Summary of the Judgment of 23 October 2001

Summaries of Judgments, AdviNot an official document of the Internationa
l Court of Justice

SOVEREIGNTY OVER PULAU LIGITAN AND PULAU SIPADAN (INDONESIA v.

MALAYSIA) (E'ermissionto intervene by the Philippines)

Judgment of 23 October 2001

In its Judgment on the A.pplicationof the Philippinesfor Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc

permission to intervene in the case concerning Sovereignty Weeramantry, Franck;
over I'ulauLigitan and Pulau Sipadan(1ndonesi;dMalaysia). AGAINST:Judge Oda."
the Court found that the Application of the Republic of the *
Philippines, filed in the Registry of tlie Court on 13March
2001, for permission to intervene in the proceedings under * *
Article 62 of the Statuteof t!heCoui-t,couldnot begranted.

The Courtwas conlposedas follows:Presideni Guillaume; Histoiy of tileproceedings
Vice-President Shi; Judge!; Oda, Ranjeva, Fleisclihauer, (paras. 1-17)
Koroina, Vereshchetin, Higgins, Parra-Arang~ren, The Court recalls that by joint letter dated 30 September
Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad
hoc PJeera~naiitry,Franck; FLegistrarCouvreur. 1998, Indonesia and Malaysia filed at the Registry of the
Court a Special Agreement between the twoStates, which
was signed in Kuala Lumpur on 31 May 1997 and entered
into force on 14 May 1998. In accordance with the
aforementioned Special Agreement, the Parties request the
Judge Oda appended a dissenting opinion to the Court to "deteniiine on the basis of the treaties, agreements
Judgment of the Court; Judge Koroma appended a separate and any other evidence furnished by the Parties, whether
opinion to the Judgment of the Court; Judges Parra-
sovereignty over Pulau Ligitan and Pulau Sipadan belongs
Aranguren and Kooijmans appended declarations to the to the Republicof Indonesiaor to Malaysia".
Judgilnentof the Court; Judges ad hoc Weeraniantry and The Parties agreed that the written pleadings should
Franck appended separate opinions to the Judgment of the consist of a Memorial, a Counter-Memorial and a Reply, to
Court. be submitted by each of the Parties simultaneously within
certain fixed timelimits as well as of "a Rejoinder, if the
Parties so agree or if the Court decides ex officio or at the

request of one of the Parties that this part of the proceedings
The full textof the operativeparagraph of the Judgment is necessary and tlie Court authorizes or prescribes the
reads as follows: presentationof a Rejoinder".
The Memorials, Counter-Memorials and Replies were
"95. For these reasons, filedwithin the prescribed time limit.In view of the factthat
THECOURT, the SpecialAgreement providedfor the possible filing of a
(1) By fourteenvotes to one,
fourth pleading by each of the Parties, the latter informed
Finds that the Application of the Republic of the the Court by joint letter of 28 March 2001 that theydid not
Philippines, filed in the Registry of the Court on 13 wish to produce any firther pleadings. Nor did the Court
March 2001, for permission to intervene in the itselfask for such pleadings.
proceedings under Article 62 of the Statute of the Court, By letter of 22 February 2001,the Philippines,invoking
cannotbe granted. Article 53, paragraph 1, of the Rules of Court, asked the
IN FAVOUR: President Guillaume; Vice-President
Court to filrnish it with copies of the pleadings and
Slri; Judges Ranjeva, Fleischhauer, Koroma. docun~entsannexed which had been filed by the Parties.
V~:reshclietin, Higgins, Pai-ra-Aranguren, Kooijmans, Pursuantto that provision, the Court, having ascertainedthe

