

***

18. The Court will initially consider the contention that the Application to intervene shouldnot be granted, first, because of its late submission by the Philippines, and secondly, because of the failure of the Philippines to annex documentary or other evidence in support of the Application.

**

19. Both Indonesia and Malaysia argue that the Philippine Application should not be grantedbecause of its "untimely nature".

Indonesia maintains that:

"in view of the fact that the Parties do not consider that there is any need for further written submissions on the merits of the case and that the Philippines' Application was filed after the final submissions of the Parties, the Application should be dismissed as untimely pursuant to Article 81(1) of the Rules of Court".

It considers that the Philippines "has failed to demonstrate that any . . . exceptional circumstances exist justifying the filing of its Application at such a late stage of the proceedings", and concludes that:


"to admit the Application at this stage of the proceedings would inevitably entail a significant delay in the case being heard by the [p 584] Court to the prejudice of the Parties. In these circumstances, Indonesia submits that the Philippines' Application should be dismissed as untimely."

At the hearings, Malaysia associated itself in the following terms with the objection in regard to the alleged procedural delay raised by Indonesia: "That issue has been fully dealt with by Indonesia. We agree with what they have said; we simply feel no need to add to it."

For its part, the Philippines argues that "the fact is that not only is the Philippines within all the time-limits, it could not, as a logical and practical matter, have submitted its request any sooner". The Philippines emphasizes that:

"in the nature of the case, the Philippines could hardly have requested permission to intervene under Article 62 before it tried to secure the documents. And it was only when it became apparent that the request for the documents was not going to be granted, that the Philippines requested permission to intervene."

20. The Court will consider this objection ratione temporis by applying the relevant requirements of its Rules dealing with the intervention procedure to the factual circumstances of the case.

Article 81, paragraph 1, of the Rules of Court, referred to above (see paragraph 16), stipulates that:

"an Application for permission to intervene under the terms of Article 62 of the Statute, . . . shall be filed as soon as possible, and not later than the closure of the written proceedings. In exceptional circumstances, an application submitted at a later stage may however be admitted."

The Court recalls that the Special Agreement between Indonesia and Malaysia was registered with the United Nations on 29 July 1998 and notified to the Court on 2 November 1998. Pursuant to Article 40, paragraph 3, of the Statute of the Court and Article 42 of the Rules of Court, copies of the notification and of the Special Agreement were transmitted to all the Members of the United Nations and other States entitled to appear before the Court (see paragraph 2 above). Thus, the Philippines had been aware that the Court had been seised of the dispute between Indonesia and Malaysia for more than two years before it filed its Application to intervene in the proceedings under Article 62 of the Statute. By the time of the filing of the Application, 13 March 2001, the Parties had already completed three rounds of written pleadings as provided for as mandatory in the Special Agreement -- Memorials, Counter-Memorials and Replies -- their time-limits being a matter of public knowledge. Moreover, the Agent for the Philippines stated during the hearings that his Government "was conscious of the fact that after 2 March 2001, Indonesia and Malaysia might no longer consider [p 585] the need to submit a final round of pleadings as contemplated in their Special Agreement".

21. Given these circumstances, the time chosen for the filing of the Application by thePhilippines can hardly be seen as meeting the requirement that it be filed "as soon as possible" as contemplated in Article 81, paragraph 1, of the Rules of Court. This requirement which, although when taken on its own might be regarded as not sufficiently specific, is nevertheless essential for an orderly and expeditious progress of the procedure before the Court. In view of the incidental character of intervention proceedings, it emphasizes the need to intervene before the principal proceedings have reached too advanced a stage. In one of the recent cases, dealing with another type of incidental proceeding the Court observed that: "the sound administration of justice requires that a request for the indication of provisional measures . . . be submitted in good time" (LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999, p. 14, para. 19). The same applies to an application for permission to intervene, and indeed even more so, given that an express provision to that effect is included in Article 81, paragraph 1, of the Rules of Court.

22. As to the argument of the Philippines that the delay in the filing of its Application forpermission to intervene was caused by its wish first to secure access to the pleadings of the Parties, the Court does not find anything in its Rules or practice to support the view that there exists an inextricable link between the two procedures or, for that matter, that the requirement of the timeliness of the Application for permission to intervene may be made conditional on whether or not the State seeking to intervene is granted access to the pleadings. Furthermore, the Philippine argument is undermined by the fact that the Philippines asked the Court to furnish it with copies of the pleadings and other documents of the Parties only on 22 February 2001, that is less than ten days before the completion of the last compulsory round of written pleadings. It is not unusual in the practice of the Court that in reliance on Article 53, paragraph 1, of its Rules, States entitled to appear before the Court ask to be furnished with copies of the pleadings of the Parties at an early stage of the written proceedings (see, for example, case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene, Judgment, I.C.J. Reports 1981, p. 5, para. 4; case concerning Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to Intervene, Judgment, I.C.J. Reports 1984, p. 5, para. 4).

23. The Court notes, however, that despite the filing of the Application at a late stage in the proceedings, which does not accord with the stipulation of a general character contained in Article 81, paragraph 1, of the Rules requiring that "an application for permission to intervene . . . shall be filed as soon as possible", the Philippines cannot be held to be in violation of the requirement of the same Article, which establishes a [p 586] specific deadline for an application for permission to intervene, namely "not later than the closure of the written proceedings".

24. It will be recalled that the Special Agreement provided for the possibility of one moreround of written pleadings -- the exchange of Rejoinders -- "if the Parties so agree or if the Court decides so ex officio or at the request of one of the Parties". It was only on 28 March 2001 that the Parties notified the Court by joint letter "that [their] Governments . . . had agreed that it is not necessary to exchange Rejoinders".

Thus, although the third round of written pleadings terminated on 2 March 2001, neither the Court nor third States could know on the date of the filing of the Philippine Application whether the written proceedings had indeed come to an end. In any case, the Court could not have "closed" them before it had been notified of the views of the Parties concerning a fourth round of pleadings contemplated by Article 3, paragraph 2 (d), of the Special Agreement. Even after 28 March 2001, in conformity with the same provision of the Special Agreement, the Court itself could ex officio "authorize or prescribe the presentation of a Rejoinder", which the Court did not do.

25. For these reasons, the filing of the Philippine Application on 13 March 2001 cannot be viewed as made after the closure of the written proceedings and remained within the specific time-limit prescribed by Article 81, paragraph 1, of the Rules of Court.

In somewhat similar circumstances, dealing with the Nicaraguan Application for permission to intervene in the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), a Chamber of the Court found that, since the Special Agreement included a provision for a possible further exchange of pleadings, 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" (I.C.J. Reports 1990, p. 98, para. 12). The Court had pronounced itself in similar terms some ten years earlier in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Application for Permission to Intervene, Judgment, I.C.J. Reports 1981, p. 6, para. 5), although in the latter proceedings the question of timeliness was not in issue.

26. The Court therefore concludes that it cannot uphold the objection raised by Indonesia andMalaysia based on the alleged untimely filing of the Philippine Application.

**

27. Article 81, paragraph 3, of the Rules of Court provides that an application for permission to intervene "shall contain a list of documents in support, which documents shall be attached". In relation to this requirement, Indonesia argues in its written observations that

"in so far as it is claimed that the Philippines' request is directed to safeguarding its historical and legal rights over the territory of North Borneo, such an alleged interest is unsupported by any documentary or other evidence contrary to the requirements of Article 81 (3) of the Rules of Court".

For its part, Malaysia submitted no argument on this point.

28. The Philippines states that the fact that it has not annexed a list of documents in supportof its Application does not concern the question of the admissibility of the Application, but rather that of evidence. It maintains that it was left with only two options: either "to try to document and argue [its] entire case for North Borneo, which would be impermissible and would be an affront to the Court, and would, [it] believe[s], properly be rejected by the Court" or "to decide not to attach documents, since [it] could not know which ones would be relevant to the pending case", with the risk that, in the latter case, one of the Parties would then complain about the failure to annex documents.

29. The Court confines itself to observing in this regard that, while Article 81, paragraph 3, of the Rules of Court indeed provides that the application shall contain a list of any documents in support, there is no requirement that the State seeking to intervene necessarily attach any documents to its application in support. It is only where such documents have in fact been attached to the said application that a list thereof must be included. A Chamber of the Court took care to emphasize, "it is for a State seeking to intervene to demonstrate convincingly what it asserts, and thus to bear the burden of proof" (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, p. 117, para. 61). The Court considers, however, that the choice of the means whereby the State wishing to intervene seeks to prove its assertions lies in the latter's sole discretion. In the Court's view, paragraph 3 of Article 81 of its Rules has the same purpose, mutatis mutandis, as paragraph 3 of Article 50 of the said Rules, which provides that "[a] list of all documents annexed to a pleading shall be furnished at the time the pleading is filed". It follows that the Philippine Application for permission to intervene cannot be rejected on the basis of Article 81, paragraph 3, of the Rules of Court.

**

30. The Court therefore concludes that the Philippine Application was not filed out of timeand contains no formal defect which would prevent it from being granted.

***[p 588]

31. The Court will now consider the objections based on the absence of a jurisdictional link.

32. In this regard, Malaysia contends that:

"in the present case the jurisdictional link is . . . twice lacking.
First, there is no conventional instrument or unilateral declaration giving the Court jurisdiction to adjudicate upon the territorial dispute between the Philippines and either one of the Parties to the case;

Second, both Parties in the present case oppose a request for intervention by the Philippines."

Accordingly, it argues that the Philippine Application cannot be accepted by the Court.

Indonesia presented no argument in this respect.

33. For its part, the Philippines has made it clear that it does not seek to become a party to the dispute submitted to the Court by Indonesia and Malaysia. It further states that its Application for permission to intervene "is based solely on Article 62 of the Statute, which does not require a separate title of jurisdiction as a requirement for this Application to prosper", and that accordingly it should be granted.

34. The Court recalls that, under the terms of Article 62 of the Statute:
"1. Should a State consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene.

2. It shall be for the Court to decide upon this request."

35. As a Chamber of the Court has already had occasion to observe:

"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 tack on a new case . . . An incidental proceeding cannot be one which transforms [a] case into a different case with different parties." (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, pp. 133-134, paras. 97-98.)

Moreover, as that same Chamber pointed out, and as the Court itself has recalled:

"It . . . follows . . . 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." (Ibid., p. 135, para. 100; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Appl-[p 589]ication to Intervene, Order of 21 October 1999, I.C.J. Reports 1999, pp. 1034-1035, para. 15.)

Thus, such a jurisdictional link between the intervening State and the Parties to the case is required only if the State seeking to intervene is desirous of "itself becoming a party to the case" (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, p. 135, para. 99).

36. That is not the situation here. The Philippines is seeking to intervene in the case as a non-party. Hence the absence of a jurisdictional link between the Philippines and the Parties to the main proceedings does not present a bar to the Philippine intervention.

***

37. The Court will now consider the arguments that the Application to intervene cannot begranted for the reasons, first, that the Philippines has not established the existence of an "interest of a legal nature" justifying the intervention sought, and, secondly, that the object of the intervention would be inappropriate.

**

38. In relation to the existence of an "interest of a legal nature" justifying the intervention, the Philippines contends that:

"Under Article 2 of the Special Agreement between the Government of the Republic of Indonesia and the Government of Malaysia, the Court has been requested to determine the issue of sovereignty over Pulau Ligitan and Pulau Sipadan 'on the basis of treaties, agreements and any other evidence' to be furnished by the Parties. The interest of the Republic of the Philippines is solely and exclusively addressed to the treaties, agreements and other evidence furnished by Parties and appreciated by the Court which have a direct or indirect bearing on the matter of the legal status of North Borneo. The legal status of North Borneo is a matter that the Government of the Republic of the Philippines considers as its legitimate concern."

The Philippines adds that

"[a] decision by the Court, or that incidental part of a decision by the Court, which lays down an appreciation of specific treaties, agreements and other evidence bearing on the legal status of North Borneo will inevitably and most assuredly affect the outstanding territorial claim of the Republic of the Philippines to North Borneo, as well as the direct legal right and interest of the Philippines to settle that claim by peaceful means".[p 590]

In outlining its claim, the Philippines has referred inter alia to Section 3 of the Republic Act 5446 (which makes an implicit allusion to a claim to title in North Borneo) and to the Manila Accord of 31 July 1963, between Indonesia, the Federation of Malaya and the Philippines, in which specific reference is made to the Philippine claim to North Borneo and "cognizance of the position regarding the Philippine claim to Sabah (North Borneo)" is taken by the Heads of Government of these three States.

39. The Philippines refers to the fact that access to the pleadings and to the annexeddocuments filed by the Parties was denied to it by the Court and indicates that it thereby suffered from a handicap not encountered by intervening States in previous cases of intervention brought before the Court; it contends that it therefore could not "say with any certainty whether and which treaties, agreements and facts are in issue". The Philippines argues that "for some cases, the publication of [a] special agreement, in and of itself, is enough to convince the third State that its interest may be affected" and offers as an example a special agreement between two States requesting the Court to delimit a comprehensive maritime boundary; in such a case a third State can easily determine on the basis of the special agreement whether the prospective delimitation may potentially affect an interest of a legal nature of that third State. The Philippines argues that, on the other hand, "when the possibility of a decision affecting an interest of a third State is not certain and not graphic and is contingent on further information and specifications, the mere publication of the special agreement may not provide sufficient information". According to the Philippines, a procedure whereby an intervening State must define and establish the interest of a legal nature in question without being authorized to have notice of the written briefs submitted by the parties to the case would be equivalent to a denial of justice.

The Philippines asserts that as long as it does not have access to the documents filed by the Parties and does not know their content, it will not be able to explain really what its interest is.

40. The Philippines emphasizes that "Article 62 does not say that the intervening State must have a 'legal interest' or 'lawful interest' or 'substantial interest'", and that the "threshold for the invocation of Article 62 is, as a result, a subjective standard: the State requesting permission to intervene must 'consider' that it has an interest". The Philippines asserts that "the criteria are not to prove a legal or lawful interest, but to 'identify the interest of a legal nature' and 'to show in what way [it] may be affected'". In this regard, the Philippines maintains that

"In so far as any treaty or agreement that Malaysia is relying on in the present case to sustain its claim to Ligitan and Sipadan depends on the interpretation that lodges international title to North Borneo in the British North Borneo Company, that interpretation [p 591] adversely affects an interest of a legal nature which the Philippines considers that it has."

The Philippines states that it agrees

"entirely with the jurisprudence of the Court in Tunisia/Libya and Nicaragua that a concern about rules and general principles of law does not constitute sufficient interest under Article 62",

but argues that, in the case in hand, it is not a question of general principles of law but of specific treaties relating to a territory, which have an effect on the Philippines.

41. The Philippines further indicates that the statements made by Indonesia and Malaysiaduring the public hearing "provide evidence that the Court will be presented with many of the treaties and agreements upon which the Philippines claim is based and will be pressed to adopt interpretations that will certainly affect the Philippine interest". It states that it

"finds nothing in the precedents about the permissible scope of an intervention being determined by the language of the submission, but rather by the possible consequence of the Court's decision. The test is not connective, but consequential; not whether there is a 'connection' to the submission -- whatever that means -- but whether the decision of the Court could affect the interest of a legal nature of a third State."

The Philippines submits that, on the basis of that part of the record to which it has been allowed access, "the probability of consequences for the interests of the Philippines meets the 'may' requirements of Article 62 and justifies Philippine intervention". It adds that

"Evidently, the chain of title which Malaysia asserts to defend its territorial claim to Sipadan and Ligitan, based as it is on its own interpretations of, and representations on, specific treaties, agreements and other documents, is linked to the chain of title which the Philippines relies on to defend its territorial claim to North Borneo."

The Philippines also argues that it has cited three of the four legal instruments, which have been relied upon by one or both of the Parties to prove their case, in the context of the overall argument that it wanted to make.

The Philippines points out that it "has a direct legal interest in the interpretation of the 1930 United States-United Kingdom boundary, being the successor-in-interest of one party to that agreement, the United States", that "the 1930 Agreement cannot be construed in any way as an [p 592] instrument of cession", and that "Britain could not have acquired sovereignty over Pulau Sipadan and Pulau Ligitan by virtue of the interpretation placed by Malaysia on the 1930 United States-United Kingdom Agreement"; it follows from this that "the two islands in question were acquired by the United Kingdom in 1930 for and on behalf of the Sultan of Sulu".

The Philippines further states that "the territory ceded by the Sultan to the Philippines in 1962 covered only those territories which were included and described in the 1878 Sulu-Overbeck lease agreement", that its "Application for permission to intervene is based solely on the rights of the Government of the Republic of the Philippines transferred by and acquired from the Sulu Sultanate", and that "If at all there are other territories appertaining to the Sultanate not covered by the Sulu-Overbeck lease of 1878, the Philippines, as agent and attorney for the Sultanate, has reserved its position on these territories".

The Philippines concludes that:

"any claim or title to territory in or islands near North Borneo that assumes or posits or purports to rest a critical link on the legitimate sovereign title of Great Britain from 1878 up to the present is unfounded. Similarly, the interpretation of any treaty, agreement or document concerning the legal status of North Borneo as well as islands off the coast of North Borneo which would presume or take for granted the existence of British sovereignty and dominion over these territories has no basis at all in history as well as in law and, if upheld by the Court, it would adversely affect an interest of a legal nature on the part of the Republic of the Philippines."

42. For its part, Indonesia denies that the Philippines has an "interest of a legal nature". It states that

"the subject-matter of the dispute currently pending before the Court is limited to the question whether sovereignty over the islands of Ligitan and Sipadan belongs to Indonesia or Malaysia. In its Application for permission to intervene, the Philippines expressly states that it is not its intention to change the scope of the dispute submitted by Indonesia and Malaysia to the Court."

