INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE LAND, ISLAND AND
MARITIME FRONTIER DISPUTE

(EL SALVADOR/HONDURAS)

APPLICATION BY NICARAGUA FOR PERMISSION
TO INTERVENE

JUDGMENT OF 13 SEPTEMBER 1990

1990

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU DIFFEREND FRONTALIER
TERRESTRE, INSULAIRE ET MARITIME

(EL SALVADOR/HONDURAS)

REQUÊTE DU NICARAGUA A FIN D’ INTERVENTION

ARRET DU 13 SEPTEMBRE 1990
Official citation :

Land, Island and Maritime Frontier Dispute (El Salvador/Honduras),
Application to Intervene, Judgment, I.C.J. Reports 1990, p. 92

Mode officiel de citation :

Différend frontalier terrestre, insulaire et maritime (El Salvador/Honduras),
requête à fin d'intervention, arrêt, C.I.J. Recueil 1990, p. 92

Sales number S8 4
N° de vente :

1990
13 September
General List
No. 75

92

INTERNATIONAL COURT OF JUSTICE

YEAR 1990

13 September 1990

CASE CONCERNING THE LAND, ISLAND AND
MARITIME FRONTIER DISPUTE

(EL SALVADOR/HONDURAS)

APPLICATION BY NICARAGUA FOR PERMISSION
TO INTERVENE

Intervention under Article 62 of the Statute.

Article 81 of the Rules of Court — Timeliness of the Application for permission to
intervene — Application filed at advanced stage of the proceedings containing
request for changing composition of Chamber or its mandate — Whether definition
of dispute by prior negotiation on subject of intervention is necessary.

Significance for the present Application of decision in case concerning Monetary
Gold Removed from Rome in 1943.

Interest of a legal nature which may be affected by the decision in the case —
Limits on scope of permitted intervention — Burden of proof on State seeking to
intervene.

Interest asserted by Nicaragua — Whether Nicaraguan interest of a legal nature
may be affected by decision on claim by one Party that there exists in Gulf of Fon-
seca “condominium” of riparian States and claim by other Party that there exists
“community of interests” between those States — Whether sufficient demonstra-
tion of affected interest of a legal nature of Nicaragua in delimitation of maritime
spaces within the Gulf — Whether interest in general legal rules and principles suf-
ficient — Whether sufficient demonstration of affected interest of a legal nature of
Nicaragua in question of entitlement of Parties outside Gulf to territorial sea, con-
tinental shelf or exclusive economic zone, and possible decision on delimitation.

Object of intervention — Object of informing the Court of nature of legal rights
of Nicaragua which may be in issue — Object of protecting legal rights by all legal

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93 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

means available — No request by State seeking to intervene for judicial pronounce-
ment on its own claims.

Whether a valid link of jurisdiction between State seeking to intervene and the
parties is a requirement for intervention — Relationship between intervention and
the principle of consensual jurisdiction — Permission to intervene does not of itself
make the permitted State a party to the case.

Procedural rights of State permitted to intervene.

JUDGMENT

Present: Judge SETTE-CAMARA, President of the Chamber; Judges Opa,
Sir Robert JENNINGS; Judges ad hoc VALTICOS, TORRES BERNARDEZ;
Registrar VALENCIA-OSPINA.

In the case concerning the land, island and maritime frontier dispute,
between

the Republic of El Salvador,
represented by
Dr. Alfredo Martinez Moreno,
as Agent and Counsel,
H.E. Mr. Roberto Arturo Castrillo Hidalgo, Ambassador to the Netherlands,
as Co-Agent,
and
HLE. Dr. José Manuel Pacas Castro, Minister for Foreign Relations,
assisted by

Mr. Keith Highet, Adjunct Professor of International Law at the Fletcher
School of Law and Diplomacy and Member of the Bars of New York and
the District of Columbia,

Mr. Elihu Lauterpacht, C.B.E., Q.C., Director of the Research Centre for
International Law, University of Cambridge, Fellow of Trinity College,
Cambridge,

Mr. Prosper Weil, Professor Emeritus at Université de droit, d’économie et
de sciences sociales de Paris,

as Counsel and Advocates,

and

Mr. Anthony J. Oakley,
Lic. Celina Quinteros,
Lic. Ana Elizabeth Villalta Vizcara, ©

as Counsellors,
and

the Republic of Honduras,

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94 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

represented by

H.E. Dr. Ramon Valladares Soto, Ambassador to the Netherlands,

as Agent,

assisted by

Mr. Derek W. Bowett, C.B.E., Q.C., LI.D., F.B.A., Whewell Professor of
International Law, University of Cambridge,

as Counsel and Advocate,

and

Mr. Arias de Saavedra y Muguelar, Minister, Embassy of Honduras at The
Hague,

Mrs. Salomé Castellanos, Minister Counsellor, Embassy of Honduras at The
Hague,

as Advisers,

Upon the Application for permission to intervene submitted by the Republic
of Nicaragua,

represented by
H.E. Mr. Carlos Argiiello Gomez, Ambassador,
as Agent and Counsel,
assisted by

Mr. Ian Brownlie, Q.C., F.B.A, Chichele Professor of Public International
Law, University of Oxford; Fellow of All Souls College, Oxford,

Mr. Antonio Remiro Brotons, Professor of Public International Law, Univer-
sidad Autonoma de Madrid,

as Counsel and Advocates,

THE CHAMBER OF THE INTERNATIONAL COURT OF JUSTICE formed to deal with
the above-mentioned case,

composed as above,
after deliberation,

delivers the following Judgment:

1. By a joint notification dated 11 December 1986, filed in the Registry of the
Court the same day, the Ministers for Foreign Affairs of the Republic of Hon-
duras and the Republic of El Salvador transmitted to the Registrar a certified
copy of a Special Agreement in the Spanish language entitled “COMPROMISO
ENTRE HONDURAS Y EL SALVADOR PARA SOMETER A LA DECISION DE LA CORTE
INTERNACIONAL DE JUSTICIA LA CONTROVERSIA FRONTERIZA TERRESTRE, INSULAR Y
MARITIMA EXISTENTE ENTRE LOS DOS ESTADOS, SUSCRITO EN LA CIUDAD DE
ESQUIPULAS, REPUBLICA DE GUATEMALA, EL DIA 24 DE MAYO DE 1986”, and entering
into force on 1 October 1986.

2. The Parties have not up to the present supplied the Court with an agreed
translation of the Special Agreement into one of the official languages of the
Court, and neither Party has submitted a translation of its own.

3. The Spanish text of the Special Agreement reads as follows:
95

DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

“COMPROMISO ENTRE HONDURAS Y EL SALVADOR PARA SOMETER A LA DECI-

SION DE LA CORTE INTERNACIONAL DE JUSTICIA LA CONTROVERSIA FRONTERIZA

TERRESTRE, INSULAR Y MARITIMA EXISTENTE ENTRE LOS DOS ESTADOS,

SUSCRITO EN LA CIUDAD DE ESQUIPULAS, REPUBLICA DE GUATEMALA, EL DIA
24 DE MAYO DE 1986

El Gobierno de la Republica de Honduras y el Gobierno de la Repiblica de
El Salvador,

Considerando que el 30 de octubre de 1980, en la ciudad de Lima, Peri,
suscribieron el Tratado General de Paz, por medio del cual, inter alia, delimi-
taron la frontera terrestre de ambas Republicas en aquellas secciones en
donde no existia controversia;

Considerando que dentro del plazo previsto en los articulos 19 y 31 del Tra-
tado General de Paz, de 30 de octubre de 1980, no se lego a un arreglo directo
sobre las diferencias de limites existentes con respecto a las demas zonas
terrestres en controversia, y en lo relative a la situaciôn juridica insular y de
los espacios maritimos;

Han designado como sus respectivos Plenipotenciarios, Honduras al
Senor Ministro de Relaciones Exteriores, Abogado Carlos Lôpez Contreras, y
El Salvador al Señor Ministro de Relaciones Exteriores, Licenciado
Rodolfo Antonio Castillo Claramount, quienes, una vez encontrados en buena
y debida forma sus Plenos Poderes;

CONVIENEN EN LO SIGUIENTE:

Articulo 1°
Constituciôn de una Sala

1. En aplicacién del Articulo 34 del Tratado General de Paz suscrito el
30 de octubre de 1980, las Partes someten las cuestiones mencionadas en el
Articulo Segundo del presente Compromiso a una Sala de la Corte Internacio-
nal de Justicia, compuesta por tres miembros, con la anuencia de las Partes,
las cuales la expresarän en forma conjunta al Presidente de la Corte, siendo
esta conformidad esencial para la integraciôn de la Sala, que se constituirä de
acuerdo a los Procedimientos establecidos en el Estatuto de la Corte y en el
presente Compromiso.

2. Adicionalmente, integrarän la Sala dos jueces ad-hoc especialmente
nombrados uno por El Salvador y otro por Honduras; los que podrän tener la
nacionalidad de las Partes.

Articulo 2°
Objeto del litigio
Las Partes solicitan a la Sala:

1. Que delimite la linea fronteriza en las zonas o secciones no descritas en
el Articulo 16 del Tratado General de Paz, de 30 de octubre de 1980.
2. Que determine la situaciôn juridica insular y de los espacios maritimos.

Articulo 3°
Procedimiento

1. Las Partes solicitan a la Sala autorizar que el procedimiento escrito
consista en:
96

DISPUTE (EL SALVADOR/ HONDURAS) (JUDGMENT)

a) una Memoria presentada por cada una de las Partes, a mds tardar diez
meses después de la notificaciôn de este Compromiso a la Secretaria de la
Corte Internacional de Justicia; .

b) una Contramemoria presentada por cada una de las Partes, a mds tardar
diez meses después de la fecha en que se haya recibido la copia certificada
de la Memoria de la otra Parte;

c) una réplica presentada por cada una de las Partes, a mas tardar diez meses
después de la fecha en que se haya recibido la copia certificada de la
Contramemoria de la otra Parte;

d) la Corte podra autorizar, o prescribir la presentacién de una Duplica, si
las Partes estan de acuerdo a este respecto o si la Corte decide de oficio o a
solicitud de una de las Partes si esta pieza de procedimiento es necesaria.

2. Las piezas antes mencionadas del procedimiento escrito y sus anexos
presentadas al Secretario, no seran trasmitidas a la otra Parte, en tanto el
Secretario no haya recibido la pieza de procedimiento correspondiente a dicha
parte.

3. El procedimiento oral, la notificacion del nombramiento de los respecti-
vos agentes de las Partes y cualesquiera otras cuestiones procesales, se ajusta-
ran a lo dispuesto en el Estatuto y el Reglamento de la Corte.

Articulo 4°
Idiomas

El caso se ventilara en los idiomas inglés y francés, indistintamente.

Articulo 5°
Derecho aplicable

Dentro del marco del apartado primero del Articulo 38 del Estatuto de la
Corte Internacional de Justicia, la Sala, al dictar su fallo, tendra en cuenta las
normas de derecho internacional aplicables entre las Partes, incluyendo, en lo
pertinente, las disposiciones consignadas en el Tratado general de Paz.

Articulo 6°
Ejecuciôn de la Sentencia

1. Las Partes ejecutarän la sentencia de la Sala en un todo y con entera
buena fe. A este fin, la Comisiôn Especial de Demarcaciôn que establecieron
mediante el Convenio de 11 de febrero de 1986, iniciard la demarcacion de la
linea fronteriza fijada por la sentencia, a mas tardar tres meses después de la
fecha de la misma y continuard diligentemente sus actuaciones hasta
concluirla.

2. Para tal efecto, se aplicaran las reglas establecidas sobre la materia, en el
mencionado Convenio de creaciôn de la Comision Especial de Demarcaciôn.

Articulo 7°
Entrada en vigor y Registro

1. El presente Compromiso entrarä en vigor el 1° de octubre de 1986, una vez
que se haya cumplido con los procedimientos constitucionales de cada Parte.

2. Sera registrado en la Secretaria General de las Naciones Unidas de
conformidad con el Articulo 102 de la Carta de la Naciones Unidas, conjunta-
mente o por cualquiera de las Partes. Al mismo tiempo se hard del conoci-
miento de la Organizaciôn de los Estados Americanos.
97 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

Articulo 8°
Notificacion

1. En aplicaciôn del Articulo 40 del Estatuto de la Corte Internacional
de Justicia, el presente Compromiso sera notificado al Secretario de la misma
por nota conjunta de las Partes. Esta notificacion se efectuard antes del
31 de diciembre de 1986.

2. Si esa notificacién no se efectia de conformidad con el parrafo prece-
dente, el presente Compromiso podré ser notificado al Secretario de la Corte
por cualquiera de las Partes dentro.del plazo de un mes siguiente a la fecha
prevista en el parrafo anterior.”

4. The Special Agreement was, as indicated in its title, signed in the City of
Esquipulas, Republic of Guatemala, on 24 May 1986; its preamble refers to the
conclusion on 30 October 1980, in Lima, Peru, of a General Peace Treaty
between the two States, whereby, inter alia, they delimited certain sections of
their common land frontier; and the Special Agreement records that no direct
settlement had been achieved in respect of the remaining land areas, or as
regards “the legal situation of the islands and maritime spaces”.

5. Pursuant to Article 40, paragraph 3, of the Statute of the Court and
Article 42 of the Rules of Court, copies of the joint notification and Special
Agreement were transmitted by the Registrar to the Secretary-General of the
United Nations, the Members of the United Nations and other States entitled to
appear before the Court.

6. The Parties were duly consulted, on 17 February 1987, as to the composi-
tion of the chamber of the Court contemplated by the Special Agreement, in
accordance with Article 26, paragraph 2, of the Statute and Article 17, para-
graph 2, of the Rules of Court.

