619

DÉCLARATION DE M. ODA
[Traduction]

Je souhaite qu’il soit consigné que je ne partage pas les vues de la
Chambre concernant l'effet de intervention du Nicaragua tel qu’il est
exposé aux paragraphes 421 à 424 de l’arrét.

Comment faut-il entendre les déclarations suivantes de la Chambre:

«La force obligatoire du présent arrêt pour les Parties, telle qu'elle
est envisagée par l’article 59 du Statut de la Cour, ne s'étend ... pas
aussi au Nicaragua en tant qu’intervenant » (par. 421);

«[Uln Etat qui est autorisé à intervenir au titre de l’article 62 du
Statut mais qui n’acquiert pas la qualité de partie à l’affaire considé-
rée n’est pas lié par l’arrêt rendu dans l’instance dans laquelle il est
intervenu » (par. 423);

«{[Lle droit d’être entendu, que l’intervenant acquiert effective-
ment, n’emporte pas nécessairement l’obligation d’être lié par la
décision » (ibid.);

«[L]e présent arrêt n’a pas l’autorité de la chose jugée à ’égard du
Nicaragua » (par. 424)?

Signifient-elles que 12 Nicaragua n’est pas tenu de se conformer aux déci-
sions de la Cour aux termes desquelles:

« [Les] eaux du golfe de Fonseca ... ont... été... soumises à la souve-
raineté de la République d’El Salvador, de la République du Hondu-
ras et de la République du Nicaragua conjointement, et continuent
de l’étre...» (par. 432, 1);

«[Lles droits sur les eaux dans le tronçon central de la ligne de
fermeture du golfe, c’est-à-dire entre un point de cette ligne situé à
3 milles (1 lieue marine) de Punta Amapala et un point de cette ligne
situé à 3 milles (1 lieue marine) de Punta Cosigüina, appartiennent
conjointement aux trois Etats du golfe...» (ibid.);

«[L]a situation juridique des eaux situées en dehors du golfe est la
suivante: le golfe de Fonseca étant une baïe historique dont trois
Etats sont riverains, la ligne de fermeture du golfe constitue la ligne
de base de la mer territoriale; la mer territoriale, le plateau continen-
tal et la zone économique exclusive d’El Salvador et ceux du Nicara-
gua au large des côtes de ces deux Etats doivent également être
mesurés, vers le large, à partir d’un tronçon de la ligne de fermeture
s'étendant sur une distance de 3 milles (1 lieue marine), le long de
ladite ligne, à partir de Punta Amapala (en El Salvador) et de 3 milles
(1 lieue marine) à partir de Punta Cosigüina (au Nicaragua) respecti-

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DIFFÉREND (EL SALVADOR/HONDURAS) (DÉCL. ODA) 620

vement, mais le droit à une mer territoriale, à un plateau continental
et à une zone économique exclusive au large du tronçon central de la
ligne de fermeture appartient aux trois Etats du golfe, El Salvador, le
Honduras et le Nicaragua, et ... toute délimitation des zones mari-
times pertinentes devra être effectuée par voie d’accord sur la base du
droit international » (par. 432, 3)?

A mon avis, en tant qu’intervenant non partie, le Nicaragua sera certai-
nement tenu par l’arrêt dans la mesure où celui-ci porte sur la situation
juridique des espaces maritimes du golfe. J’ai déjà exprimé mes vues sur
l'effet des arrêts de la Cour à l’égard d’Etats intervenants sous forme
d’opinions individuelle ou dissidente jointes respectivement à l’arrêt
rendu en l’affaire du Plateau continental (Tunisie/Jamahiriya arabe
libyenne), requête à fin d'intervention (C.I.J. Recueil 1981, p. 22) et à l'arrêt
rendu en l'affaire du Plateau continental (Jamahiriya arabe libyenne/
Malte), requête à fin d'intervention (C.LJ. Recueil 1984, p. 90) et dont il
n’est pas nécessaire que je redonne ici la substance. Ce qui précède
n'implique cependant pas que j'ai l'intention de m’associer aux conclu-
sions de la Chambre sur la situation juridique des espaces maritimes, au
sujet desquelles je joins à l’arrêt une opinion dissidente.

(Signé) Shigeru ODA.

273


90

DISSENTING OPINION OF JUDGE ODA

OPENING REMARKS

1. To my great regret I find myself unable to concur in the Court’s
Judgment. In the Maltese intervention proceedings, I stated that :

“the Court’s reasoning [for rejecting the Maltese Application] places
too restrictive a construction upon the first paragraph of Article 62. I
regret that the institution of intervention is afforded so narrow a focus
on essentially the first occasion of its application.” (.C.J. Reports
1981, p. 23, para. 1.)

I also stated :

“Intervention within the meaning of Article 62 of the Statute
should in my opinion be considered to have a far broader scope than
the Court’s Judgment allows (paras. 32-34). The records of the pro-
ceedings of the Advisory Committee of Jurists of 1920 which prepared
the Statute of the Permanent Court of International Justice shed little
light on what kind of functions a third State permitted to intervene
under Article 62 of the Statute (which was identical to Article 62 of the
Statute of the International Court of Justice as far as the French text is
concerned) can exercise, and on what kind of effects may flow from its
intervention. Although the Rules of Court adopted in 1922 at the
preliminary session of the Permanent Court of International Justice
contained provisions governing the application for permission to
intervene, they did not deal with the scope of intervention or the way
in which the intervention of a third party, once granted, should be
conducted. As the Court properly states in the present Judgment
(paras. 23 and 27), the Permanent Court of International Justice and
its successor left such questions of intervention to be decided in the
light of the particular circumstances of each case. In 60 years, there
has hardly been a case before the Court in which Article 62 could be
said to have been a key issue, but the time has now come for the Court
to grapple with the problem of intervention.” (Ibid. para. 2.)

2. The Court has now again avoided dealing with the most essential
points of intervention, thus justifying its rejection of Italy’s application for
what appear to be secondary reasons. It seems that the Court presupposes
a priori the scope of the kind of intervention it deems genuine (a procedure

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which I do not think is correct), and then draws the conclusions that Italy’s
application does not fall into this category.

I. SCOPE OF THE INTERVENTION UNDER ARTICLE 62 OF THE STATUTE

Introduction

3. The Court has hitherto hesitated to take a clear position on whether,
in order to be permitted to intervene under Article 62 of the Statute, a State
must be linked with the original parties to the case by the acceptance of the
compulsory jurisdiction of the Court or by a Special Agreement. The other
questions as to whether the would-be intervener has to have had prior
negotiations with one or both of the original parties to settle a pre-existing
dispute, or should or should not make any concrete claim against one or
both of them, or should or should not participate in the original case as a
party, are all related to this basic issue concerning the jurisdictional link
which the intervener may or may not have with the original parties. I
remarked at one point in the previous intervention proceedings as fol-
lows :

“Ttis far from clear that participation qua party is a conditio sine qua
non of the institution of intervention. Moreover, the question of
whether or not the institution of intervention under Article 62 of the
Statute requires the participation of a third State solely ‘as a party’ is
closely interrelated with two further questions : first, whether or not a
jurisdictional link which connects the intervening State with the ori-
ginal litigant States in the prinicipal case should be required ; and,
second, whether or not the judgment of the Court in the principal case
should also be binding upon the intervening State. Although the
Court does not pass upon the question of jurisdiction in these pro-
ceedings (para. 36), it is difficult to discuss the institution of inter-
vention without taking into account these two further questions,
which are so closely interrelated with the nature of the institution
under Article 62.” (C.J. Reports 1981, p. 24, para. 4.)

