1 There were two successful attempts in this time span, both under Art. 63. Intervention by Poland in the S.S. Wimbledon Case, 1923 P.C.I.J. Rep. (Ser.A, No.l, 5) 9–14; and intervention by Cuba in the Haya de la Torre Case (Columbia v. Peru), 1951 I.C.J. Rep. 71, at 73–77 [Haya de la Tone case]. See generally, regarding intervention before the Permanent Court of International Justice [Permanent Court] W. Farag, L'Intervention devam la Cour permanente de Justice Internationale (1927); P. Bastid, V' Intervention devant lesJuridiaions Internationales, 36 RPP100–114 (1929); and W. Friede, Die Intervention im Verfahren vor dem stäidigen Internationalen Gerichtshof, 3 ZAORV 1–67 (1932).

2 Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras), 1990 I.C.J. Rep. 92 (Application to Intervene) [hereafter Nicaraguan Intervention]. See for comments Oellers-Frahm, K., überlegungen anläβlich derZulassung der Intervention Nicaraguas im Streit zwischen El Salvador und Honduras, Urteil derKamniervom 13.9.1990, 50 ZAORV 795–811 (1990)Google Scholar; Quinma, J., The lntervention by Nicaragua in the Case between El Salvador and Honduras before an Ad Hoc Chamber of the International Court of Justice, 38 N1LR 199–208 (1991)Google Scholar; Stem, B., Chroniquede Jurisprudence de la Cour Internationale de Justice (1990), L'Affaire du Differend Terrestre. lnsulaireet Maritime (ElSalvador/Honduras): la Demanded'Intervention du Nicaragua, 118 JDI 746–761 (1991)Google Scholar; Seifi, J., International Court of Justice, Nicaragua Granted Permission to Intervene in the (El Salvador/Honduras) Land, Island and Maritime Frontier Case, 6 International Journal of Estuarine and Coastal Law 253–268 (1991)CrossRefGoogle Scholar; Ratner, S., International Decisions, Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, 85 AJIL 680–686 (1991)CrossRefGoogle Scholar; Kohen, M., La Requite a Fin d'Intervention du Nicaragua dans l'Affaire du Differend FrontalierTerrestre.lnsulaireelMaritime (ElSalvador/Honduras), L'OrdonnancedelaCourdu28f(vrier 1990 el I'Arret de la Chambre du 13 septembre 1990, 36 AFDI 341–367 (1990)CrossRefGoogle Scholar; E. Lauterpacht, Aspects of the Administration of International Justice 26–30 (1991); Giinther, K., Zuldssigkeit und Grenzen der Intervention bei Slreitigkeiten vor dem IGH. Rechtsfragen zu Artikel 62 und 63 des IGH-Statuts, 34 GYIL 254–295 (1991)Google Scholar; Evans, M., Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) – The Nicaraguan Intervention, 41 ICLQ 896–906 (1992)CrossRefGoogle Scholar; Greig, D., Third Party Rights and Intervention Before the International Court, 32 VJIL 285–376 (1992).Google Scholar

3 V. Mani, International Adjudication, Procedural Aspects 254 and 258–259 (1980); S. Rosenne, The Law and Practice of the International Court, Second Revised Edition 530–531 (1985); G. Fitzmaurice, 2 The Law and Practice of the International Court of Justice 550–551 (1986).

4 G. Guyomar, Commentair du Reglement de la Cour Internationale de Justice, Interpretation et Pratique 384(1973).

5 The attempt by Fiji to intervene in the Nuclear Tests cases (which was also the first real attempt to intervene under Art. 62) brought this issue to the fore. A number of judges held or implied that permission to intervene would have been withheld anyway, because Fiji could not establish a jurisdictional link with the defending principal party. Declarations of judges Gros, Onyeama, Dillard, Waldock, Jimenez de Arechaga and Barwick, Nuclear Tests, (Australia v. France), 1974 I.C.J. Rep. 530 (Application to Intervene) 531–534. Thus they reopened the debate held by the first judges of the Permanent Court, when they were called together to establish the Rules of the Court. Publ. C.P.J.I., Actes et Documents relatifs a I'Organisation de la Cour, No. 2, Preparation du Reglement de la Cour 86–97 (1922).

6 Apart from the possibility of forum prorogation. J. Stanczyk, Permissibility of Intervention under Article 62 of the Statute before the International Court of Justice, I6 PYIL 121–142 (1987) 133.

7 Continental Shelf, (Tunisia v. Libyan Arab Jamahiriya), Application to Intervene, 1981 I.C.J. Rep. 3 (Application to Intervene) 20 [hereafter Maltese Intervention Attempt]; Continental Shelf, (Libyan Arab Jamahiriya v. Malta), 1984 I.C.J. Rep. 3 (Application to Intervene) 24 [hereafter Italian Intervention Attempt]. Commented upon by Decaux, E., L'Arret de la C.IJ. sur la Requite de Malte dans I'Affaire du Plateau Continental entre la Tunisie et Libye (14 avril 1981), 27 AFDI 177–202 (1981)CrossRefGoogle Scholar; Decaux, E., L'Arret de la Cour Internationale de Justice sur la Requete de i Italic ´fin d' Intervention dans I'Affaire du Plateau Continental entre Libye et Malte. Arret du 21 mars 1984, 80 AFDI 282–303 (1984)CrossRefGoogle Scholar; Oellers-Frahm, K., Die Intervention nach Art. 62 des Statuts des lnternationalen Cerichlshofs, Oherlegungen anliifilich der Entscheidung des lnternationalen Gerichtshofs vom 14. April 1981 uber die Interventions Maltas, 41 ZAORV 579–588 (1981)Google Scholar; Oellers-Frahm, K., Anmerkungen sur Intervention Italiens im Verfahren zur Abgrenzung des Fesllandsockels zwischcn Malta und Libyen, 44 ZAORV 840–855 (1984).Google Scholar

8 Observations of El Salvador on the Nicaraguan request for permission to intervene in the Case concerning the Land, Island and Maritime Frontier Dispute, 6–8 [hereafter Salvadoran Observations].