It recalls that on 5 April 2001, the Government of the Philippines sent a diplomatic Note to the Government of Indonesia in which, referring to the ongoing case between Indonesia and Malaysia, it wished to reassure the Government of Indonesia that the Philippines does not have "any territorial interest on Sipadan and Ligitan islands".

Indonesia then contends that


"It is evident from this [note] that the Philippines raises no claim with respect to Pulau Ligitan and Pulau Sipadan. It therefore fol-[p 593]lows that the Philippines has expressly disavowed any interest of a legal nature in the actual subject-matter of the dispute currently pending between Indonesia and Malaysia. In its Application, the Philippines asserts instead that its interest 'is solely and exclusively addressed to the treaties, agreements and other evidence furnished by the Parties and appreciated by the Court which have a direct or indirect bearing on the matter of the legal status of North Borneo'."

It maintains that

"The legal status of North Borneo is not a matter on which the Court has been asked to rule. Moreover, the desire of the Philippines to submit its view on various unspecified 'treaties, agreements and other evidence furnished by the Parties' is abstract and vague."

Indonesia adds that:

"The reply to the question submitted to the Court in the Special Agreement will rest entirely 'on the interpretation of the Convention of 20 June 1891, concluded by Great Britain and the Netherlands. Spain was not a party to the Convention. The Convention is res inter alios acta as far as the Philippines is concerned' . . . The Philippines is therefore doubly 'protected' . . . by Article 59 of the Statute of the Court, on the one hand, and by the fundamental principle that treaties bind the contracting States only, on the other. It may even be triply protected, since the interpretation of the Convention which . . . Members of the Court, are called upon to give concerns only its application to Ligitan and Sipadan -- there is no dispute between Indonesia and Malaysia with regard to its application to the island of Borneo. Since the Philippines limits its interest to the island of Borneo, expressly excluding Ligitan and Sipadan, it is in a sense also protected by the petitum as defined in the Special Agreement.

In any event, it is apparent from the clear, amply founded jurisprudence of the Court that the 'interest' claimed by the Philippines in the treaties, agreements and other evidence furnished by the Parties is not such as might justify an intervention pursuant to Article 62 of the Statute."

43. With reference to the question of the Philippine interest of a legal nature which may beaffected by the decision in the case, Malaysia argues that

"that legal interest must be precisely identified, then compared with [the Court's] mandate as it appears from the document of seisin, in the present instance the Special Agreement"[p 594]

and that


"it is thus not a matter of citing some general legal interest, but of proving it in relation to 'each of the different issues which might fall to be determined', to quote the words used by [the] Chamber [in the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene]".

Malaysia then contends that:

"the Philippines does not indicate how the decision . . . that the Court is asked to take on the issue of sovereignty over Ligitan and Sipadan might affect any specific legal interest. It is content to refer vaguely to the 'treaties, agreements and other evidence' on which the Court might 'lay down an appreciation'. But . . . the interest of a legal nature must, if affected, be so affected by the decision of the Court and not just by its reasoning. Such appreciation as the Court may be led to make of the effect of a particular legal instrument, or of the consequences of a particular material fact, as grounds for its decision cannot, in itself, serve to establish an interest of a legal nature in its decision in the case.

It is another provision of the Statute, Article 59, that protects the general legal interests of non-party States by specifying the limits on the authority of the Court's decision. By stating that 'the decision of the Court has no binding force except between the parties and in respect of that particular case', Article 59 ensures full legal protection of third parties, including in regard to any appreciation of treaties, agreements or evidence relied upon by the parties to the case." (Emphasis in the original.)

Malaysia further contends that "the issue of sovereignty over Ligitan and Sipadan is completely independent of that of the status of North Borneo", and that "the territorial titles are different in the two cases". Malaysia therefore "does not accept that the Philippines possess any 'historical and legal rights' of a kind that could be affected by any decision of the Court relating to sovereignty over the disputed islands".

Malaysia finally emphasizes that, in its view, "the Government of the Philippines itself agrees that it has no legal interest"; it refers in this regard to the diplomatic note of 5 April 2001 sent by the Embassy of the Philippines in Jakarta to the Ministry of Foreign Affairs of the Republic of Indonesia, in which the Government of the Philippines stated that it did not have "any territorial interest on Sipadan and Ligitan islands". It concludes from this that

"[The Court] must therefore dismiss this request for intervention in limine litis, since [its] decision can address only the issue of sovereignty over Ligitan and Sipadan and affect only legal interests with respect to these two islands. To grant this request for intervention by [p 595] the Philippines would be to allow extension of the judicial debate to another issue altogether, namely that of sovereignty over Northern Borneo."

In this regard, Malaysia also contends that in the previous practice of the Court, States have been allowed to intervene where they claimed part of the area which was in dispute in the case, but that, by contrast, when a State does not claim particular territory it has not been allowed to intervene, even though it said that the Court's decision on the territory might impact on it in some way.

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44. The Philippines has informed the Court that it has a claim of sovereignty in North Borneo. It stated that, prior to the arrival in Borneo of the European Powers, title, at least to part of Sabah lay with the Sultanate of Sulu. A grant was made by the Sultan to Messrs. Overbeck and Dent on 22 January 1878 in that part (which grant the Philippines acknowledges not to have included Pulau Ligitan and Pulau Sipadan). The Philippines has described this instrument as the "primary source" of its historic title and takes the view that it provided for a lease of territory but not a cession. The Philippines claims the Sultanate and its heirs retained title to that part of North Borneo throughout the period 1878 to 1962, notwithstanding the assignment of powers of administration to the British North Borneo Company (hereinafter "BNBC"). In 1962, according to the Philippines, it acquired title to this territory through cession by the heirs of the Sultan of Sulu.

45. The Court recalls that, on 5 April 2001, the Philippines sought, in a Diplomatic Note sent to Indonesia, "to reassure the Government of the Republic of Indonesia that it does not have any territorial interest on Sipadan and Ligitan islands" (see paragraphs 42-43 above). This position was confirmed by the Philippines before this Court. The Philippines states that its claim of sovereignty in North Borneo is not affected by whether the Court affirms sovereignty over the islands as lying with Indonesia, or alternatively with Malaysia. However, the Philippines has informed the Court that its claim of sovereignty in North Borneo might be affected by any reasoning of the Court, whether in interpreting treaties in issue between Indonesia and Malaysia or otherwise, that would affirm that the BNBC had had sovereignty in North Borneo.

46. Indonesia and Malaysia contend that the existence of an interest of a legal nature in the very subject-matter of the case is a condition precedent for the Court to allow an intervention under Article 62.

In that regard, the Court will at the outset consider whether a third State may intervene under Article 62 of the Statute in a dispute brought [p 596] to the Court under a special agreement, when the State seeking to intervene has no interest in the subject-matter of that dispute as such, but rather asserts an interest of a legal nature in such findings and reasonings that the Court might make on certain specific treaties that the State seeking to intervene claims to be in issue in a different dispute between itself and one of the two Parties to the pending case before the Court.

47. The Court must first consider whether the terms of Article 62 of the Statute preclude, in any event, an "interest of a legal nature" of the State seeking to intervene in anything other than the operative decision of the Court in the existing case in which the intervention is sought. The English text of Article 62 refers in paragraph 1 to "an interest of a legal nature which may be affected by the decision in the case". The French text for its part refers to "un interet d'ordre juridique . . . en cause" for the State seeking to intervene. The word "decision" in the English version of this provision could be read in a narrower or a broader sense. However, the French version clearly has a broader meaning. Given that a broader reading is the one which would be consistent with both language versions and bearing in mind that this Article of the Statute of the Court was originally drafted in French, the Court concludes that this is the interpretation to be given to this provision. Accordingly, the interest of a legal nature to be shown by a State seeking to intervene under Article 62 is not limited to the dispositif alone of a judgment. It may also relate to the reasons which constitute the necessary steps to the dispositif.

48. Having reached this conclusion, the Court must now consider the nature of the interest capable of justifying an intervention. In particular, it must consider whether the interest of the State seeking to intervene must be in the subject-matter of the existing case itself, or whether it may be different and, if so, within what limits.

49. In the majority of the applications for permission to intervene that have come before theCourt, the applicant has claimed to have an interest in the very subject-matter of the dispute or the territory in which a delimitation is to be effected. Further, in the two cases where a request for intervention under Article 62 has been authorized by the Court, that authorization was in respect of an interest related to the subject-matter of the dispute (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, p. 121, para. 72: Nicaragua's rights in the Gulf of Fonseca necessarily being affected by the definition of a condominium; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Application to Intervene, Order of 21 October 1999, I.C.J. Reports 1999, p. 1029: Equatorial Guinea's maritime rights could be affected by the determination by the Court of the maritime boundary between Cameroon and Nigeria).

50. In 1981 Malta, seeking to intervene, invoked an interest of a legal nature which: [p 597]

"does not relate to any legal interest of its own directly in issue as between Tunisia and Libya in the present proceedings or as between itself and either one of those countries. It concerns rather the potential implications of reasons which the Court may give in its decision in the present case on matters in issue as between Tunisia and Libya . . ." (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, Judgment, I.C.J. Reports 1981, p. 12, para. 19.)

51. The Court specified that Malta thought that any pronouncements on specialcircumstances or on equitable principles in that particular region would be certain, or very likely, to affect Malta's own rights on the continental shelf:

"what Malta fears is that in its decision in the present case the reasoning of the Court . . . may afterwards have a prejudicial effect on Malta's own legal interests in future settlement of its own continental shelf boundaries with Libya and Tunisia" (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, Judgment, I.C.J. Reports 1981, p. 17, para. 29).

52. The Court did not, however, find this a pertinent factor in deciding whether or not to allow Malta to intervene. The Court noted that a State could not hope to intervene "simply on an interest in the Court's pronouncements in the case regarding the applicable general principles and rules of international law" (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, Judgment, I.C.J. Reports 1981, p. 17, para. 30). But the interest in the Court's findings and pronouncements was not in that case such a generalized interest. The Court thus turned to an examination of the interests that Malta had specified, notwithstanding that they did not lie in the very outcome of the case.

53. Malta's Application was rejected, but not on the grounds that its expressed intention didnot fall within the scope of the dispute as defined in the Special Agreement. Malta's Application to intervene was not granted because the Court felt it was in effect being asked to prejudge the merits of Malta's claim against Tunisia in a different dispute, which Malta had nonetheless not put before the Court.

54. The situation is different in the present case. Indeed, the Court considers that the request of the Philippines to intervene does not require the Court to prejudge the merits of any dispute that may exist between the Philippines and Malaysia, and which is not before the Court.

55. Whether a stated interest in the reasoning of the Court and any interpretations it mightgive is an interest of a legal nature for purposes of Article 62 of the Statute can only be examined by testing whether the legal claims which the State seeking to intervene has outlined might be thus affected. Whatever the nature of the claimed "interest of a legal nature" that a State seeking to intervene considers itself to have (and pro-[p 598]vided that it is not simply general in nature) the Court can only judge it "in concreto and in relation to all the circumstances of a particular case" (Chamber of the Court in Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, p. 118, para. 61).

56. Thus, the Court will now proceed to examine whether the Philippine claim of sovereignty in North Borneo could or could not be affected by the Court's reasoning or interpretation of treaties in the case concerning Pulau Ligitan and Pulau Sipadan.

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57. It is recalled that the Philippines contended that "the threshold for the invocation of Article 62 is . . . a subjective standard: the State requesting permission to intervene must 'consider' that it has an interest" of a legal nature (see paragraph 40 above). The Philippines acknowledged that, having thus invoked Article 62, "the State requesting permission to intervene must identify the interest in question and relate it to the case at Bar".

58. As the Chamber said in the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), "it is for a State seeking to intervene to demonstrate convincingly what it asserts". Further, "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" (I.C.J. Reports 1990, pp. 117-118, para. 61).

59. The Court would add that a State which, as in this case, relies on an interest of a legal nature other than in the subject-matter of the case itself necessarily bears the burden of showing with a particular clarity the existence of the interest of a legal nature which it claims to have.
60. In order to make concrete its submission that it has an interest of a legal nature whichmight be harmed by the reasoning of the Court in the forthcoming Judgment as to sovereignty over Pulau Ligitan and Pulau Sipadan, the Philippines may not introduce a new case before the Court nor make comprehensive pleadings thereon, but must explain with sufficient clarity its own claim of sovereignty in North Borneo and the legal instruments on which it is said to rest, and must show with adequate specificity how particular reasoning or interpretation of identified treaties by the Court might affect its claim of sovereignty in North Borneo.

61. Basing itself on Article 53, paragraph 1, of the Rules of the Court, the Philippinessubmitted to the Court on 22 February 2001 a request to be provided with the pleadings and documents annexed by Indonesia and Malaysia in their written pleadings. After ascertaining the views of the [p 599] Parties, the Court decided that it was not appropriate to accede to the Philippine request. This decision was communicated to the Philippines, Indonesia and Malaysia by letters dated 15 March 2001 (see paragraph 6 above).

62. The Philippines has strongly protested that it is severely and unfairly hampered in"identifying" and "showing" its legal interest in the absence of access to the documents in the case between Indonesia and Malaysia (see paragraph 39 above). Indeed, it has stated to the Court that "as long as we do not have access to the submissions of the Parties and don't know their contents, we can not really explain what our interest is". The Philippines observes that since the written pleadings in the case between Indonesia and Malaysia have not yet been made accessible to the public, it was not until the oral phase of the present proceedings that the two Parties publicly stated which treaties they considered to be in issue in their respective claims to Pulau Ligitan and Pulau Sipadan. Its request for access to the pleadings not having been granted by the Court, the Philippines maintains that it does not know (save in so far as it has emerged through these proceedings) the precise reliance that either Malaysia or Indonesia places on any one of these instruments. The Philippines also observed, during the oral phase of these proceedings, that not only do Malaysia and Indonesia seem to have different views on certain of these treaties, but that they do not have identical views as to whether some treaties that the Philippines regards as relevant to its own different claim, do indeed have legal significance for the disposition of Pulau Ligitan and Pulau Sipadan.

63. The Court observes, however, that the Philippines must have full knowledge of thedocumentary sources relevant to its claim of sovereignty in North Borneo. While the Court acknowledges that the Philippines did not have access to the detailed arguments of the Parties as contained in their written pleadings, this did not prevent the Philippines from explaining its own claim, and from explaining in what respect any interpretation of particular instruments might affect that claim.

64. In outlining that claim, for purposes of showing an interest of a legal nature that might beaffected by the reasoning or interpretation of the Court in the dispute over Pulau Ligitan and Pulau Sipadan, the Philippines has emphasized the importance of the instrument entitled, in English translation, "Grant by Sultan of Sulu of territories and lands on the mainland of the island of Borneo", dated 22 January 1878 (hereinafter the "Sulu-Overbeck grant of 1878").

65. This instrument which bears the official seal of the Sultan of Sulu is said by thePhilippines to be its "primal source" of title in North [p 600] Borneo. The Philippines interprets the instrument as a lease and not as a cession of sovereign title. It also acknowledges that the territorial scope of the instrument described in its first paragraph ("together with all the islands which lie within nine miles from the coast") did not include Pulau Ligitan and Pulau Sipadan.

66. The Court observes, however, that the Philippine claims of sovereignty, as shown on the map presented by the Philippines during the oral proceedings, do not coincide with the territorial limits of the grant by the Sultan of Sulu in 1878. Moreover, the grant of 1878 is not in issue as between Indonesia and Malaysia in the case, both agreeing that Pulau Ligitan and Pulau Sipadan were not included in its reach. Also, the question whether the 1878 grant is to be characterized as a lease or a cession does not form part of the claim to title of either Party to the islands in issue. Neither Indonesia nor Malaysia relies on the 1878 grant as a source of title, each basing its claimed title upon other instruments and events.

67. The burden which the Philippines carries under Article 62, to show the Court that an interest of a legal nature may be affected by any interpretation it might give or reasoning it might adduce as to its "primal source" of title, is thus not discharged.

68. The Philippines supplements its contention that sovereignty in North Borneo was retained by the Sultanate of Sulu by means of cited extracts from British State Papers of the late nineteenth century and the first part of the twentieth century.

69. The 7 March 1885 Protocol between Great Britain, Germany and Spain, recognizing the sovereignty of Spain over the Archipelago of Sulu (Jolo), and by which Spain renounced "as far as regards the British Government, all claims of sovereignty over the territories of the continent of Borneo, which belong, or which have belonged in the past, to the Sultan of Sulu", is said by the Philippines to have great importance for its claim. This is because -- in the Philippine view -- this Protocol too made clear that sovereignty in North Borneo lay with Sultans and not with the British Crown. However, neither Malaysia nor Indonesia base their claims to Pulau Ligitan and Pulau Sipadan on the Protocol. It is not to be envisaged that either through its reasoning or through interpretation any legal interests as articulated by the Philippines may be affected.

70. The Philippines has also explained to the Court its view that the Royal Charter of1 November 1881, incorporating the BNBC, clearly shows that the BNBC was not itself invested with a sovereign character. The Philippines also finds support for its claim of sovereignty in North Borneo in the Agreement of 12 May 1888 between the British Govern-[p 601]ment and the BNBC, and especially Article III thereof, which provided that "The relations between the State of North Borneo and all foreign States . . . shall be conducted by Her Majesty's Government". The Philippines advances comparable views as to the Confirmation by the Sultan of Sulu of the Cession of Certain Islands, dated 22 April 1903, asserting that this instrument shows a continuing and uninterrupted sovereignty of the Sultan of Sulu over the mainland of North Borneo as well as slands lying off that coast.

Neither of these agreements is regarded by the Parties to the main proceedings as founding title to Pulau Ligitan and Pulau Sipadan. Their claims do not implicate the precise status of rule in North Borneo at this period. Accordingly, the Philippines has not demonstrated any interest of a legal nature that could be affected in relation to these agreements, and which might warrant intervention under Article 62 of the Statute.

