                     471

                                Dissenting opinion of Judge Donoghue

                        Disagreement with outcome and approach of the Court in rejecting Honduras’s
                     Application to intervene — Maritime claims overlapping area at issue sufficient to
                     show an interest of a legal nature that may be affected — Court’s practice of using
                     a directional arrow demonstrates its appreciation that its decisions “may affect”
                     the legal interests of third States — Prospect that the Court can protect third‑State
                     interests by other means not a reason to deny intervention — No jurisdictional link
                     required in case of non‑party intervention — Parties’ opposition to intervention not
                     dispositive when Article 62 criteria are met — Substantive effects in case of party
                     intervention greater than in case of non‑party intervention.

                        Honduras should be permitted to intervene as a non‑party — Agreement with
                     Court that Honduras misreads res judicata effect of 2007 Judgment — No precise
                     endpoint of bisector line established in 2007 Judgment — Agreement with Court
                     that treaty between Colombia and Honduras not determinative of Parties’ rights in
                     this case — Overlap of Honduras’s claims with area at issue between the Parties
                     shows that Honduras has an interest of a legal nature that may be affected —
                     Possible impact on interpretation of 2007 Judgment also shows interest of a legal
                     nature that may be affected — Agreement with Court’s decision to deny Honduras’s
                     intervention as a party — Court’s practice of rejecting intervention but considering
                     information submitted by third States gives rise to de facto means of third‑State
                     participation to the potential disadvantage of parties.

                                                    table of contents
                                                                                Paragraphs

                          I. Intervention under Article 62 of the Statute of the Court              4-38
                            A. The Statute and Rules of Court                               4-9
                            B. Factors relevant to consideration of an application to inter-
                               vene10-38
                              1. Whether the Applicant to intervene has an “interest of a
                                 legal nature” that “may be affected” by the decision              11-24
                                 (a) The meaning of Article 62                                     11-17
                                     (i)	Paragraph 1 of Article 62                                 11-16
                                    (ii)	Paragraph 2 of Article 62                                    17
                                 (b) The Court’s practice of protecting third States that
                                     “may be affected” by judgments regarding maritime
                                     boundaries18-24

                     55

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                     472 	 territorial and maritime dispute (diss. op. donoghue)

                            2. The object of the intervention                              25-29
                            3. The jurisdictional link                                        30
                            4. The views of the parties                                    31-33
                            5. Non‑party versus party intervention                         34-38

                      II. The Application of Honduras                                      39-54
                          A. Honduras should be permitted to intervene as a non‑party      39-53

                          B. The Court was correct in deciding not to grant the applica-
                             tion to intervene as a party                                     54
                     Conclusion                                                            55-59

                                                           *

                       1. I have dissented from the decision to reject Honduras’s Application
                     to intervene as a non‑party in these proceedings. I part company with the
                     Court not only as to the result, but also as to its approach to Article 62
                     of the Statute of the Court.

                        2. Article 62 of the Statute of the Court provides for intervention of a
                     third State that demonstrates that it has an “interest of a legal nature that
                     may be affected” by a decision in the case. It also requires the third State
                     to specify the object of its intervention. I conclude that the proposed
                     intervention meets this standard. First, Honduras asserts claims to mari-
                     time areas that overlap the area at issue in this case. The Court’s practice
                     in such situations has been to describe boundaries in a manner that rec-
                     ognizes that its decisions “may affect” third States. As it did in the most
                     recent case in which a State with overlapping claims applied to intervene
                     (see Land and Maritime Boundary between Cameroon and Nigeria (Cam‑
                     eroon v. Nigeria), Application for Permission to Intervene, Order of
                     21 October 1999, I.C.J. Reports 1999), I believe that the Court should
                     grant the Application here. Second, under one possible outcome (the line
                     proposed by Colombia), the decision of this Court inevitably would affect
                     the way that Honduras (and Nicaragua) would interpret and apply the
                     2007 decision of this Court in the case concerning Territorial and Mari‑
                     time Dispute between Nicaragua and Honduras in the Caribbean Sea
                     (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II). That deci-
                     sion determined the maritime boundary between Honduras and Nicara-
                     gua, without an endpoint, by deciding only that the boundary line shall
                     continue from a specified geographic point “along the line having the azi-
                     muth of 70° 14΄ 41,25˝ until it reaches the area where the rights of third
                     States may be affected” (ibid., pp. 760‑763, para. 321). A decision in this
                     case to set a boundary based on that proposed by Colombia would spec-
                     ify the point at which a third State (Colombia) “may be affected” by the

                     56

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                     473 	 territorial and maritime dispute (diss. op. donoghue)

                     line drawn in 2007 and would appear to create the de facto endpoint of
                     that line. While I believe that Honduras should be permitted to intervene
                     as a non‑party, I agree with the Court’s decision to deny intervention as
                     a party.

                        3. In Part I of this opinion, I discuss the factors that are relevant to the
                     Court’s consideration of an application for intervention, which also pro-
                     vide a foundation for my dissenting opinion with respect to the Applica-
                     tion of Costa Rica. In Part II, I turn to the specific circumstances of
                     Honduras.

                          I. Intervention under Article 62 of the Statute of the Court

                                          A. The Statute and Rules of Court
                      4. Two Articles of the Statute of the Court address intervention. This
                     Application is submitted under Article 62, which provides :

                             “l. 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 shall be for the Court to decide upon this request.”
                        5. Intervention is also addressed in Article 63, which gives a State a
                     right to intervene in a case if it is a party to a “convention” that is “in
                     question” in the case. If it exercises this right, “the judgment will be
                     equally binding upon it”.
                        6. Article 81 (2) of the Rules of Court requires an application for inter-
                     vention under Article 62 of the Statute of the Court to set out :
                          “(a) the interest of a legal nature which the State applying to intervene
                               considers may be affected by the decision in that case ;
                           (b) the precise object of the intervention ;
                           (c) any basis of jurisdiction which is claimed to exist as between the
                               State applying to intervene and the parties to the case.”
                        7. In addition, Article 84 of the Rules states that the Court shall decide
                     on applications to intervene “as a matter of priority unless in view of the
                     circumstances of the case the Court shall otherwise determine”. Article 84
                     also requires the Court to hold a hearing on intervention if a party files a
                     timely objection to intervention, at which the Court hears from the par-
                     ties and the would‑be intervenor.
                        8. The Rules address the procedural implications of a decision to per-
                     mit intervention, by specifying in Article 85 that the intervenor is allowed

                     57

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                     474 	 territorial and maritime dispute (diss. op. donoghue)

                     access to the pleadings and an opportunity to submit a written statement
                     and to participate in oral proceedings.
                        9. The Statute and Rules do not specify the legal consequences of
                     intervention under Article 62 (in contrast to Article 63, which provides
                     that the resulting judgment binds the intervenor). Article 62 makes no
                     distinction between intervention as a party and intervention as a
                     non‑party, nor do the Rules of Court. This apparently was deliberate (see
                     Shabtai Rosenne, The Law and Practice of the International Court
                     (1920‑2005), Vol. III, Sect. 356, pp. 1443‑1444). The two types of inter-
                     vention are potentially quite different in their implications for the parties
                     and for an intervenor, however, so the lack of differentiation in the Stat-
                     ute and Rules can lead to some confusion.

