INTERNATIONALCOURTOFJUSTICE
NUCLEARTESTS
(NEWZEALANDv. FRANCE)
APPLICATIONFORPERMISSIONTO INTERVENEUNDERARTICLE62
DECLARATIONOFINTERVENTIONUNDERARTICLE63
SUBMliTED BY
THE GOVERNMENTOF THE MARSHALLISLANDS
24 AUGUST 1995 NUCLEARTESTS CASE (NEWZEALAND v. FRANCE)
APPLICATIONTO BE PERMITTEDTO INTERVENE UNDER
ARTICLE 62
DECLARATIONOF INTERVENTIONUNDERARTICLE 63
MADE BY THE GOVERNMENTOF THE MARSHALLISLANDS
1 have the honour. as the Agent for 'the Governrnent of the Marshall
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. The Marshall Islands seeks to intervene in the case on two
separate grounds.
(1) The Marshall Islands applies for permission to intervene under
Article 62 of the Statute. This application relates both to the phase
of provisionai measures. and to the phase of the ments. The
Marshall Islands considers that it has an interest of a legai nature
which may be affected by the decision of the Court at each of these
phases of the case.
(2) The Marshall Islands understands that the New Zealand Request
invokes certain articles of the Convention for the Protection of the
Naturai Resources and Environment of the South Pacifie Region.
signed at Noumea on 24 November 1986.1 and that the
construction of the Convention is inquestion within the rneaning
of Article 63 of the Statute. In such a case a State notified of this
fact by the Registrar has a nght of intervention under Article 63.2
- -
1 (1987) 26 International Legal Materials38: Australian Treaty Series
1990. No 31 (hereafterreferred to as the NoumeaConvention).
2 Itshould be noted inthis context that Article 71 (1)of t1972 Rules
(corresponding to Article 8(3)of the 1978 Rules) providesthat a declaration
"rnay be 5led by a State that considers itself a party to the conventton the Under the unusuai circumstances of the present case. and having
regard to the urgency of the matter. the Marshall Islands hereby
declares its intention to intervene as of right under Article 63. both
in relation to the phase of provisionai measures. and the eventuai
phase of the merits.
2. These requests for intervention are cumulative and alternative.3
They ire examined separately below.
A~plicable Rules
3. The Marshall Islands understands that the Rules of Court
applicable to the present Request and Declaration are the 1972 Rules-
The 1978 Rules are speciiïcally stated not to apply "inrespect of any case
subrnitted to the Court before 1 July 1978. or anyphase ojsurh a case"
(1978 Rules. Preamble. emphasis added). To such a case or phase.
therefore. the 1972 Rules continue to apply. To assist the Court, this
Request and Declaration will as far as possible provide the information
called for by the 1978 Rules, as weil 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 outüned in the Court's
decisions of 1973 and 1974. Subsequent developments wiil have been
referred to in New Zeaiand's Request of 21 August 1995. At this stage,
the Marshall Islands would only make the foliowing additional
observation. In fact. and as clearly reflected in New Zealand's initial
Application. the dispute between New Zeaiand and France as to nuclear
testing in the Paciilc raises issues which are 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 whch New Zeaiand relies
are either generai international law noms having an erga omnes
character. and relating to legaiiy protected interests comrnon to New
Zealand and other States in the region which may be aîTected by the
tests. or.in the case of the Noumea Convention. derive from a regionai
convention recogmsing and protecting a cornmon. collective. interest.
5. The ~rearnbie to the Noumea Convention refers to "the speciai
hydroiogic&. geologicai and ecological characteristics of the region khich
require speciai care and responsible management", to "the unique
construction of which is in question but has not received the notification
referredtoin Articl63 ofthe Statute".
