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The Intervention by Nicaragua in the Case between El Salvador and Honduras before an Ad Hoc Chamber of the International Court of Justice

Published online by Cambridge University Press:  21 May 2009

Juan José Quintana
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Netherlands International Law Review , Volume 38 , Issue 2 , August 1991 , pp. 199 - 208
Copyright
Copyright © T.M.C. Asser Press 1991

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References

1. See the following recent publications for further reference: Jessup, P.C., ‘Intervention in the International Court’, 75 AJIL (1981) pp. 903–909CrossRefGoogle Scholar; Licari, T., ‘Observations Concerning Judge Jessup's Editorial Comment on “Intervention in the ICJ”’, 76 AJIL (1982) pp. 371–372Google Scholar; Licari, T., ‘Intervention under Article 62 of the Statute of the ICJ’, 8 Brooklyn JIL (1982) pp. 267–287Google Scholar; Elias, T.O., ‘The Limits of the Right of Intervention in a Case before the ICJ’, in Volkerrecht als Rechtsordnung—internationale Gerichtsbarkeit—Menschenrectite. Festschrift für Herman Mosier (1983) pp. 159–172Google Scholar; E. Jiménez de Aréchaga, ‘Intervention under Article 62 of the Statute of the ICJ’, ibid. pp. 453–465; S. Oda, ‘Intervention in the ICJ; Articles 62 and 63 of the Statute’, ibid. pp. 629–648; Morelli, G., ‘Function et objet de l'intervention dans le procès international’ in Essays in Honour of Judge Manfred Lachs (1984) pp. 403–408Google Scholar; Sperduti, G., ‘Notes sur l'intervention dans le procès international’, 30 AFDI (1984) pp. 273–281CrossRefGoogle Scholar; Starke, J.G., ‘Locus Standi of a Third State to Intervene in Contentious Proceedings before the ICJ’, 58 Australian LJ (1984) pp. 356–358Google Scholar; Sperduti, G., ‘L'intervention de l'Etat tiers dans le procès international: une nouvelle orientation’, 31 AFDI (1985) pp. 286–293CrossRefGoogle Scholar; Thirlway, H.W.A., ‘Reciprocity in the Jurisdiction of the International Court’, 15 NYIL (1984) pp. 100–102CrossRefGoogle Scholar; Chinkin, C.M., ‘Third–Party Intervention before the ICJ’, 80 AJIL (1986) pp. 495–531CrossRefGoogle Scholar; Decaux, E., ‘“L'intervention” en “La jurisdiction internationale permanente”’, Colloque de Lyon de la Société française pour le droit international (1987) pp. 167–190Google Scholar; Rosenne, S., ‘Some Reflections on Intervention in the ICJ’, 34 NILR (1987) pp. 75–90CrossRefGoogle Scholar.

2. ICJ Rep (1984) p. 28, para. 45.

3. Statute, Articles 62 and 63; Rules of Court, Part III, Section C, Subsection 4, Arts. 81 to 86. The cases in which requests far permission to intervene have been submitted before the present Court are: Haya de la Torre (under Art. 63), ICJ Rep. (1951) p. 71; Nuclear Tests, ICJ Rep. (1973) pp. 320 and 324, and ICJ Rep. (1974) pp. 530 and 535; Continental Shelf (Libya/Tunisia), ICJ Rep. (1981) p. 3; Continental Shelf (Libya/Malta), ICJ Rep. (1984) p. 3; and Military and Paramilitary Activities in and Against Nicaragua (also under Art. 63), ICJ Rep. (1984) p. 215.

4. Supra n. 2.

5. It must be noted that in the two previous instances before the Court in which intervention was denied there were many Judges who voted against the respective judgments and appended individual opinions in which they pronounced themselves clearly in favour of intervention. Amongst these are three Judges who currently sit in the ad hoc Chamber which is dealing with this case, namely Judges Sette Camara, Oda and Sir Robert Jennings (the President of the ICJ). At the hearings on the application for permission to intervene, the Agent of Nicaragua recalled this, going so far as to quote those opinions. (ICJ Public Sitting of 5 June 1990, Verbatim Record, p. 29).

6. Aside from the obvious fact that the Special Agreement is res inter alios acta far Nicaragua, it must be taken into consideration that the declarations of acceptance of the compulsory jurisdiction of the Court made by the three States do not coincide sufficiently to allow for this dispute to be brought before it under the system of the Optional Clause. This is so due to the reservations included in the declarations of El Salvador and Honduras, respectively. See ICJ Yearbook (1988–1989) pp. 68 and 72.