                                        B. Factors Relevant to Consideration
                                           of an Application to Intervene
                        10. In considering applications to intervene, the Court has examined a
                     range of factors (without necessarily focusing equally on each factor in
                     each case). I summarize those here, with particular attention to consider-
                     ations relevant to maritime boundaries and to the distinction between
                     intervention as a party and intervention as a non‑party.

                     1. Whether the Applicant to intervene has an “interest of a legal nature”
                        that “may be affected” by the decision
                       (a) The meaning of Article 62
                          (i) Paragraph 1 of Article 62
                        11. It is clear from the Statute that an interest “of a legal nature” is
                     required. Such an interest may be animated by political, economic or
                     other policy interests, but these non‑legal interests, taken alone, do not
                     meet the requirements of Article 62. This limitation could be significant in
                     certain cases, but is unlikely to be a major hurdle when an application for
                     intervention is based on overlapping maritime claims. An assertion of a
                     claim to a maritime area under international law can easily be understood
                     as an assertion of an interest “of a legal nature”. (I note, however, that
                     the Court today does not state clearly whether it finds an “interest of a
                     legal nature” in these proceedings, instead treating that question jointly
                     with the question whether such interest “may be affected”.)

                        12. The applicant must also prove that its interest of a legal nature
                     “may be affected” by the decision in the case. The phrase “may be
                     affected” must be read in light of Article 59 of the Statute, which states
                     quite clearly that a “decision of the Court has no binding force except

                     58

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                     475 	 territorial and maritime dispute (diss. op. donoghue)

                     between the parties and in respect of that particular case”. Because Arti-
                     cle 59 clearly limits the way in which a judgment can “affect” a third
                     State, Article 62 must extend to an effect that falls short of imposing
                     binding legal obligations on the third State. As Judge Sir Robert Jennings
                     noted, Article 59 “does by no manner of means exclude the force of per-
                     suasive precedent” (Continental Shelf (Libyan Arab Jamahiriya/Malta),
                     Application for Permission to Intervene, I.C.J. Reports 1984, dissenting
                     opinion of Judge Jennings, p. 157, para. 27). For example, a maritime
                     delimitation decision by the Court may affect the interest of a third
                     State — positively or negatively — if the Court, in the dispositif or in its
                     reasoning, appears to prejudge a claim of the third State.

                        13. In addition, under Article 62, the intervenor need not show that its
                     interest “will . . . be affected” (Land, Island and Maritime Frontier Dispute
                     (El Salvador/Honduras), Application for Permission to Intervene, Judg‑
                     ment, I.C.J. Reports 1990, p. 117, para. 61) or that its interest is “likely”
                     to be affected. The Statute only requires proof that the interest of a legal
                     nature “may be affected”. This standard is sensible at the stage in the
                     proceedings at which the Court has not assessed the merits, because nei-
                     ther the third State nor the Court is equipped at that stage to determine
                     the probability of a particular substantive outcome. Thus it is not possi-
                     ble at the intervention stage to assess the likelihood of an effect on the
                     interest of a legal nature of the third State. This requirement of Arti-
                     cle 62 — that the interest of a legal nature “may be affected” — has par-
                     ticular importance in proposed intervention in maritime boundary cases,
                     which I shall discuss below.
                        14. The would‑be intervenor bears the burden of proving that its inter-
                     est “may be affected” and must “demonstrate convincingly what it
                     asserts” (ibid.). However, there is no requirement in Article 62 that the
                     applicant establish that intervention as the only means to protect its
                     “interest of a legal nature” that “may be affected”. Today, the Court
                     expresses confidence in its ability to protect third States without granting
                     intervention. Even if that conclusion is well‑founded, I see no reason that
                     it would defeat intervention if the criteria of Article 62 are otherwise met,
                     as I believe to be the case here.
                        15. The Court has also made clear that a would‑be intervenor may be
                     “affected” not only by the dispositive portion of the Court’s decision in a
                     case, but also by “the reasons which constitute the necessary steps to the
                     dispositif ” (Sovereignty over Pulau Ligitan and Pulau Sipidan (Indonesia/
                     Malaysia), Application for Permission to Intervene, Judgment, I.C.J. Reports
                     2001, p. 596, para. 47). However, there must be more than a mere preoc-
                     cupation with “the general legal rules and principles likely to be applied”
                     by the Court in its decision (Land, Island and Maritime Frontier Dispute
                     (El Salvador/Honduras), Application for Permission to Intervene, J udgment,
                     I.C.J. Reports 1990, p. 124, para. 76). In order to demonstrate that the
                     interest asserted may be affected by the reasoning or interpretations of the
                     Court, that interest must not be “too remote” from the legal c onsiderations

                     59

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                     476 	 territorial and maritime dispute (diss. op. donoghue)

                     at issue in the main proceedings (Sovereignty over Pulau Ligitan and Pulau
                     Sipidan (Indonesia/Malaysia), Application for Permission to Intervene,
                     Judgment, I.C.J. Reports 2001, p. 604, para. 83) 1.
                        16. Thus, the requirement that the third State’s interest of a legal
                     nature “may be affected” does not require the applicant to predict the
                     decision of the Court on the merits, but necessarily requires the would‑be
                     intervenor “to show in what way that interest may be affected” (Land,
                     Island and Maritime Frontier Dispute (El Salvador/Honduras), Applica‑
                     tion for Permission to Intervene, Judgment, I.C.J. Reports 1990, p. 118,
                     para. 61). This suggests that it must persuade the Court of a sufficient
                     connection between the interest that it asserts and an eventual decision
                     relating to the subject‑matter of the case. What remains unclear, however,
                     is precisely what sort of nexus is required to satisfy the requirement that
                     the interest of a legal nature “may be affected” 2. Because the assessment
                     of such a nexus is likely to be very fact‑dependent, a generalized standard
                     may not be workable. In the case of maritime boundary delimitation,
                     however, the Court’s own practice supports a conclusion that an appli-
                     cant can meet its burden of showing that its “interest of a legal nature
                     may be affected” if it demonstrates to the Court that it has maritime
                     claims that overlap the area in dispute in the case 3. I shall turn to this
                     jurisprudence after commenting briefly on the meaning of paragraph 2 of
                     Article 62.
                           (ii) Paragraph 2 of Article 62
                       17. Article 62 of the Statute of the Court specifies the criteria for inter-
                     vention in paragraph (1) and then, in paragraph (2), states that “[i]t shall
                     be for the Court to decide upon this request”. It has been suggested that

                         1 The Court today appears to suggest that an “interest of a legal nature” must be

                     framed as a “claim” of a legal right. The focus on claims may flow from a body of juris-
                     prudence derived from maritime claims. Nonetheless, although a generalized interest in the
                     content of international law has been found to be insufficient to comprise an “interest of a
                     legal nature”, I do not rule out the possibility of a third State demonstrating an “interest of
                     a legal nature” without framing it as a “claim” of a legal right.

