- Annex 1to GEN95/81
INTERNATIONAL COURTOFJUSTICE
Dcssiar.
Cr~du~-Brin,,,,
NUCLEARTESTS
(NEWZEALAND v. FRANCE)
APPLICATIONFORPERMISSIONTO INTERVENEUNDERARTICLE62
DECLARATIONOF INTERVENTIONUNDERARTICLE63
SUBMllTED BY
THE GOVERNMENTOF SAMOA
24 AUGUST1995 NUCLEARTESTS CASE (NEW ZEALAM) v. FRANCE)
APPLICATIONTO BE PERMITTED TO INTERVENE UNDER
ARTICLE 62
DECLARATIONOF INTERVENTIONIJNDERARTICLE 63
MADE BY THE GOVERNMENTOF SAMOA
1have the honour. as the Agent for the Governrnent of Samoa. to submit
to the International Court of Justice the present request for intervention
in the case conceming Nuclear Tests (New Zealand u.Francel.
PART A. Introduction
1. Samoa seeks to intervene inthe case on two separate grounds.
(1) Samoa 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. Samoa 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) Samoa understands that the New Zeaiand Request invokes certain
articles of the Convention for the Protection of the Natural
Resources and Environment of the South Pacffic Region. signed at
Nournea on 24 November 1986.1 and that the construction of the
Convention isin question within the meaning of Article 63 of the
Statute. In such a case a State notified othis fact by the Registrar
has a right of intervention under Article 63.2 Under the unusual
circurnstances of the present case. and having regard to the
urgency of the rnatter. Samoa hereby declares its intention to
1 (1987) 26 lntemationai Legai Materials 38; Australian Treaw Series
1990.No 3 1(hereafterreferredto as the NoumeaConvention].
2 ltshould be noted in this contart that Articl71 (1)of the1972 Rules
(correspondingto Article82 (31of the 1978 Rules)provides that a declaration
"may be ffled by a State that considers itçelf a Party to the conventiothe
construction of which isin question but has not received the notification
referred ton Article63 ofthe Statute". intervene as of right under Article 63. both in relation to the phase
of provisional measures. and the eventual phase of the merlts.
2. These requests for intervention are cumulative and alternative.3
They are examined separately below.
3. Samoa 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 subrnitted to
the Court before 1 July 1978. or any phase 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 Court. this Request and
Declaration wül 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 perrnissibility or
adrnissibility 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 Zeaiand's Request of 21 August 1995. At this stage.
Samoa would only make the following additional observation. In fact.
and as clearly reflected in New Zeaiand's initiai Application, the dispute
between New Zealand and France as to nuclear testing in the Pacific
raises issues which are more than bilaterai 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 Zeaiand relies are either general
international law noms having an erga ornnes 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
Nournea Convention. derive from a regional convention recognising and
protecting a cornmon. collective. interest.
5. The preamble to the Noumea Convention refers to "the special
hydrological. geologicai and ecological charactenstics of the region which
require special care and responsible management". to "the unique
environmental 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
3 Nothingin the Statute precludes a State from relylngboth on Article 62
and 63 in relationto the same case.Cf The WimbledonPCIJ Ser A No 1 (1923).
4 The South PacificForum was founded in 1971. A South PaclficForum
Secretariat was establishedby an Agreementconcluded at Pohnpei. Micronesiaweapons and nuclear waste disposal in their Region. for exarnple by
seeking to establish and guarantee the status of the Region as a nuclear
free zone.5
The NewZealand ReouesB
6. The New Zealand Request for an Examination of the Situation has
two separate elements:6
(1) The first element of the New Zealand Request asksthe Court to
adjudge and declare that it would be unlawful for France to
conduct nuclear tests at Mururoa or Fangataufa Atolls without
first carrying out an environmentai impact assessment of the effect
ofsuch tests in accordance with accepted international standards,
which assessment must establish that the tests will 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 Zealand Request asks the Court to
adjudge and declare that the conduct of the proposed nuclear tests
willviolate NewZealand'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 general international law and which is embodied 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.8 In essence. these are that France refrain from
conducting any further nuclear tests at Mururoa and Fangataufawithout
first canying out an environmental impact assessment in accordance
with accepted international, standards. such assessment establishing
that the tests wiilnot 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
aggravate or extend the dispute or prejudice the nghts of the other Party.