9 Observations of Honduras on the Nicaraguan request for permission to intervene in the Case concerning the Land, Island and Maritime Frontier Dispute, March 23, 1990, 7–8 [hereafter Honduran Observations].

10 Application for Permission to Intervene by the Government of Nicaragua in the Case concerning the Land, Island and Maritime Frontier Dispute, November 17, 1989, 6 [Nicaraguan Application]. This stance has been refuted by the Chamber. Nicaraguan Intervention, 133. For a discussion of exactly this point see R. Donner, International Adjudication: Using the International Court of Justice 22–28 (1988).

11 Nicaraguan Intervention, 135. Nicaragua originally addressed the request for permission to intervene to the Court in full composition. The Court however decided that, intervention being incidental to the pending proceedings, it was for the Chamber instituted for the case to grant permission to intervene, or not. Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), 1990 I.C.J. Rep. 3 (Application to Intervene) [Nicaraguan Intervention Order]. Commented upon by Zimmerman, A., Bemerkungen zum Verlwltnis von ad hoc-Kammern des lnternationalen Gerichlshofes und Intervention, 50 ZAORV 646–660 (1990).Google Scholar

12 The Statute of the Court forms an integral part of the Charter of the United Nations (Art 92) [hereafter Charter], and is as such subject to rules of treaty interpretation. One should, therefore, in examining A n 62 of the Statute fall back on the general rule of treaty interpretation, as enunciated in Art. 31(1) of the Vienna Convention on the Law of Treaties: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. This rule may be considered to reflect a rule of customary international law to the same effect. I. Sinclair, The Vienna Convention on the Law of Treaties, Second Edition 153(1984). See Rosenne for the legislative history and the majorities by which An. 31 has been accepted. S. Rosenne, The Law of Treaties, A Guide to the Legislative History of the Vienna Convention 215–219(1970). Resort to the customary rule of treaty interpretation is necessary as a result of the non-retroactivity of the Vienna Convention, as laid down in Art. 4, in regard to treaties that entered into force before the Vienna Convention itself entered into force.

13 M. Hudson, The Permanent Court of International Justice, 1920–1942, (1943), at 420 : Licari, T., Intervention under Ankle 62 of the Statute of the I.C.J., 8 BJIL 267–287 (1982) 272Google Scholar; W. Fritzemeyer, Die Intervention vor dem Internationalen Gerichtshof 93 (1984); McGinley, G., Intervention in the International Court: The Libyal Malta Continental Shelf Case, 34 ICLQ 671–694 (1985) 687CrossRefGoogle Scholar; and Chinkin, C., Third-Party Intervention before the International Court of Justice, 80 AJIL 495–531 (1986), 506.CrossRefGoogle Scholar

14 Bathurst (Malta), I.C.J. Pleadings, Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Vol. Ill, at 356 [hereafter Pleadings 1981].

15 Italian Intervention Attempt. 27.

16 Italian Intervention Attempt, 28. See also Rosenne, S., Some Reflections on Intervention in the International Court of Justice, 34 NILR 75–90 (1987) 83.CrossRefGoogle Scholar

17 Art 63 of the Statute runs: 1. Whenever the construction of a convention to which Slates other than those concerned in the case are parties is in question, the Registrar shall notify all such States forthwith. 2. Every State so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it. The only other case which concerned Art. 63, beside those mentioned supra note 1, is Military and Paramilitary Activities in and against Nicaragua, 1984 I.C.J. Rep. 215 (Declaration of Intervention). For comments see Rogers, W./Beat, J./Wolf, C., Application of El Salvador to Intervene in the Jurisdiction and Admissibility Phase of Nicaragua v. United States, 78 AJIL 929–936 (1984)CrossRefGoogle Scholar; Sztucki, J., Intervention under Article 63 of the ICJ Statute in the Phase of Preliminary Proceedings: The ‘Salvadoran Incident’, 79 AJIL 1005–1036 (1985)Google Scholar; Günther, supra note 2, at 284–291. See generally regarding intervention under Art 63 Institut für Ausländisches Öffentliches Recht und Völkerrecht. Statut et Reglement de la Cour Permanente de Justice Internationale, Élements d'Interpre'tation 443–448 (1934); Hambro, E., Intervention under Article 63 of the Statute of the International Court of Justice, in Studi in onore di Gaetano Morelli, II processo intemazionale, 14 Comunicazioni e Studi 387–400 (1975)Google Scholar; Miller, J., Intervention in Proceedings before the International Court of Justice, in L. Gross, 2 The Future of the International Court of Justice 550–571 (1976), at 551–554.Google Scholar

18 M. Dubisson, La Cour Internationale de Justice 237 (1964); W. Fritzemeyer, supra note 13, at 159.

19 Jessup, P., Intervention in the International Court, 75 AJIL 903–909 (1981) 904CrossRefGoogle Scholar; W. Fritzemeyer, supra note 13, at 158; G. Fitzmaurice, supra note 3. at 551.

