INTERNATIONALCOUROF JUSTICE
1
1 PLEADINGS,ORAL ARGUMENTS, DOCUMENTS
CASE CONCERNING THE LAND, ISLAND
l
t AND MARITIME FRONTIER DISPUTE
1 (EL SALVADORIHONDURAS :NICARAGUA intervening)
I
VOLUMEV
Replyof Honduras(Vol. II); WrittenObservationson the Application
forPermissionto Intervene, and the relatedOralArguments
COUR INTERNATIONALEDE JUSTICE
MEMOIRES,PLAIDOlRlEET DOCUMENTS
I
AFFAIRE DU DIFFÉREND FRONTALIER
TERRESTRE,INSULAIRE ET MARITIME
(EL SALVADORIHONDURAS ; NICARAGUA (intervenant))
l VOLUME V
Répliquàfin d'intervention,et procédureorale y relative requete FOURTH PUBLIC SIïTING (7 VI 90, 10a.m.)
Present :[SeeSittingof 5 VI 90, il am.]
ARGUMENT OF MR. HIGHET
COUNSEL FOR THE COVERNMENT OF EL SALVAWR
Mr. HICHET. Good morning. Mr. President, Memkrs of the Chamber. It
is,as ever,a great honour to be invitad to plead in this courtroom and to address
this Chamber today, in its particular composition, on behalf of thc Republic of
El Salvador.
1 have been assigned the task of arguing that in order to intervene in these
procecdings between El Salvador and Honduras, a "valid link of jurisdiction"
between Nicaragua and those two States should be required. 1 am in fact in my
capacityhere as the other crust an Mr. Lauterpacht's loaf of bread.
We obviously run, dealing with this question, a risk of traversing old ground
on this subject and 1 shall try to avoid this. Yet what more can be said about
what the Court's Judgment in the Ifaly case referredto as the vexed question,
"the vexed question of the 'valid link of jurisdiction'"? (I.C.J Reports 1984,
p. 28, para.45).
What 1 would like to do this morning isto Lakeup some selected issucs that
have newlycorne to my mind when reflecting on this "vexed question" of the
jurisdictional link and I have put these issues together in a serbneff propo-
sitions, 13bt-ierpropositions, which 1wiIgo through and I hope that they will
bring some fresh air into our discussionsof this dificuit and perilous subject.
1. The jïrspoint ix one ofgenerd application
In the Mnltacase the Court expresslystopped short of considering the ques-
tion of the jurisdictional link (LC.J Reports 1981, p. 2, para. 36, p. 16,
para. 27; p. 19, para. 32). In the Itab case the treatment by the Court was
much the same (I.C.1 Reporfs 1984,pp. 27-28, paras. 44-45) theCourt holding
squarely that the question was difficult, that the law wasnot settled; and that
the matter was ksi left to future dccision in the light of the particular circurn-
stanccs of each case.
And in a particularly trenchant passagc of theIfalycase, the Court stated it
obscwed chat it was convinced of the wisdorn of the conclusion reached by its
predecessor in 1922that
"it should not attcmpt to resolve in the Rules of Court the various ques-
tions whichhave been raised, but leavethem to be decided as and whcn they
occur in prüctice and in the lighl of ~hecircumsiances of each particidlur
cuse"(ibîd, p. 28, para. 45) (emphasisadded).
Here lhen is the fiwh air: it is the circumstanccs of the present case that
require us to takea fresh look at this vexed question, and to decide tha- in
the Iight of those circumstances- the Chamber will be acting çonsistently by
prudently cxcrcising its discrction to deny Nicaragua the iight to intervene at
this stage and in this type of procccding.700 DISPUTE (EL SALVADOR/HONDURAS) [4:9-1 11
It is also not necessary forthe Chamber to decide matters ~hatmight other-
wisefaIl to bedecided later or docidedonce again by the full Court- the Court
that has already progressed through twodificult cases in deciding a number of
these points, aIthough not this one. The Court will doubtless have theseissues
and similat issues to considcr onceagain on a differcnt day and in different cir-
curnstances and moreovcr, why, Mr. President, why should the Chamber be
forced into deciding points that it does not haveto decide in order to reach a
result in lhis particular case?
It is for example not necessary to decide that a valid link of jurisdictionLr
always required, or isaot always requird. It is only nccessary for the Chamber
to decide, here and now, that a valid link of jurisdiction should be required in
fhis case.
Were the Charnbcr to do otherwise, Mr. Prcsident, it would be going bcyond
the scope of ils duties perhaps under Article 61, paragragh 1,which arc to
"decide upon this request", and by necessaryimplication not to decide on other
requests not kfore it. More important, we have lawon this subjcct, evenif that
law isnat popular with the representativesof Nicaragua.
Any such dctermination would also bc inconsistent with paragraph 45 of the
decision in thc Raly case that Ijust citd. And finally, if yet further rcinforce-
ment is nceded, it cank found plainly in the dispositive languageof the Court's
Order of 28 February 1990.
2. Thesecondpoint isthat lhereare IWO impor!anldi~tinçtionsberiveenthis case
undborhof the ofhers(Malta rindItaly)
(i) The first distinction is that there never has yet been an applicattoninter-
vene in a case brought by special agreement, and then assigned toa Cham-
ber - and that is an important distinction.
(ii) The sccond distinction is that, in relative terrns, ihe Application of
Nicaragua to intervene in thiscase which was subrnitted only shortly berore
the Ming of the final written pleadings- mmes, relatively speaking, Tar
later than either the Application of Malta or that of Italy tointemene did
in the pas1 (1.C.J Reports 1981, p.6, para. 5 ;LC. J Reports 1984, p. 8,
para. 10).
Now these points must surely be of some relevance to thc Chamber in the
exercïse of its powers based upon prudcntial discretion under Articlc 62, para-
graph 2, of the Statute.
3. Thethirdpoinl relaies io Ariicle 62itselj'
Even if one werc to take the position that the Committee of Jurists did not
intend, on and after 1920,that ajurisdictional link was tolx a necessary or an
indispensable condition precedent to bringing a sucmssful application to inter-
vene under Article 62, this is not the same as taking the position that thc com-
mittee of Jurists did intend lhat in al1cases it could bc dispensed w-th or that
in no case would it ever be propcr to require it. This distinction asdistinction
with a diffcrcnce.
Moreover, thc provisions of Article 26, paragraph 2, of the Statute of the
Court (relating to consensual or particular Chambers) were only added in 1945,
and did not form part of the original StatuteNow the Committee of Jurists and
the Court could not then possibly have foreseen how, 70 years Iater,a new pro-
vision of the Statute would corne to be applied as beiweentwo States to further
embady - and in fact intensify - what has appropriately been called "the[4: 11-13] ARGUMENT OF MR. FIIGHET 701
exclusivityof thc relationship emcrging fmm the Spccial Agreement" (seesepa-
rate opinion of Judge Eduardo Jiménezde Aréchagaappended to the ItaIy case,
1.C.I Reports 1984,pp. 63-64,para. 27).
Mr. President, even if the Committee of Jurists, and the Permanent Court,
had ben unsettlcd in their original opinion as to wh~ther a valid link of juris-
diction should bc required in all, orsome, or most, or none of the cases to be
brought to the Court - it does not take much imagination to visualizehow they
would haveresolved the matter in the instance that two parties had not rnerely
sought to place their dispute before the Court byagreement, but had done so by
seeking a specificChamber forthat purpose. In regard to that type of case, the
Committee and the Court would have had no doubt whatever about requiring
the existenceof a valid link of jurisdiction before permitting an intervention on
those grounds. It is an afortiori proposition.
