INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING SOVEREIGNTY
OVER PULAU LIGITAN AND PULAU SIPADAN

(INDONESIA/MALAYSIA)

APPLICATION BY THE PHILIPPINES
FOR PERMISSION TO INTERVENE

JUDGMENT OF 23 OCTOBER 2001

2001

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A LA SOUVERAINETE
SUR PULAU LIGITAN ET PULAU SIPADAN

(INDONESIE/MALAISIE)

REQUETE DES PHILIPPINES
A FIN D'INTERVENTION

ARRÊT DU 23 OCTOBRE 2001
Official citation:

Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesial Malaysia),
Application for Permission to Intervene, Judgment,
1 C.J. Reports 2001, p. 575

Mode officiel de citation:
Souveraineté sur Pulau Ligitan et Pulau Sipadan (Indonésiel Malaisie),
requête à fin d'intervention, arrét,
C.1J. Recueil 2001, p. 575

Sales number
ISSN 0074-4441 N° de vente: 828

ISBN 92-1-070928-4

23 OCTOBER 2001

JUDGMENT

SOVEREIGNTY OVER PULAU LIGITAN
AND PULAU SIPADAN

(INDONESIA/MALAYSIA)

APPLICATION BY THE PHILIPPINES
FOR PERMISSION TO INTERVENE

SOUVERAINETE SUR PULAU LIGITAN
ET PULAU SIPADAN

(INDONESIE/MALAISIE)

REQUETE DES PHILIPPINES
A FIN D'INTERVENTION

23 OCTOBRE 200!

ARRET
2001
23 October
General List
No. 102

575

INTERNATIONAL COURT OF JUSTICE

YEAR 2001

23 October 2001

CASE CONCERNING SOVEREIGNTY OVER
PULAU LIGITAN AND PULAU SIPADAN

(INDONESIA/MALAYSIA)

APPLICATION BY THE PHILIPPINES
FOR PERMISSION TO INTERVENE

Intervention under Article 62 of the Statute.

Article 81, paragraph 1, of the Rules of Court — Obligation to file the Appli-
cation for permission to intervene “as soon as possible, and not later than the
closure of the written pleadings” — Application submitted after the filing of the
Replies of the Parties but before the Parties had informed the Court of their
agreement not to file Rejoinders, notwithstanding the possibility of so doing pro-
vided for in the Special Agreement — Whether Application for permission to
intervene was submitted “as soon as possible” and “not later than the closure of
the written proceedings”.

Article 81, paragraph 3, of the Rules of Court — Absence of documents
annexed in support of the Application for permission to intervene.

Article 62 of the Statute and Article 81, paragraph 2 (c}, of the Rules of
Court — Jurisdictional link between the State seeking to intervene and the
Parties to the case — Whether and in what circumstances such a jurisdictional
link is required for intervention under Article 62.

Article 62 of the Statute and Article 81, paragraph 2 (a), of the Rules of
Court — Existence of an interest of a legal nature which may be affected by a
decision of the Court — Case concerning sovereignty over two islands — State
seeking to intervene not claiming sovereignty over those islands but contending
that certain reasoning in the Judgment of the Court may affect that State's
claim to other territory — Whether the interest of a legal nature of the State
seeking to intervene is limited to the dispositif alone of the judgment that the
Court will give in the case or whether it includes also the reasoning in the judg-
ment — Proof of the existence of an interest of a legal nature: burden and
extent — Whether denial of access to the documents in the case to State seeking
to intervene prevented it from identifying its legal interest — Legal instruments
relied upon by the Parties to the main proceedings — Legal instruments relied

4
576 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

upon by the State seeking to intervene — Effect on the claim of the State seek-
ing to intervene of these instruments being taken into account by the Court —
Whether in the circumstances the State seeking to intervene discharged its bur-
den of demonstrating the existence of an interest of a legal nature that may be
affected in relation to these instruments.

Article 81, paragraph 2 (b), of the Rules of Court — “Precise object of the
intervention” — Stated object of intervention (1) to preserve and safeguard the
historical and legal rights of the State seeking to intervene that may be affected
hy the decision of the Court, (2) to inform the Court of the nature and extent
of those rights, and (3} to appreciate more fully the indispensable role of the
Court in comprehensive conflict prevention.

JUDGMENT

Present: President GUiLLAUME: Vice-President Sui; Judges Opa, RANJEVA,
FLEISCHHAUER, KOROMA, VERESHCHETIN, HIGGINS, PARRA-ARANGUREN,
KOOHMANS, REZEK, AL-KHASAWNEH. BUERGENTHAL; Judges ad hoc
WEERAMANTRY, FRANCK; Registrar COUVREUR.

In the case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan,
between
the Republic of Indonesia,
represented by
H.E. Dr. N. Hassan Wirajuda, Director General for Political Affairs,
as Agent;
H.E. Mr. Abdul Irsan, Ambassador of Indonesia to the Kingdom of the
Netherlands,
as Co-Agent;
Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, Member of
the International Law Commission,
Mr. Rodman R. Bundy, avocat à la cour d’appel de Paris, Member of the
New York Bar, Frere Cholmeley/Eversheds. Paris
as Counsel and Advocates;

Mr. Alfred H. A. Soons, Professor of Public International Law, Utrecht Uni-
versity,

Ms Loretta Malintoppi, avocat à la cour d'appel de Paris, Member of the
Rome Bar, Frere Cholmeley/Eversheds, Paris,

Mr. Charles Claypoole, Solicitor of the Supreme Court of England and
Wales, Frere Cholmeley/Eversheds, Paris,

as Counsel:
577 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

Mr. Hasyim Saleh, Deputy Chief of Mission, Embassy of the Republic of
Indonesia in the Netherlands,

Mr. Donnilo Anwar, Director for Treaties and Legal Affairs, Department of
Foreign Affairs,

Major-General Djokomulono, Territorial Assistant to Chief of Staff for Ter-
ritorial Affairs, Indonesian Armed Forces Headquarters,

Rear-Admiral Yoos F. Menko, Intelligence Assistant to Chief of Staff for
General Affairs, Indonesian Armed Forces Headquarters,

Mr. Kria Fahmi Pasaribu, Minister Counsellor, Embassy of the Republic of
Indonesia in the Netherlands,

Mr. Eddy Pratomo, Head of Sub-Directorate for Territorial Treaties, Depart-
ment of Foreign Affairs,

Mr. Abdul Kadir Jaelani, Officer, Embassy of the Republic of Indonesia in
the Netherlands.

