Case Digest: El Salvador v. Honduras Nicaragua Intervention, 1992

 Public International Law | Intervention

In its Application for permission to intervene, filed on 17 November 1989, Nicaragua stated that the Application was made by virtue of Article 36, paragraph 1, and Article 62 of the Statute. 

***** The Chamber observes that as the Court has made clear in previous cases, in order to obtain permission to intervene under Article 62 of the Statute, a State has to show an interest of a legal nature which may be affected by the Court’s decision in the case ...

(b) Object of the intervention 

The Chamber turns to the question of the object of Nicaragua’s Application for permission to intervene in the case. A statement of the “precise object of the intervention” is required by Article 81, paragraph 2(b), of the Rules of Court. 

Nicaragua’s indication, in its Application for permission to intervene, of the object of its intervention in the present case, is as follows: “The intervention for which permission is requested has the following objects: 

“First, generally to protect the legal rights of the Republic of Nicaragua in the Gulf of Fonseca and the adjacent maritime areas by all legal means available. “Secondly, to intervene in the proceedings in order to inform the Court of the nature of the legal rights of Nicaragua which are in issue in the dispute. This form of intervention would have the conservative purpose of seeking to ensure that the determination of the Chamber did not trench upon the legal rights and interests of the Republic of Nicaragua.” * * * * *

So far as the object of Nicaragua’s intervention is “to inform the Court of the nature of the legal rights of Nicaragua which are in issue in the dispute,” it cannot be said that this object is not a proper one: it seems indeed to accord with the function of intervention. ... Secondly, it does not seem to the Chamber that for a State to seek by intervention “to protect its claims by all legal means” necessarily involves the inclusion in such means of “that of seeking a favourable judicial pronouncement” on its own claims. The “legal means available” must be those afforded by the institution of intervention for the protection of a third State’s legal interests. So understood, that object cannot be regarded as improper. 

* * * * * 

The Chamber has now further to consider the argument of El Salvador that for Nicaragua to intervene it must in addition show a “valid link of jurisdiction” between Nicaragua and the Parties. In its Application, Nicaragua does not assert the existence of any basis of jurisdiction other than the Statute itself, and expresses the view that Article 62 does not require a separate title of jurisdiction. 

The question is whether the existence of a valid link of jurisdiction with the parties to the case — in the sense of a basis of jurisdiction which could be invoked, by a State seeking to intervene, in order to institute proceedings against either or both of the parties — is an essential condition for the granting of permission to intervene under Article 62 of the Statute. In order to decide the point, the Chamber must consider the general principle of consensual jurisdiction in its relation with the institution of intervention. 

There can be no doubt of the importance of this general principle. The pattern of international judicial settlement under the Statute is that two or more States agree that the Court shall hear and determine a particular dispute. Such agreement may be given ad hoc, by Special Agreement or otherwise, or may result from the invocation, in relation to the particular dispute, of a compromissory clause of a treaty or of the mechanism of Article 36, paragraph 2, of the Court’s Statute. Those States are the “parties” to the proceedings, and are bound by the Court’s eventual decision because they have agreed to confer jurisdiction on the Court to decide the case, the decision of the Court having binding force as provided for in Article 59 of the Statute. Normally therefore, no other State may involve itself in the proceedings without the consent of the original parties. Nevertheless, procedures for a “third” State to intervene in a case are provided in Articles 62 and 63 of the Court’s Statute. The competence of the Court in this matter of intervention is not, like its competence to hear and determine the dispute referred to it, derived from the consent of the parties to the case, but from the consent given by them, in becoming parties to the Court’s Statute, to the Court’s exercise of its powers conferred by the Statute. Thus, the Court has the competence to permit an intervention even though it be opposed by one or both of the parties to the case. The nature of the competence thus created by Article 62 of the Statute is definable by reference to the object and purpose of intervention, as this appears from Article 62 of the Statute.

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, to become a new party, and so have its own claims adjudicated by the Court. Intervention cannot have been intended to be employed as a substitute for contentious proceedings. Acceptance of the Statute by a State does not of itself create jurisdiction to entertain a particular case: the specific consent of the parties is necessary for that. If an intervener were held to become a party to a case merely as a consequence of being permitted to intervene in it, this would be a very considerable departure from the principle of consensual jurisdiction. It is therefore clear that a State, which is allowed to intervene in a case, does not, by reason only of being an intervener, become also a party to the case. 

It thus 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. The Chamber therefore concludes that the absence of a jurisdictional link between Nicaragua and the Parties to this case is no bar to permission being given for intervention. 

IV. Procedural Rights of State permitted to intervene 

Since this is the first case in the history of the two Courts in which a State will have been accorded permission to intervene under Article 62 of the Statute, it appears appropriate to give some indication of the extent of the procedural rights acquired by the intervening State as a result of that permission. In the first place, as has been explained above, the intervening State does not become party to the proceedings, and does not acquire the rights, or become subject to the obligations, which attach to the status of a party, under the Statute and Rules of Court, or the general principles of procedural law. Nicaragua, as an intervener, has of course a right to be heard by the Chamber. That right is regulated by Article 85 of the Rules of Court, which provides for submission of a written statement, and participation in the hearings. 

The scope of the intervention in this particular case, in relation to the scope of the case as a whole, necessarily involves limitations of the right of the intervener to be heard. An initial limitation is that it is not for the intervener to address argument to the Chamber on the interpretation of the Special Agreement concluded between the Parties on 24 May 1986, because the Special Agreement is, for Nicaragua, res inter alios acta; and Nicaragua has disclaimed any intention of involving itself in the dispute over the land boundary. The Chamber then summarizes the aspects of the case in respect of which Nicaragua has shown the existence of an interest of a legal nature and those in respect of which it has not, with the consequent limitations on the scope of the intervention permitted.