4. Thejourth point is that thir problem is of corrrsemade more acure whenone
takes indoaccount the que~lion of specifring theidentityof the judges com-
prisîng the Chamberas ~vellas theIutenessof rheApplicaiiunin ~hiscase
Now thcse are dificult questions. The question of the identity of thejudges is
a vexingone - and one that has already ariscn in a new form in connection
with Nicaragua'sApplication, original Application - in particular in relation to
the suggestion that there might be sorne reformation or reconstitution of the
Chamber.
But it does demonstrate one thing clearly: that i:how awkward and inappro-
priate it seems fora ihird State, not party to the setting-up of the procedures,
now to corne knacking at the door of the Chamber and seekingto rearrange the
furniture as well as the inhabitants. Surely it not the kind of uninvited guest
that should ix welcomed in the abscnce of an express invitation. The fact that
the knock on the door cornes so late only adds 20 the difiïculties.
5. The$ffh pain1jollaws from the Iust ii~o: il is that ru requirea valid linkoj
jurisdictionseems IOmake sense generaiîy inthe caseOS specialagreementsand
most obviously incases where a chumberis involved
Sinçe the Court reached this issuein neither the Mulracase nor the ItaIy case,
itdid not have to çonsider thc celationshipbetwecn special agreements and the
idea of the jurisdictional linkTtdid not. But here obviously is such a connec-
tion.
If one wereviewingthis juridical puzzle froma wholly fresh point of view,it
would seem that as long as the intervening State really does have an interest of
a legal nature that can be affected by the decision in a case brought by spwial
agreementbetween Iwo other States- and ifthat State is permittedtointervene
in that case by a decision of the Court (or the Chamber) under
Article 62 - then there ispro tanroa clear amendment or alteration in the pro-
visionsof thcspecial agreement.
Consider for examplc the provisionsof the Special Agreement in this case, the
"Esquipulas Agreement" of 24 May 1986.How can Nicaraguabe inserted into
this case without distorting, or affecting, the object and purpose of the Esqui-
pulas Agreement? It is not possible.This would be true, Mr. President, even if
the role of Nicaragua were to bc purely hortatory or advisory.
Now it isobviously open for Nicaragua to saythat El Salvador and Honduras
can agree on what they want, but when they agree ta go before the Court or a
chamber they then agree to operate under its Statuteand Rules, particularly inconncction with matters of intervention. But this answer isa circulanty bccause
if the implementation of the Statute and Rulcs, and the exercise of the Court's
powers under Article 62, paragraph 2,efîeçtively results in an amendment or
alteration of the very instrument that brought about the case in the first place,is
it not inconsistent with what we al1lake to be the first principle of international
law,that States cannot be bound without their consent?
1noted that in his speechProfessor Remiro could not of course avoid saying
that :
"II est évident que le fondementdc la juridiction de la Cour est dans le
consentement des parties, un principe essentiel que l'article 36 du Statut
concrétisedans sesdifférentes manifcstatians."(CVCR9012of 5June 1990,
p. 28.)
Does consent to Article 62 of the Statute imply a consent that any special
agreement bringing a case before the Court or a chamber can be amended by
way of intervention? Of course not. Wherc can one stop the analysis possibly
urgcd here, at least by implication,by Nicaragua? Does it not ineluctably lead
to a hunting licence king issued to any State with an interest that might be
affected - but with nothing more - and no jurisdictional links what-
ever outside the claimed intervention, to seek to enter into any cases that it
wishes?
If the Chamber were nowto hold that a validlink of jurisdiction need ncver
lx required, because it was already supplied by Article 62,then 1sit nol true that
any and al1cases brought by any and al1 parties could be open to any other
States for intervention as long as they could demonstrate an intcrest of a legal
nature that might be affccted,without more? It is, 1submit, like grafting a uni-
versal optional clause on to everyexisting title of jurisdiction.
6. Thesixth poitit isthai iris, therefore,particularly appropriuiiecuses brough~
by sgccial agreanrni that a valid additionaliink ofjurisdictiacould or shoirld
be requiredby theCourtor a chamber
And this is in order to empower, injurisdictional terms, any developmcnts or
implicalions that might otherwisebe viewed as disiorting the special agreement
between the original parties. Itwould at least rationalize and rcgulate the poten-
tial cffects, on those pariies, of a judgment flowing from a successfulintemen-
tion.
For if here is a jurisdictional link betwwn the applicant to intervene and
the cnisting parties, it could justify the bringing of a separace action in the
Court against either or both of them. This might not be ripe forjoinder under
Article 57 of the Rules. In addition there might be additional requirements for
the emergence or crystallization of a disputc, or for prior negoiiations,or for
an attcrnpt to settle the matter, and so forth.
Thcrc may be a variety of rcasons why - in cases brought by application or
under a compromissory clause of a treaty - intervention could be both more
rational and expeditious than separate or parallel proceedings, for the Court as
well as forthe pariies.
But at least one could not say in those instances that by permitting the inter-
vcntion the Court would.have allowed a distortion of the original special agree-
ment; that would still exist in its original tenor, but it wo-ldas itwere - bc
supplemented, or rcinforced, by the operation of an independent link of juris-
diction that, insuch a case, might make it possible for the intervention to pro-
ceed in a non-disruptive manner.[4: 15-17] ARGUMENT OF MR. HIGHET 703
1 rnight note there, with the greatestof respect, that the distinguished Agent
for Nicaragua, in his address, seemed to mischaracterize the concept of a
valid link of jurisdiction when hc said : "II isabsurd to dcrnand a jurisdic-
tional link particularly in cases that are brought by special agreement. Obvi-
ously", said the Agent, "the only States that wll have this junsdictional link
will be the States party to the SpecialAgreemeni." (C41CR901 o15 June 1990,
p. LA.)'\
With the greatest respect:this is in fact petirioprincipii. It begs the question
and assumes that the only jurisdictional lin khat could be available or that is
being discussed is the compromis between the Partics 10 the existing case. Itis
easy enough to use that assurnption to reach the conclusion that the whole
mattcr is absurd, but it is in fact the assumption itself that is absurd. What
would make sense,of course, isto reqiiire that there be some uiherjürisdiciional
link between theapplicant to intervene and the parties tu the special agreement:
the compromissory provisionsof two trcaties,or of one or morc conventions, or
three optional clause declarations, or the like
1 find that my argument may now have corne some of the distance zoward
suggesting what might be the actual sense of intervention proceedings as
opposed to separate and indcpendent cases, perhaps subjeçt to joinder undcr
the Rules of Court.
Now,it is no good to counter this proposition by suggesting that it should al1
havc ben thought out clearly in 1920,or in 1922, or in 1945, or even in 1978.
Exprience is thc life of the law,and the development of particular cases in rela-
tion to evolvingpatterns of juridical relationships is what willgivecontent to the
application of the Statute and thc Rules of Court. Courts do not necessarily
react cogentlyto legal probiems inabstracto: indeed they cannot. This is beyond
their roZeand training - ilmakes the drafting, for example, of rules provisions
alwaysan exhausting and, at best, an imperfect task,
Courts are made to decide particular cases, and thc present proceedings arc
just such a case: one whcre it suddenly has bccome necessary, forthe first time
in 70 years, to elucidate othenvise ambiguous provisions of thc Statute in rela-
tion to these particular facts.And this willof course be done in amordance with
sound legal principles,and also with cornmon sense.
7.The seventh point relates ro the .r.uggesiionthat has been mude - and wus
debure$in file Malta und Italycuses - as tu wherherArficlr 52 of rlie Stufufti
couldby ifseifbe an independml source ofjurisdictional power
It is the bootstrap argument. Now if this were true, it would obviouslybe
unnecessary for the intervcning applicant to go further to specify anyvalid link
of jurisdiction outside Article 62.
