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
2011/4 Summary
4 May 2011
Territorial and Maritime Dispute (Nicaragua v. Colombia)
Application by Honduras for permission to intervene
Summary of the Judgment of 4 May 2011
History of the proceedings (paras. 1-17)
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 basis for the Court’s juri sdiction, Nicaragua invoked the provisions of ArticleXXXI of
the American Treaty on Pacific Settlement si gned on 30April1948, officially designated,
according to Article LX thereof, as the “Pact of Bogotá” (hereinafter referred to as such), as well as
the declarations made by the Parties under Article 36 of the Statute of the Permanent Court of
International Justice, which are deemed, for th e period which they still have to run, to be
acceptances of the compulsory jurisdiction of the present Court pursuant to Article 36, paragraph 5,
of its Statute.
The Court states that, on 10June2010, the Republic of Honduras (hereinafter “Honduras”)
filed an Application for permission to intervene in the case pursuant to Article 62 of the Statute. It
stated that the object of this Application was:
“Firstly , in general terms, to protect the rights of the Republic of Honduras in
the Caribbean Sea by all the legal means ava ilable and, consequently, to make use for
that purpose of the procedure provided for in Article 62 of the Statute of the Court.
Secondly , to inform the Court of the nature of the legal rights and interests of
Honduras which could be affected by the decision of the Court, taking account of the
maritime boundaries claimed by the parties in the case brought before the Court . . .
Thirdly , to request the Court to be permitted to intervene in the current
proceedings as a State party. In such circumstances, Honduras would recognize the
binding force of the decision that would be rendered. Should the Court not accede to
this request, Honduras requests the Court, in the alternative, for permission to
intervene as a non-party.” - 2 -
In accordance with Article83, paragraph1, of the Rules of Court, certified copies of
Honduras’s Application were communicated forthw ith to Nicaragua and Colombia, which were
invited to furnish written observations on that Application.
On 2September2010, within the time-limit fixed for that purpose by the Court, the
Governments of Nicaragua and Colombia submitted written observations on Honduras’s
Application for permission to intervene. In its observations, Nicaragua stated that the request to
intervene failed to comply with the Statute and the Rules of Court and that it therefore “opposes the
granting of such permission, and . . . requests that the Court dismiss the Application for permission
to intervene filed by Honduras”. For its part, Colombia indicated inter alia in its observations that
it had “no objection” to Honduras’s request “to be permitted to intervene as a non-party”, and
added that it “considers that [Honduras’s request to be permitted to intervene as a party] falls to the
Court to decide”. Nicaragua having objected to the Application, the Parties and the Government of
Honduras were notified by letters from the Registrar dated 15 September 2010 that the Court would
hold hearings, in accordance with Article84, paragr aph2, of the Rules of Court, to hear the
observations of Honduras, the State applying to intervene, and those of the Parties to the case.
At the public hearings on whether to grant Honduras’s Application for permission to
intervene, the following submissions were presented:
On behalf of the Government of Honduras ,
“Having regard to the Application and the oral pleadings,
May it please the Court to permit Honduras:
(1) to intervene as a party in respect of its interests of a legal nature in the area of
concern in the Caribbean Sea (paragraph 17 of the Application) which may be
affected by the decision of the Court; or
(2) in the alternative, to intervene as a non-party with respect to those interests.”
On behalf of the Government of Nicaragua,
“In accordance with Article60 of the Rules of the Court and having regard to
the Application for permission to intervene filed by the Republic of Honduras and its
oral pleadings, the Republic of Nicaragua respectfully submits that:
The Application filed by the Republic of Honduras is a manifest challenge to
the authority of the res judicata of your 8th of October 2007Judgment. Moreover,
Honduras has failed to comply with the re quirements established by the Statute and
the Rules of the Court, namely, Article 62, and paragraph 2, (a) and (b), of Article 81
respectively, and therefore Nicaragua (1) opposes the granting of such permission, and
(2) requests that the Court dismiss the Application for permission to intervene filed by
Honduras.”
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 the effect that, in Colombia’s view,
Honduras has satisfied the requirements of Article 62 of the Statute and, consequently,
that Colombia does not object to Honduras’s request for permission to intervene in the
present case as a non-party. As concerns Honduras’s request to be permitted to - 3 -
intervene as a Party, Colombia likewise reite rates that it is a matter for the Court to
decide in conformity with Article 62 of the Statute.”
*
* *
Reasoning of the Court
The Court notes that Honduras defined the object of its intervention according to whether its
primary or alternative request to intervene were granted: if the former, to settle the maritime
boundary between itself and the two States parties to the case; if the latter, to protect its legal rights
and interests and to inform the Court of the nature of these, so that they are not affected by the
future maritime delimitation between Nicaragua and Colombia.
I. THE LEGAL FRAMEWORK (paras. 20-48)
The Court first considers the legal framework of Honduras’s request to intervene as set out in
Article62 of the Statute of the Court and Article81 of the Rules of Court and notes that,
intervention being a proceeding 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 b asis of jurisdiction which is claimed to exist as
between it and the parties.
The Court examines the capacities in which Hondur as is seeking to intervene, before turning
to the other constituent elements of the request for permission to intervene.
* *
1. The capacities in which Honduras is seeking to intervene (paras. 22-30)
Honduras is seeking permission to intervene as a party in the case before the Court in order
to achieve a final settlement of the disput e between itself and Nicaragua, including the
determination of the tripoint with Colombia, and, in the alternative, as a non-party, in order to
inform the Court of its interests of a legal nature which may be affected by the decision the Court is
to render in the case between Nicaragua and Colombia, and to protect those interests.
