WRITTENOBSERVATIONSON THE
DECLARATIONOFINTERVENTION LE'ïïER FROM THE AGENT OF NICARAGUA1'0 THE HEGISTRAR
The Hague. 10 Septemher 1984.
1 have the honour to refer to the letter from the Deputy Registrar of 15
August 1984.
In response to the invitation in the aforementioned letter, Nicaragua respect-
fully submits the following observations in relation to the Declaration of Inter-
vention of the Repuhlic of El Salvador in the ahove entitled case, filed
15August 1984.
1. Nicaragua has no objection in principle to a proper intervention by El
Salvador in this case in accordance with Article 63 of the Statute of the Court
and Articles 82-85 of the Rules of Court. Nicararu-'s An~l..ation. in addition
to claims Jndcr gcner~l international liw. :assert*illiimr undcr ccrt;iin ioii\zn-
tions Iiis ucll-e,t;ihliihctlilidny Stlii: ma) intsr\cne a$ <il'r~fhtundcr ;\rtiile
63 in a case involvins the interpretation of a convention to which it is a pürty if
it meets the rea.irements of the Article and the relevant Rules.
?. Although NIC~~J~Uh Ji15ni) intcntianIO oppose lil SiilvÿJor'r iiiter\cntion.
IIfeclsbound to cal1the Court's lttcniion to ceriain Jcliiicniics. hoth a, ro fnrrri
and substance, in the Declaration of Intervention.
3. As to form: The declaration purports to be made under Article 63 of the
Statute of the Court. (That Article permits intervention hy a State that is party
to a convention the construction of which isin question in the case.) Article 82
of the Rules of Court, which governs interventions under Article 63, provides
that a declaration of intervention
"shall contain :
...
(b) identification of the particular provisions of theconvention the construc-
tion of which [the declarant] considers to be in question ;
(c) a statement of the construction of those provisions for which it
contends ;
...
The Declaration of El Salvador contains no such "identification" and nt) such
"statement".
4. The requirements of Article 82 of the Rules are not mere matters of form.
They are necessary to ensure that the intervention falls properly within the
provisions of Article 63 of the Statute, and to make clear what portions of the
Court's judgment are binding on the intervenor in accordance with that Article.
5. As to substance: The Declararion Statesthat El Salvddor seeksto intervene
for the sole and limitcd purpose of arguing that this Court docs no1 have
jurisdiction over Nicaragua's application of the daims set Forththerein, that for
multiple reasons the Court should declare itself unable to proceed concerniug
such application and claims, and that such application and claims are inadmis-
sible. l.t.'l~I't.KFR011 TIIK ,l(;kXl'OF '1Ht: LYITEI) S'l'fVl'k:O SF A1lk:HlC,\
'1'0'IlII; KFC;IKIK.\H OF TIIE ISl'FH\XI'lOS,\l. COIJKI' OF JL'SI'ICE
SI.'R\IIl~I'IS<~'1IIE OHSk.H\',VI'IOSSOF 1'1IEUSi'I'k.1)SIX1'k.SOV TIIE
14 September 1984.
1have the honor to acknowledge the receipt of your letter of 15 August 1984
transmitting a certifiedcopy of ElSalvador's Declaration of Intervention pursuant
to Article 63 of the Statute of the Court in the case between Nicaragua and the
United States, and fixing 14 Septeniber 1984 as the final date for the filiiig of
written observations on this Declaration of Intervention by the Parties. 1 have
also received a copy of El Salvador's letter to the Registrar of 10 September
1984concerning its intervention, as transmitted by your letter of the same date.
Following are the observations of the United States with respect to El Salvador's
-eclaration of Intervention.
R) \,iriur.oithcC'o~irt'~C)rJ~roi 14 Md! 1984.the L.urrr.ntsiügr.<~ipr<~iecdiiigs
in ihis cüjc 1, ~,iin~inrdto "tlirquestions of the ~urisdicti<in.>ftlie Co~rt to en-
tertain tlic dls~~tcitnil <ll'thcdJm~.~~hlllt\of the IUi;ür~~uanl ,Iririlic.~tii~i. .".
- > ..