20 G. Fitzmaurice. supra note 3, at 551.

21 Rosenne, supra note 3, at 422–423; and generally Briggs, H., La Competence Incidente de la Cour Internationale de Justice en tant que Compétence Obligatoire, 64 RGDIP 217–229 (1960).Google Scholar

22 W. Fritzemeyer, supra note 13, at 96; Malintoppi (Libya), Pleadings 1981, 391 and 395; and Highet (El Salvador), Verbatim Record, June 7, 1990, C 4/CR 90/4, 19 [hereafter Records 1990]. See also Italian Intervention Attempt, 8.

23 As Fritzemeyer seems to acknowledge. Id.

24 Art. 53(2) reads: “The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law”. See especially T. Elias, The Limits of the Right of Intervention in a Case before the International Court of Justice, in R. Bernhardt, Vö1kerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte, Festschrift fur Hermann Mosler 159–172 (1983), at 163–164.

25 Highet (El Salvador), Records 1990 (June 7), G 4/CR 90/4, 21–22.

26 Why, if these matters were so controversial, did the revision of the Statute not lead to clarifications in this respect. A. Madakou, Intervention before the International Court of Justice 74 (1988).

27 E. Jiménezde Aréchaga, Intervention under Article 62 of the Statute of the International Court of Justice, in R. Bernhardt, supra note 24, 453–465, at 463–464; W. Fritzemeyer, supra note 13, at 100.

28 O. McGinley, supra note 13, at 688. M. Hudson, supra note 13, at 420, observes: “If two States are before the Court by reason of declarations made under Paragraph 2 of Article 36, it would seem to be a derogation from the condition of reciprocity in their declarations to allow intervention by a third state which has made no similar declaration; the situation is not essentially different, however, when two states are before ihe Court under a special agreement and it allows intervention by a third state which is not a party to the agreement”. Id., at 422; Smyrniadis, B., L'Intervention devant la Cour Internationale de Justice, 9 REDI 28–40 (1953). at 29–30.Google Scholar

29 No useful purpose would be served by discussing the travaiix priparatoires, for as the Court stated (Italian Intervention Attempt. 27): “The Court observed that from the 1922 discussions up to and including the hearings in the present proceedings the arguments on this point have not advanced beyond the stage they had reached 62 years ago”. For these works see PCIJ, Advisory Committee of Jurists, Procés-Verbaux of the Proceeding of the Committee, June 16-July 24, 1920, 587–588, 592–594, and 745–746 [hereafter Proces-Verbaux]; League of Nations, PCIJ, Report on the Draft Scheme of the Advisory Committee, submitted by Léon Bourgeois, adopted by the Council of the League of Nations, Meeting of October 27, 1920, at 91; Preparation du Réglemem, supra note 5, at 86–97 and 349–350.

30 Procés-Verbaux, supra note 29, at 593–594 read in conjunction with 746; I. Diaite, L'Intérêt à Agir devant la C.J.J., Annales Africaines 37–52 (1968) 45–47. Conti mentions the very interesting idea that political intervention had been excluded for the reason that the draftsmen realized that no jurisdictional link was required under Art. 62. He fails, however, to substantiate this argument. Conti (Italy), Verbatim Record, January 25, 1984, CR 84/2. 41 [hereafter Records 1984].

31 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), 1980 I.C.J. Rep. 3, at 20. Also Gordon, ‘Legal Disputes’ under Article 36(2) of the Statute, in L. Damrosch, The International Court of Justice at a Crossroads 183–222 (1987), at 185. In this respect the Court also did not refrain from adjudicating upon the legal aspects of a dispute which had major political connotations. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 1986 I.CJ. Rep. 14 (Merits), at 26–27.

32 The demarcation between political and legal disputes, or interventions, already presented difficulties in the Permanent Court era. W. Farag, supra note 1, at 82–97.

33 See Maltese Intervention Attempt, 12; Italian Intervention Attempt, 74; Nicaraguan Intervention, 116.

34 For instance Ago holds that an interest of a legal nature is equivalent to a right. See Dissenting Opinion Ago, Italian Intervention Attempt, 124. See also Günther, supra note 2, at 267.

35 See Dissenting Opinion Winiarski, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), 1962 I.C.J. Rep. 319 (Preliminary Objections) 455. He added the adjectives ‘real', ‘existing’ and ‘individual’ as qualifications to the interest that had to be legally protected.

36 The Chamber finds, with regard to the object to be attained by intervention, that a state applying to intervene does not have to show the existence of rights in need of protection, but merely an interest of a legal nature which may be affected. See Nicaraguan Intervention, 129. Fitzmaurice refers to the possibility for requiring the decision of the Court being able to affect the rights and obligations of the intervening state, but he holds this to be too strict. See G. Fitzmaurice, supra note 3, at 552.

37 Mbaye, K., L'lntiretpourAgir devant la Cow Internationale de Justice, 209 RDC ADI 223–345 (1988-II)Google Scholar, at 263; W. Fritzemeyer, supra note 13, at 115.

