131

DISSENTING OPINION OF JUDGE SCHWEBEL

1. I regret that I am unable to concur in the Judgment of the Court
denying the request of Italy for permission to intervene in the pending
proceedings between Libya and Malta. Italy clearly “has an interest of a
legal nature which may be affected by the decision in the case” between
Libya and Malta. Since Italy thus fulfils the provisions of Article 62 of the
Statute, the Court should have decided positively upon Italy’s request for
permission to intervene.

2. The Court’s negative Judgment does not deny that Italy “has an
interest of a legal nature” in the proceedings between Malta and Libya. But
it rejects the Italian application to intervene, apparently on three grounds.
It indicated that Italy’s interest may not be “affected” by the decision in
the case. It concludes that Italy, seeking, as in the view of the Court it does,
a decision on a “dispute” between it and the principal Parties, does not
request “genuine intervention” within the meaning of the Statute. And it
decides that, since Italy seeks a decision upholding the rights it asserts
against the principal Parties in that dispute, the Court can have jurisdiction
to grant such a decision only with the consent of the principal Parties or by
showing of a valid title of jurisdiction between Italy and those Parties,
which is lacking. It is believed that the Court is in error on all three counts.
This opinion will accordingly endeavour to demonstrate why the Italian
request to intervene meets the terms of Article 62 and why that request is
one for “genuine intervention”. It will then consider what is the only
substantial ground of objection to it : the alleged absence of a jurisdic-
tional link between Italy and the principal Parties to the case.

ITALY’S “INTEREST OF A LEGAL NATURE”

3. In its Application for permission to intervene, Italy submitted
that :

“some of the areas of continental shelf disputed between Malta and
Libya in the present proceedings are areas over which Italy considers
that it has undeniable rights. Taking into account the object of the
controversy between the two Parties to the present proceedings, Italy
consequently has a legal interest which is indisputably en cause in the
case. Its position is even, in procedural law, an absolutely classic case
for intervention, and one in which intervention in practice is always
admitted : the situation in which the intervener relies on rights as the
true dominus of the object which is disputed, or a part thereof.

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the Court will not confine itself to laying down principles and rules of
international law. It will have to determine how such principles and
rules should be applied by the Parties in drawing the delimitation line.
That line will thus be predetermined in the Court’s judgment with a
sufficient degree of precision to prevent the Parties meeting difficul-
ties at the final stage of the delimitation operation.

In addition, it is perfectly evident that such a predetermined line,
passing within areas which Italy regards as appertaining to itself,
would de facto and de jure effect the attribution to the Parties of the
areas of continental shelf to be delimited by that line.

It would be difficult for Italy subsequently to obtain recognition of
its rights, either by negotiation, since the Party with which it sought to
negotiate would obviously take refuge behind the Court’s judgment
and refuse to make any concessions, or by proposing to submit the
dispute to the decision of the Court, which would, in addition, be
bound by its previous judgment.” (Paras. 11-12.)

In the oral hearing, counsel for Italy indicated in what areas of the con-
tinental shelf at issue between the principal Parties claims of Italy overlap
claims of Malta (and, in effect, of Libya). Coordinates of the Italian claims
were provided in answer to a question posed by Judge de Lacharrière.
Italy’s counsel maintained that :

“The main point... is that in a number of crucial zones among
those claimed by Malta, it would be for Italy and not for Malta to
proceed to a delimitation vis-a-vis Libya.”

4. Where States A and B, parties to a case before the Court, make
territorial claims against each other, and State C, which requests permis-
sion to intervene, maintains that A and B seek a judgment of the Court to
territory to part of which C has better title, it is obvious that C “has an
interest of a legal nature which may be affected by the decision in the case”.
A more compelling case of a legal interest of an intervening State would be
hard to imagine. That in substance is Italy’s position in the proceedings at
bar.

5. It has been maintained that, while Italy indubitably considers that it
has the foregoing interest of a legal nature, it has not proved that it has and
that the Court should reject its request for permission to intervene because
of the lack of that proof. However, while Italy would have to prove that its
interest of a legal nature is well founded in order to prevail on the merits of
a case in which permission to intervene were to have been granted, it need
not so prove in order for its request to intervene to be granted. To require
that it present such proof is to require it to argue and sustain a case which it
has not been accorded permission to present. All that the Court at this
stage need establish is that the interest of a legal nature which Italy makes
out is, prima facie, a plausible interest. Nor need Italy show that its interest

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was the subject of dispute with the principal Parties before it filed its
Application to intervene. The idea of intervention is that two parties are
litigating their dispute ; a third party, apprehending that judicial settle-
ment of their dispute may prejudice its interests, seeks to intervene. As the
Court put it in the Haya de la Torre case:

“every intervention is incidental to the proceedings in a case ; it
follows that a declaration filed as an intervention only acquires that
character, in law, if it actually relates to the subject-matter of the
pending proceedings” (.C.J. Reports 1951, p. 76).

There is no requirement that the intervenor must independently and as a
condition of intervention demonstrate that it has had a distinct dispute
with one or both of the parties in litigation which had matured before the
bringing of the request to intervene.

6. Italy’s continental shelf claims presumably are in its legal interest.
They are not easily distinguished from “an interest of a legal nature”. The
Court cannot deny, and does not deny, the undeniable : that where Italy,
juxtaposed as it is geographically within the narrow limits of the Medi-
terranean Sea on the very continental shelf over which Malta and Libya
make conflicting claims, for its part advances claims to somé of those same
areas of continental shelf, Italy “has an interest of a legal nature. . .”. The
Italian legal interest not only is eminently plausible, it is so obvious as to be
beyond question.

... WHiCH May BE AFFECTED BY THE DECISION IN THE CASE...”

7. May Italy’s interest of a legal nature be affected by the Court’s
decision in the case ? In its Application for permission to intervene which
has been quoted in pertinent part above, Italy submits that its legal
interests will be affected by a decision of the Court which, when applied,
would effect the attribution to Malta or Libya of areas to which Italy lays
claim, and it illustrates in what manner its interests would be adversely
affected.

8. It should be recalled (as the Court failed to recall in 1981 in rejecting
Malta’s application for permission to intervene) that Article 62 of the
Statute specifies that 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. Article 62 does
not provide that, should a State consider that it has an interest of a legal
nature which “shall” be “determined” by the decision in the case, it may
submit such a request. The State seeking to intervene accordingly need not
prove that it has a legal interest that the Court’s decision will determine ; it
need merely show that it has a legal interest which just “may” be no more
than “affected” — prejudiced, promoted or in some way altered. That is not
an exigent standard to meet. And Italy has more than met it. If the Court
should render a judgment which lays down

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“what principles and rules of international law are applicable to the
delimitation of the area of the continental shelf which appertains to
the Republic of Malta and the area of continental shelf which apper-
tains to the Libyan Arab Republic, and how in practice such princi-
ples and rules can be applied by the two Parties in this particular case
in order that they may without difficulty delimit such areas ...”,

it is difficult to see how such principles and rules can be asseverated and
applied without “affecting” Italy’s “interest of a legal nature” in respect to
areas of the continental shelf which, it claims, lie between or athwart the
properly delimited claims of Malta and Libya and appertain to Italy.

9. It is no answer to say — as, in substance, the Court appears to say —
that Italy’s interest of a legal nature cannot be affected by the decision in
the case because, by the terms of Article 59 of the Statute, “The decision of
the Court has no binding force except between the parties and in respect of
that particular case”. If that answer were good, then Article 62 would be
pointless : there would never be a case to which Article 62 should or could
apply, since, by reason of Article 59, a third State’s legal interest never can
be affected by a decision in a case. Article 59 cannot, by any canon of
interpretation, be read so as to read Article 62 out of the Statute.