But 1 have not seen it mentioned, Mr. Pscsident, rhat the very existence of
Article 81, paragraph 2 (L), of the Rules, since 1978 would be an absurdity if
this argument were correct. Whywould it benecessary to "set out . . . any basis
of jurisdiction ivhichis claimed to exist as bctween the State applying ro inter-
vene and Ihe parties tu the case", if Article 62 were already supplying a basis of
junsdiction ?
Why would an applicant be askcd to indicate whethcr there was "any such
basis" if an entirely sufficientone were already - and always - in existenceas
to any State that was a Mcmber of the United Nations and thus party to the
Statutc? It is outof Kafka. It would be as if a government oFficewere alwaysto
require applicants for a givenaction to FiIlout a form with a piecc of informa-
tion that would never Vary,and rhat described a permanent condition that was704 DISPUTE (EL SALVADOR~I-[ONDURAS) 14: 17-19]
in ract universally imposed on al1 those applicants by that very governmcnt
officefrom the beginning.
Now 1am of course aware thai Article 81, paragraph 2 (cl, of the Rules is
hardly a provision of the Statutc. And 1 am also awarethat it was added as part
of the 1978 Rulesrevision - perhaps inan attcmpt to clarify some of the prob-
lems that seemedto ernergefrom theincomplete consideration of the application
of Fiji to intcrvene in the Nuçlear Testscase.
But isit Forthe Court now - or indeed for this Chamber - to pronounce a
ruling on this issuethat would render absurd a provision adoptcd with careful
thought a dozea years ago by the full Court? One would think that, in the
absence of cornpelling reasons of judicial polity, there would be no place for
such a ruling under the present circumstances.
8. The eighihpoinr relates Io Article 81, paragraph2, subparagraph (c),of the
Rules
Professor Remiro impliedthat the reason for this provision was not to suggest
that ajurisdicrional Iink should be required as such, but rather:
"II s'agissait précisémendt'éviterqu'a travers l'institutde l'intervention
un Etat introduise un diffkrend distinct, bien que connexe, de celui soumis
par les parties, qui n'aurait pu Etreportéà tirre principal parce qu'il n'avait
pas une base sufisante de compétence."(C41CR9012of 5 June 1990, p. 27,
para. 9.)
And he continued
"Propos qui devient plusclair si nous tenons compte du fait que le nouvel
alinéa c)a suivile nouvel alinéa b), par lequcl l'ondispose que Icrequérant
devait indiquer 'l'objetprécis del'intervention'."(Ibid)
Now, 1 believe that what Professor Rerniri, was here suggesting as to the
meaning of Article 81 of the Rules was that it was designed to prevent an inter-
venor from using intervention to "iack on" a separaie but somewhat connected
claim to Ihe principal litigation,as to which it lacked a suficient jurisdictional
link to the parties other than- presurnabIy - the incidental jurisdictioof the
intervention procedure. In American terminolo~, iiwas intended to prevent a
"free ride" or "piggy-back"or a more or less separatecause of action.
But with al1respect, this does not make sense.Why would we need a jurisdic-
tional tool to prevent piggy-backing ifthe intervcnor was already rcquired to
satisfy not merely the condition of subparagraphs (a) and (b) of Article 81,
paragraph 2, of the Rules,but also thedominant test of Article 62, paragraph 1,
of the Statute?
Also: why would the provisions of subparagraph (cl onlycorne into play in
that instance, asif thcy had been reserved forit, but otherwisebe suspendcd as
to the "main" intervention? If Article 62 wereto generateinstant jurisdiction for
al1purposes relating to the proposed intervention (hotstrap), whywould it not
do so in any event for piggy-backing? If Article 62contained a sort of "instant
jurisdictional link", that link would remain present foral1purposes, and could
not be set aside or used for onlyone purpose or for a limited purpose.
And the provisions of subparagraph (cl could not then have been inserted
merelyto block the use of intervention proceedingsfor unrelated frce rides. They
were there for another reason, far less tortuous. Thcy were there to clarify and
supplement the whole thrust of the articlc and of course to give further content
to Article 62 of the Statutc.[4: 14-21] ARGUMENT OF MR. HtGHET 795
9, The nin~hpoint is rhat the incidentnijurisdiction of the Couror a Chamber
extends oniy IOgranting rheintervertion
It cannot extend to iaking a decisionon the subject-matter of the intervention
unless there also existsa valid link of jurisdiction as to the partles; and therefore
it is only common sense to enquire, under Article 81, paragraph 2 (cl, of the
Rules,or otherwise,as to what that other jurisdictional link might be before pco-
ceeding to ruleon the request.
Now, it is noi, with respect, hard to discern a critical distinction between
the incidental jurisdiction to permit an intervenlion and the incidental
jurisdiction to indicate, for example, provisional measuresunder Article 41 of
the Statute,
The Court may always indicate provisional measuresas an incidental matter,
withjurisdiction conferred on itby Article41 itself, but it is plasdaythat the
validity and the effet of those provisional measures directly depend on "the
final decision" (Art. 41, para2) and that they have no independent lifc of their
own. This is settled.
And it was put rather well by Professor Brownlie last Tuesday, in a sporting
metaphor, when he said that "the procedure involvesa qualifying round and not
the race itself" (CWCR9011of 5 June 1990,p. 41).
10. The tenthpoint relates tu Ariicles 62 and 63
In his speech yesterday, Professor Remiro drcwa contrast between these twu
articles and he said:
"II fautaffirmer que si l'intervention à l'égardde l'article 63 ne requiert
pas de lien juridictionnel entre le rcquérantet les parties au litige, cen'est
pas non plus requis dans le cas- symétriqueselon M. Schwebel - de l'ar-
ticle52."(CWCR 9012of 5 June 1990,p 33.)
With great respect,one cannot draw any conclusions favourable io Nicaragua
by comparing Articlcs 62and 63.The symmetry referred to is not parallelism or
identit<
Construction of a convention (Art. 63) isa far cry from a decisionthatmight
affcct "an interest oa legal nature". If a matter raises bolh the question con-
struction and the question of affecting an interest, thc intervenor can pick or
choose.
It can seek and obtain, as of right, anArticle 63 intervention. We know
that. And it can be prepared to be bound by the construction in thc Court's
judgment in accordance with the Statute. We know that. It can go further, and
It can seek to come in as an lntcrvcnor underArticle 62, in which case it will
be bound by morc than the construction of a trcaty provision It will also be
fully subject to the binding force of the judgment in that matter under
Articlc 59.
But the test to come in under Article 62 is a lot tougher than the test under
Article 63. In fact, al1that is requirtobe provcd under Article 63is that there
is a convention with certain parties, and that it is being consfrued.
It tlicrefore doenot do any good to suggest, as Professor Rcrnirodoes, that
just because Article 63 does not require a "jurisdictional link" then Article 62
should not be held IO require one eitherThe two articles serve wholly different
purposes with wholly different results, and are complernentary and mutually
reinforcing rather than cutfrom thesamc cloth.[4 : 23-24] ARGUMENT OF MR. HIGHET 707
reallyis not righttaconclude that this instjtution can nevcrbe used and is there-
fore rneaningless.And as 1suggested earlier,Mr. President, there isa variety of
cases in which one cariimagineintervention scrving a valid purpose, serving per-
haps the purpose originally rzserved for i- more or less- 70 years aga. Itis
just that to date we have not seen the right kind of case. We had one uncom-
pleted intervention inacase that &came moot (Nuclear TCSIS a)d,we havehad
two continental shelf casesbrought by specialagreement that came in some ways
close to being anticipatory delimitation casez. And surely this is an unpromising
selection for the development of the law of intervention under the Court's
Statute.
At least they permitted the instance of a rnodiiied form of "intervention by
pleading": that is to say, at least the Cour(or Chamber of the Court) became
aware of the applicant'sproblems in rhe very course of making the application.