                        2 The Court has suggested, for example, that there may not be a sufficient link between

                     the interest of a legal nature asserted by a third State and the subject‑matter of the dispute
                     in the main proceedings where the third State’s interest is “somewhat more specific and
                     direct than that of States outside that region”, but is also “of the same kind as the interests
                     of other States within the region” (Continental Shelf (Tunisia/Libyan Arab Jamahiriya),
                     Application for Permission to Intervene, Judgment, I.C.J. Reports 1981, p. 19, para. 33).
                        3 I do not suggest here that the Court should protect maritime claims of a third State

                     that appear baseless, but that has not been at issue in past cases, nor is it a factor today.
                     In judgments in which the Court has protected the interests of third States with respect
                     to maritime boundary delimitation, it sometimes has framed the issue with reference to
                     the area “where the rights of third States may be affected”. The use of the word “rights”
                     in this context does not mean that the Court is passing judgment on the merits of those
                     third‑State claims.

                     60

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                     477 	 territorial and maritime dispute (diss. op. donoghue)

                     paragraph (1) leaves the Court no discretion, because it begins with the
                     phrase “[s]hould a State consider” (see Judgment, paragraph 31). I do not
                     find this interpretation persuasive, in light of the express statement in
                     paragraph (2) of Article 62 that it is for the Court to decide, and given the
                     juxtaposition of Article 62 and Article 63 (which, unlike Article 62,
                     expressly provides a right to intervene). Instead, I understand Arti-
                     cle 62 (1) to specify criteria that the Court is to apply in considering an
                     application for intervention. At the same time, I agree that Article 62 (2)
                     does not confer upon the Court “any general discretion to accept or reject
                     a request for permission to intervene for reasons simply of policy” (Con‑
                     tinental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permis‑
                     sion to Intervene, Judgment, I.C.J. Reports 1981, p. 12, para. 17).

                       (b) The Court’s practice of protecting third States that “may be affected”
                            by judgments regarding maritime boundaries

                        18. The Court has confronted the interests of third States in a number
                     of cases in which it has delimited maritime boundaries, including several
                     in which there was no request by a third State to intervene. For the rea-
                     sons discussed here, I believe that those cases support the conclusion that
                     the interest of a legal nature of a third State “may be affected” in such a
                     case if that third State has a claim to a maritime area that overlaps the
                     area in dispute in the main proceedings.

                         19. In each of the cases that I discuss here, the area at issue in the case
                     is also subject (at least in part) to one or more overlapping third‑State
                     claims. Such claims may be predicated on a bilateral agreement of the
                     third State, a decision of an international court or tribunal, an assertion
                     of a claim by the third State or an observation by the parties and/or the
                     Court that the geography may give rise to a claim by a particular third
                     State. Thus, these legal interests of third States vary as to their precision
                     and as to the degree of certainty that the third‑State claim would be
                     recognized by the Court, or by one or both parties to the case. In general,
                      and despite this variation, the Court has addressed the interests of third
                      States by declining to set a final endpoint of the maritime boundary.
                      Instead, the Court has decided, after setting a final turning point outside
                      the area subject to the claim of a third State (whether or not that claim
                      has been asserted), that the boundary line continues until the point at
                      which it reaches the area in which the rights of a third State may be
                      affected. The following cases take such an approach :
                     — In the case concerning Territorial and Maritime Dispute (Nicaragua v.
                       Honduras), the Court defined the boundary to “Point F” and there
                       after along a specified azimuth “until it reaches the area where the rights
                       of third States may be affected” (Territorial and Maritime Dispute

                     61

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                     478 	 territorial and maritime dispute (diss. op. donoghue)

                          between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
                          Honduras), Judgment, I.C.J. Reports 2007 (II), p. 763, para. 321).
                          The Court noted that neither Party had specified “a precise seaward
                          end to the boundary between them” and that it “will not rule on an
                          issue when in order to do so the rights of a third party that is not
                          before it, have first to be determined” (ibid., p. 756, para. 312). No
                          third State sought to intervene. (I discuss this Judgment in greater
                          detail in Part II.)

                     — In the case concerning Maritime Delimitation in the Black Sea
                       (Romania v. Ukraine), the Court delimited the boundary between the
                       two Parties, but took note of the interests of two third States and thus
                       specified that, after the last turning point, the boundary continues “until
                       it reaches the area where the rights of third States may be affected”
                       (Judgment, I.C.J. Reports 2009, p. 131, para. 219). Neither of the third
                       States identified by the Court sought to intervene, but the Court made
                       clear that the delimitation would occur “north of any area where third
                       party interests could become involved” (ibid., p. 100, para. 112).

                     — In the case concerning Land and Maritime Boundary between Cameron
                       and Nigeria (Cameroon v. Nigeria : Equatorial Guinea intervening),
                       the Court took account of the interests of Equatorial Guinea (which,
                       as previously noted, had intervened in the case) and Sao Tome and
                       Principe (which had not sought to intervene) (Judgment, I.C.J. Reports
                       2002, p. 421, para. 238 and p. 424, para. 245) ; in order to avoid
                       affecting the rights of a third State, the Court, after the last turning
                       point, defined a boundary proceeding along an equidistance line,
                       without specifying an endpoint (ibid., p. 448, para. 307).
                     — In the case concerning Maritime Delimitation and Territorial Questions
                       (Qatar v. Bahrain), the Court did not specify the precise location of
                       either endpoint of the maritime boundary, instead deciding that, at
                       each end, the boundary line would continue “until it meets the
                       delimitation line between the respective maritime zones” of a specified
                       third State (Iran to the north and Saudi Arabia to the south) and the
                       two Parties (Maritime Delimitation and Territorial Questions between
                       Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports
                       2001, p. 116, para. 250). Neither Iran nor Saudi Arabia sought to
                       intervene.
                     — In the case concerning Continental Shelf (Libyan Arab Jamahiriya/
                       Malta), the Court used a different formulation to take account of the
                       interest of a third State. There, the Court had previously denied Italy’s
                       request to intervene. In its Judgment, the Court concluded that its
                       decision “must be confined to the area in which . . . [Italy] has no
                       claims to continental shelf rights” (Continental Shelf (Libyan Arab
                       Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 26, para. 21).
                       To that end, it defined the outer limit of the continental shelf
                       delimitation between the Parties with reference to the specific limits

                     62

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                     479 	 territorial and maritime dispute (diss. op. donoghue)

                       that Italy had asserted as its claim during the incidental proceedings
                       on intervention (I.C.J. Reports 1985, pp. 26‑28, paras. 21‑22).
                     — In the case concerning Continental Shelf (Tunisia/Libyan Arab
                       Jamahiriya), after setting the final turning point, the Court did not
                       define an endpoint, instead stating that the “extension of this line
                       northeastwards is a matter falling outside the jurisdiction of the Court
                       in the present case, as it will depend on the delimitation to be agreed
                       with third States” (Judgment, I.C.J. Reports 1982, p. 94, para. 133). In
                       that case, the third State in question was Malta, which had made an
                       unsuccessful attempt to intervene under Article 62.