4. I believe that the question of a jurisdictional link, together with
related issues just noted, is important and cannot properly be avoided
when dealing with the institution of intervention. If ajurisdictional link is a
prerequisite for intervention under Article 62 of the Statute, the fact that
Italy has neither accepted the Court’s compulsory jurisdiction nor secured
any pertinent agreement from the principal Parties to its intervention
would certainly have barred its application.

5. In the present case, the Court appears to admit to having avoided
grappling with the basic issue of intervention by stating that :

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92 CONTINENTAL SHELF (DISS. OP. ODA)

“the Court considers that it should not go beyond the considerations
which are in its view necessary to its decision, the various other
questions raised before the Court in these proceedings as to the
conditions for, and operation of, intervention under Article 62 of the
Statute need not be dealt with by the present Judgment. In particular
the Court, in order to arrive at its decision on the Application of Italy
to intervene in the present case, does not have to rule on the question
whether, in general, any intervention based on Article 62 must, as a
condition to its admission, show the existence of a valid jurisdictional
link” (Judgment, para. 38) ;

and

“the Court finds it possible ... to reach a decision on the present
Application without generally resolving the vexed question of the
‘valid link of jurisdiction’ ” (ibid., para. 45).

Yet, by speaking of “the basic principle that the jurisdiction of the Court to
deal with and judge a dispute depends on the consent of the parties
thereto” (ibid., para. 34), “the fundamental principles underlying its juris-
diction ; primarily the principle of consent” (ibid, para. 35); “the con-
sensualism which underlies the jurisdiction of the Court” (ibid, para. 37) ;
“the element of the will of States, expressed in a special agreement or other
instrument creative of jurisdiction, to define the extent of a dispute before
the Court” (ibid, para. 46), and by interpreting Italy’s application as
presenting a distinct or additional dispute with the principal Parties (which
the Court seems to see as the only way of intervention), the Court appears
to indicate that a jurisdictional link would be required for a third State to
intervene.

1. A Case Where a Jurisdictional Link Exists

6. There could certainly be a case in which the third State is connected
with the original litigants by mutual acceptance of the Court’s compulsory
jurisdiction or by the conclusion of a Special Agreement, thus making it
possible to bring separate disputes with both of the parties before the
Court. In this particular situation, intervention at the International Court
of Justice may well be useful because it will serve to decrease the number of
similar litigations ; such intervention could be assimilated to intervention
in a municipal judicial system. I made this point in my separate opinion
attached to the Judgment on the Maltese application :

“I believe it is arguable that a jurisdictional link between the
intervening State and the original parties to the case would be
required if the intervening State were to participate as a full party, and
that, in such a case, the judgment of the Court would undoubtedly be
binding upon the intervening State. Such a right of intervention is

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basically similar to that provided for in the municipal law of many
States. As a result of the participation of the third party as a full party
in the principal case, the case will become a litigation among three
parties. In the case of municipal law, of course, the link of jurisdiction
between the third party seeking intervention and the original litigants
is not at issue. This municipal institution has existed for many years to
protect the right of a third party which might otherwise be affected by
the litigation between two other parties and to promote economy of
litigation. In such circumstances two or three causes of action con-
cerning the same set of rights or obligations are dealt with as a single
case.

Similarly, before the International Court of Justice, there may be
cases in which the third State seeking intervention to secure its alleged
right, which is involved in the very subject-matter of the original
litigation, is linked with the original litigant States by its acceptance of
the compulsory jurisdiction of the Court under the optional clause of
the Statute or through a specific treaty or convention in force, or by
special agreement with these two States. In such cases the third State
may participate as a plaintiff or a defendant or as an independent
claimant. Probably, in fact, this third State would in such circum-
stances also be entitled to bring a separate case on the same subject
before the Court. On the other hand, participation in the proceedings
by a third State as a full party without having any jurisdictional link
with the original parties, while remaining immune from the binding
force of the judgment, would certainly be tantamount to introducing
through the back door a case which could not otherwise have been
brought before the Court because of lack of jurisdiction. This seems
inadmissible prima facie, because the jurisdiction of the International
Court of Justice is based on the consent of sovereign States and is not
otherwise compulsory.” U.C.J. Reports 1981, p. 25, paras. 5-6.)

7. Thus intervention under international law, like that in a municipal
judicial system, could also serve to promote economy of litigation by
joining a distinct litigation by a third State against one or both of the
original litigants into one proceeding, should the necessary jurisdictional
link exist.

2. The Jurisdictional Link Is not Always Indispensable

8. We must bear in mind a number of different hypotheses in connec-
tion with intervention. I again quote from my previous opinion :

“{I]t is by no means clear that the only hypothesis contemplated
when the draft of Article 62 was under discussion was the hypothesis

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of the intervening State being connected by a Jurisdictional link with
the original litigants in the principal case.” (I. C.J. Reports 1981, p. 25,
para. 7.)

I also pointed out :

“The situation where a right erga omnes is at issue between two
States, but a third State has also laid a claim to that right, is a
hypothesis which here merits consideration. For instance, in the case
of the sovereignty over an island, or the delimitation of a territorial
boundary dividing two States, with a third party also being in a
position to claim sovereignty over that island or the territory which
may be delimited by this boundary, or in a case in which a claim to
property is in dispute, an unreasonable result could be expected if a
jurisdictional link were required for the intervention of the third State.
If this link is deemed at all times indispensable for intervention, the
concept of intervention in the International Court of Justice will
inevitably atrophy.” ({bid, p. 27, para. 9.)

9. Itis stated in the present Judgment that Article 59 of the Statute can
properly safeguard the rights and legal interest of a third State without the
need for its participation. Yet the fact is often overlooked that Article 59 of
the Statute was not contained in the draft prepared by the Advisory
Committee of Jurists in the summer of 1920. It stemmed from comments of
the British delegate at the Council of the League of Nations in October
1920, who apparently had in mind intervention under Article 63 only. The
meaning of Article 59 will later be discussed (para. 27 below) but at this
point I would simply say that what the Court states regarding Article 59
does not lessen the concern of the third State, particularly where a right
erga omnes is at issue between the original litigants.

10. It was thus my conclusion in 1981 that the Court had overlooked the
real scope of intervention. In the present Judgment it has continued, in my
view, to confine this institution within too narrow a compass. Believing as I
did in 1981, that the Court’s attitude stemmed from insufficient regard for
the process by which the institution of intervention was brought into
international law, I presented some historical analysis of this process,
which need not be reproduced here in toto. The persisting majority view of
the Court now impels me, however, to single out certain aspects of the
genesis of intervention, whilst attempting as far as possible to avoid
repetition of what I have previously stated.