71. Certain other instruments to which the Court was referred by the Philippines do appear tohave a certain relevance not only to the Philippine claims of sovereignty in North Borneo, but also to the question of title to Pulau Ligitan and Pulau Sipadan. The Philippine interest in the 20 June 1891 Convention, concluded between Great Britain and the Netherlands for the purpose of defining boundaries in Borneo, lies in noting that while the Convention set boundaries defining "Netherlands possessions" and "British Protected States", the "State of North Borneo" was indeed one of the British Protected States.

72. Indonesia does claim Pulau Ligitan and Pulau Sipadan under the same Convention. In particular, it contends that, for various reasons, Article 4 of that Convention should be read as extending into the sea on the latitude 4 [degree] 10' north mentioned therein. Thus, in Indonesia's view, islands to the south of that parallel, such as Pulau Ligitan and Pulau Sipadan, did not belong after 1891 to the State of North Borneo, but to the Netherlands. Malaysia offers various grounds for rejecting that interpretation of Article 4.

73. In resolving the disputed interpretation of Article 4, the Court has no need to pronounce upon the precise nature of the British interests lying to the north of latitude 4 [degree] 10'. Notwithstanding that the 1891 Convention may be said to have a certain relevance for Indonesia, Malaysia and the Philippines, the Philippines has demonstrated no legal interest that could be affected by the outcome or reasoning in the case between Indonesia and Malaysia.

74. The Philippines has also explained to the Court its view that the Exchange of Notes on3 July and 10 July 1907 between Great Britain and the United States, relating to the administration of certain islands on the east cost of Borneo by the BNBC, again shows that Great Britain was acting in a capacity other than as sovereign over North Borneo. While [p 602] this Exchange of Notes is also of a certain interest for Malaysia, it relies on the exchange as evidence that the two islands it disputes with Indonesia were at that time historically and administratively tied to North Borneo. The precise status of the legal ties in 1907 is not central to Malaysia's claims. Accordingly, no interest of a legal nature that requires an intervention under Article 62, to present their interpretation of the 1907 Exchange of Notes, has been shown by the Philippines.

75. The 2 January 1930 Convention between Great Britain and the United States regarding the boundary between the Philippine Archipelago and North Borneo may assume a somewhat greater significance for these proceedings.

76. One of Malaysia's arguments appears to be that the BNBC's right of administration of the islands was, by the terms of the 1930 Convention, converted into a full right of sovereignty.

77. It is recalled that the Philippines, commenting on this Convention, stated that it followsfrom the sovereignty held by the Sultan of Sulu over North Borneo that the attribution of islands to the south and west of the described line was on behalf of the Sultan of Sulu (see paragraph 41 above); and that this is supported by the text.
78. The Court notes that the 1930 Convention, which delimits the boundary between the Philippine Archipelago (under United States sovereignty) and the State of North Borneo (under British protection), has as its particular object the determination of which of the islands in the region "belong" to the United States on the one hand and to the State of North Borneo on the other. This Convention does not appear to the Court at this stage of the proceedings to concern the legal status of the principal territory of North Borneo. As the Court has already had occasion to emphasize above (see paragraph 59), the interest of a legal nature invoked by the Philippines in order to be permitted to intervene in the case must be shown with a particular clarity, since it does not relate to the actual subject-matter of the case. It appears, however, in light of the object of the 1930 Convention and of the rights claimed by the Philippines in North Borneo, that the Philippines has not shown how any interpretation of that Convention which the Court might make for purposes of the case between Indonesia and Malaysia could affect an interest of a legal nature of the Philippines which would justify its intervention under Article 62 of the Statute.

79. The North Borneo Cession Order in Council, adopted on 10 July 1946, which provided in its sixth paragraph that "with effect from the fifteenth day of July, 1946, . . . the Crown should . . . have full sovereign rights over, and title to, the territory of the State of North Borneo", is said by the Philippines to demonstrate that only on that date did the British Crown purport for the very first time to acquire full sovereign rights over North Borneo. The Philippines couples that position with the [p 603] contention that any such purported order of cession is without legal effect.

80. Indonesia does not contest the status of the 1946 Order or British competence to act thereunder; rather, its views diverge from those of Malaysia as to the bearing it has on Pulau Ligitan and Pulau Sipadan. Any interest that the Philippines claims to have as to references that the Court might make in the case between Indonesia and Malaysia to the 1946 Order is too remote for purposes of intervention under Article 62.

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81. The Philippines needs to show to the Court not only "a certain interest in . . . legal considerations" (Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment, I.C.J. Reports 1981, p. 19, para. 33) relevant to the dispute between Indonesia and Malaysia, but to specify an interest of a legal nature which may be affected by reasoning or interpretations of the Court. The Court has stated that a State seeking to intervene should be able to do this on the basis of its documentary evidence upon which it relies to explain its own claim.

82. Some of the instruments which the Philippines has invoked, and the submissions it has made as to them, may indeed have shown a certain interest in legal considerations before the Court in the dispute between Indonesia and Malaysia; but as regards none of them has the Philippines been able to discharge its burden of demonstrating that it has an interest of a legal nature that may be affected, within the sense of Article 62. The Philippines has shown in these instruments no legal interest on its part that might be affected by reasoning or interpretations of the Court in the main proceedings, either because they form no part of the arguments of Indonesia and Malaysia or because their respective reliance on them does not bear on the issue of retention of sovereignty by the Sultanate of Sulu as described by the Philippines in respect of its claim in North Borneo.

83. Furthermore, the Court notes that the prime basis which the Philippines cites in supportof its claim is the Sulu-Overbeck grant of 1878 and the historical facts which preceded it. It is notable that a number of the documents to which it drew the Court's attention do not appear in the official publication of the Philippines of 1963, presented to the Court by Malaysia, explaining the legal basis of the Philippine claim of sovereignty in North Borneo (Philippine Claim to North Borneo, Volume I, Manila, Bureau of Printing, 1963). All instruments to which the Philippines has drawn the Court's attention, save the Sulu-Overbeck grant of [p 604] 1878, are instruments said to be confirmatory of title, or treaties in respect of which the Philippines wishes to advance interpretations that preclude them being read as entailing a loss of any previous title that may have existed in the Sultan of Sulu. Not only are they not, for the most part, at the centre of the Court's attention in the case between Indonesia and Malaysia, but they are not themselves sources of title for the Philippines. The wish of a State to forestall interpretations by the Court that might be inconsistent with responses it might wish to make, in another claim, to instruments that are not themselves sources of the title it claims, is simply too remote for purposes of Article 62.

**
84. In respect of the "the precise object of the intervention" (Art. 81, para. 2 (b), of the Rules of Court), the Philippines states that its Application has the following objects:


"(a) First, to preserve and safeguard the historical and legal rights of the Government of the Republic of the Philippines arising from its claim to dominion and sovereignty over the territory of North Borneo, to the extent that these rights are affected, or may be affected, by a determination of the Court of the question of sovereignty over Pulau Ligitan and Pulau Sipadan.

(b) Second, to intervene in the proceedings in order to inform the Honourable Court of the nature and extent of the historical and legal rights of the Republic of the Philippines which may be affected by the Court's decision.

(c) Third, to appreciate more fully the indispensable role of the Honourable Court in comprehensive conflict prevention and not merely for the resolution of legal disputes".

The Philippines submitted during the oral proceedings "that the objects (a) and (b) in the Application make clear the objectives of the Philippines in applying to the Court for permission to intervene under Article 62, are consistent with the Court's jurisprudence; and amply fulfil the requirements of the Statute".

85. For its part, Indonesia argues that


"the objective of the Philippines is not to inform [the] Court of its interests in the case before [it], but to draw the Court's attention to another dispute, speculating that this might, perhaps, be of interest. At best, the Philippines might appear as amicus curiae." [p 605]

Indonesia further argues that

………………………………………………………………………………………………
"(5) the information that the Philippines is seeking, by this means, to give to the Court therefore does not constitute, in the circumstances of the case, a legitimate object of the intervention requested;

(6) this equally applies a fortiori to the avowed aim of the Philippines of thus securing communication of the pleadings and documents refused by the Court's decision of 15 March [2001];

(7) more generally, intervention by the Philippines would create a dangerous and unwelcome precedent, which would seriously jeopardize the confidentiality of proceedings which States appearing before the Court are legitimately entitled to expect -- and indeed the very system of intervention . . ."

86. As for Malaysia, it maintains that:

"the Philippines assertion that it has historical and legal rights to the territory of Borneo which it wishes 'to preserve and safeguard' is a fiction which is quite unsustainable. It must, therefore, be regarded as a claim evidently lacking in precision. The pursuit of so manifestly defective a claim is not a proper object for an intervention application."

As to the "second stated object" of the Philippine Application (see paragraph 84 above), Malaysia contends that "the assertion of such [historical and legal] rights is manifestly unsustainable", and that "the giving of information to the Court about unsustainable rights is not a proper object for intervention".

Malaysia also maintains that

"by reference to published sources and even without access to the pleadings, the Philippines could readily have ascertained for itself some of the fundamental elements in the dispute between Malaysia and Indonesia; and it could more specifically have related its concerns to those issues".

In this respect, Malaysia concludes that:

"[The Philippines] has not attempted to grapple with the significance of actual British and later Malaysian possession and administration of the territory for a century and a quarter.

But that does not entitle the Philippines to be given a second chance by being allowed now to intervene further in this case. A failure specifically to define the object of the Application cannot be converted into a statement of an object. The Philippines has not met the [p 606] requirements that the Court has laid down for a successful application."


As to the third stated object of the Philippine Application (see paragraph 84 above), Malaysia considers that "this is a purely abstract and general matter, on which the Court needs no instruction from the Philippines or anyone else" and that "it is a gratuitous and impermissible object for an intervention".

*

87. As regards the first of the three objects stated in the Application of the Philippines (see paragraph 84 above), the Court notes that similar formulations have been employed in other applications for permission to intervene, and have not been found by the Court to present a legal obstacle to intervention (Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to Intervene, Judgment, I.C.J. Reports 1984, pp. 11-12, para. 17; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) Application to Intervene, Judgment, I.C.J. Reports 1990, pp. 108-109, para. 38 and pp. 130-131, para. 90; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Application to Intervene, Order of 21 October 1999, I.C.J. Reports 1999, Order, p. 1032, para. 4).
88. So far as the second listed object of the Philippines is concerned, the Court, in its Order of 21 October 1999 in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Application to Intervene, recently reaffirmed a statement of a Chamber that:

"so far as the object of [a State's] intervention is 'to inform the Court of the nature of the legal rights [of that State] 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" (I.C.J. Reports 1999, p. 1034, para. 14).

89. That the rights claimed by the Philippines lie in North Borneo rather than in PulauLigitan and Pulau Sipadan makes the second stated object of the Philippines no less a proper one.

90. As to the third object listed in its Application, very occasional mention was made of itduring the oral pleadings. But the Philippines did not develop it nor did it contend that it could suffice alone as an "object" within the meaning of Article 81 of the Rules. The Court rejects the relevance under the Statute and Rules of the third listed object.

91. Indonesia also suggested that the Philippines has another object in seeking intervention, and it stated that "although the Philippines denies this . . ., it has indeed progressively transformed its Application for per-[p 607]mission to intervene into an appeal against the decision not to allow it to have access to the pleadings".

92. During the oral proceedings, the Agent of the Philippines, on behalf of his Government, presented by way of conclusion the desire of that State to be furnished with copies of the pleadings and documents as a first "remedy" under Article 85 of the Rules (see paragraph 13 above). The Court notes however that Article 85 does not provide for "remedies" as such, but rather deals with the procedural consequences of a decision to accede to an application for permission to intervene under Article 62.

**

93. Notwithstanding that the first two of the objects indicated by the Philippines for its intervention are appropriate, the Court finds that the Philippines has not discharged its obligation to convince the Court that specified legal interests may be affected in the particular circumstances of this case.

94. The Court nevertheless observes that, notwithstanding its finding that the Philippines has not demonstrated an entitlement to intervene in the pending case between Indonesia and Malaysia, it remains cognizant of the positions stated before it by Indonesia, Malaysia and the Philippines in the present proceedings.

***

95. For these reasons,

THE COURT,

By fourteen votes to one,

Finds that the Application of the Republic of the Philippines, filed in the Registry of the Court on 13 March 2001, for permission to intervene in the proceedings under Article 62 of the Statute of the Court, cannot be granted.

IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Weeramantry, Franck;

AGAINST: Judge Oda.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this twenty-third day of October, two thousand and one, in four copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of [p 608] the Republic of Indonesia, the Government of Malaysia, and the Government of the Republic of the Philippines, respectively.

(Signed) Gilbert GUILLAUME,
President.

(Signed) Philippe COUVREUR,
Registrar.

Judge ODA appends a dissenting opinion to the Judgment of the Court; Judge KOROMA appends a separate opinion to the Judgment of the Court; Judges PARRA-ARANGUREN and KOOIJMANS append declarations to the Judgment of the Court; Judges ad hoc WEERAMANTRY and FRANCK append separate opinions to the Judgment of the Court.

(Initialled) G. G.
(Initialled) Ph. C. [p 609]


DISSENTING OPINION OF JUDGE ODA

1. I voted against the operative part of the Judgment, as I firmly believe that the Philippine request for permission to intervene in the case between Indonesia and Malaysia should have been granted.

That vote has led me to express this dissenting opinion. I wish, however, to emphasize that my disagreement with the Court is limited at this time strictly to the issue decided in this Judgment, namely the Philippines right to intervene in these proceedings, and is not in any way indicative of my views in respect of the validity of any claim the Philippines might have to North Borneo or in respect of the merits in the principal case between Indonesia and Malaysia.

*

2. My position in this case results from my interpretation of “intervention” under Article 62 of the Statute, an interpretation which may differ from the Court’s in some respects. As my interpretation has remained consistent throughout the Court’s entire jurisprudence on this subject, I believe it appropriate to begin with a brief sketch of the history of the Court’s application of that provision.

3. Although Article 63 of the Statute concerning intervention when the construction of multilateral conventions is in question dates back to the 1899 and 1907 Hague Conventions for the Pacific Settlement of International Disputes, there was no provision dealing with intervention by a State having an interest which may be affected by the Court’s decision [p 610] until 1920, when Article 62 was introduced into the Statute of the Permanent Court of International Justice. In fact, however, the inclusion of that provision did not by any means put an end to discussion of the role to be played by a third State permitted to intervene, or of the potential outcome of the intervention
.
4. In the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), which, for all practical purposes, was the first case of intervention to come before the Court since Article 62 of
the Statute of the Permanent Court of International Justice (which is practically identical to Article 62 of the present Court’s Statute) was adopted in 1920, the Court on 14 April 1981 handed down a Judgment unanimously rejecting Malta’s Application for permission to intervene. In my separate opinion appended to that Judgment (and I would point out that some commentators considered that separate opinion to be a de facto dissenting opinion) I concluded, after thorough examination of the drafting of Article 62 of the Statute of the Permanent Court, that a State could be permitted to participate in the principal dispute as a non-party and that a judicial link between that intervening State and the parties to the principal case was not required for such an intervention. As that proposition was not supported by the majority of the Court, I believe that this was probably the first time that the concept of non-party intervention was ever raised. In that opinion I stated:

“In my view . . . the Court’s reasoning places too restrictive a construction upon the first paragraph of Article 62. I regret that the institution of intervention is afforded so narrow a focus on essentially the first occasion of its application.” (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene, Judgment, I.C.J. Reports 1981, p. 23, para. 1.)

5. In the Continental Shelf (Libyan Arab Jamahiriya/Malta) case, the second case in the Court’s jurisprudence dealing with intervention under Article 62, the Court in its Judgment of 21 March 1984 rejected Italy’s Application for permission to intervene but, this time, by eleven votes to five. Five judges, including myself, were of the opinion that Italy’s Application for permission to intervene should have been granted. My dissenting opinion appended to the Court’s Judgment in that case states as follows:

“It seems that the Court presupposes a priori the scope of the kind of intervention it deems genuine (a procedure which I do not think is correct), and then draws the conclusions that Italy’s application does not fall into this category.” (Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to Intervene, Judgment, I.C.J. Reports 1984, pp. 90-91, para. 2.)

and

“I have thus elaborated my point that Italy’s application falls within the purview of the institution of intervention provided for [p 611] under the Statute, and that Italy is justified in considering that it has an interest of a legal nature which may be affected by the decision in the case. I made almost the same argument in the case of the Maltese intervention three years ago, based on almost the same reasoning.” (Ibid., p. 113, para. 43.)

Thus, it would appear that the concept of non-party intervention had gained some support in the
Court.

6. In 1990, after these two cases in which the Court had rejected requests by third States for permission to intervene, a Chamber of the Court formed in 1987 to deal with the case concerning
the Land, Island and Maritime Frontier Dispute granted such permission to Nicaragua. This marked the first time in the entire history of the Court that such intervention was allowed. The Chamber, consisting of three of the five dissenting judges in the previous case and two judges
ad hoc, unanimously found on 13 September 1990 that the object of Nicaragua’s intervention, to
inform the Court of the nature of Nicaragua’s legal rights which were at issue in the dispute, indeed accorded with the function of intervention and could not be regarded as improper (I.C.J. Reports 1990, p. 91). In the view of the Court, there could be no doubt as to the importance of the general principles of consensual jurisdiction, so that no State but the parties to the proceedings might involve itself in those proceedings without the consent of the original parties. Yet the Court stated that:

“It . . . 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.” (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, I.C.J. Reports 1990, p. 135, para. 100.)

The Court went on to say that:

“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” (ibid.).

