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Dcssio-File
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NUCLEARTESTS
(NEW ZEALANDv. FRANCE)
APPLICATIONFORPERMISSIONTO INTERVENEUNDERARTICLE 62
DECLARATlONOF INTERVENTIONUNDERARTICLE63
24 AUGUST1995 NUCLEARTESTS CASE (NEWZEALAND o. FRANCE)
APPLICATIONTO BE PERMiTTED TO INTERVENE UNDER
ARTICLE 62
DECLARATIONOF INTERVENTIONUNDER ARTICLE 63
MADE BY THE WVERNMENT OF SOLOMONISLANDS
1 have the honour, as the Agent for the Government of Solomon Islands,
to submit to the International Court of Justice the present request for
intervention in the case concerning Nuclear Tests (New Zealand v.
Francel.
PART A. Introduction
1. Solomon Islands seeks to intervene in the case on two separate
grounds.
(1) Solomon lslands applies for permission to intervene under Article
62 of the Statute. This application relates both to the phase of
provisional measures. and to the phase of the merits. Solomon
Islands considers that'ithas an interest of a,legal nature which
may be affected by the decision of the Court at each of these
phases of the case.
(2) Solomon Islands understands that the New Zealand Request
invokes certain articles of the Convention for the Rotectioof the
Natural Resources and Environment of the South Pacifie Region,
signed at Noumea on 24 November 1986.1 and that the
construction of the Convention is in question within the meaning
of Article 63 of the StatuteIn such a case a State notifled of this
factby the Registrar has a right of intervention under Articl63.2
1 (1987) 26 International Legal Material38; Australian Treaty Series
1990.No31 (hereafterreferred toas the NoumeaConvention).
2 It should be noted ithiscontext that Article71 (1)of the 1972 Rules
(correspondingto Articl82 (3)of the 1978Rules]prwldes that a declaration
"may be Bled by a State that considers itself a party to the convention the Under the unusual circumstances of the present case, and having
regard to the urgency of the matter. Solomon Islands hereby
declares its intention to interveneas of right under Article 63. both
inrelation to the phase of provisional measures, and the eventual
phase of the merits.
2. These requests for intervention are cumulative and alternative.3
They are examined separately below.
A D-DlicableRules
3. Solomon Islands understands that the Rules of Court applicable to
the present Request and Declaration are the 1972 Rules. The 1978
Rules are specificaiiy stated not to apply "in respect of any case
submitted to the Court before 1July 1978. or any phase of sucha case"
(1978 Rules. Preamble. emphasis added). To such a case or phGe.
therefore. the 1972 Rules continue to apply. To assist the Court, this
Request and Declaration will as far as possible provide the information
caiied for by the 1978 Rules, as well as that required by the 1972 Rules.
This is done. however. without prejudice to the contention that the
pennissibility or admissibility of this Request and Declaration are
governed. subject to the Statute itself by the 1972 Rules.
The Facts
4. The facts underlying the dispute are outlined in the Court's
decisions of 1973 and 1974. Subsequent developments will have been
referred to in New Zealand's Request of 21 August 1995. At this stage.
Solomon Islands would only make the following additional observation.
In fact. and as clearly reflected in New Zealand's initial Application. the
dispute between New Zealand and France as to nuclear testing in the
Pacific raises issues which aie more than bilateral in ,character. Nuclear
testing has the potential seriously to impact on the environment of the
region. and that cannot be reduced to the terms of a bilateral
relationship. Moreover the noms on which New Zealand relies are either
general international law noms having an erga omnes character. and
relating to legally protected interests common to New Zealand and other
States in the region which may be affected by the tests, or. in the case of
the Noumea Convention. derive from a regional convention recognising
and protecting a common. collective. interest.
5. The prearnble to the Noumea Convention refers to "the special
hydrologic& geological and ecological characteristics of the region &hich
require speciai care and responsible management". to "the unique
construction of which is in question but has not received the notification
referred to in Article of the Statute".