as Advisers,

and
Malaysia,
represented by

H.E. Tan Sri Abdul Kadir Mohamad, Secretary General of the Ministry of
Foreign Affairs,

as Agent;

H.E. Ms Noor Farida Ariffin, Ambassador of Malaysia to the Kingdom of
the Netherlands,

as Co-Agent;

Sir Elihu Lauterpacht C.B.E., Q.C., Honorary Professor of International
Law, University of Cambridge, Member of the Institut de droit interna-
tional,

Mr. Jean-Pierre Cot, Emeritus Professor, Université de Paris I, Advocate,
Paris and Brussels Bars,

Mr. James Crawford, S.C., F.B.A., Whewell Professor of International Law,
University of Cambridge, Member of the International Law Commission,

Mr. Nico Schrijver, Professor of International Law, Free University Amster-
dam and Institute of Social Studies, The Hague; Member of the Perma-
nent Court of Arbitration,

as Counsel and Advocates;

Datuk Heliliah Yusof, Solicitor General of Malaysia,
Mrs. Halima Hj. Nawab Khan, Acting State Attorney-General of Sabah,

Mr. Athmat Hassan, Legal Officer, Sabah State Attorney-General’s
Chambers,
as Counsel;

H.E. Ambassador Hussin Nayan, Under-Secretary, Territorial and Maritime
Affairs Division, Ministry of Foreign Affairs,
578 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

Mr. Muhamad bin Mustafa, Deputy Director-General, National Security
Division, Prime Minister’s Department,

as Advisers;

Mr. Zulkifli Adnan, Principal Assistant Secretary, Territorial and Maritime
Affairs Division, Ministry of Foreign Affairs,

Mr. Raja Aznam Nazrin, Counsellor of the Embassy of Malaysia in the
Netherlands,

Mr. Nik Aziz Nik Yahya, First Secretary of the Embassy of Malaysia in the
Philippines,

Mr. Tan Ah Bah, Principal Assistant Director of Survey, Boundary Divi-
sion, Department of Survey and Mapping,

Ms Haznah Md. Hashim, Assistant Secretary, Territorial and Maritime
Affairs Division, Ministry of Foreign Affairs,

Mr. Shaharuddin Onn, Assistant Secretary, Territorial and Maritime Affairs
Division, Ministry of Foreign Affairs,

as administrative staff;
on the Application for permission to intervene by the Republic of the Philip-
pines,
represented by

H.E. Mr. Eloy R. Bello III, Ambassador of the Republic of the Philippines
to the Kingdom of the Netherlands,

as Agent;
Mr. Merlin M. Magallona, Under-Secretary of Foreign Affairs,
as Co-Agent and Counsel;

Mr. W. Michael Reisman, Myres S. McDougal Professor of International
Law of Yale Law School, associé de l'Institut de droit international,

as Counsel and Advocate;
Mr. Peter Payoyo, University of the Philippines,
as Counsel ;

Mr. Alberto A. Encomienda, Secretary-General, Maritime and Ocean Affairs
Center, Department of Foreign Affairs,

Mr. Alejandro B. Mosquera, Assistant Secretary, Office of Legal Affairs,
Department of Foreign Affairs,

Mr. George A. Eduvala, Attaché, Embassy of the Republic of the Philip-
pines in the Netherlands,

Mr. Eduardo M. R. Meñez, Second Secretary, Embassy of the Republic of
the Philippines in the Netherlands,

Mr. Igor G. Bailen, Acting Director, Office of Legal Affairs, Department of
Foreign Affairs,

as Advisers,
THE Court,

composed as above,
after deliberation,
579 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

delivers the following Judgment:

1. By joint letter dated 30 September 1998, filed in the Registry of the Court
on 2 November 1998, the Ministers for Foreign Affairs of the Republic of Indo-
nesia (hereinafter “Indonesia”) and of Malaysia informed the Registrar of a
Special Agreement between the two States, which was signed in Kuala Lumpur
on 31 May 1997 and entered into force on 14 May 1998, the date of the
exchange of instruments of ratification.

In accordance with the aforementioned Special Agreement, the Parties request
the Court to

“determine on the basis of the treaties, agreements and any other evidence
furnished by the Parties, whether sovereignty over Pulau Ligitan and
Pulau Sipadan belongs to the Republic of Indonesia or to Malaysia”:

in paragraph 2 of Article 3 of the Special Agreement, the Parties agreed that
the written pleadings should consist of the following documents:

“{a) a Memorial presented simultaneously by each of the Parties not
later than 12 months after the notification of this Special Agreement
to the Registry of the Court;

(6) a Counter-Memorial presented by each of the Parties not later than
4 months after the date on which each has received the certified copy
of the Memorial of the other Party;

fc) a Reply presented by each of the Parties not later than 4 months
after the date on which each has received the certified copy of the
Counter-Memorial of the other Party; and

(d) a Rejoinder, if the Parties so agree or if the Court decides ex officio
or at the request of one of the Parties that this part of the proceed-
ings is necessary and the Court authorizes or prescribes the presen-
tation of a Rejoinder”.

2. Pursuant to Article 40, paragraph 3, of the Statute of the Court, copies of
the joint notification and of the 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.

3. By an Order dated 10 November 1998, the Court, having regard to the
provisions of the Special Agreement concerning the written pleadings, fixed
2 November 1999 and 2 March 2000 as the respective time-limits for the filing
by each of the Parties of a Memorial and then a Counter-Memorial. The
Memorials were filed within the prescribed time-limit. By joint letter of
18 August 1999, the Parties asked the Court to extend to 2 July 2000 the time-
limit for the filing of their Counter-Memorials. By an Order dated 14 Septem-
ber 1999, the Court agreed to that request. By joint letter of 8 May 2000, the
Parties requested the Court for a further extension of one month to the time-
limit for the filing of their Counter-Memorials. By Order of 11 May 2000, the
President of the Court also agreed to that request. The Parties’ Counter-
Memorials were filed within the time-limit as thus extended.

4. Under the terms of the Special Agreement, the two Parties were to file a
Reply not later than four months after the date on which each had received the
certified copy of the Counter-Memorial of the other Party. By joint letter dated
14 October 2000, the Parties asked the Court to extend this time-limit by three
months. By an Order dated 19 October 2000, the President of the Court fixed

8
580 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

2 March 2001 as the time-limit for the filing by each of the Parties of a Reply.
The Replies were filed within the prescribed time-limit. In view of the fact that
the Special Agreement provided for the possible filing of a fourth pleading by
each of the Parties, the latter informed the Court by joint letter of 28 March 2001
that they did not wish to produce any further pleadings. Nor did the Court
itself ask for such pleadings.