Nicaragua, which had been given copies of the written pleadings submitted by El Salvador and Honduras, considered that it had an interest of a legal nature which might be affected by the decision in the case; the Court granted Nicaragua permission to intervene on the question of the legal regime of the waters of the Gulf of Fonseca. The real discussion only began at that point: by Order dated 14 September 1990 (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), I.C.J. Reports 1990, p. 146), the Court authorized Nicaragua to present a written statement and El Salvador and Honduras to submit their written observations on that statement. Nicaragua was then given the opportunity to plead orally as a non-party during the[p 612] merits phase of the case. This was the first time in the Court’s history that a State was accorded permission to intervene under Article 62 of the Statute.

7. In the case concerning Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) the Court, in its Order of 21 October 1999, unanimously granted Equatorial Guinea permission to intervene (Application by Equatorial Guinea for permission to intervene, I.C.J. Reports 1999, p. 1029). Equatorial Guinea in its Application had specified that it did “not seek to be a party to the case before the Court (ibid., emphasis added). In accordance with that Order, Equatorial Guinea, in the merits phase of the case, submitted its written statement and the Parties presented their respective observations in it. Equatorial Guinea will now be allowed to participate as a non-party in the oral proceedings in the merits phase of the principal case, scheduled for the spring of 2002. It should be noted that the President of the Court at that time was one of the five dissenting judges in the case of Italy’s intervention in 1984.

8. My position remained unchanged throughout these four cases (which, practically speaking, represent the entire jurisprudence of the Court on the subject of intervention): Article 62 of the Court’s Statute should be interpreted liberally so as to entitle a State, even one not having a jurisdictional link with the parties, which shows “an interest of a legal nature which may be affected by the decision in the case” (emphasis added) to participate in the case as a non-party, not necessarily on the side of either the applicant State or the respondent State in the principal case. The institution of “non-party intervention” has developed greatly over the past 20 years and it is perhaps an exaggeration to say that the Court’s established jurisprudence limits intervention to participation as a party.

*

9. One should keep in mind the manner in which “intervention” has been considered by the Court as a whole or by individual members. After having participated in the three cases involving requests for permission to intervene ¾ Malta’s, Italy’s and Nicaragua’s ¾ I formulated my view of “non-party intervention” under Article 62 of the Statute, where a jurisdictional link between the intervening State and the parties to the principal case is not required, and where the intervening State (after having had full access to the pleadings of the parties) should be allowed to participate, but not as a party, by presenting its written observations and then joining in the oral proceedings in the principal case. I enunciated that view in a lecture given to the Hague Academy of International Law in 1993. In the interest of efficiency, it would be appropriate to quote from that lecture: [p 613]

“2. Intervention in cases involving third States’ interest of a legal nature --
application of Article 62
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) Some reflections on intervention under Article 62 116. After having reviewed the three latest applications for permission to intervene, all of which were related to maritime delimitation or the status of maritime areas a coincidence which is not without a certain significance I would like to make a few general observations on intervention under Article 62, in other words, intervention made in cases where a third State considers it has an interest of a legal nature which may be affected by the decision in that case. I shall consider, first, whether or not there has to be a jurisdictional link between the intervening State and the original litigant States in the principal case and, second, whether or not the judgment of the Court in the principal case should also be binding upon the intervening State.

117. It is tenable that a jurisdictional link between the intervening State and the original parties to the case would be required if the intervening State were to participate as a full party and that, in such a case, the judgment of the Court would undoubtedly be binding upon the intervening State. Probably, in fact, this third State would in such circumstances also be entitled to bring a separate case on the same subject before the Court. Conversely, it may be true that participation in the proceedings, as a full party by a third State which has no jurisdictional link with the original parties, and which remains immune from the binding force of the judgment, would be clearly tantamount to introducing through the back door a case which could not otherwise have been brought to the Court because of lack of jurisdiction. This seems impermissible, because the jurisdiction of the International Court of Justice is based on the consent of sovereign States and is not otherwise compulsory.

118. In my view, however, the situation where a right erga omnes is at issuebetween two States, but a third State has also laid a claim to that right, is a hypothesis which here merits special consideration. For instance, in a case of sovereignty over an island, or the delimitation of a territorial boundary dividing two States, with a third party also being in a position to claim sovereignty over that island or over the territory which may be delimited by that boundary, or in a case in which a claim to property is in dispute, an unreasonable result could be expected if a jurisdictional link were required for the intervention of the third State. If this link is deemed at all times indispensable for intervention, the concept of intervention in cases before the ICJ will inevitably die out and its purpose be defeated. The overall cause of international justice would not be served. [p 614]

Accordingly, if the third State does not have a proper jurisdictional link with the original litigant States, the possibility of its intervention should not be excluded, though its position in the case would then not be that of a party within the meaning of the term in municipal law. The role to be played by the intervening State in such circumstances must be circumscribed. It may assert a concrete claim against the original litigant States, but that claim must be confined to the scope of the original application or special agreement in the principal case. Even then, the intervening State could not seek a judgment of the Court which directly upholds its own claim.

119. Neither ¾ in other words ¾ would the potential scope of the judgment be expanded: the Court would still be bound to give judgment only within the scope of the original application or special agreement. The intervening State would have to be content with whatever advantage it could glean from the post-judgment situation. What is more, it would not, surely, escape the binding force of the judgment in the area concerning which its intervention was allowed.

The intervening State will thus have been able to protect its own rights merely in so far as the judgment declines to recognize as countervailing the rights of either of the original two litigant States. On the other hand, to the extent that the Court gives a judgment positively recognizing rights of either of the litigant States, the intervening State will certainly lose all present or future claims in conflict with those rights. In this light, it does not seem tenable to argue that, unless the intervener participates on an equal footing with the original litigant States, it would derive an unreasonable benefit from its intervention without putting itself in any disadvantageous position

120. In this connection, I would like to reiterate my doubt as to whether the Chamber of the Court for the Land, Island and Maritime Frontier Dispute case was correct to state, in its 1992 Judgment on the merits, that

‘a State permitted to intervene under Article 62 of the Statute, but which does not acquire the status of party to the case, is not bound by the judgment in the proceedings in which it has intervened’ (ICJ Rep. 1992,p. 609).

Being unable to agree with the conclusion of this judgment, I took the view that

‘Nicaragua, as a non-party intervener, will certainly be bound by this Judgment in so far as it relates to the legal situation of the maritime spaces of the Gulf’ (ibid., p. 620).

I may add that to maintain the contrary would appear to suggest that an intervener under Article 62 should be free to adopt a less responsible position than an intervener under Article 63, and would [p 615] thus be given an advantage over the original parties. The mere fact that an intervener may arguably not be regarded as a party within the meaning of Article 59 cannot suffice to override the requirements of equity which are evident here. At the same time, it is important that any would-be interveners should know where they stand before applying for permission to intervene.

3. Case of the interpretation of the principles and rules of international law --impact of Article 63 upon Article 62

121. If an interpretation of a multilateral convention given by the Court is necessarily of concern to a State which is a party to that instrument, though not a party to the case, there seems to be no convincing reason why the Court's interpretation of the principles and rules of international law should be of less concern to a State. If, therefore, the interpretation of an international convention can attract the intervention of third States under Article 63 of the Statute, it may be asked why the interpretation of the principles and rules of international law should exclude a third State from intervening in a case.

Lack of jurisdiction is not a sufficient reason for preventing a State from intervening as a non-party in a principal case in which the application of the principles and rules of international law is at issue, for the interpretation given by the Court of those principles and rules will certainly be binding on the intervening State. What is more, as in the case of Article 63, the provisions of Article 59 do not in reality guarantee a State which has not intervened in the principal case any immunity from the subsequent application of the Court's interpretation of the principles and rules of international law.

122. I am not of course suggesting that such an intervention would fall within the meaning of Article 63 of the Statute. I am simply saying that such a type of intervention -- that is, non-party intervention in the case in which a jurisdictional link is absent, but the interpretation given by the Court is binding --was introduced under Article 63. If such a type of intervention is therefore possible, Article 62, if looked at in the light of Article 63, can be viewed as comprehending this form of intervention as well, providing that the interest of a legal nature is present. That is to say, intervention under Article 62 encompasses the hypothesis where a given interpretation of principles and rules of international law is sought to be protected by a non-party intervention. In this hypothesis, the mode of intervention may be the same as under Article 63, so that the third State neither appears as a plaintiff or defendant nor submits any specific claim to rights or titles against the original litigant States. I have in mind the Passage through the Great Belt case or the Jan Mayen case, as examples.

123. Objections may be raised that the States which may be [p 616] affected by the interpretation of such principles and rules by the Court will be without number and that, if an interpretation of the principles and rules of international law can open the door of the Court to all States as interveners, this will invite many future instances of intervention. This problem should be considered from the viewpoint of future judicial policy, and more particularly from the viewpoint of the economy of international justice. Yet this cannot be the reason why a request for intervention which is actually pending should be refused when the requesting State claims that its legal interest may be affected by the Court's rulings on the principles and rules of international law. The possibility of an increasing number of cases invoking Article 63 may likewise not be avoided. The fact that in the past Article 63 has been rarely invoked does not guarantee that the situation will remain unchanged in the future, if I take note of the pending case concerning the Application of the Genocide Convention. Thus the problem is related not only to Article 62, but also to Article 63.

However, unlike Article 63, dealing with the case of interpretation of an international convention, Article 62 comprises certain restrictions. Paragraph 2 of Article 62 provides that ‘[i]t shall be for the Court to decide upon this request’. This means that the Court has certain discretionary powers to allow or to disallow any requesting State to intervene in the litigation. Still more important is the restriction of paragraph 1 of Article 62. This paragraph requires the State requesting intervention to show that ‘it has an interest of a legal nature which may be affected by the decision in the case’. Thus any danger of expansive application of Article 62 will certainly be restricted by the Court's exercising its discretionary power, more particularly to determine whether the requesting State has such an interest.” (Oda, “The International Court of Justice viewed from the Bench (1976-1993)”, Recueil des Cours, Vol. 244,1993-VII, pp. 83-87.)

*

10. Having examined the institution of “non-party intervention”, I shall now turn to how that institution operates, and should operate in practice, under Article 62 of the Statute, the only provision in the Statute relating to “intervention”, which provides:

“1. Should a State consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene.

2. It shall be for the Court to decide upon this request.”

As I interpret it, this provision means that a State which has “an interest of a legal nature which
may be affected by the decision in the case” should be given a chance to participate either as a party (on the side of either the applicant or the respondent) or as a non-party in the discussion [p 617]on the merits by presenting its observations in writing and taking part in the oral proceedings in the merits phase of the case.

11. Where participation as a non-party should be permitted, which is the case here, it is not for the intervening State --which in the present case learned of the subject-matter of the dispute only through the Special Agreement of 31 May 1997 by means of which the dispute was brought to the Court -- to prove in advance that its interest will be affected by the decision in the case. Without participating in the merits phase of the case, the intervening State has no way of knowing the issues involved, particularly when it is refused access to the written pleadings. Rather, if a request for permission to intervene is to be rejected, the burden should be placed on the parties to the principal case to show that the interest of the third State will not be affected by the decision in the case.

The Court may in some cases uphold objections by the parties to the principal case showing “with a particular clarity” (the expression appearing in the Judgment, paras. 59 and 78) that the alleged interest of the intervening State is far removed from the subject-matter of the case. For example, where a State is situated far from the scene and has no historical or administrative connection with the parties, it can be shown in advance that that State has no interest in any territorial or boundary issues which will be affected. That is not the case here. The two islands in
issue lie close to North Borneo, although whether or not geographically and historically they are a part of North Borneo is a matter to be decided by the Court.

12. In fact, in the case of Equatorial Guinea’s intervention (in the case between Cameroon and Nigeria), the two parties to the principal case appear to have been unsure whether the intervening State’s interests would be affected by the decision in the case and thus did not oppose Equatorial Guinea’s Application for permission to intervene. The Court granted the request for permission to intervene solely because the parties to the principal case did not object -- but not, it is crucial to note, because of any view the Court might have held on the question of whether or not the interest of the third party would be affected. In that case, the Court made no statement on whether or not there was an interest of a legal nature that might be affected by the decision in the
case.

The question of whether, in fact, an intervening State does or does not have an interest of a legal nature can only be considered in the merits phase. After having heard the views of the intervening State in the main case, the Court may, after all, find in some cases that the third State’s interest will not be affected by the decision in the case. This is the meaning of “non-party
intervention” and this is quite different from another type of intervention in which a third State wishes to participate in the principal case on the side of the applicant State or of the respondent State to argue the subject-matter. This type of intervention also falls [p 618] within the purview of Article 62 of the Statute, as I mentioned in paragraph 8 above.

*

13. The present proceedings have been dealt with in a way widely at variance with the foregoing. The Philippines learned of the subject-matter of the dispute between Indonesia and Malaysia (in other words, the question of sovereignty over Ligitan and Sipadan) specified in Article 2 of the Special Agreement of 31 May 1997. The Philippines did not know, and still does not know, how the two Parties will present their position concerning sovereignty over the two islands and those positions may affect the Philippines interest. At best, the Philippines could speculate that its interests in North Borneo might be affected depending on what Indonesia and Malaysia will say in the principal case about the two islands but was certainly not in a position to ascertain which of the “treaties, agreements and any other evidence furnished by the Parties” would be used by them as the basis for requesting “[t]he Court . . . to determine . . . whether sovereignty over Pulau Ligitan and Pulau Sipadan belongs to the Republic of Indonesia or to Malaysia”.

As a result of the objections by Indonesia and Malaysia, the Philippines was refused access to the Parties’ written pleadings and thus was not (and still is not) in a position to know whether or not its interests may, in fact, be affected by the decision of the Court in the principal case. In seeking permission to intervene, all the Philippines could do, as it did in its Application, was to make known its claim to sovereignty in North Borneo, which may be affected by the decision in the case.

14. The burden is not on the Philippines but on Indonesia and Malaysia to assure the Philippines that its interests will not be affected by the Judgment the Court eventually renders in the principal case. Is it really reasonable -- or even acceptable --for Indonesia and Malaysia to require the Philippines to explain how its interest may be affected by the decision in the case, while they conceal from it the reasoning supporting their claims in the principal case? In this respect, I fail to understand the Court’s reasoning when it states that:

“a State which, as in this case, relies on an interest of a legal nature other than in the subject-matter of the case itself necessarily bears the burden of showing with a particular clarity the existence of the interest of a legal nature which it claims to have” (Judgment, para. 59).

and that

“the interest of a legal nature invoked by the Philippines in order to [p 619] be permitted to intervene in the case must be shown with a particular clarity, since it does not relate to the actual subject-matter of the case” (Judgment, para. 78).

In my view the Court seems to confuse this kind of intervention with that involving a request for
permission to intervene either as an applicant State or as a respondent State in the principal case.

15. I note with surprise, and some dismay, that Malaysia, in its “Observations on the Application for Permission to Intervene by the Government of the Republic of the Philippines” dated 2 May 2001, made reference at least 13 times to its own Memorial in the principal case and even referred twice to Indonesia’s Memorial, neither of which had been provided to the Philippines. In its “observations”, Malaysia raised objections to the Philippine Application for permission to intervene, commenting on “treaties, agreements and any other evidence” which, Malaysia simply speculated, the Philippines might rely on in contending that its interest might be affected. In fact, in referring to its interest in North Borneo, the Philippines in its Application of 13 March 2001 had merely alluded in very general terms to “treaties, agreements and any other evidence” and had not stated any more specific view on them.

In contrast, Indonesia was more prudent and made no reference whatsoever in its observations to either its own or Malaysia’s written pleadings. At the time it filed its Application for permission to intervene, and at least until the second round of oral pleadings, the Philippines could not have known how the respective claims of Indonesia and Malaysia to the two islands in question would relate to its own claim to sovereignty over North Borneo. In fact there was no basis, other than the Special Agreement of 31 May 1997 between Indonesia and Malaysia, on which the Philippines could even speculate on the position of Indonesia and Malaysia or the essence of their respective claims.

16. In the first round of the oral pleadings, the Philippines (which was required to make its presentation before either Indonesia or Malaysia), having been refused access to the written pleadings, referred to certain “treaties, agreements and any other evidence” that it speculated might be employed by the Parties to the principal case. In the two rounds of oral pleadings that followed the initial presentation by the Philippines, Indonesia and Malaysia, while still keeping the Philippines in the dark as to the content of those documents, argued freely on the relevance or
irrelevance to the principal case of those “treaties, agreements and any other evidence” referred to by the Philippines.

Having heard only the first round of the oral pleadings by Indonesia and Malaysia (which were presented after the Philippine first oral pleadings), the Philippines had a vague idea of the views taken by these two [p 620] States of the “treaties, agreements and any other evidence” to which it itself had initially referred in its first oral pleading. Furthermore, the Philippines could not be certain that Indonesia and Malaysia, in the oral pleadings, exhausted their arguments concerning the “treaties, agreements or any other evidence”. In fact, they confined themselves to commenting solely on those “treaties, agreements and any other evidence” referred to by the Philippines in its oral argument. The whole procedure in this case strikes me as being rather unfair to the intervening State. I believe that the argument concerning “treaties, agreement and any other evidence” could not, and should not, have been made until the Philippines had been afforded an opportunity to participate in the principal case, just as Nicaragua was given in the 1992 case before the Chamber.

I submit that all the arguments (expounded in the oral pleadings at public sittings held on 25-29 June 2001) on the merits of the “treaties, agreements and any other evidence” on the basis of which the Court will determine whether Indonesia or Malaysia has sovereignty over Pulau Ligitan and Pulau Sipadan should have been made in the merits phase of the principal case and that the Philippines should have been allowed to participate as a non-party, as Nicaragua and Equatorial Guinea were allowed to do in the two most recent cases involving intervention.