Referring to the jurisprudence of the Court, Honduras considers that Article 62 of the Statute
allows a State to intervene eith er as a party or a non-party. In the former case, a basis of
jurisdiction as between the State seeking to interv ene and the parties to the main proceedings is
required, and the intervening State is bound by the Court’s judgment, whereas in the latter, that
judgment has effect only between the parties to th e main proceedings, pursuant to Article 59 of the
Statute. Honduras maintains that in the present proceedings, ArticleXXXI of the Pact of Bogotá
founds the Court’s jurisdiction as between itself, Ni caragua and Colombia. For a State seeking to - 4 -
intervene as a party, according to Honduras, interv ention consists in “asserting a right of its own
with respect to the object of the dispute”, so as to obtain a ruling from the Court on such a right.
For Nicaragua, whatever the two alterna tive capacities in which Honduras is seeking to
intervene, the sine qua non conditions laid down by Article62 of the Statute remain applicable,
namely that the State must be able to show an in terest of a legal nature which may be affected by
the decision in a dispute submitted to the Court. It points out that Honduras, in any event, may not
intervene as a party, if for no other reason than the absence of a basis of jurisdiction, since
Article VI of the Pact of Bogotá excludes from the Court’s jurisdiction “matters already settled . . .
by decision of an international court”. In Ni caragua’s view, Honduras’s argument consists in
reopening delimitation issues already decided by the Judgment of the Court of 8October2007
(Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), p. 659).
Colombia notes that intervention is an incidental procedure and may not be used to tack on a
new case, distinct from the case that exists between the original parties. It accepts that both forms
of intervention, as a party and as a non-party, require proof of the existence of an interest of a legal
nature, although it questions whether the same criterion applies to this interest in both cases.
*
The Court observes that neither Article 62 of the Statute nor Article 81 of the Rules of Court
specifies the capacity in which a State may seek to intervene. However, in its Judgment of
13 September 1990 on Nicaragua’s Application fo r permission to intervene in the case concerning
Land, Island and Maritime Frontie r Dispute (ElSalvador/Honduras) , the Chamber of the Court
considered the status of a State seeking to inte rvene and accepted that a State may be permitted to
intervene under Article 62 of the Statute either as a non-party or as a party:
“It is therefore clear that a State whic h is allowed to intervene in a case, does
not, by reason only of being an intervener, beco me also a party to the case. It is true,
conversely, that, provided that there be th e necessary consent by the parties to the
case, the intervener is not prevented by r eason of that status from itself becoming a
party to the case.” (Land, Island and Mar itime Frontier Dispute
(ElSalvador/Honduras), Application to Inte rvene, Judgment, I.C.J.Reports1990 ,
pp. 134-135, para. 99.)
In the opinion of the Court, the status of in tervener as a party requires, in any event, the
existence of a basis of jurisdiction as between th e States concerned, the validity of which is
established by the Court at the time when it permits intervention. However, even though Article 81
of the Rules of Court provides that the application must specify any basis of jurisdiction claimed to
exist as between the State seeking to intervene and the parties to the main case, such a basis of
jurisdiction is not a condition for intervention as a non-party.
If it is permitted by the Court to become a party to the proceedings , the intervening State
may ask for rights of its own to be recognized by the Court in its future decision, which would be
binding for that State in respect of those aspects for which intervention was granted, pursuant to
Article59 of the Statute. A contrario , as the Chamber of the Court formed to deal with the case
concerning the Land, Island and Maritime Frontier Dispute (ElSalvador/Honduras) has pointed
out, a State permitted to intervene in the proceedings as a non-party “does not acquire the rights, or
become subject to the obligations, which attach to the status of a party, under the Statute and Rules
of Court, or the general principles of procedur al law” (Application to Intervene, Judgment,
I.C.J. Reports 1990, p. 136, para. 102). - 5 -
The Court observes however that, whatever the capacity in which a State is seeking to
intervene, it must fulfil the conditions laid down by Article 62 of the Statute. Since Article 62 of
the Statute and Article81 of the Rules of Court provide the legal framework for a request to
intervene and define its constituent elements, those elements are essential, whatever the capacity in
which a State is seeking to intervene; that State is required in all cases to establish its interest of a
legal nature which may be affected by the decisi on in the main case, and the precise object of the
requested intervention.
2. The interest of a legal nature which may be affected (paras. 31-39)
The Court notes that Honduras takes the view that there are two principles underpinning
Article62 of the Statute. Under the first of th ese, it is for the State wishing to intervene to
“consider” whether one or more of its interests of a legal nature may be affected by the decision in
the case, and it alone is able to appreciate the extent of the interests in question. According to the
second principle, it is for that State to decide whether it is appropriate to exercise a right of
intervention before the Court.
For Honduras, therefore, Article62, like Article63, lays down a right to intervene for all
States parties to the Statute, whereby it is sufficien t for one of them to “consider” that its interests
of a legal nature may be affected in order fo r the Court to be bound to permit intervention.
According to Honduras, if that interest is genui ne, the Court does not have the discretion not to
authorize the intervention.
The Court observes that, as provided in the Stat ute and the Rules of Court, the State seeking
to intervene shall set out its own interest of a legal nature in the main proceedings, and a link
between that interest and the decision that mi ght be taken by the Court at the end of the
proceedings. In the words of the Statute, 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
intérêt d’ordre juridique . . . pour lui en cause”; see Article 62 of the Statute).