3 Nothing in the Statute precludes a State frorn relying both on Artic62
and 63 in relation to the same casCf The Wimbledon PCIJSer A No 1 (1923).environmental quality of the region" and its"special requirernents". ln
addition. the independent island States which are members of the South
Pacific Forum4 have consistently opposed activity related to nuclear
weapons and nuclear waste disposal in their Region, for example by
seeking to establish and guarantee the status of the Region as a nuclear
free zone.5
The New Zealand Reauests
6. The New Zealand Request for an Examination of the Situation has
two separate elernent~:~
(1) The fist element of the New Zealand Request asks the Court t6
adjudge and declare that itwould be unlawful for France to
conduct nuclear tests at Mururoa or Fangataufa Atolls without
first carrying out an environmental impact assessment of the effect
of such testsin accordance with accepted international standards.
which assessment must establish that the tests wiil not give rise to
radioactive contamination of the marine environment. This is a
matter which is covered by Article 16 of the Nournea Convention.
(2) The second element of the New Zeaiand Request asks the Court to
adjudge and declare that the conduct of the proposed nuclear tests
will violate New Zealand's rights under international law. as well as
those of other States. This is a matter which is covered by Article
4 (6) of the Noumea Convention. which itself reflects the position
under generai international law and which is embodied in other
applicable international conventions [e.g. Article 3 of the
BiodiversityConvention of 19927).
7. New Zealand has also requested the Court to indicate further
provisional measures.8 In essence. these are that France refrain from
conducting any further nuclear tests atMururoa and Fangataufa without
first camying out an environmental impact assessment in accordance
with accepted international standards. such assessment establishing
that the testswill not give rise to radioactive contamination of the marine
environment. New Zealand also asks the Court to indicate that France
and New Zealand should ensure that no action is taken which might
- ~ - -~ ~
4 The South PacificForum was founded Ln1971. A South PacificForum
Secretariat was establisheby an Agreementconcluded at Pohnpei. Micronesla
on 29 July 1991 (inforce23 April1993) :ee Australian Treaty Serie1993 No
16.
5 See South PaclficNuclear Free ZoneTreaty, Raratonga. 6 August 1985.
preambular paragraph 10:"Determined tokeep the regionfreeofenvironmental
pollutionby radioactivewastes and other radioactivematter". For the text of
the Conventionsee (1985 )4 International LegalMaterial1440.
6 These are summarized in ICJ Communiqué 95/22.21 August 1995.
7 (19923 11 International LegalMaterial822.
8 These are summarized in ICJ Communiqué 95122.21 August 1995. aggravate or extend the dispute or prejudice the rights of the other Pw.
A main focus of the provisionai measures sought by New Zeaiand is
therefore to preserve its rights under the Noumea Convention, as weU as
under other international conventions and general international law.
pending the finai decision of the Court.
PART B. Application for Permission to Intemene: Articl e2 of the
Statute
8. Article 69 of the 1972 Rdes. under which this application is made.
' requires the appiication to include "a statement of law and fact justifying
intervention" (cf 1978 Rdes. Article 81 (2)).
9. A State requesting intervention under Article 62 must establish an
"interest ofa legal nature ...it considers may be affected by the decision
in that case" (cf 1978 Rules. Ahcle 81 (2)(a)).
10. Solomon Islands has a legai interest:
(a) in the prevention of any unlawful introduction into the marine
environment of radio-active materiai. whether within the South
Pacific region beyond the lirnits of national jurisdiction. or within
its own maritime areas;
(b) in compliince by States with essential procedural obligations.
whether under applicable treaties or general international law.
intended to assist in the achievement of that objective.