5. Since the Court did not include upon the Bench a judge of Indonesian or
Malaysian nationality, both Parties exercised their right under Article 31,
paragraph 3, of the Statute to choose a judge ad hoc to sit in the case: Indo-
nesia chose Mr. Mohamed Shahabuddeen and Malaysia Mr. Christopher
Gregory Weeramantry.

6. By letter of 22 February 2001, the Government of the Republic of the
Philippines (hereinafter “the Philippines”), invoking Article 53, paragraph 1, of
the Rules of Court, asked the Court to furnish it with copies of the pleadings
and documents annexed which had been filed by the Parties. Pursuant to that
provision, the Court, having ascertained the views of the Parties, decided that it
was not appropriate, in the circumstances, to grant the Philippine request. The
Registrar communicated that decision to the Philippines, Indonesia and Malay-
sia by letters dated 15 March 2001.

7. On 13 March 2001, the Philippines filed in the Registry of the Court an
Application for permission to intervene in the case, invoking Article 62 of the
Statute of the Court. In that Application, the Philippines explained that it con-
sidered its “request for copies of the pleadings and documents annexed as an
act separate and distinct from [that] Application” and that the latter “does not
affect, and is independent from, the earlier submissions made by the Philippine
Government”. According to the Application, the Philippine interest of a legal
nature which may be affected by a decision in the present case “is solely and
exclusively addressed to the treaties, agreements and other evidence furnished
by Parties and appreciated by the Court which have a direct or indirect bearing
on the matter of the legal status of North Borneo”. The Philippines also indi-
cated that the object of the intervention requested was,

“fa) First, to preserve and safeguard the historical and legal rights of the
Government of the Republic of the Philippines arising from its claim
to dominion and sovereignty over the territory of North Borneo, to
the extent that these rights are affected, or may be affected, by a
determination of the Court of the question of sovereignty over
Pulau Ligitan and Pulau Sipadan.

(6) Second, to intervene in the proceedings in order to inform the
Honourable Court of the nature and extent of the historical and
legal rights of the Republic of the Philippines which may be affected
by the Court’s decision.

(c) Third, to appreciate more fully the indispensable role of the
Honourable Court in comprehensive conflict prevention and not
merely for the resolution of legal disputes.”

The Philippines further stated in its Application that it did not seek to become
a party to the dispute before the Court concerning sovereignty over Pulau Ligi-
tan and Pulau Sipadan, and that the Application “is based solely on Article 62

9
581 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

of the Statute, which does not require a separate title of jurisdiction as a
requirement for this Application to prosper”.

8. On 14 March 2001, pursuant to Article 83, paragraph 1, of the Rules of
Court, the Registrar transmitted copies of the Application for permission to
intervene to the two Parties in the case, Indonesia and Malaysia, as well as to
the United Nations Secretary-General, the Members of the United Nations and
other States entitled to appear before the Court. At the same time, both Parties
to the case were invited to furnish, by 2 May 2001 at the latest, their written
observations on the Application for permission to intervene; each of them sub-
mitted such observations within the time-limit fixed for that purpose. Those
observations were exchanged between the Parties and transmitted to the
Philippines. In their written observations, both Indonesia and Malaysia objected
to the Application for permission to intervene submitted by the Philippines.
Accordingly, by letters of 11 May 2001 the Parties and the Philippine Govern-
ment were notified that the Court would hold public sittings pursuant to
Article 84, paragraph 2, of the Rules of Court to hear the views of the Philip-
pines, the State seeking to intervene, and those of the Parties in the case.

9. Mr. Shahabuddeen, judge ad hoc, having resigned his duties on
20 March 2001, Indonesia informed the Court, by letter received in the Regis-
try on 17 May 2001, that its Government had chosen Mr. Thomas Franck to
replace him.

10. The Court, after ascertaining the views of the Parties, decided that the
written observations of both Parties on the Application for permission to inter-
vene, and the documents annexed thereto, would be made accessible to the
public on the opening of the oral proceedings.

11. At the public sittings held on 25, 26, 28 and 29 June 2001, the Court
heard oral statements and replies from the following in regard to the question
whether the Philippine Application for permission to intervene should be
granted:

For the Philippines: H.E. Mr. Eloy R. Bello III,
Mr. Michael Reisman,
Mr. Merlin M. Magallona.

For Indonesia: H.E. Mr. Hassan Wirajuda,
Mr. Alain Pellet,
Mr. Rodman R. Bundy.

For Malaysia: H.E. Mr. Tan Sri Abdul Kadir Mohamad,
Mr. Jean-Pierre Cot,
Sir Elihu Lauterpacht,
Mr. James Crawford.

%

12. In its Application for permission to intervene, the Government of the
Philippines stated in conclusion that it

“requests the Honourable Court to recognize the propriety and validity of
this Application for permission to intervene in the proceedings between the
Government of the Republic of Indonesia and the Government of Malay-
sia, to grant the same, and to participate in those proceedings in accord-
ance with Article 85 of the Rules of Court” (para. 8).

10
582 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

In its written observations on the Application by the Philippines for permis-
sion to intervene, Indonesia concluded that “the Philippines ha[d] not demon-
strated that it has an interest of a legal nature which may be affected by a
decision in the case and that the Application should, accordingly, be denied”
(para. 17).

In its written observations on the Application by the Philippines for permis-
sion to intervene, Malaysia concluded as follows: “not merely has the Philtp-
pines no right to intervene, it has no claim to make. Malaysia urges the Court
to reject the request.” (Para. 50.)

13. At the oral proceedings, it was stated by way of conclusion that:

On behalf of the Government of the Philippines,
at the hearing of 28 June 2001:

“The Government of the Republic of the Philippines seeks the remedies
provided for in Article 85 of the Rules of Court, namely,

— paragraph 1: ‘the intervening State shall be supplied with copies of the
pleadings and documents annexed and shall be entitled to submit a
written statement within a time-limit to be fixed by the Court’; and

— paragraph 3: ‘the intervening State shall be entitled, in the course of
the oral proceedings, to submit its observations with respect to the sub-
ject-matter of the intervention’.”

On behalf of the Government of Indonesia,
at the hearing of 29 June 2001:

“The Republic of Indonesia respectfully submits that the Republic
of the Philippines should not be granted the right to intervene in the case
concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesial
Malaysia) .”