A main focus of the provisional measures sought by New Zealand is
therefore to preserve its nghts under the Noumea Convention, as weii as
under other international conventions and general international law.
pending the final decision of the Court.
on 29 July 1991 (in force 23 April 1993):see Australian Treaty Series 1993 No
16.
5 See South PacificNuclear Free Zone Tieaty. Raratonga. 6 August 1985.
preambular paragraph 10:"Determinedto keep the regionfree ofenvironmental
pollution by radioactivewastes and other radioactivematter". For the text of
the Conventionsee (1985) 24 International LegalMateriais1440.
7 T(1992)3e1InternationalLegal Materials822.22.2 1 August 1995.
8 These are summarized in ICJ Communiqué95/22.2 1August 1995.PART B. Application for Permission to Intemene: Article 62 of the
Statute
8. Article 69 of the 1972 Ruies, under which this application is made.
requires the application to include "a statement of law and fact justifymg
intervention" (cf 1978 Rules, Article 81 (2)).
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. Samoa 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 junsdiction. or within'
its own maritime areas;
(b) in compliance by States with essentiai 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 Zeaiand asserts that it "isunlawful
for France to conduct such nuclear tests before it has undertaken an
Environment impact Assessment according to accepted international
standards". Samoa has a legal interest in the apparent failure by France
to cany 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 isowed to aii other Parties to the Convention.
In particular there is an obligation on the State Party concemed to
comrnunicate its assessments to the South Pacmc Commission so that
they may be made available to interested Parties [Article 16 (3)). That
obligation is not qualifled 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 limits of
national junsdiction. aii States Parties to the Noumea Convention have a
legai interest in compliance with it.
12. In addition, at the level of responsibility, New Zealand has
subrnitted that "entry into the marine environment of radioactive
material in consequence of the further tests to be carried out at Mururoa
or Fangataufa Atolis" would constitute a violation of international law
and of applicable treaties. In this regard Article 4 (6) of the NoumeaConvention restates and affirms the oblig&on of each State Pw to
"ensure that activities within its jurlsdiction or control do not cause
damage to the environment of other States or of areas beyond the limits
of itsnational jurisdiction".
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 inte dia that the French nuclear testing in the
South Pacific region. ..
"violates the rights of ail members of the international community.
including New Zealand. that no nuclear tests that give rise to
radioactive faliout be conducted:
violates the rights of aii members of the international communfty.
including New Zeaiand. to the preservation from unjustified
arüficiai radioactive contamination of the terrestrial, maritime and
aerial environment and. in particular. of the environment of the
region inwhich the tests are conducted.. ."9
The obligations correlative to these rights were specifically characterised
by NewZealand as obligations erga ornnes. 10
14. As the Court noted in the Barcelona Tractfon case. aliStates have a
legal interest in the prevention of a violation of an obligation owed erga
omnes.11 That all States share this legai interest does not prevent it from
being a genuine legal interest of eachof 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 amed third party interests in freedom of transit and
communications and cornmented that "nevertheless no third State has
considered it necessary or expedient to intervene ..."iz 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.
9 See ICJ Pieadings. Nuriear Tests.vol 2. p 8. Itmay be noted in thi~
context Lhatthe ShorterOxford English Dictionary (3rdrev edn. 1959)vol 2. p
2490 defines "fall-out"as "Radioactiverefuse of an atomic bomb explosion".
without any specificationthatthisbe atmospheric.
10 See e.g. NewZealandMemorial.ICJ Pleadings, Nuclear Testsvol2. p 143
(para 191). See also Dr Finlay. counsel for NZ. in oral argument: ibid at pp
114-266Barcelona Traction Case [Second Phase) ICJ Reports 1970 p 3 at p 32
(paras 33-35).