7. The Parties in the course of such consultation confirmed what was said in
the Special Agreement, that as regards the number of judges to constitute such
chamber, they approved, pursuant to Article 26 of the Statute, that number
being fixed at three judges with the addition of two judges ad hoc chosen by the
Parties pursuant to Article 31, paragraph 3, of the Statute.

8. In March 1987 the Court was notified of the choice by El Salvador of
Mr. Nicolas Valticos to sit as judge ad hoc in the chamber; in April 1987, the
Court was notified of the choice by Honduras of Mr. Michel Virally to sit as
judge ad hoc in the chamber.

9. By an Order of 8 May 1987 the Court decided to accede to the request of
the Parties to form a special chamber to deal with the case, and declared that
at an election held on 4 May 1987 Judges Oda, Sette-Camara and Sir Robert
Jennings had been elected to form, with the judges ad hoc referred to above,
a chamber to deal with the case, and declared further such a chamber to
have been duly constituted, with the following composition : Judges Oda, Sette-
Camara and Sir Robert Jennings and Judges ad hoc Valticos and Virally. On
29 May 1987 the Chamber elected Judge Sette-Camara as its President,
pursuant to Article 18, paragraph 2, of the Rules of Court.

10. Judge ad hoc Virally died on 27 January 1989, and by a letter dated 8 Feb-
ruary 1989 the Agent of Honduras informed the Court that his Government had
chosen Mr. Santiago Torres Bernardez to sit as judge ad hoc in his place. By an
Order dated 13 December 1989 the Court declared the composition of the
Chamber formed to deal with the case to be as follows: Judge Sette-Camara,

9
98 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

President of the Chamber; Judges Oda and Sir Robert Jennings; Judges ad hoc
Valticos and Torres Bernardez.

11. By Article 3, paragraph 1, of the Special Agreeement the Parties
requested that the written proceedings should consist of a Memorial, a Coun-
ter-Memorial and a Reply to be filed by each of the Parties within time-limits
there stated, and the Special Agreement further provided that the Court might
authorize or direct the filing of Rejoinders. By an Order dated 27 May 1987, the
Court fixed the time-limit for the Memorials, and by an Order dated 29 May
1987 the Chamber authorized the filing of Counter-Memorials and Replies
pursuant to Article 92, paragraph 2, of the Rules of Court, and fixed time-limits
therefor.

12. The Memorials were duly filed within the time-limit of 1 June 1988 fixed
therefor. The time-limits for the remaining pleadings were, at the request of the
Parties, extended by Orders made by the President of the Chamber on 12 Janu-
ary 1989 and 13 December 1989. The Counter-Memorials and the Replies were
duly filed within the extended time-limits thus fixed, namely 10 February 1989
and 12 January 1990 respectively. The Special Agreement, however, included a
provision for a possible further exchange of pleadings, so that even when the
Replies of the Parties had been filed, the date of the closure of the written pro-
ceedings, within the meaning of Article 81, paragraph 1, of the Rules of Court,
would remain still to be finally determined.

13. Pursuant to Article 53, paragraph 1, of the Rules of Court, requests by the
Governments of Nicaragua and Colombia for the pleadings and annexed docu-
ments to be made available to them were granted, in the case of Nicaragua on
15 June 1988, and in the case of Colombia on 27 January 1989, and in each case
after the views of the Parties had been ascertained.

14. On 17 November 1989 the Republic of Nicaragua filed in the Registry of
the Court an Application for permission to intervene in the case, which Appli-
cation was stated to be made by virtue of Article 36, paragraph 1, and Article 62
of the Statute of the Court. In that Application, the Government of Nicaragua
contended that its request for permission to intervene, “not only because it is an
incidental proceeding but also for .. . reasons of elemental equity (that of con-
sent and that of the equality of States)”, was “a matter exclusively within the
procedural mandate of the full Court”.

15. By an Order dated 28 February 1990, the Court, after considering the
written observations of the Parties on the question thus raised, whether the
Application for permission to intervene was to be decided upon by the full
Court or by the Chamber, and the observations of Nicaragua in response to
those observations, stated that

“the question whether an application for permission to intervene in a case
under Article 62 of the Statute should be granted requires a judicial deci-
sion whether the State seeking to intervene ‘has an interest of a legal nature
which may be affected by the decision’ in the case, and can therefore only
be determined by the body which will be called upon to give the decision
on the merits of the case”;

and found that it was for the Chamber formed to deal with the present case to
decide whether the Application by Nicaragua for permission to intervene under
Article 62 of the Statute should be granted.

16. Pursuant to Article 83, paragraph 1, of the Rules of Court, the two Parties
were on 5 March 1990 invited to furnish their written observations on the Appli-

10
99 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

cation for permission to intervene filed by Nicaragua on 17 November 1989.
Both Parties submitted such observations within the time-limit fixed by the
President of the Chamber. Honduras stated that it would see no objection to
Nicaragua being permitted to intervene for the sole purpose of presenting its
views on the legal status of the waters within the Gulf of Fonseca; El Salvador
- requested the Chamber to deny the permission sought by Nicaragua.

17. Since objection had thus been made to the Application for permission to
intervene, public sittings were held, pursuant to Article 84, paragraph 2, of the
Rules of Court, in order to hear the State seeking to intervene and the Parties,
on 5, 6, 7 and 8 June 1990. In the course of those sittings the Chamber was
addressed by:

For Nicaragua: H.E. Mr. Carlos Argüello Gomez,
Mr. Ian Brownlie,
Mr. Antonio Remiro Brotons.

For El Salvador: H.E. Dr. Alfredo Martinez Moreno,
Mr. Prosper Weil,
Mr. Elihu Lauterpacht,
Mr. Keith Highet.

For Honduras:  H.E. Dr. Ramon Valladares Soto,
Mr. Derek W. Bowett.

*

18. In its Application for permission to intervene, Nicaragua stated by way
of conclusion that it

“respectfully requests the Court to recognize the validity of Nicaragua’s
claim to intervene in the proceedings between the Republic of El Salvador
and the Republic of Honduras” (para. 20).

At the outset of the oral proceedings it was stated that

“Nicaragua maintains, before this Chamber of the Court, its Applica-
tion for permission to intervene but modified in the sense that the requests
made in Sections 23 and 24 of its original Application of 17 November
1989 are not being submitted for decision by this Chamber.”

(The requests referred to are set out in paragraph 41 below.)
19. On behalf of El Salvador, the following submission was presented during
the oral proceedings:

“That the Application of the Republic of Nicaragua to intervene in the
case in process between El Salvador and Honduras be rejected.”

20. On behalf of Honduras, the following submission as to the Application
for permission to intervene was presented during the oral proceedings:

“First, Honduras would see no objection to Nicaragua being permitted
to intervene in the existing case for the sole purpose of expressing its views
on the legal status of the waters within the Gulf. Nicaragua has, under
Article 62, no right to intervene, and the Court in granting its permission,
may limit that permission to the extent necessary to safeguard the legal
interests of the requesting State. Indeed, it can be argued that the Court is
bound to impose such limits on its permission.”

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100 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

21. During the oral proceedings, both Parties also made clear their con-
tinued opposition to the requests contained in paragraphs 23 and 24 of the
Nicaraguan Application (set out in paragraph 41 below).

* OF

22. Nicaragua’s request to be permitted to intervene is in respect of the
proceedings instituted by the notification of the Special Agreement con-
cluded on 24 May 1986 between El Salvador and Honduras. Article 2 of
the Special Agreement, which defines the subject of the dispute, reads, in
the original Spanish text, as follows:

“Las Partes solicitan a la Sala:

1. Que delimite la linea fronteriza en las zonas o secciones no descri-
tas en el Articulo 16 del Tratado General de Paz, de 30 de octubre de
1980.

2. Que determine la situaciôn juridica insular y de los espacios mari-
timos.”

As noted above (paragraph 2), the Parties have not so far supplied the
Chamber with an agreed translation of the Special Agreement into
English or French, notwithstanding the fact that the Special Agreement
itself provides (Art. 4) for the proceedings to be conducted in English or
French. For the purposes of the present Judgment, however, the Chamber
considers that it can make use of the following translation of Article 2,
prepared by the Registry of the Court:

“The Parties request the Chamber:

1. To delimit the frontier line in the areas or sections not described
in Article 16 of the General Peace Treaty of 30 October 1980.

2. To determine the legal situation of the islands and maritime
spaces.”

23. The dispute between El Salvador and Honduras which is the sub-
ject of the Special Agreement concerns several distinct though in some
respects interrelated matters. The Chamber is asked first to delimit the
land frontier line between the two States in the areas or sections not
described in Article 16 of the General Peace Treaty concluded by them on
30 October 1980; Nicaragua is not seeking to intervene in this aspect of the
proceedings (paragraph 40 below). The Chamber is also to “determine
the legal situation of the islands”, and that of the “maritime spaces”. The
geographical context of the island and maritime aspects of the dispute,
and the nature and extent of that dispute as appears from the Parties’
claims before the Chamber, is as follows.

24. The Gulf of Fonseca lies on the Pacific coast of Central America,
opening to the ocean in a generally south-westerly direction. The north-
west coast of the Gulf is the land territory of El Salvador, and the south-
east coast that of Nicaragua; the land territory of Honduras lies between

12
101 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

the two, with a substantial coast on the inner part of the Gulf. The entry to
the Gulf, between Punta Amapala in El Salvador to the north-west, and
Punta Cosigiiina in Nicaragua to the south-east, is some 19 nautical miles
wide. The penetration of the Gulf from a line drawn between these points
varies between 30 and 32 nautical miles. Within the Gulf of Fonseca, there
is a considerable number of islands and islets.

25. El Salvador recognizes the sovereignty of Honduras over
Zacate Grande, the largest island of the Gulf, which is linked by a road to
the Honduran mainland, and asks the Chamber to find that

“El Salvador has and had sovereignty over all the islands in the Gulf
of Fonseca, with the exception of the Island of Zacate Grande which
can be considered as forming part of the coast of Honduras”.

Honduras for its part invites the Chamber to find that the islands of Mean-
guera and Meanguerita are the only islands in dispute between the Par-
ties, so that the Chamber is not, according to Honduras, called upon to
determine sovereignty over any of the other islands, and to declare the
sovereignty of Honduras over Meanguera and Meanguerita. Although
the Farallones are not mentioned in their submissions, the Chamber
understands from the pleadings of the Parties and from their oral argu-
ments in the course of the present incidental proceedings that those
islands, which lie on Nicaragua’s side of the Gulf, are excluded from the
claims of the Parties. Neither Party has laid claim to the Farallones, and
counsel for Nicaragua has stated before the Chamber, without contradic-
tion by either of the Parties, that Nicaragua’s sovereignty over the Faral-
lones has been expressly recognized by the Parties. For the purposes of the
present Application for permission to intervene, there appears to be no
need to determine at this stage the extent of the Chamber’s jurisdiction in
respect of the islands of the Gulf; both Parties are agreed that the Cham-
ber should determine sovereignty over Meanguera and Meanguerita,
and — with the exception of the Farallones — these are the islands which
lie closest to the coast of Nicaragua.

26. The detailed history of the dispute is not here to the purpose, but
two events concerning the maritime areas must be mentioned. First, the
waters within the Gulf of Fonseca between Honduras and Nicaragua
were to an important extent delimited in 1900 by a Mixed Commission
established pursuant to a Treaty concluded between the two States on
7 October 1894. The published records of the delimitation established by
the Mixed Commission describe that delimitation line as follows:

“Desde el punto conocido con el nombre de Amatillo, en la parte infe-
rior del rio Negro, la linea limitrofe es una recta trazada en direcciôn al
volcan de Cosigüina, con rambo astronômico Sur, ochenta y seis grados,
treinta minutos Oeste (S. 86° 30’ O.), y distancia aproximada de treinta
y siete kilômetros (37 Kms) hasta el punto medio de la bahia de Fonseca,

13
102 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

equidistante de las costas de una y otra Republica, por este lado; y de
este punto, sigue la division de las aguas de la bahia por una linea, tam-
bién equidistante de las mencionadas costas, hasta llegar al centro de la
distancia que hay entre la parte septentrional de la Punta de Cosigüina y
la meridional de la isla de El Tigre.” (“Limites definitivos entre
Honduras y Nicaragua”, Honduran Ministry of Foreign Affairs,
1938, p. 24.)

[Translation]

“From the point known as Amatillo, in the lower reaches of the
River Negro, the delimitation is a straight line drawn in the direction
of the volcano of Cosigüina, astronomic bearing south, 86 degrees, 30
minutes west (S. 86° 30’ W.), for a distance of approximately thirty-
seven kilometres (37 km) to the central point of the Bay of Fonseca,
equidistant from the coasts of the two Republics, on this side; and
from that point it follows the division of the waters of the bay by a
line, also equidistant from the said coasts, to arrive at the centre of the
distance between the northern part of Punta de Cosigüina and the
southern part of the island of El Tigre.”

There was some controversy between Honduras and Nicaragua at the
hearings as to the position of the seaward terminus of this delimitation
line, but it appears that for both States the line does not extend so far as to
meet a closing line between Punta Amapala and Punta Cosigiiina.

