INTERNATIONALCOURTOFJUSTICE
NUCLEARTESTS
(NEWZEALAND v.FRANCE)
APPLICATIONFORPERMISSIONTO INTERVENEUNDERARTICLE62
DECLARATIONOF INTERVENTIONUNDERARTICLE 63
SUBMlTiED BY
THE GOVERNMENTOFTHE FEDERATEDSTATES OFMlCRONESlA
24 AUGUST1995 NUCLEARTESTS CASE (NEW ZEALAND v. FRANCE)
APPLICATIONTO BE PERMITTED TO INTERVENEUNDER
ARTICLE 62
DECLARATIONOF INTERVENTIONUNDER ARTICLE 63
MADEBYTHEGOVERNMENTOFTHEFEDERATEDSTATESOF~ l
MICRONESIA
1 have the honour. as the Agent for the Government of the Federated
States of Micronesia. 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 Federated States of Micronesia seeks to intervene in the case
on two separate grounds.
(1) The Federated States of Micronesia 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. The Federated States of Micronesia considers that ilhas
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) The Federated States of Micronesia understands that the New
Zealand Request invokes certain articles of the Convention for the
Protection of theNaturai Resources and Environment of the South
Pacific Region. signed at Noumea on 24 November 1986.' and that
the construction of the Convention is in question within the
rneaning of Amcle 63 of the Statute. ln such a case a State
notitied of this fact by the Regfstrar has a right of intervention
under Article 63.2 Under the unusual circumstances of the
1 (1987) 26 Internalional Legal Material38: Auslralian Treaty Series
1990. No 31 bereafter referredto as the NoumeaConvenuon).
2 It should be noted in thls context that ArU71 (1) of the1972 Rules
(correspondlng to Artic82 (3) of the1978 Rules) provides that a declarauon present case, and having regard to the urgency of the matter. the
Federated States of Micronesia hereby declares its intention to
intervene as of right under Article 63. both in relation to the phase
of provisional measures. and the eventuai phase of the merits.
2. These requests for intervention are cumulative and aitemative.3
They are examined separately below.
ADDiicabieRules
3. The Federated States of Micronesia understands that the Rules of
Court applicable to the present Request and Declaration are the 1972
Rules. The 1978 Rules are specifically stated not to apply "in respect of
any case submitted to the Court before 1 July 1978. or anyphase of such
a case" (1978 Rules. Preamble, emphasis added). To such a case or
phase, therefore, the 1972 Rules continue to apply. To assist the Coufi.
this Request and Declaration will as far as possible provide the
information cailed for by the 1978 Rules, as well as that required by the
1972 Rules. This isdone. however. without prejudice to the contention
that the permissibillty or admissibility of this Request and Declaration
are govemed. subject to the Statute itself. by the 1972 Rules.
The Facts
4. The facts underlying the dispute are outiined 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.
the Federated States of Micronesia would only make the following
additional observation. In fact, and as clearly reflected in New Zealand's
initiai Application. the dispute between New Zealand and France as to
nuclear testing in the Pacific raises issues which are more than bilateral
in character. Nuclear testing has the potential senously to impact on the
environment of the reeion. and that cannot be reduced to the terms of a
bilateral relationship."~oreover the norms on which New Zealand relies
are either general intemationai law norms having an erga oms
character. and relating to legally protected interests common to New
Zeaiand and other States in the region which may be aEected by the
tests. or. in the case of the Noumea Convention. denve from a regional
convention recognising and protecting a common, collective. interest.
5. The preamble to the Noumea Convention refers to "the special
hydrologicai. geological and ecological characteristics othe region which
require speciai care and responsible management". to "the unique
"may be filed by a State that considers itself party to the convention the
construction of which is in question but has not received the notincation
referredtoin Articl63 ofthe Statute".