10. The Court endeavours. to meet this evident conclusion by maintain-
ing that its interpretation of Article 59 actually does not render Article 62
pointless, for the reason that, while, by the force of Article 59, the legal
interest of a third State cannot be affected by a decision in a case to which it
is not party, such third State still has the choice afforded by the conjunc-
tion of Articles 62 and 59 either of seeking the procedural economy of
means which the former affords or the legal immunity which the latter
ensures. That is to say, the purpose of Article 62, in the logic of the Court,
apparently is not to afford third States the facility of intervention in order
to protect or promote an interest of a legal nature which may be affected by
the decision in the case, since, by reason of Article 59, no decision of the
Court can affect such legal interest of a third State. It is merely to allow the
third State to save itself the burden of subsequent, direct litigation against
the principal Parties — in the event that there is a jurisdictional basis for
such litigation — by permitting it to intervene in their case, if the Court so
decides. Such an analysis reduces Article 62 to an improbable procedural
convenience which neither its terms nor its fravaux préparatoires support.
It is virtually tantamount to reading Article 62 out of the Statute.

11. Moreover, it cannot be persuasively maintained that a judgment of
the Court setting out the applied rules for the division of areas of conti-
nental shelf between two States will not even “affect” the legal interests of
a third. State which lays claims to some of those same areas. To so maintain
is to devalue the legal worth of the Court’s judgments, to which all mem-

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bers of the international community shall give due weight as authoritative
holdings of international law.

12. Even if the Court were to hand down a judgment as between Malta
and Libya which explicitly is subject to the rights and titles of third States,
which expressly reserves competing claims of Italy, and which declares that
it is without prejudice to those claims — assuming that the Court were to
find itself able to write a judgment on the merits of the case in these legal
and geographic circumstances which when applied delimits the shelf
between Malta and Libya without treating Italy’s intervening claims — the
judgment “may” merely “affect” Italy’s claims by its reasoning and in so
far as its effect is to allot shelf areas (however conditionally) to Malta or
Libya which are areas to which Italy also lays claim. This could be so even
if the Court’s future judgment were to speak of the relative and not the
absolute titles of Malta and Libya. The Court could go further. It could
limit the scope of its judgment by refraining from indicating the practical
application of principles of delimitation to those areas of continental shelf
which Italy claims, holding that, as to these areas, delimitation must follow
from negotiation or adjudication between or among Italy, Malta and
Libya. Such a judgment might satisfy Italy, but would it not constitute a
measure of endorsement by the Court of Italy’s claims without troubling
Italy either to justify those claims or to place them at stake in the current
proceedings between the principal Parties? Indeed, such a judgment
would in effect acknowledge that Italy “has an interest of a legal nature
which may be affected by the decision in the case” were it not for that
element of the decision which exempts from its reach the areas which are
the object of Italian claims. Thus the more reasonable approach — given
the fact that these areas are already in issue between the principal Parties —
would be to grant Italy’s request to intervene and oblige it to defend its
claims. That would do justice not only to Italy but to Malta and Libya,
which otherwise could find that the judgment they seek has been truncated
to accommodate claims which they would have forgone the opportunity to
refute.

“IT SHALL BE FOR THE COURT TO DECIDE...”

13. Paragraph 1 of Article 62 provides that, 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.
Paragraph 2 provides that : “It shall be for the Court to decide upon this
request.” In its 1981 Judgment on Malta’s application, the Court referred
to this provision, and emphasized

“that it does not consider Paragraph 2 to confer any general discretion
to accept or reject a request for permission to intervene for reasons
simply of policy. On the contrary, in the view of the Court the task
entrusted to it by that paragraph is to determine the admissibility or

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otherwise of the request by reference to the relevant provisions of the
Statute.” (C.J. Reports 1981, p. 12, para. 17.)

14. That, however, is not to say that the relevant provisions of the
Statute speak for themselves ; rather, they leave room for a substantial
margin of appreciation, as has been demonstrated by intermittent discus-
sions in the Court for some 60 years. As Sir Gerald Fitzmaurice pointed out
in an article written 25 years ago, Article 62 leaves :

“room for considerable freedom of appreciation ; and since interven-
tion under Article 62 is not as of right, it must follow that the Court
exercises a quasi-discretionary power under it, and is not absolutely
bound to grant the request, even if the necessary conditions are
present, or there would be no effective difference between this case
and that of Article 63. Consequently, the Court is entitled to take into
account the question of propriety, appropriateness, weight of interest,
etc.” (“The Law and Procedure of the International Court of Justice,
1951-54 : Questions of Jurisdiction, Competence and Procedure”,
XXXIV British Year Book of International Law (1958), p. 127.)

15. In exercise of the measure of discretion which Article 62 affords it,
the Court in 1981 found that the sort of “non-party” intervention which
Malta sought was not intervention within the meaning of the Statute. That
was not a necessary conclusion, as the separate opinions of Judge Oda and
myself indicated, but it was a not unreasonable one. In this case, the Court
could exercise the measure of discretion accorded by Article 62 to admit
Italy’s intervention, which, while markedly evocative of Malta’s applica-
tion of 1981 in many respects — as counsel for Malta so skilfully argued in
the recent oral hearing — nevertheless may be distinguished from it. It may
be distinguished in the following respects :

(a) Italy asserts claims to swaths of continental shelf which lie between or
athwart some of the Maltese and Libyan claims ; Malta’s claims were
to areas at the end of a line which would divide the adjacent, not
opposite, claims of Libya and Tunisia, and accordingly raised inter-
ests which could be taken into account by an indication of a line whose
angle but not terminus was required.

(b) Moreover, while Malta described its continental shelf claims in Court
at length, it took pains not to-place those claims before the Court for
decision, while, in contrast, Italy does place its overlapping continen-
tal shelf claims “at stake”.

(c} Malta sought to intervene in 1981 as a kind of purposeful commen-
tator on the governing principles of international law and their appli-

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(d)

(e)

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CONTINENTAL SHELF (DISS. OP. SCHWEBEL)

cation to the claims of Libya and Tunisia, as they might affect the
position of Malta. Italy seeks to argue not simply legal principles but
to defend concrete zones of material interest with which, one way or
another (and unlike the situation which obtained in 1981) the Court
will have to deal in this case.

Italy, unlike Malta, requests permission to intervene as a party to the
case. Not as a party to a new dispute not submitted in the Special
Agreement ; not as a party taking the side of one principal Party
against the other in the dispute which the Special Agreement does
submit ; not (allegedly) as a party making claims against the principal
Parties ; but as a party which seeks permission to defend its claims
against what it views as the competing claims of the principal Parties
in the very geographic area at issue between them. Italy has denom-
inated its status as that of an “intervening party”. That is an apt term.
But others may choose — in view of Italy’s position that it does not
seek to advance claims against Libya and Malta and does not seek a
delimitation of its own claims — to see Italy as seeking a kind of
non-party intervention. In its 1981 Judgment, the Court debarred
“the direct yet limited form of participation in the subject-matter of
the proceedings for which Malta here seeks permission . . .” as one
which could not be “properly admitted as falling within the terms of
the intervention for which Article 62 of the Statute provides” (Z.C.J.
Reports 1981, p. 19, para. 34). But it does not follow that it debarred
the somewhat different — direct, limited but different — form of
participation in the subject-matter of the proceedings for which here
Italy seeks permission, whether it is viewed as party or non-party
intervention.

In its Judgment rejecting Malta’s application, the majority of the
Court insisted on holding that :

“the very character of the intervention for which Malta seeks
permission shows ... that the interest of a legal nature invoked
by Malta cannot be considered to be one ‘which may be affected
by the decision in the case’ within the meaning of Article 62 of the
Statute” (ibid, para. 33).