The Court considers that it is up to the State concerned to apply to intervene, even though the
Court may, in the course of a particular case, draw the attention of third States to the possible
impact that its future judgment on the merits may have on their interests, as it did in its Judgment of
11June1998 on preliminary objections in the case concerning Land and Maritime Boundary
between Cameroon and Nigeria, I.C.J. Reports 1998, p. 324, para. 116.
The Court notes that, in contrast to Article63 of the Statute, a third State does not have a
right to intervene under Article62. It is not suffi cient for that State to consider that it has an
interest of a legal nature which may be affected by the Court’s decision in the main proceedings in
order to have, ipso facto , a right to intervene in those proceedings. Indeed, Article 62, paragraph 2,
clearly recognizes the Court’s prerogative to decide on a request for permission to intervene, on the
basis of the elements which are submitted to it.
It is true that, as it has already indicated, the Court “does not consider paragraph2 [of
Article62] to confer upon it any general discretion to accept or reject a request for permission to
intervene for reasons simply of policy” (Contin ental Shelf (Tunisia/Libyan Arab Jamahiriya),
Application for Permission to Intervene, Judgment, I.C.J. Reports 1981 , p.12, para.17). It is for
the Court, responsible for safeguarding the proper ad ministration of justice, to decide whether the
condition laid down by Article62, paragraph1, has been fulfilled. Consequently, Article62,
paragraph2, according to which “[it] shall be for the Court to decide upon this request”, is
markedly different from Article63, paragraph2, which clearly gives certain States “the right to
intervene in the proceedings” in respect of the interpretation of a convention to which they are
parties. - 6 -
The Court observes that, whereas the parti es 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 as a non-party, 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. Artic le 62 requires the interest relied upon by the State
seeking to intervene to be of a legal nature, in th e sense that it has to be th e 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 decision of the Court granting permission to intervene can be understood as a preventive
one, since it is aimed at allowing the intervening State to take part in the main proceedings, in order
to protect an interest of a legal nature which risk s being affected in those proceedings. As to the
link between the incidental proceedings and the ma in proceedings, the Court has previously stated
that “the interest of a legal nature to be show n 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 ” (Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indonesia/Malaysia), Application for Permission to Intervene, Judgment, I.C.J. Reports 2001 ,
p. 596, para. 47).
The Court makes clear that it falls to it 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” (Land, Island and Maritime Frontier Dis pute (ElSalvador/Honduras), Application for
Permission to Intervene, Judgment, I.C.J. Reports 1990, p. 118, para. 61).
3. The precise object of the intervention (paras. 40-48)
The Court recalls that, under Article81, paragraph2(b) , of the Rules of Court, an
application for permission to intervene must set out “the precise object of the intervention”.
Honduras is requesting the Court, in the c ontext of its Application for permission to
intervene as a party, to determine the definitiv e course of the maritime boundary between itself,
Nicaragua and Colombia in the maritime zone in qu estion, and to fix the tripoint on the boundary
line under the 1986 Treaty. In the alternative, th e object of Honduras’s intervention as a non-party
is “to protect its rights and to inform the Court of the nature of the legal rights and interests of the
Republic of Honduras in the Caribbean Sea which could be affected by the decision of the Court in
the pending case”.
The Court states that Honduras’s request for permission to intervene is an incidental
procedure and that, whatever the form of the re quested intervention, as a party or as a non-party,
the State seeking to intervene is required by the Statute to demonstrate the existence of a legal
interest which may be affected by the decision of the Court in the main proceedings. It follows that
the precise object of the intervention must be co nnected with the subject of the main dispute
between Nicaragua and Colombia.
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 - 7 -
which may be affected; these proceedings are not an occasion for the State seeking to intervene or
for the Parties to discuss questions of substance 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.
As the Court has previously stated, the raison d’être of intervention is to enable a third State,
whose legal interest might be affected by a possible decision of the Court, to participate in the main
case in order to protect that interest.
The Court notes that a State requesting permission to intervene may not, under the cover of
intervention, seek to introduce a ne w case alongside the main proceedings. While it is true that a
State which has been permitted to intervene as a pa rty may submit claims of its own to the Court
for decision, these have to be linked to the subject of the main dispute. The fact that a State is
permitted to intervene does not mean that it can al ter the nature of the main proceedings, since
intervention “cannot be [a proceeding] which transforms [a] case into a different case with different
parties” (Land, Island and Maritime Frontier Di spute (ElSalvador/Honduras), Application to
Intervene, Judgment, I.C.J. Reports 1990 , p.134, para.98; see also Continental Shelf (Libyan
Arab Jamahiriya/Malta), Application for Permi ssion to Intervene, Judgment, I.C.J. Reports 1984 ,
p. 20, para. 31).
Therefore, the purpose of assessing the conn ection between the precise object of the
intervention and the subject of the dispute is to en able the Court to ensure that a third State is
actually seeking to protect its legal interests which may be affected by the future judgment.
* *
II. EXAMINATION OF H ONDURAS ’SA PPLICATION FOR PERMISSION
TO INTERVENE (paras. 49-75)
The Court notes that, in specifying its interests of a legal nature that may be affected by the
decision of the Court, Honduras in its Applica tion states that the 1986 Maritime Delimitation
Treaty between Honduras and Colombia (hereinafter referred to as “the 1986 Treaty”) recognizes
that the area north of the 15th parallel and east of the 82nd meridian involves Honduras’s legitimate
rights and interests of a legal nature. Honduras argu es that the Court should, in its decision in the
present case, take full account of such rights and interests in the said area, which, it maintains, were
not addressed in the 2007Judgment of the Court in the case concerning Territorial and Maritime
Dispute between Nicaragua and Hondur as in the Caribbean Sea (Nicaragua v. Honduras)
(Judgment, I.C.J. Reports 2007 (II), p. 658). Since the Court is going to determine the allocation of
the “delimitation area” proposed by Nicaragua in the main proceedings, Honduras is of the view
that the Court will inevitably have to decide whether the 1986 Treaty is in force and whether it does
or does not accord Colombia rights in the area in dispute between Colombia and Nicaragua.