27. The second event to be mentioned is the following. In 1916 El Sal-
vador brought proceedings against Nicaragua in the Central American
Court of Justice, claiming inter alia that the Bryan-Chamorro Treaty con-
cluded by Nicaragua with the United States of America, for the construc-
tion of a naval base, “ignored and violated the rights of co-ownership
possessed by El Salvador in the Gulf of Fonseca”. According to the
Judgement in the case, El Salvador’s contention was:

“Que por el hecho de haber pertenecido esas aguas, por largos anos,
a una sola entidad politica, cual era el dominio Español en Centro-
América y después a la Republica Federal Centroamericana, resulta una
verdad concluyente que, disuelta la Federaciôn sin haberse efectuado
delimitacion entre los tres Estados ribereños relativa a su soberania en
las aguas del Golfo, han continuado esos tres Estados con un dominio
comün en ellas.” (Corte de Justicia Centroamericana, Sentencia,
9 de marzo de 1917, p. 8.)

In an English translation published in 1917 by the Legation of El Salvador
in Washington, and printed in the 1917 volume of the American Journal of
International Law:

“That because, for a long period of years, those waters belonged to
a single political entity, to wit, the Spanish Colonial Government in
Central America, and, later, to the Federal Republic of the Center of

14
103 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

America, the fact conclusively results that, on the dissolution of the
federation without having effected a delimitation among the three
riparian States of their sovereignty therein, the ownership of those
waters continued in common in those three States.” (AJIL, 1917,
p. 677.)

Nicaragua appeared in the proceedings and resisted the claim, contend-
ing (inter alia)

“que las antiguas provincias españolas de Nicaragua, Honduras y
El Salvador, por su adyacencia, son dueñas del Golfo, en el sentido de
que a cada una corresponde una parte de él; pero no en el sentido de que
por eso exista entre las referidas Republicas, una comunidad en la acep-
ciôn juridica de la palabra. Hay indemarcaciôn de fronteras, lo cual es
distinto de dominio comin” (CJC, Sentencia, p. 20),

i.e., that

“the ancient Spanish provinces of Nicaragua, Honduras and El Sal-
vador, by reason of the fact that they are adjacent, are owners of the
Gulf in the sense that to each belongs a part thereof, but not in the
sense that, thereby, a community in the legal acceptation of the word
exists among those republics. Demarcation of frontiers therein is
lacking; but this . . . does not result in common ownership.” (AJIL,
1917, p. 688.)

28. The Decision of the Central American Court of Justice dated
9 March 1917 was divided into three parts. In the first part, the voting of
the judges was recorded on a number of specific questions arising in the
case, and this part records the unanimous view of the judges that the inter-
national status of the Gulf of Fonseca was that it was “an historic bay
possessed of the characteristics of a closed sea” (AJIL, 1917, p. 693). The
second part is an “Examination of facts and law”, and the third part the
formal decision, adopted by four votes to one. In the second part, the
Court found:

“CONSIDERANDO: que reconocida por este Tribunal la condiciôn juri-
dica del Golfo de Fonseca como Bahia histérica, con caracteres de mar
cerrado, se ha reconocido, en consecuencia, como condueños de sus
aguas a los tres paises ribereños, El Salvador, Honduras y Nicaragua,
excepto en la respectiva legua marina del litoral, que es del exclusivo
dominio de cada uno de ellos; y que en orden al condominio existente
entre los Estados en litigio .. . se tom6 en cuenta que en las aguas no
litorales del Golfo existe una porcion de ellas en donde se empalman o
confunden las jurisdicciones de inspeccién para objetos de policia, de
seguridad y fines fiscales; y otra en donde es posible que no suceda lo
mismo. Por lo tanto, el Tribunal ha decidido que entre El Salvador y
Nicaragua existe el condominio en ambas porciones, puesto que estan
dentro del Golfo; pero con la salvedad expresa de los derechos que

15
104 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

corresponden a Honduras como coparticipe en esas mismas por-
ciones.” (CJC, Sentencia, pp. 55-56.)

“WHEREAS: The legal status of the Gulf of Fonseca having been
recognized by this Court to be that of a historic bay possessed of the
characteristics of a closed sea, the three riparian States of El Sal-
vador, Honduras and Nicaragua are, therefore, recognized as
coéwners of its waters, except as to the littoral marine league which is
the exclusive property of each, and with regard to the coéwnership
existing between the States here litigant, the Court . . . took into
account the fact that as to a portion of the non-littoral waters of the
Gulf there was an overlapping or confusion of jurisdiction in matters
pertaining to inspection for police and fiscal purposes and purposes
of national security, and that, as to another portion thereof, it is pos-
sible that no such overlapping and confusion takes place. The Court,
therefore, has decided that as between El Salvador and Nicaragua
coéwnership exists with respect to both portions, since they are both
within the Gulf; with the express proviso, however, that the rights
pertaining to Honduras as coparcener in those portions are not
affected by that decision.” (AJIL, 1917, p. 716.)

It is a matter of public record that on 24 November 1917 Nicaragua
addressed to the States of Central America a lengthy Note

“for the purpose of explaining and justifying the attitude that was
forced upon [the Nicaraguan] Government of ignoring and rejecting
the two Judgements rendered against it by the Central American
Court of Justice”,

i.e., the 1917 Judgement and an earlier Judgement in a case brought by
Costa Rica against Nicaragua.

29. The Central American Court of Justice had been informed of the
existence of the delimitation of part of the waters of the Gulf effected by
Honduras and Nicaragua, and referred to above. In its Judgement that
Court noted that

“la linea trazada ... sôlo llego hasta un punto medio entre la isla del
Tigre y Punta de Cosigtiina, dejando sin dividir . .. una considerable por-
ciôn de aguas comprendida entre la linea trazada desde Punta Amapala
a Punta Cosigiiina y el punto terminal de la divisién entre Honduras y
Nicaragua” (CJC, Sentencia, p. 50).

“the line drawn... only extends as far as a point midway between
Tigre Island and Cosigüina Point, thus leaving undivided ... a con-
siderable portion of the waters embraced between the line drawn
from Amapala Point to Cosigüina Point and the terminal point of the
division between Honduras and Nicaragua” (AJIL, 1917, p.711).

16
105 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

Referring also to an overlap or intersection, at the entrance to the Gulf, of
“the two lines (distant twelve miles from the coast) that mark the respec-
tive limits of the zone of maritime inspection” (AJIL, 1917, p. 702) of
El Salvador and Nicaragua, the Central American Court of Justice stated
that

“Por consiguiente, hay que concluir en que, exceptuando esa parte, el
resto de las aguas del Golfo ha quedado pro-indiviso, en estado de
comunidad entre El Salvador y Nicaragua, y en que por la particular
configuraciôn del mismo, esas aguas quedan frente a frente, confun-
diéndose por un empalme .. .” (CJC, Sentencia, p. 50.)

“Consequently, it must be concluded that, with the exception of
that part [sc., the area delimited between Honduras and Nicaragua],
the rest of the waters of the Gulf have remained undivided and in a
state of community between El Salvador and Nicaragua, and that, by
reason of the particular configuration of the Gulf, those waters,
though remaining face to face, were... confounded by overlapping.”
(AJIL, 1917, p. 711.)

30. It is claimed by El Salvador in its Memorial in the present case that

“On the basis of the 1917 judgement an objective legal régime has
been established in the Gulf. Even if initially the judgement was
binding only in respect of the direct parties to the litigation, Nicara-
gua and El Salvador, the legal status recognized therein has been con-
solidated in the course of time; its effects extend to third States, and
in particular, they extend to Honduras”

and further that the juridical situation of the Gulf “does not permit the
dividing up of the waters held in condominium”, with the exception of “a
territorial sea within the Gulf”, recognized by the Central American
Court of Justice. It therefore asks the Chamber to adjudge and declare
that

“The juridical position of the maritime spaces within the Gulf of
Fonseca corresponds to the juridical position established by the
Judgement of the Central American Court of Justice rendered
March 9th 1917, as accepted and applied there after.”

It also contends in its Counter-Memorial that

“So far as the maritime spaces are concerned, the Parties have not
asked the Chamber either to trace a line of delimitation or to define
the Rules and Principles of Public International Law applicable to a
delimitation of maritime spaces, either inside or outside the Gulf of
Fonseca.”

17
106 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

31. Honduras in its Reply rejects the view that the 1917 Judgement pro-
duced or reflected an objective legal regime, contending that in the case of

“a judgment or arbitral award laying down a delimitation as between
the parties to a dispute, the solution therein adopted can only be
opposed to the parties. As for other States, which are alien to the case,
a decision which affects their rights cannot be opposed to them. This
is indeed the case for Honduras with respect to the 1917 Judgement
of the Central American Court, which was the outcome of proceed-
ings in which it did not participate.”

It also observes that

“it is not the 1917 Judgement which confers sovereignty upon the
riparian States over the waters of the Bay of Fonseca. That sover-
eignty antecedes considerably that judgment between two riparian
States, since it dates back to the creation of the three States con-
cerned.”

Honduras’s contention as to the legal situation of the maritime spaces, to
be examined further below, involves their delimitation between the Par-
ties. It considers that the Chamber has jurisdiction under the Special
Agreement to effect such delimitation, and has indicated what, in the view
of Honduras, should be the course of the delimitation line.

32. As regards maritime spaces situated outside the closing line of the
Gulf, Honduras asks the Chamber to find that the “community of inter-
ests” between EI Salvador and Honduras as coastal States of the Gulf
implies that they each have an equal right to exercise jurisdiction over
such spaces. On this basis, it asks the Chamber to determine a line of deli-
mitation extending 200 miles seaward, to delimit the territorial sea, the
exclusive economic zone and the continental shelf of the two Parties.
EI Salvador however contends that the Chamber does not, under the
Special Agreement, have jurisdiction to delimit maritime areas outside
the closing line of the Gulf. El Salvador denies that Honduras has any
legitimate claim to any part of the continental shelf or exclusive economic
zone in the Pacific, outside the Gulf; it is however prepared to accept that
this question be decided by the Chamber.

33. A feature of the present case is that on none of the three aspects of
the dispute referred to in Article 2, paragraph 2, of the Special Agreement,
to which the Application for permission to intervene relates, — the
islands, the waters of the Gulf, and the waters outside the Gulf — are the
Parties in agreement as to the issues to be decided by the Chamber under
the Special Agreement. In considering whether Nicaragua has a legal
interest which may be affected by the decision in the case, so as to justify

18
107 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

its intervention, the Chamber has accordingly to bear in mind that a num-
ber of issues may or may not fall to be determined by it under each head.

+ *

34. By a letter dated 20 April 1988, the Ambassador of Nicaragua to
the Netherlands requested that the pleadings be made available to Nicara-
gua under Article 53, paragraph 1, of the Rules of Court, a request
granted (above, paragraph 13) on 15 June 1988 after ascertainment of the
views of the Parties. That letter referred to the Order of the Court of 8 May
1987 constituting the Chamber in this case, and stated:

“Whilst Nicaragua does not at this stage intend to avail itself of the
provisions of Article 62 of the Statute of the Court, the purpose of the
present communication is to inform the Court that the possibility
offered by Article 62 is under active consideration. In this context I
am instructed to convey the view of my Government that Nicaragua
has an interest of a legal nature which may be affected by a decision
of the Chamber constituted for the purpose of deciding the Case con-
cerning the Land, Island and Maritime Frontier Dispute between
EI Salvador and Honduras. Moreover, in the light of the principle of
consent as invoked by the Court in the Monetary Gold case,
CJ. Reports 1954, p. 19, at p. 32, my Government considers it neces-
sary to reserve its position generally in relation to the Court’s Order
of 8 May 1987.”

Copies of this letter were transmitted to the two Parties by the Registrar of
the Court.

35. In its Application for permission to intervene, filed on 17 Novem-
ber 1989, Nicaragua stated that the Application was made by virtue of
Article 36, paragraph 1, and Article 62 of the Statute. An application
under Article 62 is required by Article 81, paragraph 1, of the Rules of
Court to be filed “as soon as possible, and not later than the closure of the
written proceedings”. The Application of Nicaragua was filed in the
Registry of the Court two months before the time-limit fixed for the filing
of the Parties’ Replies.

36. By Article 81, paragraph 2, of the Rules of Court a State seeking to
intervene is required to specify the case to which it relates and to set out:

“{a) the interest of a legal nature which the State applying to inter-
vene 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”.

Nicaragua’s contentions on each of those requirements are as follows.

19
108 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

37. As to the interest of a legal nature (Article 81, paragraph 2 (a), of the
Rules of Court), Nicaragua states as follows in its Application : “As can be
appreciated in Article 2 of the Special Agreement .. ., the Government of
Nicaragua has an interest of a legal nature which must inevitably be
affected by a decision of the Chamber.” (Para. 2.) It then proceeds to
enumerate the “particular considerations supporting this opinion” as
including the following:

“(a) The phrasing of paragraph 2 of Article 2 of the Special Agree-
ment, which refers comprehensively to Va situaciôn juridica insu-
lary de los espacios maritimos’.

(b) The title of the Special Agreement which refers to ‘a controver-
sia fronteriza terrestre, insular y maritima existente entre los dos
Estados’.

(c) The geographical situation in the Gulf of Fonseca and the adja-
cent maritime areas.

(d) The essential character of the legal principles, including rele-
vant equitable principles, which would be relevant to the deter-
mination of the questions placed on the agenda by the Special
Agreement.

(e) The general recognition by authoritative legal opinion that the
issues relating to the Gulf of Fonseca involve a trilateral con-
troversy.

(f) The leading role of coasts and coastal relationships in the legal
régime of maritime delimitation and the consequence in the
case of the Gulf of Fonseca that it would be impossible to carry
out a delimitation which took into account only the coasts in the
Gulf of two of the three riparian States.

(g) The fact that a possible element in the regulation of the legal
situation of maritime spaces, especially in a case like that of the
Gulf of Fonseca, would be the designation of one or more zones
of joint exploration and exploitation: see the Report of the Con-
ciliation Commission in the Jan Mayen Continental Shelf case,
International Law Reports (ed. E. Lauterpacht), Vol. 62, p. 108.”
(Application, para. 2.)

