INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
Tel.: +31 (0)70 302 2323 Fax: +31 (0)70 364 9928
Website: www.icj-cij.org
2011/3 Summary
4 May 2011
Territorial and Maritime Dispute (Nicaragua v. Colombia)
Application by Costa Rica for permission to intervene
Summary of the Judgment of 4 May 2011
History of the proceedings (paras. 1-18)
The Court begins by recalling that, on 6December2001, the Republic of Nicaragua
(hereinafter “Nicaragua”) filed in the Registry of the Court an Application instituting proceedings
against the Republic of Colombia (hereinafter “Col ombia”) in respect of a dispute consisting of a
“group of related legal issues subs isting” between the two States “concerning title to territory and
maritime delimitation” in the western Caribbean.
As a basis for the jurisdiction of the Cour t, the Application invoked the provisions of
ArticleXXXI of the American Treaty on Pacific Settlement signed on 30April1948, officially
designated, according to ArticleLX thereof, as th e “Pact of Bogotá” (hereinafter referred to as
such), as well as the declarations made by the Parties under Article36 of the Statute of the
Permanent Court of International Justice, which ar e deemed, for the period which they still have to
run, to be acceptances of the compulsory jurisdic tion of the present Court pursuant to Article36,
paragraph 5, of its Statute.
On 25February2010, the Republic of Costa Rica (hereinafter “Costa Rica”) filed an
Application for permission to intervene in the casepursuant to Article62 of the Statute. In this
Application, it stated in particular that itsintervention “would have the limited purpose of
informing the Court of the nature of Costa Rica’s legal rights and interests and of seeking to ensure
that the Court’s decision regarding the mariti me boundary between Nicara gua and Colombia does
not affect those rights and interests”. In accordan ce with Article83, paragraph1, of the Rules of
Court, certified copies of Costa Rica’s Application were communicated forthwith to Nicaragua and
Colombia, which were invited to furnish written observations on that Application.
On 26 May 2010, within the time-limit fixed for that purpose by the Court, the Governments
of Nicaragua and Colombia submitted written ob servations on Costa Rica’s Application for
permission to intervene. In its observations, Nicaragua set forth the grounds on which, in
particular, it considered that this Application fa iled to comply with the Statute and the Rules of
Court. For its part, Colombia indicated in its observations the reasons for which it had no objection
to the said Application. The Court having considered that Nicaragua had objected to the
Application, the Parties and the Government of Costa Rica were notified by letters from the
Registrar dated 16June2010 that the Court would hold hearings, in accordance with Article84, - 2 -
paragraph2, of the Rules of Court, to hear th e observations of Costa Rica, the State applying to
intervene, and those of the Parties to the case.
At the public hearings on whether to gran t Costa Rica’s Application for permission to
intervene, the following submissions were presented:
On behalf of the Government of Costa Rica,
“[The Court is] respectfully request[ed] . . . to grant the Republic of Costa Rica
the right to intervene, in order to inform the Court of its interests of a legal nature
which might be affected by the decision in this case, according to Article62 of the
Statute.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[Costa Rica] seek[s] the application of the provisions of Article85 of the Rules of
Court, namely:
⎯ Paragraph 1: ‘the intervening State sha ll be supplied with copies of the pleadings
and documents annexed and shall be ent itled to submit a written statement within
a time-limit to be fixed by the Court’, and
⎯ Paragraph 3: ‘The intervening State shall be entitled, in the course
of the oral
proceedings, to submit its observations with respect to the subject-matter of the
intervention.’”
On behalf of the Government of Nicaragua,
“In accordance with Article 60 of the Rules of Court and having regard to the
application for permission to intervene file d by the Republic of Costa Rica and oral
pleadings, the Republic of Nicaragua respectfully submits that:
The application filed by the Republic of Costa Rica fails to comply with the
requirements established by the Statute and the Rules of Court, namely, Article62,
and paragraph 2, (a) and (b) of Article 81 respectively.”
On behalf of the Government of Colombia,
“In light of the considerations stated during these proceedings, [the]
Government [of Colombia] wishes to re iterate what it stated in the Written
Observations it submitted to the Court, to th e effect that, in Colombia’s view, Costa
Rica has satisfied the requirements of Article 62 of the Statute and, consequently, that
Colombia does not object to Costa Rica’s re quest for permission to intervene in the
present case as a non-party.”
*
* * - 3 -
Reasoning of the Court
The Court recalls that in its Application for permission to intervene Costa Rica specified that
it wished to intervene in the case as a non-party State for the “purpose of informing the Court of the
nature of Costa Rica’s legal rights and interests and of seeking to ensure that the Court’s decision
regarding the maritime boundary between Nicaragua and Colombia does not affect those rights and
interests”.
Referring to Article81 of the Rules of Court, Costa Rica set out in its Application what it
considers to be the interest of a legal nature wh ich may be affected by the Court’s decision on the
delimitation between Nicaragua and Colombia, the precise object of its intervention, and the basis
of jurisdiction which is claimed to exist as between itself and the Parties to the main proceedings.