On behalf of the Government of Malaysia,

at the hearing of 29 June 2001: “[Malaysia requests] that the Court should
reject the Philippines Application”.

« * x

14. The Philippine Application for permission to intervene relates to
the case, brought to the Court by notification of the Special Agreement
concluded on 31 May 1997 between Indonesia and Malaysia, concerning
sovereignty over two islands, Pulau Ligitan and Pulau Sipadan (see para-
graph | above). The intervention which the Philippines seeks to make is
linked to its claim of sovereignty in North Borneo (see paragraph 7
above).

15. In its Application, the Philippines invokes Article 62 of the Statute
of the Court, which provides:

“|. Should a State consider that it has an interest of a legal nature
which may be affected by the decision in the case, it may submit a
request to the Court to be permitted to intervene.

2. It shall be for the Court to decide upon this request.”

16. Paragraph 1 of Article 81 of the Rules of Court provides that the
11
583 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

application for permission to intervene shall “be filed as soon as possible,
and not later than the closure of the written proceedings” and that “[iJn
exceptional circumstances, an application submitted at a later stage may
however be admitted”.

Article 81, paragraph 2, also provides that the State seeking to inter-
vene must specify the case to which its application relates, and 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”.

Paragraph 3 of Article 81 further provides that an application for per-
mission to intervene “shall contain a list of the documents in support,
which documents shall be attached”.

17. The Philippines maintains that its Application to intervene satisfies
both the requirements of Article 62 of the Statute of the Court and those
of Article 81 of the Rules of Court. On the other hand, both Indonesia
and Malaysia oppose the Application by the Philippines on the grounds
that the various requirements have not been met.

*
* *

18. The Court will initially consider the contention that the Applica-
tion to intervene should not be granted, first, because of its late sub-
mission by the Philippines, and secondly, because of the failure of the
Philippines to annex documentary or other evidence in support of
the Application.

xO

19. Both Indonesia and Malaysia argue that the Philippine Applica-
tion should not be granted because of its “untimely nature”.

Indonesia maintains that:

“[in view of the fact that the Parties do not consider that there is
any need for further written submissions on the merits of the case
and that the Philippines’ Application was filed after the final submis-
sions of the Parties, the Application should be dismissed as untimely
pursuant to Article 81 (1) of the Rules of Court”.

It considers that the Philippines “has failed to demonstrate that any . ..
exceptional circumstances exist justifying the filing of its Application at
such a late stage of the proceedings”, and concludes that:

“[t]lo admit the Application at this stage of the proceedings would
inevitably entail a significant delay in the case being heard by the

12
584 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

Court to the prejudice of the Parties. In these circumstances, Indo-
nesia submits that the Philippines’ Application should be dismissed
as untimely.”

At the hearings, Malaysia associated itself in the following terms with
the objection in regard to the alleged procedural delay raised by Indo-
nesia: “That issue has been fully dealt with by Indonesia. We agree with
what they have said; we simply feel no need to add to it.”

For its part, the Philippines argues that “the fact is that not only is the
Philippines within all the time-limits, it could not, as a logical and prac-
tical matter, have submitted its request any sooner”. The Philippines
emphasizes that:

“[in the nature of the case, the Philippines could hardly have
requested permission to intervene under Article 62 before it tried to
secure the documents. And it was only when it became apparent that
the request for the documents was not going to be granted, that the
Philippines requested permission to intervene.”

20. The Court will consider this objection ratione temporis by apply-
ing the relevant requirements of its Rules dealing with the intervention
procedure to the factual circumstances of the case.

Article 81, paragraph 1, of the Rules of Court, referred to above (see
paragraph 16), stipulates that:

“[aln application for permission to intervene under the terms of
Article 62 of the Statute, . . . shall be filed as soon as possible,
and not later than the closure of the written proceedings. In excep-
tional circumstances, an application submitted at a later stage may
however be admitted.”

The Court recalls that the Special Agreement between Indonesia and
Malaysia was registered with the United Nations on 29 July 1998 and
notified to the Court on 2 November 1998. Pursuant to Article 40, para-
graph 3, of the Statute of the Court and Article 42 of the Rules of
Court, copies of the notification and of the Special Agreement were
transmitted to all the Members of the United Nations and other States
entitled to appear before the Court (see paragraph 2 above). Thus, the
Philippines had been aware that the Court had been seised of the dis-
pute between Indonesia and Malaysia for more than two years before it
filed its Application to intervene in the proceedings under Article 62 of
the Statute. By the time of the filing of the Application, 13 March 2001,
the Parties had already completed three rounds of written pleadings as
provided for as mandatory in the Special Agreement — Memorials,
Counter-Memorials and Replies — their time-limits being a matter of
public knowledge. Moreover, the Agent for the Philippines stated dur-
ing the hearings that his Government “was conscious of the fact that
after 2 March 2001, Indonesia and Malaysia might no longer consider

13
585 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

the need to submit a final round of pleadings as contemplated in their
Special Agreement”.

21. Given these circumstances, the time chosen for the filing of the
Application by the Philippines can hardly be seen as meeting the require-
ment that it be filed “as soon as possible” as contemplated in Article 81,
paragraph I, of the Rules of Court. This requirement which, although
when taken on its own might be regarded as not sufficiently specific, is
nevertheless essential for an orderly and expeditious progress of the pro-
cedure before the Court. In view of the incidental character of interven-
tion proceedings, it emphasizes the need to intervene before the principal
proceedings have reached too advanced a stage. In one of the recent
cases, dealing with another type of incidental proceeding the Court
observed that: “the sound administration of justice requires that a request
for the indication of provisional measures . . . be submitted in good time”
(LaGrand (Germany v. United States of America), Provisional Meas-
ures, Order of 3 March 1999, LC.J. Reports 1999 (1), p. 14, para. 19).
The same applies to an application for permission to intervene, and
indeed even more so, given that an express provision to that effect is
included in Article 81, paragraph !, of the Rules of Court.