3 Nothing in the Stztute precludes a State from relyingboth on Artic62
and 63 inrelation to the same caseCfThe Wimbledon PCIJ Ser A No 1 (1923). enwonmental quality of the region" and its "special requirements". In
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.=
The New Zealand Reauests
6. The New Zealand Request for an Examination of the Situation has
two separate elements?
(1) The first element of the New Zealand Request asks the Court to
adjudge and declare that it would be unlawful for France to
conduct nuclear tests at Mururoa or Fangataufa Atolls without
firstcarrying out an environmental impact assessment of the effect
of such tests in accordance with accepted international standards,'
which assessment must establish that the tests will not give nse to
radioactive contamination of the marine environment. This is a
matter which is covered by Article 16 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
wiUviolate New Zealand's rights under international law. as weU as
those of other States. This is a matter which iscovered by Article
4 (6) of the Noumea Convention. which itself reflects the position
under general international law and which isembodied in other
applicable international conventions (e.g. Article 3 of the
Biodiversity Convention of 19927).
7. New Zealand has also requested the Court to indicate further
provisional measures.Un essence. these are that France refrain from
conducting any further nuclear tests at Mururoa and Fangataufa without
first carymg out an environmental impact assessment in accordance
with accepted international standards. such assessment establishing
that the tests will not give nse 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 istaken which rnight
4 The South Pacific Fomm was founded in 1971. A South Pacific Forum
Secretariat was established by an Agreement concluded at Pohnpei. Micronesia
1fi29 July 1991 (in force 23 Apd 1993): see Australian Treaty Series 1993 No
5 See South PacifieNuclear Free Zone Treafy. Raratonga. 6 August 1985.
prearnbular paragaph 10:"Determined to keep.the reglon kee ofenvironmental
pollution by radioactivewastes and other radioactive matter". For the text of
the Convention see (1985)24 international LegalMaterials 1440.
6 These are surnrnarized in ICJ Communique 95/22.21 August 1995.
7 (1992)31 International LegalMaterials 822.
8 These are summarized in 1CJCommunique 95/22.21 August 1995.aggravate or extend the dispute or prejudice the rights of the other Party.
A main focus of the provisional measures sought by New Zealand is
therefore to preserve its rights under the Noumea Convention. as weii as
under other international 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 ismade.
requires the application to include "a statement of law and fact justifying
intervention" (cf 1978 Rules. Article 81 (2)).
Interest of a leeal nature
9. A State requesting intervention under Article 62 must establish an
"interest of a legal nature ...it considers may be affected by the decision
in that case" (cf 1978 Rules. Article 81 (2)(a)).
10. The Federated States of Micronesia 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 lirnits of national jurisdiction. or within
itsown maritime areas:
(b) in compliance by States with essential procedural obligations.
whether under applicable treaties or general international law.
intended to assist inthe achievement of that objective.
11. At the level of prevention. New Zealand asserts that it "isunlawful
for France to conduct such nuclear tests before it has undertaken an
Environment Impact Assessrnent according to accepted international
standards". The Federated States of Micronesia has a legal 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 aii
other Parties to the Convention. In particular there is an obligation on
the State Party concerned 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 quailt3ed by any phrase
such as "where appropriate". Article 16 is a manifestation of the
precautionq approach and. given the potenual for damage to the
marine environment beyond the lirnits of national jurisdiction. aiiStates
Partles to the Noumea Convention have a legal interest in compliance
with it. 12. In addition. at the level of responsibility. New Zeaiand has
subrnitted that "entry into the marine environment of radioactive
materiai in consequence of the further tests to be carried out at Mururoa
or Fangataufa Atolls" would constitute a violation of international law
and of applicable treaties. In this regard Article 4 (6) of the Nournea
Convention restates and affis 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) ernbodies an obligation now of long standing in
international law. As a source of obligation it fails clearly within the
scope of paragraph 28 of New Zeaiand's Application of 9 May 1973.
Paragraph 28 cornplained interalia that the French nuclear testing in the
South Pacific region...