I. THE LEGAL FRAMEWORK (paras. 21-51)
The Court first addresses the legal framewor k set out in Article62 of the Statute and
Article 81 of the Rules of Court and indicates that intervention being a procedure incidental to the
main proceedings before the Court, it is, according to the Statute and the Rules of Court, for the
State seeking to intervene to set out the interest of a legal nature which it considers may be affected
by the decision in that dispute, the precise object it is pursuing by means of the request, as well as
any basis of jurisdiction which is claimed to exist as between it and the parties.
The Court then examines in turn these constitu ent elements of the request for permission to
intervene, as well as the evidence in support of that request.
* *
1. The interest of a legal nature which may be affected (paras. 23-28)
The Court observes that the State seeking to inte rvene shall set out its own interest of a legal
nature in the main proceedings, and a link between that interest and the decision that might be
taken by the Court at the end of those proceedings. In the words of the Statut e, this is “an interest
of a legal nature which may be affected by the decision in the case” (expressed more explicitly in
the English text than in the French “un intérê t d’ordre juridique... pour lui en cause”; see
Article 62 of the Statute).
The finding by the Court of the existence of these elements is therefore a necessary condition
to permit the requesting State to intervene, within the limits that it considers appropriate. The
Court recalls that a Chamber of the Court has already held that:
“If a State can satisfy the Court that it has an interest of a legal nature which
may be affected by the decision in the case, it may be permitted to intervene in respect
of that interest.” (Land, Is land and Maritime Frontier Dispute
(ElSalvador/Honduras), Application for Perm ission to Intervene, Judgment, I.C.J.
Reports 1990, p. 116, para. 58.)
The Court notes that, being responsible for the sound administration of justice, it is for the
Court to decide in accordance with Article62, paragraph2, of the Statute on the request to
intervene, and to determine the limits and scope of such intervention. Whatever the circumstances,
however, the condition laid down by Article 62, paragraph 1, shall be fulfilled. - 4 -
The Court observes that, whereas the Parties to the main proceedings are asking it to
recognize certain of their rights in the case at hand, a State seeking to intervene is, by contrast,
contending, on the basis of Article 62 of the Statute, that the decision on the merits could affect its
interests of a legal nature. The State seeking to intervene therefore does not have to establish that
one of its rights may be affected; it is sufficient for that State to establish that its interest of a legal
nature may be affected. Article62 requires th e interest relied upon by the State seeking to
intervene to be of a legal nature, in the sense that this interest has to be the object of a real and
concrete claim of that State, based on law, as opposed to a claim of a purely political, economic or
strategic nature. But this is not just any kind of interest of a legal nature; it must in addition be
possible for it to be affected, in its content and scope, by the Court’s future decision in the main
proceedings.
Accordingly, an interest of a legal nature within the meaning of Article 62 does not benefit
from the same protection as an established right and is not subject to the same requirements in
terms of proof.
The Court further notes that its decision granting permission to intervene can be understood
as a preventive one, since it is aimed at allowing th e intervening State to take part in the main
proceedings in order to protect an interest of a legal nature which risks being affected in those
proceedings. As to the link between the incide ntal proceedings and the main proceedings, the
Court recalls that it has previously stated that “the interest of a legal nature to be shown by a State
seeking to intervene under Article 62 is not limited to the dispositif alone of a judgment. It may
also relate to the reasons which constitute the necessary steps to the dispositif.”
The Court also recalls that it is for the Cour t to assess the interest of a legal nature which
may be affected that is invoked by the State that wishes to intervene, on the basis of the facts
specific to each case, and it can only do so “in concreto and in relation to all the circumstances of a
particular case”.
2. The precise object of the intervention (paras. 29-36)
The Court notes that under the terms of Article 81, paragraph 2 (b) , of the Rules of Court, an
application for permission to intervene must set out “the precise object of the intervention”.
The Court then recalls that Costa Rica asserts that the purpose of it requesting permission to
intervene as a non-party is to protect the rights and in terests of a legal nature of Costa Rica in the
Caribbean Sea by all legal means available and, therefore, to make use of the procedure established
for this purpose by Article 62 of the Statute of the Court. It thus seeks to inform the Court of the
nature of CostaRica’s rights and interests of a legal nature that could be affected by the Court’s
maritime delimitation decision between Nicaragua and Colombia. Costa Rica has pointed out that,
in order to inform the Court of its rights and inte rests of a legal nature and ensure that they are
protected in the forthcoming judgment, it is not necessary “to establish the existence of a dispute or
to resolve one with the Parties to this case”.
As for Nicaragua, it asserts that CostaRica h as failed to identify the precise object of its
intervention, and that its “vague” object of informi ng the Court of its alleged rights and interests in
order to ensure their protection is insufficient.
Colombia, on the other hand, considers that CostaRica has satisfied the requirements of
Article 62 of the Statute and Article 81 of the Rules of Court.
In the opinion of the Court, the precise object of the request to intervene certainly consists in
informing the Court of the interest of a legal natu re which may be affected by its decision in the
dispute between Nicaragua and Colombia, but the requ est is also aimed at protecting that interest. - 5 -
Indeed, if the Court acknowledges the existence of a Costa Rican interest of a legal nature which
may be affected and allows that State to interven e, Costa Rica will be able to contribute to the
protection of such an interest throughout the main proceedings.