                        20. The formulation used in the Court’s most recent Judgments defines
                     a boundary line that proceeds “until it reaches the area where the rights
                     of third States may be affected”. The Court has used an approach of this
                     sort in three circumstances : (1) when there was no application for inter-
                     vention ; (2) when the Court had granted an application for intervention ;
                     and (3) when the Court had rejected an application for non‑party inter-
                     vention. The use of this approach in all three situations must be under-
                     stood in light of Article 59. Because Article 59 makes clear that third
                     States cannot be bound by a judgment of the Court, the effect from which
                     the Court has sought to insulate the third States must necessarily be a
                     lesser one. In addition, the formulation that the Court has used to protect
                     the interests of third States with respect to maritime boundaries — i.e.,
                     that the prolongation of a boundary line extends only to the area in which
                     the rights of third States may be affected — bears striking similarity to
                     the language of Article 62, which provides for intervention based on
                     “interest of a legal nature” that “may be affected”. In safeguarding the
                     interests of third States as to maritime delimitation, the Court has not
                     insisted on proof of the existence or content of the “rights of third States”,
                     but rather has protected potential third‑State “rights”, whether or not
                     raised in intervention proceedings, if those rights “may” be affected.

                       21. In light of the Court’s practice in maritime boundary cases in which
                     the claims of third States overlap the area at issue in the case, it may be
                     suggested that intervention in such cases is unnecessary, because the
                     Court has the means, absent intervention, to address the interests of third
                     States. My conclusion is not that the Court’s practice means that inter-
                     vention should be denied in situations of overlapping third‑State claims,
                     but rather that its practice demonstrates that its Judgments in such cases
                     “may affect” the legal rights and interests of the third States. It is because
                     the Court recognizes that its delimitation may affect the third State that it
                     proceeds with such caution. If a third State asserts claims that overlap
                     those of the parties, then we can expect the Court, when it reaches the
                     merits, to delimit a boundary line that continues only “until it reaches the
                     area where the rights of third States may be affected”. If it is faced with
                     an application for intervention in such a case, the Court cannot assess the

                     63

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                     480 	 territorial and maritime dispute (diss. op. donoghue)

                     merits of the parties’ claims and thus cannot be certain that the area of its
                     ultimate delimitation will, or even is likely to, overlap claims of the third
                     State. Article 62 does not require certainty of overlap, however, only that
                     the third State has an interest of a legal nature that may be affected. In a
                     situation of an overlapping claim, the Court — looking ahead to the way
                     that it will address the case on the merits — has the information it needs
                     to grant an intervention request, because the third State has an interest of
                     a legal nature (an assertion of a claim that overlaps the area that is the
                     subject of the case) and, as demonstrated by the Court’s practice in delim-
                     iting boundaries where there is overlap with a third State’s claim, such a
                     claim “may be affected” by the Judgment. The criteria in Article 62 do
                     not preclude intervention simply because such a technique is available
                     even absent intervention.

                        22. The situation in Land and Maritime Boundary between Cameroon
                     and Nigeria illustrates a circumstance in which the Court took account of
                     overlapping third‑State claims, both at the intervention phase and in its
                     decision on the merits. There, Equatorial Guinea based its Application to
                     intervene as a non‑party on its assertion of claims to maritime areas that
                     overlapped the area subject to delimitation of the maritime boundary
                     between Cameroon and Nigeria. In the preliminary objections phase,
                     Nigeria had pointed out to the Court that the prolongation of the pro-
                     posed maritime boundary between Cameroon and Nigeria would “even-
                     tually run into maritime zones where the rights and interests of Cameroon
                     and Nigeria will overlap those of third States” (Land and Maritime
                     Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Prelimi‑
                     nary Objections, I.C.J. Reports 1998, p. 324, para. 116). According to the
                     Court, this meant that it appeared that “rights and interests of third
                     States” would “become involved” if the boundary was extended, as Cam-
                     eroon proposed (ibid.).
                        23. Equatorial Guinea, one of the third States to which the Court had
                     expressly referred in its 1998 Judgment, then submitted a request to inter-
                     vene. It explained that because it had legal claims to maritime zones that
                     overlapped those of Cameroon and Nigeria in the area subject to delimi-
                     tation, it had an interest of a legal nature that would potentially be
                     affected by the Court’s decision : “If the Court were to determine a Cam-
                     eroon‑Nigeria maritime boundary that extended into Equatorial Guinea
                     waters . . . Equatorial Guinea’s rights and interests would be prejudiced”
                     (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon
                     v. Nigeria), Application for Permission to Intervene, Order of 21 Octo‑
                     ber 1999, I.C.J. Reports 1999 (II), p. 1032, para. 3). The Court granted
                     Equatorial Guinea’s request to intervene. In doing so, it found that Equa-
                     torial Guinea had “sufficiently established that it has an interest of a legal
                     nature which could be affected by any judgment which the Court might
                     hand down for the purpose of determining the maritime boundary
                     between Cameroon and Nigeria” (I.C.J. Reports 1999 (II), p. 1034,

                     64

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                     481 	 territorial and maritime dispute (diss. op. donoghue)

                     para. 13). The Court thus confirmed that the existence of overlapping
                     claims can be sufficient to establish an interest of a legal nature that may
                     be affected for purposes of Article 62, notwithstanding the bilateral nature
                     of maritime delimitation, the principle of res inter alios acta, and the pro-
                     tections provided to Equatorial Guinea by Article 59 of the Statute. It
                     was willing to limit the scope of the boundary that it delimited between
                     Cameroon and Nigeria on the basis of Equatorial Guinea’s interest.

                        24. As discussed in Part II, it is difficult to distinguish the situation
                     underlying the Application to intervene by Equatorial Guinea from that
                     of Honduras, which also asserts claims that overlap the claims of the Par-
                     ties in this case and asserts that those claims may be prejudiced by a
                     delimitation of the maritime boundary between Nicaragua and Colombia
                     if that boundary extends into the area to which it asserts a claim.

                     2. The object of the intervention
                        25. Article 81 (2) (b) of the Rules of Court requires the would‑be
                     intervenor to specify the precise object of the intervention. The Court’s
                     consideration of the “object” has been closely tied to the question whether
                     the applicant has established an interest of a legal nature that may be
                     affected, so it is not clear how the “object” alone might be dispositive of
                     a particular request to intervene. This may explain why the question of
                     the precise object of the intervention seems to have become one in which
                     applications have taken on a standard formulation. The formulation that
                     was accepted in Equatorial Guinea’s intervention in the case between
                     Cameroon and Nigeria, derived in large part from the earlier decision on
                     Nicaragua’s Application to intervene, appeared in a similar format in the
                     Application by the Philippines that was rejected in 2001, and in the Appli-
                     cations that the Court considers today (see Land and Maritime Boundary
                     between Cameroon and Nigeria (Cameroon v. Nigeria), Application for Per
                     mission to Intervene, Order of 21 October 1999, I.C.J. Reports 1999 (II),
                     p. 1032, para. 4 ; Land, Island and Maritime Frontier Dispute (El Salva‑
                     dor/Honduras), Application for Permission to Intervene, Judgment,
                     I.C.J. Reports 1990, p. 108, para. 38 (Application by Nicaragua for Per-
                     mission to Intervene) ; Sovereignty over Pulau Ligitan and Pulau Sipidan
                     (Indonesia/Malaysia), Application for Permission to Intervene, Judgment,
                     I.C.J. Reports 2001, p. 580, para. 7).

