                    14

                                            SEPARATE OPINION
                                       OF JUDGE CANÇADO TRINDADE

                                                  table of contents

                                                                                Paragraphs
                         I. Introduction                                                      1-3
                      II. New Zealand’s Declaration of Intervention                         4-11
                     III. Written Observations of Australia and Japan on New
                          Zealand’s Declaration of Intervention                            12-18
                     IV. Comments of New Zealand on Japan’s Written Observa-
                         tions19-20
                         V. Beyond State Consent                                           21-23
                     VI. Discretionary Intervention and Intervention as of Right           24-52

                            1. Historical Origins                                           25-34
                            2. Discretionary Intervention (Article 62 of the Court’s Stat-
                               ute)35-37
                            3. Intervention as of Right (Article 63 of the Court’s Statute) 38-40
                            4. Precedents in the Court’s History (PCIJ and ICJ)             41-52
                    VII. Collective Interest and Collective Guarantee                      53-60
                    VIII. The Preventive Dimension                                         61-63
                     IX. The Resurrectio of Intervention in Contemporary Judi-
                         cial Proceedings before the ICJ                                   64-68
                      X. Concluding Observations                                           69-76

                                                           *

                                                  I. Introduction

                       1. I have concurred with my vote to the adoption today, 6 Febru-
                    ary 2013, by the International Court of Justice (ICJ), of the present Order,
                    whereby it declared admissible New Zealand’s Declaration of Interven-
                    tion under Article 63 (2) of the Statute, in the present case concerning
                    Whaling in the Antarctic, opposing Australia to Japan. The present deci-
                    sion just taken by the ICJ today, added to the decision it took one and a

                    15

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                    half years ago (Order of 4 July 2011), granting permission to Greece’s
                    intervention (under Article 62 of the Statute) in the case concerning the
                    Jurisdictional Immunities of the State (Germany v. Italy), constitute two
                    positive steps taken by the Court for the development of the institute of
                    intervention in international legal procedure.
                       2. Intervention under Article 63 and under Article 62 of the Statute
                    rest on two quite distinct grounds, disclosing various interrelated aspects
                    which have not been sufficiently or satisfactorily studied to date. Given
                    the importance that I ascribe to the matters dealt with by the Court in the
                    present Order, and those underlying it, in the case concerning Whaling in
                    the Antarctic, I feel obliged to leave on the records the foundations of my
                    personal position on the matter, in all its aspects. I feel even more com-
                    pelled to do so as, although I have reached the same conclusion as the
                    Court and have voted in favour of the adoption of the present Order, I
                    have done so on the basis of a reasoning which is distinct from that of the
                    Court.
                       3. In the present separate opinion, I shall, accordingly, at first, review
                    all the documents conforming the dossier of the present case, relating to
                    the proceedings before the Court concerning intervention, namely :
                    (a) New Zealand’s Declaration of Intervention (under Article 63) ;
                    (b) written observations of Australia and Japan on New Zealand’s Dec-
                    laration of Intervention ; (c) comments of New Zealand on Japan’s writ-
                    ten observations. I shall then turn to the examination of points of
                    international legal theory which I deem of particular relevance for the
                    consideration of the subject-matter at issue, namely : (a) the position
                    beyond State consent ; (b) discretionary intervention (Article 62 of the
                    Court’s Statute) and intervention as of right (Article 63 of the Court’s
                    Statute) : historical origins, conceptualization, and precedents in the
                    Court’s history (PCIJ and ICJ) ; (c) collective interest and collective
                    guarantee ; (d) the preventive dimension ; and (e) the resurrectio of inter-
                    vention in contemporary judicial proceedings before the ICJ. The path
                    will then be open for the presentation of my concluding observations on
                    the matter.

                                II. New Zealand’s Declaration of Intervention

                      4. In its Declaration of Intervention in the present case on Whaling in
                    the Antarctic, lodged with the Court on 20 November 2012, under
                    Article 63 (2) of its Statute and Article 82 (2) of the Rules of Court,
                    New Zealand relies on the jurisprudence of the Court 1 to claim that the
                    Court has recognized that Article 63 of its Statute confers a right to inter-
                    vene, when the State seeking to intervene confines its intervention to “the
                       1 In its aforementioned Declaration of Intervention, New Zealand refers to the cases

                    of Haya de la Torre (Colombia v. Peru), Judgment, I.C.J. Reports 1951, p. 76 ; and Conti-
                    nental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene,
                    Judgment, I.C.J. Reports 1981, pp. 13 and 15, paras. 21 and 26.

                    16

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                    point of interpretation which is in issue in the proceedings, and does not
                    extend to general intervention in the case” 2. To avail itself of the right of
                    intervention (under Article 63), New Zealand relies on its status as a party
                    to the 1946 International Convention for the Regulation of Whaling
                    (hereinafter “the Convention”).
                       5. New Zealand deems it necessary to intervene in order to place its
                    interpretation of the relevant provisions of the Convention before the
                    Court. It claims that, in relation to the scope of its right to intervene, it
                    presents its views on issues of interpretation relevant to the determination
                    of the case, in particular questions of the construction of the Convention,
                    especially its Article VIII. New Zealand emphasizes that it does not seek
                    to be a party to the proceedings, but it accepts that, in intervening under
                    Article 63, it will be equally bound by the construction given to the
                    Convention by the Judgment of the Court 3.

                       6. New Zealand then goes on to review the relevant provisions of the
                    Convention in the present case. It states that the key legal issue in dispute
                    between Australia and Japan is “the legality of large-scale ‘special permit’
                    whaling under JARPA II [which] is conducted under a special permit
                    issued by the Japanese Government by reference to Article VIII of the
                    Convention” 4. It claims that the construction of Article VIII of the
                    Convention (in particular, its paragraph 1) is directly relevant to the reso-
                    lution of the dispute 5. New Zealand next reviews its construction of the
                    provisions at issue 6. It submits that “parties to the Convention can engage
                    in whaling only in accordance with the provisions of the Convention and
                    its Schedule” 7.

                        7. New Zealand further argues that the Convention provides “a
                    c omprehensive legal regime” whose “central objective” is “to replace uni-
                     lateral State action with an effective system of collective regulation for the

                       2 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to

                    Intervene, Judgment, I.C.J. Reports 1981, p. 15, para. 26.
                       3 Declaration of Intervention, pp. 4‑8, paras. 1‑13. New Zealand further claims that, in

                    accordance with Article 82 (1) of the Rules of Court, its Declaration of Intervention has
                    been filed at the “earliest opportunity reasonably open to New Zealand”. It then reviews
                    the basis for its status as party to the Convention, recalling its instrument of ratification
                    and the notice of its accession to the Convention, on 15 June 1976, with effect as from that
                    date (ibid., pp. 6‑8, paras. 10‑11, 14).
                       4 It refers in this regard to Australia’s Application instituting proceedings, pp. 14, 16,

                    paras. 29 and 35‑37 ; it also refers to the website of the International Whaling Commission,
                    “Recent Special Permits : Japan”.
                       5 Declaration of Intervention, pp. 8‑10, paras. 14‑17.
                       6 It bases its interpretation of the Convention on Articles 31‑32 of the 1969 Vienna

                    Convention on the Law of Treaties.
                       7 In this regard, New Zealand claims that, by becoming parties to the Convention,

                    “Contracting Governments have agreed not to permit their nationals to carry out any
                    whaling activity except in accordance with the provisions of the Convention and its
                    Schedule” ; cf. Declaration of Intervention, pp. 10‑14, paras. 18‑23.

                    17

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                    proper conservation and management of whales” 8. New Zealand claims
                    that States parties to the Convention have a collective interest in scientific
                    research and information, so as to enable the International Whaling
                    Commission (IWC) — the authority to adopt binding regulations “with
                    respect to the conservation and utilization of whale resources” — to per-
                    form its function properly under the Convention 9.

                       8. New Zealand also claims that, according to regulations adopted by
                    the IWC, parties to the Convention are prohibited from engaging in com-
                    mercial whaling, by way of the imposition by the IWC of a zero catch
                    limit. It adds that the killing, taking or treating of whales (other than
                    minke whales) by factory ships is also prohibited and that all commercial
                    whaling is prohibited in the Indian and Southern Oceans. It further sub-
                    mits that such regulations are binding on all parties to the Convention
                    unless they objected to them pursuant to the procedures provided for
                    under Article V (3) of the Convention 10.

                      9. New Zealand argues that parties to the Convention may engage in
                    “special permit” whaling only in accordance with Article VIII, and
                    explains that the killing of whales under special permit is permitted only
                    for the limited purposes of “scientific research”. Thus, the issue of special
                    permits is subject to distinct procedural requirements for notification,
                    prior review and comment, and the reporting of results through the IWC
                    and Scientific Committee. New Zealand contends that “whaling under a
                    special permit issued without meeting the requirements of Article VIII is
                    subject to the other provisions of the Convention and Schedule, including
                    the prohibitions on commercial whaling” 11.

