Abstract
The Rules of Procedure and the statutory instruments of international courts and tribunals provide for the possibility of an intervention by a third State in the proceedings between two parties. This contribution discusses why this mechanism is not being used more frequently. The prevailing view with the international courts and tribunals seems to be that it is for the parties to the concrete dispute to settle and that an intervention by a third State constitutes an interference which may complicate the situation. This contribution argues that such an approach constitutes a bilateralisation of international relations which is not appropriate considering that legal disputes mostly originate from multilateral treaties in the interpretation and application of which all States parties to the treaty have a legal interest. It is therefore held that the interpretation of the rules on intervention should be reconsidered.
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Notes
- 1.
See Article 84 of the Convention on the Pacific Settlement of International Disputes (the Hague, 18 October 1907), entered into force on 26 January 2010); Articles 62 and 63 of the Statue of the International Court of Justice (San Francisco, 26 June 1945; hereinafter ICJ Statute), entered into force on 24 October 1945; Articles 36 and 37 of the General Act for the Pacific Settlement of International Disputes (Geneva, 26 September 1928), entered into force on 16 August 1929, as replaced by the Revised General Act (New York, 28 April 1949), entered into force on 20 September 1950; Articles 32 and 33 of the European Convention for the Peaceful Settlement of Disputes (Strasbourg, 29 April 1957), entered into force on 30 April 1958; Article 40 of the Protocol (no. 3) on the Statute of Court of Justice of the European Union, as amended by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (Lisbon, 13 December 2007), entered into force on 1st December 2009; Article 47 of the Treaty Instituting the Benelux Economic Union (‘s-Gravenhage, 3 February 1958), entered into force on 1st November 1960; Article 40 of the Treaty for East African Co-operation (Kampala, 6 June 1967), entered into force 1st December 1967; Article 21 of the Protocol (A/P.l/7/91) on the Community Court of Justice of the Community of West African States (6 July 1991); Articles 31 and 32 of the Statute of the International Tribunal for the Law of the Sea, United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982), entered into force on 16 November 1994, Annex VI. Further rules to that extent exist in many other international agreements of a more technical nature. On interventions see, in particular, Zimmermann 2011.
- 2.
PCIJ: Mavrommatis Palestine Concession (Greece v. United Kingdom), Judgment (30 August 1924), p. 11; ICJ: Continental Shelf (Tunisia/Libya), Judgment (24 February 1982), p. 27; South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Judgment (21 December 1962), p. 328.
- 3.
ITLOS: Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Order (27 August 1999), p. 293.
- 4.
For further details see Tomuschat 2006, MN 8-10.
- 5.
Wolfrum 1998, p. 428.
- 6.
Zimmermann 2011, MN 3.
- 7.
ITLOS: MOX Plant (Ireland v. United Kingdom), Order (3 December 2001), p. 95.
- 8.
On that see below.
- 9.
Adopted on 14 April 1978 and entered into force on 1st July 1978 (as amended on 14 April 2005). www.icj-cij.org. Accessed 15 June 2012.
- 10.
Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia, UN Doc. IT/32/Rev. 46 (20 October 2011), Rule 74. This option is referred to as an amicus curiae brief which the Trial Chamber may invite.
- 11.
The Draft Convention did not enter into force since Australia and France decided not to ratify the draft.
- 12.
Annex I, Article 7 which read: “Any Party which believes it has a legal interest, whether general or individual, which may be substantially affected by the award of an Arbitral Tribunal, may, unless the Arbitral Tribunal decides otherwise, intervene in the proceedings.” The text is reproduced in Wolfrum 1991, p. 146.
- 13.
For further details on the dispute settlement system which was inspired by the dispute settlement system as provided for by the UN Convention on the Law of the Sea, see Watts 1992, pp. 93–105; Wolfrum 1991, p. 74 ff. A text on a comprehensive dispute settlement system was first jointly introduced by a draft of the German Democratic Republic, the Federal Republic of Germany and the USSR.
- 14.
Rules of Procedure of the International Tribunal for the Law of the Sea (28 October 1997, as amended on 17 March 2009).
- 15.
The term “construction” (in French: “interprétation”) means that it is not sufficient that the convention is referred to but its interpretation must be of relevance for the decision in the case.
- 16.
See Chinkin 2006, MN 9-12.
- 17.
PCIJ: S.S. “Wimbledon” (United Kingdom, France, Italy and Japan v. Germany), Judgment (28 June 1923); for further details see Chinkin 2006, MN 14.
- 18.
ICJ: Haya de la Torre (Columbia v. Peru), Judgment (13 June 1951), p. 76.
- 19.
ICJ: Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Order (4 October 1984), p. 216 (para 2).
- 20.