"violates the nghts of ail mernbers of the international community.
including New Zealand. that no nuclear tests that give rise to
radioactive fallout be conducted:
violates the rights of al1rnembers of the international cornmuniW.
including New Zealand. to the preservation from unjustified
artificial radioactive contamination of the terrestriai. maritime and
aeriai environment and, in particular. of the environment of the
region in which the tests are conducted ..."9
The obligations correlative to these nghts were specifically characterised
by New Zeaiand as obligations erga ornnes. 10
14. As the Court noted in the Barcelona Traction case. allStates have a
legal interest in the prevention of a violation of an obligation owed erga
omnes. 11 That al1States share this legal interest does not prevent it from
being a genuine legai interest of each of those States. one which they are
entitied 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
9 See ICJ Pleadings. Nuclear Tests.vol 2.p 8. Itmay be noted in this
context that the ShorterOxford Englrsh Dictionary(3rd rev edn. 19591 vol 2.p
2490 defines "fall-out"as "Radioactiverefuse of an atomic bomb explosion".
without any specificationthat this be atmospheric.
10 See e.g. NewZealand Mernorial.ICJPleadings. Nurkar Tests.vol 2.p 143
(para 1911. See also Dr Finlay. counsel forNZ. inoral argument: ibid at pp
264-266.
11 Barcelona Rmtion Case (Second Phasel ICJ Reports 1970p 3 at p 32
(paras 33-35).communications and comrnented that "nevertheless no third State has
considered it necessary or expedient to intervene ..."12 If absence of
intervention is relevant inthe 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 Federated States of Micronesia. share a legal interest with
aü States in seektng to ensure compliance with obligations owed erga
omnes~ They have a further legai interest arising from their proximity to :
the proposed test sites and from their legitirnate concem for the "speciai
hydrologicai. geological and ecologicai characteristics of the region which
require special care" (Noumea Convention. prearnble).
Purnose of intervention
17. The 1972 Rules do not in terrns require a State requesthg
permission to intervene to spec* the purpose of intervention. urilike
Article 81 (2)(b) of the 1978 Rules. Nevertheless the Court is bound to
consider whether the object of the requested intervention "correspondsto
what is contemplated by the StatuteW.l3
18. The Federated States of Micronesia requests permission to
intervene in order to protect its legal interests under general
international law and under applicable treaties by ail 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 Federated States of Micronesia seeks to inforrn the
Court of its interests before anydecision that rnight affect them is made,
as weli asto flm the coiiective character of the obligations involved. In
the Land. Island and Maritim eontier Disput the Chamber held it to be
a proper function of intervention "to inforrn 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 have been in boundary
delimitation 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 aiiow intervention: the issues
in a boundary dispute have been treated as essentiaüy bilateralones. By
contrast. disputes about obligations owed erga omnes have an inherent
unity and are not divisible in this way. It is significant that Nicaragua
was accorded permission to intervene only where Fere was a
"cornrnunity of interests" in the waters of the Gulf of Fonseca. Such
12 PCIJ SerA/B No42 (1931)at p 108.
13 Land Island and Maritim erontier Disoute (El Saluador/Honduras)
Application byNicaragu far Permissionto lnteroe&.ICJ Reports 1990 p 92 at
128 l.zra 85).
14 fiid-=p 130 (para 901, "community of interests" embraced Nicaragua which accordingly had a
legal interest in the resolution of the clairn.15
20. Sirnilarly the Federated States of Micronesia has an interest in the
subject matter of the dispute between New Zealand and France resting
upon the community of interest in the fulfilrnent 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 cornrnon interest
specificaiiy recognised in the Noumea Convention.
.:
Jurisdiction
21. The Federated States of Micronesia is not seeking to introduce a
new dispute before the Court. or to become a Party to the proceedings
between New Zeaiand and France. It isseeking 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 Maritune 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 with possibly affected interests may be permitted to intervene
even though there is no jurisdictional link and it therefore cannot
become a party."16
The Federated States of Micronesia respectfuiiy adopts this conclusion.