7. In the three cases which were brought before ad hoc Chambers up to this date, mere have only been two types of incidental proceedings: provisional measures — in the case concerning the Frontier Dispute (Burkina Faso/Mali); and preliminary objections — in the case Elettronica Sicula s. p. A. ELSI (Italy/USA). In the latter, however, the exception was joined to the merits. See Order of 28 January 1986, ICJ Rep. (1986) p. 3; and ICJ Rep. (1989) p. 42, para. 49.

8. This is the opinion of Judge Oda. According to him, ‘the competence of the Chamber formed under Article 26, paragraph 2, of the Statute to deal with any application to intervene is … unequivocally established by Article 62 of the Statute, read together with Article 90 of the Rules of Court … and by Article 27 of the Statute’. Order of 28 February 1990, Declaration by JudgeOda, , ICJ Rep. (1990) p. 7Google Scholar.

9. Application for Permission to Intervene by the Government of Nicaragua, Part I, in fine.

10. Supra n. 9, at p. 23.

11. Ibid. at p. 24.

12. Supra n. 8, at p. 4. This was strongly criticised by Judge Tarassov, for whom oral proceedings in these circumstances were ‘more than necessary’. Ibid. Dissenting Opinion of Judge Tarassov, p. 16.

13. It is worth noting that the Court did not have to mention Art. 90 of the Rules expresis verbis to reach a decision on this matter. The main reasons used to establish the competence of the Chamber in incidental proceedings were: (i) It is for the tribunal seised of a principal issue to deal also with any issue subsidiary there to; therefore, a Chamber formed to deal with a particular case deals not only with the merits of the case, but also with incidental proceedings arising in that case, (ii) The question whether an application for permission to intervene should be granted requires a judicial decision whether the State seeking to intervene ‘has an interest of a legal nature which may be affected by the decision’ in the case, and can therefore only be determined by the body which will be called upon to give the decision on the merits of the case. Supra n. 8, at pp. 4 and 5.

14. Ibid. at pp. 5–6.

15. The Dissenting Opinion of Judge Shahabudeen — which is over forty pages long, whilst the Order to which it is appended is only four — constitutes a vigorous plea regarding the aspects of the unconstitutionality of what he calls ‘the existing arrangements relating to ad hoc Chambers’, that is, the provisions of the Rules which were introduced in 1972 and which sought to encourage resort to Chambers. Ibid. pp. 18–62.

16. Supra n. 8.

17. The Chamber found that there were two clear points in this respect: (i) That it is for the State seeking to intervene to demonstrate convincingly what it asserts; and (ii) That it has only to show that its interest ‘may’ be affected, not that it will or must be affected. Judgment of 13 September 1990, ICJ Rep. (1990) p. 117, para. 61.

18. Supra n. 17, at p. 116, para. 58.

19. ‘The Parties request the Chamber: …

(2) To determine the legal situation of the islands and maritime spaces.’

(See text in Spanish at the beginning of the Judgment, supra n. 17, at pp. 95 to 97).

20. Supra n. 17 at pp. 119–127, paras. 65 to 84, especially paras. 79 and 84. This conclusion was criticised by Judge Oda in the only Separate Opinion appended to the Judgment. According to him, Nicaragua should not have been deprived of me opportunity to express its views in due course on any delimitation between El Salvador and Honduras within the Gulf which may fall to be effected by the Chamber or with respect to any delimitation which may fall to be effected outside the Gulf, in the event that some title may have been established in favour of Honduras. Ibid. Separate Opinion of Judge Oda, p. 144.

21. Ibid. p. 134, para. 99.

22. Ibid. p. 136, paras. 103 and 104.

23. ICJ Rep. (1984) p. 22, para. 34.

24. Supra n. 17, at p. 135, para. 101.

25. Ibid. pp. 133, para. 96, and 135, para. 100.

26. Ibid. p. 136, para. 102.

27. By the time this paper went to press, the proceedings in this case had already been completed. The written proceedings resulting from the Judgment of 13 September 1990 took place according to an Order made by the President of the Chamber on 14 September 1990, pursuant to Art. 85 of the Rules of Court As for the oral proceedings, several hearings — with the conspicuous participation of Nicaragua as as ‘intervening’ State — were held at the Peace Palace between April 15 and June 14, 1991, the case being declared closed and ready for Judgment on the later date. It is hoped that a Judgment on the merits will be delivered in early 1992.

With regard to the composition of the Chamber, it is worth noting mat on 7 February 1991 Judges Sir Robert Jennings and Oda were elected, respectively, President and Vice-President of the Court.