INTERNATIONAL COURT OF füSTICE
WHALING IN THE ANTARCTIC
(A USTRALIA v. JAPAN)
WRJTTEN OBSERVATIONS OF AUSTRALIA ON
THE DECLARATION OF INTERVENTION BY THE
GOVERNMENTOFNEWZEALAND
18 DECEMBER2012
On 20 November 2012, New Zealand, invoking Article 63 of the Statute of the Comt
("the Statute"), filed a Declaration of h1tervention ("the New Zealand Declaration")1 in this
case. By letter of the same date, the Registrar of the Court, acting in accordance with
Aiticle 83 of the Rules of Comt ("the Rules"), forwarded a ce1tified copy of the Declaration
to the Agent of Australia and fixed Friday, 21 December 2012 at 5 p.m. as the time-limit
within which the Governments of Australia and Japan may funùsh their written observations
on the New Zealand Declaration.
2. The observations of the Govemment of Australia on the New Zealand Declaration are
set out below. h1 smmnary, Australia is of the view that the Declaration fulfils the
requirements of Aiticle 63 of the Statute as well as those in the relevant Rules and is
admissible.
3. An intervention under Aiticle 63 of the Statute is an intervention as of right.2
Australia. notes that provided the Court is satisfied that New Zealand has met the conditions
that attach to the exercise of the right of intervention under Article 63 of the Statute and
Aiticle 82 of the Rules, . "the Court is bound to admit the intervention, and has no
discretionary power in the matter ... ".3
The conditions for the application of Aiticle 63
4. The conditions that must be met in order to exercise the right of intervention under
Aiticle 63 of the Statute are those set out in Aiticle 63 itself as well as those in Article 82 of
the Rules. Article 82 of the Rules provides:
1 Declaration of Intervention pursuant ta Article 63 of the Statute of the Court by the Government of
New Zealand, signed by the appointed Agent of the Govemment of New Zealand, Dr Penelope Ridings.
2 Statute of the International Court of Justice, Article 63(2); Haya de la Torre (Colombia/Perz1, Judgment,
I.C.J. Reports 1951, 71, 76; Continental Shelf (I'unisia/Libyan Arab Jamahiriya) Application ta lntervene,
Judgment, I.C.J. Reports 1981, 3, 13, para. 21; Territorial and Maritime Dispute (Nicaragua v. Colombia)
Application by Honduras for Permission ta lntervene, Judgment, 4 May 201 I, para. 35.
3 G Fitzmaurice, "The Law and Procedure of the International Court of Justice, 1951-4: Questions of
Jurisdiction, Competence and Procedure" (1958) 34 British Year Book of lntemational Law 1, 127.
In particular, in addressing Article 63 at page 127, Fitzmaurice states:
Although intervention under this Article is as ofright, provided the conditions stated in it are fulfilled, it
is naturally for the Court to decide whether they are actually satisfied or not ... Thus, it will be for the
Court to say whether the construction of a convention is involved, whether the convention is of the kind
specified, whether the intervening State is a party to it, and so on. Given that these conditions are
present, the Court is bound to admit the intervention, and has no discretionary power in the matter ...
2.
1. A State which desires to avail itself of the right of intervention confened upon it by Article 63
of the Statute shall file a declaration to that effect, signed in the manner provided for in Article 38,
paragraph 3, ofthese Rules. Such a declaration shall be filed as soon as possible, and not later than the
date fixed for the. opening of the oral proceedings. In exceptional circumstances a declaration submitted
at a later stage may however be admitted.
2. The declaràtion shall state the name of an agent. It shall specify the case and the convention
to which it relates and shall contain:
(a) particulars of the basis on which the declarant State considers itselfa party to the convention;
(b) identification bfthe particular provisions of the convention the construction ofwhich it corisiders to
be in question;
(c) a statement of the construction ofthose provisions for which it contends;
(d) a list of the documents in support, which documents shall be attached.
3. Such a declaration 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 refen-ed to in Article 63 of the
Statute.
5. Australia is of the view that the New Zealand Declaration meets all of the
requirements that must be fulfilled in order to exercise a right to intervene under .Aliicle 63 of
the Statute.
6. On the matter of timing ~mder Article 82(1) of the Rules, in Australia's view, a
declaration of intervention under Aliièle 63 is within time if it is filed prior to the opening of
the oral hearings. The New Zealand Declaration was filed "as soon as possible" in addition
to being :filed well before "the opening of oral proceedings".