3 Nothingin the Statute precludes a State from relyingboth on Article 62
and 63 in relation to the same casCf The Wimbledo PnCIJSer A No 1(1923).environmental quaiity of the region" and its "speciai requirements". In
addition. the independent island States which are members of the South
Paciûc Forum4 have consistently opposed activiw related to nuclear
weapons and. nuclear waste disposai in their Region. for exarnple by
seeking to establish and guarantee the status of the Region as a nuclear
free zone.5
The New Zealand Reouests
6. The New Zeaiand Request for an Examination of the Situation has
two separate element~:~
(1) The first element of the New Zealand Request asks the Court t'
adjudge .and declare that it would be unlawful for France to
conduct nuclear tests at Mururoa or Fangataufa Atolls without
firstcanying out an environmental impact assessment of the effect
of such tests in accordance with accepted internationai standards.
which assessment must estabiish that the tests will not give rise to
radioactive contamination of the marine environment. This is a
matter which is covered by Article16 of the Noumea Convention.
(2) The second element of the New Zealand Request asks the Court to
adjudge and declare that the conduct of the proposed nuclear tests
willviolate New Zealand's rights under international law. as well as
those of other States. This isa matter which is covered by Article
4 (6) of the Noumea Convention. which itself reflects the position
under general international law and which is embodied in other
applicable international conventions (e.g. Article 3 of the
BiodiversityConvention of 199Z7).
7. New Zealand has also requested the Court to indicate further
provisional measures.8 ln essence. these are that France refrain from
conducting any further nuclear tests at Mururoa and Fangataufa without
fust canying out an environmentai impact assessment in accordance
with accepted international standards. such assessment establishing
that the tests will not give rise to radioactive contamination of the marine
environment. New Zealand also asks the Court to indicate that France
and New Zeaiand should ensure that no action is taken which might
4 The South PacificForum was founded in1971. A South PacificForum
Secretariat wasestablishedby an Agreementconcluded at Pohnpei. Micronesia
on 29July 1991 (in force23 April 1993) :ee Australian Treaty Serie1993 No
16.
5 See South PacificNuclear Free ZoneTreaty. Raratonga. 6 August 1985.
preambular paragraph 10: "Determinedto keep the regionfreeofenvironmental
pollutionby radioactive wastes and other radioactive matter". For the text of
the Conventlon see(19852 )4International LegalMaterials1440.
6 These are summarized in ICJ Communique 95/22.21 August 1995.
7 (19923 )1 International LegalMateria822.
8 These are summarized in ICJ Communique 95/22.2 1August 1995.aggravate or extend the dispute or prejudice the rights of the other Pw.
A main focus of the provisional measures sought by New Zealand is
therefore to preserve its rights under the Noumea Convention. as well as
under other intemationai conventions and general international law.
pending the final decision of the Court.
PART'B. Application for Permission to Intemene: Article 62 of the
Statute
8. Article 69 of the 1972 Rules. under which this application is made.
requires the application to include "astatement of law and fact justifymg
intervention" (cf 1978 Rules. Article 81 (2)).
Interest of a lenal nature
9. A State requesting intemention under Article 62 must establish an
"interest of a legai nature ...it considers may be affected by the decision
in that case" (cf 1978 Rules. Article 81 (2)(a)).
10. The Marshaü Islands has a legal interest:
(a) in the prevention of any unlawful introduction into the marine
environment of radio-active material. whether within the South
Pacific region beyond the limits of national jurisdiction. or within
its own maritime areas:
(b) in cornpliance by States with essential procedurai 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 unlawful
for France to conduct such nuclear tests before ithas undertaken an
Environment Impact Assessment according to accepted international
standards". The Marshall Islands has a legai interest in the apparent
failure by France to carry out an environmental 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 aü 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 available to interested Parties
(Article 16 (3)). That obligation is not qualified by any phrase such as
"where appropriate". Article 16 is a manifestation of the precautionary
approach and, given the potential for damage to the marine environment
beyond the limts of national jurisdiction, ali States Parties to the
Noumea Convention have a legal interest in compiiancewith it. 12. in addition. at the level of responsibiiity. New Zealand has
submitted that "entry into the mane environment of radioactive
material inconsequence of the further tests to be canied out at Mururoa
or Farigataufa Atolls" would constitute a violation of international law
and of applicable treaties. In this regard Article 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
damage to the environment of other States or of areas beyond the limits
of its national junsdiction".
13. Article 4 (6) embodies an obligation now of long standing in
international law. As a source of obligation it faiis clearly within the
scope of paragraph 28 of New Zealand's Application of 9 May 1973:.