Therefore, Honduras maintains that the status and substance of the 1986 Treaty are at stake in the
present case.
Honduras claims that by virtue of the 1986 Treaty, in the area east of the 82nd meridian, it is
still entitled to certain sovereign rights and jurisd iction such as oil concessi ons, naval patrols and
fishing activities. Honduras contends that Nicaragua as a third party to the 1986 Treaty cannot rely
on the said Treaty to maintain that the maritime ar ea in question appertains to Nicaragua alone.
Honduras is convinced that, without its participati on as an intervening State, the decision of the - 8 -
Court may irreversibly affect its legal interests if the Court is eventually to uphold certain claims
formulated by Nicaragua.
Honduras argues that the 2007 Judgment did no t settle the entire Caribbean Sea boundary
between Honduras and Nicaragua. In its opinion, the fact that the arrow on the bisector boundary
appearing on one of the sketch-maps in the 2007 Judgment stops at the 82nd meridian, together
with the wording of the dispositif of the Judgment, indicates that the Court made no decision about
the area lying east of that meridian. Accord ing to Honduras, because the Court in the 2007
Judgment did not rule on the 1986 Treaty, a matter that the Court was not asked to address, there
still exists uncertainty to be resolved in regard to the respective sovereign rights and jurisdiction of
the three States in the area, namely, Honduras, Co lombia and Nicaragua. To be more specific,
Honduras takes the view that the Court has not de termined the final point of the boundary between
Honduras and Nicaragua, nor has it specified that th e final endpoint will lie on the azimuth of the
bisector boundary line. As the object of its Appli cation, Honduras is requesting the Court, in the
event it is granted permission to intervene as a party, to fix the tripoint between Honduras,
Nicaragua and Colombia, thus to reach a final settlement of maritime delimitation in the area.
In explaining its understanding of the effect of the 2007 Judgment with respect to the
reasoning contained in paragraphs 306-319 of the Judgment under the heading “Starting-point and
endpoint of the maritime boundary”, Honduras cont ends that these paragraphs are not part of
res judicata, and that, in paragraph319, the Court was not ruling on a specific matter, but rather
indicating to the Parties the methodology it coul d use without prejudging a final endpoint, and
without prejudging which State or States could be c onsidered as the third States. Thus, in its view,
paragraph 319 does not rule upon any matter at all and res judicata in principle only applies to the
dispositif of the Judgment.
Nicaragua and Colombia, the Parties to th e main proceedings, hold different positions
towards Honduras’s request. Nicaragua is definite ly opposed to the Application by Honduras,
either as a party or a non-party. Nicaragua takes the position that Honduras’s request fails to
identify any interest of a legal nature that may be affected by the decision of the Court as required
by Article 62 of the Statute and challenges the res judicata of the 2007 Judgment.
Nicaragua contends that Honduras has no interest of a legal nature south of the delimitation
line fixed by the Court in the 2007 Judgment, including the area bounded by that line in the north
and the 15th parallel in the south. According to Nicaragua, the 1986 Treaty cannot be relied on
against it because it encroaches on its sovereign ri ghts. Nicaragua argues that the 2007 Judgment,
with full force of res judicata , settles the entire Caribbean Sea boundary between Nicaragua and
Honduras, and that res judicata extends not only to the dispositif , but also to the reasoning, insofar
as it is inseparable from the operative part. Nicaragua is of the view that the Application instituted
by Honduras attempts to reopen matters that have already been decided by the Court and therefore
should be barred by the principle of res judicata.
Colombia, on the other hand, is of the view that Honduras has satisfied the test to intervene
as a non-party in the case under Article62 of the Statute. Moreover, it raises no objection to the
request of Honduras to intervene as a party. Colo mbia focused its arguments on the effect of the
2007Judgment on the legal rights of Colombia vis-à-vis Nicaragua in the area which the
1986Treaty covers. Colombia asserts that its bilateral obligations towards Honduras under the - 9 -
1986Treaty do not prevent it from claiming in the present proceedings rights and interests in the
area north of the 15th parallel and east of the 82nd meridian as against Nicaragua, because what it
had committed to Honduras under the 1986 Treaty was only applicable to Honduras.
*
The Court notes that, according to Article62 of the Statute and Article81 of the Rules of
Court, the State applying to intervene has to satisfy certain conditions for intervention to be
permitted. Either as a party or a non-party, th e State requesting permission to intervene should
demonstrate to the Court that it has an interest of a legal nature that may be affected by the decision
of the Court in the main proceedings. The Court, in ascertaining whether Honduras has or has not
met the criteria in Article62 of the Statute con cerning intervention, will first of all examine the
legal interest claimed to be involved. The Court is mindful, as stated previously, that in analysing
such interests, the Court neither has the intent ion to construe the meaning or scope of the
2007Judgment in the sense of Article60 of the St atute, nor to address any subject-matter that
should be dealt with at the merits phase of the main proceedings. The Court must not in any way
anticipate its decision on the merits (see La nd, Island and Mar itime Frontier Dispute
(El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, p. 118, para. 62).
