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Intervention Under Article 63 of the ICJ Statute in the Phase of Preliminary Proceedings: The “Salvadoran Incident”

Published online by Cambridge University Press:  27 February 2017

Jerzy Sztucki
Jerzy Sztucki*
Affiliation:
University of Uppsala
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American Journal of International Law , Volume 79 , Issue 4 , October 1985 , pp. 1005 - 1036
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Copyright © American Society of International Law 1985

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References

1 See Rogers, Beat, & Wolf, Application of El Salvador to Intervene in the Jurisdiction and Admissibility Phase of Nicaragua v. United States, 78 AJIL 929 (1984)Google Scholar.

2 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Declaration of Intervention, 1984 ICJ Rep. 215, 216 (Order of Oct. 4), quoted in id. at 935–36; see also 24 ILM 43, 44 (1985).

3 See 1984 ICJ Rep. at 223 et seq.

4 Id. at 223.

5 In the words of Hambro. Intervention under Article 63 of the Statute of the International Court of Justice, 14 Communicazioni E Studi 387, 389 (1975).

6 1984 ICJ Rep. at 216.

7 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Request for Provisional Measures, 1984 ICJ Rep. 169, 180 (Order of May 10).

8 1984 ICJ Rep. at 216 (referring to id.).

9 Since the Declaration of Intervention of El Salvador was made on Aug. 15, 1984, it could only be acted upon—as indeed it was—after the conclusion of written proceedings on the questions of jurisdiction and admissibility. The latter had to be—and were—concluded on Aug. 17, 1984. See 1984 ICJ Rep. 209 (Order by the President, May 14, fixing the time limits). Under the circumstances, there is no need to discuss the question of facultative priority of the matters relating to intervention, as envisaged in Article 84, paragraph 1 of the Rules. According to this provision, decisions on intervention—whether under Article 62 or Article 63—are to be taken “as a matter of priority unless in view of the circumstances of the case the Court shall otherwise determine” (emphasis added).

10 1984 ICJ Rep. at 216.

11 Article 84, paragraph 2 of the Rules reads: “ If . . . an objection is filed to an application for permission to intervene, or to the admissibility of a declaration of intervention, the Court shall hear the State seeking to intervene and the parties before deciding.” For the Rules of Court adopted on Apr. 14, 1978, see 73 AJIL 748 (1979).

12 Written observations of Nicaragua on the Declaration of Intervention of the Republic of El Salvador, Sept. 10, 1984, at 1, para. 1, and 2, para. 5, discussed in 78 AJIL at 933–34.

13 1984 ICJ Rep. at 220. The statement by Judge Oda also shows how judges sometimes vote on matters that are the consequence of certain assumptions. In this case, Judge Oda declared that he voted against a hearing on the assumption of the majority “that Nicaragua had not objected”—thus, not on his own assumption that it had.

14 Id. at 230.

15 Letter of the Agent of El Salvador to the Registrar of the Court, Sept. 10, 1984, at 1, para. 1. See also his subsequent letter to the Registrar, Sept. 17, 1984, at 3, para. 7. In his separate opinion, Judge Oda declares, inter alia: “I regret that the Court did not attempt to ascertain the views of Nicaragua and the United States on these two subsequent communications from El Salvador.” 1984 ICJ Rep. at 220.

16 1984 ICJ Rep. at 219 (emphasis added).

17 Id. at 231. For the relevant material in the Haya de la Torre case (Colom./Peru), see 1951 ICJ Rep. 71, 77 (Judgment of June 13); ICJ Pleadings (Haya de la Torre) 149–50. Article 66, paragraph 2 of the Rules of 1946 provided, inter alia: “If any objection or doubt should arise as to whether the intervention is admissible under Article 63 of the Statute, the decision shall rest with the Court.”

18 1984 ICJ Rep. at 222.