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95 CONTINENTAL SHELF (DISS. OP. ODA)
(Historical Outline of the Drafting of Article 62)

11. The concept of intervention under Article 62 of the Statute was
introduced for the first time in 1920, when the Statute of the Permanent
Court of International Justice was prepared by the Advisory Committee of
Jurists (chaired by Baron Descamps of Belgium) appointed by the Council
of the League of Nations. Prior to this Committee meeting, certain projects
prepared with an eye to the future plan of the League of Nations suggested
a type of intervention in international judicial proceedings borrowed from
municipal law !. While the draft prepared in advance by the drafting group
of the Advisory Committee of Jurists did not contain such a concept, some
members of the Committee suggested the insertion of a new concept of
intervention along the lines proposed in the projects submitted prior to the
meeting as mentioned above, though, as far as we can gather from the
procès-verbaux, hardly any substantive discussions were held among the
members of this concept.

12. The draft suggested by the President, Baron Descamps, was
adopted, and the text read as follows :

“Article 62 as finally adopted] — Lorsqu’un Etat estime que dans
un différend un intérêt d’ordre juridique est pour lui en cause, il peut
adresser à la Cour une requête, à fin d’intervention. La Cour décide.”
(Permanent Court of International Justice, Advisory Committee of
Jurists, Procés-verbaux of the Proceedings of the Committee, p. 669.)

(English text : “Should a State consider that it has an interest of a
legal nature in a certain case, it may submit a request to the Court to be
permitted to appear as a third party. The Court shall decide.”)

The English version, “it may submit a request to the Court to be permitted
to appear as a third party” simply as a translation of the French text, “il

1 Avant-projet de convention relative à une organisation juridique internationale,
élaboré par les trois comités nommés par les gouvernements de la Suede, du Danemark
et de la Norvège: “31... Si [une affaire soumise à la Cour] concerne d’une autre manière
les intérêts d’un Etat tiers, ce dernier aura le droit d’intervenir dans l’affaire.” (Perma-
nent Court of International Justice, Advisory Committee of Jurists, Documents Presented
to the Committee relating to Existing Plans for the Establishment of a Permanent Court of
International Justice, p. 180.)

Projet de convention relative à une Cour permanente de Justice internationale,
préparé par une commission gouvernementale suédoise, 1919: “21. Lorsqu'un différend
soumis à la Cour ... concerne à d’autres égards les intérêts d’un Etat tiers qui n’est
pas partie dans le litige, ce dernier aura le droit d’intervenir dans l'affaire.” (Ibid,
p. 242.)

Projet relatif à l’établissement de la Cour permanente de Justice internationale (projet
des cinq Puissances neutres), 1920: “Article 48. Lorsqu'un différend soumis à la Cour
touche les intérêts d’un Etat tiers, celui-ci a le droit d’intervenir au procès.” ({bid.
p. 320.) :

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peut adresser à la Cour une requête, à fin d’intervention”, led to a great
deal of confusion in understanding the true sense of intervention under
Article 62. The use, in particular, of the expression in the English text “as a
third party”, which did not find any corresponding concept in the original
French text, was a case of misconception with regard to the mode of the
intervener’s participation in the principal case !.

13. In the Council of the League of Nations at its tenth session in
October in Brussels, Léon Bourgeois, as the French delegate, praised the
merits of this type of intervention under Article 62 :

“The Hague Jurists ... have, indeed, given to non-litigant States
the right to intervene in a case where any interest of a judicial nature
which may concern them is involved.” (Permanent Court of Interna-
tional Justice, Documents concerning the Action Taken by the Council of
the League of Nations under Article 14 of the Covenant and the Adoption
by the Assembly of the Statute of the Permanent Court, p. 50.)

This statement followed a passage in which, being fully aware of the strong
objections of many member States to making the Court’s jurisdiction
compulsory, he suggested the complete revision of the provisions relating
to the jurisdiction of the Court. Thus it cannot properly be argued that the
provision of Article 62 was carelessly retained by the drafters of the Statute
in the face of the change in the nature of that jurisdiction.

14. When the new Statute of the International Court of Justice was
being prepared by the Committee of Jurists, convened in Washington in
1945, there was practically no discussion of Article 62 and the French text
did not undergo any change. A change was made only in the English text to
eliminate the words “as a third party” without involving any change in the
sense of the article, as stated in the report of the Committee (Documents of
the United Nations Conference on International Organization, 1945, Vol.
XIV, p. 676). As suggested above, the reference to “as a third party” in the
English text of the Statute of the Permanent Court of International Justice
was from the outset misleading, particularly in view of the fact that in 1920
the French text could be seen as more authoritative.

15. Apart from some judgments either of the Permanent Court of
International Justice or of the International Court of Justice in which the
scope of intervention was only referred to in passing, and from the work of
the present Court in 1978 leading to the revision of the Rules of Court of
draft Article 81 as it stands, there was only one occasion on which the

! As I quoted in the Maltese intervention proceedings :

“the Preface to the Procés-verbaux of the Proceedings of the Advisory Committee
of Jurists clearly indicated that :

‘As all the members of the Committee, with the exception of Mr. Elihu Root,
spoke in the French language, the English text of the Procés-Verbaux is to be
looked upon as a translation, except in so far as concerns the speeches and
remarks of Mr. Root.’ (P. IV.)” (CJ. Reports 1981, p. 24, para. 3.)

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subject of intervention was substantially examined by the Court, in 1922
when the Rules of Court were being prepared. The discussions which took
place among the Judges of the Permanent Court of International Justice
are correctly summarized in the Judgment of the Court in 1981, and this
summary is repeated in part in the present Judgment :

“The outcome of the discussion was that it was agreed not to try to
resolve in the Rules of Court the various questions which had been
raised, but to leave them to be decided as and when they occurred in
practice and in the light of the circumstances of each particular case.”
(Judgment, para. 44.)

16. As I observed in my opinion in the previous case, it is important,
however, to note too that the President of the Court, Judge Loder, ruled at
the end of the discussion that he :

“could not take a vote upon a proposal the effect of which would be to
limit the right of intervention (as prescribed in Article 62) to such
States as had accepted compulsory jurisdiction. If a proposal in this
sense were adopted, it would be contrary to the Statute.” (CJ.
Reports 1981, p. 26, para. 7.)

It is also interesting to note a memorandum submitted by Judge Beich-
mann summarizing the discussions of the Court as follows :

“Article 62 of the Statute lays down that the question shall be
decided in each particular case as it arises ; there is therefore no need
to adopt any decision at the moment either with regard to the inter-
pretation of the words ‘interest of a legal nature which may be affected
by the decision’, or with regard to the question whether the right of
intervention is subject to other conditions of a legal nature, for
example, the acceptance of the compulsory jurisdiction of the Court
by the original parties and the party desiring to intervene, or the
consent of the original parties. The question whether, when the right
to intervene has been admitted and exercised, the intervening State is
to be bound by the judgment, as well as the original parties, must also
remain open.” U.C.J. Reports 1981, p. 26, para. 8.)

oe

17. Thus there is no ground for believing the Court has ever concluded
that either a jurisdictional link, or proof of a prior dispute or negotiations
with either of the original litigants, is an implicit prerequisite for inter-
vention under Article 62. Furthermore, to the best of my knowledge, no
record of the drafting of the Statute either of the Permanent Court of
International Justice or of the International Court of Justice lends any
credence to the view that such a belief can be sustained on the mere ground
that Article 62 was, and is, included not in Chapter II, concerning the
competence of the Court, but in Chapter IIL concerning procedure.

