Abstract
Most doubts concerning intervention under Article 63 of the Statute have been dispelled by the Court’s case law. The author of a declaration is entitled to intervene if all the conditions set out by the Statute are met, but does not become a party to the case. Nonetheless, the construction of the relevant convention given by the judgment is binding as between it and the principal parties.
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Notes
- 1.
See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Declaration of Intervention, order of 4 October 1984, ICJ Reports 1984, p. 215, deeming the declaration inadmissible at the preliminary objection stage. The order was sharply criticised: see for instance Fisler Damrosch (1987), Chinkin (1986). See also Chinkin (2012b), pp. 1593–1594 and 1597 for the conclusion that the ‘unfortunate treatment’ of El Salvador might explain the reluctance of States to have recourse to Article 63 in later years.
- 2.
Order of 6 February 2013, para. 8.
- 3.
Thirlway (2003), p. 26.
- 4.
- 5.
This situation arose a number of times before the Court. See US Nationals in Morocco, discussed above, Sect. 10.5.4; Anglo-Iranian Oil Co. (United Kingdom v. Iran), judgment of 22 July 1952, ICJ Reports 1952, p. 93 at 99; Ambatielos (Greece v. United Kingdom), judgment of 19 May 1953, ICJ Reports 1953, p. 10 at 20ff. Cf. further, for a discussion of the position of Indonesia as regards the East Timor case, Thirlway (2003), p. 26, note 63.
- 6.
While that case did not directly regard the ‘most favoured nation’ clause, the Philippines sought to intervene under Article 62 as they envisaged the possibility of some treaties being interpreted in a manner not favourable to their claims regarding Borneo; the Court dismissed the application since it was too vaguely linked to the object of the principal dispute, but seemed to admit that, in principle, this kind of interest could be protected under Article 62. See further below, Sect. 15.1.
- 7.
On the interpretation by the Court of similar provisions included in different Friendship, Commerce and Navigation Treaties concluded by the United States see Forlati (2002), pp. 135ff. Cf. further Thirlway (2003), p. 26, also for the discussion of other specific cases, such as the one regarding codification conventions not yet in force.
- 8.
Judgment of 28 June 1923 (Question of Intervention by Poland), PCJI, Series A, No. 1.
- 9.
ICJ Reports 1951, p. 71.
- 10.
- 11.
Thus, the declaration filed by Solomon Islands on 25 August 1995, p. 9, para. 29; the other declarations were framed in identical terms. Being incidental to the main proceedings, these applications and declarations were dismissed with the same order that struck the case out of the list together with the application submitted by Australia under Article 62 of the Statute (ICJ Reports 1995, p. 306, para. 67).
- 12.
New Zealand had asked the Court to declare that the conduct of nuclear tests would violate its rights and that, at any rate, an environmental impact assessment should be undertaken. The final submissions did not mention the Noumea Convention.
- 13.
- 14.
Ibid., 1028.
- 15.
See to this effect PCIJ, Free Zones, judgment of 1932, p. 100:
States Parties to the Treaty of Versailles were not specially notified under Article 63 of the Statute, which was considered as inapplicable in this case; but their attention was drawn to the right which they no doubt possessed to inform the Court, should they wish to intervene in accordance with the said Article, in which case it would rest with the Court to decide.
- 16.
Whaling in the Antarctic, order of 6 February 2013, para. 8.
- 17.
- 18.
- 19.
Article 43(2) and (3) of the Rules of Court, as amended with effect from 29 September 2005, reads:
2. Whenever the construction of a convention to which a public international organization is a party may be in question in a case before the Court, the Court shall consider whether the Registrar shall so notify the public international organization concerned. Every public international organization notified by the Registrar may submit its observations on the particular provisions of the convention the construction of which is in question in the case. 3. If a public international organization sees fit to furnish its observations under paragraph 2 of this Article, the procedure to be followed shall be that provided for in Article 69, paragraph 2, of these Rules.
- 20.
See Gaja (2011).
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Forlati, S. (2014). Intervention Under Article 63 of the Statute. In: The International Court of Justice. Springer, Cham. https://doi.org/10.1007/978-3-319-06179-5_14
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