                       10. New Zealand then reviews the requirements of a special permit
                    under Article VIII, and states that whaling for purposes other than scien-
                    tific research is not permitted under Article VIII, even if it involves the
                    collection of scientific data. It adds that the requirement that whaling be
                    for scientific research is an essential element of Article VIII, and that the
                    purpose of scientific research of the whaling programme in question must
                    be established on the basis of an objective assessment. It further contends
                    that, according to Article VIII, the State party concerned must attach
                    “restrictions as to number” and “other conditions” to any special permit
                    issued, and, in setting those restrictions, it must show that it has limited

                         8 Declaration of Intervention, p. 12, para. 21 [emphasis added].
                         9 Ibid., pp. 10‑14, paras. 18‑23.
                         10 Ibid., p. 14, para. 24.
                         11 Ibid., pp. 14‑16, paras. 25‑26.

                    18

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                    the number of whales caught under special permit to the minimum which
                    is both necessary for, and proportionate to, the objectives of the research,
                    and which will have no adverse effect on the conservation of the stock.
                    New Zealand claims that paragraph 30 of the Schedule of the Convention
                    mandates States parties to submit proposed special permits to the Scien-
                    tific Committee and that such obligation gives rise to a duty of meaning-
                    ful co-operation. New Zealand claims that these requirements are reflected
                    in the practice of the IWC and its Committees since the adoption of the
                    Convention 12.

                      11. At the end of its Declaration of Intervention, New Zealand pro-
                    vides the following summary of its interpretation of Article VIII of the
                    Convention :
                          “(a) Article VIII forms an integral part of the system of collective
                               regulation established by the Convention.
                           (b) Parties to the Convention may engage in whaling by special per-
                               mit only in accordance with Article VIII.

                              (c) Article VIII permits the killing of whales under special permit
                                  only if :
                                    i. an objective assessment of the methodology, design and char-
                                       acteristics of the programme demonstrates that the killing is
                                       only ‘for purposes of scientific research’ ; and

                                   ii. the killing is necessary for, and proportionate to, the objec-
                                        tives of that research and will have no adverse effect on the
                                        conservation of stocks ; and
                                  iii. the Contracting Government issuing the special permit has
                                       discharged its duty of meaningful co-operation with the
                                       Scientific Committee and the IWC.
                              (d) Whaling under special permit that does not meet these require-
                                  ments of Article VIII, and not otherwise permitted under the
                                  Convention, is prohibited.” 13

                                 III. Written Observations of Australia and Japan on
                                      New Zealand’s Declaration of Intervention

                      12. In its written observations of 18 December 2012, Australia sustains
                    that New Zealand’s Declaration meets “all of the requirements” under
                    Article 63 of the Statute (para. 5). There is no reason, in its view, why a
                    third State (in this case New Zealand) cannot intervene over the construc-

                         12
                          Declaration of Intervention, pp. 16‑18, paras. 27‑32.
                         13
                          Ibid., p. 18, para. 33. New Zealand submits documents in support of its Declaration
                    of Intervention ; cf. ibid., pp. 18-20, para. 34.

                    19

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                    tion of Article VIII of the International Convention for the Regulation of
                    Whaling, to which New Zealand is a party (para. 7). Furthermore,
                    New Zealand does not seek to be a party to the proceedings (para. 8).
                    New Zealand’s Declaration of Intervention — Australia adds — is spe-
                    cifically focused on a point of interpretation, without extending to “gen-
                    eral intervention” in the case, nor to other aspects of the dispute between
                    Australia and Japan. Given such limited reach of an intervention under
                    Article 63, the intervening State cannot be considered a party (para. 9),
                    Australia concludes, in its support, in this understanding, of New Zea-
                    land’s intervention.
                       13. For its part, on 21 December 2012 Japan filed its written observa-
                    tions on New Zealand’s Declaration of Intervention of 20 November
                    2012 14, wherein it argues that “certain serious anomalies would arise
                    from the admission of New Zealand as an intervenor” considering the
                    context in which the Declaration of Intervention was filed. Japan refers in
                    this regard to the Joint Media Release, issued on 15 December 2010 in the
                    names of the Australian and New Zealand Ministers for Foreign Affairs,
                    announcing that “Australia and New Zealand agree on strategy for whal-
                    ing legal case”. According to Japan, such a statement explains the ratio-
                    nale behind the choice of Article 63 as the basis for New Zealand’s
                    intervention, as it indicates that “New Zealand appears prima facie to
                    fully support Australia’s case” 15.

                       14. Japan then contends that the equality of the parties will be at seri-
                    ous risk if States can pursue a joint case under the rubric of an interven-
                    tion under Article 63, to curtail some of the safeguards of procedural
                    equality under the Statute and the Rules of Court. Japan further argues
                    that the choice of intervention under Article 63 can be interpreted as a
                    strategy to avoid having to prove an “interest of a legal nature that may
                    be affected by the decision in the case”, as required under Article 62,
                    where the circumstances point to such interests and “suggest the taking of
                    carefully orchestrated procedural steps to advance them” 16.

                      15. Japan expresses “serious doubts” on the equality of the Parties in
                    these proceedings before the Court and its “profound discomfort” result-
                    ing from the manner in which New Zealand’s intervention has arisen.
                    Thus “Japan respectfully submits in these circumstances that particular
                    care needs to be taken when the Court decides on the further procedural

                         14Doc. AJ 2012/20, of 21 December 2012.
                         15Written Observations of Japan, paras. 1‑4.
                        16 Japan then refers to Articles 31 (5) of the Statute and Article 36 (1) of the Rules

                    which exclude the possibility of appointing an ad hoc judge when two or more parties are
                    in the same interest and thus should be taken as one party only, which it submits to be the
                    case in the present dispute (ibid., paras. 5‑6).

                    20

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                    steps in this case, in order to ensure the equality of the parties to the dis-
                    pute” ; Japan further claims that this is particularly important in the pres-
                    ent case, where submissions on jurisdiction and on the merits are made
                    together, and only one round of written pleadings has been allowed 17.
                       16. In this regard, Japan first submits that New Zealand’s written
                    observations in accordance with Article 86 of the Rules of Court should
                    not be left without a written response from the original Parties, since in
                    the present circumstances, in its view, the intervenor’s observations would
                    essentially amount to a second round of written pleadings by the Appli-
                    cant. Thus, it reiterates its wish to express its views in writing on New Zea-
                    land’s submission on the “substance” of the intervention, within an
                    appropriate time. Secondly, Japan contends that in the event New Zea-
                    land’s intervention is admitted, the latter should have only one opportu-
                    nity to make oral submissions, after the oral pleadings of Australia, and
                    before that of Japan. Furthermore, Japan contends that, because inter-
                    vention pursuant to Article 63 is confined to “the point of interpretation
                    which is in issue in the proceedings, and does not extend to general inter-
                    vention in the case” 18, the time allocated to New Zealand should be sig-
                    nificantly less than in a case of intervention under Article 62.

                       17. Thirdly, Japan further submits that New Zealand’s intervention (if
                    admitted), “in collaboration with the Applicant”, should not result in
                    “any shortening of the time allocated to the Respondent for the prepara-
                    tion of response to the pleadings by the Applicant and also by the inter-
                    vening State” ; it stresses the need to have adequate time for preparation
                    before the oral proceedings, especially because there has been only one
                    round of written pleadings 19. The main point to be here retained is that,
                    although Japan does not appear to raise a formal and express objection
                    to the admission of New Zealand’s Declaration of Intervention under
                    Article 63 20, it manifests concern mainly with the procedural equality of
                    the Parties in the proceedings.
                       18. On its turn, in its subsequent written observations (original letter
                    of 10 January 2013), Australia refers to what it regards as Japan’s “mis-
                    characterization” (of past events), in its view “wholly irrelevant” to the

                         17Written Observations of Japan, paras. 7‑8.
                         18Japan refers to the case concerning the Continental Shelf (Tunisia/Libyan Arab Jama-
                    hiriya), Application by Malta for Permission to Intervene, Judgment, I.C.J. Reports 1981,
                    p. 15, para. 26.
                        19 Furthermore, Australia has yet to respond to Japan’s objection to jurisdiction

                    (Written Observations of Japan, paras. 9‑11).
                        20 Note in this regard that Article 84 (2) of the Rules of Court provides that :

                                 “If, within the time‑limit fixed under Article 83 of these Rules, an objection is filed
                              to an application for permission to intervene, or to the admissibility of a declaration
                              of intervention, the Court shall hear the State seeking to intervene and the parties
                              before deciding.”

                    21

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                    21 	 whaling in the antarctic (sep. op. cançado trindade)

                    matters flowing from New Zealand’s Declaration of Intervention (p. 1).
                    Australia objects to Japan being provided with additional time (at its own
                    expense) to get prepared, in the course of the forthcoming oral hearings
                    (when Japan’s jurisdictional objections will be dealt with), as a result of
                    the Court’s prior decision not to have a second round of briefs with argu-
                    ments in the written phase (p. 1). Australia adds that New Zealand, as an
                    intervenor, has “a right to be heard” by the Court, and there is no reason
                    for it to be allowed less time (p. 2).

                                         IV. Comments of New Zealand
                                        on Japan’s Written Observations

                       19. Five days ago, New Zealand filed in the Court its letter of 1 Febru-
                    ary 2013, containing its comments on Japan’s written observations
                    (supra). New Zealand indicates that it “does not accept that its interven-
                    tion affects the equality of the Parties” ; as a State party to the Interna-
                    tional Convention for the Regulation of Whaling, it is “exercising its right
                    to intervene in order to place its interpretation of the relevant provisions
                    of the Convention before the Court, as the Statute of the Court [Arti-
                    cle 63] entitles it to do” (p. 1). New Zealand added that the ICJ should
                    not be invited to speculate as to the implications of its intervention for the
                    proceedings before the Court (pp. 1‑2).