Paragraph 28 complained inter alia that the French nuclear testing in the
South Pacific region...
"violates the nghts ofalimembers of the international community.
including New Zealand, that no nuclear tests that give rise to
radioactive faiiout'be conducted:
violates the nghts of all members of the international cornmunity.
including New Zealand. to the preservation from unjustified
dicial radioactive contamination of the terrestrial. maritime and
aerial environment and. in parîicular. of the environment of the
region in which the tests are conducted ..."9
The obligations correlative to these rights were specifically characterised
by New Zealand as obligations ergaomnes. 10
14. As the Court noted in the Barcelona Traction case. aii States have a
legal interest in the prevention of a violation of an obligation owed erga
omnes.11 That al States 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 conformity with the
Statute.
15. The relevance of intervention in such contexts was noted by the
Permanent Court in Railway Tram 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 Pleadings.Nuclear Tests. vol2. p 8. Itmay be noted in this
2490exdefines "fall-out"as "Radioactiverefuse of an atomic bomb explosion".
without any specificauonthat thisbe atmospheric.
10 See e.g.NewZealandMemorial. ICJPieadLys. Nuclear Tests.vol 2.p 143
(para 191). See also DrFinlay. counsel for NZ. inoral argument: ibid at pp
--4-266
11 Barcelona Traction Case fSecond Phase) ICJ Reports 1970 p 3 at p 32
(paras 33-35).considered it necessaxy or expedient to intervene ..."lz if absence of
intervention is relevant in the case of rights or obligations in the general
interest. so too must be the fact of intervention.
16. South Pacific Forum States Parties to the Noumea Convention.
including the Marshall Islands. share a legal interest with aii States in
seeking to ensure compliance with obligations owed erga ornnes. They
have a further legal interest arising kom their promw to the proposed
test sites and kom their legitimate concem for the "special hydrologicai.
geological and ecological characteristics of the region which require
special care" (NoumeaConvention. preamble).
Purnose of intervention
17. The 1972 Rules do not in terms require a State requesting
permission to intervene to specify the purpose of intervention. urne
Article 81 (2) (b)of the 1978 Rules. Nevertheless the Court is bound to
consider whether the object of the requested intervention "corresponds to
what iscontemplated by the Statute". 13
18. The Marshail 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 legal
interest of the State may be affected by the decision. The Marshall
Islands seeks to inform the Court of its interests before any decision that
might affect them ismade, as well as to afiirm the collective character of
the obligations invoived. In the Land. Island and Mantirne Rontier
Dispute the Chamber held it to 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".l4
19. Most requests for permission to intervene have been in boundaxy
delimitation disputes. where the third party interest isto a greater or
lesserextent opposed to those of the parties to the proceedings. Insuch
cases the Court has been very reluctant to allow intervention: the issues
in a boundary dispute have been treated as essentialiy bilateral ones. By
contrast, disputes about obligations owed erga ornnes have an inherent
unity and are not divisible in this way. Itis significant that Nicaragua
was accorded permission to intervene only where there was a
"comrnunity of interests" in the waters of the Gulf of Fonseca. Such
12 PCIJ Ser A/B No42 (1931) at p 108.
13 Land Island and Maritim eontier Dispute (El Saluador/Honduras)
Application byNicaraguafor Permissionto Interuene.ICJReports 1990 p 92 at p
148 (para851.
Ibidat p 130(para 901. "community of interests" embraced Nicaragua which accordingly had a
legai interestin the resolution of the clalm. 15
20. Simiiarly the Marshail Islands has an interest in the subject matter
of the dispute between New Zealand and France resting upon the
community of interest in the fuifilment of obligations owed erga omnes.
The legitimacy of action taken to protect that interest is heightened and
reinforced by the cornmon interest of the South Pacific Forum States in
the environment of the Region - a cornmon interest specifically
recognised inthe Noumea Convention.
Jurisdiction
21. The Marshaii 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 itslegai interesb
in an existing dispute in accordance with Article 62 of the Statute.