12 PCLJ SerA/B No 42 (1931)at p 108.16. South Pacific Forum States Parties to the Nournea Convention.
including Samoa. share a legal interest with ail States in seeking to
ensure cornpliance with obligations owed ega omnes. They have a
further legal interest arising from their promty to the proposed test
sites and from their legitimate concern for the "special hydrological,
geological and ecological characteristics of the region which require
special care" (NoumeaConvention. preamble).
Purnose of intervention
17. The 1972 Rdes do not in terms require a State requesting
permission to intervene to specifj' the purpose of intervention. uniike
Article 81 (2) (b)of the 1978 Rdes. Nevertheless the Court is bound to
consider whether the object of the requested intervention "corresponds to
what iscontemplated by the StatuteN.13
18. Samoa 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. Samoa seeks to inform the Court of its
interests before any decision that might affect them ismade. as well as to
&rm the collective character of the obligations involved. In the Land.
Island and Maritime Frontier Dispute the Chamber held it to be a proper
function of intervention "to inform the Court of the nature of the legal
nghts of Nicaragua which are in issue in the dispute".l4
19. Most requests for permission to intervene have been in boundary
deiimitation disputes. where the third party interest isto a greater or
lesser extent opposed to those of the parties to the proceedings. ln such
cases the Court has been very reluctant to aüow intervention: the issues
in a boundary dispute have been treated as essentially bilateral ones. 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 there was a
"comrnunity of interests" in the waters of the Gulf of Fonseca. Such
"community of interests" embraced Nicaragua which accordingly had a
legal interestin the resolution of the claim.15
20. Similarly Samoa has an interest in the subject matter of the
dispute between NewZealand and France resting upon the community of
interest in the fulfilrnent of obligations owed ergaomnes. The legitimacy
of action taken to protect that interest is heightened and reinforced by
13 Land Island and Mantirne nonfier Dispute (El Saiuador/Hondurasl
Appkation by Nicaragunfor Permission toInterverte. IReports 1990 p92 at p
128(para 851.
14 ibidatp130(para90).
15 Ibidatpp121-2.125(paras72.79].the cornmon interest of the South Pacific Forum States in the
environment of the Region - a cornrnon interest specificdy recognised in
the Noumea Convention.
Jurisdiction
21. Samoa 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 Arücle 62 of the Statute.
22. The Chamber in the Land Island and Maritim Beoundary Dispute
detennined that the distinctive juridical nature and purposes of
intervention mean that such a link isnot required. Itsaid:
"On the contrary, the procedure of intervention is to ensure that a
State with possibly alTectedinterests may be permitted to intervene
even though there is no jurisdictional link and it therefore cannot
become a party."16
Samoa respectfidiy adopts this conclusion. Any other conclusion would
render meaningless the procedural 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 legal interest "may" be affected.
not that itwili or must be affected.17 Itis respectfully suggested that itis
not for the Court to substitute for the State and to determine - especially
in advance of pleadings and hearings - that a State's apprehension is not
justified. Under the circumstances, Samoa has demonstrated that it has
an interest of a legal nature in the prevention of resumption of nuclear
testing by France in the South Paciîlc region and in the aiiegation of
failure by France to fulfil its obligations under the Noumea 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 ments of NewZeaiand's claims, but also by
a refusal to indicate provisionai measures.
Pro~rietv of intervention at the ~rovisional measures hase
24. Article 62 does not iirnit 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 legalinterest may be aEected by the decision, including a
decision to indicate provisional measures.
17 Ibidatp117(para61).01.25. In the present case. this may well be the only tirne at which the
request can have practical effect. Conduct of the proposed tests wiii
upset the status quo in the region and has the potential to cause serious.
possibly irreparable harm to the marine environment. The cultures.
traditions and well-being of the peoples of the South Pacific States wouid
be adversely affected by the resumption of French nuclear testing within
the region in a manner incompatible with applicable legai noms. New
Zeaiand's request for an indication of further provisional measures is
concerned to preserve. pending a decision of the Court:
(a) rights owed erga ornnes (and thus to Samoa);
(b) treaty rights owed equally to aliStates Parties under the Noumea
Convention (including Samoa).
Similarly. it is concemed to prevent. pending adecision of the Court:
(c) perceived risk of harm to the environrnent of the region. an
environrnent recognized by the Parties to the Noumea Convention
as having speciai charactenstics and as requiring special
protection.