                       20. New Zealand further contended that the equality of the parties to
                    the dispute “cannot be imperilled” when a third State exercises its right to
                    intervene — as a non-party — under Article 63 of the Statute. It recalled
                    that the procedural rights of the parties and the intervening State are set
                    out in Article 86 of the Rules of Court, it being for the ICJ to decide on
                    “the extent of procedural rights” of the intervening State (p. 2). New Zea-
                    land then concluded that the right to intervene, under Article 63 of the
                    Statute, is “an integral part” of the framework of operation of the ICJ, as
                    a forum for the settlement of disputes “under multilateral treaties” ; in
                    this context — it added — the exercise by New Zealand of such right of
                    intervention “does not affect the equality of the parties to the dispute”
                    (p. 2).

                                            V. Beyond State Consent

                      21. Having reviewed all the documents conforming the dossier of the
                    present case of relevance for the decision taken today, 6 February 2013,
                    by the Court, I can now move on to the next point of my separate opin-
                    ion. May I, at this stage, observe, as to the consent of the parties in the
                    main case, which is not strictly or formally at issue in the present case —
                    that such consent does not play a role in the proceedings conducive to the

                    22

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                    Court’s decision whether or not to grant intervention. In a joint declara-
                    tion appended to a recent Judgment of the Court (in the case of the
                    Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by
                     Honduras for Permission to Intervene, Judgment, I.C.J. Reports 2011 (II),
                     p. 420), it was pointed out that consent by the parties in the main case 21
                     is irrelevant, and cannot be perceived as a prerequisite for intervention as
                     a non-party 22.
                        22. As master of its own jurisdiction, the Court does not need to keep
                     on searching for State consent in deciding on an Application for permis-
                     sion to intervene in international legal proceedings. And the aforemen-
                     tioned joint declaration added that
                             “In effect, third party intervention under the Statute of the Court
                          transcends individual State consent. What matters is the consent orig-
                          inally expressed by States in becoming parties to the Court’s Statute,
                          or in recognizing the Court’s jurisdiction by other instrumentalities,
                          such as compromissory clauses. (. . .) There is no need for the Court
                          to keep on searching instinctively for individual State consent in the
                          course of the international legal proceedings. After all, the consent of
                          contending States is alien to the institution of intervention (. . .).” 23

                       23. This is so — may I add herein — in respect of interventions under
                    Article 62 as well as Article 63 of the Court’s Statute. In the present case
                    of Whaling in the Antarctic, opposing Australia to Japan, there has been,
                    anyway, no formal objection to New Zealand’s Application for permis-
                    sion to intervene. Nor was there any formal objection to Greece’s recent
                    Application for permission to intervene in the case concerning the Juris-

                       21 In that case, the Court was before an Application for permission to intervene under

                    Article 62 of its Statute, whilst in the present case the Application to that end is under
                    Article 63 of its Statute.
                       22 This is generally acknowledged nowadays ; cf., inter alia, e.g., S. Rosenne, Inter-

                    vention in the International Court of Justice, Dordrecht, Nijhoff, 1993, pp. 79 and 104 ;
                    J. M. Ruda, “Intervention before the International Court of Justice”, Fifty Years of the
                    International Court of Justice — Essays in Honour of R. Jennings (eds. Vaughan Lowe and
                    M. Fitzmaurice), Cambridge University Press, 1996, p. 495 ; K. Mbaye, “L’intérêt pour
                    agir devant la Cour internationale de Justice”, 209 RCADI (1988), pp. 340‑341. And as to
                    jurisdictional links, cf. also, e.g., J. G. Starke, “Locus Standi of a Third State to Intervene
                    in Contentious Proceedings before the International Court of Justice”, 58 Australian Law
                    Journal (1984), p. 358.
                       23 I.C.J. Reports 2011 (II), joint declaration of Judges Cançado Trindade and Yusuf,

                    pp. 469‑470, paras. 14‑15. Earlier on — it may be recalled — the ICJ Chamber itself rightly
                    pointed out, in the Judgment of 1990 in the case concerning the Land, Island and Mari-
                    time Frontier Dispute between El Salvador and Honduras (Application by Nicaragua for
                    permission to intervene), that the competence of the Court, in the particular matter of
                    intervention, “is not like its competence to hear and determine the dispute referred to it,
                    derived from the consent of the parties to the case” (Land, Island and Maritime Frontier
                    Dispute (El Salvador/Honduras), Application by Nicaragua for Permission to Intervene,
                    Judgment, I.C.J. Reports 1990, p. 133, para. 96).

                    23

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                    23 	 whaling in the antarctic (sep. op. cançado trindade)

                    dictional Immunities of the State (Germany v. Italy), wherein the ICJ
                    granted Greece permission to intervene as a non‑party in the case (Order
                    of 4 July 2011). In my separate opinion appended to the Court’s Order on
                    Greece’s intervention in this case, I pondered that

                         “even if there were any such objection, it would have been immaterial
                         for the purpose of the Court’s assessment of the Application at issue
                         for permission to intervene. State consent indeed has its limits ; the
                         ICJ is not always restrained by State consent, in relation not only to
                         intervention, but also in respect of other aspects of the procedure
                         before the Court, as I sought to demonstrate in my extensive dissent-
                         ing opinion (paras. 45‑118, 136‑144 and 156‑214) in the Court’s Judg-
                         ment of 1 April 2011 in the case concerning the Application of the
                         International Convention on the Elimination of All Forms of Racial
                         Discrimination (Georgia v. Russian Federation) (I.C.J. Reports 2011
                         (I), pp. 239‑322) ; the ICJ is not an arbitral tribunal.” (Jurisdictional
                         Immunities of the State (Germany v. Italy), Application by Greece for
                         Permission to Intervene, Order of 4 July 2011, I.C.J. Reports 2011 (II),
                         pp. 508‑509. para. 7.)

                                        VI. Discretionary Intervention
                                         and Intervention as of Right

                       24. One and a half years after the permission granted by the Court to
                    Greece’s intervention in the case concerning the Jurisdictional Immunities
                    of the State (Germany v. Italy), Order of 4 July 2011, the Court has again
                    granted permission to New Zealand’s intervention in the present case
                    Whaling in the Antarctic (Australia v. Japan), Order of 6 February 2013.
                    There is one point of distinction between these two Court decisions, with
                    regard to the typology of interventions under the ICJ Statute : the first
                    decision, of one and a half years ago, concerns discretionary intervention,
                    whilst the decision taken today concerns intervention as of right.

                                                1. Historical Origins
                       25. It is known that, in its origins, the historical antecedents of the
                    institute of intervention in legal proceedings can be found in the old prac-
                    tice of international arbitrations, in the chapter of peaceful settlement of
                    international disputes. Although there were endeavours for the enlarge-
                    ment and enhancement of its domain (infra), and even to render the basis
                    of arbitration permanent, those antecedents of arbitral practice show that
                    arbitration notwithstanding kept its essentially bilateralized outlook, and
                    maintained its focus on the consent of the contending parties. It was
                    necessary to wait for the systematization of the whole chapter of peaceful

                    24

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                    24 	 whaling in the antarctic (sep. op. cançado trindade)

                    settlement of international disputes, encompassing the judicial solution as
                    well (as distinguished from the arbitral solution), for the express provi-
                    sion on intervention to come to the fore and to see the light of day.
                       26. That systematization took place in the course of the two Hague
                    Peace Conferences, in 1899 and 1907, respectively 24. One of the signifi-
                    cant outcomes of the First Hague Peace Conference was the 1899 Con-
                    vention for the Pacific Settlement of International Disputes, Article 56 of
                    which provided that :
                            “The award is binding only on the Parties who concluded the com-
                         promis. When there is a question as to the interpretation of a conven-
                         tion to which Powers other than those in dispute are Parties, the
                         latter notify to the former the compromis they have concluded. Each
                         of these Powers is entitled to intervene in the case. If one or more
                         avail themselves of this right, the interpretation contained in the
                         award is equally binding on them.”

                       27. The draftsmen of this provision had in mind intervention as of
                    right, of the kind of the one which, some years later, found its place in
                    Article 63 of the Statute of the Permanent Court of International Justice
                    (PCIJ) (infra). The Conference Report (Third Commission) on this
                    1899 Convention states that Article 56 derived from a proposal presented
                    by the delegate of the Netherlands (T. M. C. Asser) 25. The matter was
                    retaken, and further worked upon, at the Second Hague Peace Confer-
                    ence of 1907, which, after its revision, adopted the 1907 Convention for
                    the Pacific Settlement of International Disputes, containing a similar pro-
                    vision in the (new) Article 84. The Conference Report (First Commission)
                    on this 1907 Convention comments that former Article 56 “was not mod-
                    ified essentially ; it was only slightly changed in matters of form” 26. In
                    fact, Article 84 of the 1907 Convention provided that :

                            “The award is binding only on the Parties in dispute. When there
                         is a question as to the interpretation of a convention to which Powers
                         other than those in dispute are Parties, the latter inform all the signa-
                         tory Powers in good time. Each of these Powers is entitled to intervene
                         in the case. If one or more avail themselves of this right, the interpre-
                         tation contained in the award is equally binding on them.”