ICJ: Request for an Examination of the Situation in accordance with para 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests case (New Zealand v. France), Order (22 September 1995), p. 288.
- 21.
See in this respect ICJ: Nicaragua, supra n. 19, Dissenting Opinion of Judge Schwebel, p. 223, who stated that neither the Declaration of Intervention nor Article 63 of the Statute were clear.
- 22.
ICJ: Nuclear Tests (New Zealand v. France; Australia v. France), Order (20 December 1974), p. 535.
- 23.
ICJ: Haya de la Torre, supra n. 18, p. 77.
- 24.
The Rules of the Permanent Court of International Justice as well as those of the ICJ of 1946 and 1972 were silent as to what information the potential intervener had to provide in its declaration of intervention. The 1978 Rules changed this situation (see Article 82). The potential intervener has to submit the relevant information for establishing that it is a party to the convention under consideration; it must identify the relevant norm and its interpretation (“construction”).
- 25.
Correctly critical in this respect is Rosenne 1993, p. 190.
- 26.
Chinkin 2006, p. 1392, MN 58.
- 27.
Wolfrum 1998, p. 432.
- 28.
Chinkin 2006, MN 41.
- 29.
ICJ: Continental Shelf (Tunisia/Libya), Judgment (14 April 1981), p. 12.
- 30.
ICJ: Continental Shelf (Libya/Malta), Judgment (21 March 1984), p. 8 ff.
- 31.
Continental Shelf (Tunisia/Libya) (14 April 1981), supra n. 29, p. 12 ff.
- 32.
ICJ: Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment (23 October 2001), para 83. The Court stated: “The Philippines needs to show to the Court not only “a certain interest in (…) legal considerations” (Continental Shelf (Libyan Arab Jamahiriya/Malta) Application to intervene, Judgment, ICJ Reports 1981, p. 19, para 33) relevant to the dispute between Indonesia and Malaysia, but to specify an interest of a legal nature which may be affected by reasoning or interpretations of the Court. The Court has stated that a State seeking to intervene should be able to do this on the basis of the documentary evidence upon which it relies to explain its own claim.”
- 33.
ICJ: Jurisdictional Immunities of the State (Germany v. Italy), Order (4 July 2011). See also the Declaration of Judge ad hoc Gaja who seemed to have doubts about Greece’s intervention.
- 34.
ICJ: Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Judgment (13 September 1990), para 100.
- 35.
ICJ: Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Order (21 October 1999), p. 1035, MN 12/13.
- 36.
Frontier Dispute (El Salvador/Honduras), supra n. 34, para 90. On the development of the jurisprudence see Chinkin 2006, MN 64-73.
- 37.
Jurisdictional Immunities, supra n. 33.
- 38.
Wolfrum 1998, p. 440.
- 39.
Frontier Dispute (El Salvador/Honduras), supra n. 34, p. 135.
- 40.
Article 102.1 of the Rules of the Tribunal provides that the “Tribunal shall decide whether (…) an intervention under Article 32 of the Statute is admissible as a matter of priority unless in view of the circumstances of the case the Tribunal determines otherwise.”
- 41.
See Article 102.1 of the Rules of the Tribunal.
- 42.
Frontier Dispute (El Salvador/Honduras), supra n. 34, para 90, p. 108.
References
Chinkin C (2006) Article 63. In: Zimmermann A, Tomuschat C, Oellers-Frahm K, Tams C, Thienel T (eds) The Statute of the International Court of Justice: a commentary. Oxford University Press, Oxford, pp 1369–1392
Rosenne S (1993) Intervention in the International Court of Justice. Nijhoff, Dordrecht
Tomuschat C (2006) Article 36. In: Zimmermann A, Tomuschat C, Oellers-Frahm K, Tams C, Thienel T (eds) The Statute of the International Court of Justice: a commentary. Oxford University Press, Oxford, pp 589–657
Watts A (1992) International law and the antarctic treaty system. Grotius, Cambridge
Wolfrum R (1991) The convention on the regulation of mineral resource activities: an attempt to break new ground. Springer, Berlin
Wolfrum R (1998) Intervention in the proceedings before the International Court of Justice and the international tribunal for the law of the sea. In: Götz V, Selmer P, Wolfrum R (eds) Liber Amicorum Günther Jaenicke zum 85. Geburtstag, Springer, Berlin, pp 427–442
Zimmermann A (2011) International courts and tribunals, intervention in proceedings. In: Wolfrum R (ed) Max planck encyclopedia of public international law. Oxford University Press, Oxford, pp 570–575
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Wolfrum, R. (2013). Interventions in Proceedings Before International Courts and Tribunals:. In: Boschiero, N., Scovazzi, T., Pitea, C., Ragni, C. (eds) International Courts and the Development of International Law. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-894-1_17
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