Annex 2 toSH 90/1
mrrsroDE HOSDX:RAS
ANTELh CORTETLAHAYACIOSDE JUSTICTA
The Hague, 15 January 1990
Sir,
1 have the honourto refer to your letter dated
14 December 1989, requestingthe views ofmy Governmenton
the preliminaryquestion of whetherthe requestby Nicaragua
to intervene inthe present case between Honduraa snd El
Salvador falls within thecompetenceof the Chamber already
constitutedfor that caseor the full Court.
It is clear that jurisdiction in this case arisf esom
and Article 2 of that
the SpecialAgreement of24 May 1986,
Agreement is a request tothe Chamber of the Court.The full
Court has no jurisdiction overthe case between Honduras and
El Salvador,and equally could have no jurisdiction over
Nicaraguaon the one hand and either Honduras or El Salvador
on the other in thiscase. Under the Court's Statute the
powers of the full Court in relation to a case submittedto
a Chamber are confined to matters affectingthe composition
of the Chamber, such as establishingthe original membership
of the Charnber,deciding on replacements, deciding on a
member's request to be excused, and agreeing to the
nominationof ad hoc Judges.
A request to intervene raises a totally different
issue, it is a "procedural"matter under Chapter III of the
Statute,and is describedas an "incidental" proceeding
under Section D of the Rules. Such an incidentalprocedural
matter can only be decided by the body which has
jurisdiction over the case as such. This would be true of
al1 incidental proceedings, includin an applicationfor
interimmeasuresof protection.For the correct principleis
believed to be that any Courtor Tribunal,with cornpetence
over the merits of a case, must (withinthe limitsof its
Statute)be free to decide upon the procedures appropriate
to the case, and such decisionhas to be taken in the light
of the actual issues of substance raised in the case, not as
practice,ctsuch incidental procedural matters cannoiplebte
divorced fromthe merits and treated by a body with no
jurisdiction over the merits. This seemsself-evidentin a
request for intervention where, as in this case, the
requestingState has to prove that it has an interestof a
legal nature whichmay be affectedby the decisionon the MlS10SDE FIOSII>tlRAY
AXTE1.ACORTETSTERNACll>NDEJUSTICTA
CARAYA
merits (Article 62 of the Statute).Whether such a legal
interestexists can only be determinedin the light of an
understandingof the merits of the case.Yet that
understanding is properly confined to the Chamber in this
case, since the Chamber alone has jurisdictionover the
merits. The same would be true of an applicationfor an
order of interim measures:a Court without competence over
the merits could scarcely judge the factors relevantto such
an application,such as the probabilityof jurisdiction
being affirmed and therisk ofirreparableharm to the
interestsof the applicantState.
The fact that Article 84 of the Rules states that "the
Court" shall decide on applicationsto interveneis by no
means decisive, for Article 90 makes clear that,for al1 the
provisionsin Parts 1 to III of the Rules, a referenceto
the Court shall mean a reference toa Chamber for the
purposes of a proceedingbefore a Chamber.
Accordingly,1 have to conclude,on behalf on my
Government,that Nicaragua'sapplicationto intervene must
be heard by the Chamber and not by the full Court.
Please accept, Sir, the assuranceof my highest
consideration.
{/,qLz7 L LT?\
1
Carlos RobertoReina
Agent
Mr. Eduardo Valencia-Ospina
Registrarof the International
Court of Justice
The Hague
Observations of the Government of the Republic of Honduras