Third Party Intervention: Whether Current Rules are Satisfactory [1]

The answer is based on: C. M. Chinkin, 『Third-Party Interventionnbefore the International Court of Justice』, 80 AJIL 1986.

This essay argues that from the perspectivenof purpose of intervention, the current rules regulating intervention by third states demonstratednin the practice of the ICJ are too stringent to protect the interest of thirdnstates. According to the rules of the court, in addition to the requirement setnout in Art. 62 and 63 of the ICJ Statue, the rules of the court also requires annapplicant to specify the 『precise object of intervention』 and 『jurisdictionalnlink』 to an original party to the dispute. The requirement to specify purpose ofnintervention in practice is applied very strictly and not favour the interestnof third party.

The requirement of proper purpose, though not explicit in the ICJ Statute, is closely linked to interest of a legal nature as required by Art. 62 of ICJ Statute in relation to intervention. (Chinkin) However, it remains doubtful the exact definition of proper purpose for intervention. The practice of the ICJ has done much to define what is improper purpose, but it is not clear what constitute proper ones, and a lack of clear definition is to the detriment of third states interest.

Cons

In the request made by Malta to intervene the case between Libya and Tunisia, Malta submitted that it has a legal interest based on its geographical position vis-à-vis Libya and Tunisia and its interest might be affected by the operation of the decision or by enunciation of substantive elements of law by the court. The court, however, rejected Maltas application on the ground that its claims were vaguely expressed, which would make it difficult for original parties to know what claims they should answer. Such a ruling imposed a very high burden of proof on third states seeking to intervene, and thus protect autonomy of original parties from being impeded by unclear and vaguely drafted claims by third states. However, such an approach would be unfair to third states and inconsistent with the wording of Art. 62 of the ICJ Statute. For one thing, such a ruling ignores the fact that any request made by third states to intervene involves some speculation, in that the pleadings and exact claims by original parties may not be available to the third states. This is exactly the case for Maltas intervention. As is pointed out by the dissenting judges Schwebel and Oda, Maltas vague claims resulted from the fact that the two original parties did not specify their claims clearly. For another, such a ruling also ignores the substantive standard in Art. 62 of ICJ (interest may be affected, rather than will be affected), which indicates that the burden of proof on the third states should not be too high. It is suggested that it suffices as long as the third parties demonstrate its interest is pertinent to the case.(Chinkin). Nonetheless, such an approach may be justified by the bilateral nature of the agreement between Libya and Tunisia based on which the courts jurisdiction is found (Chinkin) (It remains to be seen whether such a restrictive approach is also applicable where the courts jurisdiction is based on treaties to which both the third states and the original states are parties.)

In the request made by Italy to intervene Libya/Malta case, Italy learned the lesson from the Maltas case and thus specified its claims clearly (i.e. to protect its sovereignty over certain continental shelves). However, this time the court also rejected Italys request -- it found that Italy might bring irrelevant cases and ask the court to determine its individual and additional case. Thus, Italy failed due to its request being too specific. As can be seen from Maltas and Italys case, the court ruled that a proper purpose for intervention should neither be too vague or, as it implied in Italys case, be too specific (so as to make the court find that the specific claims are irrelevant), while it fails to address the positive criteria to constitute proper purpose.

Pros

Despite the above analysis on the failure of the court to properlynprotect third parties』 interest by adopting a strict approach, the court』snapproach in relation to 『proper purpose』 is right in other aspects. Fornexample, it rightly rejected Italy』s ground for intervention that it couldnassist the court to get a whole picture of the situation. The court rightly pointed out what matters in granting the right to intervene is not whether thenthird party could assist the court, but must be based on Art. 62 -- the right ofnthe third states may be affected. The similar approach could be found innNicaragua case, where the court ruled that it has no power to direct a thirdnparty to come before the court. Indeed, the court』s approach in relation to interventionnmust be based on Art. 62, it can decide whether to accept a third party』s interventionnby considering whether its interest of anlegal nature might be affected by the court』s decision, while the article doesnnot grant the court a power to require a third party to intervene (e.g. tonassist the court).

nn A strict approach to the definition of proper purpose may be not in favor of third partys interest and may cause failure of request to intervene. However, it is noted that even if the application for intervention is not successful, the goals of states to intervene may actually be satisfied at the moment the state submitted the application. As noted by Judge Nagendra Singh in relation to Italys request for intervention in Libya/Malta case, the request, regardless of whether it will be accepted or not, had alerted the interest of Italy to the court, which it could no longer ignore.

In Relation to Art. 63

The 『purpose』 element is also relevant to applications of interventionnbased on Art. 63 of the Statute. Art. 63 specifies what constitutes a propernpurpose in the sense of an application based on this article (i.e. regarding tonconstruction of a treaty to which the third state is also a party). The court,nhowever, in practice added additional requirement – the purpose must bengenuine. For example, in Haya de lanTorre case, the court found Cuba』s request to intervene based on Art.n63 is not a genuine one, but rather an attempt to reopen an earlier case. Thisncase demonstrates that the court in practice add additional obstacle to third statesnbeyond what is specified in the Statute.

The El Salvador』s request for intervention in Nicaragua is also a casenin this regard. El Salvador, based on Art. 63 of the Statute, apparently intendednto intervene at the jurisdictional phase, to assist the US to deny the court』s jurisdictionnover the case. The court decided that the request is not related to merit phasenand thus rejected it. This ruling seems to imply that a request to intervene isnonly available at the merit phase but not at the jurisdictional phase. However,nthere appears no limitation in the Statute to precluding a third party』s rightnto intervene at the jurisdictional phase for the purpose of construction of antreaty based on Art. 63. Judge Lauterpacht also expressed such an opinion innNorwegian Loans. Moreover, to grant a third state a right to intervene atnjurisdictional phase is exactly what is implied in Monetary Gold, where thencourt found it has no jurisdiction because a state whose interest of a legalnnature would be affected was not before the court as a party or an intervener. Ifnso, why, then, a state which wished to make exactly such claims should not benallowed to intervene (in cases like Nicaragua)? Thus, in practice, the courtnseems to add additional obstacles not in favour of protection of rights ofnthird states.

---------------------------

Intervention in proceedings before the ITLOS

R. Wolfrum, Interventions in Proceedings Before International Courts and Tribunals: To what extent may interventions serve the pursuance of community interests?

Art. 62 and Art. 63 of the ICJ Statute can find their equivalents in the Statute of ITLOS.

ITLOS decided against requiring the intending intervener to specify a jurisdictional link between itself and the parties to the dispute, which opens the possibility of widespread intervention.

ITLOS Statutes states that decision of the intervener shall be binding in so far as it relates to matters in respect of which that state party intervened. Nevertheless, the intervener is not entitled by the court to choose a judge ad hoc or to object to an agreement of the parties to the dispute to discontinue the proceedings. This means the intervener does not become a party to the dispute. This deviates from the jurisprudence of the ICJ. In Island and Maritime Frontier Dispute, the ICJ states that a state which is permitted to intervene, but which does not acquire the status of a party to the case, is not bound by the Judgment given in the proceedings in which it has intervened.

The combination of being bound by the decision without having acquired the full status of a party to the dispute may not be an incentive for intervention.

The rules of ITLOS, as far as the required interest of a legal nature is concerned, do not deviate from the respective provisions which govern the intervention under Art. 62 of the ICJ Statute.

According to Art. 100 of the Rule of ITLOS, it is the procedural obligation of the potential intervener to identify the particular provisions of the Convention the interpretation of which the declaring party considers to be in question and to set out its own views in this respect. This means that the application to intervene must be quite substantiated.

.....

推薦閱讀：