22. The Charnber in the Land. Island anci MaritimeBounday Dispute
determined that the distinctive jundicai nature and purposes of
intervention mean that such a link isnot required. It said:
"On the contrary. the procedure of intervention is to ensure that a
State with possibly aITectedinterests may be permitted to intervene
even though there is no jurisdictionai link and it therefore cannot
become a party."'6
The Marshaii Islands respectfuliy adopts this conclusion. Any other
conclusion would render rneaningless the procedurai facility of
intervention specificallyrecognised 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 "rnay" be affected.
not that it wili or must be affected.17 Itis respectfuliy suggested that it is
not for the Court to substitute for the State and to determine - especiaiiy
in advance of pleadings and hearings -that a State's apprehension is not
justified. Under the circurnstances. the Marshaii Islands has
demonstrated that ithas an interest of a legai nature in the prevention of
resumption of nuclear testing by France in the South Pacific region and
in the allegation of failure by France to fulfii its obilgations under the
Noumea Convention and other applicable conventions and rules of
generd internationai law. It considers that these legal interests rnay be
affected not only by a decision of the Court on the merits of New
Zeaiand's clairns. but dso by a refusai to indicate provisionai measures.
15 Ibidat pp 121-2. 125 (paras 72,791.
16 Ibid atp 135 (para 100).
17 Ibidat p 117 (para61).Pro~rietx of intervention at the ~rovisional measures . hase
24. Article 62 does not limit 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 avallable at whatever
stage a State's legal 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 can have practical effect. Conduct of the proposed tests will
upset the status quo in the region and has the potentiai to cause serious.
possibiy irreparable hm to the marine environment. The cultures.
traditions and well-being of the peoples of the South Paciflc States would.
be adversely affected by the resumption of French nuclear testing within
the region in a manner incompatible with applicable legai norrns.
New
Zeaiand's request for an indication of further provisionai measures is
concemed to preserve. pending a decision of the Court:
(a) rights owed erga omnes (and thus to the Marshail Islandsl:
(b) treaty rights owed equaily to al1 States Parties under the Noumea
Convention (including the Marshall Islands).
Similarly. it is concerned to prevent. pending a decision of the Court:
(CI perceived risk of hm to the environment of the region. an
environment recognized by the Parties to the Noumea Convention
as having special characteristics and as requinng special
protection.
26. Having regard to the importance of preuention of hm. itcannot be
said in advance that these legai rights and interests wdi not be affected
by any decision at the stage of provisional measures. 'To put the same
point positively. these interests of a legal character "may be affected by
the decision inthe case". In the circurnstances. and having regard to the
importance of the interests at stake. it is respectfully submitted that this
is sufficient to entitle the Marshail Islands to be permitted to intervene at
the stage of provisionai measures.
PART C. Adrnissibility of Declaration of Intemention: ArticIe 63 of
the Statute
27. A second and distinct basis for intervention is Article 63 of the
Statute. The Noumea Convention is a convention to which States other
than New Zeaiand and France are Parties. In particular. the Marshaii
Islands is a Party to the Convention byvirtue of its ratification of 4 May 1987. The Convention. which entered into force on 22 August 1990. is
the most important legal instrument goveming the protection of the
environment of the South Pacific region. a region which includes
Mururoa and Fangataufa.
28. in the Marshall Islands' view. the construction of the Noumea
Convention is in question both in terms of the indication or otherwise of
provisional measures and in terms of the ultfrnate relief which New
Zealand seeks In relation to the merits.
29. The 1986 Noumea Convention is understood to be the principal
treaty instrument relied upon by New Zealand. Relevant provisions
include Article 2 (O (Dehitions). Article 4 (6) (General Provisionsl. Article
12 (Testing of Nuclear Devices), and Article 16 (Environmental Impact
Assessment). These provisions are. it is respectfuiiy suggested, clearly "in
question". in relation to the merits. they are a principal foundation for
the New Zealand claims. falling within paragraph 28 of its Application of
1973. In 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.
(al The EL4 obligatiow Article 16of the Noumea Convention
30. The Marshall Islands suggests that Article 16 is directly applicable
to the proposed French nuclear tests at Mururoa and Fangataufa. In the
Marshail Islands' view.Article 16 requires France. before those tests are
canied out:
* to have conducted an environmental impact assessment of the
potential effects of the nuclear tests on the marine environment
(includingthe preparation of an environmental impact statement);
where appropriate, and in accordance with its national procedures.
to have invited public comment on the environmental impact
statement;
s where appropnate. to have invited other Parties that may be
aîTected by the tests (including the Marshall Islands) to consult
with it and submit comrnents; and
* to have shared the results of the assessment with interested States
Parties through the South Pacific Commission.