The Court recalls that the Chamber formed to deal with the case concerning the Land, Island
and Maritime Frontier Dispute (ElSalvador/Honduras) , when considering the request for
permission to intervene submitted by Nicaragua in that case, stated that “[s]o far as the object of
Nicaragua’s intervention is ‘to inform the Court of the nature of the legal rights of Nicaragua which
are in issue in the dispute’, it cannot be said that this object is not a proper one: it seems indeed to
accord with the function of intervention” (Judgment, I.C.J.Reports1990 , p. 130, para. 90). The
Chamber also considered Nicaragua’s second purpose “of seeking to ensure that the determinations
of the Chamber did not trench upon the legal right s and interests of the Republic of Nicaragua”,
and concluded that, even though the expression “tre nch upon the legal rights and interests” is not
found in Article 62 of the Statute, “it is perfectly proper, and indeed the purpose of intervention, for
an intervener to inform the Chamber of what it rega rds as its rights or interests, in order to ensure
that no legal interest may be ‘affected’ without the intervener being heard” (ibid.) .
The Court is of the view that the object of th e intervention, as indicated by Costa Rica, is in
conformity with the requirements of the Statute a nd the Rules of Court, since Costa Rica seeks to
inform the Court of its interest of a legal nature which may be affected by the decision in the case,
in order to allow that interest to be protected.
The Court points out, moreover, that the written and oral proceedings concerning the
application for permission to intervene must focus on demonstrating the interest of a legal nature
which may be affected; these proceedings are not an occasion for the State seeking to intervene or
for the Parties to discuss questions of s ubstance relating to the main proceedings , which the Court
cannot take into consideration during its examinati on of whether to grant a request for permission
to intervene.
3. The basis and extent of the Court’s jurisdiction (paras. 37-43)
As regards the basis of jurisdiction, Costa Ri ca, while informing the Court that it has made a
declaration under Article36, paragraph2, of the Statute and is a party to the Pact of Bogotá,
specified that it is seeking to intervene as a non-pa rty State and that, accordingly, it has no need to
set out a basis of jurisdiction as between itself and the Parties to the dispute.
In this respect the Court observes that its Statute does not require, as a condition for
intervention, the existence of a basis of jurisdic tion between the parties to the proceedings and the
State which is seeking to intervene as a non-party. By contrast, such a basis of jurisdiction is
required if the State seeking to intervene intends to become itself a party to the case.
4. The evidence in support of the request to intervene (paras. 44-51)
The Court recalls that Article81, paragraph3, of the Rules of Court provides that “[t]he
application shall contain a list of the documents in support, which documents shall be attached”.
In its written observations on Costa Rica’s Application for permission to intervene,
Nicaragua points out that Costa Rica “did not attach documents or any clear elements of proof of
its contentions. This lack of supporting documenta tion, or even illustrations, makes it even more
difficult to determine exactly what are the legal interests claimed by Costa Rica.” - 6 -
Costa Rica, for its part, states that the att achment of documents to an application for
permission to intervene is not an obligation and that , in any event, it is a matter for it to choose the
evidence in support of its Application.
The Court recalls that, since the State seeki ng to intervene bears the burden of proving the
interest of a legal nature which it considers may be affected, it is for that State to decide which
documents, including illustrations, are to be attached to its application. Article 81, paragraph 3, of
the Rules of Court only obliges the State in question, should it decide to attach documents to its
application, to provide a list thereof.
The evidence required from the State seeking to intervene cannot be described as restricted
or summary at this stage of the proceedings, because, essentially, the St ate must establish the
existence of an interest of a legal nature which may be affected by the decision of the Court. Since
the object of its intervention is to inform the Court of that legal interest and to ensure it is protected,
Costa Rica must convince the Court, at this stage, of the existence of such an interest; once that
interest has been recognized by the Court, it will be for Costa Rica to ensure, by participating in the
proceedings on the merits, that such interest is protected in the judgment which is subsequently
delivered.
Consequently, it is for the State seeking to intervene to produce all the evidence it has
available in order to secure the decision of the Court on this point.
This does not prevent the Court, if it rejects the application for permission to intervene, from
taking note of the information provided to it at th is stage of the proceedings. As the Court has
already stated, “[it] will, in its future judgment in the case, take account, as a fact, of the existence
of other States having claims in the region” (Cont inental Shelf (Libyan Arab Jamahiriya/Malta),
Application for Permission to Intervene, Judgment, I.C.J. Reports 1984, p. 26, para. 43).
II.EXAMINATION OF C OSTA R ICA ’S APPLICATION FOR PERMISSION
TO INTERVENE (paras. 52-90)
The interest of a legal nature claimed by Costa Rica (paras. 53-90)
The Court then turns to consider whether Costa Rica has sufficiently set out an “interest of a
legal nature” which may be affected by the decisi on of the Court in the main proceedings. The
Court examines both of the elements, namely the exis tence of an interest of a legal nature on the
part of Costa Rica and the effects that the Court’s eventual decision on the merits might have on
this interest, in order for the request for intervention to succeed.