38. Article 81, paragraph 2 (b), of the Rules of Court requires a state-
ment of “the precise object of the intervention”. In Nicaragua’s Applica-
tion, it is stated that

“The intervention for which permission is requested has the fol-
lowing objects:

First, generally to protect the legal rights of the Republic of Nicara-
gua in the Gulf of Fonseca and the adjacent maritime areas by all
legal means available.

Secondly, to intervene in the proceedings in order to inform the
Court of the nature of the legal rights of Nicaragua which are in issue
in the dispute. This form of intervention would have the conservative

20
109 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

purpose of seeking to ensure that the determination of the Chamber
did not trench upon the legal rights and interests of the Republic of
Nicaragua...” (Application, paras. 4-6.)

Nicaragua goes on to state that it “intends to subject itself to the binding
effect of the decision to be given” (Application, para. 6). The Chamber
takes note of that statement.

39. The further requirement of Article 81, paragraph 2 (c), of the Rules
of Court, that an application for permission to intervene set out “any basis
of jurisdiction which is claimed to exist as between the State applying to
intervene and the parties to the case”, is dealt with in the Application as
follows. Nicaragua contends that, for reasons which are there briefly
stated, “In the opinion of the Government of Nicaragua Article 62 of the
Statute, which is the governing instrument, does not require a separate
title of jurisdiction . . .” (Application, para. 7.) Nicaragua does not assert
the existence of any basis of jurisdiction other than the Statute itself; it
adds that

“Moreover, Article 36, paragraph 1, of the Statute states that the
jurisdiction of the Court ‘comprises ... all matters specially provided
for ...in treaties and conventions in force’; and the Statute is itself a

299

‘treaty in force’.” (Application, para. 7.)

40. In its Application Nicaragua further states that its request to inter-
vene is “limited to that part of the object of the Special Agreement con-
tained in paragraph 2 of Article 2”, 1.e., the request that the Chamber
“determine the legal situation of the islands and maritime spaces” and
that it “wishes to make very clear that it has no intention of intervening in
those aspects of the procedure relating to the land boundary which is in
dispute between El Salvador and Honduras” (Application, “Preliminary
Statements”).

41. In its Application to the Court for permission to intervene dated
17 November 1989 Nicaragua also stated that

“The practical consequence of a favourable response to the pres-
ent request will be the reformation of the Chamber as presently con-
stituted and the re-ordering of the written proceedings as arranged by
the Order of 27 May 1987. Whilst my Government is bound to take all
available steps in order to protect its legal interests, it is concerned
to proceed in a spirit of goodwill and co-operation in face of a pro-
cedure which has already been initiated. Consequently, it is the
intention of my Government to propose not a reformation of the
Chamber and its jurisdictional basis tout court but only the making
of those changes strictly necessary in order to maintain the mini-
mum standards of efficacy and procedural fairness” (para. 23 of
that Application),

and that

21
110 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

“Nicaragua in the alternative would request that, for those reasons
of elemental fairness explained above .. ., the Court should, in any
case, exclude from the mandate of the Chamber any powers of deter-
mination of the juridical situation of maritime areas both within the
Gulf of Fonseca and also in the Pacific Ocean and, in effect, limit the
Chamber’s mandate to those aspects of the land boundary which are
in dispute between El Salvador and Honduras.” (Para. 24 of that
Application.)

In its Order of 28 February 1990, the Court observed on the first of these
contentions that

“while Nicaragua has thus referred to certain questions concerning
the composition of the Chamber, it has done so only in contempla-
tion of a favourable response being given to its request for interven-
tion”;
and on the second, that “while Nicaragua contemplates a limitation of the
mandate of the Chamber, its request to that effect is put forward only ‘in
the alternative’”; and the Court concluded that it “is thus not called upon
to pronounce on any of these questions”, which it referred to as “contin-
gent on the decision whether the application for permission to intervene is
to be granted”, that decision being an “anterior question”.

42. At the hearings, the Agent of Nicaragua, in his first statement to the
Chamber, referred to the Court’s Order and stated that

“now that Nicaragua is before the Chamber reiterating its petition to
intervene, it does so without submitting to the Chamber on this
opportunity the two questions that the full Court stated could only be
resolved after the decision on the Application for permission to inter-
vene was made by the Chamber ... Nicaragua maintains, before this
Chamber of the Court, its Application for permission to intervene
but modified in the sense that the requests made in Sections 23 and 24
of its original Application of 17 November 1989 are not being sub-
mitted for decision by this Chamber”.

In reply to a question by the Chamber, the Agent made it clear that Nicara-
gua accepted that the decision on intervention is entirely for the Chamber,
which has full authority to decide on it and stated further:

“The Chamber is correct in understanding that Nicaragua accepts
that it is the Chamber which is properly seised of an application by
Nicaragua for permission to intervene before it in the case concern-
ing the Land, Island and Maritime Frontier Dispute (El Salvador/Hon-
duras); and that Nicaragua recognizes that the eventual decision of
the Chamber granting or refusing permission to intervene will be
binding and final...

The only limitation we have made to our original application to the

22
111 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

fuli Court was that we are not putting at this moment before the
Chamber any request that it reconstitute itself or that it exclude from
its own competence ratione materiae those aspects of the case that
Nicaragua had requested that the full Court exclude from the man-
date of this Chamber...

... what we are putting before the Chamber is the simple and
unconditional request to be allowed permission to intervene in the
present case based on Article 62 of the Statute...”

*  _*

43. Some of the arguments of El Salvador have been put forward as
grounds for the Chamber to reject the Application of Nicaragua in limine,
without there being any need for further examination of its compliance
with Article 62 of the Statute of the Court. These will therefore be
examined first.

44. First, El Salvador claims that the Application fails to fulfil the
requirement in Article 81, paragraph 2 (c), of the Rules of Court that a
State seeking to intervene is to set out in its application “any basis of juris-
diction which is claimed to exist as between the State applying to inter-
vene and the parties to the case”. Nicaragua does not set out any such
basis in its Application but argues that Article 62 of the Statute “does not
require a separate title of jurisdiction” (para. 7). The Chamber does not
see here any formal defect, justifying dismissal of the Application
in limine, since the Rule only requires statement of “any basis of jurisdic-
tion which is claimed to exist”. El Salvador also advances the view that a
“jurisdictional link” between the State seeking to intervene and the parties
is a necessary condition for intervention. The Court, however, has
observed in an earlier case that

“although this question is one of the Court’s jurisdiction, it has no
priority of the kind which attaches to a jurisdictional objection stricto
sensu, and need not be examined in advance of the other contentions
put forward by the Parties either as objections to the admissibility of
the Application, or as grounds for refusing it” (Z.C.J. Reports 1984,
p- 8, para. 11).

EI Salvador’s contentions on the question of the jurisdictional link will
therefore be examined later (paragraphs 93-101).

45. Second, El Salvador contends that Nicaragua’s Application is
defective because it does not comply with the requirement of Article 81,
paragraph 2 (b), of the Rules of Court that a State applying to intervene
indicate in its Application “the precise object of the intervention”. Nicara-
gua’s Application has two paragraphs (quoted in paragraph 38 above)
stating the object of the intervention. El Salvador nonetheless contends
(inter alia) that Nicaragua has not complied with the requirement to indi-
cate “the precise object” : it does not “indicate its position with respect to
the fundamental issue in the case, which is to define the object of the litiga-

23
112 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

tion and consequently the scope of the powers of the Chamber”, and
“these omissions make the Application defective”. In the Chamber’s view,
however, Nicaragua has given an indication of an object which could cer-
tainly be defined in a more precise way but is not so evidently lacking in
precision as to justify the Chamber in rejecting the Application in limine
for non-compliance with Article 81 of the Rules of Court. Whether, as
El Salvador also claims, Nicaragua’s object in intervening is not a proper
one is a separate matter to be considered below (paragraphs 85-92).

46. Thirdly, El Salvador contends further that “Nicaragua is time-
barred or estopped from seeking changes in the procedural aspects of the
principal proceedings”. El Salvador refers to the provision of Article 81,
paragraph 1, of the Rules of Court whereby an application for permission
to intervene is to be filed “as soon as possible, and not later than the clo-
sure of the written proceedings”. In its written observations on the Appli-
cation, El Salvador emphasized the words “as soon as possible”, and
contended that, in view of Nicaragua’s requests in paragraphs 23 and 24 of
the Application, for the reformation of the Chamber and the re-ordering
of the written proceedings (paragraph 41 above), it should not have post-
poned its Application for nearly three years after being notified of the pro-
ceedings; and that the Application for permission to intervene should be
declined because Nicaragua is “out of time”. At the hearings the Agent of
El Salvador, continuing to urge that the Application was “untimely”,
stated that El Salvador was fully aware that the relevant time-limits “have
in the technical sense been complied with by Nicaragua”, and explained
that it was requesting the Chamber to reject the Nicaraguan Application,
“not because it fails to meet a technical requirement of the Rules but
because it fails to meet the substantive requirements of the Statute”. The
contention appears to be that Nicaragua’s Application is untimely, not
only in itself but because of the late raising of the matters in paragraphs 23
and 24 thereof, which would be disruptive at the present advanced stage of
the proceedings; and that the Chamber has and should exercise a discre-
tion to reject the Application in limine on this ground.

47. In its observations on the Nicaraguan Application for permission
to intervene, El Salvador in fact sets out a number of grounds of objection
to the matters raised in paragraphs 23 and 24 of that Application. To give
effect to Nicaragua’s stated intention to seek a “reordering of the written
proceedings” would, it is contended, “infringe the Rules of Court”, “fail
to recognize the acquired rights of the litigant Parties”, and “create an
unfair situation by placing Nicaragua in an advantageous position vis-
à-vis the Parties, already committed as they are by the contents of their
pleadings, to which Nicaragua has been given access”. Nicaragua’s
intended request for the “reformation of the Chamber as presently consti-
tuted” is described by El Salvador as an “extravagant and unprecedented
claim”, to allow which would “violate essential legal principles”. To mod-
ify the constitution of the Chamber without the consent of the Parties

24
113 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

“would infringe Article 26, paragraph 2, of the Statute”. Nicaragua’s
proposal that the Court should “exclude from the mandate of the Cham-
ber any powers of determination of the juridical situation of maritime
areas ... and, in effect, limit the Chamber’s mandate” to the land boun-
dary dispute is an “extraordinary request” which “can only be explained
by the mistaken assumption that a Chamber is a body subordinated to the
Court”. All these matters are, in the view of El Salvador, “totally disrup-
tive of the orderly unfolding of the judicial process”. El Salvador con-
cludes that

“Ali these serious defects in the Nicaraguan Application, resulting
from the extravagant requests it advances, lead to the necessary rejec-
tion by the Chamber of such a defective application. The Chamber is
not confronted here with a serious request for what the Court has
qualified as a ‘genuine intervention’ .. .”

At the hearings, El Salvador urged rejection of the Nicaraguan Applica-
tion because acceptance of it “would wreak havoc on the Parties to this
case and would create an unconscionable situation of interference, rather
than one of orderly advancement of the proceedings”.

48. The Chamber is here only concerned to consider whether the objec-
tions addressed by El Salvador to paragraphs 23 and 24 of that Applica-
tion would justify its rejection in limine. This point has to be considered
notwithstanding the fact that the Court has categorized the content of
those paragraphs as contingent on the decision whether or not to grant
permission to intervene, and Nicaragua has made it clear that it is not

“putting at this moment before the Chamber any request that it re-
constitute itself or that it exclude from its own competence ratione
materiae those aspects of the case that Nicaragua had requested that
the full Court exclude from the mandate of this Chamber” (para-
graph 42 above).

49. A rejection of the Application on these grounds would only be
appropriate if the Chamber were to conclude that the inclusion of the
requests in paragraphs 23 and 24 of the original Application invalidated
the entire Application. The Chamber does not however consider that this
is the case.

50. Finally, El Salvador relies on the fact that there has been “no dis-
cussion whatsoever between Nicaragua and either of the original Parties
regarding the position of the Gulf of Fonseca”. Therefore, it is argued, it is
premature to bring such issues before the Chamber, and counter to the
established rule “that before proceedings are brought in the Court, there
must be a defined dispute which ... has matured through the process of
negotiation between the parties”.

51. The Chamber does not consider that there is any requirement for
the definition of a dispute in prior negotiations before an application can
be made for permission to intervene. The function of intervention is, as

25
114 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

indicated in the 1984 Judgment on the Application of Italy for permission
to intervene in the case concerning the Continental Shelf (Libyan Arab
Jamahiriya/ Malta), and as explained below, something wholly different
from the determination of a further dispute between the State seeking to
intervene and one or both of the parties. In that Judgment the Court found
that that Application could not be granted because, inter alia, to give effect
to it “the Court would be called upon ... to determine a dispute, or some
part of a dispute, between Italy and one or both of the principal Parties”
(CJ. Reports 1984, p. 20, para. 31), without the consent of those parties. It
would therefore be inappropriate to require, as a condition of interven-
tion, the existence of such a dispute, defined by prior negotiations.

52. As the Court has made clear in previous cases (1.C.J. Reports 1981,
p. 19, para. 33; 1.CJ. Reports 1984, p. 9, para. 13), in order to obtain per-
mission to intervene under Article 62 of the Statute, a State has to show an
interest of a legal nature which may be affected by the Court’s decision
in the case, or that un intérét d’ordre juridique est pour lui en cause — the
criterion stated in Article 62. In the present case, Nicaragua has gone
further: citing the case concerning Monetary Gold Removed from Rome
in 1943 (1.C.J. Reports 1954, p. 19), it has argued that its interests are so
much part of the subject-matter of the case that the Chamber could not
properly exercise its jurisdiction without the participation of Nicaragua.
It will be convenient to examine this contention first.