22, As to the argument of the Philippines that the delay in the filing of
its Application for permission to intervene was caused by its wish first to
secure access to the pleadings of the Parties, the Court does not find any-
thing in its Rules or practice to support the view that there exists an
inextricable link between the two procedures or, for that matter, that the
requirement of the timeliness of the Application for permission to inter-
vene may be made conditional on whether or not the State seeking to
intervene is granted access to the pleadings. Furthermore, the Philippine
argument is undermined by the fact that the Philippines asked the Court
to furnish it with copies of the pleadings and other documents of the
Parties only on 22 February 2001, that is less than ten days before the
completion of the last compulsory round of written pleadings. It is not
unusual in the practice of the Court that in reliance on Article 53, para-
graph 1, of its Rules, States entitled to appear before the Court ask to be
furnished with copies of the pleadings of the Parties at an early stage of
the written proceedings (see, for example, case concerning the Continen-
tal Shelf (TunisialLibyan Arab Jamahiriya), Application for Permission
to Intervene, Judgment, I. C.J. Reports 1981, p. 5, para. 4; case concern-
ing Continental Shelf (Libyan Arab Jamahiriyal Malta), Application for
Permission to Intervene, Judgment, 1 C.J. Reports 1984, p. 5, para. 4).

23. The Court notes, however, that despite the filing of the Applica-
tion at a late stage in the proceedings, which does not accord with the
stipulation of a general character contained in Article 81, paragraph 1, of
the Rules requiring that “[a]n application for permission to intervene . . .
shall be filed as soon as possible”, the Philippines cannot be held to be
in violation of the requirement of the same Article, which establishes a

14
586 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

specific deadline for an application for permission to intervene, namely
“not later than the closure of the written proceedings”.

24. It will be recalled that the Special Agreement provided for the pos-
sibility of one more round of written pleadings — the exchange of
Rejoinders — “if the Parties so agree or if the Court decides so ex officio
or at the request of one of the Parties”. It was only on 28 March 2001
that the Parties notified the Court by joint letter “that [their] Govern-
ments .. . ha[d] agreed that it is not necessary to exchange Rejoinders”.

Thus, although the third round of written pleadings terminated on
2 March 2001, neither the Court nor third States could know on the date
of the filing of the Philippine Application whether the written proceed-
ings had indeed come to an end. In any case, the Court could not have
“closed” them before it had been notified of the views of the Parties con-
cerning a fourth round of pleadings contemplated by Article 3, para-
graph 2 (d), of the Special Agreement. Even after 28 March 2001, in
conformity with the same provision of the Special Agreement, the Court
itself could ex officio “authoriz[e] or prescrib[e] the presentation of a
Rejoinder”, which the Court did not do.

25. For these reasons, the filing of the Philippine Application on
13 March 2001 cannot be viewed as made after the closure of the written
proceedings and remained within the specific time-limit prescribed by
Article 81, paragraph 1, of the Rules of Court.

In somewhat similar circumstances, dealing with the Nicaraguan Appli-
cation for permission to intervene in the case concerning the Land, Island
and Maritime Frontier Dispute (El Salvadorl Honduras), a Chamber of
the Court found that, since the Special Agreement included a provision
for a possible further exchange of pleadings, even when the Replies of the
Parties had been filed, “the date of the closure of the written proceedings,
within the meaning of Article 81, paragraph 1, of the Rules of Court,
would remain still to be finally determined” (Z C.J. Reports 1990, p. 98,
para. 12). The Court had pronounced itself in similar terms some ten
years earlier in the case concerning the Continental Shelf { Tunisial Libyan
Arab Jamahiriya), Application for Permission to Intervene, Judgment
(C.J. Reports 1981, p. 6, para. 5), although in the latter proceedings the
question of timeliness was not in issue.

26. The Court therefore concludes that it cannot uphold the objection
raised by Indonesia and Malaysia based on the alleged untimely filing of
the Philippine Application.

* OR

27. Article 81, paragraph 3, of the Rules of Court provides that an
application for permission to intervene “shall contain a list of documents
in support, which documents shall be attached”. In relation to this
requirement, Indonesia argues in its written observations that

15
587 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

“in so far as it is claimed that the Philippines’ request is directed to
safeguarding its historical and legal rights over the territory of North
Borneo, such an alleged interest is unsupported by any documentary
or other evidence contrary to the requirements of Article 81 (3) of
the Rules of Court”.

For its part, Malaysia submitted no argument on this point.

28. The Philippines states that the fact that it has not annexed a list of
documents in support of its Application does not concern the question of
the admissibility of the Application, but rather that of evidence. It main-
tains that it was left with only two options: either “to try to document
and argue [its] entire case for North Borneo, which would be impermis-
sible and would be an affront to the Court, and would, [it] believe[s],
properly be rejected by the Court” or “to decide not to attach documents,
since [it] could not know which ones would be relevant to the pending
case”, with the risk that, in the latter case, one of the Parties would then
complain about the failure to annex documents.

29. The Court confines itself to observing in this regard that, while
Article 81, paragraph 3, of the Rules of Court indeed provides that the
application shall contain a list of any documents in support, there is no
requirement that the State seeking to intervene necessarily attach any
documents to its application in support. It is only where such documents
have in fact been attached to the said application that a list thereof must
be included. A Chamber of the Court took care to emphasize, “it is for a
State seeking to intervene to demonstrate convincingly what it asserts,
and thus to bear the burden of proof” (Lund, Island and Maritime Fron-
tier Dispute (El Salvador!Honduras), Application to Intervene, Judg-
ment, LC.J. Reports 1990, p. 117, para. 61). The Court considers, how-
ever, that the choice of the means whereby the State wishing to intervene
seeks to prove its assertions lies in the latter’s sole discretion. In the
Court's view, paragraph 3 of Article 81 of its Rules has the same pur-
pose, mutatis mutandis, as paragraph 3 of Article 50 of the said Rules,
which provides that “[a] list of all documents annexed to a pleading shall
be furnished at the time the pleading is filed”. It follows that the Philip-
pine Application for permission to intervene cannot be rejected on the
basis of Article 81, paragraph 3, of the Rules of Court.

* *

30. The Court therefore concludes that the Philippine Application was
not filed out of time and contains no formal defect which would prevent
it from being granted.

16
588 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

31. The Court will now consider the objections based on the absence
of a jurisdictional link.
32. In this regard, Malaysia contends that:

“in the present case the jurisdictional link is . . . twice lacking.

First, there is no conventional instrument or unilateral declaration
giving the Court jurisdiction to adjudicate upon the territorial dis-
pute between the Philippines and either one of the Parties to the case;

Second, both Parties in the present case oppose a request for inter-
vention by the Philippines.”

Accordingly, it argues that the Philippine Application cannot be
accepted by the Court.

Indonesia presented no argument in this respect.

33. For its part, the Philippines has made it clear that it does not seek
to become a party to the dispute submitted to the Court by Indonesia
and Malaysia. It further states that its Application for permission to
intervene “is based solely on Article 62 of the Statute, which does not
require a separate title of jurisdiction as a requirement for this Applica-
tion to prosper”, and that accordingly it should be granted.