In its Application, Costa Rica states that its:
“interest of a legal nature which may be aff ected by the decision of the Court is Costa
Rica’s interest in the exercise of its sove reign rights and jurisdiction in the maritime
area in the Caribbean Sea to which it is entitled under international law by virtue of its
coast facing on that sea”.
It takes the view that the arguments deve loped by Nicaragua and Colombia in their
delimitation dispute affect its legal interest, whic h it wishes to assert before the Court. According
to Costa Rica, such interest is established in reference to the “hypothetical delimitation scenario
between Costa Rica and Nicaragua” and, consequen tly, if it does not intervene, “the delimitation
decision in this case may affect the legal interest of Costa Rica”.
For its part, Nicaragua asserts that Costa Rica “has not . . . managed to show the existence of
a direct, concrete and present legal interest of its own, which is a nec
essary premise of any - 7 -
intervention. It has not managed to show that th is exists in the context of the dispute between
Nicaragua and Colombia”, but has rather shown that it has “legal interests in the delimitation with
its neighbour Nicaragua . . . [and] that it is presenting itself as a party ⎯ not to the dispute between
Nicaragua and Colombia ⎯ but to a dispute between itself and Nicaragua regarding the maritime
delimitation between the two countries”.
Colombia shares Costa Rica’s conclusion that the latter has rights and interests of a legal
nature which may be affected by the decision in the main proceedings. Colombia contends that
“[t]he legal rights and interests of CostaRica... include the legal rights and obligations that [the
latter has] subscribed to in the delimitation agre ements with Colombia”. Therefore, according to
Colombia, CostaRica has a legal interest rela ting to the maritime areas delimited by the
1977Treaty, as well as in the delimitation of an ev entual tripoint between CostaRica, Colombia
and Nicaragua.
Tohert notes that, although Nicaragua and Colombia differ in their assessment as to the
limits of the area in which Costa Rica may have a legal interest, they recognize the existence of
CostaRica’s interest of a legal nature in at l east some areas claimed by the parties to the main
proceedings. The Court however is not called upon to examine the exact geographical parameters
of the maritime area in which Costa Rica considers it has an interest of a legal nature.
The Court recalls that the Chamber in th e case concerning the Land, Island and Maritime
Frontier Dispute (El Salvador/Honduras), when rejecting Nicaragua’s Application for permission to
intervene with respect to any question of delimitation within the Gulf of Fonseca, stated that
“the essential difficulty in which the Chambe r finds itself, on this matter of a possible
delimitation within the waters of the Gulf, is that Nicaragua did not in its Application
indicate any maritime spaces in which Nicaragua might have a legal interest which
could be said to be affected by a possible delimitation line between El Salvador and
Honduras” (Judgment, I.C.J. Reports 1990, p. 125, para. 78).
In the present case, by contrast, CostaRica has indicated the maritime area in which it
considers it has an interest of a legal nature whic h may be affected by the decision of the Court in
the main proceedings.
The indication of this maritime area is however not sufficient in itself for the Court to grant
Costa Rica’s Application for permission to interv ene. Under Article62 of the Statute, it is not
sufficient for a State applying to intervene to show th at it has an interest of a legal nature which is
the object of a claim based on law, in the maritime area in question; it must also demonstrate that
this interest may be affected by the decision in the main proceedings.
Costa Rica contends that it need only show th at a delimitation decision could affect its legal
interest, and that such would be the case if it is shown that there is any “overlap whatsoever
between the area in which CostaRica has a legal in terest... and the area in dispute between the
Parties to this case” It also contends that Nicaragua has failed to clarify where the line representing
the southern limit of its claims would be locat ed, thus leaving CostaRica in uncertainty.
Specifically, Costa Rica asserts that even the most northerly southern limit of the areas claimed by
Nicaragua in its written pleadings would encroach on Costa Rica’s entitlements.
CostaRica further contends that the locati on of the southern terminus of the boundary
between Nicaragua and Colombia which, in its view , will be decided by the Court may also affect
its legal interest in the area, inasmuch as the southern endpoint may be placed in CostaRica’s
potential area of interest.
Finally, CostaRica asserts that its interest s could be affected even if the Court places a
directional arrow at the end of the boundary lin e between Nicaragua and Colombia that does not - 8 -
actually touch Costa Rica’s potential interests. Co sta Rica contends that the Court cannot be sure
to place such a directional arrow a safe distance away from Costa Rica’s area of interests without it
providing “full information about the extent of [its] interests” to the Court by way of intervention.
The Court recalls that it has stated in the p ast that “in the case of maritime delimitations
where the maritime areas of several States are involved, the protection afforded by Article 59 of the
Statute may not always be sufficient” (Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002 ,
p. 421, para. 238).
At the same time, it is equally true, as the Chamber of the Court noted in its Judgment on the
Application by Nicaragua for permission to inte rvene in the case concerning the Land, Island and
Maritime Frontier Dispute (El Salvador/Honduras), that
“the taking into account of all the coasts and costal relationships . . . as a geographical
fact for the purpose of effecting on eventual delimitation as between two riparian
States... in no way signifies that by such an operation itself the legal interest of a
third . . . State . . . may be affected” (Judgment, I.C.J. Reports, 1990, p. 124, para. 77).