53. In the view of Nicaragua, the decision in the Monetary Gold case
“emphasized the impropriety of exercising jurisdiction in face of a sub-
stantial interest of a third State in the very subject-matter of the decision”
(Application, para. 12). During the oral proceedings the Agent of Nicara-
gua claimed, adapting to the present case the terms of the decision in the
Monetary Gold case, that

“where . . . the vital issue to be settled concerns the rights of Nicara-
gua in the Gulf of Fonseca and the waters outside it, the Court can-
not, without the consent of that third State, give a decision on that
issue binding upon any State...”.

What is apparently being suggested is that in such circumstances the
failure of a third State to intervene, or even refusal of a request for per-
mission to intervene, may deprive the Court of the right with propriety to
exercise a jurisdiction conferred upon it by a special agreement between
two other States.

54. In the Monetary Gold decision, the Court was dealing with the fol-
lowing argument (as reported in the Court’s Judgment) which had been
addressed to it:

26
115 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

“It has been suggested that Albania might have intervened. The
provisions of Article 62 of the Statute give to a third State, which con-
siders that it ‘has an interest of a legal nature which may be affected
by the decision in the case’, the right to request permission to inter-
vene. It has been contended that the inclusion of the provisions for
intervention indicate that the Statute contemplates that proceedings
may continue, notwithstanding that a third State may have an interest
of a legal nature which might enable it to intervene. It is argued that
the fact that a third State, in this case Albania, may not choose to
intervene should not make it impossible for the Court to give judg-
ment on rights as between the Parties.” (7.C.J. Reports 1954, p. 32.)

The Court did not reject this contention; as was to be expressly stated in a
later Judgment, a State which considers that its legal interest may be
affected by a decision in a case has the choice, to intervene or not to inter-
vene; and if it does not, proceedings may continue, and that State is pro-
tected by Article 59 of the Statute (I.C.J. Reports 1984, p. 26, para. 42). The
Court’s reply in the Monetary Gold case to the argument addressed to it
was as follows:

“Albania has not submitted a request to the Court to be permitted
to intervene. In the present case, Albania’s legal interests would not
only be affected by a decision, but would form the very subject-
matter of the decision. In such a case, the Statute cannot be regarded,
by implication, as authorizing proceedings to be continued in
the absence of Albania.” (Loc. cit., p. 32.)

What then was “the very subject-matter of the decision” in that case? The
first submission in the Italian Application was

“(1) that the Governments of the French Republic, Great Britain
and Northern Ireland and the United States of America should
deliver to Italy any share of the monetary gold that might be due to
Albania under Part III of the Paris Act of January 14th, 1946, in par-
tial satisfaction for the damage caused to Italy by the Albanian law of
January 13th, 1945.” (I.C.J. Reports 1954, p. 22, emphasis added.)

Thus the circumstances of the Monetary Gold case were such that a deci-
sion would determine a question of the international responsibility of
Albania vis-a-vis Italy. As the Court put it:

“To adjudicate upon the international responsibility of Albania
without her consent would run counter to a well-established prin-
ciple of international law embodied in the Court’s Statute, namely,
that the Court can only exercise jurisdiction over a State with its con-
sent.” (.C.J. Reports 1954, p. 32.)

55. Thus the Court’s finding was that, while the presence in the Statute
of Article 62 might impliedly authorize continuance of the proceedings in

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116 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

the absence of a State whose “interests of a legal nature” might be
“affected”, this did not justify continuance of proceedings in the absence
of a State whose international responsibility would be “the very subject-
matter of the decision”. The Court did not need to decide what the posi-
tion would have been had Albania applied for permission to intervene
under Article 62.

56. If in the present case the legal interests of Nicaragua would form
part of “the very subject-matter of the decision”, as Nicaragua has sug-
gested, this would doubtless justify an intervention by Nicaragua under
Article 62 of the Statute, which lays down a less stringent criterion. The
question would then arise, however, whether such intervention under
Article 62 of the Statute would enable the Chamber to pronounce upon
the legal interests of Nicaragua which it is suggested by Nicaragua would
form the very subject-matter of the decision. The Chamber will therefore
first consider whether Nicaragua has shown the existence of an “interest
of a legal nature which may be affected by the decision”, so as to justify an
intervention; and if such is the case, will then consider whether that inter-
est may in fact form “the very subject-matter of the decision” as did the
interests of Albania in the case concerning Monetary Gold Removed from
Rome in 1943.

* *

57. Article 62 of the Statute contemplates intervention on the basis of
an interest of a legal nature “which may be affected by the decision in the
case”. In the present case however, what is requested of the Chamber by
the Special Agreement is not a decision on a single circumscribed issue,
but several decisions on various aspects of the overall dispute between the
Parties, as indicated in paragraphs 30 to 33 above. The Chamber has to
consider the possible effect on legal interests asserted by Nicaragua
of its eventual decision on each of the different issues which might fall
to be determined, in order to define the scope of any intervention which
may be found to be justified under Article 62 of the Statute.

58. Ifa State can satisfy the Court that it has an interest of a legal nature
which may be affected by the decision in the case, it may be permitted to
intervene in respect of that interest. But that does not mean that the inter-
vening State is then also permitted to make excursions into other aspects
of the case. This is recognized by Nicaragua; it claims only that its inter-
ests of a legal nature may be affected by the decision of the Chamber on
the “legal situation of the islands and maritime spaces”, but not by the
decision on the land frontier, and accordingly states in its Application
“that it has no intention of intervening in those aspects of the procedure
relating to the land boundary which is in dispute between El Salvador and
Honduras” (Application, “Preliminary Statements”). Since the scope of
any permitted intervention has to be determined, the Chamber has to
consider the matters of the islands, the situation of the waters within the

28
117 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

Gulf, the possible delimitation of the waters within the Gulf, the situa-
tion of the waters outside the Gulf, and the possible delimitation of the
waters outside the Gulf.

59. Whether all of these matters are indeed raised by the wording of
Article 2, paragraph 2, of the Special Agreement is itself disputed between
the Parties to the case. Accordingly, the list of matters to be considered
must in this phase of the proceedings be entirely without prejudice to the
meaning of Article 2, paragraph 2, as a whole, or of any of the terms as
used in that Article. The Chamber clearly cannot take any stand in the
present proceedings on the disputes between the Parties concerning the
proper meaning of the Special Agreement: it must determine the ques-
tions raised by Nicaragua’s Application while leaving these questions of
interpretation entirely open.

60. Inits Application for permission to intervene, Nicaragua gave a list
(set out in paragraph 37 above) of considerations supporting its conten-
tion that it has an interest of a legal nature which may be affected by the
decision of the Chamber. No further or more specific indication was
given in the Application either of the legal interest or interests claimed to
exist or of the way in which the future decision of the Chamber might
affect that interest. During the hearings, the Agent of Nicaragua
explained that

“In describing the legal interests Nicaragua wants to protect in this
case, we have considered it unnecessary to allege or claim a specific
right inside the Gulf of Fonseca. It is enough to indicate... that both
Parties, among other questions that affect our interests, are asking
the Chamber to define or clarify the general or overall status of the
whole Gulf of Fonseca in which Nicaragua plainly has rights that
are even recognized according to their respective convenience by the
Parties ... On the other hand, if the Chamber were to consider the
request of Honduras and proceeded to delimit the waters inside the
Gulf, it is obvious from looking at any chart that no such delimita-
tion is possible without affecting our interests, if this delimitation
involves the whole of the Gulf of Fonseca.”

61. There was in this connection some argument before the Chamber
on the question of the extent of the burden of proof on a State seeking to
intervene: how far such a State needs to demonstrate the elements
required in order to satisfy Article 62. Nicaragua was of the view that it
need only show a “provisional standard of proof”; and that it would be
“inappropriate for the applicant to go too far on the question of the valid-
ity of the interests it claims”. The Parties to the case took issue with these
arguments. In the Chamber’s opinion, however, it is clear, first, that it is
for a State seeking to intervene to demonstrate convincingly what it
asserts, and thus to bear the burden of proof; and, second, that it has only
to show that its interest “may” be affected, not that it will or must be
affected. What needs to be shown by a State seeking permission to inter-

29
118 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

vene can only be judged in concreto and in relation to all the circumstances
of a particular case. It is for the State seeking to intervene to identify the
interest of a legal nature which it considers may be affected by the decision
in the case, and to show in what way that interest may be affected; it is not
for the Court itself — or in the present case the Chamber — to substitute
itself for the State in that respect.

62. Itneeds, moreover, to be recalled in this connection that the present
case raises a further problem, namely that the Parties to the case are in
dispute about the interpretation of the very provision of the Special
Agreement — paragraph 2 of Article 2 — which is invoked in Nicaragua’s
Application. This means that the legal interests of Nicaragua have to be
assessed, in relation to the issues in the case, under two different possible
situations : an eventual finding by the Chamber in favour of El Salvador’s
view of the meaning of Article 2, paragraph 2; or an eventual finding in
favour of the view of Honduras. This difficulty is not only one for the
Chamber in considering the present Application — for obviously, as men-
tioned above, it must not in any way anticipate its decision of these matters
on the merits — but also for Nicaragua in framing its Application, even
though it was given access to the pleadings under Article 53, paragraph 1,
of the Rules of Court. Nevertheless, there needs finally to be clear identi- ©
fication of any legal interests that may be affected by the decision on the
merits. A general apprehension is not enough. The Chamber needs to be
told what interests of a legal nature might be affected by its eventual deci-
sion on the merits.

63. Nicaragua has presented a particular argument whereby it would
apparently be dispensed from producing evidence of the existence of the
legal interests on which it relies, by reason of the assertions of the Parties.
This argument has at times been denominated “equitable estoppel” and at
times “recognition” ; in its clearest form it was put forward at the hearings
as follows:

“In the submission of the Government of Nicaragua the assertions
of fact and law on the part of El Salvador and Honduras in the course
of these proceedings constitute recognition of the existence of major
legal interests pertaining to Nicaragua which form an inherent part
of the parcel of legal questions placed in front of the Chamber by the
Special Agreement.”

So far as Nicaragua relies on estoppel, the Chamber will only say that it
sees no evidence of some essential elements required by estoppel: a state-
ment or representation made by one party to another and reliance upon it
by that other party to his detriment or to the advantage of the party mak-
ing it. The indications to be found in the pleadings of the views of the
Parties as to the existence or nature of Nicaraguan interests within or
without the Gulf, no doubt amount to some evidence which the Chamber
can take into account. None of these however amounts to an admission,
recognition or statement that, in the view of the Party concerned, there are

30
119 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

interests of Nicaragua such that they may be affected by the decision of
the Chamber in the case.

*

64. The Chamber will now turn to consideration of the several specific
issues in the case which may call for decision, as indicated in paragraph 58
above, in order to determine whether it has been shown that such decision
may affect a Nicaraguan interest of a legal nature.

*

65. So far as the decision requested of the Chamber by the Parties is to
determine the legal situation of the islands, it is not clear whether Nicara-
gua has advanced, or now maintains, a contention that its legal interests
may be directly affected by the decision of the Chamber as to sovereignty
over individual islands. Nicaragua referred in its Application to the title of
the Special Agreement and to Article 2, paragraph 2, thereof, which refer
both to the islands and to the maritime spaces (Que determine la situaciôn
juridica insular y de los espacios maritimos). During the hearings, counsel
for Nicaragua stated that, Nicaragua’s sovereignty over the Farallones
being expressly recognized by the Parties, Nicaragua has in principle no
direct interest in the determination of the legal situation of the other
islands in the Gulf. It was however also stated on behalf of Nicaragua
during the hearings that, insofar as the decision concerning sovereignty
over the islands might have repercussions on a decision concerning deli-
mitation of the waters of the Gulf, Nicaragua is legitimately and directly
interested in the islands as a circumstance of possible relevance for the
delimitation of maritime areas within and without the Gulf.

66. The Chamber concludes that, insofar as the dispute relates to sover-
eignty over the islands, it should not grant permission for intervention by
Nicaragua, in the absence of any Nicaraguan interest liable to be directly
affected by a decision on that issue. Any possible effects of the islands as
relevant circumstances for delimitation of maritime spaces fall to be con-
sidered in the context of the question whether Nicaragua should be per-
mitted to intervene on the basis of a legal interest which may be affected by
a decision on the legal situation of the waters of the Gulf. The Chamber
therefore turns to that question.

*

67. Itis El Salvador’s case that, as between El Salvador, Honduras and
Nicaragua, there exists “a régime of community, co-ownership or joint

31
120 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

sovereignty” over such of the waters of the Gulf of Fonseca “as lie outside
the area of exclusive jurisdiction”, an “objective legal regime” on the basis
of the 1917 Judgement of the Central American Court of Justice. The
nature of that régime, as conceived by the Central American Court,
appears sufficiently for present purposes from the extracts from the 1917
Judgement in paragraphs 27 and 28 above. On that basis, El Salvador con-
siders that the juridical situation of the Gulf does not permit the dividing
up of the waters held in condominium. El Salvador also contends that the
Special Agreement does not confer jurisdiction to effect any such delimi-
tation.
68. Honduras on the other hand contends, inter alia,

— that “the Gulfs specific geographical situation creates a special situa-
tion between the riparian States which generates a community of
interests” which in turn “calls for a special legal régime to determine
their mutual relations”;

— that the community of interests “does not mean integration and the
abolition of boundaries” but, on the contrary, “the clear definition of
those boundaries as a condition of effective co-operation” ;

— that each of the three riparian States “has an equal right to a portion of
the internal waters”;

— that the maritime spaces to be delimited have “the status of internal
waters because the Gulf of Fonseca is an historic bay” ; but that never-
theless it would not be correct “to rule out the application to such deli-
mitation of the principles and rules that have gradually been identified
in international case-law over the past twenty years” for the delimita-
tion of maritime spaces.