                        26. The object of intervention is worthy of some additional discussion,
                     however, because the object of non‑party intervention may differ signifi-
                     cantly from that of proposed intervention as a party. As the cases above
                     illustrate, the object of intervention as a non‑party may be to insulate the
                     interest of a legal nature of the third State, that is, to prevent the Court
                     from “affecting” such interest. In a case of maritime delimitation, for
                     example, the object of the application of a non‑party intervenor might be

                     65

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                     to provide the Court with complete information that would enable the
                     Court to ensure that the claims of the intervenor are not prejudiced,
                     which the Court might do inadvertently if it does not have access to the
                     views of the third State. Such prejudice would not result from binding the
                     third State — which Article 59 would preclude — but rather from the
                     potential implication that the Court has made an assessment of the merits
                     of a third State’s claims in rendering its judgment. Information about an
                     intervenor’s claims could help the Court, when it establishes the co‑ordi-
                     nates of a boundary, to set a final turning point and/or endpoint in a way
                     that avoids prejudice to the claims of the intervenor. Thus, the decision to
                     permit Equatorial Guinea to intervene as a non‑party did not cause
                     Equatorial Guinea to become a party to the main case or to be bound by
                     the result there. Instead, it permitted Equatorial Guinea to advise the
                     Court on how the claims of the parties “may or may not” affect the legal
                     rights and interests of Equatorial Guinea (Land and Maritime Boundary
                     between Cameroon and Nigeria (Cameroon v. Nigeria), Application for
                     Permission to Intervene, Order of 21 October 1999, I.C.J. Reports
                     1999 (II), p. 1032, para. 3).

                        27. The object of such non‑party intervention is in sharp contrast to
                     intervention as a party, in which an object of the would‑be intervenor
                     must instead be to bind itself to the decision in the main case and to bind
                     the original parties to it and thus to affect its interest of a legal nature
                     quite directly.
                        28. One object of intervention that is unacceptable is that of introduc-
                     ing a new dispute into the case. A request to intervene is an “incidental
                     proceeding”, and “[a]n incidental proceeding cannot be one which trans-
                     forms that case into a different case with different parties” (Land, Island
                     and Maritime Frontier Dispute (El Salvador/Honduras), Application for
                     Permission to Intervene, Judgment, I.C.J. Reports 1990, p. 134, para. 98).
                     If a third State considers that it has a dispute that is closely related to the
                     case in chief, it can file a separate case, which could then potentially be
                     joined to the original case as a matter of procedure, pursuant to Arti-
                     cle 47 of the Rules of Court.

                        29. The bar on the introduction of a new dispute would seem to have
                     little bearing on an application for intervention as a non‑party. Even if an
                     applicant for non‑party intervention seeks to apprise the Court of inter-
                     ests that may not otherwise be before the Court, the non‑party intervenor
                     is not in a position to ask the Court to decide on its related but distinct
                     interest and thus is not adding a new dispute to a case. By contrast, an
                     applicant to intervene as a party would be bound by the resulting Judg-
                     ment (at least as to some parts of it), so there is more reason in the con-
                     text of proposed intervention as a party to look closely at whether the
                     would‑be intervenor seeks to introduce a new dispute.

                     66

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                     3. The jurisdictional link
                        30. The Court has stated that a jurisdictional link is required in the case
                     of intervention as a party and not in the case of non‑party intervention
                     (see Sovereignty over Pulau Ligitan and Pulau Sipidan (Indonesia/Malay‑
                     sia), Application for Permission to Intervene, Judgment, I.C.J. Reports
                     2001, p. 589, para. 35). This result is sensible, given the very different ways
                     in which the two forms of intervention affect the legal rights and obliga-
                     tions of the original parties. A non‑party intervenor is not bound by the
                     decision, nor are the parties bound vis‑à‑vis the intervenor. By contrast, a
                     party‑intervenor is bound by the decision (as there has been no successful
                     intervention as a party, it is not clear to what extent the intervenor would
                     be bound, that is, whether to the entire decision or only to a part thereof
                     that pertains especially to its interests).

                     4. The views of the parties
                        31. Article 84 of the Rules of Court provides for a hearing only if the
                     parties object and, in this way, signals that the Court will give weight to
                     the parties’ views. Consideration of party views is only appropriate, given
                     the impact that intervention has on the parties. Intervention (even pro-
                     posed intervention) leads inevitably to delay, whether the proposal is to
                     intervene as a party or as a non‑party. In addition, the Rules give a suc-
                     cessful intervenor certain procedural rights. In the case of intervention as
                     a party, the consequences of intervention are more significant and more
                     substantive.

                        32. The views of the parties may help the Court decide whether the
                     applicant has met its burden under Article 62. That does not mean, how-
                     ever, that Article 84 of the Rules of Court add a new substantive criterion
                     to Article 62 of the Statute. Put another way, if the criteria in Article 62
                     are met, I do not see a basis for the Court to reject an application for
                     intervention simply because one or both of the parties oppose it. The cri-
                     teria of Article 62 govern.

                        33. I note one particular situation that illustrates that intervention may
                     be warranted even when it is opposed by one or both parties. In a case in
                     which the would‑be intervenor’s interest of a legal nature “would form
                     the very subject‑matter of the decision” in the main case (Monetary Gold
                     Removed from Rome in 1943 (Italy v. France, United Kingdom and United
                     States of America), Preliminary Question, Judgment, I.C.J. Reports 1954,
                     p. 32), intervention might avoid a decision by the Court to dismiss a case
                     due to the absence of an indispensable party from the proceedings. More
                     generally, if the Court concludes that the interest of a legal nature of a
                     third State may be affected by the decision in the case before it, the oppor-

                     67

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                     tunity to consider the views of that third State and to permit the parties to
                     address them protects all of the affected States and enhances the sound-
                     ness and legitimacy of the decision in the case.

                     5. Non‑party versus party intervention
                        34. Throughout the discussion of factors that the Court has considered
                     in weighing applications to intervene, I have noted situations in which the
                     analysis applicable to the proposed intervention as a party differs from
                     the analysis suited to consideration of non‑party intervention. In light of
                     these distinctions, I believe that it is unfortunate that the Rules of Court
                     treat non‑party intervention and party intervention in the same way. Sub-
                     stantively, the effects of the two kinds of intervention are not the same, so
                     it is regrettable that there is not more flexibility to adjust the procedures
                     to account for the differences.
                        35. Because a proposal to intervene as a party has significant substan-
                     tive effects on the original parties, it is appropriate for the Court to
                     inquire especially closely into the application, including through a hear-
                     ing, if one or both of the original parties objects to the intervention.
                     Delay is an unfortunate consequence of such a procedure, but one that is
                     warranted by the implications of successful intervention. For non‑party
                     intervention, however, the substantive implications of successful interven-
                     tion are fewer. The original parties acquire no additional substantive
                     rights or obligations vis‑à‑vis the intervenor. In that case, an examination
                     of an intervention application that includes a hearing not only leads to
                     delay, but also creates the risk that the States appearing in the proceed-
                     ings will seek to use the hearing to press the substantive case. A more
                     flexible procedure, one that does not always require a hearing in such
                     a case, might be appropriate. Equally, if an application to intervene
                     is granted, it may be appropriate to give the non‑party intervenor more
                     limited opportunities to convey its views than are given to the party‑
                     intervenor, for example, to make a written submission, without auto
                     matically having an opportunity to participate in oral proceedings.