The Court quotes this holding with apparent approval in its Judgment
on Italy’s application. In my view, which I set out in my separate
opinion on Malta’s application, this conclusion — which embodied a
striking non sequitur — was both needless and erroneous. It was
needless, for the Court’s decision that “the direct yet limited form of
participation... for which Malta here seeks permission could not
properly be admitted as falling within the terms of intervention for
which Article 62 of the Statute provides” was sufficient ground to
sustain the Court’s denial of Malta’s request. It was erroneous, for it
did not recognize the fact that Malta, by reason of its claims and
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geographical situation, had legal interests which might well have been
“affected” by the Court’s judgment in the Tunisia/Libya case. The
result of the Court’s 1981 Judgment was to establish a link between
the object of the intervention and the interests of a legal nature which
may be affected by the decision in the case, a link which appears to
hold that if the object is limited so as not to put the claims of the
intended intervenor at issue, there is ipso jure no interest of a legal
nature which may be affected by the decision in the case. Since,
however, in the current case the Court holds exactly the opposite —
namely, that the Italian object is not so limited and Italy does put its
claims at issue — it follows not only that, on this ground as well, the
Italian application is to be distinguished from the Maltese, but that,
by application of the Court’s reasoning of 1981 and of the logic of the
Court’s Judgment in this case, Italy has an interest of a legal nature
which may be affected by the decision in this case.

16. Although, as just indicated, the thrust of the Court’s Judgment in
this case appears itself to lead to the conclusion that Italy has an interest of
a legal nature which may be affected by the decision in the case, the Court
nevertheless rejects Italy’s application for permission to intervene. While
the essential ground of its decision appears to be what it views as the
absence of a jurisdictional link between Italy and the principal Parties to
the case, it also concludes that what Italy seeks is not genuine intervention
within the meaning of Article 62. The Court observes that Italy itself
conceded that where a State seeks to intervene in order to assert a right
equivalent to a mainline claim, that application is not within the ambit of
Article 62. It concludes that

“there is nothing in Article 62 to suggest that it was intended as an
alternative means of bringing an additional dispute as a case before
the Court... or as a method of asserting the individual rights of a
State not party to the case”.

And since the Court holds that Italy does seek more than the preservation
of its rights, that it makes claims with a view to the establishment of its
rights, the Court concludes that it may debar Italy’s application as not
being one for genuine intervention within the meaning of Article 62.

17. The flaw in this analysis is that Italy’s request, even if, arguendo, it is
acknowledged to advance claims against the principal Parties, does not
give rise to an additional dispute, except in so far as what is a dispute
between two parties would be a dispute between three. It is not possible to
contemplate intervention which excludes a third party. Thus Italy’s inter-
vention of itself cannot be a factor which places its application outside the
bounds of Article 62. The question rather is, is it genuine intervention when
measured against the critical criterion set out in the Haya de la Torre
case :

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“every intervention is incidental to the proceedings in a case; it
follows that a declaration filed as an intervention only acquires that
character, in law, if it actually relates to the subject-matter of the
pending proceedings” (.C.J. Reports 1951, p. 76).

The Italian application is addressed to some of the very areas of conti-
nental shelf which are in dispute between Malta and Libya and to the
dispute over their delimitation. Thus it “actually relates to the subject-
matter of the pending proceedings”. It is “incidental” to those proceed-
ings, intimately related as it is to the existing dispute between the principal
Parties. Accordingly, the Italian intervention is well within the ambit of
Article 62. It would be otherwise if Italy sought to make claims against
Malta and Libya which were unrelated to the subject-matter of the pending
proceedings ; that would not be intervention at all. But clearly that is not
the fact. That Italy makes claims of itself is not enough to justify the
Court’s conclusion that what it seeks is not genuine intervention. On the
contrary, what Italy seeks is intervention of a classic kind. The Court’s
virtually unsupported conclusion that it is not intervention within the
meaning of the Statute is not justified by the terms of the Statute, and finds
scant support in the travaux préparatoires of Article 62 or, for that matter,
in the institution of intervention as it is understood in the general prin-
ciples of law recognized by civilized nations. Nor is it easy to reconcile with
the Court’s Judgment of 1981 rejecting Malta’s application. A primary
ground of that Judgment was that Malta’s application was inadmissible
because it refrained from placing Malta’s claims in issue. But in the instant
case, the Court rejects Italy’s application on the ground that, since it places
Italy’s claims against Malta and Libya in issue, it is not genuine interven-
tion.

THE ISSUE OF A JURISDICTIONAL LINK

18. Since Italy seeks permission to intervene in order to defend claims to
certain continental shelf zones to which Malta and Libya lay claim the
Courts Judgment holds that in reality Italy seeks to assert claims and thus
establish rights against the principal Parties. From this it deduces that Italy
seeks to intervene as a party claimant in a dispute with the principal
Parties, with the result that, unlike the Malta case, it is necessary to decide,
not “in general’’, but on the facts of. this case, whether the existence of a
valid link of jurisdiction with the principal Parties is an essential condition
for the granting of permission to intervene. The Court concludes that it is.
The remainder of this dissent will consider this supervening question.

19. Itis beyond dispute that the Court’s jurisdiction invariably is based

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upon the consent of the parties impleaded before it. The Court’s Judgment
in this case holds that such a consensual title of jurisdiction cannot be
found in the terms or intendment of Article 62. Accordingly, the Court
infers that a State seeking to intervene must do so either with the assent of
both of the principal parties to the case, or it must show a separate title of
jurisdiction manifesting an earlier consent of the principal parties to liti-
gate with it. This is a conclusion which the Court has reached in the light of
“primarily the principle of consent, but also the principles of reciprocity
and equality of States”. An exception to these principles “could not be
admitted unless it were very clearly expressed’. While there is much to be
said for the Court’s position, there are cogent considerations which cut the
other way.

20. Article 62 of the Statute provides that the Court shall decide upon a
request to intervene, having regard to :

(a) whether the State seeking to intervene “has an interest of a legal
nature” which

(b) “may be affected by the decision in the case”. There is no further
provision, such as

(c) “provided that the State seeking to intervene establishes a title of
jurisdiction with each of the principal parties to the case”.

The essence of the problem then is to decide whether Article 62 of itself can
and does provide the Court with jurisdiction to admit a request for inter-
vention, or whether intervention can be granted only if the intended
intervener can demonstrate a separate and express title of jurisdiction.

21. It should initially be observed that, where the Statute means to
prescribe a specific title of jurisdiction, it does so expressly. Thus, Arti-
cle 53 of the Statute, which, like Article 62, is found in Chapter III, “Pro-
cedure”, provides :

“1. Whenever one of the parties does not appear before the Court,
or fails to defend its case, the other party may call upon the Court to
decide in favour of its claim.

2. The Court must, before doing so, satisfy itself, not only that it
has jurisdiction in accordance with Articles 36 and 37, but also that
the claim is well founded in fact and law.”

By way of instructive contrast, Article 62 does not provide that, before
deciding upon a request for permission to intervene, the Court shall satisfy
itself “not only that it has jurisdiction in accordance with Articles 36 and
37...”. .

22. On the face of it, the “plain meaning” of Article 62 rather is that no
separate title of jurisdiction is required. That was the conclusion reached
some 25 years ago by that most subtle of analysts, Sir Gerald Fitzmaurice,
in the article earlier cited, at page 124:

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141 CONTINENTAL SHELF (DISS. OP. SCHWEBEL)

“The jurisdiction of the Court to entertain third-party intervention
is another example of incidental jurisdiction, the general character of
which has already been considered in connection with the indication
of interim measures, and equally arises from the existence of express
provisions of the Statute which confer this jurisdiction upon the Court
and allow it to be exercised independently of the specific consent of
the parties.”