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Despite the suggestions of the Court in the present Judgment, the lack of
detailed provisions in the Rules of Court concerning intervention does not
result from “the wisdom” of the preceding Court in 1922, but was simply a
result of its failure to reach an agreement. It is not wise to postpone dealing
with these basic issues when the Court is faced with a genuine request for
intervention.

18. Where a would-be intervener is not connected with the parties in
dispute by a jurisdictional link, the type of intervention would certainly be
different from what would be possible under a municipal legal system
where judicial economy is promoted by a number of litigations being
joined into one proceeding. Intervention in such circumstances is simply
intended to protect the legitimate interest of a third State which might
otherwise be affected by ajudgment in the principal case. Thus the scope of
such an intervention may not be the same as that under municipal law,
inasmuch as the third State would not be expected to present a separate
litigation parallel to the principal case against one or both of the original
litigants. In 1981 I reasoned as follows :

“{I]f the third State does not have a proper jurisdictional link with
the original litigant States, it can nevertheless participate, but not as a
party within the meaning of the term in municipal law. The role to be
played by the intervening State in such circumstances must be limited.
It may assert a concrete claim against the original litigant States, but
that claim must be confined to the scope of the original Application or
Special Agreement in the principal case. The intervening State cannot
seek a judgment of the Court which directly upholds its own claim.
The scope of the Court’s judgment will also be limited : it will be
bound to give judgment only within the scope of the original Appli-
cation or Special Agreement. The intervening State cannot, of course,
escape the binding force of the judgment, which naturally applies to it
to the extent that its intervention has been allowed. The intervening
State will have been able to protect its own right merely in so far as the
judgment declines to recognize as countervailing the rights of either of
the original two litigant States. On the other hand, to the extent that
the Court gives a judgment positively recognizing rights of either of
the litigant States, the intervening State will certainly lose all present
or future claim in conflict with those rights. In this light, it does not
seem tenable to argue that unless the intervener participates as a party
on an equal footing with the original litigant States, it would un-
reasonably benefit without putting itself in any disadvantageous
position.” U.C.J. Reports 1981, p. 27, para. 9.)

19. The Court should examine how the institution of intervention
would function in the event of there being no jurisdictional link between
the third State and the principal parties. Instead, by tacitly taking it for

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granted that the intervention by a third State was meant to bring a distinct
and additional dispute before the Court, the Court seems to proceed to the
conclusion that the jurisdictional link is necessary for intervention in all
cases. Thus the Court appears to fall into a vicious circle of logic.

3. Impact of Article 63

20. Attention should also be paid in this respect to Article 63, another
article of the Statute which provides for a different type of intervention.
The subject-matter of the dispute between the original parties in the case of
Article 63 may well be concrete rights claimed by both sides, but if any
third State were to intervene it would be because that third State was
concerned not with that subject-matter itself, but with the interpretation of
the convention to be construed in the judgment of the Court, and this kind
of intervention is unique in international law.

21. With regard to the interpretation of Article 63, I also have to repeat
what I stated in the previous case :

“In the application of Article 63, no jurisdictional link is apparently
required between the intervening State and the original litigant States.
The third State may participate in the case, but not ‘as a party’ on an
equal footing with the original litigant States because the object of the
intervention is not necessarily connected with the claims of the ori-
ginal parties. The third party participates, but not as a plaintiff or
defendant or even an independent claimant. This seems to be clear
from some precedents of the Court. In the Haya de la Torre case, the
delivery of Haya de la Torre, who was enjoying asylum at the Colom-
bian Embassy in Peru, was the subject-matter of the case, in which
Cuba was not directly concerned. There is no reason to maintain that
Cuba’s intervention was assumed to be.a participation ‘as a party’ in
the sense I have described above (although in the list of participants in
the case Cuba was mentioned as the ‘intervening party’). In fact,
Cuba’s participation consisted simply in presentation of its interpre-
tation of the Havana Convention. Similarly, in the S.S. ‘Wimbledon’
case, the subject-matter was not the cargo in which Poland was
interested but the right of access of the vessel in question to the Kiel
Canal. In neither case was the intervention thought to be conditional
on the presentation of any concrete claim against both or either of the
original litigant States.

The judgment of the Court will certainly be binding upon the
litigant States, but all that will be binding upon the intervening State
is, as paragraph 2 of Article 63 provides, ‘the construction [of a
convention] given by the judgment’. In other words, the intervening
State will be bound by the Court’s interpretation of the convention if

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it becomes involved in a case involving the application of that instru-
ment.” (LC.J. Reports 1981, p. 28, paras. 11-12.)

(Historical Outline of the Drafting of Article 63)

22. It may be pertinent in this respect to look at how Article 63 was
brought into the Statute of the International Court of Justice. Unlike the
concept of Article 62, the rule it embodies was first adumbrated in 1899,
when the Convention for the Pacific Settlement of International Disputes
was being drafted at the first Peace Conference in The Hague. While the
Third Committee (chaired by Léon Bourgeois) was assigned the prepara-
tion of a project for a court of arbitration, Mr. Asser (a Dutch jurist)
proposed the insertion of a new article, which did not in fact relate to any
other provision in the proposed draft of that court’s Statute ; the proposal
was adopted without any discussion. The text thus proposed and adopted
became Article 56 of the 1899 Convention and read as follows :

“La sentence arbitrale n’est obligatoire que pour les parties qui ont
conclu le compromis.

Lorsqu'il s’agit de l’interprétation d’une convention à laquelle ont
participé d’autres Puissances que les parties en litige, celles-ci noti-
fient aux premières le compromis qu’elles ont conclu. Chacune de ces
Puissances a le droit d'intervenir au procès. Si une ou plusieurs d’entre
elles ont profité de cette faculté, Pinterprétation contenue dans la
sentence est également obligatoire à leur égard.” (Conférence inter-
nationale de la paix, Sommaire général, première partie, annexes,

p. 14.)

In his report to the Third Commission the Chevalier Descamps, President
and Rapporteur on the Comité d’Examen, explained the background of
this provision :

“Il peut arriver qu’une convention ait été conclue entre un très
grand nombre de Puissances et que deux Etats seulement soulèvent
entre eux une question d'interprétation. M. Asser a estimé qu’il y avait
lieu dans cette hypothèse, d’appeler les autres Etats à intervenir au
procès, afin que l'interprétation contenue dans la sentence puisse
éventueliement devenir obligatoire à l'égard de ces Etats.” (Conférence
internationale de la paix, Sommaire général, quatrième partie,

p. 14.)

23. At the second Peace Conference, held again at The Hague in 1907, a
suggestion was made in the First Commission (chaired by Léon Bourgeois)
to change slightly the first sentence of Article 56 of the 1899 Convention
because of the fact that there might be arbitration without a compromis.

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The report of Baron Guillaume, Rapporteur for the First Sub-Commission
of the First Commission, read as follows :

“L’article 56 n’a pas été modifié dans son essence ; il a subi seule-
ment de légères transformations de forme, motivées par le fait qu’il
peut y avoir arbitrage sans compromis.” (Deuxiéme conférence in-
ternationale de la paix, Actes et documents, tome premier,
p. 439.)