34. The Court recalls that, under the terms of Article 62 of the Statute:

“L Should a State consider that it has an interest of a legal nature
which may be affected by the decision in the case, it may submit a
request to the Court to be permitted to intervene.

2. It shall be for the Court to decide upon this request.”

35. As a Chamber of the Court has already had occasion to observe:

“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 tack on a new case .. . An incidental proceeding can-
not be one which transforms [a] case into a different case with dif-
ferent parties.” (Land, Island and Maritime Frontier Dispute (El Sal-
vadorl Honduras), Application to Intervene, Judgment, .C.J. Reports
1990. pp. 133-134, paras. 97-98.)

Moreover, as that same Chamber pointed out, and as the Court itself
has recalled:

“It... follows... from the juridical nature and from the purposes
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
intervention is to ensure that a State with possibly affected interests
may be permitted to intervene even though there is no jurisdictional
link and it therefore cannot become a party.” (/bid., p. 135, para. 100:
Land and Maritime Boundary between Cameroon and Nigeria, Appli-
589 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

cation to Intervene, Order of 21 October 1999, I C.J. Reports 1999
(11), pp. 1034-1035, para. 15.)

Thus, such a jurisdictional link between the intervening State and the
Parties to the case is required only if the State seeking to intervene is
desirous of “itself becoming a party to the case” (Land, Island and Mari-
time Frontier Dispute (El Sulvador/ Honduras), Application to Intervene,
Judgment, I.C.J. Reports 1990, p. 135, para. 99).

36. That is not the situation here. The Philippines is seeking to inter-
vene in the case as a non-party. Hence the absence of a jurisdictional link
between the Philippines and the Parties to the main proceedings does not
present a bar to the Philippine intervention.

*
* *

37. The Court will now consider the arguments that the Application to
intervene cannot be granted for the reasons, first, that the Philippines has
not established the existence of an “interest of a legal nature” justifying
the intervention sought, and, secondly, that the object of the intervention
would be inappropriate.

* *

38. In relation to the existence of an “interest of a legal nature” justi-
fying the intervention, the Philippines contends that:

“Under Article 2 of the Special Agreement between the Govern-
ment of the Republic of Indonesia and the Government of Malaysia,
the Court has been requested to determine the issue of sovereignty
over Pulau Ligitan and Pulau Sipadan ‘on the basis of treaties,
agreements and any other evidence’ to be furnished by the Parties.
The interest of the Republic of the Philippines is solely and exclu-
sively addressed to the treaties, agreements and other evidence fur-
nished by Parties and appreciated by the Court which have a direct
or indirect bearing on the matter of the legal status of North Borneo.
The legal status of North Borneo is a matter that the Government of
the Republic of the Philippines considers as its legitimate concern.”

The Philippines adds that

“[a] decision by the Court, or that incidental part of a decision by
the Court, which lays down an appreciation of specific treaties,
agreements and other evidence bearing on the legal status of North
Borneo will inevitably and most assuredly affect the outstanding ter-
ritorial claim of the Republic of the Philippines to North Borneo, as
well as the direct legal right and interest of the Philippines to settle
that claim by peaceful means”.

18
590 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

In outlining its claim, the Philippines has referred inter alia to Sec-
tion 3 of the Republic Act 5446 (which makes an implicit allusion to a
claim to title in North Borneo) and to the Manila Accord of 31 July 1963,
between Indonesia, the Federation of Malaya and the Philippines, in
which specific reference is made to the Philippine claim to North Borneo
and “cognizance of the position regarding the Philippine claim to Sabah
(North Borneo)” is taken by the Heads of Government of these three
States.

39. The Philippines refers to the fact that access to the pleadings and to
the annexed documents filed by the Parties was denied to it by the Court
and indicates that it thereby suffered from a handicap not encountered by
intervening States in previous cases of intervention brought before the
Court; it contends that it therefore could not “say with any certainty
whether and which treaties, agreements and facts are in issue”. The Phil-
ippines argues that “[flor some cases, the publication of [a] special agree-
ment, in and of itself, is enough to convince the third State that its interest
may be affected” and offers as an example a special agreement between
two States requesting the Court to delimit a comprehensive maritime
boundary; in such a case a third State can easily determine on the basis of
the special agreement whether the prospective delimitation may poten-
tially affect an interest of a legal nature of that third State. The Philip-
pines argues that, on the other hand, “when the possibility of a decision
affecting an interest of a third State is not certain and not graphic and is
contingent on further information and specifications, the mere publication
of the special agreement may not provide sufficient information”. Accord-
ing to the Philippines, a procedure whereby an intervening State must
define and establish the interest of a legal nature in question without being
authorized to have notice of the written briefs submitted by the parties to
the case would be equivalent to a denial of justice.

The Philippines asserts that as long as it does not have access to the
documents filed by the Parties and does not know their content, it will
not be able to explain really what its interest is.

40. The Philippines emphasizes that “Article 62 does not say that
the intervening State must have a ‘legal interest’ or ‘lawful interest’ or
‘substantial interest’”, and that the “threshold for the invocation of
Article 62 is, as a result, a subjective standard: the State requesting
permission to intervene must ‘consider’ that it has an interest”. The
Philippines asserts that “[t]he criteria are not to prove a legal or lawful
interest, but to ‘identify the interest of a legal nature’ and ‘to show in
what way [it] may be affected’”. In this regard, the Philippines maintains
that

“In so far as any treaty or agreement that Malaysia is relying on
in the present case to sustain its claim to Ligitan and Sipadan
depends on the interpretation that lodges international title to North
Borneo in the British North Borneo Company, that interpretation
591 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

adversely affects an interest of a legal nature which the Philippines
considers that it has.”

The Philippines states that it agrees

“entirely with the jurisprudence of the Court in Tunisia/Libya and
Nicaragua that a concern about rules and general principles of law
does not constitute sufficient interest under Article 62”,

but argues that, in the case in hand, it is not a question of general prin-
ciples of law but of specific treaties relating to a territory, which have an
effect on the Philippines.

41. The Philippines further indicates that the statements made by Indo-
nesia and Malaysia during the public hearing “provide evidence that the
Court will be presented with many of the treaties and agreements upon
which the Philippines claim is based and will be pressed to adopt
interpretations that will certainly affect the Philippine interest”. It states
that it

“find[s] nothing in the precedents about the permissible scope of an
intervention being determined by the language of the submission,
but rather by the possible consequence of the Court’s decision. The
test is not connective, but consequential; not whether there is a ‘con-
nection’ to the submission — whatever that means — but whether
the decision of the Court could affect the interest of a legal nature of
a third State.”