23. Another eminent student of the Court, who, like Fitzmaurice, was
later to be elected a member of the Court, reached a similar conclusion in
his classic treatise, The Permanent Court of International Justice (1934).
Professor Manley O. Hudson concluded :

“Article 36 of the Statute provides four sources of the Court’s
jurisdiction ... Several additional articles of the Statute relate to the
exercise of jurisdiction incidental to that conferred : thus, Article
41... Article 48... Article 53... Articles 60 and 61 .. . Intervention
as provided for in Articles 62 and 63 of the Statute may be said to
constitute an independent source of the Court’s jurisdiction. Under
Article 63, a State has a right to intervene . . . under Article 62, it rests
with the Court to say whether intervention will be permitted, and the
Court should only admit such intervention if, in its opinion, the
existence of an ‘interest of a legal nature which may be affected by the
decision’ in the pending case, is sufficiently demonstrated.”

“Intervention. Quite apart from the sources of jurisdiction set out in
Articles 36 and 37 of the Statute, the Court may acquire contentious
Jurisdiction as a result of a State’s intervention under Article 62 or
under Article 63 ... Article 62 was drafted when it was proposed to
confer on the Court a general obligatory jurisdiction ; though that
proposal was rejected, no limits were set for the application of Article
62. If two States are before the Court by reason of declarations made
under paragraph 2 of Article 36 of the Statute, it seems a derogation
from the condition of reciprocity therein laid down to allow a third
State which has made no similar declaration to become a party to their
case upon its own motion ; yet the problem is not essentially different
if two States are before the Court under a special agreement and a
third State which is not a party to the agreement seeks to intervene.
The jurisprudence of the Court has not set additional conditions for
the application of Article 62.” (At pp. 360, 369 and 370.)

24. Similarly, Professor Hans Kelsen — of whose authority nothing
need be said — concluded :

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142 CONTINENTAL SHELF (DISS. OP. SCHWEBEL)

“No state can be forced into Court against its will. But that does not
mean that a state can be party to a case before the Court only together
with that state (or those states) with which it has — either specially or
generally — agreed upon referring the case to the Court. For Articles
62 and 63 of the Statute provide : [quoting the terms thereof]

If the Court grants the request submitted by a state under Article 62,
or if a state uses its right to intervene under Article 63, the state
concerned becomes a party to the pending case although there exists
no special or general agreement between this state and the other
parties to the case.” (The Law of the United Nations, 1950, p. 522.)

25. Most recently, the President of the International Court of Justice
wrote with respect to the “argument that Article 62 should not be read in
isolation” the following :

“This may be so, but reading it within the context of the Statute as a
whole, including Article 36, must involve not only reading Article 62
(1) above as subject to Article 36, but also to reading it as intended to
be regarded as apart from and independent of Article 36. If this were
not so, and Article 62 (1) were to be read subject to Article 36, what
would have been more natural than to make the issue of intervention
subject to compulsory jurisdiction in, say, a subsection (7) of Article
36 ? Indeed, a cross-reference to Article 36 might have been included
in Article 62, making it clear that compulsory jurisdiction as envis-
aged in Article 36 is really intended to apply in the case of contentious
proceedings no less than in the case of intervention. For example,
Article 53 of the Statute, dealing with the problem of the non-
appearing defendant, contains a specific reference to Articles 36 and
37 in these words : ‘The Court must, before doing so, satisfy itself, not
only that it has jurisdiction in accordance with Articles 36 and 37, but
also that the claim is well-founded in fact and law’ ?. It is clearly no
answer to say that it is because the defendant State is absent in sucha
case that this specific reference to Articles 36 and 37 has been inserted.
The Statute really requires the issue of jurisdiction and stipulates it
expressly.” (T. O. Elias, “The Limits of the Right of Intervention in a
Case before the International Court of Justice”, Festschrift fir Her-
mann Mosler, 1983, pp. 163-164.)

° “Wherever the Statute requires to be specific, it often does so by cross-
references ; e.g., reference in Article 31 (6) to Articles 2, 17 (2), 20 and 24,
emphasizing the conditions necessary to be fulfilled by ad hoc judges in order to
entitle them to be put on terms of complete equality with their colleagues.”

26. Nevertheless, despite the contrast between the terms of Articles 53
and 62, and despite the conclusions not only of the foregoing authorities

143
143 CONTINENTAL SHELF (DISS. OP. SCHWEBEL)

but of judges of the Permanent Court of International Justice who are
quoted below, it is argued that Article 62 must be interpreted in the context .
of the Statute as a whole ; that a postulate of that Statute is that the consent
of States must be obtained in order for the Court to exercise jurisdiction
over them ; that the Court’s jurisdiction is dealt with in another chapter, on
“Competence of the Court”, essentially in another article, Article 36 ; and
accordingly that an exercise of jurisdiction by the Court where interven-
tion is sought must comport with Article 36 regardless of the absence of an
express reference to jurisdictional requirements in Article 62. That is to
say, a requirement for a jurisdictional link must be read into the terms of
Article 62. If it is, the application of Italy must be denied because it has
failed to show that Libya and Malta have assented or specially agreed to its
intervention, or that the Court has jurisdiction by the terms of a treaty or
convention in force or under the optional clause.

27. There is indeed no denying not only that Article 62 must be read in
context but that it must be read consistently with Article 36 and the
fundamental postulate of consent of States to the exercise of the Court’s
jurisdiction. It is precisely in appreciation of that position that it is con-
cluded that Article 62 of itself furnishes sufficient title of jurisdiction to
intervene “in the case” — not to bring a new case in the guise of inter-
vention, but to intervene incidentally “in the case”. This is so for the
following reasons.

28. Paragraph 1 of Article 36 provides that the jurisdiction of the Court
“comprises ... all matters specially provided for in the Charter of the
United Nations . . .”. By the terms of Article 92 of the Charter, the Court’s
Statute “forms an integral part of the present Charter”. The provision of
Article 62 authorizing the Court to permit a State to intervene which shows
that it has a legal interest which may be affected by the decision in the case
is one to which all parties to the Statute have consented ; on its face, it
appears to empower the Court to permit a State to intervene which fulfils
only the conditions which that article specifies; and thus consent to
jurisdiction is in this manner specially provided for in the Charter of the
United Nations. The fact that this special provision is not express in
respect of jurisdiction does not show that it is not special. Indeed, other
articles of the Statute, such as Article 41 respecting provisional measures,
which afford the Court a limited, incidental jurisdiction, do not expressly
refer to jurisdiction. But where in the Statute an implicit investment of
special jurisdiction is thought not to suffice, as in Article 53, the Statute
makes express reference to the need for “jurisdiction in accordance with
Articles 36 and 37...”.

29. Moreover, the jurisdiction of the Court under Article 36, paragraph
1, also “comprises . . . all matters specially provided for . . . in treaties and
conventions in force”. By application of the foregoing reasoning, Article
62 equally provides special provision for the exercise of the Court’s juris-
diction, for it is part of the Statute which indubitably is a treaty in
force.

30. If it be argued that provisions of the Statute outside of Chapter II

144
144 CONTINENTAL SHELF (DISS. OP. SCHWEBEL)

and Article 36 cannot of themselves be read as authorizing the Court to
exercise jurisdiction, that argument is refuted not only by the plain mean-
ing and by the foregoing interpretation of Article 62 but by the terms of
Article 63. Under Article 63, a State has “the right to intervene in the
proceedings” where the construction of a convention to which such State is
party is in question in the case. But that right is not conditioned on a
demonstration of the Court’s jurisdiction beyond that contained in Article
63 itself. Thus an article outside of Chapter JI and Article 36 of the Statute,
which makes no express reference to jurisdiction, of itself provides suffi-
cient title of jurisdiction. If Article 63 does this, why cannot Article 62 ? It
is the more plausible that Article 62 does, linked in substance as it is to
Article 63.