69. Honduras considers that Nicaragua has demonstrated a legal inter-
est which would be affected by the decision on the question whether the
waters of the Gulf are subject to a condominium, observing that it is incon-
ceivable that the waters could be a condominium as regards two of the
riparian States, but not as regards the third. It therefore does not oppose
an intervention limited to the protection of Nicaragua’s legal interest in
this question.

70. El Salvador, however, denies that Nicaragua has a case for inter-
vention even in this matter. It argues that the Chamber is not called upon
“to attribute to the waters of the Gulf an objective legal régime valid
erga omnes and thereby applicable to Nicaragua without its having been
able to make its voice heard”; and that the question to be decided is
whether the régime of a condominium,

“which was declared applicable between El Salvador and Nicaragua
in a Court decision having the force of res judicata between the two
countries, can be regarded as applicable to Honduras. Whatever
decision the Chamber reaches on this issue the juridical situation of
Nicaragua will remain unchanged, in its relations both with El Sal-
vador and with Honduras.”

32
121 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

71. The Chamber however notes that El Salvador in its pleadings has
specifically claimed the existence of an “objective legal régime” of condo-
minium in the waters of the Gulf (paragraph 67 above). Further, the fact
that this régime was found to be applicable by the Central American
Court of Justice in a case in which Nicaragua was the respondent party,
appears to the Chamber to reinforce Nicaragua’s assertion of a legal inter-
est which may be affected by any decision in this matter. As appears from
the above quotation, El Salvador’s argument starts from the proposition
that the 1917 Judgement of the Central American Court is res judicata
between El Salvador and Nicaragua. The Chamber has noted above (par-
agraph 28) that in 1917 Nicaragua informed the States of Central America
that it did not accept that Judgement. That very question of res judicata,
even though not directly in issue before the Chamber since El Salvador
does not contend that Honduras was a party to the case and as such bound
by the decision, underlies the asserted opposability of the Judgement to
Honduras, so that a decision on such opposability may affect the interests
of Nicaragua.

72. Quite apart from the question of the legal status of the 1917 Judge-
ment, however, the fact is that El Salvador now claims that the waters of
the Gulf are subject to a condominium of the coastal States, and has
indeed suggested that that régime “would in any case have been appli-
cable to the Gulf under customary international law”. Nicaragua has
referred to the fact that Nicaragua plainly has rights in the Gulf of Fon-
seca, the existence of which is undisputed, and contends that

“The condominium, if it is declared to be applicable, would by its
very nature involve three riparians, and not only the parties to the
Special Agreement.”

In the opinion of the Chamber, this is a sufficient demonstration by Nicar-
agua that it has an interest of a legal nature in the determination whether
or not this is the régime governing the waters of the Gulf: the very defini-
tion of a condominium points to this conclusion. Furthermore, a decision
in favour of some of the Honduran theses would equally be such as may
affect legal interests of Nicaragua. The “community of interests” which is
the starting-point of the arguments of Honduras is a community which,
like the condominium claimed by El Salvador, embraces Nicaragua as
one of the three riparian States, and Nicaragua must therefore be inter-
ested also in that question. Nicaragua contends that in this respect

“any decision taken by the Chamber — whether in deciding in favour
of one Party or the other or by deciding otherwise — is necessarily a
decision whose very subject-matter would be the determination of
the rights of the three riparian States in respect of the Gulf of Fon-
seca, and of the waters outside the Gulf”.

The Chamber, therefore, finds that Nicaragua has shown to the Cham-

33
122 DISPUTE (EL SALVADOR/ HONDURAS) (JUDGMENT)

ber’s satisfaction the existence of an interest of a legal nature which may
be affected by its decision on these questions; and that this is so notwith-
standing the fact that, as its Agent explained at the opening hearing,
Nicaragua has “considered it unnecessary to allege or claim a specific
right inside the Gulf of Fonseca”.

73. On the other hand, while the Chamber is thus satisfied that Nicara-
gua has a legal interest which may be affected by the decision of the
Chamber on the question whether or not the waters of the Gulf of Fonseca
are subject to a condominium or a “community of interests” of the three
riparian States, it cannot accept the contention of Nicaragua that the legal
interest of Nicaragua “would form the very subject-matter of the deci-
sion”, in the sense in which that phrase was used in the case concerning
Monetary Gold Removed from Rome in 1943 to describe the interests of
Albania (see paragraphs 52-56 above). So far as the condominium is con-
cerned, the essential question in issue between the Parties is not the intrin-
sic validity of the 1917 Judgement of the Central American Court of
Justice as between the parties to the proceedings in that Court, but the
opposability to Honduras, which was not such a party, either of that
Judgement itself or of the régime declared by the Judgement. Honduras,
while rejecting the opposability to itself of the 1917 Judgement, does not
ask the Chamber to declare it invalid. If Nicaragua is permitted to inter-
vene, the Judgment to be given by the Chamber will not declare, as
between Nicaragua and the other two States, that Nicaragua does or does
not possess rights under a condominium in the waters of the Gulf beyond
its agreed delimitation with Honduras, but merely that, as between El Sal-
vador and Honduras, the régime of condominium declared by the Central
American Court is or is not opposable to Honduras. It is true that a deci-
sion of the Chamber rejecting El Salvador’s contentions, and finding that
there is no condominium in the waters of the Gulf which is opposable to
Honduras, would be tantamount to a finding that there is no condomi-
nium at all. Similarly, a finding that there is no such “community of inter-
ests” as is claimed by Honduras, between El Salvador and Honduras in
their capacity as riparian States of the Gulf, would be tantamount to a
finding that there is no such “community of interests” in the Gulf at all. In
either event, such a decision would therefore evidently affect an interest of
a legal nature of Nicaragua; but even so that interest would not be the
“very subject-matter of the decision” in the way that the interests of Alba-
nia were in the case concerning Monetary Gold Removed from Rome in
1943. As explained above (paragraph 56), it follows from this that the
question whether the Chamber would have power to take a decision on
these questions, without the participation of Nicaragua in the proceed-
ings, does not arise; but that the conditions for an intervention by Nicara-
gua in this aspect of the case are nevertheless clearly fulfilled.

34
123 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

74. Ifthe Chamber were not satisfied that there is a condominium over
the waters of the Gulf of such a kind as to exclude any delimitation, it
might then be called upon, if it were satisfied that it has jurisdiction to do
so, to effect a delimitation. The Chamber has therefore at the present stage
to consider whether a decision as to delimitation of the waters of the Gulf
might affect an interest of a legal nature appertaining to Nicaragua, in
order to determine whether Nicaragua might be permitted to intervene in
respect of this aspect of the case also. It does not, however, have to con-
sider the possible effect on Nicaragua’s interests of every possible delimi-
tation which might be arrived at; it is for the State seeking to intervene to
show that its interests might be affected by a particular delimitation, or by
delimitation in general. Honduras has already indicated in its pleadings
how, in its view, the delimitation should be effected. El Salvador, consist-
ently with its position, has not indicated its views on possible lines of deli-
mitation. Nicaragua, for its part, has not given any indication of any
specific line of delimitation which it considers would affect its interests.

75. Honduras contends that Nicaragua has demonstrated no legal
interest which may be affected by a decision on a delimitation line within
the Gulf as between Honduras and El Salvador. It observes that

“Such a delimitation line is proposed by Honduras, not by El Sal-
vador, and the Honduran proposal is careful to avoid any encroach-
ment into areas within the Gulf which might be claimed by Nicara-
gua. Moreover, whatever the Honduran proposal might be, the Court
itself has all the powers necessary to ensure that any line of delimita-
tion which it might draw would not be to the prejudice of Nicaragua’s
interests.”

At the hearings it was explained that, for the delimitation claimed,

“Honduras has proposed a method which divides the Gulf into a
western and eastern section . . . It has been the aim of Honduras to
confine the relevant area for the purposes of a delimitation with
El Salvador to the western sector of the Gulf.”

Honduras relied on what it asserted to be the reasonable assumption that
“there can be no justifiable claim by Nicaragua to any part of the waters of
this western sector”. This argument was, in counsel’s contention, re-
inforced by the fact that “as between Honduras and Nicaragua, the
waters of the Gulf are in large part already delimited” by the 1900 Com-
mission, which delimitation would debar Nicaragua from making claims
in the western half of the Gulf. El Salvador also contends that if, contrary
to its own arguments on the competence of the Chamber under the
Special Agreement, the Chamber proceeds to effect a delimitation,

35
124 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

“Nicaragua has rights in the Gulf and in the Pacific, but in the light
of the geographical and legal situation, these rights would not be
affected by any such decision in the present case”.

76. As forthe arguments advanced by Nicaragua which might touch on
this question of delimitation, the most general may be seen in its presenta-
tion, as a consideration supporting its assertion of a legal interest, of the
“essential character of the legal principles, including relevant equitable
principles, which would be relevant to the determination of the questions
placed on the agenda by the Special Agreement” (Application,
para. 2 (d)). The Chamber does not however consider that an interest of a
third State in the general legal rules and principles likely to be applied by
the decision can justify an intervention. Even when, as in the case of
Malta’s Application for permission to intervene in the case between Libya
and Tunisia, the State seeking to intervene “does not base its request for
permission to intervene simply on an interest in the Court’s pronounce-
ments in the case regarding the applicable general principles and rules of
international law”, but “bases its request on quite specific elements” in the
case (ILC.J. Reports 1981, p. 17, para. 30), the interest invoked cannot be
regarded as one which “may be affected by the decision in the case”
(LCJ. Reports 1981, p. 19, para. 33). The consideration urged in para-
graph 2 (d) of the Application is thus insufficient to show the existence of
an interest of a legal nature.

77. With specific reference to delimitation, Nicaragua’ s Application
refers to:

“The leading role of coasts and coastal relationships in the legal
régime of maritime delimitation and the consequence in the case of
the Gulf of Fonseca that it would be impossible to carry out a delimi-
tation which took into account only the coasts in the Gulf of two of
the three riparian States” (para. 2 (f));

but the “role of coasts and coastal relationships” in maritime delimitation
again involves general legal rules and principles. The contention that in
the Gulf of Fonseca “it would be impossible to carry out a delimitation
which took into account only the coasts in the Gulf of two of the three
riparian States” would be more convincing were it not for the fact that in
1900 a maritime boundary was defined in the Gulf between Nicaragua
and Honduras. In any event, the question is whether a legal interest of
Nicaragua would be “affected” by such maritime delimitation. It occurs
frequently in practice that a delimitation between two States involves tak-
ing account of the coast of a third State; but the taking into account of all
the coasts and coastal relationships within the Gulf as a geographical fact
for the purpose of effecting an eventual delimitation as between two ripar-
ian States — El Salvador and Honduras in the instant case — in no way
signifies that by such an operation itself the legal interest of a third ripar-
ian State of the Gulf, Nicaragua, may be affected. In any case, it is for the
Applicant State in the present proceedings to demonstrate to the satisfac-

36
125 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

tion of the Chamber that this would be actually the case in the present
instance. This Nicaragua has failed to do. As for the other arguments
advanced by Nicaragua, in paragraph 2 (g) of its Application, in support
of its position, these appear to the Chamber to refer to altogether too
remote a contingency to justify an intervention in the present proceedings.

78. Paragraph 2 (c) of the Application advances “The geographical
situation in the Gulf of Fonseca and the adjacent maritime areas” as a
consideration supporting the contention that Nicaragua has an interest of
a legal nature which may be affected by the decision. Setting aside for the
moment the question of the “adjacent maritime areas”, the essential diffi-
culty in which the Chamber finds itself, on this matter of a possible delimi-
tation within the waters of the Gulf, is that Nicaragua did not in its
Application indicate any maritime spaces in which Nicaragua might have
a legal interest which could be said to be affected by a possible delimita-
tion line between El Salvador and Honduras. The area in which such mar-
itime spaces could exist is in any event limited, in view of the delimitation
effected in 1900 with Honduras. In the oral proceedings counsel for
Nicaragua did refer to “the fact that it will be necessary to join some point
on the closing line of the Gulf with the western terminus of the line of
1900”; an observation which, while at any rate focusing consideration on
a particular area of the Gulf waters, still failed to make any case that the
Nicaraguan interest involved would be affected by the Honduran pro-
posed delimitation line. The Agent of Nicaragua also suggested that the
Chamber might, in making any delimitation within the Gulf between
El Salvador and Honduras, have to take account of “navigation routes ina
Gulf whose mouth is less than 20 miles wide and the reasonable security
interests of the riparians”, but this consideration is too general to justify
intervention in relation to a decision on delimitation in the present case.

79. Accordingly the Chamber is not satisfied that a decision in the pres-
ent case either as to the law applicable to a delimitation, or effecting a
delimitation, between Honduras and El Salvador, of the waters of the
Gulf (except as regards the alleged “community of interests”), would
affect Nicaragua’s interests. The Chamber therefore considers that
although Nicaragua has, for purposes of Article 62 of the Statute, shown
an interest of a legal nature which may be affected by the Chamber’s deci-
sion on the question of the existence or nature of a régime of condomi-
nium or community of interests within the Gulf of Fonseca, it has not
shown such an interest which might be affected by the Chamber’s decision
on any question of delimitation within the Gulf. This finding also disposes
of the question, referred to in paragraph 66 above, of the possible rele-
vance of a decision in the island dispute.