Any other conclusion would render meaningless the procedural facility of
intervention speciflcally 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 legal interest "may"be affected.
not that it wiii or must be affected.17 It is respectfuiiy 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 isnot
justified. Under.the circumstances. the Federated States of Micronesia
has demonstrated that it has an interest of a legal nature in the
prevention of resumption of nuclear testing by France in the South
Pacific region and in the aiiegation of failure by France to fulfil its
obligations under the Noumea Convention and other appiicable
conventions and rules of general international law. It considers that
these legai interests may be affected not only by a decision of the Court
15 Ibidat pp 121-2. 125 (paras72. 79).
16 Ibidat p 135 [para 100).
17 Ibidat p 117 [para 61).on the men& of New Zealand's claims. but also by a refusal to indicate
provisional rneasures.
Prourietv of intervention at the urovisional rneasures uhase
24. Article 62 does not lirnit 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 legal interest rnay be affected by the decision. including a :
decision to indicate provisional rneasures.
25. In the present case. this rnay weii be the only time at which the
request can have practical effect. Conduct of the proposed tests will
upset the statu suo in the region and has the potential to cause serious.
possibly irreparable hm to the marine environment. The cultures.
traditions and weii-being of the peoples of the South Pacific States would
be adversely affected by the resurnption of French nuclear testing within
the region in a manner incompatible with applicable legal noms. New
Zealand's request for an indication of further provisional rneasures is
concerned to preserve. pending a decision of the Court:
(al rights owed erga ornnes (and thus to the Federated States of
Micronesia);
b) treaty rights owed equaiiy to ailStates Parties under the Nournea
Convention (including the Federated States of Micronesial.
Similarly. itisconcemed to prevent. pending a decision of the Court:
(cl perceived risk of hm to the environment of the region. an
environment recognized by the Parties to the Noumea Convention
as having speciai characteristics and as requinng special
protection.
26. Having regard to the importance of preventan of hm. it cannot be
said in advance that these legal rights and interests will not be affected
by any decision at the stage of provisionai rneasures. To put the same
point positively. these interests of a legal character "rnay be affected by
the decision in the case". In the circurnstances. and having regard to the
importance of the interests at stake. it isrespectfuliy submitted that this
is sufficient to entitle the Federated States of Micronesia to be permitted
to intervene at the stage of provisional rneasures. PART C. Admissibiïity of Declaration of intervention: Article 63 of
the Statute
27. A second and distinct basis for intervention isArticle 63 of the
Statute. The Noumea Convention is a convention to which States other
than New Zealand and France are Parties. In particular. the Federated
States of Micronesia is a Partyto the Convention by virtue of its
ratification of 29 November 1988. The Convention. which entered into ..
force on 22 August 1990. is the most important legal instrument
governing the protection of the environment of the South Pacific region. a
region which includes Mururoa and Fangataufa.
The Construction of the Noumea Convention is in Question
28. In the Federated States of Micronesia's view. the construction"of
the Noumea Convention is in question both in terrns of the indication or
otherwise of provisionai rneasures and in tems of the ultimate relief
which New Zealand seeks In relation to the rnerits.
29. The 1986 Noumea Convention is understood to be the principal
treaty instrument relied upon by New Zeaiand. Relevant provisions
include Article 2 (fl(Definitions). Articl4 (6)(GeneraiProvisions). Article
12 ITesting of Nuclear Devices). and Article 16 (Environrnentai impact
Assessment). These provisions are. it isrespectfully suggested. clearly "in
question". In relation to the ments. they are a principal foundation for
the New Zealand claims. failing within paragraph 28 of itsApplication of
1973. In relation to its further request for provisionai measures. the
Court wiiibe required to construe these (andperhaps other) provisions of
the Convention in order to see whether they provide a basis for the
measures sought.