Article 84 of the 1907 Convention, which thus replaced Article 56 of the
1899 Convention, read as follows :

“La sentence arbitrale n’est obligatoire que pour les parties en
litige. Lorsqu’il s’agit de ’interprétation d’une convention à laquelle
ont participé d’autres Puissances que les parties en litige, celles-ci
avertissent en temps utile toutes les Puissances signataires. Chacune
de ces Puissances a le droit d’intervenir au procés. Si une ou plusieurs
d’entre elles ont profité de cette faculté, Pinterprétation contenue
dans la sentence est également obligatoire à leur égard.” (Jbid., p. 617.)

24. Thus “intervention” in the 1899 Convention as proposed by
Mr. Asser and established without much discussion, which was then in-
herited by the 1907 Convention, simply related to the intervention in the
case of the construction of a multilateral treaty.

25. In 1920 this particular institution reappeared in the Statute of the
Permanent Court of International Justice. From the outset, the concept of
intervention as already defined was taken for granted by the Advisory
Committee of Jurists. After only a few discussions the text was adopted by
the Committee, and read as follows :

“(Article 63 as adopted later] — Lorsqu'il s’agit de l’interprétation
d’une convention a laquelle ont participé d’autres Etats que les parties
en litige, le Greffe avertit sans délai tous les signataires.

Chacun d’eux a le droit d’intervenir au procès, et, s’il exerce cette
faculté, l’interprétation contenue dans la sentence est également obli-
gatoire à son égard. » (Permanent Court of International Justice,
Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of the
Committee, p. 685.)

On that occasion Mr. de Lapradelle, as Chairman of the Drafting Com-
mittee, explained this provision as follows :

“Further there is one case in which the Court cannot refuse a
request to be allowed to intervene ; that is in questions concerning the
interpretation of a Convention in which States, other than the con-
testing parties, have taken part ; each of these is to have the right to
intervene in the case. If such a State uses this right, the interpretation
contained in the sentence becomes binding between it and the other
parties to the case.

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Where collective treaties are concerned, general interpretations can
thus be obtained very quickly, which harmonise with the character of
the Convention.” (Permanent Court of International Justice, Advisory
Committee of Jurists, Procés-Verbaux of the Proceedings of the Com-
mittee, p. 746.)

Some months later, Léon Bourgeois, presenting to the Council a report on
the Permanent Court of International Justice (which was adopted by the
Council on 29 October 1920) stated :

“The observations in the draft project of The Hague by one of our
colleagues draw attention to the following case : it might happen that
a case appearing unimportant in itself might be submitted to the
jurisdiction of the Court, and that the Court might take a decision on
this case, laying down certain principles of international law which, if
they were applied to other countries, would completely modify the
principles of the traditional law of this country, and which might
therefore have serious consequences. The question has been raised
whether, in view of such an alternative, the States not involved in the
dispute should not be given the right of intervening in the case in the
interest of the harmonious development of the law, and otherwise
after the closure of the case, to exercise, in the same interest, influence
on the future development of law. Such action on the part of a
non-litigant State would moreover have the advantage of drawing
attention to the difficulty of making certain States accept such and
such a new development of jurisprudence.

These considerations undoubtedly contain elements of great
value.” (Permanent Court of International Justice, Documents con-
cerning the Action Taken by the Council of the League of Nations under
Article 14 of the Covenant and the Adoption by the Assembly of the
Statute of the Permanent Court, p. 50.)

26. Article 63 of the Statute of the Permanent Court of International
Justice was inherited by the International Court of Justice without any
discussion or change.

(The Meaning of Article 59)

27. It seems pertinent in this respect to examine also the meaning of
Article 59 of the Statute, which provides for the binding force of the
judgments of the Court. As I stated previously (para. 9), this article
stemmed from comments of the British delegate at the Council of the
League of Nations in October 1920. I quote from my previous opin-
ion :

“Mr. Balfour submitted a note on the Permanent Court of Inter-
national Justice, a passage of which read :

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103

104

CONTINENTAL SHELF (DISS. OP. ODA)

‘There is another point on which I speak with much diffidence. It
seems to me that the decision of the Permanent Court cannot but
have the effect of gradually moulding and modifying international
law. This may be good or bad ; but I do not think this was con-
templated by the Covenant ; and in any case there ought to be some
provision by which a State can enter a protest, not against any
particular decision arrived at by the Court, but against any ulterior
conclusions to which that decision may seem to point.’ (P.C.1.J.,
Documents concerning the Action Taken by the Council of the League
of Nations under Article 14 of the Covenant, p. 38.)

The report of Mr. Léon Bourgeois of France, who had also once
submitted a report on the draft scheme of the Advisory Committee of
Jurists at the Council meetings at San Sebastian in August, was
presented at the Council on 27 October 1920. It starts with these
words : ‘The following are the points which I propose that you should
consider: ...’, and continues :

‘8. The right of intervention in its various aspects, and in par-
ticular the question whether the fact that the principle implied in a
judgment may affect the development of international law in a way
which appears undesirable to any particular State may constitute
for it a sufficient basis for any kind of intervention in order to
impose the contrary views held by it with regard to this principle.’
({bid., p. 46.)

Apparently taking into account the observation which had been made
by Mr. Balfour, the report continued in connection with the institu-
tion of intervention in the case of the construction of a convention, as
follows :

‘This last stipulation establishes, in the contrary case, that if a
State has not intervened in the case the interpretation cannot be
enforced against it. No possible disadvantage could ensue from
stating directly what Article 61 [now Article 63] indirectly admits.
The addition of an Article drawn up as follows can thus be pro-
posed to the Assembly : “The decision of the Court has no binding
force except between the Parties and in respect to that particular case”
[now Article 591 (bid. p. 50.)

It may accordingly be concluded that the drafters of the Statute
apprehended that the interpretation which the Court would place on
international law would be shaped by prior judgments of the Court,
and that, by adding this provision, they intended to inhibit the
extension of a modified interpretation of international law to those
States which had not participated in the case.” (I. CJ. Reports 1981,
pp. 29-30, para. 13.)
104 CONTINENTAL SHELF (DISS. OP. ODA)

In fact, the addition of Article 59 to the draft Statute in 1920 was meant to
restore the original form of intervention in the case of the interpretation of
a multilateral convention under the 1899 and 1907 Conventions for the
Pacific Settlement of International Disputes.

28. I continue to quote from my opinion in 1981 :

“If Article 59 is interpreted against this background, it does not add
much to what was contemplated under Article 63, and thus has no
direct bearing on it. It may be asked, however, what significance it
may have to state, as implied by Article 63, that the construction of a
convention will not be binding on States not party to a case before the
Court. For regardless of such a postulate there is little doubt that, in a
case where the construction of a particular convention is in dispute,
the construction placed upon it by the Court in a previous case will
tend to prevail. It is submitted that in this sense there will not be much
difference between those States which have intervened in a case and
those States which have not intervened, so far as the practical effect of
the Court’s construction of an international convention is concerned.
It is questionable whether the intention of the founders — 1.e., not to
make the interpretation of a convention by the Court binding upon
the States which have not participated in the case — was really given
effect by the formulation of Article 59.” (Z.CJ. Reports 1981, p. 30,
para. 14.)