26. Having regard to the importance of prevention of harm. it cannot be
said in advance that these legai rights and interests will not be a!Tected
by any decision at the stage of provisionai measures. To put the same
point positively. these interests of a legai character "may be affected by
the decision inthe case". In the circumstances, and having regard to the
importance of the interests at stake, it is respectfully submitted that this
is sufficient to entitle Samoa to be pennitted 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 is a convention to which States other
than New Zealand and France are Parties. In particular. Samoa is a
Party to the Convention by virtue of its ratification of23 July 1990. The
Convention. which entered into force on 22 August 1990. is the most
important legai instrument governing the protection of the environment
of the South Pacific region. a region which includes Mururoa and
Fangataufa.28. In Samoa's view. the construction of the Nournea Convention is in
question both in terms of the indication or otherwise of provisional
measures and in tems of the ulthnate relief which New Zealand seeks ln
relation tothe merits.
29.
The 1986 Noumea Convention is understood to be the principal
treaty instrument relied upon by New Zealand. Relevant provisions
include Article 2 (0 (Definitions). Articl4'16)(General Provisions). Article
12 (Testing of Nuclear Devices). and Article 16 (Environmental Impact
Assessment). These provisions are. it is respectfully 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 (andperhaps other) provisions of
the Convention in order to see whether they provide a basis for the
measures sought.
(cd The EL4 obligatioc Article16 of the Noumea Convention
30. Samoa suggests that Article 16 is directly applicable to the
proposed French nuclear tests at Mururoa and Fangataufa. In Samoa's
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 environmental impact statement);
* where appropriate. and in accordance with its national procedures.
to have invited public comment on the environmental impact
staternent:
t
where appropriate. to have invited other Parties that may be
affected by the tests [including Samoa) to consult with it and
subrnit 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 constmction.
including the foilowing:
-ssue: the scope ofArticle 16.
In Samoa's 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 is therefore a project to
which paragraphs (2)and (3) ofArticle 16 apply.
Issu te: nature and extent of the obligation irnposed by Article 16
(21.
In Samoa's 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 iswell within the capabiiities afState Party such as
France, the words "within itscapabilities" afford no relevant
limitation to the obligation under Article 16 (2).
* Issu tee:nature and extent of the obligation imposed by Article 16
(3) to invite public comment and to consultother Parties.
In Samoa's view. the words "where appropnate" 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
"appropnate" not to consult with other Parties. Moreover the
procedures under paragraph (3) must be carried out in time to
enable comments to be taken into account before any final decision
ismade.
.
Issu the:nature and extent of the obligation imposed on France
by Article16 (3) to share the results of its environmental impact
assessment with interested States Parties through the South
Pacific Commission.
In Samoa's view. this requires. in the case of the resumption of a
nuclear test program. that both the assessment and the
communication occur pnor to the finaldecision to undertake the
program.
* m: the relationshp between Articles 12 and 16 (2)and (3).
In Samoa's view. the obligations under Article16 (2)and (3)appiy
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.&) The obligation not to cause the introducti intn the marine
environment of radioactiw material. Article 4(61 of the Nournea
Conuention
32. In Samoa's view, Article 4 (6)of the Noumea Convention. construed
in accordance with Article 4 (4). '8imposes upon France an obligation to
ensure that nuclear tests carried out at Mururoa or Fangataufa do not
result 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" (Arttcle 4 (41). 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 material into the marine environment. Any other
construction would be incompatible with developments in treaty and
general international law. as reflected inte arüa in the 1993 amendment
to the 1972 London Dumping Convention, prohibiting the disposal of any
radioactive material in the marine environment.19 paragraph 22.5 (c)of
Agenda 21 prohibitirig storage of radioactive material near the marine
environment.z0 and the obligation to apply the precautionq principle.
Since Arücle 4 (6) is fundamental to the second element of the New
Zealand Request. its construction is. in Samoa's 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 Samoa respectfully reserves the right to advance
additional arguments in that event.