(al The ELA obltgatioz Arricle16 of the Noumea Convention
30. The Federated States of Micronesia suggests that Article 16 is
directly applicable to the proposed French nuclear tests at Mururoa and
Fangataufa. In the Federated States of Micronesia's view. Article 16
requires France. before those tests are canied out:
t to have conducted an environmentai impact assessment of the
potentiai effects of the nuclear tests on the marine environment
(including the preparation of an environmentai impact statement);
. where appropnate. and in accordance withits national procedures.
to have invited public comment on the environmental impact
staternent:* where appropriate. to have invited other Parties that may be
affected by the tests (including the Federated States of Micronesia)
to consult with it and submit cornrnents: and
to have shared the results of the assessment with interested States
Parties through the South Pacific Commission.
31. Specificaily, the Court will face a range of issues of construction.
including the following:
Issu he: scope of Article 16.
In the Federated States of Micronesia's view. the proposed test
program falls within the scope of the "major projects which might
affect the marine environment", within the rneaning of Article 16
(1). Itis therefore a project to which paragraphs (2)and (31of
Article 16 apply.
. Issu he:nature and extent of the obligation imposed by Article 16
(2).
In the Federated States of Micronesia's view. the assessment to
which Article 16 (2) refers rnust be an environment impact
assessment as normally understood in national and international
practice. Since such an assessment is weii within the capabilities
of a State Party such as France. the words "within its capabilities"
afford no relevant limitation to the obligation under Article 16 (2).
. Issu he: nature and extent of the obligation imposed by Article 16
(3)to invite public comment and to consult other Parties.
In the Federated States of Micronesia's view. the words "where
appropriate" do not confer on the State Party concemed an
unfettered discretion to deny the opportuniw to consult and
submit comments. In circumstances such as the present, there is
no basis for holding that it would be "appropriate" not to consult
with other Parties. Moreover the procedures under paragraph (3)
must be carried out in time to enable cornments to be taken into
account before any final decisionismade.
-ssue: the nature and extent of the obligation imposed on France
by Article 16 (3) to share the results ofits environmental impact
assessment with interested States Parties through the South
Pacific Commission.
In the Federated States of Micronesia's view. this requires. in the
case of the resumption of a nuclear test program. that both the Page11
assessment and the communication occur prior to the final
decision to undertake the program.
.
-ssue: the relationship between Articles 12 and 16 (2)and (31.
In the Federated States of Micronesia's view. the obligations under
Articles 16 (21 and (31 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 Convention Area.
(b) The obligation not to cause the introducti inno the marine
environment of radioactwe material. Article 4(6) of the Noumea
Convention
32. In the Federated States of Micronesia's view, Article 4 (6) of the
Noumea Convention. construed in accordance with Article 4 (41.18
imposes 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
construed "in accordance with international law relating to lits] subject
matter" (Article 4 (4)). In the context of the release of radioactive material
into the environment. Article 4 (6) is thus to be construed 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 disposal of any radioactive materiai in the marine
environment.19 paragraph 22.5 (c) of Agenda 21 prohibiting storage of
radioactive material near the manne environment.20 and the obligation to
apply the precautionary pnnciple. Since Article 4 (6) is fundamental to
the second element of the New Zeaiand Request. its construction is.in
the Federated States of Micronesia's respectful view. clearly in issue.
33. At this stage of the proceedings it isnot possible to be exhaustive
as to the issues of construction of the Noumea Convention which are in
question. Additionai issues may be raised by the Respondent State or by
the Court itself. and the Federated States of Micronesia respectfuiiy
reserves the nght to advance additionai arguments in that event.
18 Article4 (6)provides.inte ria that:
"Each Paq shall ensure that activities within itsjurisdiction or control
do not cause darnage to the environment of other States or of areas
beyond the limitsofitsnationaljurisdiction."
Article4 (4)providesthat:
'ThisConventionand itsProtocolsshail be conshed in accordance with
international lawrelating to their subject matter."