31. Article 63 unconditionally authorizes intervention where the State
seeking it is party to a treaty. Thus even where such a State is party to a
treaty which contains provision (as in an annexed protocol) for submission
to the Court’s jurisdiction in disputes over the interpretation or application
of the treaty, and that State and the parties to the principal case have not
adhered to the protocol, the Court apparently would have jurisdiction to
admit the intended intervenor to the case. If an additional jurisdictional
link need not be established in such an instance under Article 63, why,
again, must it be established under Article 62 ? Why should there be so
fundamental a cleavage between the application of conventional and of
general international law ?

32. Itis recognized that one may argue that, since Article 63 provides for
“a right to intervene in the proceedings”, while Article 62 provides that it
shali be for the Court to decide upon a State’s request to intervene, the
“right” of intervention under Article 63 is tantamount to an express grant
of jurisdiction whereas the possibility of intervention under Article 62 is
not. This is a plausible but not a necessary construction of the two articles.
It is no less plausible to argue that Articles 62 and 63 equally accord the
Court jurisdiction to admit intervention, but that Article 63 speaks of a
“right to intervene” because all that need be ascertained is that a State
which seeks to exercise that right is party to the convention whose con-
struction is at issue, whereas, under Article 62, the Court must decide
whether the State that requests permission to intervene “has an interest of a
legal nature which may be affected by the decision in the case”. Since the
Court necessarily must exercise its judicial appreciation of whether that
State meets those criteria, Article 62 could not speak of a “right” of
intervention.

33. It is difficult to accept the argument that the failure to specify a
jurisdictional link in Article 62 was an oversight, that when the Statute of
the Permanent Court of International Justice was drawn up originally, it
provided for universal compulsory jurisdiction under Article 62, and that
when the Statute was revised before its adoption to provide for limited
jurisdiction in the terms contained in Article 36, its drafters neglected to
bring Article 62 into express consonance with the intent of Article 36. As

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145 CONTINENTAL SHELF (DISS. OP. SCHWEBEL)

shown by the debates among judges at the outset of the Court’s life in 1922,
this theory, while advanced by one judge of the Permanent Court of
International Justice, was denied by others in no less a position to know
than he who supported it. Moreover, if the theory ever was credible, it can
no longer be, in view of the fact that the Statute was carefully examined and
somewhat revised in 1945. Article 62 itself was the subject of revision ;
three words were deleted from its English text. Can it be supposed that, if it
were the understanding or apprehension, in the years preceding, that
Article 62 contained an oversight, it would not have been corrected in the
course of the 1945 revision of the Statute ? Furthermore, it is unpersuasive
to argue that Article 62 was not revised to take account of the rejection of
general compulsory jurisdiction in 1920 and 1945 because it was assumed
that Article 62 of itself contained no title of jurisdiction. That argument
runs counter to views expressed in the Permanent Court of International
Justice both by Judge Altamira, who was the source of the claim that
Article 62 had not been revised through oversight, and of those several
judges who maintained that Article 62 of itself grants the Court jurisdic-
tion.

34. While the early debates among the judges of the Permanent Court of
International Justice demonstrate sharply divergent and prescient views
on the problems of a jurisdictional link, it is significant that the President
of the Court at that initial juncture terminated debate on the question with
the following ruling :

“The President stated that he could not take a vote upon a proposal
the effect of which would be to limit the right of intervention (as
prescribed in Article 62) to such States as had accepted compulsory
jurisdiction. If a proposal in this sense were adopted, it would be
contrary to the Statute.” (Preliminary Session of the Court, Seven-
teenth Meeting, 24 February 1922, p. 96.)

35. To read into Article 62 an additional requirement of jurisdiction
could in practice confine the institution of intervention to marginal limits.
There is no reason to believe that the drafters of the Statute meant to
restrict intervention to the unlikely circumstances in which the intervenor
could establish — apart from the terms of Article 62 — a basis of juris-
diction with each of the principal parties to the case. On the contrary, the
institution of intervention was regarded as having significant potential. In
Court exchanges in 1922, Lord Finlay went so far as to say that, “. . . it was
thanks to the existence of this Article that some States had accepted the
Statute of the Court” (and he said this in opposing a proposal to condition
reliance upon Article 62 upon a showing of jurisdiction, a proposal which
Judge John Bassett Moore then said “amounted to a proposal for the
amendment of Article 62 of the Statute” which was “quite inadmissible”)
(Seventeenth Meeting, loc. cit., pp. 94, 95). The Court should not now
prejudice that potential by imposing a jurisdictional condition on Article
62 which its terms do not contain.

146
146 CONTINENTAL SHELF (DISS. OP. SCHWEBEL)

36. The terms of Article 81, paragraph 2 (c), of the most recently
adopted version of the Rules of Court were not intended to introduce and
do not introduce a jurisdictional requirement where none existed before.
The Rules of Court could not of course prescribe, as of 1978, a condition
not contained, expressly or impliedly, by the governing provisions of the
Statute. Paragraph 2 (c) of Article 81 of the Rules of Court recognizes this
by providing for the specification of “any basis of jurisdiction which is
claimed to exist as between the State applying to intervene and the parties
to the case”. The Court acted with deliberation in purposefully specifying
“any” basis of jurisdiction rather than “the” basis of jurisdiction. In so
doing, the Court meant to avoid prejudging and did not prejudge the
question of whether a title of jurisdiction is a necessary precondition of
intervention under Article 62. Its intention was merely to draw attention to
the point and to ensure that a State which could indicate such a title of
Jurisdiction should so inform the Court. This is demonstrated by the
unequivocal statements which the then President of the Court and the
Chairman of the Rules Committee made when the Rule was introduced,
debated and adopted by the Court. Thus to treat Article 81, paragraph 2
(c), of the Rules as informative rather than conditional is not to make it —
as was claimed in the oral hearing on Italy’s application — “meaningless”,
contrary to the canons of interpretation. Rather, it is to give it the exact
meaning which the drafters of that provision intended.

37. Finaily, there is the question of whether a title of jurisdiction in case
of intervention beyond that accorded by Article 62 is ever required. It was
suggested by counsel for Italy that, if ever required, it would be not in a
truly incidental case of intervention such as Italy’s but where, under the
guise of intervention, a State seeks to bring a new “mainline case” — to
bring its own claims against the principal parties to the case. The Court has
seized upon this suggestion to hold that Italy actually does seek a decision
on the rights it has claimed against the principal Parties and that, therefore,
a specific title of jurisdiction is required.

38. Itis believed that in this the Court is in error. It may not be wrong to
conclude that Italy seeks to assert it own claims when it places its defence
of Italian interests in specified zones of the continental shelf “at stake” ; at
any rate, that is arguable. But the Court is on doubtful ground in holding
that, if Italy does so, it is seeking a decision on claims which are not
incidental to the proceedings in the case and which thus require demon-
stration of a specific title of jurisdiction. For, as observed above, the object
of Italy’s claims are areas of the continental shelf which already are in
dispute between the principal Parties. The new element which Italy seeks
to insert in the case at bar and to assert against its principal Parties is Italy,
1.e., Italy’s very presence in the case ; instead of claims to the areas in
question being made before the Court by two States, they would, if Italy
were to be admitted, be made by three. It is of the essence of intervention
that three rather than two parties take part in the case. To hold that, by

147
147 CONTINENTAL SHELF (DISS. OP. SCHWEBEL)

reason of its intervention and the claims on which it seeks decision, Italy
would be bringing a claim which is new and thus outside the ambit of the
proceedings and the Special Agreement which has given rise to them, and
that, accordingly, intervention must be debarred in the absence of the
principal Parties’ consent or a specific jurisdictional link, seems tanta-
mount to holding that intervention regularly requires a showing of juris-
diction beyond that which Article 62 contains. At the same time, the Court
disclaims that conclusion and limits the requirement of a specific title of
jurisdiction to the facts of Italy’s intervention. That suggests that there may
be instances of intervention in which a requirement of a specific title of
jurisdiction would not be imposed, for example, where the intervenor does
not assert claims against the principal parties.