The Philippines submits that, on the basis of that part of the record to
which it has been allowed access, “the probability of consequences for the
interests of the Philippines meets the ‘may’ requirements of Article 62
and justifies Philippine intervention”. It adds that

“Evidently, the chain of title which Malaysia asserts to defend its
territorial claim to Sipadan and Ligitan, based as it is on its own
interpretations of, and representations on, specific treaties, agree-
ments and other documents, is linked to the chain of title which the
Philippines relies on to defend its territorial claim to North Borneo.”

The Philippines also argues that it has cited three of the four legal
instruments, which have been relied upon by one or both of the Parties to
prove their case, in the context of the overall argument that it wanted to
make.

The Philippines points out that it “has a direct legal interest in the
interpretation of the 1930 United States-United Kingdom boundary,
being the successor-in-interest of one party to that agreement, the United
States”, that “the 1930 Agreement cannot be construed in any way as an

20
592 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

instrument of cession”, and that “Britain could not have acquired
sovereignty over Pulau Sipadan and Pulau Ligitan by virtue of the inter-
pretation placed by Malaysia on the 1930 United States-United King-
dom Agreement”; it follows from this that “the two islands in question
were acquired by the United Kingdom in 1930 for and on behalf of the
Sultan of Sulu”.

The Philippines further states that “the territory ceded by the Sultan to
the Philippines in 1962 covered only those territories which were included
and described in the 1878 Sulu-Overbeck lease agreement”, that its
“Application for permission to intervene is based solely on the rights of
the Government of the Republic of the Philippines transferred by and
acquired from the Sulu Sultanate’, and that “If at all there are other ter-
ritories appertaining to the Sultanate not covered by the Sulu-Overbeck
lease of 1878, the Philippines, as agent and attorney for the Sultanate,
has reserved its position on these territories”.

The Philippines concludes that:

“any claim or title to territory in or islands near North Borneo that
assumes or posits or purports to rest a critical link on the legitimate
sovereign title of Great Britain from 1878 up to the present is un-
founded. Similarly, the interpretation of any treaty, agreement or
document concerning the legal status of North Borneo as well as
islands off the coast of North Borneo which would presume or take
for granted the existence of British sovereignty and dominion over
these territories has no basis at all in history as well as in law and, if
upheld by the Court, it would adversely affect an interest of a legal
nature on the part of the Republic of the Philippines.”

42. For its part, Indonesia denies that the Philippines has an “interest
of a legal nature”. It states that

“the subject-matter of the dispute currently pending before the Court
is limited to the question whether sovereignty over the islands of
Ligitan and Sipadan belongs to Indonesia or Malaysia. In its Appli-
cation for permission to intervene, the Philippines expressly states
that it is not its intention to change the scope of the dispute sub-
mitted by Indonesia and Malaysia to the Court.”

It recalls that on 5 April 2001, the Government of the Philippines sent a
diplomatic Note to the Government of Indonesia in which, referring to
the ongoing case between Indonesia and Malaysia, it wished to reassure
the Government of Indonesia that the Philippines does not have “any ter-
ritorial interest on Sipadan and Ligitan islands”.

Indonesia then contends that

“It is evident from this [note] that the Philippines raises no claim
with respect to Pulau Ligitan and Pulau Sipadan. It therefore fol-

21
593

PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

lows that the Philippines has expressly disavowed any interest of a
legal nature in the actual subject-matter of the dispute currently
pending between Indonesia and Malaysia. In its Application, the
Philippines asserts instead that its interest ‘is solely and exclusively
addressed to the treaties, agreements and other evidence furnished
by the Parties and appreciated by the Court which have a direct or

LEE)

indirect bearing on the matter of the legal status of North Borneo’.

It maintains that

“The legal status of North Borneo is not a matter on which the
Court has been asked to rule. Moreover, the desire of the Philippines
to submit its view on various unspecified ‘treaties, agreements and
other evidence furnished by the Parties’ is abstract and vague.”

Indonesia adds that:

“The reply to the question submitted to the Court in the Special
Agreement will rest entirely ‘on the interpretation of the Convention
of 20 June 1891, concluded by Great Britain and the Netherlands.
Spain was not a party to the Convention. The Convention is res
inter alios acta as far as the Philippines is concerned’ . . . The Phil-
ippines is therefore doubly ‘protected’... by Article 59 of the Stat-
ute of the Court, on the one hand, and by the fundamental principle
that treaties bind the contracting States only, on the other. It may
even be triply protected, since the interpretation of the Convention
which .. . Members of the Court are called upon to give concerns
only its application to Ligitan and Sipadan — there is no dispute
between Indonesia and Malaysia with regard to its application to the
island of Borneo. Since the Philippines limits its interest to the island
of Borneo, expressly excluding Ligitan and Sipadan, it is in a sense
also protected by the petitum as defined in the Special Agreement.

In any event, it is apparent from the clear, amply founded juris-
prudence of the Court that the ‘interest’ claimed by the Philippines
in the treaties, agreements and other evidence furnished by the
Parties is not such as might justify an intervention pursuant to
Article 62 of the Statute.”

43. With reference to the question of the Philippine interest of a legal
nature which may be affected by the decision in the case, Malaysia argues

that

22

“(t}hat legal interest must be precisely identified, then compared with
[the Court’s] mandate as it appears from the document of seisin, in
the present instance the Special Agreement”
594 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

and that

“ijt is thus not a matter of citing some general legal interest, but of
proving it in relation to ‘each of the different issues which might fall
to be determined’, to quote the words used by [the] Chamber [in the
case concerning the Land, Island and Maritime Frontier Dispute
(El Salvador! Honduras), Application to Intervene]”.

Malaysia then contends that:

“the Philippines does not indicate how the decision . . . that the
Court is asked to take on the issue of sovereignty over Ligitan and
Sipadan might affect any specific legal interest. It is content to refer
vaguely to the ‘treaties, agreements and other evidence’ on which the
Court might ‘lay down an appreciation’. But . . . the interest of a
legal nature must, if affected, be so affected by the decision of the
Court and not just by its reasoning. Such appreciation as the Court
may be led to make of the effect of a particular legal instrument, or
of the consequences of a particular material fact, as grounds for its
decision cannot, in itself, serve to establish an interest of a legal
nature in its decision in the case.