* *
1. The interest of a legal nature claimed by Honduras (paras. 57-75)
The Court first examines the interest that Honduras has claimed for protection by
intervention. Honduras indicates that the zone contai ning its interest of a legal nature that may be
affected by the decision of the Court lies with in a roughly rectangular area as illustrated in the
sketch-map on page 26 of the Judgment. It furthe r states that the south line and the east line of the
rectangle, that are identical with the boundary in the 1986 Treaty, run as follows:
“[S]tarting from the 82nd meridian, the boundary goes due east along the
15thparallel until it reaches meridian 79°56'00" . It then turns due north along that
meridian. Some distance to the north, it turns to follow an approximate arc to the west
of some cays and Serranilla Bank, until it reaches a point north of the cays . . .”
The Court observes that Honduras, in order to de monstrate that it has an interest of a legal
nature in the present case, contends that it is en titled to claim sovereign rights and to assert
jurisdiction over the maritime area in the rectangle. In concrete terms, Honduras states that it can
assert rights relating to oil concessions, naval patrol s and fishing activities in that area. In its
arguments, Honduras raises a number of issues whic h, according to the Court, directly put into
question the 2007 Judgment, in which the mar itime boundary between Honduras and Nicaragua
was delimited.
Honduras’s interest of a legal nature relate s essentially to two issues: whether the
2007Judgment has settled the entire maritime boundary between Honduras and Nicaragua in the
Caribbean Sea and what effect, if any, the decisi on of the Court in the pending proceedings will
have on the rights that Honduras enjoys under the 1986 Treaty.
In its Application, Honduras explains that it and Colombia possess ri ghts in the maritime
zone north of the 15th parallel as they are gene rated by the Honduran coast, on the one hand, and - 10 -
by the Archipelago of San Andrés, Serranilla and the island of Providencia, on the other. Due to
their overlapping claims, the 1986Treaty was concluded. The Court observes that Honduras’s
position on the status of the 15th parallel as stated in the present case is not raised for the first time
as between Honduras and Nicaragua. As a matter of fact, it was duly considered by the Court in
the Judgment on the delimitation of the mariti me boundary between Nicaragua and Honduras in
2007.
In the Nicaragua v. Honduras case, one of Honduras’s principa l arguments with respect to
the delimitation was that the 15th parallel, either as a traditional line or by tacit agreement of the
neighbouring States, should serve as the mariti me boundary between Honduras and Nicaragua.
The Court, in that judgment, rejected both of th ese legal grounds and gave no effect to the 15th
parallel as the boundary line. By virtue of the 2007 Judgment, therefore, the 15th parallel plays no
role in the consideration of the maritime deli mitation between Honduras and Nicaragua. In other
words, the matter has rested on res judicata for Honduras in the present proceedings.
In establishing a single maritime boundary between Nicaragua and Honduras, delimiting
their respective territorial seas, continental shelv es and exclusive economic zones in the disputed
area, the Court in the 2007 Judgment drew up a straight bisector line, with some adjustments taking
into account Honduras's islands off the coastline. In the present proceedings, Honduras and
Nicaragua hold considerably different positions on the effect of this bisector boundary. They differ
as to whether the 2007 Judgment has specified an endpoint on the bisector line, whether the
bisector line extends beyond the 82nd meridian a nd, consequently, whether the 2007 Judgment has
definitively delimited the entire maritime bounda ry between Honduras and Nicaragua in the
Caribbean Sea. The Court notes Honduras’s asserti on that these issues, if not answered, would
certainly affect the finality and stability of the legal relations between the two parties.
In the Court's reasoning in paragraphs 306- 319 of the 2007 Judgment, there are two aspects
that the Court considers as directly bearing on the a bove issues. The Court recalls, first, that in the
2007Judgment, it was only after the Court came to the conclusion that there may be potential
third-State interests in the area that it decided not to rule on the issue of the endpoint. Logically, if
PointF on the bisector line had been determined as the endpoint, as interpreted by Honduras, it
would have been unnecessary for the Court to con tinue considering where third-State interests
might possibly lie because Point F would in any event be devoid of potential effect on the rights of
any third State. Secondly, it was because of the claim raised by Hond uras that a delimitation
continuing beyond the 82ndmeridian would affect Colombia’s rights that the Court took full
account of the arguments put forward by Honduras in regard to the third-State rights and made sure
“that any delimitation between Honduras and Nicaragua extending east beyond the
82nd meridian and north of the 15thparallel (as the bisector adopted by the Court
would do) would not actually prejudice Colombia’s rights because Colombia’s rights
under [the 1986 Treaty] do not extend north of the 15th parallel” (Territorial and
Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), pp. 758-759, para. 316;
emphasis added).
According to the Court’s reasoning, the bisector line with a defined azimuth, after Point F, is
to continue as a straight line subject to the cu rve of the Earth and run the whole course of the
maritime boundary between Honduras and Nicaragua as long as there are no third-State rights
affected. It thus delimits the maritime zones respectively accruing to Honduras and Nicaragua in
the Caribbean Sea, which by definition must cover the area in the rectangle.
In examining Honduras’s argument, the Cour t finds it difficult to appreciate Honduras’s
contention that “a boundary that does not have an endpoint, clearly cannot be settled in its
entirety”, because that was not the first time that the Court left open the endpoint of a maritime
boundary to be decided later when the rights of th e third State or States were ascertained. As the - 11 -
Court held in its 2007 Judgment, it is “usual in a judicial delimitation for the precise endpoint to be
left undefined in order to refrain from prejudicing the rights of third States” (Territorial and
Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras),
Judgment, I.C.J. Reports 2007 (II), p. 756, para. 312). What was decided by the Court with respect
to the maritime delimitation betw een Honduras and Nicaragua in the Caribbean Sea is definitive.