11. At the level of prevention. New Zealand asserts' that it "is uniawfd
for France to conduct such nuclear tests before it has undertaken an
Environment Impact Assessment according to accepted international
standards". Solomon Islands has a legal interest in the apparent failure
by France to carry out an environmentai impact assessment. and in its
failure to comply with other aspects of Article 16 of the Noumea
Convention. The obligation under Article 16 is owed to all other Parties
to the Convention. In particular there isan obligation on the State Party
concemed to cornmunicate its assessments to the South Pacific
Commission so that they may be made avaiiable to interested Parties
(Article 16 (3)). That obligation is not qumed by any phrase such as
"where appropriate". Article 16 is a manifestation of the precautionary
approach and. given the potentiai for damage to the marine environment
beyond the limits of national junsdiction, all States Parties to the
Noumea Convention have a legai interest in compiiance with it.12. ln addition, at the level of responsibiiity. New Zealand has
submitted that "entry into the marine environment of radioactive
material in consequence of the further tests to be carried out atMururoa
or Fangataufa Atolls" would constitute a violation of international law
and of applicable treaties. in this regard Ar-de 4 (6) of the Noumea
Convention restates and affirms the obligation of each State Party to
"ensure that activities within its jurisdiction or control do not cause
darnage to the environment of other States or of areas beyond the limits
of its national jurisdiction".
13. Article 4 (6) embodies an obligation now of long standing in
international law. As a source of obligation it falls clearly within the
scope of paragraph 28 of New Zealand's Application of 9 May 1973.
Paragraph 28 complained inter aüa that the French nuclear testing in the
South Pacific region...
"violates the rights oallmembers of the international community.
including New Zealand, that no nudear tests that give rise to
radioactive fallout be conducted:
violates the rights of alimembers of the international community.
including New Zealand. to the preservation from unjustified
artiFicial radioactive contamination of the terrestrial. maritime and
aerial environment and, in particular. of the environment of the
region in which the tests are conducted ..."g
The obligations correlative to these rights were--pecifically characterised
by NewZealand as obligations erga omnes. 10
14. As the Court noted in the Barceiom Tractioncase. al1States have a
legal interest in the prevention of a violation of an obligation owed erga
omnes. 11That aliStates share this legal interest does not prevent it from
being a genuine legal interest of each of those States. one which they are
entitled to protect before the Court by steps taken in conformi@ with the
Statute.
15. The relevance of intervention in such contexts was noted by the
permanent Court in Railway Traffic between Lithuania and Poland.
There the Court affirmed third party interests in freedom of transit and
communications and cornmented that "nevertheless no third State has
9 See ICJ Pieadings.Nuriear Tests.vol 2. p 8. It may be noted in this
context that the ShorterOxford Engüsh Dictionary(3rd rw edn. 1959) vu12. p
2490 defines "fall-out"as "Radioactive refuse of an atomic bomb explosion".
without any specificationthatthisbe atmospheric.
10 See e.g. NewZealand Memorial, 1CJPleadings.NuciearTests, vol2. p 143
(para 191). See also Dr Finlay. counsel forNZ. inoral argument: ibid at pp
264-266.
11 BarcelonaTractionCase [SecondPhase)ICJ Reports 1970 p 3 at p 32
(paras33-35).considered it necessary or expedient to intervene ..."lz
if absence of
intervention is relevant in the case of rights or obligationsin the generai
interest. so too must be the fact of intervention.
16. South Paciûc Forum States Parttes to the Noumea Convention,
including Solomon Islands. share a legai interest with al1 States in
seeking to ensure cornpliance with obligations owed erga omnes. They
have a further legal interest arlsing from their proldmity to the proposed
test sites and from their legitimate concem for the "speciai hydrological. :
geologicai and ecologicai characteristics of the region which require
special care" (Nournea Convention. preamble).
-ose of intervention
17. The 1972 Rules do not in terms require a State requesting
permission to intervene to specify the purpose of intervention, unüke
Article 81 (2) (b)of the 1978 Rules. Nevertheless the Court isbound to
consider whether the object of the requested intervention "correspondsto
what iscontemplated by the Statute". 13
18. Solornon Islands requests permission to intervene in order to
protect its legal interests under general international law and under
applicable treaties by ali means available in conformity with the Statute
of the Court. Those means include intervention in cases where a legd
interest of the State may be affected by the decision. Solomon Islands
seeks to inform the Court of its interests before any decision that rnight
affect them is made. as weil as to affirm the collective character of the
obligations involved. In the Land. Island and Marüime Frontier Dispute
the Chamber hel'd itto be a proper function of intervention "to inform the
Court of the nature of the legal rights of Nicaragua which are in issue in
the dispute". 14
19.
