| |
[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.
*
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.
*
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.
*
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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.”
---------------------------------------------------------------------------------------------------------------------
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”
------------------------------------------------------------------------------------------------------------
FN5 John
Bassett Moore, ”The Organization of the Permanent Court of International
Justice (1922), 22 Columbia Law Review, pp. 497-507.
------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
FN6 Rules
Revision Committee (1968): Report of the Committee (GEN 68/23quater), p. 306
(hereinafter Rules Revision Committee 1968).
---------------------------------------------------------------------------------------------------------------------
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
---------------------------------------------------------------------------------------------------------------------
FN7Series
D, No. 2, pp. 86-97.
---------------------------------------------------------------------------------------------------------------------
“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.
---------------------------------------------------------------------------------------------------------------------
FN8 P.C.I.J.,
Series D, No. 2, p. 89.
---------------------------------------------------------------------------------------------------------------------
“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
------------------------------------------------------------------------------------------------------------
FN9 Rules
Revision Committee 1968, p. 310.
-----------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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
------------------------------------------------------------------------------------------------------------
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.
------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
FN14 See
Rosenne’s note to this effect in Law and Practice of the International Court
of Justice, 1964, p. 216.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
FN16 AJIL
75, 1981, p. 904.
---------------------------------------------------------------------------------------------------------------------
[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.
---------------------------------------------------------------------------------------------------------------------
FN17 Atlantis
v. United States, 379 F. 2d, 824 cited by Habscheid, op. cit., p. 480.
---------------------------------------------------------------------------------------------------------------------
-- 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
---------------------------------------------------------------------------------------------------------------------
FN18
Habscheid, op. cit., pp. 479-480.
---------------------------------------------------------------------------------------------------------------------
-- Parties may even act in collusion, against a third partyFN19.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
--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.
---------------------------------------------------------------------------------------------------------------------
FN20 Habscheid,
op. cit., p. 480.
FN21 Torres Bernerdez, p. 226.
---------------------------------------------------------------------------------------------------------------------
[p 638]
--The same judge would be even more inclined to follow a previous
decisionFN22.
---------------------------------------------------------------------------------------------------------------------
FN22 Habscheid,
op. cit., p. 480.
---------------------------------------------------------------------------------------------------------------------
--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
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
--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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
-- 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.
---------------------------------------------------------------------------------------------------------------------
FN26 Torres
Bernerdez, op. cit., p. 228.
---------------------------------------------------------------------------------------------------------------------
[p639]
-- In international law, a third party may not be in a position to sue in
order to protect its rightsFN27.
---------------------------------------------------------------------------------------------------------------------
FN27 Op.
cit., p. 228.
---------------------------------------------------------------------------------------------------------------------
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
---------------------------------------------------------------------------------------------------------------------
FN28Shabtai
Rosenne, Intervention in the International Court of Justice, 1993, p. 190.
---------------------------------------------------------------------------------------------------------------------
--“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
---------------------------------------------------------------------------------------------------------------------
FN29V.
S. Mani, International Adjudication: Procedural Aspects, 1980, p. 250.
---------------------------------------------------------------------------------------------------------------------
-- 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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
--The private suitor has an interest in having no third party meddle with
his suitFN32.
---------------------------------------------------------------------------------------------------------------------
FN32Habscheid,
op. cit., p. 480, citing Atlantis v. United States of America, 379 F 2d,
824.
---------------------------------------------------------------------------------------------------------------------
-- 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.
---------------------------------------------------------------------------------------------------------------------
FN33I.C.J.
Reports 1984, pp. 25-26.
---------------------------------------------------------------------------------------------------------------------
-- In the Legal Status of Eastern GreenlandFN34 case, the Permanent Court
observed
---------------------------------------------------------------------------------------------------------------------
FN34P.C.I.J.,
Series A/B, No. 53, p. 46.
---------------------------------------------------------------------------------------------------------------------
“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.
---------------------------------------------------------------------------------------------------------------------
FN37 I.C.J.
Reports 1954, p. 32.
---------------------------------------------------------------------------------------------------------------------
-- 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
---------------------------------------------------------------------------------------------------------------------
FN38 I.C.J.
Yearbook 1993-1994, p 218 at p. 220.
---------------------------------------------------------------------------------------------------------------------
“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”.
------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
FN42 Manley
O. Hudson, The Permanent Court of International Justice 1920-1942, A
Treatise, 1972, p. 420.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
(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.
---------------------------------------------------------------------------------------------------------------------
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
---------------------------------------------------------------------------------------------------------------------
(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.
---------------------------------------------------------------------------------------------------------------------
(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.
---------------------------------------------------------------------------------------------------------------------
FN52
W. Farag, L’intervention devant la Cour Permanente de Justice Internationale
(Articles 62 et 63 du Statut de la Cour), Paris, 1927.
--------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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”.
---------------------------------------------------------------------------------------------------------------------
FN55 I.C.J.
Reports 1981, p. 3.
FN56 At pp. 17-18.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
FN57 S.
Rosenne, The Law and Practice of the International Court, 1920-1996, Vol.
III, Procedure, 1997, p. 1289.
---------------------------------------------------------------------------------------------------------------------
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
---------------------------------------------------------------------------------------------------------------------
FN58 Rosenne,
op. cit., p. 1289.
FN59 Rosenne, Intervention in the International Court of Justice, 1993, p.
191.
---------------------------------------------------------------------------------------------------------------------
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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