17. I do not believe that the Philippines had to convince the Court that “specified legal interests may be affected in the particular circumstances of this case” (Judgment, para. 93) or that the Philippines had to demonstrate to the Court “an entitlement to intervene in the pending case between Indonesia and Malaysia” (ibid., para. 94) before the Court could grant it permission to intervene. If the Court “remains cognizant of the positions stated before it by Indonesia, Malaysia and the Philippines in the present proceedings” (Judgment, para. 94), why has the Court not given the Philippines an opportunity to argue its case on an equal footing with Indonesia and Malaysia in the merits phase of the principal case?

The Parties to the principal case and the Court would have nothing to lose by allowing the Philippines to intervene as a non-party in the present case and, in particular, the legitimate interests of the Parties to the principal case would not be jeopardized, even if it becomes clear at the merits stage that the Philippine interest is not affected by the decision of the Court.

*

18. In conclusion, I fear that the Court has arrived at the present Judgment without properly appreciating the meaning of “non-party intervention” under Article 62 of the Court’s Statute. That concept has [p 621] greatly evolved in the Court’s jurisprudence over the past 20 years of its history, particularly since Nicaragua’s intervention in 1990 and that of Equatorial Guinea in 1999.

(Signed) Shigeru ODA. [p 622]


SEPARATE OPINION OF JUDGE KOROMA

Doubt about Court’s interpretation of “decision” in Article 62 to include “reasoning”. Such broader interpretation may prevent Court from performing judicial function with respect to particular case before it ¾ No compelling reason to adopt wider interpretation of Article 62.

1. Although I have voted in favour of the Judgment, I cannot, however, express unqualified adherence to some of the positions taken in the Judgment.

2. Article 59 of the Statute of the Court notwithstanding, under Article 62 of the Statute a State may seek to intervene in a matter before the Court if it considers that it has a legal interest which may be affected by the decision of the Court in a case before it. The raison d’être for a State so seeking to intervene under Article 62 is to ensure that its interest will not be affected or jeopardized by the decision of the Court in the dispute before it.

3. However, in construing “decision” in relation to “interest of a legal nature” in Article 62 of the Statute, the Court stated in paragraph 47 of the Judgment that “[t]he word ‘decision’ in the English version of this provision could be read in a narrower or a broader sense”. The Court adopted the broader reading stating that:

“the French version clearly has a broader meaning. Given that a broader reading is the one which would be consistent with both language versions and bearing in mind that this Article of the Statute of the Court was originally drafted in French, the Court concludes that this is the interpretation to be given to this provision. Accordingly, the interest of a legal nature to be shown by a State seeking to intervene under Article 62 is not limited to the dispositif alone of a judgment.”

Also in paragraph 60 of the Judgment, the Court stated that: “In order to make concrete its submission that it has an interest of a legal nature which might be harmed by the reasoning of the
Court in the forthcoming Judgment as to sovereignty . . .” (emphasis added).

4. With respect, I am afraid that what is at stake is more than just the rendition of the provision in one language or another; the matter is more one of substance, or at least more complex. From my perspective, even if the Court’s reading is not wrong, it is however not free from doubts or [p 623] difficulties, which may prevent the Court from carrying out its function of declaring the law in adjudicating a concrete dispute by giving due consideration to the issues before it, or may constrain it from giving interpretation to a legal instrument related to a concrete dispute before it for fear that such determination will come to haunt it in a prospective or future dispute yet to be
submitted to it. I do not think the Court should impose such burdens or constraints on itself as to
prevent it from making a proper determination or judgment of the issues involved in a case before it. As it is the function of the Court to declare the law in a specific dispute before it, it should not be deterred from so doing for fear that it might be asked to interpret the same instrument in another dispute that might be brought before it, when the facts and circumstances of that other dispute might be different. In the Continental Shelf (Libyan Arab Jamahiriya/Malta) case, where Italy had sought to intervene, the Court stated as follows in rejecting the Italian Application:

“the rights claimed by Italy would be safeguarded by Article 59 of the Statute . . . the principles and rules of international law found by the Court to be applicable, . . . and the indications given by the Court as to their application in practice, cannot be relied on by the Parties against any other State.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
there can be no doubt that the Court will, in its future judgment in the case, take account, as a fact, of the existence of other States having claims in the region . . . The future judgment will not merely be limited in its effects by Article 59 of the Statute: it will be expressed, upon its face, to be without prejudice to the rights and titles of third States.” (Application for Permission to Intervene, I.C.J. Reports 1984, pp. 26-27, paras. 42-43; emphasis added.)

Accordingly, every case should be judged on its merits, in the light of the facts and the applicable law. If the judgment (operative clauses) and the applicable principles and rules relied on in a case are limited by Article 59 to the parties to the dispute and will not affect third States, neither should the reasoning supportive of that judgment affect them. The justification (reasoning) of the Court’s decision, which may be considered obiter dicta, should not be put on the same level as the Court’s finding or directive (operative clauses).

5. Furthermore, it should be observed that the scope of the Court’s decision is defined by the claims or submissions of the parties before it, and the decision of the Court constitutes an embodiment of its findings in response to the submissions made by parties in a particular case. In
the case of an intervention, the would-be intervening State has to define its “interests of a legal nature” and the “object” of that legal nature has to be indicated in order for the Court to be in a position to judge whether the intervention is admissible. It is then for the Court to decide whether
or not an application for permission to intervene discloses an interest of [p 624] a legal nature which might be affected by a decision in the case. It therefore stands to reason that the procedure envisaged under Article 62 is intended to enable a State with a legal interest that may be affected by a decision of the Court to be allowed to intervene in a dispute before the Court, in order to preserve its interest. Here too, whether an application to intervene succeeds or not, the decision in that particular case cannot be considered res judicata for a State which was not a party to the dispute before the Court, and nor should the reasoning underlying the decision.

6. It is equally important that the fact of permission to intervene being granted or not should not prevent the Court from making a proper determination of the submissions in a specific case before it. The Court’s full interpretation or appreciation of the legal issues or instruments involved in a matter before it should not be constrained by virtue of the fact that it will be called upon to decide a similar case in the future involving different parties. While it is a postulate that the decision of the Court must be supported by its reasoning, of more immediate and major concern to a third State is how the Court’s “operative decision” in a case before it may impact on its interests. This is not to say that the Court’s reasoning should be of no interest or relevance to that State, but to interpret a “decision” as including “reasoning” might somehow stymie the Court in the performance of its judicial function in a particular case and place too onerous a burden on States by requiring them to be extra vigilant for fear of what the Court’s reasoning might be in a particular case. As noted earlier, the Court has stated that where a third State has an interest, not even its judgment has an erga omnes effect (Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to Intervene, I.C.J. Reports 1984, pp. 26-27, paras. 42-43). It should also be noted that additional protection for third parties is provided by Article 59 of the Statute of the Court, under which a decision of the Court “has no binding force except between the parties and in respect of that particular case”. Article 62, in my considered opinion, should therefore not be interpreted in such a way that it could lead to conceptual confusion or prevent the Court from properly discharging its judicial function in a case before it.

(Signed) Abdul G. KOROMA. [p 625]


DECLARATION OF JUDGE PARRA-ARANGUREN

Article 62 of the Statute refers to the dispositif, not to the findings or reasoning supporting the future Judgment of the Court in the main case.

Notwithstanding my vote for the operative part of the Judgment, I consider it necessary to state that, in my opinion, Article 62 of the Statute refers only to the dispositif part of the Judgment in the main case. The findings or reasoning supporting the future Judgment of the Court in the main case are not known at this stage of the proceedings. Therefore, it is impossible to take them into consideration, as the majority maintains (para. 47), in order to determine whether they may affect the legal interest of the State seeking for permission to intervene. Consequently, I cannot agree with other paragraphs of the Judgment which, after examining certain documents, conclude that the Philippines legal interest may not be affected by their interpretation.

(Signed) Gonzalo PARRA-ARANGUREN. [p 626]


DECLARATION OF JUDGE KOOIJMANS

Philippines must not only demonstrate how legal interest may be affected but also provide clarity about its nature and source -- Reluctance to address issues which are relevant for plausibility of claim ¾ Existence of legal interest insufficiently demonstrated.

Considerations of judicial policy -- Third-party intervention and consensual basis of jurisdiction -- Desirability of strict requirements for specification of legal interest.

1. I wholeheartedly agree with the Court’s finding that the Philippines has not discharged its obligation to convince the Court that specified legal interests may be affected in the particular circumstances of this case (paragraph 93 of the Judgment) and that consequently the Philippine Application for permission to intervene cannot be granted.

2. In my opinion the Philippines has convincingly demonstrated that it has a prima facie interest in the case between Indonesia and Malaysia concerning the sovereignty over Pulau Ligitan and Pulau Sipadan, two islands which are located off the coast of North Borneo (or the State of Sabah as it is nowadays called), to (part of) which the Philippines claims title. As its interest of a legal nature it has indicated “the appreciation by the Court of the Treaties, agreements and other evidence to be furnished by the Parties which have a direct or indirect bearing on the matter of the legal status of North Borneo”.

3. The Philippines contends that its interest would be affected were the Court to interpret these treaties and agreements as conferring title to the territory of North Borneo on Malaysia or as confirming such title. The Court, however, rightly concludes from the text of the various instruments and from the statements of Indonesia and Malaysia during the oral hearings in the
present phase of the proceedings that there is no evidence that the legal interest of the Philippines may be affected by a decision of the Court in the main case, since none of these instruments is a source of title over the territory of North Borneo. Nor does the Philippines assert that they do, with the exception of the 1878 Sulu-Overbeck grant which, however, did not include the two islands at issue in the case before the Court and is, anyhow, not relied on by either Indonesia or Malaysia as a source of title to Pulau Ligitan and Pulau Sipadan (paragraph 66 of the Judgment).

4. There is, however, another element which in my view deserves more attention than it has been given by the Court. In paragraph 60 of the Judgment it is stated that [p 627]

“the Philippines may not introduce a new case before the Court nor make comprehensive pleadings thereon, but must explain with sufficient clarity its own claim of sovereignty in North Borneo and the legal instruments on which it is said to rest” (emphasis added).

This requirement is in conformity with the objects of the intervention sought by the Philippines
viz., to preserve and safeguard its legal and historical rights to the territory of North Borneo and to inform the Court of their nature and extent. The Court, however, has not given a follow-up to the statement just quoted nor has it determined whether the Philippines has provided sufficient clarity about its own claim.
5. It is not contested between Indonesia and Malaysia, on the one hand and the Philippines, on the other, that there is a dispute between Malaysia and the Philippines concerning sovereignty over North Borneo (even if that dispute has been dormant for the last 20 years). In the 1963 Manila Accord, the three countries took note of the Philippine claim and agreed to exert their best endeavours to bring the claim to a just and expeditious resolution by peaceful means.

6. The fact that the existence of the claim is recognized does not, however, relieve the Philippines of the obligation to explain that claim with sufficient clarity and the legal instruments
on which it is said to rest, and I am not at all convinced that the Philippines has complied with that obligation.

7. It has repeatedly explained that title to North Borneo under the 1878 Sulu-Overbeck agreement remained with the Sultan of Sulu uninterruptedly until 25 November 1957, when the grant was terminated by the Sultan, and thereafter until 1962 when the heirs of the Sultan transferred the title to the Philippines. It was explicitly stated by counsel for the Philippines that the Philippines own title dates back no further than 1962 and is not derived from its legal predecessors, Spain and the United States of America.

8. Although explicitly invited to do so by counsel for Malaysia, the Philippines, however, did not provide sufficient clarity about a number of highly relevant issues; for instance, how did the Sultanate of Sulu survive a number of events, which took place at the end of the nineteenth and in the first half of the twentieth century, as an entity is able to hold sovereign rights? What was the legal nature of the instrument through which sovereignty was transferred to the Philippines? How could the Philippines express a legal interest in or even manifest a claim to North Borneo before 1962, the year it allegedly obtained its title?

9. Now, it may be said that such issues should not be discussed during the application proceedings, but that they belong to the merits phase, once the intervention is granted. That may be in so far as such questions amount to refutations of the claim. But in my opinion, this is not [p 628] the case as far as the questions just mentioned are concerned, even if they have been formulated by Malaysia, the opponent of the Philippines in the dispute over North Borneo. These questions serve to provide the Court with sufficient clarity about the claim and that clarity is needed “to make concrete its submission that it has an interest of a legal nature which might be harmed by the reasoning of the Court”, to quote again paragraph 60 of the Judgment; they, therefore, properly have to be answered during the application phase of the procedure, since they do not bear on the soundness of the claim, but on its plausibility.

10. The failure to explain with sufficient clarity its own claim and the underlying legal instruments is therefore an argument which is additional to the Court’s finding that the treaties and agreements furnished by the Parties either form no part of the arguments of the Parties in the main case or do not bear on the issue of retention by the Sultanate of Sulu of sovereignty over North Borneo; in combination, both lead to the conclusion that the Philippines has not been able to demonstrate that its legal interest may be affected by the Court’s decision.

11. In my opinion it would have been preferable if the Court had explicitly stated that the Philippines has not explained with sufficient clarity its own claim in spite of its purported intention to inform the Court of the nature and extent of the rights which may be affected by the Court’s decisions. This point is not merely of theoretical importance, but it also has practical implications

12. Fear is sometimes expressed that a liberal policy of granting permission to intervene might encourage States to attempt to intervene more often, which might lead to a situation at odds with the system of consensual jurisdiction; moreover, the risk of potential interventions might make States parties to a dispute less inclined to conclude a special agreement to submit that disput to the Court.

13. This line of reasoning is certainly not without ground; it seemingly, however, overlooks the fact that the discretion conferred upon the Court by Article 62, paragraph 2, of the Statute is not
a

“general discretion to accept or reject a request for permission to intervene for reasons simply of policy. On the contrary . . . (the Court’s task) is to determine the admissibility or otherwise of the request by reference to the relevant provisions of the Statute.” (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene, Judgment, I.C.J. Reports 1981, p. 12, para. 17.)

Judicial policy alone therefore cannot allay the fears just mentioned.

14. The all-important criterion mentioned in Article 62, paragraph 1, of the Statute is the legal interest. In this respect the legal interest itself is [p 629] as important as the risks to which it may be exposed by the Court’s decision if the intervention is not granted, and this is clear from the Court’s jurisprudence in previous cases. With all due respect, I have the impression that in this case the Court has concentrated too much on the second aspect.

15. In cases of requests for permission to intervene, the alleged legal interest will often not be a separate legal claim of the would-be intervener, whether that claim reflects an interest in the subject-matter of the main case or not. Parties to a dispute will, however, be extra-sensitive with
regard to potential interveners which present as their legal interest a claim against one or both of
them. In such cases, the Court should, for reasons of judicial policy, already give special attention to the plausibility of the claim and thereby to the specificity of the legal interest. In this respect, it is highly relevant that the Court has explicitly stated that a State which relies on an interest of a legal nature other than in the subject-matter of the case itself necessarily bears the burden of showing with a particular clarity the existence of the interest of a legal nature which it claims to have (paragraph 59 of the Judgment).

16. In the present case the Philippines has, in my opinion, failed to make its claim sufficiently plausible by not providing answers to highly pertinent questions which were put during the oral proceedings. I regret that the Court has not explicitly said so. A State which wishes to intervene should know that, in order to be allowed to do so, it must establish with fully convincing arguments the legal interest which may be affected by the Court’s decision.

(Signed) P. H. KOOIJMANS. [p 630]


SEPARATE OPINION OF JUDGE AD HOC WEERAMANTRY

Confidentiality of pleadings.

1. While agreeing with the decision of the Court I would like to take this opportunity to examine the much neglected question of intervention in international law, in the broader context of the objects and range of the international adjudicatory function. I do so because this case raises some important and unsettled issues relating to intervention, a subject which must be expected to assume more importance in the international jurisprudence of the future. The closely interknit global society of tomorrow will see a more immediate impact upon all States of relations or transactions between any of them, thus enhancing the practical importance of this branch of procedural law.

This opinion will first consider some of the broader considerations raised by intervention proceedings, and thereafter examine some particular legal problems raised by this Application.

Dearth of judicial authority in relation to international intervention procedure

2. Unfortunately the decided cases are all too few to offer any coherent body of judicial authority in this important area of procedural law. In fact it needed around 70 years of exercise of jurisdiction by the Permanent Court of International Justice and the International Court of Justice
before permission to intervene in any case was granted under Article 62. The only instance where the Permanent Court handed down a decision upon an application lodged under Article 62 of the Statute was the [p 631] S.S. “Wimbledon”FN1 but the applicability of that Article was not considered because the Application was supplemented by the invocation of Article 63, thus rendering unnecessary a consideration of Article 62FN2.

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FN1 P.C.I.J., Series C, No. 3 and Series A/B, No. 5.
FN2 The two other cases where intervention was sought were Eastern Greenland (P.C.I.J., Series C, No. 67, pp. 4081-4082 and 4118-4119) where Iceland’s request to intervene was withdrawn, and Acquisition of Polish Nationality (P.C.I.J., Series B, No. 7) where Rumania, which had submitted a request in advisory proceedings to intervene under Article 62 was advised that Articles 62 and 63 could be invoked only in contentious proceedings.
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3. The case concerning Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) (1990) was thus the first case in the history of the two Courts in which a State was accorded permission to intervene (at the instance of Nicaragua) under Article 62 of the StatuteFN3. Since then the body of case law on this topic has continued to be extremely slender, with no other application having been successfully maintained until 1999 (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening). Indeed so thin was the line of judicial authority on this topic at one stage in its history that fears were expressed at the highest
judicial level regarding its very survivalFN4.