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126 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

80. The Chamber now turns to the question of the possible effect on
Nicaragua’s legal interests of its future decision on the waters outside the
Gulf, referred to by Nicaragua as “the adjacent maritime areas”. In
respect of these waters the Parties to the case are again divided as to the
meaning of Article 2 of the Special Agreement. Honduras claims that

“In requesting the Court to determine ‘the legal situation in the...
maritime areas’, the Parties have necessarily endowed the Court with
competence to delimit the zones of territorial sea and the exclusive
economic zones pertaining to Honduras and El Salvador respec-
tively.”

Consistently with its interpretation of Article 2 of the Special Agreement,
Honduras asks the Chamber to endorse the delimitation line advanced by
Honduras for the waters outside the Gulf as “productive of an equitable
solution”. El Salvador interprets the Special Agreement as not authoriz-
ing the Chamber to effect any delimitation; it contends furthermore that
there is no connection between the rights of Honduras as a coastal State
within the Gulf having a right of access to the high seas, and any claim by
Honduras to a territorial, sea and exclusive economic zone beyond the
closing line of the Gulf. El Salvador also refers to the Farallones, belong-
ing to Nicaragua, and to certain islands claimed by El Salvador, and con-
tends that “These islands and the waters associated with them effectively
deprive Honduras of direct contact with the Pacific through the mouth of
the Gulf of Fonseca.”

81. Both Parties contend that Nicaragua has no legal interest which
may be affected by the decision on the “legal situation” of the maritime
spaces outside the Gulf. El Salvador observes that if its interpretation of
the Special Agreement is accepted, Nicaragua’s rights vis-à-vis El Sal-
vador will subsist unaffected ; but contends that even if the Chamber were
to decide that Honduras has rights over the waters outside the Gulf, and to
delimit them by its Judgment, it could do so “without Nicaragua being a
party to the proceedings”. Both Parties deny that the carrying out by the
Chamber of their respective interpretations of Article 2 could affect
Nicaragua’s legal interests. The State seeking to intervene is, however, of
the view that its own legal interests in these waters must be affected by a
decision of the Chamber on the basis of either interpretation of Article 2.

82. Whether a State is entitled to a territorial sea, continental shelf, or
exclusive economic zone is a question to be decided by application of the
principles and rules of the law of the sea on those matters. As observed
above (paragraph 76), an interest in the application of general legal rules
and principles is not the kind of interest which will justify an application
for permission to intervene. In the present case, the legal régime within the
Gulf — whatever it may be found by the Chamber to be — will no doubt
also be relevant to any decision delimiting the waters outside the Gulf; but

38
127 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

this, in the view of the Chamber, tends solely to strengthen Nicaragua’s
claim to intervene in relation to the legal régime of the maritime spaces
inside the Gulf, not to justify an intervention in relation to the legal situa-
tion of the maritime spaces outside.

83. This question furthermore cannot be considered separately from
the question set by the Honduran thesis, according to which the Chamber
is required by the Special Agreement to effect a maritime delimitation in
the area outside the Gulf. As already observed (paragraph 74 above), the
Chamber does not have to consider the effects of every possible delimita-
tion, but merely to consider whether the State seeking to intervene has
shown the existence of a legal interest, and has shown that that interest
may be affected by a delimitation decision. Honduras moreover has in its
pleadings produced a proposed scheme of delimitation, and has charted
it; and in the context of the present proceedings Honduras has expounded
this scheme to the Chamber, and shown how it is designed to avoid
entirely any impingement upon waters outside the Gulf which might con-
ceivably be claimed by Nicaragua. Counsel for Honduras explained that
only part of the Honduran coast had been taken into account for that deli-
mitation, the remainder of the Honduran coast being ignored “because it
is relevant to some future delimitation between Honduras and Nicara-
gua”; and that

“by the same reasoning we have limited the relevant maritime area
to the east by a line drawn from [a point midway along the closing-
line] perpendicular to the general direction of the coast, out to
200 miles, ...”.

He concluded that

“The result is that Nicaraguan claims, both in respect of the
closing-line and the maritime areas outside, are untouched. Pro-
vided, provided only, that you can assume that Nicaragua has no
plausible claim to the waters beyond the mid-point of the closing
line, .. . or to the waters west of the perpendicular projected from
that mid-point.”

84. In these incidental proceedings, and before hearing argument on
the merits, the Chamber cannot pass upon Honduras’s demonstration
concerning its proposal for delimitation of the waters outside the Gulf;
but that demonstration did call for some indication in response, by the
State seeking to intervene, of how those proposals would affect a specific
interest of that State, or what other possible delimitation would affect that
interest. Nicaragua has responded to this scheme of Honduras, but again
very much in general terms. At the hearings, the Agent of Nicaragua
simply said that “Outside the Gulf of Fonseca, it is plain from looking at

39
128 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

any chart and from the graphics presented by the Parties in their written
pleadings” — and he referred specifically to the charts showing Hondu-
ras’s proposed delimitation — “that no such demands can be made in the
Pacific Ocean without affecting the legal interest of Nicaragua to a signifi-
cant extent.” The Chamber does not find the matter so plain. Nicaragua
was shown by Honduras both a proposed delimitation line and a pro-
posed line marking off what Honduras calls the “relevant maritime area”.
The charted proposition of Honduras thus gave Nicaragua the opportu-
nity to indicate how the Honduran proposals might affect “to a significant
extent” any possible Nicaraguan legal interest in waters west of that Hon-
duran line. This Nicaragua did not do. Nicaragua failed to indicate how
this delimitation, or any other delimitation regarded by it as a possible
one, would affect an actual Nicaraguan interest of a legal nature, and the
Chamber therefore cannot grant Nicaragua permission to intervene over
the delimitation of the waters outside the Gulf closing line.

* OF

85. Having found that Nicaragua has shown an interest of a legal
nature which may be affected by certain of the decisions which may be
required by the Special Agreement, the Chamber has now to turn to the
question of the object of Nicaragua’s Application for permission to inter-
vene in the case. A statement of the “precise object of the intervention” is
required by Article 81, paragraph 2 (b), of the Rules of Court; and it is
clear from previous decisions of the Court that it is bound to consider “the
object of the Application and the way in which that object corresponds to
what is contemplated by the Statute”, and to satisfy itself that the object
of the intervention corresponds to what is envisaged by the Statute
(LCJ. Reports 1984, p. 18, para. 28).

86. Nicaragua’s indication, in its Application for permission to inter-
vene, of the object of its intervention in the present case, already quoted in
paragraph 38 above, was as follows:

“The intervention for which permission is requested has the fol-
lowing objects:

First, generally to protect the legal rights of the Republic of Nicara-
gua in the Gulf of Fonseca and the adjacent maritime areas by all
legal means available.

Secondly, to intervene in the proceedings in order to inform the
Court of the nature of the legal rights of Nicaragua which are in issue
in the dispute. This form of intervention would have the conservative
purpose of seeking to ensure that the determination of the Chamber
did not trench upon the legal rights and interests of the Republic of
Nicaragua...”

40
129 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

That indication should be read in the light of the statement of the Agent of
Nicaragua at the hearings that

“if the Chamber should feel that the Application of Nicaragua goes
too far or remains too limited, Nicaragua would be willing to adjust
to any procedure indicated by the Chamber. The only thing that
Nicaragua seeks is to protect its legal interests and it will do so in any
way the Statute allows.”

It has been contended, in particular by El Salvador, that Nicaragua has
not stated the “precise object” of its intervention in compliance with
Article 81, paragraph 2 {b), of the Rules of Court, and that its stated
object is not a proper object, and that for these reasons Nicaragua’s
Application should not be accepted.

87. El Salvador complains that although Nicaragua states that its
object is to “protect the legal rights of the Republic of Nicaragua in the
Gulf of Fonseca and the adjacent maritime areas”, and to “inform the
Court of the nature of the legal rights of Nicaragua which are in issue in
the dispute”, it does not sufficiently indicate what those rights are claimed
to be, how they may be affected, or what substantive purpose Nicaragua
seeks to achieve. In order to be permitted to intervene, a State does not
have to show that it has rights which need to be protected, but merely an
interest of a legal nature which may be affected by the decision in the case.
This matter of legal interests has however been dealt with and decided by
the Chamber in the earlier part of this Judgment (paragraphs 72, 79
and 84); so it is in relation to those Nicaraguan interests of a legal nature
which the Chamber has found to exist that the Chamber must now
examine the declared object of the intervention. Nicaragua’s substantive
purpose appears to be to inform the Chamber of its rights or interests, and
to protect them “by all legal means available”, i.e., to prevent them being
affected by the Chamber’s decision, or to ensure that a decision affecting
them is only taken after Nicaragua has been heard.

88. In its written observations on the Application for permission to
intervene, El Salvador referred to this aspect of the Application and
argued that

“{The] differing descriptions of the object of the intervention,
oscillating between the purpose of protecting its rights by all legal
means available and the conservative purpose of merely informing
the Chamber of its rights, constitute an attempt to avoid the dilemma
confronting a State seeking to intervene . . . If the object of the inter-
vention is to inform the Court of its rights or claims, Nicaragua will
have a full opportunity to do so (as Italy did) in the oral proceedings
to be convened in accordance with Article 84, paragraph 2, of the
Rules, without any need to allow its intervention. If, on the other
hand, the object of the application is to protect its claims by all legal
means, including that of seeking a favourable judicial pronounce-
ment on these claims, then such a purpose will signify the introduc-

41
130 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

tion by Nicaragua of additional disputes, requiring a valid link of
jurisdiction, which does not exist.”

89. It appears to the Chamber that the consequence of that argument
would be that intervention, not merely in the present case but in most
cases, would have to be refused, if not for the one reason, then for the
other, and that the purposes of Article 62 of the Statute would thus be
frustrated. The Chamber cannot accept such a position. In the first place,
with regard to the stated object of informing the Court of a third State’s
rights, it is evident that if it were necessary for a State which considered
that its legal interests might be affected by the decision in a case to give an
exhaustive account of these interests in its application for permission to
intervene, or at the hearings held to consider whether permission to inter-
vene should be granted, there would be no point in the institution of inter-
vention and in the further proceedings to which it should give rise under
the Rules of Court. It is true that in the circumstances of the case concern-
ing the Continental Shelf (Libyan Arab Jamahiriya/Malta), the Court
found itself able to take into account, in its decision on the merits, infor-
mation about Italian claims presented to it during the proceedings on
Italy’s unsuccessful application to intervene. But the reason for the refusal
of permission to intervene in that case was not that the Court was already
sufficiently informed of Italy’s interests by those proceedings. Nor was ita
finding that Italy had not sufficiently indicated the interests to be pro-
tected or presented them in an inappropriate manner.

90. So far as the object of Nicaragua’s intervention is “to inform the
Court of the nature of the legal rights of Nicaragua which are in issue in
the dispute”, it cannot be said that this object is not a proper one: it seems
indeed to accord with the function of intervention. It is true that Nicara-
gua in its Application went on to state that it has “the conservative purpose
of seeking to ensure that the determinations of the Chamber did not trench
upon the legal rights and interests of the Republic of Nicaragua ...”. The
expression “trench upon the legal rights and interests” is language not to
be found in Article 62 of the Statute, which refers to the possibility that an
“interest of a legal nature” might be “affected” by the decision. If “trench
upon” was intended perhaps to go further than the language of the Sta-
tute, then it should be borne in mind that it would hardly be possible, given
Article 59 of the Statute and indeed the decision in the case concerning
Monetary Gold Removed from Rome in 1943 (paragraphs 54-55 above), for
a decision of the Court to “trench upon” the legal right of a third State. It
seems to the Chamber however that it is perfectly proper, and indeed the
purpose of intervention, for an intervener to inform the Chamber of what
it regards as its rights or interests, in order to ensure that no legal interest
may be “affected” without the intervener being heard; and that the use in
an application to intervene of a perhaps somewhat more forceful expres-

42
131 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

sion is immaterial, provided the object actually aimed at is a proper one.
Nor can the Chamber disregard in this connection the indication by the
Agent of Nicaragua, quoted in paragraph 86 above, that Nicaragua seeks
to protect its legal interest solely in such way as the Statute allows.

91. Secondly, as to the other aspect of the dilemma alleged by El Sal-
vador, it does not seem to the Chamber to follow that for a State to seek by
intervention “to protect its claims by all legal means” necessarily involves
the inclusion in such means of “that of seeking a favourable judicial pro-
nouncement” on its own claims. Counsel for El Salvador recognized that
Nicaragua was not seeking to introduce an additional dispute. He
observed however that

“Nicaragua does not declare as one of its objects that it seeks to
join the proceedings as a party and to be bound as such by the Court’s
decision”;

and he suggested that its statements in this connection are equivocal. It
was also suggested that Nicaragua’s reference, in paragraph 24 of its
Application, to a possible new case to be brought by agreement

“suggests strongly that Nicaragua recognizes that its participation in
the case in any meaningful sense is dependent upon the consent of
the principal Parties” ;

and El Salvador contends that a jurisdictional link is a requirement for
intervention. However, in the course of the oral proceedings Nicaragua
made very clear through counsel that it “is not claiming to introduce, via
its intervention, a new dispute in addition to that of the Parties”; and the
same point is made in paragraph 8 of the Application. Counsel for Nicara-
gua also recognized that “intervention under Article 62 of the Statute of
the Court was not intended” for that purpose.