31. Specifically. the Court will face a range of issues of construction.
including the foliowing: page10
w: the scope ofArticle 16.
In the Marshall Islands' view. the proposed test program faüs
within the scope of the "major projects which might affect the
marine environment", within the meaning of Article 16(1). It 1s
therefore a project to which paragraphs(2) and (3)of Article 16
~PP~Y.
Issu he:nature and extent of the obligation imposed by Arti16e
(2).
ln the Marshail Islands' view. the assessmento which Article 16
(2)refers must bean environment impact assessment as normally
understood in nationaland international practice.Since such an
assessment iswell within the capabiiities afState Party suchas
France. the words "within its capabilities" afford no relevant
limitation to the obligation under Art16l(2).
* Issu he:nature and extent of the obligation imposed by Arti16e
(3)to invite public comment and to consult other Parties.
In the Marshail Islands' view. the words "where appropriate" do not
confer on the State Party concerned an unfettered discretion to
deny the opportunity to consult and submit comments. ln
circumstances such as the present. thereis no basis for holding
that it would be "appropriate" not to consulwith other Parties.
Moreover the procedures under paragraph (3)must be carried out
intime to enable comments to be taken into account before any
final decisioismade.
*
Issu eh: 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.
ln the Marshall Islands' view.ths requires, in the case of the
resumption of a nuclear test program, that both the assessment
and the communication occur prior to the final decision to
undertake the program.
Issu th: relationship between Articl12 and 16 (2)and (3).
In the Marshail Islands' view. the obligations under Artlcles 16 (2)
and (3) apply to the proposed testing of nuclear devices under
Article 12, as to any other major project which might affect the
marine environment of the ConventionArea. page Il
(bl The obligation not to cause the introdtcction into the mnrine
environment of radioactive mnteriaL Article 4(6) of the Noumea
Corwention
32. In the Marshall Islands' view. Article 4 (6) of the Noumea
Convention. construed in accordance with Article 4 (4),18imposes upon
France an obligation to ensure that nuclear tests carried out at Mururoa
or Fangataufa do not result in the introduction of radioactive materiai
into the marine environment. Article 4 (6) must be constmed "in
accordance with international law relating to[its] subject matter" (Article
4 (4)). In the context of the release of radioactive material into the
environment, Article 4 (6) is thus to be constmed to prohibit the release
of any appreciable arnount of radioactive materiai into the marine
environment. Any other construction would be incompatible with
developments in treaty and general international law. as reflected inter
alia in the 1993 amendment to the 1972 London Dumping Convention.
prohibiting the disposai of any radioactive material in the marine
environment.19 paragraph 22.5 (c) of Agenda 21 prohibiting storage of '
radioactive materiai near the marine environment.20 and the obligation to
apply the precautionary principle. Since Article 4 (6) is fundamental to
the second element of the New Zealand Request. its construction is. in
the Marshall 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 the Marshall Islands respectfully reserves the right
to advance additional arguments in that event.
The Existence of a Rirrhtof Intervention
In this context, it is important to stress that Article 63 of the
34.
Statute confers on States a right to intervene in any case to which it is
applicable.21 There is.however. a question relating to the tirne at which
Article 63 begins to operate. Article 63 appears to make the righî of
States to intervene in respect of a convention the construction of which is
in issue conditional upon the administrative procedure of noMication. It
is true that there isan obligation on the Registrar to issue a notification
"forthwith, and to do so "[w]heneverthe construction of a convention is
18 Article4 (61prwides. interaiia.that:
"Each Party shall ensure that activities withiitsjurisdiction or control
do not cause darnage to the environment of other States or of areas
Article4e(4)providesthat:fitsnationaljurisdiction."