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FN3 I.C.J. Reports 1990, p. 135-137.
FN4 Judge Ago in Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to Intervene, Judgment, I.C.J. Reports 1984, p. 130 observed:
“The decision on the present case may well sound the knell of the institution of intervention in international legal proceedings, at any rate of this institution as it was intended and defined by the relevant texts. After this experience which, to say the least, does not suggest a favourable attitude towards this form of incidental procedure . . . this avenue, which was theoretically still open, towards a wider and more liberal conception of international judicial proceedings, will probably fall into oblivion.”
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4. This picture is rather different from the high expectations entertained regarding intervention in the early days of international adjudications, when a magisterial figure in the law of international arbitration, John Bassett Moore, could write

“The right of intervention given by the Statute may prove to be a means of inducing governments, be they great or small, to come before the Court, thus showing their confidence in it and enlarging its opportunities to perform a service for the world.FN5”

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FN5 John Bassett Moore, ”The Organization of the Permanent Court of International Justice (1922), 22 Columbia Law Review, pp. 497-507.
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What might well have been expected, at the time the Court’s Statute was adopted, to grow into a substantial branch of international jurisprudence, has thus turned out to be extremely limited in its growth. This reinforces the need to re-examine its contours and potential at a time when the interlinkages between State activities wherever transacted are [p 632] becoming matters of increasing interest and concern to other members of the community of nations.

Against this background it becomes necessary to examine some of the general principles applicable to intervention with a view to extracting guidelines from them which will be of overall utility in the difficult task devolving upon the Court of assessing the merits of each individual application that may come before it.

5. Amidst this paucity of decided cases, even such decisions as there are do not readily yield sufficient general principles to be of material assistance to parties contemplating the possibility of intervention, as the law on the topic has developed thus far on a purely ad hoc basis. Since coherent threads of connecting principle are difficult to extract from the decided cases as they stand, the search for guiding principles within the overarching framework of the objects and purposes of the Court’s intervention procedure is a matter of high priority in this era of increased
interrelatedness of international concerns.

The Court’s wide discretion under Article 62

6. Such an examination becomes specially important in view of the wide discretion the Court enjoys under Article 62 of its Statute, with no guidelines indicated for the exercise of that discretion. Indeed the subject of intervention has been described as “perhaps the most difficult of
all those involved by the Rules”FN6 and the judges when considering the matter in 1968 were able to identify no less than seven substantive as opposed to procedural points which were left unresolved under Article 62.

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FN6 Rules Revision Committee (1968): Report of the Committee (GEN 68/23quater), p. 306 (hereinafter Rules Revision Committee 1968).
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7. Some of these points were so contentious that when the judges of the Permanent Court considered them in 1922FN7 the Court “was completely divided into two camps” on some of these issues and it was decided that

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FN7Series D, No. 2, pp. 86-97.
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“Having regard to these divergent views, there was agreement in the Court not to prejudge the serious questions raised by the right of intervention and to avoid interpreting the Statute; concrete questions could be resolved as and when they presented themselves.”

Not much has occurred since then to clarify these issues, the governing principles of which thus remain as unclear now as they were then.

8. Contrary to the expectations of 1922 many questions involving the application of Article 62 remain largely unresolved owing to the lack of decisions upon the subject. Not the least of the areas which subsequent [p 633] case law has failed to illuminate is that concerning the problems and principles associated with the exercise of the Court’s discretion under Article 62.

9. As Judge Altamira observed in the 1922 discussionsFN8, when Article 62 was originally drafted, a regime of universal jurisdiction for all States ipso facto and for all disputes of a legal character was envisaged. Hence an intervening State would automatically be subject to the Court’s jurisdiction. It was only later that the concept of compulsory jurisdiction was abandoned and the optional clause system took its place, thus leaving the door wide open for different interpretations of Article 62.

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FN8 P.C.I.J., Series D, No. 2, p. 89.
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“Hence one school of thought in the Permanent Court felt that a jurisdictional condition ought to be read into Article 62; but the other objected that this would involve importing a limitation which Article 62 did not, on its language, require.”FN9

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FN9 Rules Revision Committee 1968, p. 310.
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The present case is one which highlights this lacuna in the Court’s jurisprudence.

10. It is important to our discussion to note however, as Rosenne points outFN10, that the retention of Article 62 despite the abandonment of the principle of compulsory jurisdiction was not due to inadvertence or carelessness as is sometimes supposed, but was a calculated and deliberate decision as indicated by the report of 27 October 1920 by Leon Bourgeois to the Council of the LeagueFN11. Thus full effect must be given to it, as it is an integral statutory provision which cannot be whittled away by interpretationFN12.

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FN10 Rosenne, Intervention in the International Court of Justice, 1993, pp. 27-28.
FN11 Report presented by the French representative, Mr. Leon Bourgeois and adopted by the Council of the League of Nations at its meeting at Brussels on 27 October 1920. Documents concerning the action taken by the Council of the League of Nations under Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent Court, p. 50.
FN12 See generally Myres S. Mc Dougal, Harold D. Lasswell and James C. Miller, The Interpretation of International Agreements and World Public Order: Principles of Content and Procedure, pp. 156 ff.
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Interrelationship between procedural and substantive law

11. It enhances the importance of this subject to note that although it may on first impression appear to relate to a merely procedural and incidental matter, it is closely intertwined with substantive law and its development. This was well illustrated in the first case to come before the Court under Article 62 the case of Fiji’s attempted intervention in the case between Australia and France relating to nuclear testing. Doubts [p 634] were expressed at that time on the question whether atmospheric damage through nuclear testing constituted an interest of a legal nature. International environmental law has progressed so far since then as to render incontestable that this is an interest of a legal nature, thus effecting a change in procedural consequences through a change in substantive law. Numerous other areas of international activity can develop similarly in the future.

12. Just as substantive law can thus interact with procedural law, so also can procedural law affect substantive law, as we increasingly see in the field of human rights, where procedures such as due process cross the border between substance and procedure to become substantive rights themselves. So also, among States such phenomena as transborder data flow, international terrorism and environmental protection easily cross over from the realm of procedure to that of substance and the lack of clarity on matters of procedure can adversely affect substantial State rights and their enjoyment.

Indeed intervention affords an example par excellence of the celebrated observation that substantive law is often secreted in the interstices of procedure. The subject is therefore one of special importance, not merely in the sphere of procedure but in the sphere of substantive law as well.

Interrelationship between domestic and international law relating to intervention

13. In the context of the paucity of international legal decisions on the subject, any search for governing principles must draw heavily upon comparisons and contrasts with intervention principles in domestic legal systems. My contact with the latter leads me to conclude that this process of comparison and contrast can throw much light on the jurisprudence relating to international intervention procedures especially as they reveal some important lacunae in the international arena which need attention as indeed this case demonstrates. Among the areas where this process could prove useful are the determination of what constitutes a legal interest, the considerations that operate in favour of permitting intervention, the object of the intervention and the exercise of the discretionary power of the Court. It is important to seek out the reasons why a branch of vigorous activity in domestic law, which has contributed substantially to the development of domestic jurisprudence, should be so cramped and ineffectual in international jurisprudence. The process of comparison may well yield some insights which might reinvigorate this important procedural mechanism in the field of international adjudication. [p 635]

14. There is indeed much to be said for the view that intervention plays an even more significant role in international than in domestic litigation.

“It is obvious that the intervening State has a strong interest in influencing the outcome of a judicial precedent which would be likely to have a favourable or unfavourable impact upon its claims. And it is exactly this strong interest and the particularity of the I.C.J. as the World Court which give to the institution of intervention in International Law a different and larger dimension than that in Internal Law.”FN13

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FN13 Anna Madakou, Intervention before the International Court of Justice, Memoire presente en vue de l’obtention du diplôme, Institut Universitaire des Hautes Etudes Internationales, Geneva 1988, p. 14.
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One must of course constantly bear in mind the consensual framework of international litigation, which is a considerable distinguishing factor so far as questions of jurisdiction are involvedFN14.

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FN14 See Rosenne’s note to this effect in Law and Practice of the International Court of Justice, 1964, p. 216.
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Comparisons and contrasts between domestic and international intervention

15. There are, as is to be expected, noteworthy differences between intervention in domestic and international legal procedures but the rationale underlying domestic systems offers some important overarching perspectives. In recognition of the importance of this process of comparison, a comprehensive compilation by Professor Walter J. Habscheid of the principles of intervention in various domestic systems was tendered to the Court in the Continental Shelf (Tunisia/Libyan Arab Jamahiriya)FN15 case. That compilation can still be consulted with profit, for it surveys intervention procedure in the Romanist, Germanic, Anglo-Saxon and socialist families of legal systems in a wide variety of national jurisdictions. On the basis of this survey it draws certain general conclusions relating to the philosophy and underlying rationale of intervention procedure which cannot be without value in international intervention jurisprudence. The ratio legis of intervention as summarized in this study covers several aspects, some of which are included in the analyses which follow.

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FN15 See Volume III of the Pleadings in that case pp. 459-484. The compilation is titled Walter J. Habscheid, Les conditions de l’intervention volontaire dans un procès civil, (hereinafter Habscheid), pp. 50-51.
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16. These considerations need to be taken into account, mutatis mutandis, in deciding intervention in international law as well. They are intensely relevant to the Court’s exercise of its
discretion in this case and [p 636] to the wide powers the Court enjoys under Article 62 of the Statute and Article 84 of the Rules of Court.

The observations that follow are limited to intervention under Article 62 of the Statute. Intervention under Article 63 involves many other considerations not pertinent to applications under Article 62.

17. Intervention procedure both in domestic and international law is based, inter alia, on the need for the avoidance of repetitive litigation as well as the need for harmony of principle, for a multiplicity of cases involving the same subject-matter could result in contradictory determinations which obscure rather than clarify the applicable law.

18. It is an interesting question whether the principles relating to intervention, mutatis mutandis, are part of the general principles imported into the corpus of international law by Article 38 (i) (c) of the Statute. If so, those general principles can be invoked for clarifying the terms of Article 62, which by common agreement is neither a comprehensive nor a clearly formulated provision. Such considerations constitute an additional reason for a study of the principles of intervention in domestic law. International law would disregard the insights obtainable from domestic law in this sphere only at cost to itself.

19. The various aspects of comparison and contrast set out below have much relevance to the exercise of the Court’s discretion in the present case. They involve, inter alia, considerations of judicial policy. It is true, as the Court observed in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene (Judgment, I.C.J. Reports 1981, p. 12, para. 17), that Article 62, paragraph 2, of the Statute does not confer on the Court “any general discretion to accept or reject a request for permission to intervene for reasons simply of policy”. Yet such factors, when considered along with the particular circumstances of the case, can still assume relevance and importance. Indeed, Judge Schwebel indicated that the Court might reach a certain conclusion for “significant considerations of judicial policy” (p. 35) and Judge Oda likewise referred to “the viewpoint of future judicial policy” and “the viewpoint of the economy of international justice” (p. 31) These considerations of matters of policy were viewed by Judge Jessup in a note in the American Journal of International Law as “important indications” of a judicial approach to these questionsFN16. An examination of such policy considerations is thus not only legitimate but necessary for understanding the operation of Article 62, paragraph 2, of the Statute.

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FN16 AJIL 75, 1981, p. 904.
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[p 637]
A. Policy considerations in favour of intervention

20. There are several factors which would incline the Court towards permitting an intervention if a party should be able to demonstrate an “interest of a legal nature” in terms of Article 62.

(a) Factors common to domestic and international litigation

--From the Court’s point of view there is economy of justice, enabling the Court to dispose in one case of disputes that might otherwise require two or more separate cases.
--From the intervener’s point of view it is offered an opportunity, although not already party to
the litigation, to protect its rights within the context of the existing litigation without having to
institute a separate action for this purpose.

--From the community’s point of view there is a public interest in disposing of as much controversy as possible in the least timeFN17: Interest rei publicae ut sit finis litium.

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FN17 Atlantis v. United States, 379 F. 2d, 824 cited by Habscheid, op. cit., p. 480.
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-- In contentious litigation in both domestic and international forums the court gains its factual information from the material placed before it by the parties. Parties place before the Court information pertinent to their respective cases. The Court does not necessarily have the whole picture of the setting in which the dispute takes place. It may well be that some circumstances material to the whole proceeding are consequently left out. Thus it enables the Court to be possessed of a fuller background of information relating to the subject-matter of its decision
.
-- “Third parties furnish elements of law and fact; this insures that the decision will conform to the truth, and therefore with justice, so that the authority and credibility of justice do not suffer.”FN18

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FN18 Habscheid, op. cit., pp. 479-480.
---------------------------------------------------------------------------------------------------------------------

-- Parties may even act in collusion, against a third partyFN19.

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FN19 Santiago Torres Bernerdez, “L’intervention dans la procedure de la Cour Internationale de Justice”, Recueil des Cours, V. 256, 1995, pp. 193-457 (hereinafter Torres Bernerdez), p. 226.
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--There is an avoidance of a risk of contrary judgments on the same subject-matter.

--A second judge will take a first decision into considerationFN20, especially if the decision
introduces changes into the applicable legal doctrineFN21.

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FN20 Habscheid, op. cit., p. 480.
FN21 Torres Bernerdez, p. 226.
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[p 638]

--The same judge would be even more inclined to follow a previous decisionFN22.

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FN22 Habscheid, op. cit., p. 480.
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--There is an avoidance of needless repetitive judgments.

--It enables the Court to deliver a more effective and harmonious judgment, having taken into account the direct and indirect interest of all parties concerned.

(b) Factors peculiar to international litigation

-- The drafting history of Article 62 clearly shows an intention to enable intervention notwithstanding the rule that judgments of the Court are only binding inter partes.

--The role of the International Court of Justice reaches beyond mere resolution of disputes towards comprehensive conflict prevention.

-- “The great persuasive authority (as declarations or expositions of the law) which the decisions of the Court normally possess, with a resulting influence, at least de facto, on the legal interest of all States.”FN23

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FN23 Fitzmaurice, “The Law and Procedure of the International Court of Justice, (1951-1954): Questions of Jurisdiction, Competence and Procedure” (34 BYIL 1958, p. 126.
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--The International Court plays a dual role as court of first instance and court of last resort. As court of first instance its findings or assumptions on questions of fact have a finality which domestic courts do not enjoy. This makes it doubly important that its findings of fact be based on as complete a picture as possible.

-- In international law, the International Court of Justice tends to use past decisions as precedentFN24 and, in any event, the Court may not annul its decisions. As Judge Jennings put it in the Continental Shelf (Libyan Arab Jamahiriya/Malta) case, “the slightest acquaintance with the jurisprudence of this Court shows that Article 59 does by no manner of means exclude the force of persuasive precedent”FN25.

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FN24 Torres Bernerdez, p. 227, citing Judge Jennings in Continental Shelf (Libyan Arab Jamahiriya/Malta),Judgment, p. 157.
FN25 Judgment, I.C.J. Reports 1984, p. 157.
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-- Only parties to a dispute may request interpretation or revision of a decision by the International Court of Justice (a procedure similar to the French tierce opposition does not exist)FN26.

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FN26 Torres Bernerdez, op. cit., p. 228.
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[p639]
-- In international law, a third party may not be in a position to sue in order to protect its rightsFN27.

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FN27 Op. cit., p. 228.
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B. Policy considerations against intervention

21. Considerations which may operate against intervention being granted include:

--States may tend to avoid referring disputes to the Court if they fear that third States may interfere with the proceedings by intervention.

-- It could give States a facility to achieve indirectly by way of intervention what they cannot achieve directly, unless there is the requirement of a jurisdictional link.

-- “International law in its historical evolution has shown a general reticence towards third party
interference in the judicial (or arbitral) settlement of bilateral disputes.”FN28

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FN28Shabtai Rosenne, Intervention in the International Court of Justice, 1993, p. 190.
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--“If an unrestrained right of intervention should be permissible on the international plane, it would seem that nearly every third State would be able to identify some ‘interest’ in any international dispute.”FN29

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FN29V. S. Mani, International Adjudication: Procedural Aspects, 1980, p. 250.
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-- The fact that the rights of third States are protected by the rule that the decisions of the Court
are binding only inter partes.

--A State may see an advantage to itself which has been described in the literatureFN30 as a “free ride”, namely a chance to submit arguments while “it would not be submitting its own claims to decision by the Court nor be exposing itself to counter claims”FN31. In other words it would be able to enjoy the benefits of entering the proceedings without assuming the obligations of a party to the case within the meaning of the Statute.

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FN30See Anna Madakou, Intervention Before the International Court of Justice, 1988, p. 83.
FN31Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene, Judgment, I.C.J. Reports 1981, pp. 19-20.
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--The private suitor has an interest in having no third party meddle with his suitFN32.

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FN32Habscheid, op. cit., p. 480, citing Atlantis v. United States of America, 379 F 2d, 824.
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-- The procedure could in effect be used to prejudge the merits of the intervener’s claim against
one of the parties to the case but in relation to a different dispute which is not before the Court.
This was a basis for the Court’s refusal to grant Malta’s Application for intervention in the case
first referred to.

--There may be room for using the procedure of intervention to obtain what may in effect be a “quasi-advisory opinion” in the sense that the[p 640]intervening State has the opportunity of asking the Court to make some pronouncement or observation bearing on its rights which, while not being a judgment on its own claims, in effect expresses an opinion directly or indirectly concerning them. Whether such an option was within the intent of the framers of Article 62 is open to doubt.

--The Court, while being conscious that parties may be discouraged from litigation by the possibility of an unwanted intrusion of third parties into the case, would not neglect its responsibilities as custodians of justice for the entire international community.

--Intervention may not be necessary because it would be possible for the Court, “while replying in a sufficiently substantial way to the questions raised in the Special Agreement” to take into account the interests of other States as well, as indeed the Court said it would in the case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to InterveneFN33.

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FN33I.C.J. Reports 1984, pp. 25-26.
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-- In the Legal Status of Eastern GreenlandFN34 case, the Permanent Court observed

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FN34P.C.I.J., Series A/B, No. 53, p. 46.
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“Another circumstance which must be taken into account by any tribunal which has to adjudicate upon a claim to sovereignty over a particular territory, is the extent to which the sovereignty is also claimed by some other Power.”