Honduras could not be a “third State” in the legal re lations in that context for the reason that it was
itself a party to the proceedings. So long as ther e are no third-State claims, the boundary is to run
indisputably on the course defined by the Court.
The Court observes that the boundary might have conceivably deviated from the straight-line
established by the 2007 Judgment only if Honduras ha d presented further maritime features to be
taken into account for the boundary delimitation. Neither in the case concerning the Territorial and
Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras)
nor in the present proceedings did Honduras make such a suggestion or produce any evidence to
that effect. Of course, even if it had done so in the present proceedings, the matter still would not
have fallen under Article 62 of the Statute with respect to intervention, but under Article 61 thereof
concerning revision. In other words, Honduras does not suggest that there still exists any
unresolved dispute or evidence that would prove that the bisector lin e is not the complete and final
maritime boundary between Honduras and Nicaragua.
2. The application of the principle of res judicata (paras. 66-70)
The Court notes that Honduras’s claims are primarily based on the ground that the reasoning
contained in paragraphs306-319 of the 2007Judgment does not have the force of res judicata .
Honduras contends that, therefore, the principle of res judicata does not prevent it from raising
issues relating to the reasoning of that Judgment.
The Court recalls that it is a well-established and generally recognized principle of law that a
judgment rendered by a judicial body has binding force between the parties to the dispute.
It notes that, in ascertaining the scope of res judicata of the 2007 Judgment, it must consider
Honduras’s request in the specific context of the case
The rights of Honduras over the area north of the bisector line have not been contested either
by Nicaragua or by Colombia. With regard to that area, there thus cannot be an interest of a legal
nature of Honduras which may be affected by the decision of the Court in the main proceedings.
In order to assess whether Honduras has an interest of a legal nature in the area south of the
bisector line, the essential issue for the Court to as certain is to what extent the 2007 Judgment has
determined the course of the single maritime boundary between the areas of territorial sea,
continental shelf and exclusive economic zone appertaining respectively to Nicaragua and
Honduras.
The Court is of the view that the course of th e bisector line as determined in point (3) of the
operative clause of its 2007 Judgment (paragraph 321) is clear. In point (3) of its operative clause,
which indisputably has the force of res judicata , the Court held that “[f]rom point F, [the boundary
line] shall continue along the line having the azimu th of 70°14'41.25" until it reaches the area
where the rights of third States may be affected”.
The Court observes that the reasoning contained in paragraphs 306-319 of the
2007Judgment, which was an essentia l step leading to the dispositif of that Judgment, is also
unequivocal on this point. The Court made a clea r determination in these paragraphs that the
bisector line would extend beyond the 82nd meridian until it reached the area where the rights of a
third State may be affected. Before the rights of su ch third State were ascertained, the endpoint of - 12 -
the bisector line would be left open. Without su ch reasoning, it may be difficult to understand why
the Court did not fix an endpoint in its decision. With this reasoning, the decision made by the
Court in its 2007 Judgment leaves no room for any alternative interpretation.
3. Honduras’s request in relation to the 1986 Treaty (paras. 71-75)
With regard to the 1986 Treaty, the Court observes that Honduras and Colombia have
different positions. Honduras asserts that given the “conflicting bilateral obligations”, stemming
from the 1986Treaty with Colombia and the 2007Ju dgment vis-à-vis Nicaragua respectively,
Honduras has an interest of a legal nature in determining if and how the 2007Judgment has
affected the status and application of the 1986 Treaty. Colombia, on the other hand, asks the Court
to leave the 1986Treaty aside, because the task of the Court at the merits phase is to delimit the
maritime boundary between Colombia and Nicaragua , not to determine the status of the treaty
relations between Colombia and Honduras. Thus , in the view of Colombia, the status and
substance of the 1986 Treaty are not issues at stake in the main proceedings.
In the perceived rectangle under consideration by the Court, there are three States involved:
Honduras, Colombia and Nicaragua. These States ma y conclude maritime delimitation treaties on
a bilateral basis. Such bilateral treatie s, under the principle res inter alios actaher confer any
rights upon a third State, nor impose any duties on it. Whatever concessions one State party has
made to the other shall remain bilateral and bilateral only, and will not affect the entitlements of the
third State. In conformity with the principle of res inter alios acta , the Court in the 2007 Judgment
did not rely on the 1986 Treaty.
The Court states that, between Colombia and Nicaragua, the maritime boundary will be
determined pursuant to the coastline and maritime features of the two Parties. In so doing, the
Court will place no reliance on the 1986Treaty in determining the maritime boundary between
Nicaragua and Colombia.
Finally, the Court does not consider any need to address the remaining issue of the “tripoint”
that Honduras claims to be on the boundary line in the 1986Treaty. Having clarified the above
matters pertaining to the 2007Judgment and the 1986Treaty, the Court does not see any link
between the issue of the “tripoint” raised by Honduras and the current proceedings.
In light of the above considerations, the Cour t concludes that Honduras has failed to satisfy
the Court that it has an interest of a legal nature that may be affected by the decision of the Court in
the main proceedings. Consequently, there is no need for the Court to consider any further
questions that have been put before it in the present proceedings.