'ThisConventionand itsProtocolsshall be construed in accordance with
international lawrelating to their subject rnatter."
19 Resolution LDC.51 (16).
20 A/CONF/151/26/Rw. 1 (volIl(19931.
2 1 Cf Haga de La TorreCase ICJReports 195 1p 71.in issue" (emphasis added). On the other hand the Rules expressly
provide that adeclaration under Article 63.. .
"may be Filed by a State that considers itself a party to the
convention the construction of which isin question but has not
received the notification referred toin Article 63 of the Statute."
(1972 Rules, Article 71 (1);1978 Rules. Article 82 (31.1
By contrast Article 63 (2) of the Statute is lirnited to "Every State so
nohfkd (emphasis added). The relation between these various
provisions does not seem to have been the subject of any mling by the
Court.
35. The Marshail Islands accepts that it is a matter for the Registrq.
and ultimately for the Court. to interpret these provisions and to decide
whether and to what extent the construction of the Noumea Convention
is in question. and at what point the right referred to in Article 63 of the
Statute arises. 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 noîdying the intention of the
Marshall Islands to intervene as of right under Article 63 as soon as the
conditions for its doing so have been fulfilled.
The Issue of a Jurisdictional Link
The Marshall Islands contends that there is no requirement of a
36.
jurisdictionai link under Article 63 between either of the parties and the
intervenor. This follows a fortiori from the decision of the Charnber in
relation to Article 62.22 Article 63 is clearly a self-contained regime of a
speciai character. whichcontains 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 concerned.
The Question of a HearinP
37. Article 71 of the 1972 Rules provides that the intervening party
under Article 63 "shail take part" in the oral proceedings. Similar
provision is contained in Article 86 (2) of the 1978 Rules. In the Case
conceming Miiitay and Paramiiitary Activiti insand against Nicaragua
(Declaration ofintenrentionl. the Court decided by majoriv not to accord
a hearing to El Salvador. whch had made a declaration of intervention
22 Land Islnnd and Rontier Dispute Case. Appücation oJ Nicaragua to
InrenieneICJReports 1990 p 92.
23 A party exercisinga rightofintervention under Article63 isbound by the
construction givento the convention in question. page 13
under Article 63.z4 That decision may be explained by the fact that El
Salvador's Declaration was considered to relate to the phase of the
merits. as distinct from jurisdiction or adrnissibility (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 provisional measures
phase because the Court will or may have to consider them in assessing
whether a sufficient case has been made out by New Zealand 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 isthe caie
that those issues of construction are in question in relation to the phase
of the merits.
39. In this regard, Article 63 should not be read as lirnited to issues of
construction that the Court necessarily hasto decide. ln any case before
the Court, a range of issues wiil arise. The Court retains freedom to
choose those matters it will actually deal with. The right of intervention
under Article 63 arises pmr 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 if that issueis actualiy raised by the parties to the proceeding.
or either of them. and if it forms a possible basis for the decision, or a
possible link inthe ch- 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 eMsts 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 will avoid hal decisions as to the
existence or non-existence of a right claimed by a party. But the Court
could oniy decide to exercise itspowers under Article 41 of the Statute if
it fist came to the conclusion that the nght clairned 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 predetermined
view that particular arguments relied on by the parties are irrelevant or
wiii not anse. Thus even at the provisional measures phase. the Court
may weli have to form a provisional view as to the existence and
24 ICJ Reports 1984p 392.significance of a treaty rlght relied on by the Applicant. and for that
purpose itwill necessarily have to construe the Noumea Convention.
PART D. Conclusion
41. For the reasons given here (which the Marshall Islands reserves
the right to supplement at a hearing before the Court). the Marshall
Islands respectfully asks:
(a) that the Court give it permission to intervene in the proceedings
under Article 62 of the Statute, both as to provisionai measures
and at the eventual phase of the merits:
01) that. to the extent that the Court concludes that the constmction
of the Noumea Convention is in question, the Court should declaie
that the Marshail Islands is entitled to intervene under Article 63
of the Statute as to those questions of construction. both as to
provisional measures and at the eventuai phase of the ments.
Agent for the Government of the Marshall Islands
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 Marshall Islands