                       24 Earlier on, in 1875, the Institut de droit international had adopted a code for arbitral

                    procedure, one of its first achievements after its establishment in 1873. Later on, in 1877,
                    the Institut adopted a resolution strongly recommending the insertion of compromissory
                    clauses in future treaties.
                       25 Permanent Court of Arbitration (PCA), The Hague Peace Conferences of 1899

                    and 1907 and International Arbitration — Reports and Documents (org. S. Rosenne), The
                    Hague, T. M. C. Asser Press, 2001, p. 74.
                       26 Ibid., p. 265.

                    25

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                    25 	 whaling in the antarctic (sep. op. cançado trindade)

                       28. Once again, the draftsmen of this new and slightly modified provi-
                    sion had in mind intervention as of right, of the kind of the one which
                    later on was enshrined into Article 63 of the PCIJ Statute. By the end of
                    the two Hague Peace Conferences, which set up the basic pattern for
                    forthcoming multilateral conferences, the universal juridical conscience
                    seemed to have captured the idea that international law had to conform a
                    true international system, endowed with obligatory arbitration (even
                    though the Permanent Court of Arbitration had already come into exis-
                    tence on 19 September 1900).
                       29. After all, State voluntarism remained an obstacle to respect for
                    international law and an undue limitation of the rule of law in interna-
                    tional litigation 27. The hope of the creation of a Court of arbitral justice
                    (before the days of a true international tribunal, the PCIJ) was largely
                    prompted by the fears that, in the absence of international justice, States
                    would keep on doing whatever they wished, and the increase in arma-
                    ments (naval and military) would keep on going on 28. There was a pre-
                    monitory reaction, on the part of the lucid jurists of those threatening
                    times, against that state of affairs, and against State voluntarism.

                       30. In fact, the discussions, throughout the work of the two Hague
                    Peace Conferences (of 1899 and 1907), on the future creation of interna-
                    tional courts, engaging renowned jurists of those days (such as, e.g.,
                    T. M. C. Asser, Rui Barbosa, L. Bourgeois, J. H. Choate, F. de Martens,
                    C. E. Descamps, F. Hagerup, F. W. Holls, among others), contained,
                    already at that time, references to : (a) the juridical conscience of peo-
                    ples ; (b) the need of obligatory arbitration ; (c) the needed establishment
                    or constitution of permanent tribunals ; (d) the determination of funda-
                    mental rules of procedure ; (e) the access of individuals to international
                    justice ; (f) the development of an international jurisprudence ; and
                    (g) the progressive development of international law 29. This — as I can
                    perceive it — showed the awareness, of the importance of such issues,
                    already present in the minds of jurists of that time.
                       31. At the Second Hague Peace Conference, the topic of compulsory
                    arbitration was extensively discussed, on the basis of five propositions
                    (tabled by Brazil, Portugal, Serbia, Sweden and the United States, respec-
                    tively) ; the very fact that the Second Hague Peace Conference took place
                    marked an epoch in the development of international law 30. As aptly
                    remarked by James Brown Scott in those days, the holding of that Con-
                    ference demonstrated “the oneness of mankind”, having “brought nations

                       27 J. Allain, A Century of International Adjudication : The Rule of Law and Its Limits,

                    The Hague, T. M. C. Asser Press, 2000, pp. 2 and 7, and cf. pp. 15 and 18.
                       28 Cf. PCA, The Hague Peace Conferences of 1899 and 1907 and International Arbitra-

                    tion . . ., op. cit. supra note 25, pp. xvii‑xix, 9 and 179.
                       29 W. I. Hull, The Two Hague Conferences and Their Contributions to International Law,

                    Boston, International School of Peace/Ginn & Co., 1908, pp. 370‑448.
                       30 J. Brown Scott, The Hague Peace Conferences of 1899 and 1907, Vol. I, Baltimore,

                    Johns Hopkins Press, 1909, pp. 335 and 738.

                    26

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                    26 	 whaling in the antarctic (sep. op. cançado trindade)

                    together as never before” ; yet, it left unfinished the task of the establish-
                    ment of “an international and permanent judiciary” 31.

                       32. The projected Third Hague Peace Conference was never convened,
                    and the disaster of the following years left scars that were not healed for
                    generations, as stressed by some of the greatest thinkers and writers of the
                    twentieth century (which is not my intention herein to recall, within the
                    confines of this separate opinion). But the lessons left mainly by the Sec-
                    ond Hague Peace Conference 32 were duly captured by the draftsmen of
                    the Statute of the PCIJ (and later of the ICJ). Some of the participants of
                    the Second Hague Peace Conference had the intuition of the need of
                    international tribunals, to relieve the world in knowing that it would
                    enter an “orderly process”, given the fact that “the development of inter-
                    national law only proceeds step by step very gradually” 33.
                       33. Before turning to the work undertaken by the Advisory Committee
                    of Jurists, entrusted by the League of Nations with the task of drafting
                    (in 1920) the Statute of the PCIJ, may I just point out that the work of the
                    two Hague Peace Conferences was lately reassessed in the centennial com-
                    memorations of the two of them 34. The centennial work on the second of
                    these contains two contributions on the endeavours towards the universal-
                    ization of international law by means of securing the presence, in a multi-
                    lateral conference such as the Second Hague Peace Conference, not only of
                    great powers, but also of other participating States of the whole of
                    Latin America and of Asia 35. They provide an overview of the historical
                    context within which the discussions on the matter at issue were conducted.

                        31 J. Brown Scott, The Hague Peace Conferences of 1899 and 1907, op. cit. supra

                    note 30, pp. 739 and 751. By the end of the Second Hague Peace Conference, the foun-
                    dations seemed to have been established for further development of international law,
                    striving for compulsory arbitration, the establishment of the judicial settlement of interna-
                    tional disputes, and the limitation or reduction of armaments ; R. Ferreira de Mello (org.),
                    Textos de Direito Internacional e de História Diplomática de 1815 a 1949, Rio de Janeiro,
                    Edit. A. Coelho Branco, 1950, pp. 65, 115 and 117.
                        32 Unlike the First Hague Peace Conference (with 26 participating States, mainly Euro-

                    pean), the Second Hague Peace Conference counted on participating States from distinct
                    continents and parts of the world (a total of 44), having been the first of the kind in world
                    diplomatic history.
                        33 J. H. Choate, The Two Hague Conferences, Princeton/London/Oxford, Princeton

                    University Press/H. Frowde/Oxford University Press, 1913, pp. 58 and 87, and cf. pp. 6‑7,
                    10, 19, 32‑33, 42, 51, 57, 61 and 91.
                        34 Cf. [Various authors,] The Centennial of the First International Peace Conference —

                    Reports and Conclusions [1999] (ed. F. Kalshoven), The Hague, UNITAR/Kluwer, 2000,
                    pp. 1‑515 ; [Various authors,] Actualité de la conférence de La Haye de 1907, deuxième
                    conférence de la paix/Topicality of the 1907 Hague Conference, the Second Peace Confer-
                    ence [2007] (ed. Y. Daudet), The Hague/Leiden, Hague Academy of International Law/
                    Nijhoff, 2008, pp. 1‑490.
                        35 Cf. A. A. Cançado Trindade, “The Presence and Participation of Latin America

                    at the Second Hague Peace Conference of 1907”, Actualité de la conférence de La Haye
                    de 1907, deuxième conférence de la paix…, op. cit. supra note 34, pp. 51‑84 ; S. Murase,
                    “The Presence of Asia at the 1907 Hague Conference”, ibid., pp. 85‑101.

                    27

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                    27 	 whaling in the antarctic (sep. op. cançado trindade)

                       34. The following moment to address, in the identification of the his-
                    torical origins and shaping of the concept of intervention in legal pro-
                    ceedings, is that of the work, in mid‑1920, of the Advisory Committee of
                    Jurists, appointed by the League of Nations to draft the Statute of the old
                    PCIJ. By then, not only was the way paved for further thinking on com-
                    pulsory jurisdiction 36, but also, significantly, with the advent of the judi-
                    cial settlement of disputes at world level 37, the concept of intervention
                    fully bloomed. With the advent of the PCIJ (followed over two decades
                    later by the ICJ), two kinds of intervention were envisaged (cf. infra), and
                    enshrined into Articles 62 and 63 of the Hague Court’s Statute, respec-
                    tively. Intervention, under the two provisions, was to seek to overcome
                    the bilateralization of the controversy at stake, thus widening dispute-
                    settlement 38, when it could be of direct interest or concern to other States.