19 Id. at 218 (emphasis added). The italicized phrase is rather conspicuous. It suggests that it was possible even before the oral proceedings on the questions of jurisdiction and admissibility (i.e., 6–7 weeks before the Court’s Judgment of Nov. 26, 1984 on these questions) to forecast “two hearings on merits” in the case, that is, that the preliminary objections would be rejected and that the Nicaragua case would continue.

20 Id. at 221.

21 See note 15 supra.

22 Quoted in 1984 ICJ Rep. at 233 (Schwebel, J., dissenting).

23 The Communiqué in question, No. 84/28, Sept. 27, 1984, announced that the Court would open a hearing on jurisdiction and admissibility in the Nicaragua case on October 8. The Communiqué ends as follows: “Meanwhile, El Salvador has filed a declaration of intervention within the meaning of Article 63 of the Court’s Statute. . . . The Court’s decision in regard to this declaration will be made known to the press in a subsequent Communiqué.”

24 1984 ICJ Rep. at 232

25 Id. at 216.

26 Id. at 218.

27 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392, 425 (Judgment of Nov. 26) (emphasis added).

28 1951 ICJ Rep. at 77.

29 Id. (quoted in part in another context by Judge Schwebel in his dissenting opinion, 1984 ICJ Rep. at 231).

30 In the present context, it is immaterial that the ground for intervention invoked in those cases was Article 62 rather than Article 63 of the Statute.

31 See Application by Fiji for permission to intervene in the Nuclear Tests case (Austl. v. Fr.), ICJ Pleadings (1 Nuclear Tests) 151 (Application dated May 16, 1973); the Application for the New Zealand v. France case is in 2 id. at 92 (May 18, 1973).

32 See Nuclear Tests (Austl. v. Fr.; NZ v. Fr.), Interim Protection, 1973 ICJ Rep. 99, 106, 142 (Orders of June 22).

33 See Nuclear Tests (Austl. v. Fr.; NZ v. Fr.), Application to Intervene, 1973 ICJ Rep. 320, 324 (Orders of July 12). When the Court, by its Judgments of Dec. 20, 1974, declared the Nuclear Tests cases moot, it also issued two Orders in which it found that, as a consequence of these Judgments, the Applications of Fiji had lapsed, and no further action on them was required. See Nuclear Tests (Austl. v. Fr.; NZ v. Fr.), Application to Intervene, 1974 ICJ Rep. 530, 535 (Orders of Dec. 20).

34 1984 ICJ Rep. at 216. The phrase quoted by the Court is taken from the letter of the Agent of El Salvador, supra note 15, at 4, para. 5. El Salvador requested that the Court consider that letter “as a part of the Declaration in amplification of the contents thereof.” Id. at 6, para. 10.

35 1984 ICJ Rep. at 234.

36 Id. at 242.

37 Id. at 219. However, as noted earlier, the five judges believed that the Court should not have relied on written communications only and that a hearing should have been held.

38 Id. at 221.

39 There appears to be no quarrel about the inadmissibility of intervention under Article 62 in the phase of preliminary objections. On this point, see the dissenting opinion of Judge Schwebel appended to the Order, id. at 235.

40 Mani, V. International Adjudication: Procedural Aspects 260 (1980)Google Scholar (emphasis added). However, the author draws a specific conclusion from this proposition only insofar as the inadmissibility of intervention in proceedings under Articles 60 and 61 of the Statute is concerned, but refrains from extending the conclusion to proceedings on preliminary objections. (The term “incident” is used here in the sense of the above quotation from Mani, as “incidental to the main proceedings.”)

41 As demonstrated, e.g., by the Mavrommatis case (1924), in which the Court had to improvise the handling of preliminary objections, for lack of pertinent provisions in the Rules of 1922.

42 See Anzilotti, La Riconvenzione nella procedura Internationale, 21 Rivista di Diritto Internazionale 309, 316 (1929)Google Scholar.