Consistent wiih that Order, El Salvador seeks to intervene -
"for the sole and limited purpose of arguing that this Court does not have
jurisdiction over Nicaragua's Application or the claims set forth therein,
... and that such application and claims are inadmissible". (Declar-
ation of Intervention, p. 451, supra.)
Specifically, El Salvador seeks to intervene with respect to certain questions of
construction of the Charter of the llnited Nations, in particular Articles 39, 51
and 52, and of the Statute of the Court, which forms a part of the Charter, in
particular Article 36. In making this intervention, El Salvador relies on tht: îact
that it is a party to the Charter of the United Nations and to the Statute of the
Court and on the fact that the referenced questions of construction of the Statute
and Charter are at issue in the current stage of proceedings. El Salvador's request
is timely, in that it has been filed before the date fixed for the opening of the
oral proceedings on these questions. (Article 82 (l), Rules of Court.)
In viewof these circumstances, the United States is of the viewthat El Salvador
has a right pursuant to Article 63 of the Statute of the Court to intervene at this
stage of the proceedings.
1. ElSalvadorHas theRighiio IntervenePursuant IO Article63 of flicSrarute of
theCourt
Article 63 of the Statute of the Court provides that:
"1. Whenever the construction of a convention to which States other
than those concerned in the case are parties is in question, the Registrar
shall notify al1such States forthwith.
2. Every State so notified has the right to intervene in the proceedings;
but if it uses this right, the construction given hy the judgment will be
equally hinding upon it."468 MILITARYAND PARAMILITARYACTLVITIES
This provision, apart from the paragraph numbering and punctuation, is identical
to Article 63 of the Statute of the Permanent Court of International Justice,
which in turn was based on similar articles in the 1899 and 1907 Hague Con-
ventions for the Pacific Settlement of International Disputes. (This history is
reviewed by Judge Oda in his dissenting opinion in ContinentalShelf (Libyan
Arab Jamahiriya/Malta), Applicationby Italy for Permissionto Iniervene,Judg-
ment,ICL Reports1984, p. 3, at pp. 100-102(diss. op. Oda).)
Article 63 gives each State the righi to intemene in pending proceedings,
provided that the case involves the construction of a convention and that the
State secking to intemene is a party to that convention. Thus M. de Lapradelle,
Chairman of the Drafting Cornmittee of the Advisory Committee of Jurists,
explained the purpose of Article 63 in the Statute of the Permanent Court of
International Justice as follows:
"[Tlhere is one case in which the Court cannot refuse a request to be
allowed to intemene; that is in questions concerning the interpretation of a
Convention in which States, other than the contesting parties, have taken
part; each of these is to have the right to intemene in the case." (Permanent
Court of International Justice, Advisory Committee of Jurists, Procés-Ver-
baux of the Proceedingsof the Committee,June 16-July 14. 1920, p. 746
(1920).)
Similarly,inits firstjudgment, the Permanent Court of International Justice recog-
nized the nght to intemene under Article 63 :
"[Wlhen the object of the suit before the Court is the interpretation of
an international convention, any State which is a party to this convention
has, under Article 63 of the Statute, the right to intemene in the proceedings
instituted by others ..." (S.S. "Wimbledon': Judgments,1923, P.C.I.J.,
SeriesA, No. 1, p. 12.)
This early authority has heen confirmed by the present Court. For example,
in Haya de lu Torre the Court referred to Cuba's "availing itself of the right
which Article 63 of the Statute of the Court confers on States parties to a
convention, ..." (Haya de la Torre, Judgment,I.C.J. Reports 1951, p. 71, at
p. 76). Also, in ContinentalShelf (TunisialLibyanArab Jamahiriya), the Court
ohserved :
"The Statute of the Court orovides for two different foms of intervention :
one unilcr Article O? . . .anJ the <~ihcrund21Arti~le63 shicli givcr particr
to J zonientiori thr.i.inrtrurtion sihich iiiiiqiic.stioiIIa idrc 'the right
i,i intcrvcne in ihc nru~ec.<linfiiV' C'i,n~me,rr<.r/IU/I liol~r~uI.~h,an .Iru/i
Jan~ahiriya),~pplic~tionby ~alta'for Permissionio'lnterve~e, Judgment,
ICJ Reports1981, p. 3, at p. 13.)