Operative clause (para. 76)
“For these reasons,
T HE C OURT ,
By thirteen votes to two,
Finds that the Application for permission to intervene in the proceedings, either
as a party or as a non-party, filed by the Republic of Honduras under Article 62 of the
Statute of the Court cannot be granted.
IN FAVOUR : President Owada; Vice-PresidentTomka; JudgesKoroma,
Al-Khasawneh, Simma, Keith, Sepúlveda-Amor, Bennouna,
Cançado Trindade, Yusuf, Xue; Judgesad hoc Cot, Gaja; - 13 -
AGAINST : Judges Abraham, Donoghue.”
JudgeAl-Khasawneh appends a declaration to the Judgment of the Court; JudgeAbraham
appends a dissenting opinion to the Judgment of th e Court; Judge Keith appends a declaration to
the Judgment of the Court; Judges Cançado Trinda de and Yusuf append a joint declaration to the
Judgment of the Court; Judge Donoghue appends a dissenting opinion to the Judgment of the
Court.
___________ Annex to Summary 2011/4
Declaration of Judge Al-Khasawneh
JudgeAl-Khasawneh concurs in the Judgmen t’s conclusion that the Application by
Honduras for permission to intervene in the present proceedings either as a party or a non-party,
cannot be granted. He also essen tially agrees with the reasoning which led the majority to this
conclusion.
However, JudgeAl-Khasawneh disagrees, fo r reasons already outlined in his dissenting
opinion appended to the Judgment concerning Costa Rica’s Application for permission to intervene
in the same case, with the Court’s attempt to clar ify the elusive concept of “an interest of a legal
nature” by distinguishing between legal interests and rights and by stating that these two concepts
are not subject to the same protection or to the same burden of proof. In his view, this attempt has
not brought us any closer to understanding of the concept of “an interest of a legal nature” but has
rather made it even more obscure.
Dissenting opinion of Judge Abraham
JudgeAbraham agrees with the operative part of the Judgm ent in so far as it rejects
Honduras’s Application to intervene as a party, but he does not agree with the reasoning which led
the Court to that conclusion. Furthermore, Judge Abraham disagrees with the operative part of the
Judgment in so far as it rejects Honduras’s Application to intervene as a non-party.
By way of general considerations, Judge Abraham explains that third States have a “right” to
intervene in a case in progress, but that that right is subject to the existence of certain conditions,
whose satisfaction is to be determined by the C ourt on the basis of the evidence presented by the
State seeking intervention. If the Court finds th at the conditions are met, it is obliged, in
Judge Abraham’s view, to authorize the interventi on. Consequently, Judge Abraham believes that
the Court’s Judgment is open to criticism in so far as the Court does not confine itself, in the part of
the Judgment relating to the application of those pr inciples to Honduras’s Application to intervene,
to establishing whether the condition set forth in Article 62 of the Statute is met, but reasons as if it
had a discretionary power giving it a free hand to accept or reject an application to intervene.
JudgeAbraham considers that Honduras’s A pplication to intervene as a party must be
rejected, given the lack of any basis of jurisd iction between Honduras and the two Parties to the
present case. Thus it is Judge Abraham’s belief that the maritime delimitation between Honduras
and Nicaragua was completely settled by the C ourt’s Judgment rendered on 8 October 2007 in the
case between Nicaragua and Honduras. That delimitation therefore constitutes a matter “settled . . .
by decision of an international court”, within the me aning of Article VI of the Pact of Bogotá, thus
precluding the application of the compromissory clause contained in Article XXXI of the Pact.
According to JudgeAbraham, the Court should, however, have allowed Honduras to
intervene as a non-party. He believes that, in th is case, the future Judgment of the Court could
affect Honduras’s interests of a legal nature in two ways. Firstly, the Judgment rendered by the
Court in the dispute between Nicaragua and Colo mbia could fix the endpoint of the bisector line
drawn by the Court in its Judgment of 8Oc tober2007 in the case between Nicaragua and
Honduras. JudgeAbraham accordingly concludes that the future Judgment of the Court could
affect Honduras’s interests. Secondly and more importantly, JudgeAbraham believes that the
Judgment rendered by the Court could have direct consequences on the effective application of the
1986 bilateral treaty between Honduras and Colombia . In effect, should the Court adopt the
delimitation line proposed by Colombia, Honduras will still be able, on the basis of that treaty, to
lay claim to the greater part of the areas which th at treaty attributes to it. However, in the event
that the Court should decide to award all or part of those areas to Nicaragua, Honduras would no
longer be able to lay claim to them, because th ere is no treaty basis between it and Nicaragua on - 2 -
which such a claim could be based. JudgeAbra ham disagrees with the Judgment in so far as it
does not take account of those considerations and concludes, on the strength of irrelevant grounds,
that Honduras does not have an interest of a lega l nature which might be affected by the future
Judgment.
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
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 declaration of Judges Cançado Trindade and Yusuf
1. Judges Cançado Trindade and Yusuf have vot ed in favour of the Court’s overall decision
not to grant Honduras’ Application for permission to intervene either as a party or as a non-party.
In addition, they commend the Court for its treatme nt of the distinction between rights and legal
interests. In their joint declaration, Judges Cançado Trindade and Yusuf explain the foundations of
their position in joining the Court’s decision not to grant Honduras’ Application for permission to
intervene. They also express concern regarding the continued propensity of the Court to decide
against the concrete application of the institution of intervention, which they consider to have an
important role to play in contemporary international litigation and dispute-settlement (part I).