43 Hudson, M. The Permanent Court of International Justice, 1920–1942, at 422 (1943)Google Scholar.

44 For a strong warning against excessive analogies between the international and municipal processes, see, e.g., Sereni, A. Principi Generali di diritto e Processo Internazionale 9–13, 50–54, 68–71 (1955)Google Scholar. Also, Scerni observes that “dans le droit de procédure ces principes [i.e., general principles of law] ne constituent point une source de droit, la volonté de la Cour étant libre de choisir ou de créer la règie de conduite.” La Procédure de la Cour permanente de justice Internationale, 65 Recueil des Cours 561, 589 (1938 III).

45 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pak.), 1972 ICJ Rep. 46, 56–57 (Judgment of Aug. 18). Rosenne writes in the same vein: “The question whether and to what extent the Court has jurisdiction is frequently of no less, if not more, political importance than the decision on the merits.” S. Rosenne, The Law and Practice of the International Court 437 (1965).

46 Accordingly, notifications under Article 63 were sent on that occasion. See ICJ Pleadings (Jurisdiction of the ICAO Council) 781 (notifications dated Mar. 28, 1972).

47 Judge Schwebel sees further support for his argument in the fact that Article 82, paragraph 1 of the present Rules provides for “the opening of the oral proceedings” and not the “oral proceedings on the merits” as the usual time limit for filing declarations of intervention under Article 63. There was no corresponding provision (no time limit) in any of the earlier versions of the Rules.

48 1984 ICJ Rep. at 234-35.

49 On the whole, the practice of sending notifications under Article 63, paragraph 1 has always been somewhat confused. Hambro says that this practice always “puzzled” him—even during his own term of office as Registrar of the Court. See Hambro, supra note 5, at 387.

50 See PCIJ, ser. C, No. 68, at 243 and 256 (Appeals from Judgments); id., No. 80, at 1370–71 (Pajzs, Csáky and Esterházy); id., No. 85, at 1349 (Phosphates in Morocco).

51 See PCIJ, ser. C, No. 68, at 264–65; id., No. 80, at 1381–82; and id., No. 85, at 1356, respectively.

52 See Preliminary objection of Albania, ICJ Pleadings (2 Corfu Channel) 9 et seq.; Notification, 5 id. at 149. See also Corfu Channel case (UK v. Alb.), Preliminary Objection, 1948 ICJ Rep. 15, 23 (judgment of Mar. 28). The Corfu Channel case is cited in the dissenting opinion of Judge Schwebel in another connection. See 1984 ICJ Rep. at 237.

53 See Application of the United Kingdom, ICJ Pleadings (1 Corfu Channel) 8–9.

54 See Preliminary objection of Iran, ICJ Pleadings (Anglo-Iranian Oil Co.) 281 et seq.; Notification, id. at 741. See also Anglo-Iranian Oil Co. case (UK v. Iran), Preliminary Objections, 1952 ICJ Rep. 93, 95 (Judgment of July 22). This case is also extensively quoted in the dissenting opinion of Judge Schwebel in another context. See 1984 ICJ Rep. at 238.

55 See ICJ Pleadings (Anglo-Iranian Oil Co.) 8 et seq.

56 See id. (2 Nuclear Tests) 384 (emphasis added).

57 1984 ICJ Rep. at 236 (emphasis added).

58 Id. at 238. See also notes 52 and 54 supra.

59 The notifications in the Anglo-Iranian Oil Co. case, note 54 supra, were sent out on Feb. 21, 1952; Judge Basdevant’s term as President ended on Apr. 5, 1952.

60 1984 ICJ Rep. at 233–34.

61 Since 1936, the Rules have explicitly provided that a “State which is a party to the convention in question and to which the notification . . . has not been sent, may in the same way file with the Registry a declaration of intention to intervene under Article 63 of the Statute.” Art. 66, para. 2 of the Rules of 1936. Likewise, Art. 66, para. 1 of the Rules of 1946; Art. 71, para. 1 of the Rules of 1972; and Art. 82, para. 3 of the Rules of 1978, now in force.