                          2. Discretionary Intervention (Article 62 of the Court’s Statute)
                      35. The Advisory Committee of Jurists nominated by the League of
                    Nations, which drafted the Statute of the PCIJ, at the end of its work
                    (which lasted from 16 June to 24 July 1920), deemed it fit to include
                    therein two provisions, Articles 62 and 63, on two kinds of intervention
                    in legal proceedings. Article 62 of the Statute of the ICJ (derived from
                    that of the PCIJ), as adopted by that Committee, set forth that :
                         “1. Should a State consider that it has an interest of a legal nature,
                             which may be affected by the decision in the case, it may submit
                             a request to the Court to be permitted to intervene.
                          2. It will be for the Court to decide upon this request.” 39
                       36. This was discretionary intervention, distinct from the aforemen-
                    tioned antecedents (supra). It was a formula proposed by the Commit-
                    tee’s President (Baron E. Descamps). On the occasion, it was decided that

                       36 Cf., e.g., inter alia, B. C. J. Loder, “The Permanent Court of International Justice

                    and Compulsory Jurisdiction”, 2 British Yearbook of International Law (1921‑1922),
                    pp. 6‑26 ; M. O. Hudson, The Permanent Court of International Justice — 1920‑1942, N.Y.,
                    MacMillan & Co., 1943, pp. 189‑193 ; E. Hambro, “Some Observations on the Compul-
                    sory Jurisdiction of the International Court of Justice”, 25 British Yearbook of Interna-
                    tional Law (1948), pp. 133‑157 ; and cf., later on, e.g., inter alia, C. W. Jenks, The Prospects
                    of International Adjudication, London/N.Y., Stevens/Oceana, 1964, pp. 101, 110, 113‑117,
                    757, 760‑762 and 770 ; R. Szafarz, The Compulsory Jurisdiction of the International Court
                    of Justice, Dordrecht, Nijhoff, 1993, pp. 31‑32, 48, 83, 86, 90 and 94‑95.
                       37 It may be here recalled that the first modern international tribunal, in operation for

                    one decade (1907‑1917) in Latin America, was the Central American Court of Justice,
                    which historically preceded the PCIJ.
                       38 Cf., e.g., G. Morelli, “Note sull’Intervento nel Processo Internazionale”, 65 Rivista di

                    Diritto Internazionale (1982), pp. 805‑806, 808, 811 and 814.
                       39 League of Nations/PCIJ — Advisory Committee of Jurists, Procès‑verbaux des

                    séances du comité avec annexes/Procès-verbaux of the Proceedings of the Committee with
                    Annexes (16 June‑24 July 1920), The Hague, Van Langenhuysen Brothers, 1920, p. 594.

                    28

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                    28 	 whaling in the antarctic (sep. op. cançado trindade)

                    it “would be a separate article”, and that it “would be inserted before the
                    original Article 23” 40, which provided for intervention as of right (infra).
                    Article 62 of the Statute of the PCIJ/ICJ requires a legal standard for
                    intervention which is distinct from that of Article 63 : according to Arti-
                    cle 62, the State seeking to intervene must consider that “it has an interest
                    of a legal nature which may be affected by the decision in the case”, and
                    the Court has the discretion to decide upon this request. We are, thus,
                    here before discretionary intervention.
                       37. Requests for permission to intervene lodged with this Court in dis-
                    tinct cases in recent years, unlike the cas d’espèce, have been formulated on
                    the basis of Article 62 of the Statute. Article 62 is not the formula drawn
                    from the two Conventions for the Pacific Settlement of International Dis-
                    putes (of 1899 and 1907), adopted by the First and Second Hague Peace
                    Conferences, respectively 41. The scope of Article 62 is stricter than that of
                    Article 63, in that the permission for intervention will depend on the exer-
                    cise by the Court of its discretion, its decision being taken in the light of
                    the particular circumstances of each case. This kind of discretionary inter-
                    vention is drawn from that provided for in the domestic legal system of
                    several States 42, i.e., in comparative domestic law.

                           3. Intervention as of Right (Article 63 of the Court’s Statute)
                       38. In the present case, however, New Zealand’s Declaration of Inter-
                    vention is grounded on Article 63 of the Statute of the ICJ, which pro-
                    vides, for its part, that a State party to a Convention which the Court is
                    requested to interpret has a “right to intervene in the proceedings”. We
                    are no longer before discretionary intervention (supra), but rather before
                    intervention as of right. The Court has clarified that this “right” concerns
                    intervention on “the point of interpretation which is in issue in the pro-
                    ceedings”. We are here before intervention as of right. Article 63 of the
                    Statute of the ICJ (derived from that of the PCIJ, as originally adopted
                    by the Advisory Committee of Jurists in 1920) 43, 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 all such States forthwith.
                          2. Every State so notified has the right to intervene in the proceed-
                             ings ; but if it uses this right, the construction given by the judg-
                             ment will be equally binding upon it.”
                       40 League of Nations/PCIJ — Advisory Committee of Jurists, Procès‑verbaux des

                    séances du comité avec annexes…, op. cit. supra note 39, p. 594.
                       41 Shigeru Oda, “Intervention in the International Court of Justice — Articles 62 and 63

                    of the Statute”, Völkerrecht als Rechtsordnung Internationale Gerichtsbarkeit Menschen-
                    rechte – Festschrift für H. Mosler (eds. R. Bernhard et alii), Berlin/Heidelberg, 1983, p. 644.

                       42 Ibid., pp. 640‑641 and 647.
                       43 Cf. League of Nations/PCIJ — Advisory Committee of Jurists, Procès‑verbaux des

                    séances du comité avec annexes…, op. cit. supra note 39, p. 594.

                    29

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                    29 	 whaling in the antarctic (sep. op. cançado trindade)

                       39. It is relevant to keep this distinction in mind, for the purposes of
                    the consideration of the present Declaration of Intervention. It is to be
                    noted that New Zealand does not seek to be a party in the proceedings of
                    the cas d’espèce, and that, in accordance with Article 63 (2) of the Court’s
                    Statute, by availing itself of its right to intervene, it accepts that the con-
                    struction to be given by the forthcoming Judgment [as to the merits] in
                    the present case will be binding upon itself. Furthermore, it seems that
                    New Zealand’s intention to intervene pertains to issues of interpretation
                    of the Convention at issue, which appears to be in line with the text of
                    Article 63 (2) of the Statute. I shall turn to this issue later on, in this
                    separate opinion.
                       40. At this stage, may I observe that, throughout the years, the point
                    has been made, in expert writing, that the use of intervention under Arti-
                    cle 63 of the Statute has been rather infrequent, but this does not mean
                    that it would or should remain so, as all States parties to multilateral
                    treaties are committed to contribute to their proper interpretation 44. If
                    such interventions increased, uncertainties could diminish, as the ICJ
                    could have more occasions to clarify the application and scope of Arti-
                    cle 63 45. In one of the earlier studies on the subject, Edvard Hambro
                    wrote sympathetically in favour of “an extensive use of Article 63”,
                    acknowledging the needed “teleological interpretation” of certain multi-
                    lateral treaties, to enable the parties to defend the rights that such treaties
                    purported to protect. In any case — he added — Article 63 “has widened
                    the jurisdiction” of the Court, as States which are parties to the Conven-
                    tions at issue “must be deemed to have a right to intervene” thereunder,
                    even if the last word as to whether there is room for a possible interven-
                    tion belongs ultimately to the Court 46.

                                           4. Precedents in the Court’s History
                                                    (PCIJ and ICJ)
                       41. This would be a proper point to turn attention to the precedents on
                    the matter at issue, in the history of the Hague Court (PCIJ and ICJ). The
                    sole legacy of the old PCIJ, on the matter at issue, lies in its Judgment (on
                    Poland’s request for intervention) of 28 June 1923 in the case of the vessel
                    S.S. “Wimbledon”, wherein the PCIJ accepted Poland’s intervention
                    under Article 63 of its Statute. The Court at first compared the two dis-
                    tinct kinds of intervention, i.e., intervention under Article 62 of the

                        44 E. Hambro, op. cit. infra note 46, pp. 389 and 400 ; C. Chinkin, “Article 63”, The

                    Statute of the International Court of Justice — A Commentary (eds. A. Zimmermann et
                    alii), 2nd ed., Oxford University Press, 2012, pp. 1595 and 1597.
                        45 C. Chinkin, op. cit. supra note 44, p. 1582.
                        46 E. Hambro, “Intervention under Article 63 of the Statute of the International Court

                    of Justice”, Il Processo Internazionale — Studi in Onore di G. Morelli, Comunicazioni e
                    Studi (1975), Vol. 14, pp. 400, 391, 397 and 399.

                    30

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                    30 	 whaling in the antarctic (sep. op. cançado trindade)

                     tatute, based on the existence of an interest of a legal nature on the part
                    S
                    of the intervening party, and the right to intervene under Article 63, per-
                    taining to the interpretation of an international (multilateral) convention.
                    The PCIJ then recalled the object of the Application instituting proceed-
                    ings in the case at issue, and its task to decide whether German authori-
                    ties were within their rights in refusing to the vessel S.S. “Wimbledon”
                    free access to the Kiel Canal and, if necessary, to determine the damages
                    due for the prejudice caused to that vessel.
                       42. The PCIJ then recalled that Poland had requested, in its Note
                    of 22 May 1923, permission to intervene on the basis of Article 62 of the
                    Statute 47, and explained that, although Article 63 had not been expressly
                    referred to in Poland’s Note, the latter cited Poland’s participation in the
                    Treaty of Versailles, and, more specifically, the violation of the rights and
                    interests guaranteed to Poland under Article 380 of that Treaty. The PCIJ
                    then noted that, from a further communication by the Agent of Poland,
                    it appeared that Poland would have adopted the right conferred upon it
                    by Article 63, as a party to the Treaty of Versailles.
                       43. As Poland’s Agent did not insist on its request for intervention
                    under Article 62, and further indicated that it did not intend to ask for
                    compensation from Germany, the PCIJ thus found it unnecessary to con-
                    sider Poland’s request for intervention under Article 62. The PCIJ added
                    that, as Poland intended to avail itself of the right to intervene under Arti-
                    cle 63, the case at issue thus involved the interpretation of certain clauses
                    of the Treaty of Versailles, to which Poland was one of the States Parties ;
                    the PCIJ, accordingly, accepted the request for intervention by Poland.