Furthermore, in the case concerning Maritime Delimitation in the Black Sea (Romania v.
Ukraine), the Court, after noting that “the delimitation [between Romania and Ukraine] will occur
within the enclosed Black Sea, with Romania being both adjacent to, and opposite Ukraine, and
with Bulgaria and Turkey lying to th e south” (Judgment, I.C.J.Reports2009 , p.100, para.112),
stated that “[i]t will stay north of any area wh ere third party interests could become involved”
(ibid.).
It follows that a third State’s interest will, as a matter of principle, be protected by the Court,
without it defining with specificity the geographical limits of an area where that interest may come
into play. The Court wishes to emphasize that this protection is to be accorded to any third party,
whether intervening or not. For instance, in its Judgment concerning the Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) ,
the Court adopted the same position with regard to Equatorial Guinea, which had intervened as a
non-party, and to Sao Tome and Principe, which had not (Judgment, I.C.J. Reports 2002 , p.421,
para. 238).
The Court, in its above-mentioned Judgment, had occasion to indicate the existence of a
certain relationship between Articles62 and 59 of the Statute. Accordingly, to succeed with its
request, Costa Rica must show that its interest of a legal nature in the maritime area bordering the
area in dispute between Nicaragua and Colombia n eeds a protection that is not provided by the
relative effect of decisions of the Court under Article 59 of the Statute, i.e., Costa Rica must fulfil
the requirement of Article62, paragraph1, by show ing that an interest of a legal nature which it
has in the area “may be affected” by the decision in the case.
The Court recalls in this connection that, in the present case, Colombia has not requested that
the Court fix the southern endpoint of the mariti me boundary that it has to determine. Indeed,
Colombia asserts that its claims deliberately leave open the endpoi nts of the delimitation so as not
to affect third State’s interests. The Court further recalls that Nicaragua has agreed “that any
delimitation line established by the Court should st op well short of the area [in which, according to
Costa Rica, it has an interest of a legal nature ,] and terminate [with] an arrow pointing in the
direction of Costa Rica’s area”.
The Court notes that, in the present case, Costa Rica’s interest of a legal nature may only be
affected if the maritime boundary that the Court has been asked to draw between Nicaragua and
Colombia were to be extended beyond a certain latitude southwards. The Court, following its
jurisprudence, when drawing a line delimiting the ma ritime areas between the Parties to the main - 9 -
proceedings, will, if necessary, end the line in estion before it reaches an area in which the
interests of a legal nature of third States may be involved (see Maritime Delimitation in the Black
Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 100, para. 112).
The Court concludes that Costa Rica has not dem onstrated that it has an interest of a legal
nature which may be affected by the decision in the main proceedings.
*
* *
Dispositif(para. 91)
“For these reasons,
T HE COURT ,
By nine votes to seven,
Finds that the Application for permission to intervene in the proceedings filed
by the Republic of Costa Rica under Article62 of the Statute of the Court cannot be
granted.
IN FAVOUR : President Owada; Vice-President Tomka; Judges Koroma, Keith,
Sepúlveda-Amor, Bennouna, Skotnikov, Xue; Judgead hoc Cot;
AGAINST : Judges Al-Khasawneh, Simma, Abraham, Cançado Trindade, Yusuf,
Donoghue; Judge ad hoc Gaja.”
Judgles hasawneh and Abraham append dissenting opinions to the Judgment
of the Court; JudgKeith appends a declaration to the Judgment of the Court;
Judges Cançado Trindade and Yusuf append a joint dissenting opinion to the Judgment of the
Court; JudgeDonoghue appends a dissenting opinion to the Judgment of the Court;
Judge ad hoc Gaja appends a declaration to the Judgment of the Court.
___________ Annex to Summary 2011/3
Dissenting opinion of Judge Al-Khasawneh
In his dissenting opinion, Judge Al-Khasawneh explains the reasons for his disagreement
with the Court’s decision to reject Costa Rica’s re quest to intervene in th e main proceedings. He
also takes issue with the majority’s attempt to de fine and clarify the concept of “an interest of a
legal nature”.
At the outset, Judge Al-Khasawneh draws attention to the Court’s persistently restrictive
approach to intervention. In his view, the C ourt’s unwillingness to grant permission to intervene
cannot be explained in terms of the statutory require ments because the standard of “an interest of a
legal nature which may be affected by the decisi on in the case” under Article 62 of the Statute of
the Court is a liberal one. While there may well be cases where rejection is warranted because the
interest asserted by the would-be intervener is not sufficiently specified or is merely an interest in
the Court’s pronouncement on the applicable general principles and rules of international law, or
because the permission to intervene would have in volved the Court in prono uncing, rather than
only protecting, the intervener’s rights, the main f actor diminishing the role of intervention in the
Court’s proceedings appears to be the Court’s reliance on the argument that the rights of third
States will in any case be protected by the rela tive effect of Article59 of the Statute.
JudgeAl-Khasawneh rejects this approach as insufficient because the purpose and scope of
protection of third State interests under Article62 are wider than that under Article59, providing
the intervener with a chance to be fully heard in order to protect its legal interests before the merits.