38 Reference to the sources of international law as a criterion to determine the legal character of an interest may already be found with those writers reflecting upon the same problems under the Permanent Court. See W. Farag, supra note 1, at 94–96; W. Friede, supra note 1, at 33–34. Farag also refers to disputes to be settled in accordance with the categories listed in Art. 36(2) of the Statute of the Permanent Court, (almost identical to the present Art 36(2)). See also P. Bastid, supra note 1, at 107–108.

39 See Dissenting Opinion Sette-Camara, Italian Intervention Attempt, 83. Virally takes the position that claims are not rights, but, so he says, claims may be considered to constitute interests of a legal nature under An. 62. Virally, (Italy), Records 1984 (January 30th), CR 84/7, 23. The relationship between interests sec and rights and obligations has been reflected upon by the Court in the South West Africa cases, where it held that interests only create rights and obligations when given juridical expression and clothed in legal form. South West Africa case, 1966 I.C.J. Rep. 6 (Second Phase) 34.

40 See G. Fitzmaurice, supra note 3, at 552–553; W. Friede, supra note 1, at 33–34; Descamps, in Proces-Verbaux, supra note 29, at 592–593; Huber, in Preparation du Réglement, supra note 5, at 87; Anzilotti, in Preparation du Réglement, supra note 5, at 90. Also on this point E. Decaux, L'Intervention, in Société Frančaise pour le Droit International, Colloque de Lyon, La Juridiction Internationale Permanente 219–255 (1987) 223; and W. Fritzemeyer, supra note 13, at 116–117. In a contrary sense I. Diaite, supra note 30, at 48–49.

41 See Maltese Intervention Attempt, 12.

42 See Nicaraguan Intervention, 124; and 126.

43 See Maltese Intervention Attempt, 18–20.

44 See generally on res judicata Dissenting Opinion Anzilotti, Interpretation of Judgments Nos. 7 and 8 (The Chorzów Factory), 1927 P.C.I.J. Rep. (Ser. A, No. 13, 4), at 23–27. See also Weil (El Salvador), Records 1990, (June 6), C 4/CR 90/3, at 31.

45 Yet Art. 59 does not always adequately protect those interests, because if it would do this in all circumstances, why then were the provisions on intervention inserted into the Statute? Surely not just to secure some procedural economy of means (see Italian Intervention Attempt, 26). Indeed, as Morelli aptly points out, Art. 59 affords juridical protection to third states, and ‘affected by the decision in the case’ in Art 62 must therefore of necessity be confined to the factual encroachment on other states interests. G. Morelli, Fonction et Objet de I'Intervention dans le Prods International, in J. Makarczyk, Essays in International Law in Honour of Judge Manfred Lachs 402–408 (1984)404. Also Sperduti, G., La Sauvegarde des Droits de I'Etat Tiers dans le Proces devanl la Cour Internationale de Justice, 71 RDI 86–93 (1988) 89–90Google Scholar. Seemingly in the same sense Italian Intervention Attempt, 26–27. Contrary International Court of Justice, Continental Shelf (Libyan Arab Jamahiriya/Malta), Observations by Malta upon the Application by Italy to Intervene, December 5, 1983, at 18.

46 Lauterpacht (El Salvador), Records 1990 (June 6), C 4/CR 90/3, at 75, mentions that intervention:“[…] carries with it the possibility of the introduction into the main case of new features that may possibly affect the position of the original parties in relation to each other”.

47 See Maltese Intervention Attempt, 17–20.

48 See Italian Intervention Attempt, 27. See also J. Stanczyk, supra note 6, at 134–138.

49 With regard to Art. 63 the Court had stressed this point in the Haya de la Torre case, 76.

50 See Nicaraguan Intervention, 116.

51 See Italian Intervention Attempt, 18.

52 See Nicaraguan Intervention, 130.

53 On the procedural level the Rules of Court provide in Art. 85 that a state granted permission to intervene under Art. 62 shall be supplied with the pleadings and documents of the principal parties, and shall be entitled to take part in the written and oral proceedings.

54 See Nicaraguan Intervention, 131.

55 See Italian Intervention Attempt, 20–21.

56 It is to be noted that the Court referred to Cuba as an intervening party. See Haya de la Torre case, 72.

57 See Nicaraguan Intervention, 130–131.

58 Id., 131.

59 See Italian Intervention Attempt, 19.

60 Id., 20, 22 and 23.

61 Id., 23.

62 Id., 22.

63 The Mavrommatis Palestine Concessions Case, 1924 P.C.I.J. Rep. (Ser. A, No. 2, 6) at 11. See generally A. Cassese, The Concept of ‘Legal Dispute’ in the Jurisprudence of the InternationalCourt, in Studi in onore di Gaetano Morelli, supra note 17, at 173–200.

64 The Court argued in the Northern Cameroons case that it was not concerned with the question whether there existed any dispute in regard to the same subject-matter between Cameroon and the United Nations. It therefore did not deal with the question whether such a dispute should be considered to constitute an additional dispute. See case concerning the Northern Cameroons (Cameroon v. United Kingdom), 1963 I.C.J. Rep. 15 (Preliminary Objections) 27.