7. In relation to paragraph 2(b) of Article 82 of the Rules, quite clearly the construction
of the International Convention for the Regulation of Whaling ("the ICRW")4 to which
New Zealand is a party and, in paiiicular Aiiicle VIII of the ICRW, is a key element of the
instant case. There is no doubt that the New Zealand Declaration "actually relates to the
subject-matter of the pending proceedings".5 Indeed, the ICRW is more than "incidentally
engaged or mentioned, but is at issue"6 in the case between Australia and Japan. Therefore,
"there is no reason· why a third State [in this case New Zealand] cannot intervene over the
construction of that provision"7
• Also, in Australia's view, the content and detail of the
statement of construction of those identified provisions contained in the New Zealand
Declai·ation meets the requirements of Article 82(2)( c) of the Rules. In the event that the
Court confirms the right of New Zealand to intervene under Article 63, Australia will make
4 lnternationql Convention/or the Regulation ofWhaling, Washington D.C., 2 December 1946, 161 UNTS 74
~entered into force on 10 November 1948).
Haya de la Torre, (Colombia/Peru), Judgment, I.C.J. Reports 1951, 71, 76.
6 Milita,y and Parami/ita,y Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration of Intervention of the Republic of El Salvador, Order, I.C.J. Reports 1984, 215,239
(Dissenting Opinion of Judge Schwebel).
7 Ibid - words in square brackets inserted by Australia.
3.
its observations on the substance of the construction of the ICRW contended by New Zealand
in the comse of the oral hearings on the merits following receipt of any written observations
made by New Zealand under Article 86 of the Rules.8
Stah1s of New Zealand as an intervener
8. These observations address one other matter raised in the New Zealand Declarationthat
is, the status of New Zealand as an intervener assum.ing the admissibility of its
intervention is . confirmed by the. Court. hl its Declaration of Intervention, New Zealand
emphasises that it does not seek to be a party to the proceedings.9 Australia takes due notice
of this aspect.
9. In its own tenns, the New Zealand Declaration is con:fined to a point of interpretation
which is in issue fa the proceedings. and does not extend to general intervention in the case. 10
It is plain that New Zealand is not intending "to malce excursions into other aspects"II of the
dispute between Australia and Japan. Given the limited reach· and consequences of an
intervention under Article 63, the intervening State cannot and should not be deemed to be a
party.12
8 The letter of the Agent of Japan to the Court dated 10 October 2012 asserts that "New Zealand's further
observations may serve as something similar in essence to the second "round [of] written pleadings of the
Applicant". This asse1tion is both presumptuous and wrong. Australia is a sovereign Party before the Court and
will make its own arguments. Also, as noted in paragraph 9 of the text below, the New Zealand Declaration
under Article 63 of the Statute is confined to a point of interpretation.·
9 New Zealand Declaration, paras. 9 and 35.
10 New Zealand Declaration, para. 7.
11 Land, Island and Màritime F1:dntier Dispute (El Salvador/Honduras), Application by Nicaragua/or
Permission to Intervene, Judgment, J.C.J. Reports 1990, 92,116, para. 58.
12 This is confirmed in the Separate Opinion of Judge Oda in Continental Shelf (Tunisia/Libyan Arab
Jamahiriya), Application by Malta for Permission to Intervene, J.C.J. Reports 1981, 3, 28, para. 11:
In the application of Article 63, no jurisdictional link is apparently required between the intervening State
and the original litigant States. The third State may participate in the case, but not "as a party" on an
equal footing with the original Iitigant States because the object of the intervention is not necessarily
connected with the claims of the original parties. The third party participates, but not as a plaintiff or
defendant or even an independent claimant.
See also C Chinkin, Commentary to Article 63 in A Zirnmerman, C Tomuschat, K Oellers-Frahm (Eds),
The Statute of the International Court of Justice: A Commenta1y (OUP, 2006) 1385.
4.
Conclusion
10. It is the view of Australia that the Declaration of Intervention filed by New Zealand
. pursuant to Alticle 63 of the Statute of the Comt is admissible.
&il#.~
WMCampbell
Agent of Australia
18 December 2012
5.
Written observations of Australia on the Declaration of Intervention by New Zealand