                       44. As for the ICJ, the first case it dealt with a Declaration of Interven-
                    tion under Article 63 of its Statute was in a Latin American case. In its
                    Judgment of 13 June 1951 in the case of Haya de la Torre (Colombia v.
                    Peru) 48, pertaining to the admissibility of Cuba’s intervention under Arti-
                    cle 63 of the Statute and questions on the merits of the case, the ICJ started
                    by recalling that Cuba, in availing itself of the right which the Statute
                    confers on States parties to a convention, the interpretation of which is in
                    issue, filed a Declaration of Intervention under Article 63 of the Statute
                    concerning the construction of the Havana Convention on Asylum
                    of 20 February 1928, and its general attitude regarding asylum. The Court
                    also recalled that, while Colombia did not object to the intervention, Peru
                    requested the Court to decide that the intervention was inadmissible, as it
                    was, in its view, an attempt by a third State to appeal against the previous
                    Judgment of the ICJ of 20 November 1950 in the cas d’espèce 49.

                       47 On the side of the four applicant States in the main case, namely, United Kingdom,

                    France, Italy and Japan. The PCIJ’s judgment as to the merits of the case at issue was
                    delivered on 17 August 1923.
                       48 Haya de la Torre (Colombia v. Peru), Judgment, I.C.J. Reports 1951, p. 71.
                       49 Ibid., pp. 74‑76.

                    31

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                    31 	 whaling in the antarctic (sep. op. cançado trindade)

                       45. Against this background, the Court first observed that every inter-
                    vention is incidental to the proceedings in a given case and thus a declara-
                    tion filed as an intervention only acquires that character in the event that
                    it actually relates to the subject-matter of the pending proceedings. The
                    Court stated that the subject‑matter of the case at issue was different from
                    that of the case terminated by the Judgment of 20 November 1950, as it
                    concerned the surrender of Haya de la Torre to the Peruvian authorities,
                    a question which was outside the submission of the Parties in the previous
                    case, and was thus not decided in the previous Judgment.

                       46. The Court was thus of the view that, under these circumstances, the
                    question before itself was whether the object of Cuba’s intervention was
                    indeed the interpretation of the Havana Convention in connection with the
                    question whether Colombia is under an obligation to surrender the indi-
                    vidual concerned to Peru. The Court noted that, during the public hearing,
                    Cuba explained that its intervention was based on the fact that the Court
                    had to interpret a new aspect of the Havana Convention, which had not
                    been considered in the previous Judgment of 20 November 1950. This
                    being so, the Court decided, on 16 May 1951, that, within these limits,
                    Cuba’s purported intervention was in conformity with the conditions of
                    Article 63 of the Statute, and thus admitted the intervention on this basis 50.
                       47. In this Latin American case, the célèbre Haya de la Torre case,
                    Cuba’s request for intervention (under Article 63) was successful, in the
                    terms of the Court’s decision. The two subsequent cases of interventions
                    under Article 63 of the ICJ Statute did not have the same outcome ; in
                    both of them the requests for intervention were dismissed as inadmissible.
                    Such precedents (before the recent Germany v. Italy case (2012) and the
                    present case opposing Australia to Japan) were the case of Military and
                    Paramilitary Activities in and against Nicaragua (Nicaragua v.
                    United States of America) (I.C.J. Reports 1984, p. 392) and the Nuclear
                    Tests (New Zealand v. France) case (I.C.J. Reports 1995, p. 288).

                       48. In the case of Military and Paramilitary Activities in and against
                    Nicaragua (Nicaragua v. United States of America) (Order of 4 October
                    1984), El Salvador filed a Declaration of Intervention under Article 63 of
                    the Statute, citing various multilateral conventions to which it was a party
                    and on the basis of which Nicaragua’s jurisdictional and substantive
                    claims were based ; El Salvador argued that its intervention had the “sole
                    and limited purpose” of claiming that the Court did not have jurisdiction
                    to hear Nicaragua’s Application (pp. 1‑2). The Court decided that the
                    Declaration of Intervention of El Salvador was inadmissible “inasmuch
                    as it relates to the current phase of the proceedings” (p. 216). The decision
                    was surrounded by much discussion among the judges, as can be inferred
                    from the various individual opinions they filed ; there was no doubt, how-
                         50   Haya de la Torre (Colombia v. Peru), Judgment, I.C.J. Reports 1951, pp. 76‑77.

                    32

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                    32 	 whaling in the antarctic (sep. op. cançado trindade)

                    ever, that it is for the Court to decide in each case whether the conditions
                    for intervention are fulfilled.

                       49. In the other precedent, that of the Nuclear Tests case (New Zealand
                    v. France), the Court dealt with the “Request for an Examination of the
                    Situation” in accordance with paragraph 63 of the Court’s prior Judgment
                    of 20 December 1974 in the Nuclear Tests case, opposing New Zealand to
                    France. In its Order of 22 September 1995, the Court decided that such
                    “Request for an Examination of the Situation” did not fall within the pro-
                    visions of the said paragraph 63 and must thus be dismissed. Consequently,
                    as to the Applications for permission to intervene (Article 62) of Australia,
                    Samoa, Solomon Islands, the Marshall Islands and the Federated States
                    of Micronesia, as well as the Declarations of Intervention (Article 63)
                    made by the latter four States, since they were all proceedings incidental to
                    New Zealand’s main request, they had likewise to be dismissed.
                       50. This Order of the Court was likewise surrounded by much discus-
                    sion, as can be inferred from the various individual (separate and dissent-
                    ing) opinions filed by some of the Judges. There were, in that case,
                    Applications for permission to intervene under Article 62, and Declara-
                    tions of Intervention under Article 63 of the Statute ; pursuant to a rather
                    formalistic outlook, the Court’s majority dismissed them, despite the
                    importance and seriousness of the matter at issue, concerning the protec-
                    tion of the environment against the danger of radioactive contamination
                    in the South Pacific region, to the benefit of the Polynesian, Melanesian
                    and Micronesian peoples.
                       51. There is, thus, in my perception, a case for a more proactive atti-
                    tude of the ICJ towards intervention, on the distinct grounds of Article 63
                    as well as Article 62 of its Statute. One and a half years ago the ICJ
                    rightly granted intervention to Greece under Article 62, in the case con-
                    cerning the Jurisdictional Immunities of the State (cf. supra), and now it
                    has rightly granted it to New Zealand under Article 63, in the present case
                    of the Whaling in the Antarctic. In another recent case wherein it was like-
                    wise requested (under Article 62), but not granted, concern was expressed,
                    within the Court, as to the need to keep such a proactive attitude as to the
                                                                         roceedings 51.
                    institute of intervention in international judicial p
                       52. In my separate opinion appended to the Court’s Order of 4 July
                    2011, in the case concerning the Jurisdictional Immunities of the State
                    (Germany v. Italy), whereby it granted intervention to Greece (under
                    Article 62 of its Statute), I deemed it fit to observe that
                            “Twice before, permission to intervene was granted by the ICJ : by
                         its Chamber, in the case concerning the Land, Island and Maritime
                         Frontier Dispute between El Salvador and Honduras (Application by

                       51 Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by Costa Rica

                    for Permission to Intervene, Judgment, I.C.J. Reports 2011 (II), joint dissenting opinion by
                    Judges Cançado Trindade and Yusuf, pp. 401‑413, paras. 1‑29.

                    33

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                    33 	 whaling in the antarctic (sep. op. cançado trindade)

                         Nicaragua for permission to intervene, Judgment of 13 September
                         1990) (I.C.J. Reports 1990, p. 92) and by the full Court itself, in the
                         case concerning the Land and Maritime Boundary between Cameroon
                         and Nigeria, wherein, by its Order of 21 October 1999 (I.C.J. Reports
                         1999 (II), p. 1029), it authorized Equatorial Guinea to intervene.
                         Both cases concerned land and maritime boundaries. This time, with
                         the Order it adopts today, 4 July 2011, the ICJ grants to Greece per-
                         mission to intervene in the case concerning the Jurisdictional Immu-
                         nities of the State, a domain of great importance in and for the
                         development of contemporary international law. The Court has so
                         decided at the height of its responsibilities as the principal judicial
                         organ of the United Nations (Article 92 of the UN Charter).

                              Unlike land and maritime delimitation cases, or other cases
                         c oncerning predominantly bilateralized issues, the present case is of
                          interest to third States — such as Greece, other than the two contend-
                          ing Parties before the Court. The subject-matter is closely related to
                          the evolution of international law itself in our times, being of rele-
                          vance, ultimately, to all States, to the international community as a
                          whole, and, in my perception, pointing towards an evolution into a
                          true universal international law.
                          �����������������������������������������������������������������������������������������������������������������
                              By granting to Greece permission to intervene, the present Order
                          of the Court gives a proper expression to the principle of the la bonne
                          administration de la justice in the context of the cas d’espèce.”
                          (I.C.J. Reports 2011 (II), pp. 529‑530, paras. 57‑59 and cf. infra.)