Continued on next pageviews of the Parties, decided that it was not appropriate, in Oilbehalfofthe GovernmentofIildoizesia.
the circumstances,to grantthe Philippinerequest. at the hearing of 29 June 2001 :
On 13 March 2001, the Philippines filed an Application "The Republic of lildonesia respectfullysubmitsthat
for permission to intervene in the case, invokingArticle 62
of the Statute of the Court. According to the Application, the Republic of the Philippines should notbe granted the
right to intervene in the case concerning Sovereignt),
the Philippine interest of a legal nature which may be over Pzrlau Ligitan and Pirlalr Sipadari (Indonesia/
affected by a decision in the present case "is solely and Mak(~j~si .")
exclusively addressed to the treaties, agreements and other Oilbehalfof the GovernmentofMalaysia,
evidence furnished by Parties and appreciated by the Court
which have a direct or indirect bearing on the matter of the at the hearing of 29 June 2001: "[Malaysia requests] that
legal status of North Borneo". The Philippines also the Court should reject the Philippines Application."
indicatedthat the object ofthe interventionrequested was:
Timeliness of the Application jor pern~issionto
"(a) First, to preserve and safeguard the historical
and legal rights of the Government of the Republic of interveire
the Philippines arising from its claim to dominion and (paras. 18-26)
sovereignty over the territory of North Borneo, to the The Court first addressesthe argumentof both Indonesia
extent that these rights are affected, or may be affected,
and R4alaysiathat the Philippine Applicatioil should not be
by a determination of the Court of the question of grantedbecause of its "untimely nature".
sovereigntyover Pulau Ligitan and Pulau Sipadan. The Court refers to Article 81,paragraph 1,of the Rules
(b) Second, to intervene in the proceedings in order of Court,which stipulates that:
to inform the HonourableCourt of the nature and extent
of the historical and legal rights of the Republic of the "[aln application for permission to intervene under the
terms of Article 62 ofthe Statute ..shall be filed as soon
Philippines which may be affected by the Court's as possible, and not later than the closure of the written
decision. proceedings. In exceptional circumstances, an
(c)Third. to appreciate more fully the indispensable application submitted at a later stage may however be
role of the Honourable Court in comprehensive conflict admitted."
prevention and not merely for the resolution of legal
disputes." Tlie Court indicates that the Philippines had been aware
that the Court had been seized of the dispute between
The Philippines further stated in its Application that it 1ndon.esiaand Malaysia for more than two years before it
did not seek to become a party to the dispute before the filed its Application to intervene in the proceedings under
Court concerning sovereignty over Pulau Ligitan and Pulau Article 62 of the Statute. By the time of the filing of the
Sipadan, and that the Application "is based solelyon Article Application, 13 March 2001, the Parties had already
62 of the Statute, which does not require a separate title of
completed three rounds of written pleadings as provided for
jurisdiction as a requirement for this Application to as mandatory in the Special Agreement - Memorials,
prosper". Counter-Memorials and Replies - , their time limits being
As both Indonesia and Malaysia, in their written a matter of public knowledge. Moreover, the Agent for the
observations, objected to the Application for permission to Philippines stated during the hearings that his Government
intervene submitted by the Philippines, the Court, in June "was conscious of the fact that a$er 2 March 2001,
Indonesia and Malaysia might no longer consider the need
2001, held public sittings pursuant to Article 84, paragraph
2, of the Rules of Court to hear the views of the Philippines, to sut)mita final round of pleadings as contemplatedin their
the State seeking to intervene, and those of the Parties in the Special Agreement". Given these circumstances, the time
case. chosen for the filing of the Application by the Philippines
At the oral proceedings, it was stated by way of can hardly be seen as meeting the requirement that it be
filed "as soon as possible" as contemplated in Article 81,
conclusionthat: paragraph 1,of the Rules of Court.
Onbehalfof the Governtlmenotf thePhilippines,
at the hearing of 28 June 2001: The Court notes. however, that despite the filing of the
Application at a late stage in the proceedings, which does
"The Government of the Republic of the Philippines not accord with the stipulation of a general character
seeks the remedies provided for in Article 85 of the contained in Article 81, paragraph 1, of the Rules, the
Rules of Court,namely, Philippines cannot be held to be in violation of the
paragraph 1: 'the intervening State shall be supplied requirement of the sameArticle, which establishesa specific
. with copies of the pleadings and documents annexed
deadline for an application for permission to intervene,
and shall be entitled to submit a written statement namely "not later than the closure of the written
within a time limit to be fixedby the Court'; and proceedings". The Court recalls that the Special Agreement
paragraph 3: 'the intervening State shall be entitled, provided for the possibility of one more-round of written
in the course of the oral proceedings, to submit its pleadings - the exchange of Rejoinders - "if the Parties
observationswith respect to the subject matter of the so agree or if the Court decides so ex officio or at the

intervention'." request of one of the Parties". It was only on 28 March 2001that the Parties notified the Court byjoint letter "that [their] case with differentparties." (Land Island and Maritinie
Gove:mments ...ha[d] agreed that it is not necessary to FI-ontierDisplrte (El Sal~~ador/HoridurasA ),pplication
exchange Rejoinders". Thus, although the third round of to Intervene, Judgment, 1.C.J. Repor-ts1990, pp. 133-