THE OUTLOOK FOR INTERVENTION

39. Inits Judgment rejecting Malta’s application to intervene, the Court
went far towards excluding what might be termed “non-party” interven-
tion. That was not a necessary holding but, on the facts of Malta’s appli-
cation, it was a defensible holding. Now on the facts of the case before it the
Court proceeds to exclude intervention by a State as a party unless that
State can show what normally would render intervention unnecessary in
the first place : links of jurisdiction with each of the principal parties to the
case. In these circumstances, the outlook for intervention in future cases
before the Court is beclouded. Apart from instances where the principal
parties consent to intervention, it appears to be confined to the case where
a State, seeking to intervene as a party, and to bring claims within the
bounds of the case against the principal parties before the Court, at the
same time can, apart from Article 62, demonstrate a title of jurisdiction
with each of the principal parties to the case ; and, perhaps, to the case
where a State, seeking to intervene as a party, but lacking such jurisdic-
tional links, does not assert claims (a case also unlikely to occur). In my
view, reducing Article 62 to such narrow and implausible confines is not in
conformity with the terms of that article or with the intentions of the
drafters of the Statute. Whether, in fact, the Court’s Judgment in this case,
when taken together with that rejecting Malta’s application, actually leaves
wider scope for intervention than appears is to be hoped, but it is not now
apparent.

(Signed) Stephen M. SCHWEBEL.

148


DISSENTING OPINION OF JUDGE ELIAS

I wish to dissent from the Order made by the Court because I believe
that Nicaragua’s Application for permission to intervene should be heard
and disposed of by the full Court and not by the Chamber.

My first reason is based on the main question of the scope of chamber
‘ jurisdiction: the scope of the jurisdiction of this Chamber, or of any other
chamber composed by the Court under the present Rules, is neither defin-
itive nor final, so that one cannot regard jurisdiction as being transferable
holus bolus from the International Court of Justice itself to its affiliate
envisaged in Article 26 of the Statute, or by any other text.

My second reason is the almost absolute one that Article 27 of the Sta-
tute provides clearly that “A judgment given by any of the chambers pro-
vided for in Articles 26 and 29 shall be considered as rendered by the
Court”. It must follow that the Court and all its Members are bound by the
judgment of a chamber, but not necessarily by a judgment arrived at by
whatever means, or in defiance of a rule of justice overlooked or miscon-
ceived, or one subsequently overruled by the Court in the long run. This is
so because, even though every Member of the Court is bound by the deci-
sion of the chamber, no non-member of the chamber has the chance or
indeed the right to take part or to intervene in the work of the chamber
before its decision is handed down. This means that there is no opportu-
nity for any Member to criticize, or to point out any lacunae before the
case is ended by the particular chamber; nor has the Court any opportu-
nity to intervene. Yet according to the present Statute the decision is one
by which the Court must be regarded as also bound, without having had
any opportunity of interference.

It is, however, inconceivable that the jurisdiction as conferred upon the
Court by Article 36 of the Statute does not admit of any exception, and
. binds only the Court within the meaning of the law as envisaged by it. If,
for any reason, a chamber exercises so-called jurisdiction which is vitiated
by any rule of law or of justice, a judgment delivered by it may not be
accepted in every respect as ipso facto binding, even though that judgment
is apparently unexceptionable otherwise. It therefore follows that, unless
Article 26 of the Statute itself, or the implementing Article of the Rules by
which chambers are established, so define the scope and purpose of a
chamber formed to deal with a particular matter referred to it, there can-
not be a wholesale transfer of general jurisdiction of the Court by the
assignment of a particular case to a particular chamber. It remains to be
proved that a chamber is the equivalent of the Court in all respects. It may
be noted that under Article 30 of the Statute the Court reserves the exclu-

10
10 DISPUTE (EL SALVADOR/HONDURAS) (DISS. OP. ELIAS)

sive right to frame “rules for carrying out its functions. In particular, it
shall lay down rules of procedure” (emphasis added). This shows that the
chamber is not entirely its own master, and that it is possible that certain
aspects of jurisdiction are residual or exerciseable only by the Court itself.

When the chamber procedure was conceived and framed — a process
which may be regarded as having been somewhat hurried — not enough
attention was paid to refining and considering its full implications in the
administration of justice. That this has been so can easily be shown by
going through the arcanum of decisions so far delivered under the cham-
ber procedure since the wholesale adoption of the chamber procedure in
the case concerning Delimitation of the Maritime Boundary in the Gulf of
Maine Area. The entire machinery of chamber procedure has been shown
time and again to be in need of a thorough overhaul, especially from the
point of view of its implication in the declaration of general principles of
international law, like that of intervention, which is necessarily wider than
the narrow issues which Article 26 envisaged as the only work for a cham-
ber. The chamber cannot be asked to undertake the finding of general
principles of public international law, and is therefore not given the same
authority and jurisdiction as the Court, unless specific provision is made
in a particular case in the establishment or provenance of the chamber.

Finally, the present Order is too narrow, and seems consumed by preoc-
cupation with a narrow conception of intervention, a concept which in all
cases is wider than the Court Order itself, or even its broader implications.
The Order, in refusing to allow the request of Nicaragua to be dealt with
by the Court fails to refer to the relevant consideration that it may raise
problems such as the appointment of an ad hoc judge or other issues of the
composition of the Chamber itself. If such problems were handled by the
Court the matter could be dealt with by handing back the request of Nicar-
agua to the Chamber for disposal as appropriate. The Chamber cannot be
expected to refer such matter or matters to the full Court for directions
several times in succession in the course of its treatment of a single appli-
cation. Clearly, a chamber of equal competence or jurisdiction cannot be
expected to have matters referred in this way to “its” own organ within the
ICJ system. The Chamber must also never be allowed to deal with such
issues as appointment of an ad hoc judge, another problem of general
international law the scope of which is too wide for the Chamber in any
event.

(Signed) T. O. ELIAS.

ll


COUR INTERNATIONALE DE JUSTICE

ANNÉE 2000
2000
8 septembre
Rôle général
n° 113
8 septembre 2000

AFFAIRE RELATIVE À LA LICÉITE DE L'EMPLOI DE LA FORCE
(YOUGOSLAVIE c. ROYAUME-UNI)
ORDONNANCE

Le vice-président de la Cour internationale de Justice, faisant fonction de président
en l'affaire,

Vu l'article 48 du Statut de la Cour et les articles 31 et 79 de son Règlement,

Vu l'ordonnance du 30 juin 1999, par laquelle la Cour a fixé au 5 janvier 2000 et au
5 juillet 2000 les dates d'expiration des délais pour le dépôt, respectivement, d'un mémoire
de la République fédérale de Yougoslavie et d'un contre-mémoire du Royaume-Uni de
Grande-Bretagne et d'Irlande du Nord;

Considérant que, le 4 juillet 2000, le Royaume-Uni a déposé certaines exceptions
préliminaires d'incompétence et d'irrecevabilité;

Considérant qu'en conséquence, en vertu des dispositions du paragraphe 3 de l'article
79 du Règlement de la Cour, la procédure sur le fond est suspendue et qu'il échet de fixer
un délai dans lequel la Partie adverse pourra présenter un exposé écrit contenant ses
observations et conclusions sur les exceptions préliminaires;

Considérant que, au cours d'une réunion que le vice-président, faisant fonction de
président en l'affaire, a tenue avec les agents des Parties le 6 septembre 2000, la
Yougoslavie a indiqué qu'elle aurait besoin de neuf mois pour la préparation de cet exposé
écrit; et considérant que le Royaume-Uni n'a pas fait objection à ce qu'un tel délai soit fixé,
tout en soulignant qu'il attendait de la Yougoslavie que celle-ci réponde spécifiquement
aux exceptions préliminaires soulevées par le Gouvernement britannique,

Compte tenu des vues des Parties et des circonstances particulières de l'espèce,

Fixe au 5 avril 2001 la date d'expiration du délai dans lequel la République fédérale
de Yougoslavie pourra présenter un exposé écrit contenant ses observations et conclusions
sur les exceptions préliminaires soulevées par le Royaume Uni de Grande-Bretagne et
d'Irlande du Nord;
Réserve la suite de la procédure.