And, as rny colleagucs havealready indicated, this is not altogetanrinhumane
'esult, considcring the complexitiesand particularities of the cases involved.
Yet the cases where intervention would be rational - and orderly, and per-
missible - cannot now be spccificdor indicated with any greater clanty or pre-
cision,1 would think, than the Cornmittee of Jurists or the Permanent Court or
even the International Court itself has been ableto indiçate in the past. In a
"vexedquestion" such as this, it can only be by the adaptation of legal principles
to the particular circumstances of every relevant case that the framework for
thosc principles acquires a rational pattern and design. And it so happens lhat
this isprecisely inaccordance with paragraph 45 of the Ilaiy casc.
Nor can it reallybe concluded, Mr. President, in the performance of a judicial
task, that policy reasons should encourage the Court or a Chamber to reject a
correct but close rcading of Article 62 and Article 36 of the Statute, for the
reason that othcrwise the institution of intervention would haveno purpose in
the schemeof the Statute, or because it is dcsirable that States be encouraged to
seek tu intervene.
First,it is not the Chamber'sfault, and it is not the Court's fault, that the
institution of intervcntion is not entirely cleaSecond: policy decisions about
the desirability of intervention might be preciselyto the contrary; States might
avoid using the Court by special agreements if "the exclusivityof the rclation-
ship emergingfrom the Special Agreement" (IC.1 Reporfs 1984,p. 63,para. 27)
can be disturbed against thejointwill of the:parties, and without satisfying the
same requiremcnts thnt are imposed on al1 other States in al1other cases by
Article 36.
Such a result should probably bc taken inio amount as a likelyspeculation -
just as much as its opposite. And this leaves the Chamber, Mr. President, with
this casc preciselywhere it found it: tobe decided on legal principles alone in
the light of the particular circumstances of the matter.
Mr. President, 1would Iike to thank you and the Membrs of the Chamber
for the patience with which you have listened to my argument and I would like
to give way,if 1 may, to our Agent toprcsent the submissionsof El Salvador. STATEMENT BYDR. MART~NEZMORENO
AGENT FORTHE GOVERNMENTOF ELSALVADOR
Dr.MART~NEZMORENO:Mr.President,theGovcrnrnentof El Salvador
respectfullymakcs the followingsubmicase. Tthe Applicatofn
the RepubofcNicaraguato interinthc case in proceçsbetween El Sal-
vadoranHondurasbe rejectcd.
The PRESID OEFTHTE CHAMBER: The Chamber will takshort
breanow &forewe start hecinngtheobservatiof the delegatofn
.- Honduras
The Chamberadjournrdfrorn 10.45n.m11.00 STATEMENT BYDR. VALLADARES SOTO
AGENT FOR THE GOVERNMENTOF HONDURAS
Dr. VALLADARES SOTO : Mr. Presidcnt, Members of the Court. Iappear,
as Agent of the Republicof Honduras, for the very first time before thisdistin-
guished Court. Inthat capacity1have the honour to addrcss you in the form of
a brief introductory statement regarding the pctition presented by the Republic
of Nicaragua, to intemene in the case concerning the Land, Island and Maritime
Froniie Drispute (ESalvadorr'Honduru~) ,t present before the Court.
On page 2 of its petition,Nicaragstaresthat its inter"isIirnitedto that part
of the object of the Special Agreement contained in paragraph 2 of Article2
of the Agreement.That secondparagraph of the Agreementrequcststhe Chamber
to' "2. Determinethejuridical situationof the islandsand maritime areas"
Then Nicaragua adds, and 1quote:
"Nicaragua wishes to make veryclear that it has no intentmn of inter-
vening in those aspects of the procedure relating to the land boundary
which is in dispute between El Salvador and Honduras."
Restricted in this manner the scope of the request to intemene presentcd by
the Republic of Nicaragua does not seem unreasonable. Taking into considera-
tion the amicable relations which should exist between the Cenkral American
nations, and the fact that weare immediate neighburs as coastal States, wanh
existing maritime boundary treaty, Honduras sees no objection to Nicaragua
being allowedto intervene in the cxisting caTorthe solepurpose of expressing
itsviewson thelegal statu3ofthe waters within rheGt&
But Honduras wishes to emphasize that the rights it claims in the present case
against the Republic of El Salvador in the Gulf of Fonseca and in the waters
outside the Gulf of Fonseca, in no way affect thc rights that Nicaragua might
daim. Honduras also takes this opportunity tu rcrnind the Court ihat the waters
within theGulf of Fonseca between Honduras and Nicaragua have already been
delirnited, to a large exient, and since the year 1900,according to the provisions
of the Bonilla-GamezTreaty of 1894.
On the other hand, Honduras docsnot accept Nicaragua'sclaim to reform the
Chamber as prcscntly constituted. Nor does it accept Nicaragua's claim for a
re-ordering of the written pleadings already presented, for thc rcasons stated in
detail in the written pleadings filcd by Honduras on 23 March 1990 Nor does it
accept the Nicaraguan claim, formulated in paragraph 24 of its writtcn rcquest
of 17Novernber 1989,askingtheCourt tu excludefrom themandate of the Cham-
ber the powerto determine the situation of the maritime arcas within and outside
the Gulf. Such a claim would impcdc ~hetotal solution to the dispute that the
Republics of Honduras and El Salvador have submitted to the decision of this
high tribunal. It1saclaim whichalsoviolatesthefundamental principlcthat, where
partiescorne before the Courtby specialagreement, thcir consent to the juris-
diclion restson that agreement, and it canbcchanged againstiheir will.
1 also havethe honour to inform the Court that the arguments of Honduras in
thisoral phaseof the proceedingswillbe presented byProfcssorDerek Bowett.
Mr. President,I thank you for yovr kind attention, and ask that Pro-
fcssor Bowett be allowed toaddressthe Court. ARGUMENTOF PROFESSORBOWETT
COUNSEL FOR THE GOVERNMENTOF HONDURAS
Professor BOWETT: Mr. Presidcnt, Mernbers of the Court. In this mattes I
have the honour to represent the Covernmcnt of Honduras and in that capacity,
I must segistera partial opposition to the Nicaraguan request to intervene.
But before turning to the essentials of the Nicaraguan rcqucst1want to say a
word about its underlying rationale. Thisappears quite clearly at paragraphs 14-
17 of the requcst in the guiseof the principle of the sovereignequality of States
and it is on thc basis of this principle that Nicaragua argues lhat it has a right
to intervene.
The originality of this argument isa tributc to its authors, and 1wouId hop
that this Court will always welcomeariginality. But originality is not, of itself,
enough. The argument must also be consistent with establishedprinciplcs:other-
wise its acceptance will produce chaos. And this argument by Nicaragua does
exactly that.
In the contextof judicial settlement of disputes betwccn States the most basic,
fundamental and overriding principle is that the cornpetenceof any court or tri-
bunal tests un the conserzcoftheparries.It is because of this principle that inter-
vention by a third party is so exceptional.
Clearly, therefore, the principle of the sovereignequality of States cannot be
invoked so as to ovcrridc the basic requirement of consent. AlStates are equal.
Are we now to undcrstand that al1States can interuene, as of righi, inany case
before this Court? If that were so, the Court would need not only to revise its
Statute quite substantially, bto look for larger premises!Infact the argument,
put simply on the basis of sovereignequality, is patently absurd. If States are to
lx allowod to intervene it cannot be because they are sovereign equals.There
must be some oiher criterion: and, indeed, there is. This is the criterion of an
incereosfia legulnacurewhich muy be affectedby the Court's decision. It is by
refcrence to that criterion - and not to the pnnciple of sovcreign
equality - that a request to intervene must bc tested. Otherwise the result is
chaotic and absurd.