                               VII. Collective Interest and Collective Guarantee

                       53. This leads me to my next point of consideration in the present sep-
                    arate opinion. As I have already pointed out, consent of the parties in the
                    main case does not play a role in proceedings conducive to the Court’s
                    decision (under Article 63 or else under Article 62 of its Statute) whether
                    or not to grant intervention ; the Court is master of its own jurisdiction,
                    and one is here beyond State consent (Part V, supra). I have furthermore
                    pondered, earlier on, that States parties to multilateral treaties are com-
                    mitted to contribute to their proper interpretation (para. 27, supra). This
                    is, in my perception, even more compelling when such treaties embody
                    matters of collective interest, and are endowed with collective guarantee of
                    the observance of the obligations contracted by the States parties.

                       54. In any case, in my understanding, the nature of the treaty at issue
                    is to be kept in mind. Furthermore, one is also to keep in mind the ele-
                    ments which compose the general rule of interpretation of treaties, formu-
                    lated in Article 31 of the two Vienna Conventions on the Law of Treaties

                    34

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                    34 	 whaling in the antarctic (sep. op. cançado trindade)

                    (of 1969 and 1986) — namely, good faith, text, context, and object and
                    purpose of the treaty ; they are the ones that most often mark presence in
                    treaty interpretation 52. Underlying the general rule set forth in Arti-
                    cle 31 (1) of the two aforementioned Vienna Conventions lies the princi-
                    ple ut res magis valeat quam pereat, widely supported in case law, and
                    which corresponds to the so-called effet utile (at times referred to as prin-
                    ciple of effectiveness), whereby one is to secure to the conventional provi-
                    sions their proper effects 53.

                       55. The evolution of international law itself can have an effect upon
                    the interpretation of the treaty at issue. The object and purpose of a
                    treaty can be given precision, and be developed, by the parties themselves
                    (as in classic treaties) under the effect of certain precepts of law, or else by
                    organs of international supervision established by the treaties themselves
                    (in distinct domains of protection). When it comes to protection (of the
                    human person, of the environment, or of matters of general interest), the
                    principle of effet utile assumes particular importance in the determination
                    of the (enlarged) scope of the conventional obligations of protection.
                       56. The corresponding obligations of the States parties assume an
                    essentially objective character : they are implemented collectively, singling
                    out the predominance of considerations of general interest (or even ordre
                    public), transcending the individual interests of States parties. The nature
                    of treaties addressing matters of general or common interest and counting
                    on collective guarantee (by States parties) for their implementation has an
                    incidence on their process of interpretation. And it could not be other-
                    wise.
                       57. There is no space, under treaties of the kind, for unilateral State
                    action, or even for bilateral reciprocal concessions : States parties to such
                    treaties are bound by the contracted obligations to seek jointly the real-
                    ization or fulfilment of the object and purpose of the treaties at issue.
                    State parties are bound by positive obligations enshrined therein. The pre-
                    ambles themselves of treaties of the kind contain important elements for
                    their interpretation, to be necessarily taken into account.

                       52 Cf., generally, e.g., Maarten Bos, “Theory and Practice of Treaty Interpretation”,

                    27 Netherlands International Law Review (1980), pp. 3‑38 and 135‑170 ; W. Lang, “Les
                    règles d’interprétation codifiées par la convention de Vienne sur le droit des traités et
                    les divers types de traités”, 24 Österreichische Zeitschrift für öffentliches Recht (1973),
                    pp. 113‑173 ; Ch. De Visscher, Problèmes d’interprétation judiciaire en droit international
                    public, Paris, Pedone, 1963, pp. 9‑264 ; among others.
                       53 Cf., e.g., M. K. Yasseen, “L’interprétation des traités d’après la convention de

                    Vienne sur le droit des traités”, 151 RCADI (1976), p. 74 ; G. E. do Nascimento e Silva,
                    Conferência de Viena sobre o Direito dos Tratados, Rio de Janeiro, MRE, 1971, pp. 34‑35
                    and 73‑74 ; I. M. Sinclair, The Vienna Convention on the Law of Treaties, Manchester
                    University Press/Oceana, 1973, pp. 73‑75 ; F. Capotorti, “Il Diritto dei Trattati Secondo
                    la Convenzione di Vienna”, Convenzione di Vienna sul Diritto dei Tratatti, Padua, Cedam,
                    1984, pp. 35‑39 ; among others.

                    35

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                    35 	 whaling in the antarctic (sep. op. cançado trindade)

                      58. As to the 1946 International Convention for the Regulation of
                    Whaling (ICRW), and in particular its “objectives and purposes” 54,
                    namely, the proper conservation of the whale stocks and the orderly
                    development of the whaling industry, it is clear that the former stands
                    higher, as without the proper conservation of whale stocks there can be no
                    orderly development of the whaling industry. The basic foundation of the
                    ICRW is thus the conservation of all whale species at issue. The principle
                    of effet utile points in this direction, discarding the mere profitability of
                    the whaling industry.
                      59. There is a concern for orderly development in the ICRW, which
                    uses the expression “common interest” 55, and, moreover, identifies its
                    beneficiaries, in expressly recognizing “the interest of the nations of the
                    world in safeguarding for future generations the great natural resources
                    represented by the whale stocks” 56. The regulatory scheme is set out in
                    detail in the Schedule. It should not pass unnoticed that the notion of
                    public or good order had already found expression in the international
                    community at the time of the adoption of the ICRW.

                       60. The general policy objectives under the ICRW were thus — and
                    remain — the protection of all whale species from overfishing, to the ben-
                    efit of future generations in all nations, and the orderly development of the
                    whaling industry was to abide by that. Conflicts or disputes were thus to
                    be avoided on that basis, and that (orderly) industrial development was
                    not to undermine the public or good order of the oceans. The objectives
                    of the ICRW disclose the nature of the treaty, to be implemented well
                    beyond the scope of bilateral relations between States parties. The nature
                    of the ICRW is, in my understanding, to be kept in mind, in the present
                    decision of the Court concerning intervention for the purposes of inter-
                    pretation of Article VIII of the Convention.

                                              VIII. The Preventive Dimension

                       61. A proactive posture of the ICJ as to the institute of intervention in
                    international judicial proceedings, under Article 63 of its Statute, appears
                    in principle justified, in cases like the present one, concerning the interpre-
                    tation or construction of a provision of a multilateral treaty like the
                    ICRW, aiming above all at the conservation of all whales species, to the
                    benefit of future generations in all nations. The notion of inter‑genera-
                    tional equity is present herein. I have devoted much attention to the
                    long‑term temporal dimension and the notion of inter‑generational equity
                    in my separate opinion (Part IX, pp. 177‑184, paras. 114‑131) in the case

                         54 Expression utilized in Articles V (2) and VI of the Convention.
                         55 Fourth preambular paragraph.
                         56 First preambular paragraph [emphasis added].

                    36

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                    36 	 whaling in the antarctic (sep. op. cançado trindade)

                    concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay),
                    Judgment, I.C.J. Reports 2010 (I), and I here limit myself to refer to my
                    reflections developed therein. In the present case, the ICRW’s preventive
                    dimension should not pass unnoticed. States parties are here to act with
                    due care, under the ICRW, so as to avoid a harm which may project itself
                    in time.

                       62. The uncertainties still surrounding the institute of intervention in
                    legal proceedings are proper to the persisting and new challenges faced by
                    international justice in our times 57, in the enlargement of its scope both
                    ratione materiae and ratione personae. International tribunals are to face
                    such uncertainties, approaching the institute of intervention with due
                    attention to the contemporary evolution of international legal procedure
                    at conceptual level, and to the nature of the multilateral treaties at stake.

                        63. Article 63 of the Court’s Statute provides for intervention as of
                     right (supra) — as the ICJ itself has pointed out — when the State seek-
                     ing to intervene confines its intervention to “the point of interpretation
                     which is in issue in the proceedings, and does not extend to general inter-
                     vention in the case” 58. On the basis of its Declaration of Intervention, it
                    does not seem that New Zealand is seeking a “general intervention” in the
                    present case. It purports to inform the Court of its view, focused on a
                    specific point of interpretation or construction of Article VIII of the 1946
                    Convention for the Regulation of Whaling. New Zealand’s submission is
                     thus duly circumscribed, and the Court is right in holding it admissible.

                                     IX. The Resurrectio of Intervention
                              in Contemporary Judicial Proceedings before the ICJ

                       64. The ICJ’s decision contained in the present Order in the case
                    concerning Whaling in the Antarctic is significant : looking back in time,
                     we may well be witnessing lately the resurrectio of intervention in contem-
                    porary judicial proceedings before the ICJ. I have made this point in my
                    separate opinion in the Court’s previous Order of 4 July 2011 permitting
                    Greece’s intervention in the case concerning the Jurisdictional Immunities
                    of the State (Germany v. Italy). In a rather short lapse of time, the Court
                     has taken its position on granting intervention, on the basis of both Arti-
                    cle 62 (in 2011) and Article 63 (the present Order) of its Statute.