Fait en anglais et en français, le texte anglais faisant foi, au Palais de la Paix, à
La Haye, le huit septembre deux mille, en trois exemplaires, dont l'un restera déposé aux
archives de la Cour et les autres seront transmis respectivement au Gouvernement de la
République fédérale de Yougoslavie et au Gouvernement du Royaume-Uni de Grande-
Bretagne et d'Irlande du Nord.

Le vice-président,
(Signé) Jiuyong Shi.

Le greffier,
(Signé) Philippe Couvreur.


SEPARATE OPINION OF JUDGE ONYEAMA

I have voted on the merits of the Opinion notwithstanding that [ do
not agree with the Opinion on the view it takes on the question of
jurisdiction; in my view, it is for the Court, under Article 36, paragraph 6,
of the Statute of the Court, to settle the question of jurisdiction. Its
decision on this question concludes the matter in the particular case and
is binding on the Court as a whole, subject to the right of Members of
the Court under Article 57 of the Statute to express their separate opinions.
Having expressed their separate opinions, they should then approach the
rest of the case on the footing that the Court’s decision on jurisdiction is
the right one.

s *

J am in agreement with the Opinion that the questions put to the Court
should be answered in the negative contrary to the contentions of Mr.
Fasla.

There can be no failure to exercise jurisdiction when a tribunal whose
judgment is attacked on the ground that it had failed to exercise a
jurisdiction vested in it had directed its mind to the issues raised and
decided them. A failure to exercise jurisdiction will arise when the
tribunal decides, erroneously, that it has no jurisdiction on the issue
submitted, or when it neglects or fails to decide such an issue. A decision
on the merits which could be overturned on appeal cannot properly
be described as a failure by the trial court to exercise jurisdiction. “A
challenge of a decision confirming jurisdiction cannot properly be
transformed into a procedure against the manner in which jurisdiction
has been exercised or against the substance of the decision !.’’ Similarly,
a complaint that there has been a failure to exercise jurisdiction is not
made out by demonstrating that the tribunal concerned had reached a
wrong decision on the merits or erred in its interpretation of the law
applicable to the merits.

On the question of a fundamental error in procedure which has
occasioned a miscarriage of justice, [ have nothing to add to the Opinion
in the present case with which, on this issue, I fully concur.

*

* *
I add this separate opinion because f have grave doubts whether the ques-

1 LC.J. Reports 1956, p. 98.
6i
224 APPLICATION FOR REVIEW (SEP. OP. ONYEAMA)

tions put to the Court are receivable from the body which purported to re-
quest them; namely the Committee on Applications for Review of Admini-
strative Tribunal Judgements (hereinafter referred to as the Committee).

By resolution 957 (X) on procedure for review of United Nations
Administrative Tribunal judgements, the General Assembly established
the Committee, and authorized it under Article 96 (2) of the Charter
of the United Nations to request an opinion of this Court if the Com-
mittee decided that there is substantial basis for an application for review
of a judgement of the Tribunal.

The relevant portion of the Statute of the Administrative Tribunal of
the United Nations as adopted by the General Assembly by resolution
957 (X) on 8 November 1955 is Article 11 which provides:

“1, If a Member State, the Secretary-General or the person in
respect of whom a judgement has been rendered by the Tribunal
(including any one who has succeeded to that person’s rights on his
death) objects to the judgement on the ground that the Tribunal has
exceeded its jurisdiction or competence or that the Tribunal has
failed to exercise jurisdiction vested in it, or has erred on a question
of law relating to the provisions of the Charter of the United Nations,
or has committed a fundamental error in procedure which has
occasioned a failure of justice, such Member State, the Secretary-
General or the person concerned may, within thirty days from the
date of the judgement, make a written application to the Committee
established by paragraph 4 of this article asking the Committee
to request an advisory opinion of the International Court of Justice
on the matter.

2. Within thirty days from the receipt of an application under
paragraph | of this article, the Committee shall decide whether or
not there is a substantial basis for the application. If the Committee
decides that such a basis exists, it shall request an advisory opinion
of the Court, and the Secretary-General shall arrange to transmit
to the Court the views of the person referred to in paragraph 1.

3. If no application is made under paragraph 1 of this article, or
if a decision to request an advisory opinion has not been taken by
the Committee, within the periods prescribed in this article, the
judgement of the Tribunal shall become final. In any case in which a
request has been made for an advisory opinion, the Secretary-
General shall either give effect to the opinion of the Court or request
the Tribunal to convene specially in order that it shall confirm its
original judgement, or give a new judgement, in conformity with the
opinion of the Court. If not requested to convene specially the
Tribunal shall at its next session confirm its judgement or bring it
into conformity with the opinion of the Court.

4. For the purpose of this article, a Committee is established and
authorized under paragraph 2 of Article 96 of the Charter to request

62
225 APPLICATION FOR REVIEW (SEP. OP. ONYEAMA)

advisory opinions of the Court. The Committee shall be composed
of the Member States the representatives of which have served on
the General Committee of the most recent regular session of the
General Assembly. The committee shall meet at United Nations
Headquarters and shall establish its own rules.

5. In any case in which award of compensation has been made by
the Tribunal in favour of the person concerned and the Committee
has requested an advisory opinion under paragraph 2 of this article,
the Secretary-General, if satisfied that such person will otherwise be
handicapped in protecting his interests, shall within fifteen days of
the decision to request an advisory opinion make an advance
payment to him of one-third of the total amount of compensation
awarded by the Tribunal less such termination benefits, if any, as
have already been paid. Such advance payment shall be made on
condition that, within thirty days of the action of the Tribunal under
paragraph 3 of this article, such person shall pay back to the United
Nations the amount, if any, by which the advance payment exceeds
any sum to which he is entitled in accordance with the opinion of the
Court.”

It is clear from this Article that the Committee was set up for the sole
purpose of deciding whether or not an advisory opinion shculd be
requested of the Court. No other functions were assigned to it by the
General Assembly in the Article or elsewhere.

In the Article reference is made to paragraph 2 of Article 96 of the
Charter which provides:

“2, Other organs of the United Nations and specialized agencies
which may at any time be so authorized by the General Assembly
may also request advisory opinions of the Court on legal questions
arising within the scope of their activities.”

It is this provision of the Charter which enables the General Assembly
to authorize other organs of the United Nations to request advisory
opinions of the Court.

In authorizing other organs to request advisory opinions of the Court
the General Assembly must in my view adhere strictly to this Article of
the Charter which seems to me in this respect, to lay down the following
conditions:

1. The authorization must be to an organ of the United Nations.

2. The organ must be engaged in the performance of certain functions,
or be engaged on some activity assigned to it by the General Assembly.

3. The authorization must be limited to requesting advisory opinions on
legal questions arising within the scope of the activity of the organ
authorized. (Emphasis added.)

It seems to me that if any or all of these conditions are not met the
63
226 APPLICATION FOR REVIEW (SEP. OP, ONYEAMA)

authorization would be ineffective for its purpose and the organ ‘‘autho-
rized” would in law be incompetent to request an advisory opinion of the
Court.