written pleadings terminated on 2 March 2001, neither the 134,paras. 97-98)
Court northird Statescouldknowon the date of'thefilingof Moreover,as that same Chamberpointed out, and as the
the Philippii~eApplication whether the written proceedings Courtitself hasrecalled:
had indeed come to an end. In any case, the Coilrtcould not "It ..follows ...froin the juridical nature and from the
have "closed" the111 before it had beennotified of the views
of the Parties concerning a fourth round of pleadings, purposesof interventionthat the existenceof a valid link
of jurisdiction between the would-beintervener and the
conte:mplatedby Article 3, paragraph 2 (4, of'the Special parties is not a requirement for the success of the
Agreement. Even after 28 March 2001, in con:fornlitywith application. On the contrary, the procedure of
the same provision of the Special Agreement, the Court intervention is to ensure that a State with possibly
itself could ex officioauthorizeor prescribe thepresentation affected interests may be permitted to intervene even
of a Re-joinder,which the Court did not do. The Court though there is no jurisdictional link and it therefore
therefore concludes that it cannot uphold tlie objection
raiseti by Indoilesia and ]Malaysiabased on the alleged caililnot ecome a party." (Ibid., p. 135,para. 100;L~rtd
andMaritimeBoundarybetween Ca~neroon aridNigeria
untimelyfiling of the PhilippineApplication. (Cameroon v. Nigeria), Application to Intervene.Order
oj'Z1 Octobei-1999,I.C.J.Reports 1999,pp. 1034-1035,
Failure to annex rlocurnentarvor other eviderice in para. 15)
slipport of tile.4pplicat%on
(paras. 27-30) Thus, such a jurisdictional link between the intervening
State and the parties to the case is required onlyif the State
The Court notes further that Article 81, paragraph 3, of seeking to intervene is desirous of "itself becominga party
the Rules of Court provides that an application for to the case". The Court finds that thatis not the situation
permission to intervene"shall contain a list of ciocumentsin here. The Philippinesis seekingto intervene in the case as a
non-party.
support,which documentsshallbe attached". Afterreferring
to the observations of Iildoi~esiaand the Philippines on this
point, the Court confines itself to observing tha.tthere is no Existence of an "interest ofa legal nature "
requirement that the State seeking to intervene necessarily (paras. 37-83)
attach any documents to its application in support of its
claims. It is only where such documents have in fact been In relation to the existence of an "interest of a legal
attached to the said application that a list thereof must be nature" justifying the intervention, the Court refers to the
Philippiilescontentionthat:
included. It follows that the Philippine Application for "Under Article 2 of the Special Agreement between
permissioil to intervene cannot be rejected on the basis of
Article 81.paragraph 3, of the Rules of Court. Indonesia and the Government of Malaysia, the Court
The Court therefore coilcludes that the Philippine has been requested to determinethe issue of sovereigilty
Applicationwas not filed outof time and containsno formal over Pulau Ligitan and Pulau Sipadan 'on the basis of
treaties, agreements and any other evidence' to be
defectwhich would preventit frombeing granted. furnishedby the Parties. The interest of the Republic of
the Philippinesis solelyand exclusivelyaddressedto the
.4//eged abseizce oJajzo-isdictionrrl link treaties, agreements and other evidence firnished by
(paras. 31-36)
Parties and appreciatedby the Court which havea direct
The Court recalls that, under the terms of Article 62 of or indirect bearing on the matter of the legal status of
the Statute: North Borneo. The legal status of North Borneo is a
"1. Shoulda State considerthat it has an interestof a matter that the Governmeilt of the Republic of the
Philippinesconsidersas its legitimateconcern."
legal nature which maybeaffectedby the de:cisioninthe The Court also recalls that the Philippines refers to the
case, it may submit a request to the Court to be
pennitted to intervene. fact that access to the pleadings and to the annexed
2. It shall be for the Court to decide upon this documentsfiledby the Partieswas deniedto it by the Court.
request." It contends that it therefore could not "say with any
certainty whether and whichtreaties, agreements and facts
A.sa Chamber of tlie Cmourh tas already had occasion to are in issue". The Philippines asserts that as long as it does
observe: not have access to the documeilts filed by the Parties and
".interventionunder Article 62 of the Statute is for the does not know their content, it will not be able to explain
purpose of protectinga State's 'interest of alegalnature'
that might be affected by a decision in an existing case really what its interestis.
The Philippinesemphasizesthat "Article62 doesnot say
already established between other States, namely the that the intervening State must have a 'legal interest' or
parties to the case. Iti:snot intended to enable a third 'lawful interest' or 'substantialinterest"', andthat the
State to tack on a new case ..An incidentalproceeding "threshold for the invocationof Article 62 is, as a result, a
cimnot beone which tra.nsforms[a] case into a differentsubjective standard: the State requesting permission to does not have "any territorial interest on Sipadan and
intervene must 'consider' that it has an interest". The Ligitan islands". Indonesia contends that ''Itis evident from
Philippines asserts that"[tlhe criteria are not toprove a legal this [note] that the Philippines raises noclaim with respect
or lawful interest, but to 'identify the interest of a legal to Pulau Ligitan and Pulau Sipadan" and maintains that
nature' and 'to show in what way [it] inay be affected"'. "'Thelegal status of North Bomeo is not a matter on