Most requests for permission to intervene haie been in boundary
delunitation disputes, where the third Party interest is to a greater or
lesser extent opposed to those of the parties to the proceedings. In such
cases the Court has been very reluctant to aliow intervention: the issues
in a boundary dispute have been treated as essentiaiiy bflaterd ones. By
contrast. disputes about obligationsowed erga omnes have ariinherent
unity and are not divisible in ths way. It is significant that Nicaragua
was accorded permission to intervene only where there was a
"community of interests" in the waters of the Gulf of Fonseca. Such
12 PCIJSerA/BNo42(1931)atp108.
13 Land Island and Maritime Rontier Dispute [ELSalvador/HondurasJ
Applicationby Nicaragu far Permissionto interueneICJ Reportç 1990p 92 at p
128 (para85).
14 . Ibidat p 130 (para 90). "cornmuni* of interests" embraced Nicaragua which accordingly had a
legal interestin the resolution of the claim.15
20. Simiiaily Solomon Islands has an interest in the subject matter of
the dispute between New Zealand and France resting upon the
community of interest in the fulfilment of obligations owed erga omnes.
The.legitimacy of action taken to protect that interest isheightened and
reinforced by the cornrnon interest of the South Pacific Forum States in
the environment of the Region - a common interest specifically
recognised in the Nournea Convention.
Jurisdiction
2 1. Solomon Islands is not seeking to introduce a new dispute before
the Court, or to become a party to the proceedings between New Zealand
and France. It is seeking permission to assert its legal interests in"an
existing dispute in accordance with Article 62 of the Statute.
22. The Chamber in the Land. Island and Maritime Boundary Dispute
determined that the distinctive juridical nature and purposes of
intervention mean that such a link isnot required. It said:
"On the contrary. the procedure of intervention isto ensure that a
State withpossibly affected interests may be perrnitted to intervene
even though there is no jurisdictional link and it therefore cannot
become a party."ls
Solomon Islands respectfuiiy adopts this conclusion. Any other
conclusion would render meaningless the procedurai facility of
intervention specifically recognised by Article 62 of the Statute.
23. A State seeking to intervene must demonstrate convincingly what
it asserts. but it need only show that its legai interest "rnayb "e affected.
not that it willor must be afYected.17 Itis respectfuiiy suggested that it is
not for the Court to substitute for the State and to determine - especidy
in advance of pleadings and hearings - that a State's apprehension is not
justified. Under thecircumstances. Solomon Islands has demonstrated
that it has an interest of a legal nature in the prevention of resurnption of
nuclear testing by France in the South Pacific region and in the
degation of failure by France to fulfil its obligations under the Nournea
Convention and other applicable conventions and rules of general
international law. It considers that these legal interests may be affected
not only by a decision of the Court on the merits of New Zealand's
clairns, but dso by a refusai to indicate provisional measures.
15 Ibidatpp121-2.125(paras72.79).
176 Ibid atp 135 [para 100).
Ibid atp 117 (para 611.24. Article 62 does not iimit intervention to any specific phase of the
proceedings.' Consistently with the text of Article 62 and in the light of
its object and purpose, the procedure should be available at whatever
stage a State's legai interest may be affected by the decision. including a
decision to indicate provisionai measures.
25. in the present case. this may well be the only time at which the
request cari have practicai effect. Conduct of the proposed tests will
upset the stahis quo in the region and has the potentiai to cause serious.
possibly irreparable hm to the marine environment. The cultures.
traditions and weil-being of the peoples of the South Pacific States would
be adversely affected by the resumption of French nuclear testing within
the region in a manner incompatible with applicable legai noms. New
Zealand's request for an indication of further provisional measures is
concemed to preserve. pending a decision of the Court:
(a) rights owed erga omnes (and thus to Solomon Islands);
Ib) treaty nghts owed equaily to aliStates Parties under the Noumea
Convention (including Solomon Islands).
Smilarly. it isconcerned to prevent, pending a decision of the Court:
(c) perceived nsk of harm to the environment of the region. an
environment recognized by the Parties to the Noumea Convention
as having special charactenstics and as requiring special
protection.'