65 See Italian Intervention Attempt, 19.

66 See Dissenting Opinion Schwebel, Italian Intervention Attempt, 138. He observes: “The flaw in this analysis is that Italy's request, even if, arguendo, it is acknowledged to advance claims against the principal parties, does not give rise to an additional dispute, except in so far as what is a dispute between two parties would become a dispute between three”.

67 In agreement K. Oellers-Frahm, supra note 7, at 852; and K. Günther, supra note 2, at 271–272. Otherwise G. Sperduti, Notes sur I'intervention dans le procés international, 30 AFDI (1984) 273–281, at 274; and G. Morelli, supra note 45, at 402.

68 See Salvadoran Observations, 8–9.

69 See Nicaraguan Application, 11–12.

70 See Nicaraguan Intervention, 114. See also 113, 129–131, and 134; Dissenting Opinion Jennings, Italian Intervention Attempt, 153.

71 See Nicaraguan Intervention, 114–115.

72 Id., 133.

73 See Italian Intervention Attempt, 23. Nicaragua denied bringing an additional dispute before the Chamber, and said that the dispute between the principal parties brought by them before the Chamber for decision was inherently of trilateral character. See Nicaraguan Application, 6 and 10–12.

74 See Italian Intervention Attempt, 22.

75 See the text quoted infra in connection to note 90.

76 See Maltese Intervention Attempt, 18. The Court stated: “Malta, in short, seeks permission to enter into the proceedings in the case but to do so without assuming the obligations of a party to the case within the meaning of the Statute, and in particular of Article 59 under which the decision in the case would hereafter be binding upon Malta in its relations with Libya and Tunesia”.

77 The deletion of ‘as a third party’ was not to alter the meaning formerly attached to Art. 62. See Maltese Intervention Attempt, 15. Actually, the Court said {id.): “At the same time, it seems to have been assumed that a State permitted to intervene under Article 62 would beome a ‘party’ to the case”.

78 Id., 18.

79 Id..

80 Oda holds that Art. 63 does not relate to party intervention. S. Oda, Intervention in the internationalCourt of Justice, Articles 62 and 63 of the Statute, in R. Bernhardt, supra note 24, 629–648, at 644–645; and W. Fritzemeyer, supra note 13, at 159.

81 See Maltese Intervention Attempt, 18–19.

82 See Italian Intervention Attempt, 20–21. See the text quoted supra in connection to note 55.

83 Italy had stated that it would accept the binding force of the future judgment under Art. 59 and suggested that this would amount to a party status (see Italian Intervention Attempt, 12–13), and there are no indications to show that the Court proceeded on some other basis than a party status for Italy.

84 It may be added that the protection thus afforded by intervention comprises of the mutual extension of res judicata between the intervening state and the principal parties. See Separate Opinion Oda, Maltese Intervention Attempt, 27; Grisel (Libya), Records 1984 (January 27), CR 84/5, at 39–42; and especially Land. Island and Maritime Frontier Dispute. September 11, 1992 (Judgment) Para. 421 [hereafter Frontier Dispute case].

85 See Maltese Intervention Attempt. 18–20.

86 Continental Shelf case (Libyan Arab Jamahiriya v. Malta), 1985 I.C.J. Rep. 13, at 24–28 [hereafter Continental Shelf case]. Libya argued that if the sole object of Italy would be to make the Court aware of its interest (one might say to inform the Court), then Italy's Application to intervene would not be one for which permission to intervene should be granted. See International Court of Justice, Continental Shelf case (Libyan Arab Jamahiriya/Malta), Observations on the Application filed by Italy for Permission to Intervene, submitted by Libya, December 5, 1983, at 11; Vallat (Libya), Records 1984 (January 27), CR 84/4, at 72.

87 See Nicaraguan Intervention Order, 5. Especially the authority of the Chamber to decide issues of general scope regarding intervention is disputed by K. Oellers-Frahm, supra note 2, at 803, 804 and 809.

88 The non-party status accorded by the Chamber is not, as such, in contradiction to Nicaraguan aspirations, because it had stated that it was willing to conform to any procedure indicated by the Chamber. See Argüello Gómez (Nicaragua), Records 1990 (June 5), C 4/CR 90/1, at 27.

89 See text quoted supra in connection to note 72.

90 See Nicaraguan Intervention, 133–134.

91 See Nicaraguan Application, 4.

92 See Argüello Goméz (Nicaragua), Records 1990 (June 5), C 4/CR 90/1, at 12; Remiro Bretons (Nicaragua), id., C 4/CR 90/2, at 14; and id. (June 8), C 4/CR 90/5, at 43. Nicaragua did not seek to have its rights determined or declared. See Argüello Gómez (Nicaragua), id., C 4/CR 90/5, at 12.

93 As A. Zimmerman, supra note 11, at 654 n. 38 and 657, pointed out He had not yet taken account of the judgment of the Chamber.

94 See Nicaraguan Application, 12. Both El Salvador and Honduras opposed any such reformation. See Salvadoran Observations, 1–2 and 9–11; Honduran Observations, 1–4 and 8–9. Later Bowett (Honduras) argued that Nicaragua did not claim a party status (incorrectly, supra note 92), so that it also had no right to appoint a judge ad hoc under Art. 31 of the Statute. See Records 1990 (June 7), C 4/CR 90/4, at 48–50.