The Philippines further indicates that the statements made
which the Court has been asked to rule. Moreover, the
by Iildonesia and Malaysia during the public hearing desire of the Philippines to submit its view on various
"provide evidence that the Court will be presented with utlspecified 'treaties, agreements and other evidence
tnany of the treaties and agreements upon which the furnishedby the Parties' is abstractandvague."
Philippines claim is based and will be pressed to adopt With reference to the question of the Philippine interest
interpretations that will certainly affect the Philippine
interest". It subinits that, on the basis of that part of the of a legal naturc which ]nay be affected by the decision in
record to which it has been allowed access, "the probability the case. Malaysia argues that
"l:t]hat legal interest inlist be precisely identified. then
of consequences for the interests oCthe Philippines meets coinparedwith the basis of [the Court's] jurisdictionas it
the 'may' requirenlents of Article 62 andjustifies Philippine appears froin the document of scisin, in the present
intervention". instance the SpecialAgreement"
The Philippitles points out that it "has a direct legal
interest in the interpretation of the 1930 United States- and contends that:
"the Philippines does not indicate how the decisiorz ...
United Kingdom boundaiy, being the successor-in-interest that the Com-tis asked to take on the issuc of sovereignty
of one party to that agreement, the United States", that "the over Ligitan and Sipadan might uJiectany specific legal
1930 Agreement cannot be construed in any way as an
instrunlent of cession", and that "Britain could not have interest. It is content to refer vaguely to the 'treaties,
acquired sovereignty over Pulau Sipadan and Pulau Ligitan agreements and other evidence' on which the Court
by virtue of the interpretation placed by Malaysia on the might 'lay down an appreciation'.But ..the interest of a
1930United States-United Kingdoin Agreement"; it follows legal nature must, if affected, be so affected by the
r~eci,sioof theCourt and not just byitsrensoi~ing. Such
from this that "the two islands in question were acquired by appreciation as the Court may be led to make of the
the United Kingdom in 1930for and on behalf of the Sultan effect of a particular legal instrument, or of the
of Sulu". The Philippines further states that "the territory
ceded by the Sultan to the Philippines in 1962covered only consequences of pallicdar facts, as grounds for its
those tei-ritorieswhich were included and described in the decision cannot, in itself, seive to establish an interest of
1878 Sulu-Overbeck lease agreement", and that its a legalmaturein itsdecision inthe case."
"Application for permission to intervene is based solely on Malaysia further contends that "the issue of sovereignty
over Ligitan and Sipadan is completely independent of that
the rights of the Government of the Republic of the
Philippines transfei~ed by and acquired froin the Sulu of the status of North Borneo", and that "[tlhe territorial
Sultanate". titles are different in the two cases".
The Philippines concludesthat: The Court sets out by considering whether a third State
may intervene under Article 62 of the Statute in a dispute
"Any claim or title to territory in or islands near North brought to the Coi~rtunder a special agreement, when the
Bomeo that assumes or posits or purports to rest a State seeking to intervene has no interest in the subject
critical link on the legitimate sovereign title of Great
Britain from 1878 up to the present is unfounded. matter of that dispute as such, but rather asserts an interest
Similarly, the interpretation of any treaty, agreement or of a legal nature in such findings and reasonings that the
docuinent concenling the legal status of North Bonieo as Coui? might make on certain specific treaties that the State
well as islands off the coast of North Borneo which seeking to intervene claims to be in issue in a different
dispute between itself and one of the two Parties to the
would presuine or take for granted the existence of pending case beforethe Court.
British sovereignty and dominion over these territories
has no basis at all in history as well as in law and, if The Court first considers whether the temls of Ai-ticle62
upheld bythe Court, itwould adversely affect an interest preclude, in any event, an "interest of a legal nature" of the
of a legal nature on the part of the Republic of the State seeking to intervene in anything other than the
Philippines." operative decision of the Court in the existing case in which
the intervention is sought. From an examination of the
For its part, Indonesia denies that the Philippines has an English and French texts of that Article, the Court concludes
"interest of a legal nature". It states that "the subject matter
of the dispute currently pending before the Court is limited that the interest of a legal nature to be shown by a State
to the question whether sovereignty over the islands of seekingto intervene is not limited to the dispo.sitij'aloneof a
Ligitan and Sipadan belongs to Indonesia or Malaysia". It judgment. It may also relate to the reasons which constitute
recalls that on 5 April 2001, the Philippines sent a the necessary steps to thedispositifi
Having reached this conclusion, the Court then considers
diplomatic Note to Indonesia in which, referring to the
ongoing case between Indonesia and Malaysia, it wished to the nature of the interest capable of justifying an
reassure the Government of Indonesia that the Philippines intenrention. I11particular, it considers whether the interestof the State seeking to intervene must bc in the subject its reach. Also, the question whether the 1878grant is to be
matter of thc existingcase itself, whether it may be different characterized as a lease or a cession does not form part of