With respect to Costa Rica’s Application in the present case, Judge Al-Khasawneh expresses
his disappointment with the Court’s decision to decline permission to intervene notwithstanding
that all the requirements of Article62 are met. In particular, he rejects the Court’s argument that
Costa Rica should have demonstrated that its interest of a legal nature needs protection beyond and
above that provided under Article 59. Judge Al-Khasawneh finds it ironic that the Court begins
with proposing a low threshold by requiring the requesting State to demonstrate only that it has
legal interestsas opposed to established rights, only to later impose a higher threshold based on the
adequacy of protection under Article59. Whilst he commends the Court’s policy to always take
third State interests into account, whether or not there was a request for intervention, he emphasizes
that such protection will inevitably be speculative, particularly where requests for intervention do
not relate to maritime or spatial delimitation.
Judge Al-Khasawneh also takes issue with the Court’s attempt to clarify the elusive concept
of “an interest of a legal nature” by distinguishing between legal interests and rights and stating that
these two concepts are not subject to the same protection or to the same burden of proof. First, he
notes that it is unnecessary for the Court to draw su ch distinction as the issue of the relationship
between interests and rights does not arise in th e present case. Second, the Court’s attempt to
lower the threshold for intervention makes no difference in the present case, as Costa Rica’s
request is still rejected on the basis of the (ironically less stringent) Article59 test. Third,
Judge Al-Khasawneh disagrees altogether with the Court’s view that the concepts of a legal interest
and a right in the context of intervention are distinct. He notes that the concept of “an interest of a
legal nature” was born out of a compromise struck by the drafters of Article 62, intended to exclude
intervention for purely political, economic and othe r non-legal reasons, and not to create a hybrid
concept that is neither an interest nor a right. Furthermore, he points out that the terms “legal
interests”, “rights” and “entitlements” have been used interchangeably in the Court’s jurisprudence,
thus not supporting the conclusion that they carry different meanings. Even the present Judgment
appears to acknowledge that when it defines, in pa ragraph26, the interest of a legal nature as a
“real and concrete claim... based on law”, which, according to JudgeAl-Khasawneh, can only
mean a right . Accordingly, he finds the Court’s conclusion that an interest of a legal nature in
terms of Article62 “does not benefit from the sa me protection as an established right and is not
subject to the same requirements in terms of proof” (Judgment, paragraph26), illogical and
unsubstantiated. In light of the above, Judge Al -Khasawneh concludes that the Court’s attempt to - 2 -
clarify the phrase “an interest of a legal nature” is out of context and fails to bring us any closer to
its understanding.
Dissenting opinion of Judge Abraham
In his dissenting opinion, JudgeAbraham sets out the reasons why he believes the Court
should have allowed Costa Rica’s intervention.
Referring initially to the general considerati ons relating to intervention contained in his
dissenting opinion in respect of Honduras’s Application for permission to intervene,
JudgeAbraham briefly restates his view that inte rvention by a third State under Article62 of the
Statute of the Court is a right, in the sense that intervention is not an option whose exercise is
subject to an authorization to be granted or re fused at the discretion of the Court, but a right
dependent on the existence of conditions whose satisfaction is to be determined by the Court.
Judge Abraham then explains that, although he agrees with most of the arguments in the first
part of the Judgment relating to the legal framework , and in particular with the distinction made
therein between the “rights” of third States and their “interests”, he disagrees with the Court’s
application to the present case of the principles identified in that first part.
Judge Abraham considers that Costa Rica’s inte rests may be affected by a future Judgment
in the principal case for two reasons. Firstly, were the Court to accept the delimitation line
suggested by Colombia, or even a line slightly further to the east, the adopted line would extend
southwards in such a way that it could enter th e area of Costa Rica’s interests. The use of a
“directional arrow” is not sufficient to offset th at risk, because the Court still needs to know where
to put the arrow. In that resp ect, the information provided by a third State during the proceedings
on the Application to intervene is no substitute for the comprehensive information and observations
which that State could submit once allowed to in tervene. Secondly, were the Court to accept
Nicaragua’s claims, or even to fix a delimitation line to the east of the most easterly point of the
line established by the 1977 bilateral treaty between Colombia and Costa Rica, the effect would be
to deny that treaty any possibility of taking effect , and to render its ratification without purpose,
since the area situated immediately to the Colomb ian side of the line fixed by the bilateral treaty
would lie within the ambit of Nicaragua’s sovereign rights.
Lastly, Judge Abraham disagrees with the r estrictive position adopted by the Court in the
Judgment, which he believes is contrary to the Court’s most recent decisions on the subject of
intervention. Moreover, Judge Abraham consider s that the Court’s Judgment is based on the
erroneous reasoning that the delimitation line draw n by the Court will terminate before it reaches
an area in which the interests of third States are at stake. JudgeAbraham recalls that it is the
Court’s practice to place an arrow at the end of the delimitation line it draws, and to explain that the
line continues beyond that point until it reaches an area in which the rights of a third State would be
affected, and not the “interests” of that State. Judge Abraham concludes by pointing out that it is
difficult to see from the Court’s reasoning in th e Judgment under what circumstances the Court
would authorize intervention by a third State in a maritime delimitation case in the future.