                                                            *
                                                        *       *
                       36. In respect of several of the factors that I have discussed above, I
                     have noted the potential flexibility inherent in Article 62. For example :

                     — a third State may be “affected” even when not legally bound by the
                       outcome ;
                     — an applicant need only show that its interest of a legal nature “may”
                       be affected, not that its interests “will” be affected ;

                     68

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                     485 	 territorial and maritime dispute (diss. op. donoghue)

                     — the applicant need not demonstrate that it may be affected by the
                       disposif, but instead may show that its interest of a legal nature may
                       be affected by the reasoning ;
                     — the requirement to specify the object of an intervention has not proven
                       to be a significant obstacle to intervention ;
                     — Article 62 does not require the applicant to show that intervention is
                       the only means to protect its interest of a legal nature ; and

                     — the Court has made clear that no jurisdictional link is required in the
                       case of non‑party intervention.
                         37. This summary might suggest that there has been a permissive atti-
                     tude towards intervention. The weight of the jurisprudence, however, is
                     to the contrary. Only one application for intervention under Article 62
                     has been granted in its entirety (Land and Maritime Boundary between
                     Cameroon and Nigeria (Cameroon v. Nigeria), Application for Permission
                     to Intervene, Order of 21 October 1999, I.C.J. Reports 1999 (II), p. 1028).
                     That case stands apart from others because the parties did not object
                     to the intervention. In one other case, a Chamber of the Court accepted
                     an intervention request in part but rejected it in part (Land, Island and
                     Maritime Frontier Dispute (El Salvador/Honduras), Application for
                     Permission to Intervene, Judgment, I.C.J. Reports 1990, p. 137, para. 105).

                         38. With the exception of the Application of Equatorial Guinea, the
                      Court has denied every request to intervene with respect to a question of
                      maritime delimitation (see Continental Shelf (Tunisia/Libyan Arab Jama‑
                      hiriya), Application for Permission to Intervene, Judgment, I.C.J. Reports
                      1981, p. 20, para. 37 ; Continental Shelf (Libyan Arab Jamahiriya/Malta),
                      Application for Permission to Intervene, Judgment, I.C.J. Reports 1984,
                      p. 28, para. 47 ; Land, Island and Maritime Frontier Dispute (El Salvador/
                      Honduras), Application for Permission to Intervene, Judgment,
                      I.C.J. Reports 1990, p. 137, para. 105). The Court’s Judgments today con-
                      tinue that trend.

                                        II. The Application of Honduras

                                  A. Honduras Should Be Permitted to Intervene
                                               as a Non‑Party
                        39. The Judgment characterizes Honduras’s asserted interest of a legal
                     nature as relating largely to two issues : whether the 2007 Judgment in the
                     case concerning Territorial and Maritime Dispute between Nicaragua and
                     Honduras in the Caribbean Sea (Nicaragua v. Honduras) (Judgment,
                     I.C.J. Reports 2007 (II), p. 659) settled the entire maritime boundary
                     between Honduras and Nicaragua in the Caribbean Sea and what effect,
                     if any, the decision of the Court in the pending proceeding would have on

                     69

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                     486 	 territorial and maritime dispute (diss. op. donoghue)

                     Honduras’s rights under the 1986 Maritime Delimitation Treaty between
                     Colombia and Honduras (Judgment, para. 59).

                        40. As to the first of these issues, the Judgment examines the Hondu-
                     ran challenge to the res judicata effect of the 2007 Judgment. In its
                     2007 Judgment, the Court determined that from Point F (located at the
                     co‑ordinates 15° 16´ 08˝ N and 82° 21´ 56˝ W), the line of delimitation
                     between Honduras and Nicaragua “shall continue along the line having
                     the azimuth of 70°14´ 41.25˝ until it reaches the area where the rights of
                     third States may be affected” (Territorial and Maritime Dispute between
                     Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras),
                     Judgment, I.C.J. Reports 2007 (II), pp. 760‑763, para. 321). Honduras
                     interprets this language to mean that the 2007 Judgment did not delimit
                     any boundary between itself and Nicaragua to the east of the 82nd meri
                     dian, because it is at that point that a third State (Colombia) “may
                     be affected”, as demonstrated by the position taken by Colombia in
                     its response to Nicaragua in this case (see CR 2010/18, p. 37 (Wood) ;
                     CR 2010/20, p. 31 (Kohen)). In other words, Honduras takes the position
                     that Colombia’s assertions in this case establish the endpoint of the
                     boundary set by the 2007 Judgment — an endpoint that the Court itself
                     was not willing to fix.
                        41. I agree with the Court that Honduras misreads the res judicata
                     effect of the 2007 Judgment. As today’s Judgment explains, the course of
                     the bisector line drawn by the Court in 2007 is clear and that line poten-
                     tially extends beyond the 82nd meridian. It is also clear — and is res
                     judicata for Honduras and Nicaragua — that the line ends when it
                     “reaches the area where the rights of third States may be affected”. All
                     that is left open is the precise endpoint, an issue to which I return below.

                        42. I also accept the Court’s statement that it will place “no reliance”
                     on the 1986 Treaty in establishing a maritime boundary between Colom-
                     bia and Nicaragua, in so far as that statement is intended to mean that a
                     treaty between one Party (Colombia) and a third State (Honduras) can-
                     not determine the rights of the Parties to this case.

                        43. I dissent, however, because I nonetheless believe that Honduras
                     has an “interest of a legal nature” that “may be affected” by the decision
                     in this case. The interest of Honduras results from the fact that its claim
                     to maritime areas overlaps the area at issue in this case. Colombia has
                     asked the Court to establish a single maritime boundary (depicted on the
                     sketch‑map attached to the Judgment) without an endpoint in the north.
                     As Colombia correctly points out (CR 2010/20, p. 26, para. 46 (Bundy)),
                     its 1986 Treaty with Honduras does not preclude it from asserting claims
                     against Nicaragua north of the 15th parallel. Thus, the area that Colom-
                     bia claims vis‑à‑vis Nicaragua in this case overlaps the area located north

                     70

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                     487 	 territorial and maritime dispute (diss. op. donoghue)

                     of the 15th parallel and west of the 80th meridian that Honduras claims
                     vis‑à‑vis Colombia by virtue of the 1986 Treaty. Nicaragua’s claims
                     vis‑à‑vis Colombia in the present case encompass those same areas (see
                     Written Observations of Nicaragua on Application for Permission to
                     Intervene by Honduras, 2 September 2010) 4.