2. To this end, Judges Cançado Trindade and Yusuf undertake an examination of the
requisites for intervention under the Court’s Statute (p art II). They consider that for the purpose of
assessing the criteria for intervention laid down in Article 62 of the Statute it is irrelevant whether
the applicant third-State wishes to intervene as a party or a non- party in the main proceedings
since, in any event, the applicant third-State ought to demonstrate that it has “an interest of a legal
nature” which “may be affected” by the decisi on of the Court on the merits of the case.
JudgesCançadoTrindade and Yusuf sustain that in the cas d’espèce , Honduras has not
demonstrated that it has an “interest of a legal nature” which may be affected by the decision in the
case. To their understanding, the 2007 Judgment of the Court in the case of the Territorial and
Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea bears the status of res
judicata and has thus settled the maritime delim itation between Honduras and Nicaragua in the
Caribbean Sea. They argue that Honduras has not presented any further maritime features to be
considered in the assessment of its Application fo r permission to intervene, and concur with the
Court that the 1986Treaty between Honduras and Colombia held no bearing on a maritime
delimitation between Nicaragua and Colombia.
3. Judges Cançado Trindade and Yusuf then cons ider the irrelevance of State consent for the
consideration by the Court of requests for permission to intervene (part III). In this regard, they
stress their view that consent by the main parties to the proceedings is irrelevant to the assessment
of an application for permission to interven e and cannot be perceived as a requirement under
Article 62 of the Statute.
4. Furthermore, they explain their agreem ent with the conclusion of the Court that a
jurisdictional link between the State seeking to inte rvene and the Parties to the main case “is not a
condition for intervention as a non-party”. They consider that the reasoning of the Court pertaining - 3 -
to intervention in international le gal proceedings sets aside clearly th e issue of State consent. To
their understanding, the consent of the parties to the main case is not, in any way, a condition for
intervention as a non-party since the Court is the master of its own jurisdiction and does not need to
concern itself with the search for State consent in deciding on an Application for permission to
intervene. In their view, intervention under the St atute transcends individual State consent. What
matters, in their view, is the consent originally expressed by States in becoming Parties to the
Court’s Statute, or in recognizing the Court’s ju risdiction by other instrumentalities, such as
compromissory clauses. They argue that there is therefore no need for the Court to keep on
searching instinctively for individual State consent in the course of international legal proceedings.
5. Judges Cançado Trindade and Yusuf trust th at the point made in their Joint Declaration
regarding the irrelevance of State consent in the Court’s consideration of applications for
permission to intervene under Article62 of the St atute may be helpful to elucidate the positions
that the Court may take on the matter in its jurisprudential construction.
Dissenting opinion of Judge Donoghue
Judge Donoghue dissents from the Court’s decision to reject Honduras’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.
At the outset, Judge Donoghue reviews the provisi ons of the Statute and the Rules of Court
that address intervention. She notes that Article 62 makes no distinction between intervention as a
party and as a non-party, which can lead to some confusion.
Judge Donoghue next focuses on the requirement of Article62 that a third State requesting
to intervene must demonstrate “an interest of a le gal nature which may be affected by the decision
in the case”. She notes that the phrase “may be affect ed” must be read in light of Article 59 of the
Statute, which states that a “decision of the Court has no binding force except between the parties
and in respect of that particular case”. Because Article59 clearly limits the way in which a
judgment can “affect” a third State, Article 62 must extend to an effect that falls short of imposing
binding legal obligations on the third State.
Turning to maritime delimitation, Judge D onoghue describes the practice whereby the Court
has addressed the interests of third States by declining to set final endpoints, instead specifying that
boundary lines continue until they reach the area in which the rights of third States may be affected.
Judge Donoghue rejects the suggestion that this practice counsels against permitting intervention.
Rather, where a third State asserts a claim that ov erlaps those of the parties to the case, this
demonstrates an interest of a legal nature that may be affected by the Court’s decision and suggests
that intervention as a non-party may be warranted.
Judge Donoghue then examines Honduras’s App lication. Noting that Honduras has claims
that overlap the area in dispute between Nicar agua and Colombia, Judge Donoghue states that the
Court can be expected to take account of Honduras’ s claims in its decision on the merits. This
demonstrates that Honduras has an “interest of a legal nature” that “may be affected” by the
decision in the case. Judge Donoghue further explai ns that in addition to the overlapping claims,
there is an additional reason to grant Honduras’s re quest to intervene as a non-party. If the Court
were to adopt the line proposed by Colombia, it would have a significant impact on the concrete
meaning of the Court’s 2007 Judgment in the case concerning the Territorial and Maritime Dispute
between Nicaragua and Hondur as in the Caribbean Sea , a decision that binds Honduras under
Article 59. - 4 -
On the question of party intervention, Judge Donoghue states that the Court correctly
rejected Honduras’s request. The intervention by Honduras as a party, on the terms requested by
Honduras, would add a new dispute to the case — the location of a “tripoint” along the boundary
line established by the bilateral treaty betw een Honduras and Colombia. According to
Judge Donoghue, this is not a proper object of party intervention.
In conclusion, Judge Donoghue takes note of the Court’s reaffirmation that, even when the
Court rejects an application to intervene, it may take account of the information submitted by the
failed intervenor. In Judge Donoghue’s view , this practice gives rise to a de facto form of
third-State participation that is not currently a feat ure of the Statute or the Rules of Court. Noting
the significant delay in the proceedings that an application to intervene as a non-party may cause,
Judge Donoghue suggests that the Court should streamline the procedures for considering such
requests, reserving the more onerous procedures for applications to intervene as a party.
___________
Summary of the Judgment of 4 May 2011