62 1984 ICJ Rep. at 237.

63 Id. at 239.

64 Id.

65 Id. at 240.

66 Id..

67 Id. According to Article 92 of the UN Charter, the Court’s “Statute. . . forms an integral part of the present Charter.”

68 1984 ICJ Rep. at 239 (emphasis added). Readers will note that, in contradistinction to the usual dispute settlement clauses in treaties, which envisage disputes concerning their “interpretation and application,” Article 63 is concerned only with the “construction” (i.e., interpretation) of a convention.

69 1984 ICJ Rep. at 239. When the construction of a convention is “in question” (“at issue”) is another question that could form the subject of a separate study. Hambro excludes extreme interpretations of the phrase, but offers no definite positive solution instead. See Hambro, supra note 5, at 392-93.

70 See the argument cited in the text at note 63 supra.

71 1984 ICJ Rep. at 240 (emphasis added).

72 Id.

73 See Application of the United Kingdom, ICJ Pleadings (1 Corfu Channel) 8–9; Preliminary objection of Albania, 2 id. at 9 et seq.

74 See 5 id. at 149. In this connection, it may be recalled that in the Anglo-Iranian Oil Co. case, in which only Article 2, paragraph 7 of the Charter was invoked, notification was sent only to the member states of the United Nations. See note 54 supra.

75 See, e.g., the statement of the Registrar of the PCIJ (A. Hammarskjöld) during the elaboration of the Rules of 1936. 1936 PCIJ, ser. D, Add. 3, at 310; also Hambro, supra note 5, at 393, 396.

76 See note 61 supra. It must be admitted, however, that the Rules are open to interpretation on this point. It is arguable, for instance, that the reference to “a State that . . . has not received the notification” (Art. 82, para. 3 of the present Rules; analogously in the earlier versions) points to situations in which individual states may have been omitted, but not situations when notification has not been sent at all; and that if the latter had also been contemplated, this would have been specified in the Rules. This author submits, however, that the better interpretation is that the quoted phrase covers both types of situations. This follows clearly from the reply of the Registrar to the Polish envoy to The Hague, in which the former confirmed the right of intervention under Article 63 in connection with the Free Zones case, although the parties to the Treaty of Versailles had earlier been specifically informed by the Registrar that notifications under Article 63 would not be sent. See 1929 PCIJ, ser. C, No. 17–1, vol. IV, at 2400, 2423–27 and 2429–30. Also, in the North Sea Continental Shelf Cases, in which notifications were not sent, no less than 14 states parties to the Continental Shelf Convention of 1958 requested access to the pleadings (see ICJ Pleadings (2 North Sea Continental Shelf) 378) on the apparent understanding that they might wish to intervene.

77 1984 ICJ Rep. at 240.

78 See Counter-Memorial of the United States of America (Nicar. v. U.S.) 162-65 (submitted to the Court Aug. 17, 1984). The Court, in its Judgment of Nov. 26, 1984 on the preliminary objections, did not endorse the U.S. interpretation. See 1984 ICJ Rep. at 419–21, paras. 62–64.

79 1984 ICJ Rep. at 240 (Order of Oct. 4) (Schwebel, J., dissenting).

80 Case of Certain Norwegian Loans (Fr. v. Nor.), 1957 ICJ Rep. 9, 63–64 (Judgment of July 6) (Lauterpacht, J., sep. op.).

81 Interhandel Case (Switz. v. U.S.), Interim Measures of Protection, 1957 ICJ Rep. 105, 120 (Order of Oct. 24) (Lauterpacht, J., sep. op.).

82 1984 ICJ Rep. at 242.