19 ResoluUonLDC.51(16).
20 A/CONF/151/26/Rev. 1(vol1)(1993). page12
The Existence of a Rieht of Intervention
34. In this context. it is important to stress that Article 63 of the
Statute confers on States a rigN to intervene in any case to which it is
applicable.2' 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 tme that there isan obligation on the Registrar to issue a notification
"forthwith". and to do so "[wlheneuerthe construction of a convention is
in issue" (emphasis added). On the other hand the Rules expressly
provide that a declaration under Article 63 ...
"may be filed by a State that considers itseif a party to the
convention the construction of which is in question but has not
received the notification referred to in Article 63 of the Statute."
(1972 Rules. Article 71 (1); 1978 Rules. Article 82 (3).)
By contrast Article 63 (2) of the Statute is limited to "Every State so
notifieci" (emphasis added). The relation between these various
provisions does not seem to have been the subject of any ruling by the
Court.
35. The Federated States of Micronesia accepts that it is a matter for
the Registrar. 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 nght 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 notikng the
intention of the Federated States of Micronesia to intervene as of nght
under Article 63 as soon as the conditions for its doing so have been
fuifilled.
The Issue of a Jurisdictional Link
36. The Federated States of Micronesia contends that there is no
requirement of a jurisdictional link under Article 63 between either of the
parties and the intervenor. This follows afortiori from the decision of the
Chamber in relation to Article 62.22 Article 63 isclearly a seif-contained
regime of a special character. which contains its own preconditions and
provides for its own distinctive consequences.23 There is no basis for
21 Cf Haya de la TorreCase ICJ Reports 1951 p 71.
22 Land Island and FrontierDispute Case. Appücafion of Nicaragun to
InterueneICJ Reportç 1990 p 92.
constructionygivento the conventionin question.under ArUcle 63 isbound by the 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 Hearing
37. Article 71 of the 1972 Rules provides that the intervening pars
under Article 63 "shall take part" in the oral proceedings. Similar
provision is contained in Article 86 (2) of the 1978 Rules. In the Case
..
conceming Militay and PararnilitaryActiuities in and againsf.Nicaragua
(Declaration of intemention). the Couidecided by majority not to accord
a hearing to El Salvador, which had made a declaration of intekvention
under Article 63.24That 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 rnight wish to intervene at the ments
phase). It is suggested that the decision isnot 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 is the case
that those issues of construction are in question inrelation to the phase
of the ments.
39. In this regard. Article 63should not be read as limited to issues of
const?uction that the Court necessarily has to decide. In any case before
the Court. a range of issues wiil arise. The Court retains freedom to
choose those matters it wiil actually deal with. The right of intervention
under Article 63 arises ptior 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 issue isactually raised by the parties 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
possibiiity that the Court may be able to decide on NewZealand's request
without resolving those issues does not mean that they are not "in
24 ICJ Reports 1984 p 392,question". This is so both as to the phase of provisionai measures and
as to the phase of the merits. In relation to the phase of provisional
measures. it istrue that the Court will avoid finai decisions as to the
mstence 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 nght 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 predetermined
view that particular arguments relied on by the parties are irrelevant or
will not anse. Thus even at the provisional measures phase, the Court
may weli have to form a provisional view as to the dstence and
significance of a treaty right relied on by the Applicant. and for that
purpose it will necessarily have to construe the Noumea Convention.
PART D. Conclusion
41. For the reasons given here (which the Federated States of
Micronesia reserves the right to supplement at a hearing before the
Courtl, the Federated States of Micronesia respectfuiiy asks:
(a) that the Court give it permission to intervene in the proceedings
under Article 62 of the Statute. both as to provisional measures
and at the eventual phase of the merits:
(b) that. to the extent that the Court concludes that the construction
of the Noumea Convention is in question. the Court should declare
that the Federated States of Micronesia is entitled to intervene
under Arucle 63 of the Statute as to those questions of
construction. both as to provisionai measures and at the eventual
phase of the ments.
.Agentfor the Governrnent of the Federated States of Micronesia
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 Federated States of Micronesia