(See also, e.g., T. O. Elias, The International Courtof Justiceand SomeContem-
porary Problems, p. 93 (1983); G. Fitzmaurice, "The Law and Procedure of
the International Court of Justice, 1951-4", 34 British Year Bookof Inter-
national Law, p. 1, at p. 124 (1958); M. Duhisson, La Cour internationalede
Jusiice, p. 237 (1964).)
Thus, the only conditions for intemention under Article 63 of the Statute of
the Court are that the construction of a multilateral convention be at issue and
that the State requesting intervention he a party to the convention. Where tbese
conditions are met, the State has an absolute right to intervene. The role of the
Court in deciding "whether an intervention under Article 63 of the Statute is WRlTTEN OBSERVATIONS ON 'THEDECLARATION OF INTERVENTION 469
admissible", as provided hy Article 84 (2) of the Rules of Court, is in this respect
a limited one :
"Although intervention under this Article [63] is as of right, provided the
conditions stated in it are fulfilled, it is naturally for the Court to decide
whether they are actually satisfied or no1 ... Given that these conditions
are present, the Court is hound to admit the intervention, and has no
discretionary power in the matter, as it would seem it must have iinder
Article 62 .. ."(G. Fitzmaurice, op. cil., p. 127.)
Similarly, the distinguished President of the Court has written:
"lntervention under Article 63 is open to al1those States that can show
that the construction of an international convention, to which they are al1
oarties. is involved: no other reauirement need be fulfilled hefore an inter-
icning Sixic van p.iriicip.iir. in,uch pr<>iccdi~igb refor: the Court. I~itiri.i~~i-
,ii,,riuuh,r.4rlii6,3 i,,otrlhii h<t.~ii,iuro,,zui.r tlie Siarc ~iitclidingIo inicr-
tcnc '' ('1' O.t.lia\h~c.CI/.(crnpli~stssuppIic,d1.1
The "automatic" nature of intervention under Article 63 is illustrated hy the
decision of the Permanent Court of International Justice in S.S. "Wimbledon",
in accepting the request by Poland to intervene:
"It will sufficefor the Court Io note that in this case the interpretation of
certain clauses of the Treaty of Versaillesis involved in the suit and that the
Polish Republic is one of the States which are parties to this treaty.
In view of the facts estahlished above, which are conclusive, and of the
statements made at the hearing hy the representatives of the applicant
Powers, rvho left the matter to the decision of the Court.
the Court recordsthat the Polish Government intends to avail itself <ifthe
right to intervene conferred upon it hy Article63of the Statute." (Judgnients,
op. cit., p. 13.)
The use of "records" here rather than "decides" emphasizes that acceptance of
the intervention follows necessarily from a determination that the factual con-
ditions are met; the latter .are, in the words of the Judgment, "conclusive".
Similarly, as discussed helow, this Court in Ifaya de la Torrebased its decision
on the finding that "the intervention of the Government of Cuba conformed to
the conditions of Article 63 of the Statute . .."(op.cil., p. 77).
The facts supporting El Salvador's right to intervene are clear. El Salvador is
a party to the Charter of the United Nations, including the Statute of the Court.
The Charter, including the Statute, are conventions and as such are subject to
Article 63. (See, cg., Corju Channel Preliminary Objection, Judgment, 1948,
I.C.J. Reports 1947-1948,p. 15,at p. 23 ;Anglo-lranianOil Co., Judgmeni,ICJ.
Reports 1952, p. 93, at p. 96.) Questions of interpretation of the Charter and
Statute are incontestahly at issue in this phase of the case. El Salvador is accor-
dingly entitled to intervene pursuant to Article 63 in this stage of proceedings,
automatically and as of right.
2. El Salvador's lnterventionIs Rehtedlo Questionsof TreatyInterpretafionin
Issuein ThisPhuseof theProceedings
While a State may have the right to intervene in any case concerning the
interpretation of a treaty to which it is a party, the intervention mus1 relate to
the questions of treaty interpretation which are in issue hefore the Court. This
is principally illustrated by the case of Haya de la Torre. In Haya de la Torre,the Government of Cuha filed a Declaration of Inter-
vention, to which it attached a Memorandum constituting, in the view of the
Court, its written observations pursuant to Article 66 (4) of the 1946Ruks of
Court (the predecessor of present Article 86 (1)). The Government of Peru
obiected to the admissibilitv of this intervention. inter alia. on the erounds that
in'substance, Cuba's vie& were related to questions decided an eai;;
judgment and were aimed, in efect, at reconsideration of that iud.me.t.