It was quite correct for the Permanent Court of International Justice to
observe the relation of Article 59 to Article 63 in the case concerning
Certain German Interests in Polish Upper Silesia — “[{t]he object of [Article
59] is simply to prevent legal principles accepted by the Court in a particular
case from being binding also upon other States or in other disputes”
(P.C.L.J., Series A, No. 7, p. 19). (Emphasis added.)

29. After having examined the scope of Article 63 together with Article
59 of the Statute particularly in the light of its drafting process I cannot but
reflect upon certain effects of the provision of Article 63 on intervention as
an institution as stipulated under Article 62. I would again like to quote
from my opinion in 1981 :

“If an interpretation of a convention given by the Court is neces-
sarily of concern to a State which is a party to that instrument, though
not a party to the case, there seems to be no convincing reason why the
Court’s interpretation of the principles and rules of international law
should be of less concern to a State. If, therefore, the interpretation of
an international convention can attract the intervention of third

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105 CONTINENTAL SHELF (DISS. OP. ODA)

States under Article 63 of the Statute, it may be asked why the
interpretation of the principles and rules of international law should
exclude a third State from intervening in a case. Lack of jurisdiction is
not a sufficient reason for preventing a State from intervening as a
non-party in a principal case in which the application of the principles
and rules of international law is at issue, for the interpretation given
by the Court of those principles and rules will certainly be binding on
the intervening State. What is more, as in the case of Article 63, the
provisions of Article 59 do not in fact guarantee a State which has not
intervened in the principal case any immunity from the subsequent
application of the Court’s interpretation of the principles and rules of
international law.

I am not of course suggesting that such an intervention would fall
within the meaning of Article 63 of the Statute. I am simply saying
that such a type of intervention — i.e., non-party intervention in the
case in which a jurisdictional link is absent, but the interpretation
given by the Court is binding — was introduced under Article 63. And
if such a type of intervention is therefore possible, I submit that
Article 62, if looked at in the light of Article 63, can also be viewed as
comprehending this form of intervention as well, providing that the
interest of a legal nature is present. That is to say, intervention under
Article 62 encompasses the hypothesis where a given interpretation of
principles and rules of international law is sought to be protected by a
non-party intervention. In this hypothesis, the mode of intervention
may be the same as under Article 63, so that the third State neither
appears as a plaintiff or defendant nor submits any specific claim to
rights or titles against the original litigant States.” (C.J. Reports
1981, p. 30, paras. 15-16.)

30. Furthermore, I must point out that the multilateral convention of
today is essentially different in character from that of the turn of the
century and by its proliferation, universality and generality occupies an
altogether more significant position in relation to customary law. Until
quite recent times, apart from a handful of conventions mainly relating to
the laws of war, multilateral treaties were not so universal, being limited to
those concluded amongst only a few countries so as to provide for more
concrete rights and duties which would directly affect their interests.
Today by contrast, a great number of multilateral treaties are being pro-
duced in the United Nations or at conferences held under the auspices of
the United Nations or other international organizations, with the goal of
forging a new universal law, principally through codification of customary
international law. The probability of the application of Article 63 is thus
incomparably greater now than it could ever have been at the time the 1899
Convention was drafted.

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4. Probability of the Increase in Requests
for Intervention

31. It may be argued that if, as already mentioned, such a liberal
interpretation is given to Article 62 of the Statute, then there is a distinct
possibility that litigation before the Court may in future invite a number of
interventions by third States. I would like to quote from my previous
opinion :

“It may be objected that the States which may be affected by the
interpretation of such principles and rules by the Court will be with-
out number, and that, if an interpretation of the principles and rules of
international law can open the door of the Court to all States as
interveners, this will invite many future instances of intervention. This
problem should be considered from the viewpoint of future judicial
policy, and more particularly from the viewpoint of the economy of
international justice. Yet this cannot be the reason why a request for
intervention which is actually pending should be refused when the
requesting State claims that its legal interest may be affected by the
Court’s rulings on the principles and rules of international law. The
possibility of an increasing number of cases invoking Article 63 may
likewise not be avoided [particularly in view of the new trends which I
explained before]. The fact that in the past Article 63 has been rarely
invoked does not guarantee that the situation will remain unchanged
in the future. Thus the problem is related not only to Article 62, but
also to Article 63.

However, unlike Article 63 dealing with the case of the interpre-
tation of an international convention, Article 62 comprises certain
restrictions. Paragraph 2 of Article 62 provides that : ‘It shall be for
the Court to decide upon this request.’ This means that the Court has
certain discretionary powers to allow or not to allow any requesting
State to intervene in the litigation. Still more important is the restric-
tion of paragraph 1 of Article 62. This paragraph requires the State
requesting intervention to show that ‘it has an interest of a legal nature
which may be affected by the decision in the case’. Thus any danger of
expansive application of Article 62 will certainly be restricted by the
Court’s exercising its discretionary power, more particularly to deter-
mine whether the requesting State has such an interest. In the present
case, as it happens, the Court has taken this line and come to a
negative conclusion on this point, imposing what is in my view an
unduly severe test.” (Z C.J. Reports 1981, p. 31, paras. 17-18.)

32. It should also be pointed out that in the case of a request for an
advisory opinion from the Court, any State entitled to appear before the
Court, or international organizations considered likely to be able to fur-
nish information on the question, are allowed not only to file written
statements but also to be heard at a public sitting. Whilst the probability of

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the multiplication of interventions is a matter of concern for judicial
policy, it must be said that there is no guarantee that the participation of
States and international organizations in advisory proceedings will be
restricted.

IJ. OBJECT AND LEGAL INTEREST OF ITALY’S APPLICATION

1. Object of Italy’s Application

33. I am unable to subscribe to the arguments in the Court’s Judgment,
as stated in paragraphs 29 and 41 in particular, that, by asking the Court to
recognize its right, Italy in fact attempts to seize the Court of a distinct and
additional dispute. In my view this presentation stems from the Court’s a
priori assumption that intervention under Article 62 would be intended, as
under a municipal legal system, to combine additional litigations to the
original one of which the Court has been seized.

34. However, as the Court states :

“Italy has emphasized in the present proceedings that it is making
no claim against either of the two principal Parties, that it is not
seeking a decision by the Court delimiting its own areas of continental
shelf, nor a decision declaring the principles and rules of international
law applicable to such a delimitation.” (Judgment, para. 29.)

I cannot see any intention of Italy to introduce through the back door a
case which could not otherwise have been brought before the Court
because of lack of jurisdiction. The object of Italy’s application to inter-
vene is clearly spelt out in its Application :

“The object of Italy’s application to intervene is to ensure the
defence before the Court of its interest of a legal nature, so that those
principles and rules and, in particular, the practical method of apply-
ing them, are not determined by the Court without awareness of that
interest, and to its prejudice.