83 Id.

84 U.S. Counter-Memorial, supra note 78, at 135–50.

85 Case of Certain Norwegian Loans, 1957 ICJ Rep. at 48 (Lauterpacht, J., sep. op.).

86 Id. at 46.

87 The term used by Judge Hudson. See M. Hudson, The Permanent Court of International Justice 388 (1934).

88 See 1939 PCIJ, ser. A/B, No. 77, at 80 (Judgment on Jurisdiction of Apr. 4).

89 Id. at 76.

90 See the joint dissenting opinion of Judges Spender and Fitzmaurice in the South West Africa Cases (Eth. v. S. Afr.), Preliminary Objections, 1962 ICJ Rep. 319, 475 (Judgment of Dec. 21); Shihata, I. The Power of the International Court to Determine its Own Jurisdiction 147 (1965)Google Scholar; Waldock, Decline of the Optional Clause, 32 Brit. Y.B. Int’l L. 244, 254 (1955–56)Google Scholar.

91 Letter of the Agent of El Salvador, supra note 15, at 4, para. 3.

92 Id.

93 See Anglo-Iranian Oil Co., 1952 ICJ Rep. at 116 (McNair, J., sep. op.).

94 Nicaragua v. United States, 1984 ICJ Rep. at 420 (Judgment of Nov. 26).

95 Id, at 546 (Jennings, J., sep. op.).

96 See, e.g., Crawford, who notes that “the Court has not applied to declarations under the Optional Clause rules of treaty interpretation as such; rather, such principles are extended by analogy, or similar principles are generated independently of their application to treaties.” The Legal Effect of Automatic Reservations to the Jurisdiction of the International Court, 50 Brit. Y.B. Int’l L. 63, 77 (1979).

97 In its Judgment on preliminary objections of Nov. 26, 1984, the Court found, inter alia: “It is clear that the complaint of Nicaragua is not about an ongoing armed conflict between it and the United States.” 1984 ICJ Rep. at 434, para. 94.

98 1984 ICJ Rep. at 243 (Order of Oct. 4).

99 See the Judgment of Nov. 26, 1984 ICJ Rep. at 442 (para. 2 of the operative part of the Judgment).

100 Permanent Court of International Justice, Advisory Committee of Jurists, Procès-Verbaux and Report, June 16–July 12, 1920, at 746 (1920) (emphasis added), quoted in observations of the United States on the Declaration of Intervention of El Salvador, letter of the Agent of the United States to the Registrar, Sept. 14, 1984, at 2 in fine.

101 See letter of the Agent of El Salvador, supra note 15.

102 See U.S. observations, supra note 100.

103 This terminology has been used in the Rules since 1936. Article 60, paragraph 1 of the Rules of 1922 provided simply: “Any State desiring to intervene, under the terms of Article 63 of the Statute, shall inform the Registrar in writing. . . .” The Rules of 1926 and of 1931 contained no reference whatsoever to the form in which states had to signify their intention to intervene.

104 1926 PCIJ, ser. D, No. 2, Addendum, at 159 (statement by President Huber, July 23, 1926, during the elaboration of the Rules of 1926). The same view was reiterated during the preparation of the Rules of 1936, in the Report of the Third Commission (of the Court), Mar. 14, 1934. See 1934 PCIJ, ser. D, No. 2, Add. 3, at 779.

105 Bustamante, A. La Cour Permanente de justice internationale 227 (trans, from Span. 1925)Google Scholar. Likewise President Sir Cecil Hurst, in his statement of Feb. 21, 1935, during the elaboration of the Rules of 1936. See 1935 PCIJ, ser. D, No. 2, Add. 3, at 309.

106 Haya de la Torre, 1951 ICJ Rep. at 76 (emphasis added).

107 Fitzmaurice, The Law and Procedure of the International Court of Justice, 1951–4, 34 Brit. Y.B. Int’l L. 1, 127 (1958)Google Scholar (emphasis added), quoted in U.S. observations, supra note 100.