Declaration of Judge Keith
In his declaration, Judge Keith states that he agrees with the conclusions the Court reaches,
essentially for the reasons it gives. He does, however, disagree with one aspect of the reasoning.
Judge Keith expresses three difficulties with the Court's elaboration of the distinction
between “the rights in the case at hand” and “an interest of a legal nature”. Those terms or - 3 -
concepts are being taken out of context. The definition given to the second is problematic. And, to
the extent that it exists, the distinction does not appear to be useful in practice.
Joint dissenting opinion of Judges Cançado Trindade and Yusuf
1. Judges Cançado Trindade and Yusuf a ppend a joint dissenting opinion in which they
outline their reasons for dissenting from the present Judgm ent of the Court. It is their belief that
Costa Rica has met the conditions for intervention u nder Article62 of the Statute. In their joint
dissenting opinion, composed of six parts, they present the foundations of their position on (a) the
scope and object of Article 62 of the Statute; (b) the need to identify an “interest of a legal nature”;
(c)the need to demonstrate that such interest “m ay be affected by the decision in the case”; and
(d) the purported special “relationship” between Articles 62 and 59 of the Court’s Statute.
2. Judges Cançado Trindade and Yusuf begi n their joint dissenting opinion by arguing that
the Court’s decision is based on policy grounds rather than on the assessment of whether the
requisites of Article62 have been fulfilled si nce the Court decides to reject Costa Rica’s
Application on the simple policy ground that “a thir d party’s interest will, as a matter of principle,
be protected by the Court, without it defining with specificity the geographical limits of an area
where that interest may come into play”.
3. Furthermore, they do not agree with th e position of the Court that the objectives which
Article 62 was established to achieve can be attained through the exercise of some kind of “judicial
due diligence” concerning third-party interests of a legal nature without affording the would-be
intervenor a hearing in the proceedings on the me rits. On the issue of the scope and object of
non-party intervention under Article 62 (part II), the two Judges note that the opportunity given to a
non-party intervenor to alert the Court of the manner in which its decision could affect the
Applicant’s legal interest is meant to have an effect in the main proceedings through the
substantive information provided by the intervenor to the Court. They express concern with the
reasoning of the Court that “[t]he Court, foll owing its jurisprudence, when drawing a line
delimiting the maritime areas between the Parties to the main proceedings, will, if necessary, end
the line in question before it reaches an area in whic h the interests of a legal nature of third States
may be involved” (paragraph89 of the Judgment). In their view, this reasoning is based on the
flawed assumption that the delimitation of all maritime areas in contention between two parties can
be somewhat mechanically effected without taking into account all the circumstances or facts of a
particular case.
4. Judges Cançado Trindade and Yusuf also di sagree with the Court for portraying itself as a
potential substitute to would-be non-party interven ors in the main proceedings. If this were the
case, then the object of intervention of any State applying to intervene would lose all significance.
Though the Court might be able to delimit certain maritime areas until it reaches the area where the
rights of third States may be affected, it is not clear how it would know about areas where third
State interests of a legal nature may exist, without affording a hearing to such States in the main
proceedings.
5. Judges Cançado Trindade and Yusuf then a ddress the need to identify an “interest of a
legal nature” (part III). They commend the Court for its efforts in clarifying, for the first time in its
history, the concept of an “interest of a legal natu re”. Though this is a welcome development, they
believe that the Court does not make a full assessment of the fulfilment of the requirements of
Article62 in the cas d’espèce . Laying out the history behind the expression “interest of a legal
nature”, they observe that an “interest of a le gal nature” constitutes a le gitimate means whereby a - 4 -
third party may request permission to seek prot ection from a future judgment which may, in the
absence of such intervention, aff ect its claims. Thus, the standard of proof applied in the
assessment of such requirements should not be as demanding as that applicable to the establishment
of the existence of a right.
6. Judges Cançado Trindade and Yusuf then focu s on the need to demonstrate that such an
interest “may be affected by the decision in the case” (part IV). They note that the Court
(a) mischaracterized Costa Rica’s interest of a legal nature; (b) introduced a new standard of proof;
and (c) based its decision solely on policy considerations.
7. First, the two Judges point out that the C ourt, in paragraphs71-72 of the Judgment, sets
aside Costa Rica’s arguments aimed at demonstrating how its interest of a legal nature may be
affected by a decision of the Court on the fact ually erroneous ground that Costa Rica had initially
claimed its 1977 Facio-Fernandez Treaty with Co lombia, and the assumptions underlying it, as an
“interest of a legal nature”, but later retracted that claim. It is their view that Costa Rica’s aim in
presenting arguments on the 1977 Treaty was to demonstrate the manner in which its interest of a
legal nature, as specified in its application, ma y be affected by a decision of the Court. An
unwarranted link appears to have been establis hed between the requirement that Costa Rica’s
request has to satisfy in terms of demonstrating th e manner in which its interest of a legal nature
may be affected by a decision and the fact that the 1977 Treaty is not its legal interest
per se.