The relevance of the principle of sovereign equality lies in quite different
directions.It means that where the legal rights or interests afthird State form
the very subject-matter of a decision to be madc by this Court, such a decision
cannot be made unIessthat Srate conscritsto be a party: that is the essence of
the Mone~uryGoldcase, (J.C.J Reports1984, p. 25).
Would that be so in this case? Surely not! Nicaragua has failed to demon-
strate that it has any claim of sight or title to any island in dispute in this case
It has equally failed to demonstrate that it has any genuinc claim ta any area of
water, either inside or outside the Gulf, which rnight be allocated to either
El Salvador or to Honduras as a resultof thc Court's decision. The one respect
in which Nicaragua'sIegal rights are in issue is in respect of the El Salvadorean
claim that the waters of the Gulf are s condominium. If the Court werc to
decide that thewaters had that status, mntrary tothe viewsof both Honduras[4: 29-31] ARGUMENT OF PROFESSORBOWETT 711
and Nicaragua, then itis perhaps arguable that Nicaragua's legalinterests would
bc prejudiced Not formaiLyperhaps, because of rhe protection of Article 59 of
the Statute; but, in practice, Nicaragua migbe disadvantaged.
The second area of relevanceof the principle of sovereignequality lies in the
protection üfforded to non-partics by Article 59 of thc Statute. A State is never
bound by a decision in acase to which itis not a party.
Of course,it may be argued that, whilstthiisFormallytrue, inpractice a non-
party could be prejudiced bya decision. Indeed, the possibility of prejudice to a
non-party is recognizcdby the institution of intervention itsFor.the Statute,
in requiring the StatEOshow that it has a legal interest which might be afîected
by the Court's decision,in effect concedes that the decision may affeca third
State. notwithstanding Article 59.
SimilarPy,when the Court limits its decisipropriornotu,as it did in the inter-
ests of Italy in the LibyulMufiacase, there too one has a recognition by the
Court that Article 54 may not give absolute protection, and that further steps
may be needed to safeguard the legal rights of non-parties.
There is yet a third area of relevancc. The Nicaraguan Application rightly
makes the point that the principle of sovereignequality requires that its consent
must be sought to anydelimitation with Nicaragua. That is perfectlycorrect. But
it is entirely irrelcvant in this case, because neither El Salvador nor Honduras
seeks a delimitation with Nicaragua arising £rom this case. Nor, as I shall
presentlyshow,will the delimitation soughtby Honduras - that is the àelimita-
tion line as between Honduras and El Salvador - trespass into maritime areas
appertaining to Nicaragua. So Nicaragua cannot say,in effect, that the Court's
dccision will be imposing a delimitation on Nicaragua without its consent.
My conclusion i;,therefore, lhat the provisioofthe Court's Statute and the
jurisprudence of the Court fully recognize, and safeguard, the principle of
sovereignequality of States. Butt is misconceivedto argue thai, on the basis of
that principlc, there asright to intervene. Such a conclusion would producea
quite chaotic situation, and onecontraty to the Court'sStatute which seoutin
clcar terms the conditions whica State must full71if its applicattonintervene
is to lxentertained by the Court.
It is, therefore,to the express reguirements of Article 52of the Statute1that
now turn.
2.ARTICLE62 REQUIKE ASN lNTERVENOR TO DEMONSTRATE
AN "INTERES OTF A LEGAL NATURE WHICH MAY BE AFFECTED
BY THE DELISION IN THE CASE"
Article 62 requires an intemenor to dernonstrate an "interest of a legal nature
which may be affoctedby the decision in the case". Honduras accepts that there
is no logical reason to require that the intenienor's legal interest extends to the
whole case. Ttshould be sufficientif that interest lies in a part of the casc which
must beincorporated in the decision.
The tcrms ofArtide 2 of the SpecialAgreement requirethe Court: "Todeter-
mine the legal situation in the islands and maritime areas"
kccordingly, the Court decision must embrace this question - the sccond
quçstion addressed by the compromis - and if Nicaragua can demonstrate that
it has a legal interest in this question, which may be affected by the decision,
Nicaragua meets the criterion of Article 62.
So the essential questionishas Nicaragua demonstratcd that it has such a
legal interest? In the Written Observations of Honduras, the issues involved in this second
question wereidentiiïedas four. They were the Following:
(a) first, sovereignty over the islainsthe Gulf;
(b) second, whefher the waters within the Gulf are subject to a régimeof con-
dominium, excludingdelimitation ;
(CI third, if not, what the delimitation line within the Gulf shouId be, as
betweenHondurasand El Salvador;
(dl and fourth, that Honduras has an entitlement to maritime areas outside the
Gulf and ihat the Court should determine what the delimitation line should
be outside the Gulf, as beiweenHonduras and El Sulvudor.
WCneed to examine each of these issues with some care. in order to see
whether in relation to any one of them, Nicaragua has demonstrated the
requircd interest.
(a) Sovereigntyover the IsIands
So 1 take tirst sovereignty overthe islands. Here, Nicaragua has demonstrated
no such interest.El Salvador and Honduras are atone in asserting that they
make no claim to any island under the sovereigntof Nicaragua - such as Far-
allones - and they know of no claim by Nicaragua to any island in dispute
between the Parties - such as Meanguera or Meanguerita. Accordingly, it
must lxconcluded that Nicaragua has no interest in this aspect of the second
question and this conclusion is re-inforced by what Professor Remiro said on
Tuesday (C41CR9012, p.16).
(b) Whetherthe Waters ivifhi~heGuy Are Subjçct YUa Régime
of Condominium,ExcludingDelhirutbn
So Iturn to the second issue, whether the waters within the Gulf are subjcct
to a régimeof condominium, excluding delimitation. Now, here, Honduras is
preparcd to concede that Nicaragua does have an interest, and essentially for
two reasons.
First, whatever the status of the waters of the Gulf, the sraius hto be the
samefor al1three littoral States.Itis impossible tocunceive of the Gulf as a
condominium vis-à-vis swo of them, but not vis-à-vis the third. Second, it is
clear that El Salvador'sposition depends upon thc cffect to be given to the 1917
Award inthe Gulf of Fonseca case, for that case is thc source El Salvador's
condominium ~heory.Now Nicaragua was a party to chatcase, unlikeHonduras.
And it is gcnerally believed that Nicaragua refusedto aocept that Award. It
therefore seems impossible to Honduras to 6ny that Nicaragua has a legal
interest in a decision by this Court which may ruon the effect of an Award to
which Nicaragua was a Party.
Would Nicaragua's legalinterest be affectcd by the decision of this Court?
To Honduras, this seems incvitable. Whatevcr view this Court takcs of the
1917 Award, Nicaragua's legalinterestsmust lx "affected". 1would invite the
Court to consider the analogy with Article 63 of the Statute. Where an inter-
venor is a party toa treaty, the construction of which ibefore the Court, the
intervenor has a right to intervene. Suppose:that the intervenisa party to an
award, and the award is undcr construction by this Court: is thefe any logical
reason whythe intervenor should bc denied the right to intervene?
Honduras necessady has sympathy with this aspect of the Nicaraguan
request. Because in the prcsent case, Honduras 1slikely to be affccted by the[4: 33-35] ARGUMENTOF PROEESSORBOWETT 713
Court's construcuon of the 1917 Award - and Honduras was not even a party
to that award. How much more so, therefore,is Nicaragua likely to be affected,
giventhat itwas a party tothe award?