The Existence of a Rieht of Intervention
34. In this context. it is ,important to stress that Arücle 63 of the
Statute confers on States a rightto intervene in any case to which it is
applicable.21 There is.however, a question relating to the time at which
Article 63 begins to operate. Article 63 appears to make the rigN of
States to intervene inrespect 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 issue a notification
"forthwith". and to do so "[w]knever the construction of a convention is
18 Article4 (6provides.interdia that:
"Each Party shall ensure that activitieswithinitsjurisdiction or controi
do not cause damage to the environment of other States or of areas
beyond the limitsofItsnational jurisdiction."
Article4 (4)providesthat:
'ThisConventionand its Protocolsshall be construed in accordance with
international lawrelating to their subject matter."
19 ResolutionLDC.51 (16).
20 A/CONF/151/26/Rev. 1 (vol1)(1993).
21 Cf Haya de la TorreCase ICJ Reports 195 1 p 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 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 (31.1
By contrast Article 63 (2) of the Statute is limited to "Every State so
noti@ed' (emphasis added). The relation between these various
provisions does not seem to have been the subject of any ruLing by the
Court.
35. Samoa 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 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 notifying the intention of Samoa to intervene as of
right under Article 63 as soon as the conditions for its doing so have
been Wed.
The Issue of a Jurisdictional Link
36. Samoa contends that there is no requirement of a jurisdictional
link under Article 63 between either of the parties and the intervenor.
This foiiows a fortiori from the decision of the Charnber 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 isno 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 Ouestion of a Hearing
37. Article 71 of the 1972 Rules provides that the intervening party
under Article 63 "shail take part" in the oral proceedings. Sirnilar
provision is contained in Article 86 (2) of the 1978 Rules. In the Case
concerning Military and Paramilitary Actiuities inand against Nicaragua
(Declaration of interuenîionl,the Court decided by majoriv not to accord
a hearing to El Salvador. which had made a declaration of intervention
22 Land Island and Frontier Dispuîe Case. Application of Nicaragua to
Interuene1CJReports 1990 p 92.
23 A Party exercisinga rightofinterventionunder Article 63 isbound by the
construction given tothe convention inquestion. under Article 63.z4 That decision may be explained by the fact that El
Salvador's DecIaration was considered to relate to the phase of the
merits. as distinct from jurisdiction or admlssibility (and indeed the
court indicated that El Salvador might wish to intervene at the merits
phase). Itis suggested that the decision is not authority in relation to
any declaration of intervention that relates to the current phase of
proceedings.
Conclusion as to Article 63
38. To surnmarize. the issues of construction referred to in the
preceding paragraphs are "in question" in the provisionai measures
phase because the Court wiil or may have to consider them in assessing
whether a sdcient 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 case
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 limited to issues of
construction that the Court necessarily has to decide. In any case before
the Court. a range of issues wiii arise. 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 if that issueis actually raised by the parties to the proceeding.
or either of them. and ifit forms a possible basis for the decision. or a
possible iink in the chah of reasoning leading to the decision.
40. In the present case. the issues of construction idenw~ed above are
"in question" since they relate directly to the question whether a legal
basis for the asserted rights of New Zealand exists or 'doesnot 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 ments. In relation to the phase of provisional
measures, it istrue that the Court will 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 east and required protection in the circumstances. A
judicial body cannot approach a phase af a case with the predetermined
view that particular arguments relied on by the parties are irrelevant or
will not arise. Thus even at the provisional measures phase. the Court
may weli have to form a provisional view as to the existence and
24
ICJ Report s984 p 392.significance of a treaty right reiied on by the Appiicant, and for that
purpose it will necessarily have to construethe Nournea Convention.
PART D. Conclusion
41. For the reasons given here (which Samoa reserves the right to
supplement at a hearing before the Court), Samoa 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 eventuai phase of the merits;
that. to the extent that the Court concludes that the construction
(b)
of the Nournea Convention isin question. the Court should declare
that Samoa is entitled to intervene under Article 63 of the Statute
as to those questions of construction. both as to provisionai
measures and at the eventuai phase of the merits.
n
(Signedl ~ufloma Neroni Slade
Agent for the Governrne~t of Samoa
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 Samoa Islands