The Court observed
"that everv intervention is incidental to the Droceedinrs in a case: it follows
that a dedaration filed as an intervention 8nly acquTresthat character, in
law, if it actually relates to the subject-matter of the pending proceedings"
(Haya de la Torre,op. cil., p. 76).
The Court further observed that Cuba's
"Memorandum ... is devoted almost entirely to a discussion of the
questions which the Judgment of Novemher 20th, 1950,had already decided
with the authority of resjudicata, and that, to that extent, it does not satisfy
the conditions of a genuine intervention." (Ibid, p. 77.)
Nonetheless, as Cuba did identify a question of interpretation of a treaty to
which it was a party, which was at issue in the pending proceedings, Cuba's
intervention was admissible to that extent:
"Reduced in this way, and operating within these limits, the intervention
of the Government of Cuha conformed to the conditions of Article 63 of
the Statute ..."
The Court has suhsequently confirmed ils holding in Haya de la Torre:
"In (Haya de la Torre] the Court stressed that, under Article 63, inter-
vention by a party to a convention the construction of which is in issue in
the proceedings is a matter of right. At the same time, however, it also
underlined that the right to intervene under Article 63 is confined to the
point of interpretation which is in issue in the proceedings, and does not
extend to general intervention in the case." (ConfinentaiShelf (Tunisial
Libyan ArabJamahiriya), op. cil., p. 15.)
(See also, e.g., ContinentalShelf (Libyan Arab Jamahiriya/Malla), op. cil., p. 99
(diss. op. Oda).)
The limited scope of intervention under Article 63 is also reflected in the text
of the Article itself, which limits the hinding effect of a judgment on the inter-
vening State. As specifiedhy Article 63 (2), when a State intervenes in proceed-
ings, "the constructiongivenby thejudgment willbe equally hinding upon it" (em-
phasis supplied).
Thus, notwithstanding that a State may have the right to intervene, "(tlhe
intervention mus1 be adequately related to the subject-matter of the current
proceedings" (Fitzmaurice, op. cit., p. 128(emphasis in original)).
In the view of the United States, there is no room for doubt that El Salvador's
intervention is directly related to the subject-matter of the current phase of
proceedings. As stated in its Declaration of Intervention and confirmed hy its
letter of 10 Septemher, El Salvador intends to address certain preliminaw
auestions of treatv inter~retation which soecificallv and exclusive& relate tb
jksdiction and admissibility. It is amply'evident~from the ~ica&uan and
United States pleadings that these questions are in issue in the current stage of WRITTEN OBSERVATlONSON THE OECLARATION OF INTERVI3NTION 471
El Salvador has stated moreover that, while reserving its rights. it seeks at
present to intervene only with respect to the current phase of proceedings. This
Court has already confirmed that intervention may be limited solely Io one or
another stage of proceedings. In Nitclear Tests (New Zeolond v. France). the
Court found tkdt Fiii's reauested intervention under Article 62 "hv its verv
iixtdre prcwpporc\ tlial the C<lurt h.ir ~iirisdictiunt<icii1ert:iin the Ji~putc. .
and lhat 'leu %t'dldnJ'S;ipplic~ti,)nagdinst I'ran~.ein rcspcct of th;il ili\piiic 1s
admir\ible". AccorJin~ly thr.Court dcierr~d consider~tion II\acccptancr. uiitil
after the determination- of jyrisdiction and admissibility. (Nuclear '~ests(New
Zeulund v. Fronce). Application IOIniervene.Orderof23 July 1973.1.C J Reports
1973, p. 324.)