This observation, cited with approval by this Court in the Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to Intervene case35, would offer some protection to third States and lessen the need for intervention, but it does not, with respect, give much satisfaction to a party who is unable to place before the Court the material on which it relies in support of its claim.

--The Court does not decide questions of title “in the absolute” but “has to determine which of the Parties has produced the more convincing proof of title”36. This is a consequence which follows from the adversarial rather than the inquisitorial nature of the proceedings before the Court. Its decision does not therefore foreclose the issues in which the third State is interested.

All of these could in one way or another influence a court against granting an application for intervention. In varying degrees they may assume relevance in the particular circumstances of each case, having [p 641] regard to the wide discretion the Court enjoys on the grant or refusal of an application for intervention.

C. Differences between domestic and international intervention procedures

22. The differences between domestic and international procedures include the following:

--First of all it needs to be observed that domestic intervention law allows of two forms of intervention --compulsory and voluntary. The former, based as it is on the domestic court’s compulsory jurisdiction over its subjects, does not have its counterpart in international law.

-- International relations are so complex and far-reaching that even though a particular judgment may not be binding upon a State it may still have repercussions on its immediate interests, as where nuclear testing may affect neighbouring States.

--If a requirement of a jurisdictional link be imposed, States which will obviously be affected would not necessarily have the capacity to intervene, which would be almost taken for granted in a corresponding domestic situation. Since the question of a jurisdictional link does not arise in the case of domestic litigation in view of its compulsory nature, there is here a hiatus in the fabric of international justice. This can have repercussions of varying degrees of intensity, depending upon the closeness of another dispute to the issues determined by the case in hand.

-- If a requirement of a jurisdictional link be imposed, numerous situations could arise where a State would be prevented from asserting its position on matters important to itself, e.g., the

35Judgment, I.C.J. Reports 1984, p. 26.
36Ibid., p. 27, quoting language of the International Court of Justice used in the case Minquiers and Ecrehos,
Judgment, I.C.J. Reports 1953, p. 52.

interpretation of a treaty to which it is not a party, which interpretation once given by the International Court would tend to be followed even in disputes between other parties.

-- The pre-eminent position of the International Court, situated as it is at the apex of the international judicial structure, attracts special recognition to its pronouncements, even in matters indirectly related to the particular dispute before the Court. This situation does not arise to the same degree in domestic litigation.

-- In international litigation, where a certain confidentiality attaches to the pleadings of the original parties, the prospective intervener is under a handicap in relation to formulating its intervention. This is a provision that can operate harshly against such an intervener who to some extent has to work in the dark. Domestic law does not in general impose such a limitation, as the pleadings of both parties would be easily obtainable. This aspect assumes special importance in a case such as the present.

-- The question of a consensual link does, of course, arise in arbitration [p 642] proceedings but an important distinction must be made here between determinations of the International Court and arbitral awards. The latter are totally without effect upon non-parties while the former, despite the inter-parties rule, do affect non-parties owing to the weight and authority attaching to decisions of the Court, especially on matters of law.

-- As already observed, the role of the International Court necessarily comprises not merely the settlement of the immediate dispute before it, but also the development and clarification of international law. This responsibility weighs particularly heavily on the International Court. This is to some extent offset by the principle that a “legal interest” under Article 62 does not cover an interest merely in clarifying or developing the law. Yet, while resolving the immediate dispute before it, the International Court needs also to take a somewhat wider perspective than a domestic court.

-- A possible (though debatable) further difference is that domestic courts can view the disputes before them through narrow lenses focused exclusively on the two parties and the immediate dispute, excluding a vision of the wider landscape beyond. An international court cannot afford to do this, least of all the International Court of Justice. As already observed, the International Court of Justice is obliged, while adjudicating upon the rights of the two immediate parties, to have regard to the rights of other States even though they may not be parties to the dispute. In the Monetary Gold case for example, a third party’s -- Albania’s -- rights needed to be protected even though that State was not a party and did not request to interveneFN37 in litigation to which several other States -- Italy, United States of America, France, the United Kingdom -- were parties. In such a case in domestic litigation, the court would perhaps have compulsorily joined Albania. In that case, the Court had necessarily to protect Albania’s interests which were the very subject of the litigation.

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FN37 I.C.J. Reports 1954, p. 32.
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-- Another important difference is that the International Court does not merely resolve the immediate dispute in hand but plays a role in preventive diplomacy and comprehensive conflict resolution. Sir Robert Jennings as President of the Court stressed this role of the Court in his report to the General Assembly on 8 November 1991FN38, when he observed that the procedure of the Court was

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FN38 I.C.J. Yearbook 1993-1994, p 218 at p. 220.
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“beginning to be seen as a resort to be employed in a closer relationship with normal diplomatic negotiation. No longer is resort to the International Court of Justice seen, to use the traditional [p 643] phrase, as a ‘last resort’ when all negotiation has finally failed.
Rather, it is sometimes now to be seen as a recourse that might usefully be employedat an earlier stage of the dispute”FN39.

------------------------------------------------------------------------------------------------------------
FN39See also I.C.J. Yearbook 1991-1992, p. 211 for a previous address by Sir Robert Jennings to the General Assembly to the effect that resort to the Court should be seen “as an integral part of the work of preventive diplomacy in the United Nations”.
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This can well have repercussions on its procedure and the interpretation of its procedural rules,
especially in regard to intervention.

23. These are some of the background factors that lie behind the exercise by the Court of its discretion under Article 62. The exercise of this extremely wide discretion involves the delicate balance of a series of considerations which are not always articulatedFN40 and assume varying degrees of importance in the context of each particular case. Their enumeration could be of assistance both in the evaluation of particular cases and in the general development of this important branch of law.

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FN40 The considerable academic literature on the inarticulate premises of judicial reasoning becomes relevant here. For a basic reference see Julius Stone, Legal System and Lawyers’ Reasonings, 1964.
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I shall now proceed to consider some of the specific issues that arise in this case.

1. The problem of a jurisdictional link

24. The Court’s jurisdiction is consensual. This distinguishes international from domestic jurisdictions.

(i) Tension between Article 62 of the Statute and the consensual principle

25. Despite the consensual basis of the Court’s jurisdiction and despite the principle that the Court’s judgment is binding only between the parties, the Statute finds a place for Article 62 which states:

“Should a State consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene.”

Whether this provision was deliberately retainedFN41 or not, the fact is that the Statute expressly
provides for intervention without any consensual restrictions being imposed upon it.

---------------------------------------------------------------------------------------------------------------------
FN41 See supra, para. 10.
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26. There are no words in Article 62 indicative of an intent to restrict the right to intervene only to States which have already submitted to the jurisdiction. [p 644]

One way of looking at the matter is to assume that when a party so seeks to intervene, it is implicitly submitting to the Court’s jurisdiction, thereby becoming subject to any orders the Court may make.

Another approach is to consider Article 62 to be an exception to the usual jurisdictional rule. The framers of the Court’s Statute could well have laid down a jurisdictional link as a precondition to the right to intervene, but they chose not to do so. Consent could be viewed as necessary where the intervener seeks to become a party, but not otherwise.

(ii) Legislative history of Article 62

The legislative history of Article 62 throws some light on whether a jurisdictional link was integrated into the elements necessary for an intervention.

The concept of intervention in international proceedings was first addressed in the Draft Regulations for International Arbitral Procedures of the Institut de Droit International of 28 August 1875. Article 16 of those Regulations provided that “[t]he voluntary intervention of a third party is admissible only with the consent of the parties that have concluded the compromis”.

This draft quite clearly excluded interventions where the jurisdictional link was lacking andenvisaged no departure from the consensual principle even in interventions.

It was however a draft intended for use in arbitral proceedings, which are strictly consensual, as opposed to judicial proceedings by a court vested with some measure of international authority,
which is recognized by all nations.

Matters progressed a step away from intervention being confined only to parties admitted with the consent of the principal litigants, when Article 56 of the 1899 Hague Convention provided that where there was a question as to the interpretation of a convention to which Powers other than those in dispute are parties they should be able to intervene.

The same principle was repeated in the 1907 Convention. These advances were still confined to the interpretation of a convention -- the situation covered by Article 63 of the Statute of the Court.

The next steps in the history of international intervention occurred through Article 62 of the Court’s Statute which in its terms permitted intervention for the first time by third parties in cases other than the interpretation of a convention to which they were parties.

At the meeting of the Advisory Committee of Jurists (Proceedings of the Committee, 16-24 1920) in 1920 there was a conscious effort to widen the circle of possible interveners.

Lord Phillimore suggested a draft under which a third State which con-[p 645]sidered that a dispute submitted to the Court affected its interests may request to be allowed to intervene and that the Court shall grant permission if it thinks fit.

Mr. Fernandes agreed with this proposal but sought to make the right of intervention dependent upon certain conditions, such as that the interests affected must be legitimate interests.

The President (Baron Descamps) thought the solution of the question of intervention should be drawn from the common law, and suggested a draft enabling a State to intervene if it considered
that its rights may be affected by a dispute.

Mr. Adatci suggested replacing the word “right” by the word “interest”.

Thereafter, a draft of the present Article was submitted by the President and this formula was adopted. Earlier drafts regarding international proceedings, such as the Institut’s draft of 1875 which expressly make voluntary intervention possible only with the express consent of the parties to the compromise, were no doubt available as models from which to make a choice but no such qualification was imposed.

Throughout this discussion there was no reference to the need for a jurisdictional link.

Hudson has drawn attentionFN42 to the circumstance that, at the time of the draft, the Committee was near unanimous in recommending compulsory jurisdiction. If this were so, there would indeed have been no need for Article 62 to stipulate a consensual link. Yet, as Rosenne has pointed out in the reference already cited, the retention of this provision was deliberate.

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FN42 Manley O. Hudson, The Permanent Court of International Justice 1920-1942, A Treatise, 1972, p. 420.
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The retention of Article 62 despite the abandonment of the principle of compulsory jurisdiction is thus significant. Whether it was an oversight or deliberate, the fact remains that this statutory provision remained and as such it needs to be given all force and efficacy.FN43 It cannot be neutralised by interpretation or indeed even by Rules which the Court may make in the exercise of its undoubted power to regulate its procedure.

---------------------------------------------------------------------------------------------------------------------
FN43 See McDougal, Lasswell and Miller, op. cit.
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(iii) Statutory provisions to be rendered effective rather than negatived by interpretation

27. That important provision of the Statute must be given effect as far as is practicable. If the requirement of a jurisdictional link be postulated, that could in many cases render nugatory an express provision in the Statute of the Court.

One must have regard to the general principle that statutory provisions [p 646] are to be given effect as far as possible and not nullified by contrary interpretation.

The separate opinions rendered in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) Application for Permission to InterveneFN44 are of interest on this matter. While Judge Morozov was of the view that the intervener must show a jurisdictional basis for its claim, Judges Oda and Schwebel were both specific in their view that an intervening State does not need to show a jurisdictional link with the original litigant State. The inconclusive nature of the Court’s decision in relation to this problem concerning intervention was the subject of adverse comment, among others by Judge Philip C. JessupFN45.

---------------------------------------------------------------------------------------------------------------------
FN44 I.C.J. Reports 1981, pp. 22 ff.
FN45 In an Editorial Comment in the American Journal of International Law, 75 (1981) AJIL 903 at 908.
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The jurisdictional link was not a basis for the Court’s decision in that case.

The present JudgmentFN46 goes far towards settling this issue, consolidating the law on this matter along the lines indicated by the decisions in Land, Island and Maritime Frontier Disput (El Salvador/Honduras)FN47 and Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria)FN48. I agree that a jurisdictional link is required only if the State seeking to intervene is desirous of “itself becoming a party to the case”FN49.

---------------------------------------------------------------------------------------------------------------------
FN46 See paras. 35 and 36.
FN47 I.C.J. Reports 1990, p. 135.
FN48 I.C.J. Reports 1999, pp. 1034-1035, para. 15.
FN49 Para. 35
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(iv) Article 81 (2) (c) of 1978 Rules

28. Article 81, paragraph 2, of the 1978 Rules of Court represents a fundamental departure from the 1972 Rules inasmuch as Article 81, paragraph 2 (c), requires the application to set out “any basis of jurisdiction which is claimed to exist as between the State applying to intervene and the parties to the case”. There was no reference to this jurisdictional link in the 1972 Rules which only required a description of the case, a statement of law and fact justifying intervention and a list of the documents in support.

This reference to a jurisdictional basis, it will be noted, does not specify it as a necessary factor for intervention. It is only mentioned as a circumstance which the applicant needs to set out a circumstance which would no doubt be of assistance to the Court in making its overall decision. The use of the expression “any basis of jurisdiction” rather than “the basis of jurisdiction” is also
significant.

A Rule of the Court cannot nullify a provision of the Court’s Statute and must always be read in conformity with it. In the Continental Shelf [p 647]case between Tunisia and LibyaFN50 it was Malta’s argument that this provision went in fact beyond the authority given to the Court to regulate its procedureFN51. It argued that the Court’s rule-making power could not be employed to introduce a new substantive condition for the grant of permission to intervene.

---------------------------------------------------------------------------------------------------------------------
FN50 I.C.J. Reports 1981, p. 8, para. 12.
FN51 Cf. Wolfgang W. Fritzemeyer, Intervention in the International Court of Justice, 1983, p. 75.
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(v) Conclusion

29. The legislative history of Article 62, the rules of interpretation, the need for enhancing the services rendered by the Court to the international community and the jurisprudence of the Court thus combine to point to the conclusion that a jurisdictional link is not a prerequisite to intervention.

2. The problem of an interest of a legal nature

30. This is another important grey area in the field of international intervention procedure,
and attracted the comment from the first writer on intervention before the PCIJ that it was “un
monstre presque indefinissable”FN52.

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FN52 W. Farag, L’intervention devant la Cour Permanente de Justice Internationale (Articles 62 et 63 du Statut de la Cour), Paris, 1927.
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While it defies definition as to what it is, guidelines are evolving as to what it is not. It must
not be

--a merely general interest but one which may be affected by the decision in this case;
-- a merely political or social interest;
-- an interest in the general development of the law;
-- “an interest in the Court’s pronouncements in the case regarding the applicable general principles and rules of international law”FN53;

---------------------------------------------------------------------------------------------------------------------
FN53 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene (I.C.J. Reports 1981, p. 17, para. 30).
---------------------------------------------------------------------------------------------------------------------

-- an interest in particular points of law that “concerned it, simply because they were in issue
before the Court in proceedings between other States”54.

---------------------------------------------------------------------------------------------------------------------
FN54 See D. W. Greig, “Third Party Rights and the I.C.J.”, 32 Virginia Journal of International Law, pp. 285-299.
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Further, it need not be

-- an interest in the actual subject-matter of the case. While not directly within the subject-matter
it is sufficient if it will be affected by the decision; [p 648]
-- an interest which will be affected. It is sufficient to show that it is an interest which may be
affected by the decision.

How does the case of the Philippines fit within these guidelines?

31. At this point it is necessary to observe that the burden of proof of a legal interest, which always lies on the applicant under Article 62, will naturally vary from case to case, depending, inter alia, on the closeness of the connection of the subject-matter in dispute and the subject-matter of the interest which the intervenient seeks to protect.

There could be a vast range of cases between a total coincidence of the subject of the case and the interest of the intervenient on the one hand, and the total absence of any common elements on the other.

The burden of proof in regard to the intervenient’s legal interest would naturally be lighter in the case of the coincidence of the parties’ claims and the intervener’s interest and heavier as these two elements diverge.

32. In the present case the intervener clearly disclaims any interest in the actual subject-matter of the case. On the other hand the interest it seeks to protect is in a totally different territory and stems from an entirely different source of title. The burden that lies on the intervener is thus heavily increased and it is this burden which, in all the circumstances of the case, the Philippines has not discharged.

33. It will surely relate to a legal interest if any of the documents of title referred to by the Parties have a bearing on the claim that the Philippines alleges it has to North Borneo e.g., the documents of 1891, 1900, 1907 and 1930. On the contrary, the Philippines does not claim any right or interest through these documents but relies on a grant by the Sultan of Sulu in 1878 which does not in fact relate to the two islands in question in this case. Furthermore, the Philippines expressly disclaims any territorial claim to the two islands.

34. The Philippine claim is based upon the treaties, agreements or other documents which have a direct or indirect bearing on the legal status of North Borneo. The Court needs to know with some degree of particularity what these are, what bearing if any they have on North Borneo and how their interpretation has impinged on the claim to a totally distinct territory. The Judgment of
the Court details the lack of particularity in the pleadings of the Philippines in this regard, and it is unnecessary to traverse the same ground here.

35. Since it would be incumbent on an intervener claiming an interest totally different from the subject-matter of the action to state its case with great particularity, one is left with a sense of inadequacy as to the particulars of the legal interest which the Philippines wishes to protect.

36. A useful contrast is offered by the Cameroon/Nigeria case, where the interest asserted by the intervener was specific and clear from all the surrounding circumstances. Likewise in the Continental Shelf [p 649] (Tunisia/Libyan Arab Jamahiriya)FN55 case, although the Court did not actually rule on the matter, the intervener stated with great particularity how a judgment rendered in the case would affect its interestFN56, itemizing five separate elements point by point. To quote the Court these were spelled out “coast by coast, bay by bay, island by island, sea area by sea area”.

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FN55 I.C.J. Reports 1981, p. 3.
FN56 At pp. 17-18.
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37. That is an index of the extent of particularity sometimes provided to court in intervention procedures. Though such minute detail may not be necessary, even a lesser degree of particularity is lacking in the Philippine presentation, leaving the Court in a state of vagueness and conjecture as to what precisely is the legal interest which the Philippines claims.