In other words, Italy seeks to participate in the proceedings to the
fuil extent necessary to enable it to defend the rights which it claims
over some of the areas claimed by the Parties, and to specify the
position of those areas, taking into account the claims of the two
principal Parties and the arguments put forward in support of those
claims, so that the Court may be as fully informed as possible as to the
nature and scope of the rights of Italy in the areas of continental shelf
concerned by the delimitation, and may thus be in a position to take
due account of those rights in its decision.” (Italy’s Application, para.
16.)

Italy has neither accepted the compulsory jurisdiction of the Court nor

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secured any pertinent agreement from the original Parties ; it has neither
presented any claim against either of the original Parties nor proved that
there had existed, before its application to intervene, any dispute between
it and the original Parties or held any negotiation with the original Parties
leading to a solution of such a dispute. These facts certainly do not
constitute grounds for rejecting Italy’s request in view of the proper scope
of Article 62 of the Statute, which I have sufficiently demonstrated in Part I
above.

35. Reiterating what I stated in 1981 (1.C.J. Reports 1981, p. 29, para. 9),
the role to be played by Italy as an intervener must be limited. Italy may
assert a concrete claim against Libya and Malta, but that claim must be
confined to the scope of the Special Agreement in the principal case. Italy
cannot seek a judgment of the Court which directly upholds its own claim.
The scope of the Court’s judgment will also be limited : it will be bound to
give judgment only within the scope of the Special Agreement. Italy
cannot, of course, escape the binding force of the judgment, which natu-
rally applies to it to the extent that its intervention has been allowed. Italy
will have been able to protect its own rights merely in so far as the judgment
declines to recognize as countervailing the rights of either Libya or Malta.
On the other hand, to the extent that the Court gives a judgment positively
recognizing rights of either Libya or Malta, Italy will certainly lose all
present or future claims in conflict with those rights.

36. I do not see any reason why Italy’s object in requesting intervention
should not fall within the scope of intervention as noted above. If the
object of the application falls within the scope of Article 62, an applicant
need only indicate what legal interest it possesses which may be affected by
the decision in the pending dispute between the parties, irrespective of
procedural requirements under Article 31, paragraph 2, of the Rules of
Court. I now turn to the legal interest of Italy, which may be affected by the
judgment of the Court in the principal case. As the present case has some
quite distinct characteristics, Italy’s interests are varied.

2. Italy’s Legal Interest in the Title Erga Omnes

37. The subject-matter of this case does not concern claims arising out
of the alleged breach of any obligation which one party may have accepted
in relation to the other, being thus a matter of concern only to the litigant
States. No, what is really disputed between Libya and Malta relates to
titles to submarine areas. The claims concerned are thus of a territorial
nature and as such are made erga omnes. In other words, the titles estab-
lished may well be asserted not only between Libya and Malta but as
regards all other States. It will be recalled that the essentially territorial
nature of continental shelf disputes was confirmed by the Court in its
Judgment on the Aegean Sea Continental Shelf case (1.C.J. Reports 1978,
paras. 86-90) and indeed formed a main factor in that decision. As stated in

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Part I above, the interest which a third State may have in claiming a title to
an area cannot escape any effect resulting from what is determined by the
Court in so far as that title is attributed to any of the litigant States in the
principal case. As already mentioned, Article 59 of the Statute may not be
accepted as guaranteeing that a decision of the Court in a case regarding
the title erga omnes will not affect a claim by a third State to the same
title.

3. Italy’s Legal Interest in the Delimitation of as yet
Undefined Areas of the Continental Shelf

38. Although it is territorial, the present case is not of the type in which
the title to any specific island or a particular and predetermined area is at
issue. As is evident from the Special Agreement between Libya and Malta,
neither of the principal Parties lays claim to any particular portion of any
precisely defined submarine areas. Hence the extent of the area in dispute
between the original] Parties, Libya and Malta, where the delimitation is to
be effected, cannot normally become clear to any third State until the
written pleadings are made public upon the opening of the hearing on the
merits. The most that a third State which has been refused access to the
pleadings can do in such a situation is not to assert any concrete claim
against the original litigant States, but simply to draw the attention of the
Court to the right it may claim to its off-shore continental shelf by indi-
cating its general interest in the area as a whole, lest the Court should
render a judgment which recognizes the title of either of the litigant parties
in the principal case to any specific area of the continental shelf, as if there
had been no interest of any third State in that particular area. Here I wish
to repeat what I said in the Tunisia/ Libya case, except that in this case
“Malta” becomes “Italy” and “Tunisia and Libya” become “Libya and
Malta” :

“(If [Italy] has failed to assert its own claims against either or both
of the litigant States, or to seek as plaintiff or defendant any sub-
stantive or operative decision against either Party or to try to obtain
any form of ruling or decision from the Court concerning its own
continental shelf boundary with either or both of the original litigant
States, or, then again, to submit its own claims to decision by the
Court and not to expose itself to counter-claims, this cannot be any
reason to question the admissibility of [Italy’s] request. More cannot
be demanded of [Italy] than of [Libya] and [Malta].” (C.J. Reports
1981, p. 32, para. 19.)

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39. It has been contended by both Libya and Malta that the Court is
simply required to confine itself to the delimitation of the area of Libya’s
and Maita’s continental shelves and that, ex Aypothesi, no third State can
be interested in either of them. The “area-to-be” of the continental shelf
appertaining to Libya and the “area-to-be” of the continental sheif apper-
taining to Malta are of course, distinct. These two “areas” themselves
constitute a whole region which has not been defined in the above request
by Libya and Malta. If the region concerned is to be simply an aggregate of
the two “areas”, so that it does not affect any third State but only concerns
these two States, how can one identify the region concerned without
possessing any precise definition of that aggregate? Admittedly, the
delimitation of the two “areas” concerned is essentially a bilateral matter
to be settled between Libya and Malta. Nevertheless, that delimitation
ought not to intrude upon the area of the continental shelf of any third
State. Yet is it possible to assume with any certainty that, when account is
taken of the characteristics of the region concerned, there will not be a third
State which may have a legal title to the very portion of the continental
shelf at issue ? The question therefore arises as to whether a guarantee can
be given that there is no legal interest of such a State which may be affected
by the decision of the Court. Furthermore, is it proper to state now, or will
it ever be possible to state with certainty, that no conclusions or inferences
may legitimately be drawn from the Court’s ultimate findings or reasoning
with respect to the rights or claims of States not parties to the Libya/ Malta
case ? Without proceeding with a scrutiny which belongs to a later stage,
the Court cannot now define the region in which the delimitation between
Libya and Malta is to be effected. The Court cannot now take a position in
this respect without dealing with the merits of the principal case. Since the
region with which the Court has to concern itself, cannot in practice be
confined to any precisely defined parameter of a given area within which it
is evident that no third State may have a claim, the possibility or probability
of an adverse effect upon a third State accordingly is not excluded and
cannot be so.

4. Italy’s Legal Interest in the Principles and Rules of
International Law

40. I find it important to re-emphasize that Libya and Malta do not
request the Court to determine directly the title to either sovereignty or
sovereign rights (which itself has an effect erga omnes) over any particular
area of the continental shelf, but to decide —

“what principles and rules of international law are applicable to the
delimitation . . . and how, in practice, such principles and rules can be
applied by the two Parties in this particular case, in order that they
may without difficulty delimit such areas by agreement”.