95 See Argüello Goméz (Nicaragua), Records 1990 (June 5), C 4/CR 90/1, at 16–17. Reiterated after a question of the Chamber. See for question Records 1990 (June 7), C 4/CR 90/4, at 54–55. For reply Argüello Goméz, id., 55; and id. (June 8), C 4/CR 90/5, at 8–9.

96 See Nicaraguan Intervention, 135–136. Slarke mentions that insofar as a third state does not press its claims, it should be allowed to intervene without having to show the existence of a jurisdictional link with the principal parties. See Starke, J., Locus Standi of a Third State to Intervene in Contentious Proceedings before the International Court of Justice, 58 ALJ 356–358 (1984), at 358.Google Scholar

97 See Argüello Goméz, Records 1990 (June 7), C 4/CR 90/5, at 8.

98 K. Oellers-Frahm, supra note 2, at 796 and 802, critically observes that it is this feature, more appropriate for arbitral proceedings and therefore incompatible with the essentially judicial function of the Court, that induced the Chamber to opt for non-party intervention.

99 See Argüello Goméz (Nicaragua), Records 1990 (June 5), C 4/CR 90/1, at 12–14. It is precisely for this reason that Shahabuddeen dissented from the full Court, and, on the assumption that intervention under Art 62 entailed a party status, argued that such reformation should be decided by the full Court. Dissenting Opinion Shahabuddeen, Nicaraguan Intervention Order, 57. Of the same view Dissenting Opinion Tarassov, id., 11–17. Elias, basing himself on similar considerations, observed that it would be too burdensome for the Chamber to refer such matters as related to its composition and a Nicaraguan judge ad hoc back to the full Court. Id., 10.

100 Nicaragua relied heavily on the principle of equality. See Nicaraguan Application, 6–10.

101 See Frontier Dispute case, Para. 421.

102 Id., Para. 423.

103 Judge Oda, who referred to his earlier opinions, observes that Nicaragua will be bound. See Declaration judge Oda, id.; and judge ad hoc Torres Bernardez, who claims that the binding effect of the judgment for Nicaragua, notwithstanding its non-party status, ensues from the analogous application of the principle laid down in Article 63(2) of the Statute. See Separate Opinion Judge Torres Bernardez, id., Para. 208.

104 See Nicaraguan Application, 12.

105 See Case of the Monetary Gold Removed from Rome in 1943, 1954 I.C.J. Rep. 19 (Preliminary Question) 32 [hereafter Monetary Gold case].

106 Id..

107 Although it might be more appropriate to argue that the Court would have been obliged to settle a dispute additional to the one before the Court, and on account of which no jurisdiction existed.

108 See Continental Shelf case, 26.

109 The truth of these arguments has revealed itself in the attitude of the principal parties (Libya and Malta) after the Italian request for permission to intervene had been rejected. For, as appears from the Court's statements in this respect, the parties argued that the Court should not feel inhibited to pass judgment even over those areas where third states might have claims (see Continental Shelf case, 24–25). The Court rejected these views, and disclaimed any intention of adjudicating on geographical areas in which there existed claims by states other than the principal parties (id.). The ratio for this decision of the Court is clearly expressed (id., 26): “[…] it signifies simply that the Court has not been endowed with jurisdiction to determine […]”. So the Court cannot exercise jurisdiction over those areas. But why not? The principal parties claimed that the Court should entertain their claims, and this undisputably shows that they consider the Court as in possession of the requisite jurisdiction. It is in fact the lack of consent on the part of a third state that prevents the Court from adjudicating upon the claims of the principal parties. But surely Italy had offered to remedy this lack of jurisdiction on the part of the Court by applying to intervene. Sperduti in this connection speaks of a redefinition of the jurisdiction of the Court in regard to the case submitted to it. G. Sperduti, L'ntervention de I'État Tiers dans le Prods International: une Nouvelle Orientation, 31 AFDI 286–293 (1985) 292. Oellers-Frahm in her discussion of the Maltese Intervention Attempt held that a state applying to intervene would be required to show the existence of a jurisdictional link, yet in her reaction to the Italian Intervention Attempt she appears to take the view as exposed here. See, respectively, K. Oellers-Frahm, supra note 7, at 583; and K. Oellers-Frahm, supra note 7, at 853.

110 See Nicaraguan Application, 6–8 and 12. See also Argüello Gómez (Nicaragua), Records 1990 (June 5), C 4/CR 90/1, at 17–18; Brownlie (Nicaragua), id., 38–39 and 41.

111 See Nicaraguan Application, 12. Nicaragua's request was made irrespective of refusal or grant of permission to intervene, and it therefore amounted to raising an objection against the jurisdiction of the Court by a non-party. Furthermore, if the Court had granted the request, that would have obliterated the need for granting Nicaragua permission to intervene, because Nicaragua had beforehand disclaimed any intention of intervening with regard to those aspects of the case related to the land boundary. Id., 2. Nicaragua sustained its contradictory approach in the oral proceedings, since it stated that: “When taking a decision on the dispute before it […] the Chamber will need to refrain from reaching a decision where it deems that the legal interests of Nicaragua may be affected […]”. See Remiro Brotons (Nicaragua), Records 1990 (June 5), C 4/CR 90/2, at 11–12 and 16. It may be observed that the essence of intervention is that the third state takes part in the proceedings before the Court. It is clearly not meant as a means of restricting the jurisdiction of the Court.