It follows that an intervention may also, by its nature, relate solely Io
jurisdiction and admissibility. For example, the possibility of intervention pursu-
ant to Article 63 solely with respect to questions ofjurisdiction and admissibility
has been recognized by the Court in CorJiuChunnel,lac. cil., and hy Judge
Lauterpacht in CertainNorwegianLoans,Judgment (ICJ Reports1957, p. 9. al
pp. 63-64 (sep. op. Lauterpacht)) and Inlerhandel,lnterim Protection,Order of
24 Oclober1957 (i.C.1 Reporo 1957, p. 105,al p. 120 (sep. op. Lauterpacht)).
It is, accordingly, in the nature of intervention under Article 63 that it could
be limited to one or another stage of proceedings, depending on the questions
of treaty interpretation which form the basis for the right to intervene. Moreover,
the interpretation contended for by the intervening State may itself imply siich a
limitation. This would appear to be the case hcre, since a major purpose of El
Salvador's intervention is to argue that consideration of the merits of the Nica-
raguan Application would be contrary to the Charter of the United Nations,
with serious prejudice to El Salvador's interests and rights.
In sum, the United States respectfully submits its view that El Salvador is
entitled to intervene in this case piirsuant to Article 63 of the Statute of the
Court, as a State party to multilateral conventions whose construction is at issue
in this phase of the case. Further, as we understand the object and scope of El
Salvador's proposed intervention, it is appropriately related and inherently
limited to the current phase of proceedings. Accordingly, the United States secs
no ground for objection to the admissibility of this intervention.
(Signed) Davis R. ROBINSON,
Agent of the United States of America I.FI-l'EH FHO\I 'I'IIE.\C;F.SI'OF KI.S,\l.\'AI)OH 'I'O'I'IIF.HEGISI'HAR
Ok"I'1II~I:\'I'KHSA'I10\;,\1. COCR'I'Ot .IlJSI'ICE
Rome, 17Septemher 1984,
Re: Declaration of Intervention of the Republic of El Salvador.
We refer to the observations submitted hy Nicaragua on the Declaration of
Intervention of El Salvador.
1. Nicaragua purports not to object to the intervention. Indeed, it even
"agrees" to it. If this agreement is taken at face value, then neither of the existing
Parties entertains any objection with respect to El Salvador's participation as an
intervenor under Article 63 of the Statute. In these circumstances il would seem
appropriate that the Court record the intervention forthwith as "automatic".
2. Nicaragua does, however, go on to suggest that the Declaration has certain
deficiencies.
A. The alleged deficicncy of form is frivolous. Nicaragua and the Court are
Sullyon notice of the issues of treaty interpretation regarding jurisdiction and
admissibility. El Salvador's Declaration of Intervention appropriately identifies
those issues and El Salvador's construction. Moreover, El Salvador's 10 Sep-
tember 1984 communication (to which Nicaragua fails to refer) resolves any
conceivable ambiguity hy carefully and particularly identifying the provisions of
the conventions Io which El Salvador is a party whose interpretation is at issue
in this present jurisdictional and admissibility stage of the proceeding, and the
constructions for which it contends.
B. The alleged deficiencyas to substance is equally spurious. Nicaragua sug-
gests that Article 63 intervention is inapposite to the jurisdictional phase of the
proceeding even if conventions to which the intervenor is a party are centrally
at issue in that stage. This makes no practical sense and totally contradicts the
plain meaning of Article 63, which makes no such distinction.
3. Nicaragua refers to Article 85 of the Rules of Court. This is a mistake.
Article 85, by its express tenns, governs only procedures for interventions under
Article 62 of the Statute of the Court. El Salvador intervenes, as a matter of
right, under Article 63. The rule that governs procedure in such cases is Article
86, which provides as follows:
"1. If an intervention under Article 63 of the Statute is admitted, the
intervening State shall be furnished with copies of the pleadings and
documents annexed, and shall be entitled, within a time-limit to be fixedby
the Court, or by the President if the Court is not Sitting, to suhmit ils
written observations on the subject-matter of the intervention.
2. These observations shall be communicated to the parties and to any
other State admitted to intervene. The intervening State shall he entitled, in
the course of the oral proceedings, to submit its observations with respect
to the subject-matter of the intervention."
Ariicle 86 clcarly pruvides thiit El Sal\,adorii cntitlcdtiirr.cci\e the plcading,
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Written Observations on the Declaration of Intervention (Nicaragua, United States of America)