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Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene

Published online by Cambridge University Press:  27 February 2017

Steven R. Ratner
Steven R. Ratner*
Affiliation:
United States Department of State
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Extract

In this case before a Chamber of the International Court of Justice, El Salvador and Honduras, by a Special Agreement dated May 24, 1986, requested that the Chamber delimit the land frontier and determine the legal status of certain islands and waters in the general area of the Gulf of Fonseca. The gulf, located on the Pacific coast of Central America, is bordered by El Salvador, Honduras and Nicaragua. Nicaragua filed an application for permission to intervene in the case on November 17, 1989, pursuant to Article 62 of the Statute of the Court, which permits a state to request intervention if the state considers “that it has an interest of a legal nature which may be affected by the decision in the case.”

Keywords

International Court of Justiceapplication by Nicaragua to interveneArticle 62 of the Statute of the Courtfrontier dispute
Type
International Decisions
Information
American Journal of International Law , Volume 85 , Issue 4 , October 1991 , pp. 680 - 686
Copyright
Copyright © American Society of International Law 1991

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References

1 The Chamber consisted of Judges Sette-Camara, President; Oda; and Jennings; and Judges ad hoc Valticos and Torres Bernardez. Judge ad hoc Torres Bernárdez replaced Judge ad hoc Virally after the latter’s death. See Land, Island and Maritime Frontier Dispute (El Sal./Hond.), 1989 ICJ Rep. 162 (Order of Dec. 13).

2 Article 62 of the Statute of the International Court of Justice states:

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.

3 The full Court had previously decided, by a vote of 12-3, that the determination regarding Nicaragua’s Application for permission to intervene should be made by the Chamber in the case, not the full Court. Land, Island and Maritime Frontier Dispute (El Sal./Hond.), Application to Intervene, 1990 ICJ Rep. 3 (Order of Feb. 28). For a recent discussion of this Order, see E. Lauterpacht, Aspects of the Administration of International Justice 89–98 (1991).

4 Article 81, paragraph 2 of the Rules requires an applicant to state:

(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.

International Court of Justice, Charter of the United Nations, Statute and Rules of Court and Other Documents 145 (1989).

5 (It. v. Fr., UK & U.S.), 1954 ICJ Rep. 19, 32–33 (Judgment of June 15) [hereinafter Monetary Gold]. In that case, the Court refused to adjudicate Italy’s request that France, Britain and the United States deliver to Italy certain gold removed from Rome by the Germans in 1943, because Italy’s claim to the gold was based on a claim against Albania and a decision on Italy’s application would require deciding on a dispute against Albania. As Albania had not consented to the Court’s hearing this case either expressly or through intervention, the Court reasoned that it could not rule on Italy’s request.

6 1990 ICJ Rep. at 117, para. 61.

7 Id. at 118, para. 62.

8 Id. at 119, para. 66.

9 Republic of El Salvador v. Republic of Nicaragua, Central American Court of Justice, Mar. 9, 1917, translated in 11 AJIL 674 (1917).

10 Monetary Gold, 1954 ICJ Rep. at 32.

11 1981 ICJ Rep. 3 (Judgment of Apr. 14) [hereinafter Tunisia/Libya].

12 1990 ICJ Rep. at 124, para. 76.

13 Id. at 128, para. 84.

14 Id., para. 85 (quoting Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, 1984 ICJ Rep. 3, 18 (Judgment of Mar. 21)).

15 1990 ICJ Rep. at 129, para. 87.

16 Id. at 130, para. 90.

17 1984 ICJ Rep. 3 (Judgment of Mar. 21) [hereinafter Libya/Malta].

18 1990 ICJ Rep. at 133–34, para. 97.

19 Id. at 142 (Oda, J., sep. op.).

20 1981 ICJ Rep. at 23.

21 1984 ICJ Rep. at 71, 90, 148 (Sette-Camara, Oda and Jennings, respectively).

22 See Tunisia/Libya, 1981 ICJ Rep. at 19; Libya/Malta, 1984 ICJ Rep. at 19–27. This approach was criticized in dissents in the Libya/Malta case by Judges Sette-Camara, 1984 ICJ Rep. at 81 (“the Court subordinates the problem of the interest of a legal nature … to the extent it ‘corresponds’ to the object of the intervention”), and Ago, id. at 116–18.

23 Compare 1990 ICJ Rep. at 124, para. 77 (“In any event, the question is whether a legal interest of Nicaragua would be ‘affected’ by such maritime delimitation”) with id. at 117, para. 61 (applicant “has only to show that its interest ‘may’ be affected, not that it will or must be affected”) (emphasis added).

24 1981 ICJ Rep. at 23–27.

25 Article 59 states: “The decision of the Court has no binding force except between the parties and in respect of that particular case.”

26 1981 ICJ Rep. at 19.

27 1984 ICJ Rep. at 26.

28 See, e.g., Miller, Intervention in Proceedings Before the International Court of Justice, in 2 The Future of the International Court of Justice 550, 556 (L. Gross ed. 1976); Libya/Malta, 1984 ICJ Rep. at 87 (Sette-Camara, J., diss, op.) (“if [Article 59] would provide sufficient protection for third States … Article 62 would have no place in the Statute”); id. at 102–04 (Oda, J., diss, op.); id. at 134 (Schwebel, J., diss, op.); id. at 157–60 (Jennings, J., diss. op.).

29 “[I]t would hardly be possible, given Article 59 of the Statute and indeed the decision in the case concerning Monetary Gold Removed from Rome in 1943 …, for a decision of the Court to ‘trench upon’ the legal right of a third State.” 1990 ICJ Rep. at 130, para. 90. The Chamber did not explicitly address the effect of the judgment on Nicaragua’s claims, and any views on this subject in the merits stage will deserve attention.

50 See 1984 ICJ Rep. at 85–87 (Sette-Camara, J., diss. op.); id. at 93–99 (Oda, J., diss. op.); id. at 148–49 (Jennings, J., diss. op.).

31 See E. Lauterpacht, supra note 3, at 29–30.

32 1990 ICJ Rep. at 134, para. 99.

33 This right was successfully invoked in two prior cases, Haya de la Torre (Colom. v. Peru), 1951 ICJ Rep. 71 (Judgment of June 13); and S.S. Wimbledon (UK, Fr., It. & Japan v. Ger.), 1923 PCIJ (ser. A) No. 1 (Judgment of June 28).

34 The Court’s prior reluctance to recognize that customary international law may give rise to interests by third states was criticized by Judge Oda in Tunisia/Libya, 1981 ICJ REP. at 30 (Oda, J., sep. op.); by former Judge Jessup, Jessup, Intervention in the International Court, 75 AJIL 903, 904 (1981); and by at least one commentator, Chinkin, Third-Party Intervention before the International Court of Justice, 80 AJIL 495, 502–03 (1986).

35 Libya/Malta, 1984 ICJ Rep. at 159 (Jennings, J., diss. op.).