                        44. I have stated above that I believe that situations of overlapping
                     claims are suggestive of circumstances that would provide a basis for non-
                     party intervention under Article 62. While there is no way to determine at
                     this point whether the Court would adopt a line that is identical or close
                     to the line proposed by Colombia, its practice makes clear that, if it were
                     to do so, it would define the northern end of that boundary in a manner
                     that takes account of the rights that Honduras could assert based on its
                     treaty with one Party (Colombia) and the decision of the Court with
                     respect to Honduras and the other Party (Nicaragua). For the same rea-
                     sons that the Court would follow this approach in its future judgment, I
                     believe that Honduras’s overlapping claims provide a basis to grant its
                     Application to intervene as a non‑party.

                        45. Apart from the situation of overlapping claims, there is a more
                     specific reason that Honduras has an “interest of a legal nature” that
                     “may be affected” by the Judgment in this case. This interest is triggered
                     by the maritime boundary proposed by Colombia, shown on the
                     sketch‑map attached to the Judgment. As can be seen, the maritime
                     boundary claimed by Colombia proceeds in a largely north‑south direc-
                     tion. This line (shown on the map with a directional arrow) would, if it
                     continued north, intersect with the dashed line that depicts the course of
                     the Honduras‑Nicaragua maritime boundary, as determined by this
                     Court in 2007, which proceeds largely in an east‑west direction, without a
                     fixed endpoint. At this stage of the proceedings, the Court has not consid-
                     ered the merits of the Parties’ claims nor has it made any decision as to
                     the northern endpoint of any boundary that it will delimit in this case.

                        4 In this regard, the Court’s 2007 analysis of Colombia’s interest in relation to the

                     Court’s 2007 Judgment in the Nicaragua v. Honduras case appears to be incomplete. There,
                     the Court stated that
                          “any delimitation between Honduras and Nicaragua extending east beyond the
                          82nd meridian and north of the 15th parallel (as the bisector adopted by the Court
                          would do) would not actually prejudice Colombia’s rights because Colombia’s rights
                          under this Treaty do not extend north of the 15th parallel” (Territorial and Mari‑
                          time Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
                          Honduras), Judgment, I.C.J. Reports 2007 (II), pp. 758‑759, para. 316).

                       It is true that Colombia’s rights vis‑à‑vis Honduras under the 1986 Treaty do not extend
                     north of the 15th parallel, but this does not preclude Colombia from asserting a claim
                     against Nicaragua that extends north of the 15th parallel.

                     71

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                       46. A decision of this Court that accepts the line proposed by Colom-
                     bia would have a significant impact on the precise meaning of the 2007
                     decision that binds Honduras and Nicaragua and thus “may affect” the
                     “interest of a legal nature” of Honduras. Before turning to the reasons
                     that I reach this conclusion, I recall that the question before the Court is
                     whether Honduras’s interest of a legal nature “may” be affected. In the
                     discussion that follows, I focus on the line proposed by Colombia, which
                     potentially intersects with the 2007 Nicaragua‑Honduras boundary line 5.

                       47. When the Court delimited the Honduras‑Nicaragua boundary in
                     2007, it decided that, from the last turning point, which it called “Point F”,
                     the line “shall continue along the line having the azimuth of 70° 14´ 41.25˝
                     until it reaches the area where the rights of third States may be affected”
                     (Territorial and Maritime Dispute between Nicaragua and Honduras in the
                     Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports
                     2007 (II), p. 763, para. 321). Thus, the Court did not fix a precise end-
                     point, consistent with its general approach to the interests of third States
                     with respect to the delimitation of a boundary on a bilateral basis — the
                     preservation of third‑State rights.

                        48. At present, therefore, the line emanating from Point F is res judi‑
                     cata for Honduras and Nicaragua, but is subject to uncertainty about the
                     point at which the boundary ends because it is unclear exactly where the
                     line reaches an area to which a third State may have rights. This situation
                     would change significantly if the Court adopted the line proposed by
                     Colombia. If that were to occur, we can expect the Court to follow its
                     usual practice with respect to third‑State interests. Thus, the Court, after
                     setting the final turning point in the north, would describe a line proceed-
                     ing from that turning point largely in a northerly direction that continues
                     until it meets the area where the rights of a third State may be affected. At
                     some point, the prolongation of that line would intersect the line drawn
                     by the Court in the 2007 Judgment.
                        49. Thus, a decision that adopts the line proposed by Colombia —
                     which, again, is merely one possible outcome of the main proceedings —
                     would reflect, in essence, a conclusion by this Court about the exact point
                     on the line that it drew in 2007 at which the rights of a third State —
                     Colombia — “may be affected”. This new clarity from the Court about
                     the rights of a third State inevitably would affect the way that Honduras
                     (and Nicaragua) would interpret and apply the 2007 Judgment to which
                     they are bound. In particular, it would appear that the 2007 line would be
                     without effect east of the point at which the two lines intersect, giving rise
                         5 I address here the claim of Colombia, and not the claim of Nicaragua, because the

                     line claimed by Colombia would cross into the area in which Honduras claims an interest,
                     whereas the line claimed by Nicaragua lies well to the east of that area. My focus on the
                     line claimed by Colombia does not suggest any conclusion about the merits of the claims
                     asserted by the two Parties, which I have not examined.

                     72

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                     489 	 territorial and maritime dispute (diss. op. donoghue)

                     to a de facto endpoint to the 2007 line. The Court’s decision in this case
                     between Nicaragua and Colombia would not bind Honduras (due to the
                     operation of Article 59 of the Statute), but the Court’s decision as to
                     Colombia’s rights would provide new and specific content to the meaning
                     of the 2007 dispositif and would therefore, “affect the interest of a legal
                     nature” of Honduras. In the words of Judge Sir Robert Jennings cited
                     earlier, such a decision by this Court would surely serve as “persuasive
                     precedent”.
                        50. It is entirely possible that the Court will not accept the line pro-
                     posed by Colombia. Uncertainty about the outcome, however, does not
                     counsel against intervention, but rather underscores the prudence of per-
                     mitting non‑party intervention in delimitation cases in which the claims
                     of a third State overlap the claims of the parties. It is precisely because
                     the Court is not able to assess the merits of such overlapping claims that
                     intervention is warranted, given the practice of the Court of taking into
                     account third‑State claims in delimitation cases.
                        51. Honduras has met its burden of establishing that it has an interest
                     of a legal nature that may be affected by the Court’s future judgment. It
                     has an object that is consistent with non-party intervention, that of ensur-
                     ing that the Court has Honduras’s views about its interest of a legal
                     nature, such that the Court, in crafting its judgment, may avoid an out-
                     come that “may affect” Honduras’s interest of a legal nature (see Applica-
                     tion for Permission to Intervene by Honduras, p. 11, para. 33).
                        52. As previously noted, Honduras need not establish an independent
                     basis for jurisdiction in order to support its Application for non‑party
                     intervention.
                        53. In concluding that Honduras should be permitted to intervene as a
                     non‑party, I have taken into account the Parties’ arguments on the law
                     and have considered the views of the Parties, which were divided (at least
                     as to non‑party intervention). Nicaragua opposed intervention and made
                     clear its concerns about the procedural consequences of intervention. I
                     have an appreciation for those concerns, but they do not alter my conclu-
                     sion that the Applicant has met its burden under Article 62 and that its
                     Application to intervene should be granted.