38. In making this observation I am conscious that the Philippines lacked access to the pleadings of the Parties. Yet even within these constraints the material publicly available on the conflicting claims of the Parties would have directed the Philippines to the ways in which these conventions infringed on whatever claim they had to a totally different territory. The deeds which the Parties were relying on were all accessible to the intervenient and could well have been analysed by the Philippines from this point of view. The Court would not of course have required minute and detailed analyses, but some indications of the particular ways in which the Court’sapproach to these sources of title could have impinged on the interests of the Philippines would have been sufficient. There were suggestions that this might be possible but the degree of particularity necessary to activate the processes of the Court was lacking.

39. I am in agreement with the Court that the necessary specificity is lacking in the Philippine case.

3. Precise object of intervention

40. The Court has considered the three objects listed by the Philippines in terms of Article 81 (b) of the Rules, and has found at least two of them to be appropriate. This being so, there has been compliance by the Philippines with Rule 81 (b).

The third reason listed by the Philippines, which the Court has found does not constitute an “object” within the meaning of the Rules and has hence rejected, is not properly an object of a
party but nevertheless spells out an important function performed by the Court, as I have indicated in the earlier part of this opinion. This is a matter for the Court and is not an “object” of a party seeking to intervene. [p 650]

4. The problem of the lateness of the intervention

41. It is always desirable for interveners to file their application as early as possible in the proceedings. This is essential for the expeditious disposal of the Court’s work and quite apart from any specific provision in the Rules is a courtesy due from the intervener both to the Court and to the other parties. Paragraph 1 of Article 81 of the Rules of Court requires an application for intervention to be filed not later than the closure of written proceedings. But what is meant by the “closure of written proceedings”?

42. In a case such as this where the special agreement expressly visualized the possibility of a further round of written pleadings, a third party could not know that the second round of pleadings was necessarily the last. Indeed, the parties themselves would not know this until they
had perused each other’s second round of pleadings, for then only would they make up their minds that they would not go for a further round.
The Court does not have a practice of making a formal order of closure of written proceedings. Closure of written proceedings is thus a de facto situation that arises when the written proceedings are for practical purposes understood to be closed.

A third party watching these proceedings from the outside would naturally be anxious, if it is thinking in terms of intervention, to know the position of the parties as contained in their written
replies to the earlier rounds of pleadings. It would be entitled, having regard to the compromis in
the present case, to assume that the date of filing of the second round would not necessarily be the date of “closure of written proceedings”.

43. A further circumstance to be taken into account in considering the third party’s position is the unavailability to it of even the pleadings that had already been filed, and the fact that it had made application to the Court for the pleadings to be made available to it. The extreme step of shutting out the application for belatedness is therefore one which the Court should not take, and I agree with the Court in this regard, though as the Parties rightly point out the Philippines could well have made application considerably earlier.

The Philippines could well argue that they made their application before the closure of the written proceedings, and that it would be an injustice to them, if not a denial of due process, to impose on them the extreme penalty of refusing their Application for this reason.

5. The problem of the tension between the principle of confidentiality of pleadings and the
principle of intervention

44. Although, as Rosenne points outFN57, the Court has so far refrained from exercising this power, it has the discretion under Article 53, [p 651] paragraph 1, of the Rules to make pleadings available to interveners in appropriate circumstances and an intervener is entitled to explore this possibility.

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FN57 S. Rosenne, The Law and Practice of the International Court, 1920-1996, Vol. III, Procedure, 1997, p. 1289.
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There is a tension here between the principle of intervention and the principle of confidentiality, for the latter may in certain cases shut out a legitimate intervention by denying the intending intervener the information necessary for it to formulate its intervention. The discretion of the Court must therefore be very carefully exercised, especially when the lack of knowledge of the parties’ pleadings is offered as an excuse for what might be a belated intervention. An intervener’s actual pleadings could in certain cases be heavily dependent upon a knowledge of the pleadings of the parties. The mere publication of the special agreement would not give the intervenient the full information it might require.

45. As Rosenne observesFN58, the tension already referred to between the principle of intervention and the principle of confidentiality can even amount to a denial of justice in particular cases, and will perhaps need to be reviewed in the future. Indeed, he points out in his treatise on intervention that the availability to a prospective intervener of the written proceedings to date is important both when it is considering whether it has an interest of a legal nature and even more so after that State has decided to submit an applicationFN59

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FN58 Rosenne, op. cit., p. 1289.
FN59 Rosenne, Intervention in the International Court of Justice, 1993, p. 191.
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I believe this procedural aspect needs careful review by the Court, for there can well be cases where a denial of the documents to a prospective intervener could for practical purposes defeat that intervener’s statutory right to make an application for intervention. The present is not such a case but there may well be cases where this is so.

46. For the reasons stated above I am in agreement with the Court’s decision and I hope this
separate opinion will be of some assistance in drawing attention to important aspects relating to intervention which will need further consideration in the procedural jurisprudence of the future.

(Signed) C. G. WEERAMANTRY. [p 652]


SEPARATE OPINION OF JUDGE AD HOC FRANCK

1. I wholly support the Judgment of the Court and entirely agree with its disposition of the legal issues considered by it.

2. At the same time, I wish to explicate a legal basis for the Court’s decision which, while consistent with it, has not been advanced by the Court, perhaps because it was insufficiently advanced by the Parties, although discussed in passing by Malaysia (CR 2001/2, p. 56, para. 10 (Lauterpacht)) and the Philippines (CR 2001/3, p. 23, para. 14 (Magallona)). I shall endeavour to demonstrate why that legal basis is of some importance and why the Court need not have been deterred from making this clear. The point of law is quite simple, but ultimately basic to the international rule of law. It is this: historic title, no matter how persuasively claimed on the basis of old legal instruments and exercises of authority, cannot --except in the most extraordinary circumstances -- prevail in law over the rights of non-self-governing people to claim independence and establish their sovereignty through the exercise of bona fide self-determination.

1. The nature of the “legal interest” claimed by the Philippines

3. In the present case, the Application for permission to intervene admits to having no interest in the precise subject-matter of the case (CR 2001/1, p. 17, para. 2 (Reisman); p. 27, para. 28, (Reisman); see also diplomatic Note from Government of Philippines to Government of Malaysia dated 5 April 2001, WOI, para. 13), which comes before this Court as a territorial dispute over two islands, the ownership of which is contested by Indonesia and Malaysia (Special Agreement jointly notified to the Court by Indonesia and Malaysia on 2 November 1998). The basis of the Philippine intervention, in sharp contrast, is its claim to historic sovereignty over much of North Borneo. The Philippines has sometimes characterized this as a ter-[p 653]ritorial claim (CR 2001/3, pp. 23-24, para. 14 (Magallona)) but, in fact, throughout the pleadings it is clear that what the Philippines seeks to protect by intervention is its claim that the sovereign title of the Sultan of Sulu has become the sovereign title of the Philippines (see, for example, CR 2001/1, p. 37, para. 15 (Magallona); CR 2001/3, pp. 25-26, paras. 17-20 (Magallona)). What the Philippines seeks to preserve is not simply its rights in a territorial dispute with Malaysia about a mutual boundary, but its sovereign title to most of what is now a federated Malaysian state. The Philippines states in its Application for permission to intervene that

“[t]he interest of the Republic of the Philippines is solely and exclusively addressed to the treaties, agreements and other evidence furnished by Parties and appreciated by the Court which have a direct or indirect bearing on the matter of the legal status of North Borneo” (para. 4 (a); emphasis added).

The object of the requested intervention is said to be

“to preserve and safeguard the historical and legal rights of the Government of the Republic of the Philippines arising from its claim to dominion and sovereignty over the territory of North Borneo” (Philippines Application for permission to intervene, para. 5 (a)).

4. In essence, the Philippine claim is to North Borneo (CR 2001/1, pp. 33-35, paras. 5-9 (Magallona); see also Philippine Claim to North Borneo, Vol. 1, Manila, 1963, Preface by Emmanuel Pelaez, Vice-President and concurrently Secretary of Foreign Affairs, and pp. 5-38 by President Diosdado Macapagel) and not to bits of it. This is not a boundary dispute to which evidence of historic title and evidence of texts and efficacies might well be relevant. This is, in effect, a claim by the Philippines to one of the federated states of Malaysia. It is in essence a claim to a territory that had been administered as a British dependency, an interest in reversing that territory’s decolonization almost 40 years ago.

2. Court’s role in determining the Philippine Application for intervention

5. The role of the Court is therefore to determine whether the Philippines claim of title to territories in North Borneo amounts, under international law, to a “legal interest” which justifies its intervention in the main action.

6. What interest does the Philippines advance? It wishes to ensure that this Court is aware of, and duly respects, its interest in sovereignty over [p 654] most of North Borneo. In exercising its discretion, the Court must consider, and has considered, whether that interest is sufficient and has been demonstrated. But the Court may also consider whether the interest is one which, even if it had been found both weighty and amply demonstrated, is also an interest that is barred by international law.

7. In making that determination, the Court is not confined to the Parties’ submissions. Under Article 62, paragraph 2, of the Statute of the Court, it is for the Court itself to decide whether the applicant-intervener possesses a “legal interest” in the main action to be decided by the Court (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene, Judgment, I.C.J. Reports 1981, p. 12, para. 17). That the applicant-intervener has the right and obligation to demonstrate such legal interest does not end the matter. It remains for the Court to satisfy itself that international law does not bar the very interest that the Philippines seeks to have
protected.

8. In this regard, it does not matter whether the Parties themselves have fully argued the legality of the interest the Applicant seeks to protect. It is important to draw a distinction between (i) cases in which the Court proceeds to decide issues not raised in the parties’ submissions (which would likely be precluded by the non ultra petita rule), and (ii) those cases in which, precisely in
order to deal correctly with an issue which has been referred to it, the Court must take into account considerations of fact or of law other than those relied upon by the parties (Fitzmaurice, The Law and Procedure of the International Court of Justice, 1986, p. 531). The present case falls into category (ii). It is essential ¾ in determining whether the Philippines has a legal interest in protecting its claim of historic sovereignty over most of North Borneo ¾ that the Court take into account all the relevant international law, including the modern law of decolonization and self-determination. The mere fact that this law was but passingly raised by the Parties does not preclude Members of the Court taking judicial notice of the impact of so vital a legal principle, one that profoundly bears on the Applicant’s claim to possess a “legal interest”. As was stated by the Court in the Fisheries Jurisdiction case:

“The Court . . . as an international judicial organ, is deemed to take judicial notice of international law, and is therefore required in a case falling under Article 53 of the Statute, as in any other case, to consider on its own initiative all rules of international law which may be relevant to the settlement of the dispute. It being the duty of the Court itself to ascertain and apply the relevant law in the given circumstances of the case, the burden of establishing or proving rules of international law cannot be imposed upon any of the parties, for [p 655] the law lies within the judicial knowledge of the Court.” (I.C.J. Reports 1974, p. 9, para. 17.)

While this statement was made in the context of applying Article 53, the principle is equally
applicable when giving effect to Article 62.

3. The impact of self-determination on historic title

9. Under traditional international law, the right to territory was vested exclusively in rulers of States. Lands were the property of a sovereign to be defended or conveyed in accordance with the laws relevant to the recognition, exercise and transfer of sovereign domain. In order to judicially determine a claim to territorial title erga omnes, it was necessary to engage with the forms of international conveyancing, tracing historic title through to a critical date or dates to determine which State exercised territorial sovereignty at that point in time. Under modern international law, however, the enquiry must necessarily be broader, particularly in the context of decolonization. In particular, the infusion of the concept of the rights of a “people” into this traditional legal scheme, notably the right of peoples to self-determination, fundamentally alters the significance of historic title to the determination of sovereign title.

10. Previous judgments of this Court (in particular, its Advisory Opinion of 26 January 1971 on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, pp. 31-32, paras. 52-53 and its Advisory Opinion of 16 October 1975 in Western Sahara, I.C.J. Reports 1975, pp. 31-33, paras. 54-59) contribute to and recognize the development of the right of non-self-governing peoples to self-determination which “requires a free and genuine expression of the will of the peoples concerned” (Western Sahara, ibid., p. 32, para. 55). The Court recognized in the Namibia case that, “the subsequent development of international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them” (I.C.J. Reports 1971, p. 31, para. 52). In the case concerning East Timor (Portugal v. Australia), the Court recognized the principle of self-determination to be “one of the essential principles of contemporary international law” (I.C.J. Reports 1995, p. 102, para. 29).

11. The decisions of this Court confirm the prime importance of this principle of self-determination of peoples. The firm basis for the principle is also anchored in universal treaty law, State practice and opinio juris. Article 1, paragraph 2, of the United Nations Charter indicates that one of the purposes of the United Nations is “[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. The principle also finds express and implied [p 656] reflection in other provisions of the Charter, namely Article 55, Article 73 and Article 76 (b). Common Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights provides that “[a]ll peoples have the right of self-determination”, and emphasizes in Article 1 (3), that “States Parties to the present Covenant . . . shall respect [the] right [of self-determination], in conformity with the provisions of the Charter of the United Nations”.

12. This treaty law has been affirmed, developed and given more tangible form by numerous resolutions of the General Assembly, which have consistently received broad support. General Assembly resolution 637 (VII), adopted on 16 December 1952, was an early recognition that “every Member of the United Nations, in conformity with the Charter, should respect the maintenance of the right of self-determination”, a right which was stated to be a “prerequisite to the full enjoyment of all fundamental human rights”. The “Declaration on the Granting of Independence to Colonial Countries and Peoples”, General Assembly resolution 1514 (XV), adopted without dissent on 14 December 1960, is regarded as fundamental to the process of decolonization. It is applicable to all “territories which have not yet attained independence” and establishes that “[a]ll peoples have the right to self-determination” while insisting that “[a]ny attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations”. In General Assembly resolution 1541 (XV), adopted with only two dissents on 15 December 1960, the General Assembly contemplated more than one method of self-determination for non-self-governing territories, including “[i]ntegration with an independent State”. General Assembly resolution 2131 (XX), “Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty”, adopted by 109 countries without dissent on 21 December 1965, declared that, “[a]ll States shall respect the right of self-determination and independence of peoples and nations, to be freely exercised without any foreign pressure, and with absolute respect for human rights and fundamental freedoms”. The principle of self-determination was further included among the “basic principles of international law” set out in the “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”, adopted by consensus as the Annex to resolution 2625 (XXV) on 24 October 1970. According to this document, “all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter” (emphasis added).

13. The independence of North Borneo was brought about as the [p 657] result of the expressed wish of the majority of the people of the territory in a 1963 election. The Secretary-General of the United Nations was entrusted under the Manila Accord of 31 July 1963 with the task of ascertaining the wishes of the people of North Borneo, and reported that the majority of the peoples of North Borneo had given serious and thoughtful consideration to their future and:

“[had] concluded that they wish to bring their dependent status to an end and to realize their independence through freely chosen association with other peoples in their region with whom they feel ties of ethnic association, heritage, language, religion, culture, economic relationship, and ideals and objectives.” (Quoted by the Representative of Malaysia to the General Assembly, 1219th meeting, 27 September 1963, Official Records of the General Assembly, 18th Session, UN Doc. No. A/PV.1219.)

14. In 1963, Britain filed its last report to the United Nations on North Borneo as an Article 73 (e) Non-Self-Governing Territory (Note by the Secretary-General, Political and Constitutional Information on Asian Territories under United Kingdom Administration, UN Doc. No. A/5402/Add.4 (4 April 1963)). Thereafter, the United Nations removed North Borneo from the list of colonial territories under its decolonization jurisdiction (see Yearbook of the United Nations, 1964, pp. 411-435, which omits North Borneo from the Committee’s list of territories), thereby accepting that the process of decolonization had been completed by a valid exercise of
self-determination.

15. Accordingly, in light of the clear exercise by the people of North Borneo of their right toself-determination, it cannot matter whether this Court, in any interpretation it might give to anyhistoric instrument or efficacy, sustains or not the Philippines claim to historic title. Modern international law does not recognize the survival of a right of sovereignty based solely on historic title; not, in any event, after an exercise of self-determination conducted in accordance with the requisites of international law, the bona fides of which has received international recognition by the political organs of the United Nations. Against this, historic claims and feudal pre-colonial titles are mere relics of another international legal era, one that ended with the setting of the sun on the age of colonial imperium.

16. The lands and people claimed by the Philippines formerly constituted most of an integral British dependency. In accordance with the law pertaining to decolonization, its population exercised their right of self-determination. What remains is no mere boundary dispute. It is an attempt to keep alive a right to reverse the free and fair decision taken almost 40 years ago by the
people of North Borneo in the exercise of [p 658] their legal right to self-determination. The Court cannot be a witting party to that.

17. In so far as the Philippines has claimed a legal interest in protecting its claim to sovereign title on the basis of the historic rights of the Sultan of Sulu, that legal interest, however fascinating historically, has no modern purchase. It is, beyond reasonable disputation, barred by a legal principle firmly established in modern texts, judicial decisions and State practice. There is no point, therefore, in encouraging its further ventilation. As the Court said in the case concerning the Northern Cameroons:

“The Court must discharge the duty to . . . safeguard the judicial function . . .[Where] adjudication [is] . . . devoid of purpose, . . . for the Court to proceed further in the case would not . . . be a proper discharge of its duties.
The answer to the question whether the judicial function is engaged may, in certain cases where the issue is raised, need to wait upon an examination of the merits. In the present case, however, it is already evident that it cannot be engaged.” (Preliminary Objections, Judgment, I.C.J. Reports 1963, p. 38.)

4. Conclusion

18. To allow the Philippines to proceed to intervene in the merits phase of this case, when the legal interest it claims would have no chance of succeeding by operation of law, cannot discharge the Court’s duties. Even if the probity of all the Applicant’s evidence were to be wholly confirmed, its interest would still be solely political: perhaps susceptible of historic, perhaps of political, but in any event not of judicial, vindication.

19. For this and for all the other reasons stated in the Court’s Judgment, I concur in the decision of the Court.

(Signed) Thomas FRANCK.

 
     

 

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