There are yet further ways in which Nicaragua may be affected. Let ussup-
pose chat the Court adopts the condominium theory. What happens then, if
Nicaragua seeks a delimitation with Honduras, prolonging the 1900Treaty line
tu the closing Iine of the Gulf? Presumably Honduras would have to reply to
Nicaragua that no delimitation was possible, since Honduras was bound to
accept the Court's decision that a condominium excluded delimitation. Or sup-
pose that Nicaragua wishesto adopt unilaterallymeasuresof control in that part -
af the waters of the Gulf dcerned to be Nicaraguan. Would not both Honduras
and El Salvador k bound to deny the right of Nicaragua to proceed unilaterally
since the régimeof condominium impliedjoint responsibilityT
Frankly, Honduras cannot follow the reasoning behind the opposition by
El Salvador to this aspect of the Nicaraguan request. El Salvador argues in
paragraph 5 of its written observations ihat this case concerns the interpretation
of the Special Agreement, which is res inter aliosacla as regards Nicaragua.
With respect, this is a formalistic and superficialargument. For what is in issue
isthe status of the watersof the Gulf, and Nicaragua,as a littoral State is not a
third party in relation to that issue.
That iswhythe precedent of the CibyalTuni caie, whichEl Salvador citesin
support of its view, isso clearly distinguishable. In refusing Malta's request to
intervene the Court was able to protect fully Malta'scoricern that a delimitation
between Libya and Tunisia should not trespass into areas of shelf that might
appertain to Malta. This the Court did by the deviceof stopping short the illus-
trative line, witha question-mark as to its terminal point. But the question of
the legal status of the waters of theGulf is not one that concerns only part of
the Gulf. Itisimpossible for the Court to say "but we make no judgment as to
thc waters on the Nicaraguan side". On the condominium thesis, the waters are
indivisibleand if El Salvador wants to uphold that thesis, it must accept that
Nicaragua has an interest.
Indeed, El Salvador'sposition on the request to intcrvene is strangely at odds
with the emphatic way in which El Salvador championed Nicaragua's interests
In the waters of the Gulf in its writtcn pleadings. There we were told that
Nicaragua controllcd the closing-line of the Gulf, jointly with El Salvador
(Counter-Mernorial, para. 7.7); thal within the Gulf "the rights of the thrce
riparian States CO-exist"(Counter-Memorial, para. 7.63); that the1917 Award is
res judicata for Nicaragua (Counter-Memonal, para. 7.69); that Nicaragua
shares in the community of interests in the Gulf (Reply, para. 6 63); that the
effect of the Nicaraguan islands is to cut off Honduras frorn any access to the
closing line (Reply,para. 6.101). So much concern for Nicarsigua'srights and
interests, yetweare now told Nicaragua should mind its own business!
No, Mr. President, that cannot bcrighi. In justice we would have to concede
that Nicaragua is entitledtoexpress its viewson the legal status of thc wateof
the GulT.
There is yet a further question raiscd by El Salvador, andthat is this. Assum-
ing Nicaragua is allowed io state its views,should this be by intervention? Or
should it be, asEl Salvador suggests (WrittenObservations, para. S),suficient
to allow Nicaragua the opportunity of these proceedingsT
El Salvador is obviously much impressed by the precedent in the Italian case.
I refer to the opportunity afforded to Italy to stake out its claims in the rele-
vant area, during Ihe LibyalMaita case, withoiit rcquiring Italy to inlervene
formally.[4: 37-39] ARGUMENT OF PROFESSOR BOWETT 715
that the Court's decision rnighi involve "the designation of one or more zones
of joint exploration and exploitation", citing the Jan Mayen case. Although
Nicaragua does not spell it out, presumably the lhought is that, if the Court
wereto accepi El Salvador'scondominium thesis,this might carry, as a corollary,
the obkigationon littoral States,includingNicaragua, to join injoint mcasures of
exploitalion or exploration of resources.
Now with respect,this anxiety on the part of Nicaragua seemsto bemisplaced.
JunMayenwasa conciliation,andit wasentirelyproper for a conciliation commis-
sion to make rccommendations of that kind tothe parties But 1think that it is
inconoeivablethat this Court could decideto imposea régime of joint exploration
or exploitationon the littoral Stat-s even on the actual Parties, El Salvador
and Honduras. The Court simply dots not have the power to impose that kind
of agreementon the Parties, letalone on a non-party likeNicaragua.
Then Nicaragua makes a third and quite separate point. A different item of
interest. In paragraph2 (f) ,he Application readsas follows :
"The leading role of coasts and coastal relazionshipsin the legal régime
of maritime delimitation and the consequence in the case of the Gulf of
Fonseca that it would be impossibleto carry out a delimitation which took
into account only the coasts in the Gulf of two of the three riparian
States.''
Hcre we reach a point whcre elimination is noso obvious, so that the nature of
Nicaragua's legalinterest, as a CO-riparianState, one of three littorals, needs
careful and more detailed examination.
Ttcannot be disputed that the law requircs States - and indeed the Court
itsel- to take account of neighbouring coasts. The dispositif of the 1959Judg-
ment refers expressly to the need to take account of delimitations, actual or
prospective, with third States. In the 1977 Channel Atvurd,the tribunal took
aocount of the coasts of Ireland. In the LibyalMalio Judgment of 1985, the
Court took account of the coasts and claims of Italy.And so on : the point is so
clear as to requirno further elaboration.
And in this case, as 1 shall shortly demonstrate, Honduras has taken full
account of Nicaragua's coasts, both inside and outside the Gulf.
But let there lxno suggestion that every State, whose coasts are taken into
account in this way, has a right to intervene. What Nicaragua ignores 1s the
requirement in Article 62 that its interests must be afeçred by the decisionIn
my submission, Nicaragua has to show either:
(a) that there is a real risoF the decision producing a delimitation line which
willtrespass into maritime areas to whichNicaragua has a good prima facie
claim; or
(6) that Nicaragua's future delimitations willbc in somway prejudiced.
In the presentcase, there ino riskor either. In ordeto demonstrate this,1want
to take the Court very bricflythrough the methodology devisd by Honduras in
its written pleadings for the delimitation, inside the Gulf. 1do this not for thc
purpose of arguing the merits of the proposcd delimitation between Honduras
and El Salvador - I shall avoid any such argument - but for the purpose of
demonstrating two things. First, that Honduras has taken the Nicaraguan Coast
fully into account, as the law requires. And, second, that it is not conceivable
that there an be any trespass into areas legjtimatelyclaimed by Nicaragua, or
any prejudice to Nicaragua's interest in future delimitations.
Let me start with the methodology inside lhe Gulf. On the easel bchind me is
the illustrationMap C.5, produced at page 704 of the Honduzan Mernorial,You will see that, in essence. Honduras has proposed a rnethod which divides
the Gulf into a western and eastern section. Point X is midway on the closing
line of the Gulf. A perpendicular has been constructeci from this point, back
inside the Gulf, to reach the Honduran coast at PointY. It has ben the aim of
Honduras to confine the relcvant area for the pUrpQSeS of a delimitation with
El Salvador, to the western sector of the Gulf. We assume - and 1 submit
reasonably assume - kat there can be no jusLifiableclaim by Nicaragua to any
part of the waters of this western sector. Certainly therc has never ben any
such daim made by Nicaragua to Honduras, and apparently neither ta
El Salvador. So, provided that the delimitation is confined to this western
sector, there can be no trespass into maritime areas appertaining to Nicaragua,
and no prejudice to any future delimitation whish Nicaragua might seek within
the Gult
The existing HonduradNicaraguan delimitation under the 1900 Treaty runs
from the terminal point of the land boundary, which is here, followingmedian
line principles to Farallones, this group of islands here. You will note that,
necessarily,it rernains completely unaffected by anything in the western sector.
And, indeed, whenever this line is, inthe future, extended to the closing-line
of the Gulf, whatever fts actual course may be, it must surely lie within the
eastern sector. So that future line will not be prejudiced.