112 Supra notes 95 and 97.

113 See Nicaraguan Intervention, 116.

114 Id., 119–122.

115 Id., 122. Arguably, because the Chamber will have to determine whether a judgment of the Central American Court of Justice between Nicaragua and El Salvador, which decided that there existed a regime of condominium between the parties, is opposable to Honduras. The Chamber argued that the intrinsic validity of the judgment was not before it, as Honduras did not ask it to be declared invalid. But that is of course not decisive for the matter. It is common knowledge that Nicaragua rejected the judgment (id., 104). If the legal grounds on which Nicaragua relies for such rejection are valid, the Chamber will have to disavow the judgment. Now it is obvious that the claim by El Salvador that there exists a nigime of condominium in the Gulf hinges upon the said judgment. If the judgment falls to the ground, then the claimed regime falls equally to the ground. Full text of judgment in 11 AJIL (1917) 674–730 [hereafter Bryan-Chamorro case]. Honduras indeed explicitly recognized this reasoning, although it denied, as did the Chamber, that the Nicaraguan interest of a legal nature would form the subject-matter of the decision to come. See Honduran Observations, 5–6. Bowett (Honduras), Records 1990 (June 7), C 4/CR 90/4, at 32–33; El Salvador denied the possibility of the judgment of the Chamber affecting Nicaraguan interests, since the judgment of the Central American Court constitutes resjudicata for Nicaraguaand El Salvador. Weil (El Salvador), id. (June 6), C 4/CR 90/3, at 41–44.

116 Supra, quotation connected to note 113.

117 Nicaragua observed: “Once Article 62 is invoked and the affectation of the interests are demonstrated, the only consent that has to be sought is from the third party in order to be able to continue the case. If this consent is not obtained, then the case should be struck from the list as in any other case of so-called forum prorogaium”. See Argüello Goméz (Nicaragua), Records 1990 (June 5), C 4/CR 90/1, at 24; and 23.

118 See Nicaraguan Intervention, 134–135.

119 Id., 135.

120 See Frontier Dispute case, supra Para. 424.

121 See Highet (El Salvador), Records 1990 (June 7), C4/CR 90/4, at 15; Bowett (Honduras), id., 46–47. The latter holds that a jurisdictional link is required if a state wants to intervene as a party. Assuming the correctness of such argument, he nevertheless oversteps the mark in holding that where a case is brought under a special agreement a third state can only intervene as a party with the ad hoc consent of the principal parties. What matters is that jurisdiction ratione materiae is provided for. Only if the jurisdiction ratione materiae, conferred by a jurisdictional basis relied upon by a state applying to intervene, is too restricted to enclose the interests of a legal nature put in issue by the future decision of the Court could one deny that there exists a jurisdictional link.

122 Art. 2(1) of the Charter, and Art. 35(2) of the Statute.

123 See Haya de la Torre case, 76.

124 This reflects Italy's position. See Arangio-Ruiz (Italy), Records 1984 (January 25), CR 84/1, at 54 and 64; Monaco (Italy), id., CR 84/2, at 11–12; Virally (Italy), id. (January 26), CR 84/3, at 24 and 47.

125 Jennings observes: “Thus, where rights in the subject-matter of the action belong to a state which is not a party to the action, the requirement of consent to the exercise of jurisdiction by the Court cuts both ways”. See Dissenting Opinion Jennings, Italian Intervention Attempt, 148.

126 See Dissenting Opinion Ago, Italian Intervention Attempt, 120.

127 Nicaragua argued that its intervention was based upon the jurisdiction conferred in the principal case. See Remiro Bretons (Nicaragua), Records 1990 (June 5), C 4/CR 90/2, at 28–32. It is agreed with Grisel (Libya) that jurisdiction can only be derived from Chapter II of the Statute, although this does not mean that a jurisdictional link is required to be shown. See Records 1984 (January 27), CR 84/5, at 12.

128 See Italian Intervention Attempt, 19. C.f. S. Rosenne, supra note 3, at 43. See in relation to Art. 63 G. Guyomar, supra note 4, at 386.

129 See Dissenting Opinion Schwebel, Italian Intervention Attempt, 146.

130 See Nicaraguan Intervention, 136.

131 See Italian Intervention Attempt, 9.

132 And the only opinion attached to the Chamber's judgment criticizes it because of the limited grant of permission to intervene. See Separate Opinion Oda, Nicaraguan Intervention, 138–144.

133 See Salvadoran Observations, 3.

134 See Bryan-Chamorro case, 729.

135 See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 1984 I.C J. Rep. 392 (Jurisdiction and Admissibility) 430–431. For a discussion of this issue Labouz, M.F., Affaire des ActivMs Militaires et Paramililaires au Nicaragua et contre celui-ci (Nicaragua c. Etats-Unis d'Amiriques): Ordonnance de la Cour Internationale de Justice du 10 mai 1984 en Indication de Mesures Conservatoires, 30 AFDI 340–371 (1984), at 365–367CrossRefGoogle Scholar. Nagendra Singh invoked the principle with regard to the Pakistani Prisoners of War case, and claimed that the Court could not adjudicate upon Pakistani claims in the absence of Bangla-Desh. See Separate Opinion Nagendra Singh, Trial of Pakistani Prisoners of War, 1973 I.C.J. Rep. 328 (Interim Protection), 332.