108 Rosenne, S. Procedure in the International Court 180 (1983)Google Scholar.

109 Delbez, L. les Principes Generaux du Contentieux International 136 (1962)Google Scholar.

110 Guvomar, G. Commentaire du Règlement de la Cour Internationale de justice 535 (1973)Google Scholar.

111 Thus, e.g., Mani, on the one hand, declares that “[a]ll that a State needs to do in exercise of its right of intervention [under Article 63] is to inform the Registry through a declaration that it intends to intervene” (V. Mani, supra note 40, at 84–85); but in the footnote he adds, with reference to Article 84, paragraph 1 of the Rules: “Yet, it is for the Court to decide on the admissibility of such intervention” (id. at 347 n.169).

112 Elias, T. The International Court of Justice and Some Contemporary Problems 93 (1983)Google Scholar, quoted in U.S. observations, supra note 100, at 4, in support of the Salvadoran Declaration of Intervention.

113 The Declaration of El Salvador has already been summarized and quoted in this Journal. See 78 AJIL at 930–32. It is reprinted in its entirety in 24 ILM 38 (1985). Accordingly, it will be described or quoted here only to the minimum extent necessary.

114 See the quotations in the text at notes 37 and 38 supra.

115 See the quotation in the text at note 4 supra.

116 In its Judgment of Nov. 26, 1984 on preliminary objections in the Nicaragua case, the Court did “not consider that the Contadora process, whatever its merits, can properly be regarded as a ‘regional arrangement’ for the purpose of Chapter VIII of the Charter.” 1984 ICJ Rep. at 440, para. 107.

117 1984 ICJ Rep. at 226–27 (Order of Oct. 4) (Schwebel, J., dissenting).

118 See notes 114 and 115 supra.

119 Application Instituting Proceedings (Nicar. v. U.S.) 16 (submitted to the Court on Apr. 9, 1984).

120 An inter-American Convention, signed at Montevideo on Dec. 26, 1933. Article 8 provides: “No state has the right to intervene in the internal or external affairs of another.” For the text, see 6 International Legislation 620, 623 (M. Hudson ed. 1937).

121 An inter-American Convention, signed at Havana on Feb. 20, 1928. Article I provides:

The contracting States bind themselves to observe the following rules with regard to civil strife in another of them. . . . Third: To forbid the traffic in arms and war material, except when intended for the Government, while the belligerency of the rebels has not been recognized, in which latter case the rules of neutrality shall be applied.

For the text, see 4 id. at 2416, 2418.

122 Application, supra note 119, at 10. Later, Nicaragua also invoked, as an additional basis of the Court’s jurisdiction, the Treaty of Friendship, Commerce and Navigation of Jan. 21, 1956 between the United States and Nicaragua, which, however, as a bilateral treaty is extraneous to the subject matter of this paper. See Memorial of Nicaragua (Nicar. v. U.S.) 85-90, 95 (submitted to the Court on June 30, 1984).

123 See Declaration of Intervention (Article 63 of the Statute) of the Republic of El Salvador (Nicar. v. U.S.) 12, 14 (submitted to the Court on Aug. 15, 1984), also referred to supra note 113, where mention is made only of the fact that Article 36 was invoked by Nicaragua as the basis of the Court’s jurisdiction.

124 Id. at 14.

125 Letter of the Agent of El Salvador, supra note 15, at 2–3, para. 1.

126 See Counter-Memorial submitted by the United States of America (Nicar. v. U.S.) 177–90 (Aug. 17, 1984).

127 See the Judgment of Nov. 26, 1984 ICJ Rep. at 442; see also notes 97 and 116 supra.

128 See 1984 ICJ Rep. at 221.

129 Letter of the Agent of El Salvador, supra note 15, at 6, para. 10 (emphasis added).

130 1984 ICJ Rep. at 219 (quoted in full in text at note 37 supra).

131 On this aspect of the Nicaragua case, see the Editorial Comment by Franck, Thomas M. Icy Day at the ICJ, 79 AJIL 379 (1985)Google Scholar; see also Observations by the U.S. Department of State on the ICJ’s Nov. 26, 1984 Judgment, id. at 423.

132 1984 ICJ Rep. at 221.