and, iFso, withinwhat limits. the claim to title of either Party to the islands in issue.
Tlie Courtobservesthat the questionof whether a stated Neither Indonesia norMalaysiarelies on the 1878grant as a
interest in the reasoningof the Courtand any interpretations source of title, each basing its claimed title upon other
itmight give as an interest of a legal nature for purposes of instrutnents and events. The burden which the Philippines
Article 62 of the Statute, can only be examined by testing carries under Article 62, to show the Court that an interest
whetl~er the legal claims which the State seeking to of a legal nature may be affected by any interpretation it
might give or reasoning it might adduce as to its "primal
iuiterveiiehas outlined might be affected. Whatever the
tiaturt:of the clai~iied"interest of a legal nature" that a Statesource" of title, is thusnot discharged.
secking to intervene consid1:rsitself to have (and provided The Philippines supplements its contention that
that it:is not simply general in nature) the Court can only sovereignty of North Borneo was retainedby the Sultanate
judge it "il~~~~~~~et ond in relation to all the circumstances of Sulu by meansof cited extracts from British Statepapers
of a pai-ticularcase". Thus, the Coui-tproceeds to examine of the late nineteenth century and the first part of the

wheth.er tlie Philippine claiin of sovereignty in North twentieth century. The Court observes however tliatneither
Borne:o could or could not be affected by .the Court's of these agreements is regarded by the Parties to the niain
reasoning or interpretatioiiof treaties in the case concerning proceedings as founding title to Pulau Ligitan and Pulau
Pulau Ligitaii and Pulau Sipadan. The Court adds that a Sipadan.
State which, as in tliis case..relies on an interest of a legal Certain other instruments to which the Court was
nature other than in the subject matter of tlie case itself
neces:sarilybears the burdcn of showing with a particular referred by the Philippines do appear to have a certain
relevaice not onlyto the Philippineclaims of sovereigntyin
clarity tlie existenceof the interest of a legal naturewhich it North Borneo, but also to the question of title to Pulau
clainlsto have. Ligitan and Pulau Sipadan.The Philippine interest in the 20
The Court recalls that tlie Philippines has strongly June 1891 Convention, concluded between Great Britain
protested that it is severely and unfairly hampered in and theNetherlands for the purpose of defining boundaries
"identifying" and"showing" its legal interest in the absence in Borneo, lies in noting that while the Convention set

of access to the docuiiieiits in the case between Indonesia boundaries defining "Netherlands possessions" and "British
and Malaysia and that it was not until theoral phase of the Protected States", the "State of North Borneo" was indeed
present proceedings that tlie two Parties publicly stated one of the British Protected States. However, in resolving
which treaties they considered to be in iss-~e in their the interpretationof Article4 of that Convention,the Court
respective claims to Pulau Ligitan and Pulau Sipadan. The has no need to pronounce upon the precise nature of the
Court observes,however,that the Philippines must have full British interests lying to the north of latitude 4" lo',

knowledge of tlie documentary sources relevant to its claim mentioned in this article. Notwithstanding that the 1891
of sovereignty in North Borneo. While the Court Convention may be said to have a certain relevance for
acknowledges that the Philippinesdid not haveaccessto the Indonesia,Malaysia and the Philippines,the Philippineshas
detailed argi~tilentsof the Parties as contained in their demonstratedno legal interest that couldbe affected by the
written pleadings, tliis did not prevent the Philil~pinesfroin outcome or reasoning in the case between Indonesia and
explaining its own claim. and from explaining in what Malaysia.
respect any interpretation of particular instruments might
adverselyaffcctthat claim. The precise status of the legal ties in 1907 as addressed
in the Exchange of Notes on 3 July and 10 July 1907
In outlilling that claiin the Philippines has emphasized between Great Britainand the United States,relating to the
the importance of the i~istru~nenetntitled "Grar:t by Sultan administrationof certain islands on the east cost of Borneo
of Sulu of territoriesaiidlands on themainland of the island by the BNBC, is not central to Malaysia's claims.
of Bo:meo"(hereinafter"the Sulu-Overbeckgrant of 1878"). Accordingly, no interest of a legal nature that requires an
This instnunlentis said by the Philippines to be its "primal interventionunder Article 62, to present their interpretation