92. In the light of these statements, it appears to the Chamber that the
object stated first in Nicaragua’s Application, namely “generally to pro-
tect the legal rights of the Republic of Nicaragua in the Gulf of Fonseca
and the adjacent maritime areas by all legal means available”, is not to be
interpreted as involving the seeking of a judicial pronouncement on
Nicaragua’s own claims. The “legal means available” must be those
afforded by the institution of intervention for the protection of a third
State’s legal interests. So understood, that object cannot be regarded as
improper. :

* *

93. The Chamber has now further to consider the argument of El
Salvador that for Nicaragua to intervene in these proceedings between El

43
132 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

Salvador and Honduras, it must in addition show a “valid link of juris-
diction” between Nicaragua and those two States. The requirement of
Article 81, paragraph 2 {c) of the Rules of Court, for the statement in an
application for permission to intervene of “any basis of jurisdiction which
is claimed to exist as between the State applying to intervene and the par-
ties to the case”, and Nicaragua’s attitude to this, have been referred to
above (paragraph 39). In its Application, Nicaragua does not assert the
existence of any basis of jurisdiction other than the Statute itself, and
expresses the view that Article 62 does not require a separate title of juris-
diction. Nicaragua also recalls, in paragraph 24 of the Application, that it
has a valid and unconditional declaration of acceptance of jurisdiction
under Article 36, paragraph 2, of the Court’s Statute; but it does not rely
on that declaration in the present proceedings. El Salvador and Honduras
have also made declarations under that Article, but they contain reserva-
tions which, according to those States respectively, would prevent their
being invoked to seise the Court of the matters the subject of the present
case.

94. The question is whether the existence of a valid link of jurisdiction
with the parties to the case — in the sense of a basis of jurisdiction which
could be invoked, by a State seeking to intervene, in order to institute pro-
ceedings against either or both of the parties — is an essential condition
for the granting of permission to intervene under Article 62 of the Statute.
In what follows, therefore, the expression “jurisdictional link” or “link of
jurisdiction” is used in this sense. The question has been raised in previous
cases before the Court in which permission has been sought to intervene
under Article 62. In the case concerning the Continental Shelf (Tunisia/
Libyan Arab Jamahiriya), the Court found it unnecessary to decide the
question, since it had reached the conclusion that, for other reasons,
Malta’s request for permission to intervene was not one to which it could
accede (I.C.J. Reports 1981, p. 20, para. 36). In the case concerning the
Continental Shelf (Libyan Arab Jamahiriya/Malta), the Court again found
it possible “to reach a decision on the present Application without gen-
erally resolving the vexed question of the ‘valid link of jurisdiction’”
(LCJ. Reports 1984, p. 28, para. 45). It did so however by stating two al-
ternative lines of argument, one on the basis that such a link would be
required, and one on the basis that it would not, and observing that in the
circumstances of the case before it, “either of two approaches . . . must
result in the Court being bound to refuse the permission to intervene
requested by Italy” (C.J. Reports 1984, p. 22, para. 34). Although that
Judgment contains a number of valuable observations on the subject, the
question remains unresolved. Since in the present case the Chamber has
reached the conclusion that Nicaragua has shown the existence of an
interest of a legal nature which may be affected by the decision, and that
the intervention of Nicaragua has a proper object, the only remaining
question is whether a jurisdictional link is required; and since it is con-
ceded that no such link exists, the Chamber is obliged to decide the point.

44
133 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

In order to do so, it must consider the general principle of consensual
jurisdiction in its relation with the institution of intervention.

95. There can be no doubt of the importance of this general principle,
upon which the State seeking to intervene has itself, in its Application, laid
considerable emphasis. As the Permanent Court of International Justice
expressed it, the Court operates

“bearing in mind the fact that its jurisdiction is limited, that it is invar-
iably based on the consent of the respondent and only exists in so far
as this consent has been given” (Mavrommatis Palestine Concessions,
Judgment No. 2, 1924, P.C_L.J., Series A, No. 2, p. 16).

Thus the pattern of international judicial settlement under the Statute is
that two or more States agree that the Court shall hear and determine a
particular dispute. Such agreement may be given ad hoc, by Special Agree-
ment or otherwise, or may result from the invocation, in relation to the
particular dispute, of acompromissory clause of a treaty or of the mechan-
ism of Article 36, paragraph 2, of the Court’s Statute. Those States are the
“parties” to the proceedings, and are bound by the Court’s eventual deci-
sion because they have agreed to confer jurisdiction on the Court to
decide the case, the decision of the Court having binding force as pro-
vided for in Article 59 of the Statute. Normally, therefore, no other State
may involve itself in the proceedings without the consent of the original
parties.

96. Nevertheless, procedures for a “third” State to intervene in a case
are provided in Articles 62 and 63 of the Court’s Statute. The competence
of the Court in this matter of intervention is not, like its competence to
hear and determine the dispute referred to it, derived from the consent of
the parties to the case, but from the consent given by them, in becoming
parties to the Court’s Statute, to the Court’s exercise of its powers con-
ferred by the Statute. There is no need to interpret the reference in Ar-
ticle 36, paragraph 1, of the Statute to “treaties in force” to include the
Statute itself; acceptance of the Statute entails acceptance of the compe-
tence conferred on the Court by Article 62. Thus the Court has the compe-
tence to permit an intervention even though it be opposed by one or both
of the parties to the case; as the Court stated in 1984, “the opposition [to an
intervention] of the parties to a case is, though very important, no more
than one element to be taken into account by the Court” (1.CJ. Reports
1984, p. 28, para. 46). The nature of the competence thus created by
Article 62 of the Statute is definable by reference to the object and pur-
pose of intervention, as this appears from Article 62 of the Statute.

97. Intervention under Article 62 of the Statute is for the purpose of
protecting a State’s “interest of a legal nature” that might be affected by a
decision in an existing case already established between other States,
namely the parties to the case. It is not intended to enable a third State to

45
134 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

tack on a new case, to become a new party, and so have its own claims
adjudicated by the Court. A case with a new party, and new issues to be
decided, would be a new case. The difference between intervention under
Article 62, and the joining of a new party to a case, is not only a difference
in degree; it is a difference in kind. As the Court observed in 1984,

“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 — a matter dealt with in Article 40 of the Statute — or as a
method of asserting the individual rights of a State not a party to the
case.” (Continental Shelf (Libyan Arab Jamahiriya/Malta), Applica-
tion to Intervene, I.C.J. Reports 1984, p. 23, para. 37.)

98. It is noteworthy that intervention is dealt with in Chapter III of
the Court’s Statute, which is headed “Procedure”. This approach was
adopted by the Court also when it drew up and revised its Rules of Court,
where intervention appears in Section D of the Rules, headed “Incidental
Proceedings”. Incidental proceedings by definition must be those which
are incidental to a case which is already before the Court or Chamber. An
incidental proceeding cannot be one which transforms that case into a
different case with different parties.

99. Intervention cannot have been intended to be employed as a substi-
tute for contentious proceedings. Acceptance of the Statute by a State
does not of itself create jurisdiction to entertain a particular case: the spe-
cific consent of the parties is necessary for that. If an intervener were held
to become a party to a case merely as a consequence of being permitted to
intervene in it, this would be a very considerable departure from this
principle of consensual jurisdiction. That the incidental jurisdiction con-
ferred by Article 62 of the Statute is circumscribed by the general principle
of consensual jurisdiction over particular disputes was stated by the
Court in its Judgment on the Italian Application to intervene in the case
concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), when
the Court was careful not to adopt a position in which

“it would be admitting that the procedure of intervention under Arti-
cle 62 would constitute an exception to the fundamental principles
underlying its jurisdiction; primarily the principle of consent, but
also the principles of reciprocity and equality of States. The Court
considers that an exception of this kind could not be admitted unless
it were very clearly expressed.” (1.C.J. Reports 1984, p. 22, para. 35.)

It is therefore clear that a State which is allowed to intervene in a case,
does not, by reason only of being an intervener, become also a party to the
case. It is true, conversely, that, provided that there be the necessary con-
sent by the parties to the case, the intervener is not prevented by reason of

46
135 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

that status from itself becoming a party to the case. That the competence

given to the Court in Article 62 of the Statute is not extendable to making

an intervener a party to the case unless the parties to the case have con-

sented to the change appears also to be the view of Nicaragua, which

stated during the oral proceedings that “Article 62 is a part of the inciden-

tal jurisdiction and there is no compelling logic requiring its provisions to

be seen as an ‘exception’ to the principle of consent”. There is furthermore

in international law no process for joinder of a new party, or parties,

whether as appellant or respondent, by move of the Court itself. The

Court referred in 1984 to “the absence in the Court’s procedures of any

system of compulsory intervention, whereby a third State could be cited

by the Court to come in as party...” (Continental Shelf (Libyan Arab Jama-
hiriya/Malta), Application to Intervene, I.C.J. Reports 1984, p. 25, para. 40)

and again to the fact that the Court does not possess the power “to direct

that a third State be made a party to proceedings” (Military and Paramili-
tary Activities in and against Nicaragua (Nicaragua v. United States of
America), I.C.J. Reports 1984, p. 431, para. 88).

100. It thus follows also from the juridical nature and from the pur-
poses of intervention that the existence of a valid link of jurisdiction
between the would-be intervener and the parties is not a requirement for
the success of the application. On the contrary, the procedure of interven-
tion is to ensure that a State with possibly affected interests may be permit-
ted to intervene even though there is no jurisdictional link and it therefore
cannot become a party. Article 81, paragraph 2 (c), of the Rules of Court
states that an application under Article 62 of the Statute shall set out “any
basis of jurisdiction which is claimed to exist as between the State apply-
ing to intervene and the parties to the case”; the use of the words “any
basis” (and in French the formula “toute base de compétence qui... exis-
terait”) shows that a valid link of jurisdiction is not treated as a
sine qua non for intervention (cf. also Continental Shelf (Tunisia/Libyan
Arab Jamahiriya), Application to Intervene, .C.J. Reports 1981, p. 16,
para. 27).

101. The Chamber therefore concludes that the absence of a jurisdic-
tional link between Nicaragua and the Parties to this case is no bar to per-
mission being given for intervention.

* *

102. Since this is the first case in the history of the two Courts in whicha
State will have been accorded permission to intervene under Article 62 of
the Statute, it appears appropriate to give some indication of the extent of
the procedural rights acquired by the intervening State as a result of that
permission. This is particularly desirable since the intervention permitted
relates only to certain issues of the many submitted to the Chamber. In the
first place, as has been explained above, the intervening State does not

47
136 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

become party to the proceedings, and does not acquire the rights, or
become subject to the obligations, which attach to the status of a party,
under the Statute and Rules of Court, or the general principles of pro-
cedural law. Nicaragua, as an intervener, has of course a right to be
heard by the Chamber. That right is regulated by Article 85 of the Rules
of Court, which provides for submission of a written statement, and parti-
cipation in the hearings. Time-limits will be fixed for a written statement
by Nicaragua, and observations thereon by the Parties, in accordance
with Article 85, so soon after the delivery of the present Judgment as the
appropriate consultations can be held.

103. The scope of the intervention in this particular case, in relation to
the scope of the case as a whole, necessarily involves limitations of the
right of the intervener to be heard. An initial limitation is that it is not for
the intervener to address argument to the Chamber on the interpretation
of the Special Agreement concluded between the Parties on 24 May 1986,
because the Special Agreement is, for Nicaragua, res inter alios acta.

*

104. Nicaragua has disclaimed any intention of involving itself in the
dispute over the land boundary. The Chamber has found that Nicaragua
has not shown the existence of any interest of a legal nature which may be
affected by its decision on “the legal situation of the islands”. As regards
the decision required of the Chamber concerning the legal situation of the
maritime spaces within the Gulf, the Chamber has indicated (para-
graph 72 above) that Nicaragua has a legal interest which may be affected
by a decision as to the legal régime of those waters, i.e., a decision in favour
of the contention of El Salvador, that the waters of the Gulf are subject toa
régime of condominium, or a decision in favour of the contention of Hon-
duras, that there exists a “community of interests” between the three
States in the waters of the Gulf. Nicaragua has not demonstrated to the
satisfaction of the Chamber the existence of an interest of a legal nature
which may be affected by any decision of the Chamber delimiting the
waters of the Gulf of Fonseca between El Salvador and Honduras, or by
any decision as to the legal situation of the maritime spaces outside the
Gulf, including any decision on entitlement or on delimitation between
El Salvador and Honduras, and intervention in those respects has not
been justified. The Chamber therefore finds that Nicaragua should be
permitted to intervene but solely in respect of the Chamber’s considera-
tion of the legal régime of the maritime spaces within the Gulf of Fonseca,
and to participate in the proceedings in the case in accordance with
Article 85 of the Rules of Court.

48
137 DISPUTE (EL SALVADOR/HONDURAS) (JUDGMENT)

105. For these reasons,
THE CHAMBER,

Unanimously,

1. Finds that the Republic of Nicaragua has shown that it has an inter-
est of a legal nature which may be affected by part of the Judgment of the
Chamber on the merits in the present case, namely its decision on the legal
régime of the waters of the Gulf of Fonseca, but has not shown such an
interest which may be affected by any decision which the Chamber may be
required to make concerning the delimitation of those waters, or any deci-
sion as to the legal situation of the maritime spaces outside the Gulf, or
any decision as to the legal situation of the islands in the Gulf;

2. Decides accordingly that the Republic of Nicaragua is permitted to
intervene in the case, pursuant to Article 62 of the Statute, to the extent, in
the manner and for the purposes set out in the present Judgment, but not
further or otherwise.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this thirteenth day of September, one thou-
sand nine hundred and ninety, in four copies, one of which will be placed
in the archives of the Court and the others transmitted to the Government
of Nicaragua, the Government of El Salvador, and the Government of
Honduras, respectively.

(Signed) José SETTE-CAMARA,
President of the Chamber.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.

Judge Opa appends a separate opinion to the Judgment of the
Chamber.

(Initialled) J.S.C.
(Initialled) E.V.O.

49