Of course it may be said that this is merely the Honduran methodology, and
El Salvador has quite differentideas. Well,El Salvador does havedifférentideas,
but 1 would suggest that, howevermistaken or misguided theyrnaybe, they,too,
pose no threat of prejudiccto Nicaragua's interests. For, essentially,El Salvador
makes no daim to any delimitation within the Gulf- that is outside the 3-mile
limit - and only claims rights up to the mid-point of this dosing line at
point X, assuming the other half to belong to Nicaragua.
It might equally be said that, whateverthe Honduran methodology,Nicaragua
has quite different ideas. But, having read the Nicaraguan Application, and
having listened vcry carefully to Nicaragua's oral arguments, it is clear that
Nicaragua is making no clainr incompatible with this methodology. Nicaragua
asserts no rights in conflict with those claimcd by the Parties, and requires no
ruling from the Court on Nicaraguan claims as regards delimitation, inside the
Gulf. This is the crucial pointWe have heard no "good arguable claim" (1 use
Professor Brownlie'swords) that Nicaragua has any legal rights in the western
half of the Gulf that will be prejudiced bya delimitation between El Salvador
and Honduras, confined within that relevant area. So it isno use ~heAgent for
Nicaragua saying that it is "obvious" that Nicaragua's rights will be affecied. It
is not obvious at all. Nor is it any use Professor Remiro telling us that the
Court's judgment as regards sovereignty over the islands is bound to affect
Nicaragua. Why so? Whether Mcanguera and Meanguerita belong to El Sal-
vador or I-Eonduraswill neilher incrcase, nor diminish, the area of the Gulf to
which Nicaragua isentitled
We must not lose sight of the fact that, as between Honduras and Nicaragua,
the waters of theGulf are in large part already delimited by the 1900Trcaty.So,
unless Nicaragua is claiming to denounce that Treaty, which isimpossible, it
cannot make claims in the western half of the Gulf The Treaty necessarily
means lhat a delimitation confined to the western half cannot infringe on the
rights of Nicaragua as regart&delimitation.And delimitation is a guite separate
matter from the condominium issue. Now of course it presuppoes a ncgative
answer on the condominium issue, but 1 belicvc Professor Brownlie io be mis-
taken in assuming that a legal interest in the one necessarilymeans a legal inter-
est in the othe: that is non-sequitilr. 718 DISPUTE (EL SALVADORIHONDURAS) 14:43-45]
closing-line- perpendicular to the general direction of thc coast, out to
200 miles, the extreme easterly line on this map. Everything to theofathat
line is outside therelevant arca for purposes of this delimitation.
The resuIt is that Nicaraguan claims, both in respect of the closing-lineand
the maritime areas outside, are untouchedPravided,provided only,that youcan
assume that Nicaragua has no plausible claim to the waters beyond the mid-
point of the closing line, Point or to the watcrs Westof the perpendicular
projectedfrom that mid-point. On that assumption the Nicaraguan interesls ivill
be reptesented in somc future delimitation in the area to the rrst of this perpen-
dicular, ktween Nicaragua and Honduras. And the only impact of the Court's
dccision will be to detemine that Nicaragua must negotiate with Honduras and
not with El Salvador.
Now Nicaragua'soral argument kas,with respect, left this conclusion unchal-
lenged. Certainly Professor Brownlieis nght to say that the area beyond the
closing-linerernainsin issue betweenal1three States and that willremain so until
both delimitations are effecteHe is equally nght in saying LhatHonduras does
not accept ihat El Salvador is entitled to the westernhalf of the closing-line,up
to PointX, up to the mid-point, Buthow does that prejudice Nicaragua's lcgal
interests? Again 1emphasize to the Court that Nicaragua has made no good,
arguable claimtogo beyotid that mid-point, or the perpendicular projectedfrom
it seawards.So a delimitation by the Court, within the relevant area Westof ihat
perpendicular will not impair Nicaraguan rights in way. Thc Court's delimi-
tation will simplydetermine who itolxNicaragua'sneighbour for purposes of
afuture delim~tation.
Now as to the argument that Honduras has recognized Nicaragua's legal
interests1 have to saythat this is not swithinthe relevon:areu. Of course we
. recognize that Nicaragua has a right to a maritime area beyond the closing-line.
Of course we recognizethat the Court, in making a delirnitauon betwecn Hon-
duras and El Salvador muat bear in mind prospective third State delimitations,
such as a future HonduradNicaraguan delimitation. Of course wc recognize
thatthe Nicaraguan entitlement will depend on al1 its coast, including that
within the Gulf But none of that constitutes recognition ihat Nicaragua has
legal interests beyonthe mid-point of the closing linc and the perpendicular
drawn from thatmid-point out to 2ûûmiles.
To conclude, Mr. President, the only aspect of the case in which Nicaragua
has a legitimate legal interest, likely to be affcctedby the decision, is whether
the waters of the Gulf should or should not be subject to a régimeof condo-
minium. And that is why Honduras did not feel it pmper to oppose a
Nicaraguan intervention, provided it is limited to this specific aspect of the
case.
Yet, having said this, thcre remains a further qucsCann.such an interven-
tion occur withoutajurisdicti~nal link beiween Nicaragua and the two Parties?
3. THE QUESTION OF A NEED FOR A JUR~SDICT~D L IA L
So 1tum now to the question of anccd for ajurisdictional link. This question
is not an casy one. Article 62 of the Statute contnins no reference tuneed
for a jurisdictional link.The only express referenceis in Arti(2)(cl of the
Rules, of the provision inserted in the Rules for the tirsr time in 1978.The his-
tory of this provisiwas reviewedby the Court in ils Judgment on the Maltese
intervention in the TunisialLibyucase (1.CJ. Reporfs 1981, pa27).And thcrc
the Court made cIearthat the purpose of inlroducing this new referencto ais clear that no jurisdiction could be established on that basis. Now, let me turn
to the other hypothesis wherea State intervenes,but not as a parly, then:
(a) Under Article 63, the suficient legal interest is deemte existby virtue of
being a party to a treaty under construction, but no jurisdictionaIink is
required. The fact that the intervenor is, under Article 63 (21, bound by the
judgrnent does not make the Article 43intervenora Party, nor does it require
a jurisdictional link. That was certainly the view of Judgc Oda in 1981
(1. .1 Reports1981.p.28),of Judge Mbayein 1984(1. C.J Reports 1984,p.43)
and also of JudgeSchwebcl,again in the Itaiiancase(ibi,p.144).
(bJ Now under Article 62, by analogy - and assuming a sufticient legal inter-
est to have beendemonstratcd - no jurisdi~tional link would be required.
Thus a State couId intervene to express its vieon the legal status of waters in
which it had a clcar legal interest, as in this case. Or to exprasview on thc
legality of conduct on the high seas where itsown interests were involved.For
example,State A rnight wish to expresa viewabout the legality of the arrest of
vesselsof State B by State C, preciselybecause, if the arrest were valid, in simi-
lar circumstancesits own vessclsare likely tbc arrested.
Now an intervention designed to express a view about the general lau~would
be unlikely to succeed,because OF Iack of suficient legal interest. So the juris-
dictional point would not arise.
It fullawsfrom what 1 havesaid that, in the present case, itis the viewof Hon-
duras that Nicaragua need not pmve a jurisdictionai link. Bacauseit is clear that
Nicaragua does not seek to intemene as a party. As the Nicaraguan Application
rnakesclear, the purpose of its intervention is simply "to inform the Court of
Nicaragua's legal rights". Provided that expression of opinion is confined to thc
status of the waters of thc Gulf - a matter on which the Nicwaguan legal
interest is cle-r Honduras sees no needfor a jurisdictional link.