sourcc" of title in North Borneo. The Philippines interprets of the 1907 Exchange of Notes, has been shown by the
the instiunlellt as a lease and not as a cession of sovereign Philippines.
title. It also acktiowledges.thatthe territorial scope of tlie The Court alsonotes tliat tlie 1930 Convention between
instrumentdescribedin its first paragraph ("toge~:lier ith all Great Britain and the United States,regarding the boundary
the islands which lie within nineiniles from the coast") did between the Philippine Archipelago and North Borneo, has
not include PulauLigitanand Pulau Sipadan.
as its particular object thedetermination of which of the
The Coui-tobserves, however, that thePhilippine claims islands in the region "belong" to the United States on the
as shown on the British map submitted to the Clourtby the onehand and to the Stateof North Borneoon theother.This
Pliilippines duri~igtlie oral proceedings, do not coincide Conventiondoes not appearto thc Court at this stage of the
with the territorial limits of the grant by the Su!tanof Sulu proceedings to concern the legal status of the principal
in 1878. Moreover, the grant of 1878 is not in issue as territoryof North Borneo.
between Indonesia andMalaysia in the case, both agreeing
The Court further finds that any interest that the
that Pulau Ligitaii auldPulau Sipadan were not includedin Philippines claims to have as to references that the Courtmight make in the case between Indonesia and Malaysia to "object" within the meaning of Article 81 of the Rules. The
the 1946 North Borneo Cession Order in Council is too Court therefore rejects the relevance under the Statute and
remote forpurposesof interventionunderArticle 62. Rules of the third listed object.
The Court considers that the Philippines needs to show The Court concludes that notwithstanding that the first
to the Court not only "a certain interest in ... legal two of the objects indicated by the Philippines for its
considerations" (Continental Shelf (Libyan Arab intervention are appropriate, the Philippines has not

Jamaliiriya/Maltcc),Application to Intervene, Judgment, discharged its obligation to convince the Court that
Z.C.J.Reports 1981, p. 19,para. 33) relevant to the dispute specified legal interests may be affected in the particular
between Indonesia and Malaysia, but to specify an interest circ~~mstanceo sf this case.
of a legal nature which may be affected by reasoning or
interpretationsof the Court.The Courthas statedthat a State Dissenting opirzionofJzidge Oda
seekingto interveneshouldbe able to do this on the basis of
its documentaryevidence upon which it relies to explain its Judge Oda voted against the operative part of the
Judg.ment,as he firmly believed that the Philippine request
own claim. for permission to intervene in the case between Indonesia
Some of the instruments which the Philippines has
invoked, and the submissions it has made as to them, may and Malaysiashouldhave beengranted.
indeed have shown a certain interest in legal considerations IIe recalled the four previous rulings given on
before the Court in the dispute between Indonesia and applications for permission to intervene under Article62 of
Malaysia; but as regards none of them has the Philippines the Statute, in 1981, 1984, 1990and 1999.He statedthat his
position had remained unchanged throughout these four
been able to discharge its burden of demonstrating that it cases. In his view, Article 62 of the Court's Statute should
has an interest of a legal nature that maybe affected,within
the sense of Article 62. The Philippines has shown in these be interpretedliberally so as to entitle a State, even one not
instruments no legal interest that might be affected by having a jurisdictional link with the parties, which shows
reasoning or interpretations of the Court in the main "an interest of a legal nature which may be affected by the
proceedings, either because they form no part of the decision in the case" to participate in the case as a non-
arguments of Indonesia and Malaysia or because their yurv. He recalled that he had also enunciatedthat view in a
respective reliance on them does not bear on the issue of lecturegiven to the Hague Academy of InternationalLaw in
1993.
retention of sovereignty by the Sultanate of Sulu as
described by the Philippines in respect of its claim in North Judge Oda was further of the view that where
Borneo. participation as anon-party is permitted, it is not for the
interveningState to prove in advancethat its interestwill be
Theprecise object of the intervention affected by the decision in the case. He considered that
without participating in the merits phase of the case, the
(paras. 84-93) intervening State has no way of knowing the issues
In respect of "the precise object of the intervention" involved, particularly when it is refused access to the
which the Philippines states, the Court first quotes the three
written pleadings. Thus, if a request for permission to
objectscited above. intervene is to be rejected, he considered that the burden
As regards the first of the three objects stated in the shou.ldbe placed on the parties to the principal case to show
Application of the Philippines, the Court notes that similar that the interest of the third State will not be affected by the
formulations have been employed in other applications for decisionin thecase.
permission to intervene, and have not been found by the In Judge Oda's view, the question of whether,in fact, an
Court to present a legalobstacleto intervention.
intervening Statedoes or does not havean interestof a legal
So far as the second listed object of the Philippines is nature can only be considered in the merits phase. He said
concerned,the Court, in its Order of 21 October 1999in the that after having heardthe views of the intervening State in
case concerning the Land and Maritime Boulldarybetween the main case, the Court might, after all, find in some cases
Cumei-oonand Nigeria (Cameroonv. Nigeria), Application that the third State's interest will not be affected by the
to Znteiverte,recently reaffirmed a statement of a Chamber decisionin the case.
that:
Judge Oda then went on to say that present proceedings
"[slo far as the object of [a State's] intervention is 'to had been dealt with in a way widely at variance with the
inform the Court of the nature of the legal rights [ofthat foregoing.The Philippines had learned of the subjectmatter
State]which are in issue in the dispute', it cannotbe said of the dispute between Indonesia and Malaysia specified in
that this object is not a proper one: it seems indeed to Article 2 of the SpecialAgreementof 31May 1997,but still
accord with the function of intervention"(Z.C.J.Reports did not know how the two Parties would present their
1999,p. 1034,parcc.14). position concerning sovereignty over the two islands. At