The power of the General Assembly to establish subsidiary organs
derives from Article 22 of the Charter of the United Nations which
provides that the General Assembly may establish such subsidiary
organs as it deems necessary for the performance of its functions.

The term “subsidiary organ” has not been defined in the Charter and,
in practice, appears to have been used interchangeably with such expres-
sions as commissions, committees, subsidiary bodies and subordinate
bodies !. But by whatever name it is called a characteristic feature of a
subsidiary organ is that it has been established to carry out certain
functions in aid of the principal organ establishing it—functions em-
braced within the overall functions of the principal organ and closely
corresponding to the legitimate activities of the principal organ.

1am of the opinion that the General Assembly cannot legally establish
a subsidiary body to perform functions which were not specifically
assigned to the Assembly itself, or within the range of its functions.

Thus the Committee on International Criminal Jurisdiction established
by the Assembly by resolution 489 (V) to prepare preliminary draft
conventions and proposals relating to the establishment and the statute
of an international criminal court, stated in its report:

“Under the Charter, the Court could only be established as a
subsidiary organ. The principal organ would presumably be the
General Assembly, but a subsidiary organ could not have a competence
falling outside the competence of its principal, and it was questionable
whether the General Assembly was competent to administer justice 2.”
(Emphasis added.)

In its Advisory Opinion on Effect of Awards of Compensation Made by
the United Nations Administrative Tribunal 3 the Court, dealing with a
view which had been expressed about the binding effect on a principal
organ of the judgment of a subsidiary organ which it had itself created,
said:

“In the third place, the view has been put forward that the Ad-
ministrative Tribunal is a subsidiary, subordinate, or secondary
organ; and that, accordingly, the Tribunal’s judgments cannot bind
the General Assembly which established it.

1 UN Repertory I, p. 224.
2 GA (VIT), Suppl. No. 11 (A/2136), para. 21.
3 I.C.J. Reports 1954, pp. 60-61.

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227 APPLICATION FOR REVIEW (SEP. OP. ONYEAMA)

This view assumes that, in adopting the Statute of the Admin-
istrative Tribunal, the General Assembly was establishing an organ
which it deemed necessary for the performance of its own functions.
But the Court cannot accept this basic assumption. The Charter
does not confer judicial functions on the General Assembly and the
relations between staff and Organization come within the scope of
Chapter XV of the Charter. In the absence of the establishment of an
Administrative Tribunal, the function of resolving disputes between
staff and Organization could be discharged by the Secretary-General
by virtue of the provisions of Articles 97 and 101. Accordingly, in
the three years or more preceding the establishment of the Ad-
ministrative Tribunal, the Secretary-General coped with this
problem by means of joint administrative machinery, leading to
ultimate decision by himself. By establishing the Administrative
Tribunal, the General Assembly was not delegating the performance
of its own functions: it was exercising a power which it had under the
Charter to regulate staff relations. In regard to the Secretariat, the
General Assembly is given by the Charter a power to make regu-
lations, but not a power to adjudicate upon, or otherwise deal with,
particular instances.”

I understand this Opinion to mean that the General Assembly, in
establishing the United Nations Administrative Tribunal, could not have
been acting under Article 22 of the Charter as the Charter does not
confer judicial functions on the General Assembly, but, that it was
exercising a power which it had to regulate staff relations under Chapter
XV of the Charter.

In view of the foregoing, it does not appear to me that the Committee,
which is charged with a very limited judicial function, is such a subsidiary
organ as is contemplated in Article 22 of the Charter.

The Court appears to equate the establishment of a subsidiary organ
by the General Assembly to delegation of the performance of its own
functions by the Assembly. (Z.C.J. Reports 1954, p. 61.)

The Court in the present opinion takes the view, however, that the
validity of the establishment of the Committee is saved on the ground
that ‘tthe General Assembly’s power to regulate staff relations also
comprises the power to create an organ designed to provide machinery
for the review of judgments of the [the United Nations Administra-
tive] Tribunal”.

In my opinion the General Assembly in establishing the Commit-
tee set up a judicial or at least a quasi-judicial body, to screen
applications for advisory opinions for the Court as provided in Article 11
of the Statute of the United Nations Administrative Tribunal, and to
decide, on each application, if a substantial basis for the application
exists. There is thus such a link between the Committee and the
Administrative Tribunal, as is sufficient to justify the view of the Court

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228 APPLICATION FOR REVIEW (SEP. OP. ONYEAMA)

that the establishment of the Committee was a valid exercise of the power
to regulate staff relations.

* 2

The functions of the Committee are set out in Article 11 of the Statute
of the Administrative Tribunal of the United Nations, and are: (1) to
receive the written application of a member State, the Secretary-General
or the person in respect of whom a judgement has been rendered by the
Tribunal, asking the Committee to request an advisory opinion of the
Court; (2) to decide within 30 days whether or not there is a substantial
basis for the application; and if there is: (3) to request an advisory opinion
of the Court.

The Committee is not charged with the duty of reviewing the judgement
of the Tribunal. It is only concerned with the application made to it, and
studies the judgement of the Tribunal only for the purpose of deciding if
there is substance in the objections contained in the application.

These functions set the limit and define the scope of the activities of the
Committee, and it is out of the scope of these activities that the legal
questions on which the advisory opinion of the Court can properly be
requested under Article 96 (2) of the Charter must arise.

* *

The purpose of a request for an advisory opinion seems to be to
enlighten the body requesting it, and enable it more confidently to deal
with legal questions which may present difficulties to it in the perfor-
mance of its functions. Thus in resolution 171A (II) entitled “‘“Need for
Greater Use by the United Nations and its Organs of the International
Court of Justice”, the General Assembly recommended that the organs
of the United Nations and the specialized agencies, if duly authorized in
accordance with Article 96, should refer to the Court for an advisory
opinion points of law within the jurisdiction of the Court “which have
arisen in the course of their activities and involve questions of principle
which it is desirable to have settled...” (emphasis added).

In its Advisory Opinion given on 23 October 19561 the Court stated:

“The question put to the Court is a legal question. It arose within
the scope of the activities of Unesco when the Executive Board had to
examine the measures to be taken as a result of the four judgments.

1 I.C.J. Reports 1956, p. 84.
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229 APPLICATION FOR REVIEW (SEP. OP. ONYEAMA)

The answer given to it will affect the result of the challenge raised by
the Executive Board with regard to these Judgments. In submitting
the Request for an Opinion the Executive Board was seeking a clari-
fication of the legal aspect of a matter with which it was dealing.”
(Emphasis added.)

The Committee has an extremely narrow compass of activities, and the
four grounds on which it is “authorized” to request an advisory opinion
from the Court cannot possibly arise within the scope of its own activities.
The sole purpose of the Committee’s existence seems to be to request
advisory opinions on legal questions arising within the scope of the
activities of the United Nations Administrative Tribunal. It forms no part
of this tribunal and is in no way involved in its activities except, as has
been noted, to request advisory opinions on legal questions arising out of
those activities. |

The advisory opinion requested, and the grounds on which the request
can be founded, can in no way affect the manner in which the Committee
will perform its function which essentially is to decide whether or not a
substantial basis exists in a given case for an application for a review of
the judgement of the United Nations Administrative Tribunal by way
of an advisory opinion from the Court, and request the opinion. In
other words, the legal questions on which it is authorized to request an
advisory opinion have no relevance to its own activities.

In my view, an authorization under Article 96 (2) of the Charter in
circumstances which enable an organ of the United Nations to request an
advisory opinion on legal questions not arising out of the scope of its
activities, does not accord with Article 96 (2) of the Charter; and this
being the case with the Committee, | am of the opinion that although the
Court has jurisdiction to answer a request for an advisory opinion, the
present request does not come from a body legally authorized to make
it and cannot be received by the Court.

(Signed) Charles D. ONYEAMA,

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