26. Having regard to the importance of preuention of hm. it cannot be
said in advance that these legal nghts and interests wiii not be affected
by any decision at the stage of provisional measures. To put the sarne
point positively, these interests of a legal character "maybe affected by
the decision in the case". In the circumstances. and having regard to the
importance of the interests at stake. it isrespectfuily subrnitted that this
is sufficient to entitle Solomon Islands to be permitted to intervene at the
stage of provisional measures.
PART C. Admissibility of Declaration of Intervention:Article 63 of
the Statute
27. A second and distinct basis for intervention is Article 63 of the
Statute. The Noumea Convention isa convention to which States other
than New Zealand and France are Parties. in particular, Solomon
Islands is a Party to the Convention by Mue of its accession of 10August 1989. The Convention. wNch entered into force on 22 August
1990. is the most important legal instrument governing the protection of
the environment of the South Padc reglon, a region which includes
Mururoa and Fangataufa.
28. In Solomon Islands' view. the construction of the Noumea
Convention is in question bath in tems of the indication or otherwise of ,
provisional measures and in terms of the ultimate relief which New
Zealand seeks In relation to the rnerits.
29. The 1986 Nournea Convention is understood to be the principal
treaty instrument reiied upon by New Zealand. Relevant provisions
include Article 2 (0 (Definitions). Articl4 (6) (General Provisions), Article
12 (Testing of Nuclear Devices]. and Article 16 (Environmental Impàct
Assessment). These provisions are, itis respectfully suggested. clearly "in
question". in relation to the merits, they are a principal foundation for
the New Zealand clairns. falling within paragraph 28 of its Application of
1973. ln relation to its further request for provisional measures. the
Court will be required to construe these (and perhaps other) provisions of
the Convention in order to see whether they provide a basis for the
measures sought.
a TheEU obligation: Article 1of theNoumea Convention
Solomon Islands suggests that Article 16 isdirectly applicable to
30.
the proposed French nuclear tests at Mururoa and Fangataufa. In
Solomon Islands' view. Article 16 requires France. before those tests are
carried out:
to have conducted an environmental impact assessment of the
potential effects of the nuclear tests on the marine environment
(including the preparation of an environmentai impact statement):
*
where appropriate. and in accordance with its national procedures.
to have invited public comment on the environmental impact
statement:
where appropriate. to have invited other Parties that may be
affected by the tests (including Solomon Islands) to consult with it
and subrnit cornrnents: and
to have shared the results of the assessment with interested States
Parties through the South Pacific Commission.
31. Specficaüy. the Court will face a range of issues of construction.
including the foliowing: m: the scope ofArticle 16.
In Solomon Islands' view. the proposed test program falls within
the scope of the "major projects which might affect the marine
environment", within the meaning ofArticle 16 (1).lt is therefora
project to which paragraphs (2)and (3) ofArticle16apply.
* Issu the:nature and extent of the obligation irnposed by Artic16
(2).
In Solomon Islands' view. the assessment to which Article 16 (2)
refers must be an environment impact assessment as normally
understood in national and international practice.Since such an
assessment is well within the capabilities oa State Party such as
France. the words "within its capabilities" afford no relevht
limitation to the obligation under Artic16 (2).
*
Issu ee:nature and extent of the obligation imposed by Articl16
(3) to invite public comriient and to consult other Parties.
In Solomon Islands' view, the words "where appropriate" do not
confer on the State Party concerned an unfettered discretion to
deny the opportuni@ to consult and subrnit cornrnents. In
circumstances such as the present. there is no basis for holding
that it would be "appropnate" not to consult with other Parties.
Moreover the procedures under paragraph (3) must be canied out
in time to enable cornrnents to be taken into account before any
finaldecisïon ismade.
Issu he: nature and extent of the obligation imposed on France
by Article 16 (3)to share the results of its environmental impact
assessment with interested States Parties through the South
Pacific Commission.
In Solomon Islands' view. this requires. in the case of the
resurnption of a nuclear test program. that both the assessment
and the communication occur prior to the fial decision to
undertake the program.