                                B. The Court Was Correct in Deciding not to Grant
                                      the Application to Intervene as a Party
                        54. While I would grant Honduras’s Application to intervene as a
                     non‑party, I do not reach the same conclusion as to its proposed interven-
                     tion as a party. Article 62 of the Statute makes no distinction between the
                     two kinds of intervention, so, at first blush, it might appear odd to find a
                     basis for only one kind of intervention. In its request to intervene as a
                     party, however, Honduras expressly seeks to join to these proceedings the
                     issue of the location of a “tripoint” among itself, Colombia and Nicara-
                     gua (see Judgment, paragraph 41 ; see also Application for Permission to

                     73

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                     490 	 territorial and maritime dispute (diss. op. donoghue)

                     Intervene by Honduras (p. 7), paragraph 22). Moreover, it asks the Court
                     to locate that tripoint along the boundary line established by the 1986
                     Treaty between Colombia and Honduras. In other words, the object of
                     Honduras’s proposed intervention as a party is not to avoid an effect on
                     its interest of a legal nature, but rather to cause such an effect, by binding
                     itself, as well as Costa Rica and Nicaragua, with respect to a legal determi
                     nation not otherwise before the Court — the location of a tripoint
                     among those three States along the boundary line established in the 1986
                     Colombia‑Honduras Treaty. The intervention by Honduras as a party,
                     on the terms requested by Honduras in its Application, would therefore
                     add a new dispute — albeit one closely related to the dispute between
                     the Parties — to the case. For this reason, I agree with the decision to
                     reject that form of intervention by Honduras in this case.

                                                     Conclusion

                        55. In the present case, I conclude that the Applicant has met its bur-
                     den of proof and has established that it meets the requirements of Arti-
                     cle 62. Honduras has claims that overlap the area that is in dispute in this
                     case. Consistent with its established practice, the Court can be expected
                     to take account of those claims in its Judgment. Thus, Honduras has an
                     “interest of a legal nature” that “may be affected” by the Court’s Judg-
                     ment. In addition to the overlapping claims, there is an additional and
                     more specific reason that Honduras’s interest of a legal nature “may be
                     affected” by the Judgment. If the Court adopts a line that is based on the
                     one proposed by Colombia, that line will have a significant impact on the
                     concrete meaning of the Court’s earlier Judgment in Nicaragua v. Hondu‑
                     ras, a Judgment to which Honduras is bound under Article 59.
                        56. Because the substantive criteria in Article 62 are sparsely worded,
                     they invite a range of interpretations. As discussed above, however, Arti-
                     cle 62 cannot be read to require an applicant to demonstrate that the
                     Judgment “may affect” it in the sense of Article 59. In its jurisprudence
                     on maritime boundaries, the Court repeatedly has recognized that its
                     judgments “may affect” third States with overlapping claims and has
                     crafted its judgments to stay clear of areas in which the judgment “may
                     affect” the rights of third States. Taking into account these consider-
                     ations, I have suggested here that situations of overlapping maritime
                     claims generally would appear to be circumstances in which the interest
                     of a legal nature of a third State “may be affected” by a judgment. While
                     one of the Court’s most recent relevant decisions (allowing the interven-
                     tion of Equatorial Guinea in the case concerning the Land and Maritime
                     Boundary between Cameroon and Nigeria (Cameroon v. Nigeria : Equato‑
                     rial Guinea intervening)) is consistent with this approach, it must be said
                     that other intervention cases — and the Judgments of the Court today —
                     suggest instead that an applicant for non‑party intervention in a situation
                     of overlapping claims or intersecting boundaries will fail unless the appli-

                     74

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                     491 	 territorial and maritime dispute (diss. op. donoghue)

                     cant can demonstrate that the judgment “may affect” it in some way that
                     is additional to the prospect that the Court will take account of that claim
                     in its judgment. The additional element(s) that would be sufficient for the
                     Court are unclear to me. Given that this Application, like that of Equa-
                     torial Guinea, arises in a situation of overlapping maritime claims, it is
                     also tempting to conclude that an objection by a single party can defeat
                     intervention, although the Court has not so stated, nor would such an
                     approach fit within Article 62. As previously noted, the Court has the
                     discretion to decide whether a particular situation is one in which the
                     third State’s interest of a legal nature “may be affected” by its judgment,
                     but that discretion is bounded by Article 62.

                        57. The Court today has reaffirmed that, even when it rejects an appli-
                     cation for intervention, it may take account of the information submitted
                     by the failed intervenor when it renders its judgment. I agree that the
                     Court is not barred from considering that information, but find this to be
                     a very unsatisfactory outcome. If the Court takes account of the third
                     State’s submissions in delimiting the boundary, then it seems inescapable
                     that the Court perceives that the third State’s interest of a legal nature
                     “may be affected” by its decision. A decision to reject an application but
                     nonetheless to use the information submitted by the third State gives rise
                     to a de facto means of third‑State participation that is not currently a
                     feature of the Statute or the Rules of Court. In the case concerning the
                     delimitation of the continental shelf between Libya and Malta (Continen‑
                     tal Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports
                     1985), for example, Italy’s request to intervene was rejected, but the
                     claims that it asserted in its request were expressly relied upon by the
                     Court to limit the scope of its decision in order to protect Italy’s interests
                     (ibid., pp. 25‑26, paras. 21‑22).
                        58. The current situation is problematic. It provides a mechanism for
                     the submission of third‑State views that is attractive to third States
                     (because it appears that the Court will consider their views whether or not
                     the application is granted), but that mechanism inevitably causes signifi-
                     cant delays in the proceedings, to the disadvantage of one or both parties.
                     Paradoxically, therefore, the Court’s skeptical attitude towards interven-
                     tion appears to give insufficient weight to party interests and instead to
                     protect the interests of third States.

                       59. Having been trained in a legal system that permits amicus curiae
                     briefs through which non‑parties provide views to a court without becom-
                     ing party to a case, I am not troubled by the prospect that the Court
                     would consider the views of non‑party third States. Nonetheless, I believe
                     that it would be better to do so in a more transparent and efficient man-
                     ner. By streamlining the procedures for considering applications for

                     75

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                     492 	 territorial and maritime dispute (diss. op. donoghue)

                     non‑party intervention and by limiting the procedural rights given to
                     non‑party intervenors, for example, the Court could take account of a
                     third State’s “interest of a legal nature” in situations in which the third
                     State would not be bound by the judgment, reserving the more onerous
                     procedures for applications for intervention as a party (which, to date,
                     have been rare). Alternatively, it might be possible to develop another
                     mechanism for the submission of third‑State views.

                                                              (Signed) Joan E. Donoghue.

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