Now it is true that the Nicaraguan Application is a little obscure. In stating
that Nicaragua "intends to subject itself to the binding effect of the decision to
lx aven" (para. 6); and in suggesting that there is a "long-existing dispute
involving the three t-ipariaa States" (para. 19) there is a suggestion that
Nicaragua envisages beinga party. But neither El Salvador nor Honduras have
any knowledge of such a dispute - for no claim has ever been submitted by
Nicaragua - so the suggcstion is notavery serious one. And Nicaragua's oral
staiement before the Court has confirmed that it does not intend to be a party.
Professor Brownlieexplained that Nicaragua requests "a form of intervention
limitcd to the demonstration and protection of the interests of the intervening
State" (C4lCR9011,p. 39). Or to usc the words of Professor Remiro, an intcr-
vention "d'unefinpuremenl défensiv ce,servatoire. .".(C41CR9012,p. 12). So
it is clear that Nicaragua does not intend to aeparty.
On this basis, thereforewe can pass over the question OF ajut-isdictional link
and address thc final question which the Court must face. How will such a
limited right of interventionaffectthc procedural handling of this case from
now on ?This is the matter to whichI now turn.
One has to start with the Statute and the Rules of the Court. Artic85of the
Rules lays down the proceduriilconsequences of a permitted intervention quite
clearlyThese arc that Nicaragua would have the right:[4: 49-511 ARGUMENT OF PROFESSOR BOWETT 721
1. "to submit a written statement within atime-limit tobe fixed by the Court";
and
2. "in the courseot"the oral proceedings,to submit its observations with respect
to the subject-mattcr of the intervention".
And that is all. Moreover,in fixing lhese time-limits, including the time tolx
allowed to the parties to make thcir own written observations on the written
statement of the intervenor, theCourt "shall, so far as possible" ensure that
these time-limits "coincidewith those alrcady iïxefor the pleadings in the case"
(para. 2).
Thus,there is to be minimal interruption or disturbancc of the procedures in
being between the parties.The Court'sOrder of 28 February 1990confirms this:
it emphasized that a Statc requesting intervention must "take the procedural
situation inthe case as it finds it".
Now against this background, we need to look at the quite extraordinary pro-
posais which Nicaragua has in mind.
(a) The first,the proposa! ru re/orm rhe Chamber, isfnthe Application.paru-
grqh 23, whereNicara8ruproposes
"not a reformation of the Chamber and its jurisdictional basis tout court
but only the making of those changes stnctly necessary in order to maintain
the minimum standards of efficacy and procedural fairness".
We now know what that means. The assumption that Nicaragua is entitled to
appoint its own ad hocjudge is quite unfounded. Article 31 of the Statute con-
fines the nght to choose an ad hoc judge to parties. Nicaragua is not, and will
not be, a party, so no right of appointment exists.And it is this poi-t a very
crucial point - which 1sperhaps under-ernphasized in Jüdge Shahabuddeen's
dissentingopinion attached to the Court's Order of 28 Fcbruary 1990.The argu-
ment that an intervenor has an equal interest in the composition of a Charnber
to the original parties really assumes that it will have, or should have, equal
status. But if the intervenor chooses not to be a party, thcn the argument loses
its force,whatever its other merits or demerits. And thai is the case here.
The assumption that thc present composition of the Chamber can be reviewed
is equally fallacious No nght to request a change in the composition of a
Chamber is contemplated by eithcr the Stature or the Rules, as a consequeme of
intervention. The full Court has already determincd the composition of this
Charnber, with the approval of the Parties, as required by Article 26(2) of the
Siatute. Apart from the specificase of the deathor resignation of a rnember,no
further basis for a change in composition is contemplated by either the Statute
or Rules. Moreover, even if they were a power in the hl1 Court to alter the
present composition, it would follow that the approval of the two Parties would
be needed. And the Court could anticipate with rcasoniibleconfidence that such
approval would not be given.
(b) There-orderingof ~he writtenproceedings
The second proposal isthe re-ordcnng of the written procecdings.This is in
the Application, at paragraph 23.
As 1 have already indicated, Article 85 of the Rules sets out exactly what
Nicaragua is entitled to. The Nicaraguan pretcnsions are quite without founda-
tion, and would clearly contravene the Court's existing Order of 28 Eebru-
ary 1490,requiring an intervenor to take the procedural situation in the case as
it finds it.
Rien we corneto the third proposal.722 DISPUTE(EL SALVADORIHONDURAS) [4: 51-53]
(c) In the alfernativrhar fhis Chambershould be confined IOthe land boundary
and thurfhemaritimedisputeskould,with theugreemenlof rhe [wo Partiesbe
submitted to thefullCourlor a disfercerthamber
This audacious and unprecedented alternative request is without parallel in
the history of the Court. It has nolhing whatcver to do with intervention.
BecauseArticle 62 contemplates intervention in an existingcase. And whar this
proposa1 envisages is thc creation of two, totally ncw cases. And the conse-
quences would be very hi=-rcaching.
The Special Agreementof 24 May 1980would have to be revised, so as to
confine the present caseto the land boundary.
A new tripartite Special Agreement would need to be concluded, dealing with
what Nicaragua regards as the mariiime dispute, in which it alleges an interest.
But both those changes arc fraught with potential hazards, and no one can say
whether these new agreementswould everbe concluded. Even the practiçality of
the division is questionable. Coula maritime boundary ix settled until the ter-
minal point of the land boundary between El Salvador and Honduras had ben
settled?I think not. Could the dispute over the islands in thGulf - in which
Nicaragua has no interest- tx separated from the maritime delimitation within
the Gulf, in whichNicaragua saysit has an interest?I think nor. There are good
reasons Forintegrating al1aspects of the dispute into one case,And this proposal
is both too hazardous, and too impractical, to merit serious consideration at this
stage. IE would serve only to frustrate completely the SpecialAgreement of
24 May 1986,under which the present dispure is now before the Court.
And there is yet a further point. Honduras viewsthcse proposals with consid-
erable scepticism.Becausethe fact is that the dispute now kfore the Court was
Tirstdefined- and made a rnatter of public record- not in May 1986,but in
the General Treaiy of Peacc of 1980.The issue of "the legal situation of islands
and maritime areas" was referred to the Joint Frontier Commission in Article 18
of the 1980PeaceTreaty,and Article 31 envisagedthat, if not settled within five
years, that sameissue wouldbe referredto thc International Court.
So Nicaragua kas had, not four years but ten years, ien years, in which to
indicate that it hada legal interest and in which to suggcst to the Parties ways
and mcans of taking that interest into account. But what happened? Nothing,
precisely nothing. Not a single word or note of claim or interest was sent to
eiiher Party during al1those ten years by Nicaragua.
The doctrine of laches is not unknown to international law. Founded in
equity, it can operate sas to debar a State from a remedy it might have secured
had it acted in a Umelyand reasonable manner. Nicaragua's proposals for re-
ordering this case are both out of time, and wholly unreasonable.
Mr. President, it remains for me to conclude by stating the submissions of
Honduras. They arc as f~llows:
- First, Honduras would see no objection to Nicaragua being permitted to
intervene in the existing casefor tsoiepurposeof expressing icsY~CWJ on the
Iegnlsturuosf ihewaterswifhinthe Gulf:Nicaragua has, under Article 62, no
right to intervene, and the Court in granting its permission,may limit that
permission to the extent neccssary to safeguard the Iegalintcrcsts of the
requesting State. Indeed, it can be argued that the Court.is bound to impose
such limits on its permission; and
- Second, in this casethe Court is, for al1purposes, ihe Chamber as presently
constituted and al1 proposals by Nicaragua to reform or re-constitute the
Chambcr, or to allocate the present case in partothe Chamber and in part
ta the full Court must be rejected.
Audience publique de la Chambre tenue le jeudi 7 juin 1990, à 10 heures, au Palais de la Paix, sous la présidence de M. Sette-Camara, président de la Chambre