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Intervention before the International Court of Justice: Some Recent Developments

Two recent judgments of the International Court of Justice (the “Court”) have confirmed the high threshold which States must reach in order to be granted permission to intervene in disputes before the Court. On 4 May 2011, the Court held that applications by both Costa Rica and Honduras respectively failed to satisfy the requirements of Article 62 of the Court’s Statute or Article 81 of the Rules of Court.

What is an Intervention?

There is no general right of intervention in cases before the Court by third parties. However, Article 62 of the Court’s Statute and Article 81 of the Rules of Court provide that if a State considers 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, setting out the “precise object” of the intervention. It is then for the Court to decide upon this request.

As the Court has held in previous decisions, it is: “perfectly proper, and indeed the purpose of intervention, for an intervener to inform the Chamber of what it regards as its rights or interests, in order to ensure that no legal interest may be “affected” without the intervener being heard” (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras).

Background

On 4 May 2011, the Court dismissed attempts by both Costa Rica and Honduras respectively to intervene in a dispute between Nicaragua and Colombia (Territorial and Maritime Dispute (Nicaragua v Colombia)) over title to territory and maritime delimitation in the western Caribbean.

The Court stated that Costa Rica’s interest of a legal nature could only be affected if the maritime boundary that the Court was being asked to draw between Nicaragua and Colombia were to be extended beyond a certain latitude southwards. However, the Court recalled that Nicaragua had agreed that any delimitation line established by the Court would fall well short of the area where, according to Costa Rica, it possessed an interest of a legal nature. Consequently, the Court determined that Costa Rica had not demonstrated an interest of a legal nature which could be affected by the decision in the main proceedings between Nicaragua and Colombia.

In seeking permission to intervene as a party, Honduras requested that the Court determine the course of the maritime boundary between itself, Nicaragua and Columbia in the maritime zone in question and to fix the tripoint on the boundary line under the 1986 Maritime Delimitation Treaty entered into between Honduras and Colombia (the “1986 Treaty”). Alternatively, Honduras’ objective as a non-party was to inform the Court of the nature of the legal rights and interests which could be affected by the decision of the Court.

In claiming an interest of a legal nature, Honduras put forward two arguments. Firstly, it contended that the status and substance of the 1986 Treaty was at stake in the present case. Honduras argued that by virtue of the 1986 Treaty, it was still entitled to certain sovereign rights and jurisdiction such as oil concessions and fishing activities in the disputed maritime area. Secondly, Honduras argued that the 2007 judgment of the Court had not settled the entire Caribbean Sea boundary between Nicaragua and Honduras. According to Honduras, the 2007 judgment did not rule on the 1986 Treaty and therefore the final point of the boundary between those two countries still remained uncertain.

The Court held that it would place no reliance upon the 1986 Treaty in determining the maritime boundary between Nicaragua and Colombia: this would be determined by the coastline and maritime features of the two parties. The Court then proceeded to ascertain the extent to which the 2007 judgment had determined the course of the single maritime boundary between Nicaragua and Honduras. In the Court’s view, the 2007 judgment was clear on this point and “indisputably had the force of res judicata”. There was, in the Court’s view: “no room for any alternative interpretation”. Consequently, Honduras’ application for permission to intervene also failed.

Threshold required for intervention remains high

These recent judgments reinforce the high threshold to be met by States before they can succeed in an application for permission to intervene in disputes before the Court. The Court reiterated that: “the raison d’ĂȘtre of intervention is to enable a third State, whose legal interest might be affected by a possible decision of the Court, to participate in the main case in order to protect that interest”. It was not: “to introduce a new case alongside the main proceedings”.

While Article 59 of the Court’s Statute provides that decisions of the court have “no binding force except between the parties and in respect of that particular case”, the Court itself has acknowledged in previous jurisprudence that: “the protection afforded by Article 59 of the Statute may not always be sufficient” (Land and Maritime Boundary between Cameroon and Nigeria (Cameron v Nigeria); Aegean Sea Continental Shelf (Greece v Turkey). These latest judgments lend further weight to that view; the Court explicitly stated that in order for Costa Rica to succeed in its application for permission to intervene, it would have to demonstrate that it required: “a protection that is not provided by the relative effect of decisions of the Court under Article 59 of the Statute”.

What should States considering intervention do?

It remains a significant challenge for States wishing to intervene in a dispute before the Court to demonstrate that they possess an interest of a legal nature that may be affected. A State that considers its interests may be affected by a dispute being heard by the Court should seek legal advice on whether an application seeking permission to intervene is likely to prove successful, or whether it would be desirable to bring separate proceedings against any of the parties involved.