                       57 E. Jouannet, “Quelques perspectives théoriques : incertitudes sur le tiers et désordres

                    de la justice internationale”, Le tiers à l’instance devant les juridictions internationales (eds.
                    H. Ruiz Fabri and J.‑M. Sorel), Paris, Pedone, 2005, pp. 260‑263.
                       58 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to

                    Intervene, Judgment, I.C.J. Reports 1981, p. 15, para. 26.

                    37

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                    37 	 whaling in the antarctic (sep. op. cançado trindade)

                       65. I have deemed it fit to dwell further upon this issue, in the present
                    Order of the Court, declaring admissible New Zealand’s intervention in
                    the case Whaling in the Antarctic (Australia v. Japan). Twice before, in
                    two cases concerning land and maritime boundaries in the nineties, the
                    ICJ also authorized two other Applications to intervene, namely, in the
                    case concerning the Land, Island and Maritime Frontier Dispute (El Sal-
                    vador/Honduras) (Application by Nicaragua for Permission to Intervene,
                    Judgment, I.C.J. Reports 1990, p. 92) and in the case concerning the Land
                    and Maritime Boundary between Cameroon and Nigeria (Application by
                    Equatorial Guinea for Permission to Intervene, Order of 21 October 1999,
                    I.C.J. Reports 1999 (II), p. 1029).
                       66. On the two more recent occasions, namely, in the case concerning
                    the Jurisdictional Immunities of the State and in the present case of Whal-
                    ing in the Antarctic, the Court has adopted two Orders granting the
                    requested interventions in two domains of great importance in and for the
                    development of contemporary international law, namely, that of the ten-
                    sion between the right of access to justice and the invocation of State
                    immunities, and that of marine life and resources and international pro-
                    tection of the environment. In the ambit of the circumstances surround-
                    ing these two more recent cases, in domains of concern to the international
                    community as a whole, intervention has at last seen the light of the day.

                       67. Although intervention, throughout the history of the ICJ, laid dor-
                    mant in the Peace Palace for most of the Court’s history until recently, it
                    has never died, and it appears now to have been resurrected, in a revital-
                    ized way. In deciding as it has done, to grant intervention in the two
                    aforementioned cases, in such relevant contexts, the ICJ has so decided at
                    the height of its responsibilities as the main judicial organ of the
                    United Nations (Article 92 of the UN Charter). Unlike land and mari-
                    time delimitation cases, or other cases concerning predominantly bilater-
                    alized issues, these last two cases concern third States as well, other than
                    the respective contending Parties before the Court.

                       68. The subject‑matters at issue in those two cases (supra) are, in my
                    perception, closely and decisively related to the evolution of contempo-
                    rary international law as a truly universal international law, being thus of
                    relevance ultimately to all States. The resurgere of intervention is thus
                    most welcome, propitiating the sound administration of justice (la bonne
                    administration de la justice), attentive to the needs not only of all States
                    concerned but of the international community as a whole, in the concep-
                    tual universe of the jus gentium of our times.

                                         X. Concluding Observations

                      69. In the present case, in my view, a proper expression to the principle
                    of the sound administration of justice (la bonne administration de la jus-

                    38

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                    38 	 whaling in the antarctic (sep. op. cançado trindade)

                    tice) can be found precisely in the declaration of admissibility by the
                    Court of the Declaration of Intervention by New Zealand in the cas
                    d’espèce. I have made precisely this point, one and a half years ago, in my
                    separate opinion (para. 59) appended to the Court’s Order of 4 July 2011,
                    in the case concerning the Jurisdictional Immunities of the State (Germany
                    v. Italy). This is a point which, in my view, should not pass unnoticed
                    herein.
                       70. It so happens that, in the present Order, the Court considered the
                    principle of the sound administration of justice (la bonne administration
                    de la justice) in relation to other arguments put to it (paras. 17‑19 of the
                    Order), which are rather tangential to the institute of intervention (under
                    Article 63) itself, and do not have a direct bearing on its essence. It is true,
                    as the Court states (para. 18), that intervention, in the terms of Article 63
                    of the Statute, cannot — does not — affect the procedural equality of the
                    contending Parties. The Court rightly acknowledges (para. 19) that
                    New Zealand’s Declaration of Intervention falls within the provisions of
                    Article 63 of the Statute and the requirements of Article 82 of the Rules
                    of Court, and is thus admissible. It is so — I would add — irrespective of
                    whether the contending Parties object to it or not.
                       71. In circumstances like those of the cas d’espèce, it is necessary to
                    surmount the old bilateralist bias that permeates dispute‑settlement under
                    the procedure before this Court. It so happens that such bias has for a
                    long time impregnated expert writing on the subject 59 as well. It is about
                    time to overcome such dogmatisms of the past, with their characteristic
                    immobilization, remnant of the old arbitral practice. The present case
                    concerning Whaling in the Antarctic, unlike land and maritime delimita-
                    tion cases, or other cases concerning predominantly bilateralized issues,
                    concerns third States as well, parties to the 1946 Convention for the Inter-
                    national Regulation of Whaling, other than the respective contending
                    Parties before the Court. The Convention concerns a matter of general or
                    common interest, and is to be implemented collectively by States parties,
                    thus contributing to the public order of the oceans.

                       72. In the present Order, the Court has limited itself to address the points
                    raised by the three States concerned, in the terms in which they were raised.
                    Under the self‑imposed pressure of time, it has abstained from dwelling
                    upon the substantive aspects concerning the essence of intervention under

                         59   To quote one example :
                              “International law in its historical evolution has shown a general reticence towards
                              third-party interference in the judicial (or arbitral) settlement of bilateral disputes.
                              Indeed, such third-party intervention has always been presented as an exception to
                              the general principle of res judicata inter alios acta, and there is nothing in modern
                              international judicial experience or practice to warrant any far‑reaching departure
                              from that approach.” (S. Rosenne, Intervention in the International Court of Justice,
                              op. cit. supra note 22, p. 190.)

                    39

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                    39 	 whaling in the antarctic (sep. op. cançado trindade)

                    Article 63 of its Statute. For my part, I have struggled against the constraints
                    of time, in order to take care of dwelling upon them in the present separate
                    opinion. Throughout the years the hope has been expressed, in expert writ-
                    ing, that further clarification be given as to the meaning and scope of inter-
                    vention under Article 63 of the Statute of the ICJ.
                       73. This is what I have been attempting to do in this separate opinion,
                    to the extent possible. The insufficient clarification provided so far has
                    been attributed to the rather infrequent use of intervention as of right
                    under Article 63. But even in the cases wherein intervention under Arti-
                    cle 63 has been put to the Court, like the present one, this latter has not
                    provided sufficient or entirely satisfactory clarification, though it has for-
                    tunately reached the right decision in today’s Order.

                       74. It may well occur that, in the future, whichever clarification is pro-
                    vided, it comes to appear, after all, not entirely satisfactory. One point
                    seems, however, clear. The rhythm of progressive development of interna-
                    tional law, whichever path is taken, is particularly slow ; so slow that any
                    advance achieved seems to be due to a constructive reasoning in a rare
                    moment, or glimpse, of lucidity. In any case, and to be fair to jurists (my
                    colleagues), it so happens that law is not an “exact science”, and perhaps
                    fortunately so. After all, what is thought of as “exact” today, with the
                    passing of time comes to appear as not being so “exact” as one thought
                    or assumed it to be earlier on. In the domain of law, we are faced with
                    Sollen/devoir être (so necessary to human beings), and dissatisfaction
                    seems often to be ineluctable herein.

                       75. After all, Sollen/devoir être (or at least the tension between Sein and
                    Sollen) requires thinking, rather than applying mechanically pre‑existing
                    norms. As for mechanical application, nowadays computers would do
                    it just as well. Thinking (which requires much greater effort) cannot
                    always be presumed ; this is why one ought to be satisfied when a certain
                    advance is achieved, moved by thinking with an awareness of the impera-
                    tives of justice. Today, 6 February 2013, is one such occasion, with the
                    Court’s Order of admissibility of New Zealand’s Declaration of Interven-
                    tion under Article 63 of its Statute, just as one and a half years ago (Order
                    of 4 July 2011) there was another such occasion, with the Court’s permis-
                    sion of Greece’s intervention under Article 62 of its Statute, in the case
                    concerning the Jurisdictional Immunities of the State.

                       76. So, we do not — fortunately — work always surrounded by dis-
                    satisfaction. After all, there are, in its course, moments or glimpses of
                    enlightenment as well, which should satisfy those engaged in the progres-
                    sive development of international law and the realization of justice at
                    international level. The aforementioned last two grants of intervention by

                    40

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                    40 	 whaling in the antarctic (sep. op. cançado trindade)

                    this Court, under Articles 62 and 63 of its Statute (Orders of 4 July 2011
                    and 6 February 2013, respectively), are good examples in this direction.
                    The gradual resurrectio of intervention in contemporary judicial proceed-
                    ings before the World Court can, in my perception, render a valuable
                    service towards a more cohesive international legal order in our days.
                    After all, intervention in legal proceedings, by providing additional ele-
                    ments to the Court for its consideration and reasoning, can contribute to
                    the progressive development of international law itself, especially when
                    matters of collective or common interest and collective guarantee are at
                    stake.

                                          (Signed) Antônio Augusto Cançado Trindade.

                    41

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