136 See Frontier Dispute (Burkina Faso v. Mali), 1986 I.C.J. Rep. 554, at 576–580.

137 Id., 580.

138 See International Court of Justice, Press Communique (unofficial) No. 92/18, June 26, 1992, at 8–9.

139 See International Court of Justice, Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections of the Government of Australia, Vol. I, December 1990, at 3 and 139–145. Broader issues related to the case concern several and/or joint responsibility and joinder of parties (id., 121–145). For further arguments see Pellet (Australia), Verbatim Record, November 12, 1991, CR 91/16, at 50–69; id., November 13, 1991, CR 91/17, at 8–48; and id., November 21, 1991, CR 91/21, at 46–69. For Nauru's observations see 4 International Court of Justice, Certain Phosphate Lands in Nauru (Nauru v. Australia), Written Statement of the Republic of Nauru, July 1991, at 85–111, and especially 107–109. Elaborated upon by Crawford (Nauru), Verbatim Record, November 19, 1991, CR 91/20, at 58–96; and id., November 22, 1991, CR 91/22, at 41–53.

140 Judges Jennings, Ago and Schwebel dissented on this point. See Annex to Press Communique’ No. 92/18, at 1–4.

141 See International Court of Justice, Press Communiqué (unofficial) No. 91/6, February 22, 1991.

142 Id.. Portugal further alleges that Australia is contravening Security Council Resolutions 384 and 389, and is consequently in breach of the obligation, laid down in Art. 25 of the Charter, to accept and apply such resolutions. Texts in K. Wellens, Resolutions and Statements of the Security Council (1946–1989)-A Thematic Guide-(1990), at 345–347.

143 In agreement on this see D. Greig, supra note 2, at 346–347 and 375.

144 By analogy the same principle could be said to have been applied by the Permanent Court in the Advisory Opinion concerning Eastern Carelia, where it refrained from exercising its advisory jurisdiction in the face of a state that had expressed its opposition to the proceedings. See Status of Eastern Carelia, 1928 P.C.I.J. Rep. (Ser. B, No. 5, 7) at 27–29.

145 See K. Oellers-Frahm, supra note 2, at 803–804, on good grounds observes that whatever doubts existed with regard to intervention, those did not extend to the binding force of a judgment for an intervening state, and, secondly, that the denial of any possible party status for such a state is unacceptable.

146 One may refer to concepts such as jus cogens and obligations erga onmes, which in relation to intervention would appear to offer great potentialities. See for a discussion of these topics C. Chinkin, supra note 13, at 512–514, who seems to be somewhat pessimistic as regards the feasibility of using intervention under Art. 62 for the defence of community interests. See also I. Diaite, supra note 30, at 49–52. These concepts, of which Chinkin speaks, have found their expression also in Art. 5 Part Two of the ILC-draft on state responsibility, which determines, for the purposes of that draft, the states considered to be injured by another state's breach of obligation. Thus Art. 5(3) provides that all states are held to be injured in case such a breach is to be considered an international crime (An. 19 Part One of the Draft). It may come to happen that jurisdiction of the Court will be envisaged with regard to disputes concerning international crimes (Art. 4, Part Three of the draft, as proposed by the former special rapporteur Riphagen). If in such acase all injured states will be accorded an entitlement to instigate an action before the Court, it would seem certain that, a fortiori, they will also be held to be in possession of ‘an interest of a legal nature which may be affected by the decision in the case'. The normal function of intervention under Art. 62, as formulated by the Chamber, in the sense of a third state merely attaining a non-party status, would appear to be particularly suitable for providing states not directly affected by an international crime with the opportunity of giving their opinion on the legal controversies that will inevitably emerge as the consequence of such a dispute being brought before the Court for settlement. Texts of draft articles are to be found in II Y.B.I.L.C. 1980, Part Two, 30 (Part One); II Y.B.I.L.C. 1984, Part One, 2 (Part Two, of which only five articles have been provisionally adopted: II Y.B.I.L.C. 1985, Part Two, 24); II Y.B.I.L.C. 1986, Part One, 57 (Part Three, no articles adopted).

147 See L. Damrosch, Multilateral Disputes, in L. Damrosch, supra note 31, 376–400, at 387. And that legal security by means of bringing about a situation of res judicata concerns a legitimate interest for states may be derived from Barcelona Traction, Light and Power Company, Limited, 1964 I.C.J. Rep. 6 (Preliminary Objections) 20 and 23–24.

148 It is fortunate, whether one agrees or not with the solutions found, that the Chamber has followed the suggestion by Brownlie that it should reduce uncertainties created by earlier decisions of the Court. See Brownlie (Nicaragua), Records 1990 (June 5), C 4/CR 90/1, at 32.

149 Judges Jennings, Oda and Sette-Camara. The two remaining judges of the Chamber instituted for the case are judges ad hoc Valticos and Torres Bernárdez. With this aspect in mind Lauterpacht (El Salvador), id. (June 6), C 4/CR 90/3, at 80–84, maintained that the Chamber should follow as much as possible earlier decisions of the full Court.

150 Note the apprehensions of Anzilotti, Procés-Verbaux, supra note 29, at 87, in relation to the issue of jurisdiction: “States would hesitate to have recourse to the Court if they had reason to fear that third parties would intervene in their cases”.