As to the third object listed in its Application,the Court best, the Philippines could speculate that its interests in
observes that every occasional mention was made of it North Borneo might be affected depending on what
during the oral pleadings. But the Philippines did not Indonesia and Malaysia would say in the principal case
develop it nor did it contend that it could sufficealone as an about the two islands. As a result of the objections byIndonesia and Malaysia, the:Philippines had been refused force except between the parties and in respect of that
accessto the Parties' writtenpleadingsand thus was still not particularcase".
in a position to know whether or not its interests may, in If the decision isconsidered non-binding for a State not
fact,be affected by the decisionof the Court in the principal a party to the dispute, it follows that the Court's reasoning
case. In seeking permission to intervene, all the Philippines cannotbe consideredof a bindingnatureeither.
could do, as it did in its Application,was to make knownits
claitn to sovereignty in North Borneo, which ntav be Judge Koroma concluded that Article 62 should
thereforenot have beeninterpretedin sucha way thatit may
affectedby the decisionin the case. prevent the Court from properly performing its judicial
Judge Oda considered that the burden was not on the function or require a State to exercise undue vigilance
Philippines but on Indonesia and Malaysia to assure the regardingthe reasoningof the Courtin reaching its decision
Philippines that its interests would not be affected by thc in a case in which that Stateis not a party.
Judgment to be rendered by the Court in the prirlcipalcase.

He qu1:stionedwhether it was really reasonable - or even
a~cept~able - for Indonesia and Malaysia to require the
Philippines to explain how its interest inay be affected by Notwithstanding his vote for the operative part of the
the decision in the case, while they concealed :fromit the Judgment, Judge Parra-Arangurenconsiders it necessary to
reasoning supporting their claims in the principiil case. He statethat, in his opinion,Article 62 of the Statuterefers only
said that at the time it filed its Applicationfor:rmissionto to the disposittfpart of the Judgment in the main case. The
intervene, and at least until the second rourid of oral findingsor reasoning supportingthe future Judgment of the
Court in the main case are not known at this stage of the
pleadings, the philippines could not have known how the
respective claims of Indonesia and Malaysia lo the two proceedings. Therefore, it is impossible to take them into
islands in questioii would relate to its own claim to consideration,as the majority maintains (para. 47), in order
sovereignty over North Borneo. He stated that the whole to determine whether they may affect the legal interest of
procedure in this case struck.him as being rathe:runfair to the State seekingfor permission to intervene.Consequently,
the intervening State. He believed that the argument Judge Parra-Aranguren cannot agree with other paragraphs
concerning "treaties, agreement and any other evidence" of the Judgment which, after examining certain documents,

could not, and should not, have been made until the conclude that the Philippines' legal interest may not be
Philippines had been afforded an opportunity to participate affectedby their interpretation.
in theprincipal case.