*
-Issue: the relationship between Articles 12 and 16 (2)and (3).
ln Solomon Islands' view. the obligations under Articles 16 (2) and
(3) apply to the proposed testing of nuclear devices under Article
12. as to any other major project which rnight affect the marine
environment of the Convention Area. @I The obügation not to cause the introduction into the marine
enuironrnent of radioactive material. Article 416) of the Noumea
Conwntwn
32. In Solomon Islands' view, Article 4 (6) of the Noumea Convention.
construed in accordance with Artfcle 4 @),le imposes upon France an
obligation to ensure that nuclear tests carried out at Mururoa or
Fangataufa do not resdt in the introduction of radioactive material into
the marine environment. Article 4 (6) must be construed "in accordance
..
with international law relating to lits] subject matter" (Article 4 (4)). in
the context of the release of radioactive materiai into the environment.
Article 4 (6) is thus to be construed to prohibit the release of any
appreciable amount of radioactive materiai into the marine environment.
Any other construction would be incompatible with developments in
treaty and generai international law. as reflected inter alia in the 1993
amendment to the 1972 London Dumping Convention. prohibiting 'the
disposal of any radioactive material in the marine environrnent.lg
paragraph 22.5 (c) of Agenda 21 prohibiting storage of radioactive
material near the marine environment.20 and the obligation to apply the
precautionary principle. Sincè Article 4 (6) is fundamental to the second
element of the New Zeaiand Request, its construction is.in Solomon
Islands' respectful view. clearly in issue.
33. At this stage of the proceedings it is not possible to be exhaustive
as to the issues of construction of the Noumea Convention which are in
question. Additional issues may be raised by the Respondent State or by
the Court itself, and Solomon Islands respectfully reserves the nght to
advance additional arguments in that event.
The Existence of a Rieht of Intervention
34. In this context. it is ~irnportant to stress that Article 63 of the
Statute confers on States a nght to intervene in any case to which itis
applicable.21 There is.however. a question relating to the time at which
Article 63 begins to operate. Article 63 appears to make the nght of
States to intervene in respect of a convention the construction of which is
in issue conditional upon the administrative procedure of notification. It
is true that there is an obligation on the Registrar to jssue a notification
"forthwith". and to do so "/w]henever the construction of a convention is
18 Article4 (6)provides.inter alrathat:
"Each Party shailensure that activitieswithinitsjurisdiction or control
do not cause darnage to the environment of other States or of areas
beyond the lirnitofitsnationaijurisdiction."
Article4 (4)providesthat:
'ThiCsonventionand itsProtocolsshall be constmed in accordance with
International lawrelating to their subject rnatter."
19 Resolution LDC.51(16).
201 A/CONF/151/26/Rev. 1 (vol1)(1993).
CfHaya de laTorreCaseICJ Reports 1951p 71.in issue" (emphasis added). On the other hand the Rules expressly
provide that a declaration under Article 63 ...
"may be fiied by a State that considers itself a party to the
convention the construction of which is in question but has not
received the notification referred toinArticle 63 of the Statute."
(1972 Ruies, Article 71 (1);1978 Ruies. Article 82 (31.)
By contrast Article 63 (2) of the Statute is limited to "Every State so
not@ed'' (emphasis added). The relation between these various
provisions does not seem to have been the subject of any ruling by the
Court.
35. Solomon Islands accepts that it is a matter for the Registrar, and
ultirnately for the Court. to interpret these provisions and to decide
whether and to what extent the constmction of the Noumea Convention
is in question. and at what point the nght referred to in Article 63 of the
Statute &ses. Under the unusual circumstances of the present case.
and having regard to the urgency of the matter. it requests the Court to,
consider the present Declaration as notifyng the intention of Solomon
Islands to intervene as of right under Article 63 as soon as the conditions
for its doing so have been fulfilied.