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What I stated in the Maltese intervention proceedings is also pertinent in
this respect, except that the States concerned are now different, namely
“Italy” and “Libya and Malta” in place of “Malta” and “Tunisia and
Libya” respectively :

“Both Parties in this case wish to secure a statement from the Court
of what the appropriate law will be for the delimitation of the respec-
tive areas of the continental shelf of [Libya and Malta]. On the face of
the Special Agreement, what will be argued before the Court by these
two countries will remain confined to the principles and rules of
international law to be applied in the delimitation of the continental
shelf and not relate to the concrete claim to any title. Thus the object
of the request for intervention may properly consist, as stated by
[Italy], in presenting views on the principles and rules of international
law during the proceedings in the principal case (as intended by Cuba
in the Haya de la Torre case under Article 63). That being so, the
position of [Italy] is certainly different from that of Fiji in the Nuclear
Tests cases, in which the subject-matter was clearly defined in terms of
specific claims. Aside from the question of jurisdiction, Fiji could
have identified its own interests with those of Australia and New
Zealand in specifying the legal interests which might have been
threatened by the action taken by France, the legality of which was in
dispute. Thus, although Fiji might have been required to specify its
own claim as a plaintiff together with Australia and New Zealand
against France, this requirement would have arisen out of the very
nature of the case. The /Libya/ Malta] case, however is of a completely
different nature.” U.C.J. Reports 1981, p. 32, para. 20.)

The issues to be decided by the Court after examining the presentations of
the pleadings, written and oral, of the principal Parties, consist in princi-
ples and rules of international law to be applicable to the delimitation of
the continental shelf and the way in which those principles and rules can be
applied. Though Italy has often referred to the concrete interests involved
in the dispute between the two original Parties, it can also be seeking
through the Court to influence the interpretation of the principles and
rules of international law applicable to this particular dispute concerning
the delimitation of a maritime boundary.

41. Today no one can ignore the deliberations of the Third Law of the
Sea Conference, which were closed towards the end of 1982, and the text of
the United Nations Convention on the Law of the Sea signed at Montego
Bay, Jamaica. Even if it is not yet a binding instrument in force, it is a
multilateral convention coming within the purview of Article 63 of the
Statute and is bound to be invoked by the Parties in delimiting their
continental shelf in future, and the Court may be asked for an interpre-
tation. In a situation such as this, the third State would have a clear right of
intervention under Article 63. Is such a situation so very different from the
present case, where this treaty, though signed by a great number of States

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all over the world, has not yet come into force, if it be borne in mind that
both are related to the interpretation of the principles and rules of cus-
tomary international law, irrespective of whether or not these principles
and rules have already been spelled out in an effective text ? I would like
again to use my previous arguments, changing only the word “Malta” to
“Italy” as follows :

“Theoretically, a number of States may have a claim to the conti-
nental shelf in the ‘area’, invoking any justification which they may
prefer for this purpose, because the criteria for delimitation of the
continental shelf have not yet been firmly settled. Yet, in the light of
developments in the law of the sea, it would not have been difficult for
the Court to exercise its discretionary powers under Article 62, para-
graph 2, and allow the intervention of the third State particularly
concerned, depending on the Court’s evaluation of the imminent and
grave interests prima facie at stake and considering the relevant
factors. In this case, I cannot agree that [Italy] which prima facie
belongs to the very ‘area’ in issue, will escape any legal effect of the
judgment of the Court. This distinguishes [Italy] from all other coun-
tries (except perhaps a few neighbouring States), many of which may
of course be interested in abstracto in the judgment of the Court
concerning the interpretation of the applicable ‘principles and rules of
international law’.” (.C.J. Reports 1981, p. 34, para. 23.)

42. I do not need to follow the development of the ideas relating to the
delimitation of maritime boundaries through Article 6 of the Continental
Shelf Convention to Article 83 of the United Nations Convention on the
Law of the Sea. The concept of the delimitation of the continental shelf has
not been crystal clear, and it is known to the international community that
the Convention became reality only after a compromised text of Article 83
together with Article 74 relating to the delimitation of the exclusive eco-
nomic zone was proposed by the President of the Conference at the very
last stage. The provision reads :

“Article 83 [ 74] — 1. The delimitation of the continental shelf [the
exclusive economic zone] between States with opposite or adjacent
coasts shall be effected by agreement on the basis of international law,
as referred to in Article 38 of the Statute of the International Court of
Justice, in order to achieve an equitable solution.”

No matter whether the provision has become an established rule of inter-
national law today when the Convention has still to secure a great number
of ratifications before it comes into force, it would be impossible for the
Court to avoid interpreting these very provisions. Inasmuch as Libya and
Malta will probably present their respective positions in reliance on dif-
ferent doctrines and justifications with regard to the delimitation of the
region yet to be defined, how is it possible to assume that a State such as

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Italy, because of its vicinity to the region concerned, the central Mediter-
ranean, may be indifferent to the principles and rules to be decided by the
Court to apply in this particular case ?

CONCLUSION

43. I have thus elaborated my point that Italy’s application falls within
the purview. of the institution of intervention provided for under the
Statute, and that Italy is justified in considering that it has an interest of a
legal nature which may be affected by the decision in the case. I made
almost the same argument in the case of the Maltese intervention three
years ago, based on almost the same reasoning. I was not, however,
inclined after careful consideration to favour granting the application of
Malta. The reason was that, in the case of the delimitation of the conti-
nental shelf between territorially adjacent States, the interest of a third
State which is situated on the opposite side and far from the coasts of these
adjacent States may not, prima facie, be greatly affected by such a delim-
itation, nor by the declaration of the applicable principles and rules. This
led me to concur in the conclusion of the Court only in view of the measure
of judicial discretion contained in paragraph 2 of Article 62. However, the
present case is different, because it concerns delimitation of the continen-
tal shelf between “opposite” States, one of which has the would-be inter-
vener as its close neighbour.

(Signed) Shigeru ODA.

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114

CONTINENTAL SHELF (DISS. OP. ODA)

TABLE OF CONTENTS

OPENING REMARKS . . . . . . 1 . . . . . . . . . . . . . .

I.

I.

SCOPE OF THE INTERVENTION UNDER ARTICLE 62 OF THE STA-
TUTE eee ee à +
Introduction . . . . . . . . . . . . . . . . . . . . . .

1. A case where a jurisdictional link exists  . . . . . . . .
2. The jurisdictional link is not always indispensable

(Historical outline of the drafting of Article 62) . . . . .
3. Impact of Article 63 . . . . . . . . . . . . . . . . .

(Historical outline of the drafting of Article 63) . . . . .

(The meaning of Article 59)  . . . . . . . . . . . . .
4. Probability of the increase in requests for intervention

OBJECT AND LEGAL INTEREST OF ITALY’S APPLICATION

1. Object of Italy’s application . . . . . . . . . . . . .
2. Italy’s legal interest in the title erga omnes . . . . . . .

3. Italy’s legal interest in the delimitation of as yet undefined
areas of the continental shelf 2. . . . . . . . . . . . .
4. Italy’s legal interest in the principles and rules of international
law we

CONCLUSION . ....... 4 4 4 4 ee . . à :

115

Paragraphs
1-2