Separate opinion ofJudge Koronza
Judge Kooijmans fully concurs with the Court's finding
In his separate opinion,, Judge Koroma stated that, that the Philippines has not demonstrated that its legal
although he had supported the Judgment, he could not interestmay be affected by the Court's decisionin the case
between Indonesiaand Malaysia on sovereignty over Pulau
express unqualified adherence to some of the positions
reached in the Judgment. Ligitan and Pulau Sipadan and that consequently its
From his perspective, the:wider meaning given by the Applicationforpermissionto intervenecannotbe granted.
Court to "decision" in Article 62 as including not only the He is, however,of the opinion that the Court could and
dispositlf but the reasoning of the Judgment, though it may should have given more attention to the requirement it
not be wrong, is not free from creating doubts and fom~ulateditself, when it said that the Philippines "must
explain,withsufficientclarity its own claimto North Borneo
difficul.tiesand could restrain the Court from declaring the
law or giving full interpretation to the legal ins:mment or and the legal instruments on which it is said to rest"
issues 'beforeit in a particular case, for fear that a previous (paragraph 60 of the Judgment). He feels that the
interplxtationof a legalinstrumentmay cometo haunt it in a Philippines,by not addressing highly relevant issueswhich
futureclaimyet to be submittedto it. were raised during the oral proceedings, failed to provide
In Judge Koroma's view, it isthe role of the:Court, in the Court with suf'ficientclarity regarding its claim and that
the Courtshould havesaid so explicitly.
perfornningitsjudicial functionto declarethe law and every
case should be decided on its merits, taking into Thispoint is not only of importancefrom a legalpoint of
consideration all the issues of law and fact before it. For view, it alsohas practicalimplications.
him, the Court's decisionresidesin the disposits as it is the It is sometimes said that third-party intervention
dispositif which embodies the findings of the Court in basically is at odds with the system of consensual
response to the submissions made by parties in a particular jurisdiction; in order to allay fears that States might be less
case. He also observed tha.t whether an application to
inclined to submit disputes to the Court if they run the risk
interveine in a particular case is successful 01. not, the of a third State being granted too easily permission to
decision of the Court in that particular case cannot be intervene, the Court should for reasons of judicial policy
consideredresjuclicatc~ for a State not a party to the dispute give special attention to the specificity of the legal interest
before the Court and in the light of Article 59 of l.heStatute mentioned inArticle 62, paragraph 1, of the Statute and to
of the Court that "[tlhe decision of the Courthas no binding theplausibilityof the claitnwhich isat its origin. Separate opiilioizofJudge ad hoc Weerainantry of self-determination. This right has been confirmed by
treaties, judgments of this Court and resolutions of the
Judge Weeramantry agreed with the decision of the General Assembly. It is, quite simply, pre-eminent in
Court but considered this an appropriate occasion to modern internationallaw.
examine the question of intervention in international law
because of the dearth of judicial authority on the question In the instance of North Borneo's decolonization,Judge
and the increasing importance of intervention procedures Franck believes, this right was implemented in 1963
will acquire in the more closely interrelated world of the through elections observed by the representative of the
UnitedNations Secretary-General,who certifiedthe fairness
future. The opinion examines the wide discretion of the and conclusivenessof the popularchoice made by the voters
Court under Article 62 and the principles to be extracted in favour of federationwith Malaysia. This was acted upon
from comparisons and contrasts between domestic and
international law relating to intervention. It notes value of by the United Nations General Assembly's Committee on
such principles to the Court in the exercise of its discretion Non-Self-GoverningTerritories.
under Article 62. The opinion concludes with observations In Judge Franck's view, the Court is bound to take
on the problem of ajurisdictional link,ail interest of a legal judicial notice of the momentous international legal
development brought about by the adoption and
nature, the precise object of intervention,the lateness of the
interventionand theconfidentialityofpleadings. implementation of the right of self-determination.
Accordingly, whatever interest the Philippines might have
Separl~teopinion ofJudge ad hoc Fraizck inheritedfrom the Sultanof Sulu - even were it to be fully
demonstrable - cannot now be held to prevail over a
Judge Franck agrees with the Judgment of the Court and validated exerciseof so fundamentala right. Sincethe claim
with its reasoning. He adds. however, that the Philippine is barred by law, the Philippines cannot possibly be said to
Application is also barred by a supervening legal principle: have:a legal interestin furtherventilatingit in this forum.

the right of non-self-governingpeople to exercisetheir right