The Issue of a Jurisdictional Link
36. Solomon Islands contends that there is no requirement of a
jurisdictionai link under Article 63 between either of the parties and the
intervenor. This foilows a fortiori from the decision of the Chamber in
relation to Article 62.22 Article 63 is clearly a self-contained regirne of a
special character, which contains its own preconditions and provides for
its own distinctive consequences.23 There is no basis for reading into
Article 63 the general requirements of Article 36 of the Statute so far as
parties to contentious proceedings are concemed.
The Question of a Hearing
37. Article 71 of the 1972 Rules provides that the intervening party
under Article 63 "shall take part" in the oral proceedings. Similar
provision is contained in Article 86 (2) of the 1978 Ruies. ln the Case
concerning Miiitary and Paramiiitay Activities in and against Nicaragua
(Declarationof interuentiorù. the Court decided by majority not to accord
a hearing to El Salvador. which had made a declaration of intervention
22 Land Island and Rontier Dispute Case. Application of Nicaragua to
InterueneICJ Reports 1990 p 92.
23 A party exercisinga right ofintervention under Artic63 isbound by the
constructiongivento the convention inquestion.under Article 63.24 That decision may be explained by the fact that El
Salvador's Declaration was considered to relate to the phase of the
merlts, as distinct from jurisdiction or admissibility (and indeed the
Court indicated that El Salvador might wish to intervene at the merits
phase). It is suggested that the decision is not authority in relation to
any declaration of intervention that relates to the current phase of
proceedings.
38. To summarize. the issues of construction referred to in the
preceding paragraphs are "in question" in the provisionai measures
phase because the Court will or may have to consider them in assessirtg
whether a sufficient case has been made out by New Zeaiand that it has
rights which should be protected by an indication under Article 41 of the
Statute, pending a final decision of the Court. A fortiori. it is the cke
that those issues of construction are in question inrelation to the phase
of the merits.
39. In this regard. Article 63 should not be read as limited to issues of
construction that the Court necessarily hns to decide. In any case before
the Court. a range of issues wiiiarise. The Court retains freedom to
choose those matters it will actually deal with. The right of intervention
under Article 63 arises prior to the decision of the Court. as soon as it
appears that the construction of a convention is "in question". In that
context. an issue of construction is "in question" for the purposes of
Article 63 ifthat issue isactualiy raised by the parües to the proceeding.
or either of them. and ifit forms a possible basis for the decision, or a
possible link in the chain of reasoning leading to the decision.
40. In the present case. the issues of construction identified above are
"in question" since they relate directly to the question whether a legal
basis for the asserted nghts of New Zealand exists or does not exist. The
possibility that the Court may be able to decide on NewZealand's request
without resolving those issues does not mean that they are not "in
question". This is so both as to the phase of provisional measures and
as to the phase of the merits. In relation to the phase of provisional
measures. it is true that the Court wili avoid final decisions as to the
existence or non-existence of a right claimed by a Party. But the Court
could only decide to exercise its powers under Article 41 of the Statute if
it first came to the conclusion that the right claimed by the Requesting
State appeared to exist and required protection in the circumstances. A
judicial body cannot approach a phase of a case with the predetennined
view that particular arguments relied on by the parües are irrelevant or
wiii not arise. Thus even at the provisionai measures phase, the Court
may weU have to form a provisionai view as to the dstence and
24 ICJ Reports 1984 p 392significance of a treaty right reiied on by the Appiicant. and for that
purpose it will necessaxiiy have to construe the Noumea Convention.
PART D. Conclusion
41. For the reasons given here (which Solomon Islands resethes
right to supplemenat a hearing before the Courtl. Solomon Islands
respectfully asks:
(a) under Article 62 of the Statute. both as to provisional measures
and at the eventuai phase of the merits:
(b) that. to the extent that the Court concludes that the construction
of the Noumea Conventiois iquestion. the Court should decliire
that Solomon Islanisentitled to intervene under Article 63 of the
Statute as to those questionsof construction.both as to
provisionai measures and at the eventuai phase of the merits.
n
a
(SiqnedTuiloma Nconi Slade
~&nt for the Governrnent of Solomon lslands
24 August 1995
Application for Permission to Intervene under Article 62 of the Statute - Declaration of Intervention under Article 63 of the Statute submitted by the Government of the Solomon Islands