8. Secondly, the Judges express surprise at th e Court’s introduction of a new and hitherto
unknown standard of proof which required Costa Rica to demonstrate that “its interest of a legal
nature(…)needs a protection that is not provided by the relative effect of decisions of the Court
under Article59 of the Statute”. A standard of proof based on the adequacy of the protection
provided by Article59 of the Statute cannot be founded in the wording of Article62(1) of the
Statute and does not have a direct bearing on the procedure of intervention under Article62.
JudgesCançadoTrindade and Yusuf draw the conc lusion that by introducing this standard of
proof, the Court’s decision was based on policy grounds which were not articulated in the
Judgment. They emphasize that Article62 does not confer general discretionary powers on the
Court “to accept or reject a request for permission to intervene for reasons simply of policy” (see
Tunisia/Libya, Application to Intervene, Judgment, I.C.J. Reports 1981 , p.12, paragraph17). In
determining whether or not the conditions for intervention established under Article62(1) have
been met by the Applicant, the Court has to asses s whether the grounds invoked by the Applicant
are sufficiently convincing. However, in their view , the Court failed to do so, and appears to have
taken a short cut and opted for a policy based decision.
9. The penultimate part of the joint dissenti ng opinion is devoted to the purported special
relationship between Articles62 and 59 of the Statut e. The judges reiterate that the institution of
intervention was conceived in a broader perspect ive, unrelated to Article59, which limits the
binding force of a Court’s decision to the contendi ng parties in the concrete case. Article 59 has a
specific and narrow focus and applies to all decisions of the Court. On the contrary, intervention
under Article 62 was conceived, for the purposes of the sound administration of justice, to operate
prior to the issuance of a final decision by the Court, and thus before Article59 comes into
operation. It is thus their regret that the Court chose to focus on an unproven special “relationship”
between Article59 and Article 62, ignoring these important characteristics of the institution of
intervention.
10. In their concluding remarks, JudgesCa nçadoTrindade and Yusuf observe that the
Court’s practice appears reminiscent of tradition al bilateral arbitral proceedings where a - 5 -
barrier against third party intervention may be considered desirable. Nevertheless,
Judges Cançado Trindade and Yusuf stress that th is practice does not respond to the contemporary
demands of the judicial settlement of disput es, and does not meet the challenges faced by
present-day international law.
Dissenting opinion of Judge Donoghue
Judge Donoghue dissents from the Court’s decisi on to reject Costa Rica’s Application to
intervene as a non-party. She also sets forth her disagreement with the Court’s approach to
Article 62 of the Statute of the Court.
With respect to the factors relevant to cons ideration of an application to intervene under
Article 62 of the Statute and to the Court’s practice of protecting third States that “may be affected”
in maritime delimitation cases, Judge Donoghue refers the reader to Part I of her dissenting opinion
relating to the Application to intervene by Honduras in this case. Judge Donoghue notes that in her
Honduras opinion, she explains her conclusion that in delimitation cases in which the area to be
delimited overlaps an area subject to the claim of a third State, the Court’s decision may affect “the
interest of a legal nature” of that third State.
Judge Donoghue then turns to Costa Rica’s App lication to intervene. She notes that Costa
Rica has described a “minimum area of interest” that overlaps the area at issue in the dispute
between Nicaragua and Colombia. This is made cl ear by the sketch-map a ttached to the Court’s
Judgment. In Judge Donoghue’s view, the Court a ppears to have decided that it can protect Costa
Rica’s interests by delimiting the boundary betw een Nicaragua and Colombia in a manner that
stops short of the area claimed by Costa Rica. This leads the Court to reject Costa Rica’s
Application. However, Judge Donoghue takes the position that the possibility that the Court may
use directional arrows to protect Costa Rica’s in terests does not counsel against intervention, but
instead supports the conclusion that Costa Rica ha s an interest of a legal nature that may be
affected by the Court’s decision. Moreover, Judge Donoghue notes that the Court inevitably must
assess or estimate the point at which a third State may have an interest of a legal nature in order to
avoid placing a directional arrow within the area subj ect to the claim of that third State. In this
light, Judge Donoghue concludes that the object of Costa Rica’s request to intervene as a
non-party— to inform the Court of its legal right s and interests and to seek to ensure that the
Court’s decision does not affect those interests— is appropriate and that Costa Rica has met its
burden under Article 62.
In her conclusion, Judge Donoghue again refers the reader to her Honduras opinion, in which
she makes some general observations about the Co urt’s current approach to intervention requests
and offers some thoughts on how the approach might be improved.
Declaration of Judge ad hoc Gaja
In his declaration Judge ad hoc Gaja maintains that the Court should have admitted
CostaRica’s Application to intervene if it had followed its more recent precedents in cases of
maritime delimitation. That would have allowed the State wishing to intervene to contribute to the
determination of the nature and sc ope of its legal interest at stake. While the Court says that it
would at any event take note of the information prov ided by that State in its application, it seems
paradoxical that, in a case of maritime delimitation, the only way for a third State to submit
information about its interest of a legal nature which may be affected by a decision of the Court
would be to make an application that the Court considers inadmissible.
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Summary of the Judgment of 4 May 2011