It is another provision of the Statute, Article 59, that protects the
general legal interests of non-party States by specifying the limits on
the authority of the Court’s decision. By stating that ‘the decision of
the Court has no binding force except between the parties and in
respect of that particular case’, Article 59 ensures full legal protec-
tion of third parties, including in regard to any appreciation of trea-
ties, agreements or evidence relied upon by the parties to the case.”
(Emphasis in the original.)

Malaysia further contends that “the issue of sovereignty over Ligitan
and Sipadan is completely independent of that of the status of North Bor-
neo”, and that “[t]he territorial titles are different in the two cases”.
Malaysia therefore “does not accept that the Philippines possess any
‘historical and legal rights’ of a kind that could be affected by any deci-
sion of the Court relating to sovereignty over the disputed islands”.

Malaysia finally emphasizes that, in its view, “the Government of the
Philippines itself agrees that it has no legal interest”; it refers in this
regard to the diplomatic note of 5 April 2001 sent by the Embassy of the
Philippines in Jakarta to the Ministry of Foreign Affairs of the Republic
of Indonesia, in which the Government of the Philippines stated that it
did not have “any territorial interest on Sipadan and Ligitan islands”. It
concludes from this that

“[The Court] must therefore dismiss this request for intervention
in limine litis, since [its] decision can address only the issue of sov-
ereignty over Ligitan and Sipadan and affect only legal interests with
respect to these two islands. To grant this request for intervention by

23
595 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

the Philippines would be to allow extension of the judicial debate to
another issue altogether, namely that of sovereignty over Northern
Borneo.”

In this regard, Malaysia also contends that in the previous practice of the
Court, States have been allowed to intervene where they claimed part of
the area which was in dispute in the case, but that, by contrast, when a
State does not claim particular territory it has not been allowed to inter-
vene, even though it said that the Court’s decision on the territory might
impact on it in some way.

*

44, The Philippines has informed the Court that it has a claim of sov-
ereignty in North Borneo. It stated that, prior to the arrival in Borneo of
the European Powers, title, at least to part of Sabah lay with the Sultan-
ate of Sulu. A grant was made by the Sultan to Messrs. Overbeck and
Dent on 22 January 1878 in that part (which grant the Philippines
acknowledges not to have included Pulau Ligitan and Pulau Sipadan).
The Philippines has described this instrument as the “primary source” of
its historic title and takes the view that it provided for a lease of territory
but not a cession. The Philippines claims the Sultanate and its heirs
retained title to that part of North Borneo throughout the period 1878 to
1962, notwithstanding the assignment of powers of administration to the
British North Borneo Company (hereinafter “BNBC”). In 1962, accord-
ing to the Philippines, it acquired title to this territory through cession by
the heirs of the Sultan of Sulu.

45. The Court recalls that, on 5 April 2001, the Philippines sought, in
a Diplomatic Note sent to Indonesia, “to reassure the Government of the
Republic of Indonesia that it does not have any territorial interest on
Sipadan and Ligitan islands” (see paragraphs 42-43 above). This position
was confirmed by the Philippines before this Court. The Philippines
states that its claim of sovereignty in North Borneo is not affected
by whether the Court affirms sovereignty over the islands as lying with
Indonesia, or alternatively with Malaysia. However, the Philippines has
informed the Court that its claim of sovereignty in North Borneo might
be affected by any reasoning of the Court, whether in interpreting treaties
in issue between Indonesia and Malaysia or otherwise, that would affirm
that the BNBC had had sovereignty in North Borneo.

46. Indonesia and Malaysia contend that the existence of an interest
of a legal nature in the very subject-matter of the case is a condition
precedent for the Court to allow an intervention under Article 62.

In that regard, the Court will at the outset consider whether a third
State may intervene under Article 62 of the Statute in a dispute brought

24
596 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

to the Court under a special agreement, when the State seeking to inter-
vene has no interest in the subject-matter of that dispute as such, but
rather asserts an interest of a legal nature in such findings and reasonings
that the Court might make on certain specific treaties that the State seek-
ing to intervene claims to be in issue in a different dispute between itself
and one of the two Parties to the pending case before the Court.

47. The Court must first consider whether the terms of Article 62 of
the Statute preclude, in any event, an “interest of a legal nature” of the
State seeking to intervene in anything other than the operative decision
of the Court in the existing case in which the intervention is sought. The
English text of Article 62 refers in paragraph | to “an interest of a legal
nature which may be affected by the decision in the case”. The French
text for its part refers to “un intérêt d'ordre juridique... en cause” for the
State seeking to intervene. The word “decision” in the English version of
this provision could be read in a narrower or a broader sense. However,
the French version clearly has a broader meaning. Given that a broader
reading is the one which would be consistent with both language versions
and bearing in mind that this Article of the Statute of the Court was
originally drafted in French, the Court concludes that this is the inter-
pretation to be given to this provision. Accordingly, the interest of a legal
nature to be shown by a State seeking to intervene under Article 62 is not
limited to the dispositif alone of a judgment. It may also relate to the
reasons which constitute the necessary steps to the dispositif.

48. Having reached this conclusion, the Court must now consider the
nature of the interest capable of justifying an intervention. In particular,
it must consider whether the interest of the State seeking to intervene
must be in the subject-matter of the existing case itself, or whether it may
be different and, if so, within what limits.

49. In the majority of the applications for permission to intervene that
have come before the Court, the applicant has claimed to have an interest
in the very subject-matter of the dispute or the territory in which a
delimitation is to be effected. Further, in the two cases where a request
for intervention under Article 62 has been authorized by the Court, that
authorization was in respect of an interest related to the subject-matter of
the dispute (Land, Island and Maritime Frontier Dispute (EI Salvador!
Honduras), Application to Intervene, Judgment, 1.C.J. Reports 1990,
p. 121, para. 72: Nicaragua’s rights in the Gulf of Fonseca necessarily
being affected by the definition of a condominium; Land and Maritime
Boundary between Cameroon and Nigeria, Application to Intervene, Order
of 21 October 1999, LC.J. Reports 1999 (I), p. 1029: Equatorial
Guinea’s maritime rights could be affected by the determination by the
Court of the maritime boundary between Cameroon and Nigeria).

50. In 1981 Malta, seeking to intervene, invoked an interest of a legal
nature which:

25
597 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

“does not relate to any legal interest of its own directly in issue as
between Tunisia and Libya in the present proceedings or as between
itself and either one of those countries. It concerns rather the poten-
tial implications of reasons which the Court may give in its deci-
sion in the present case on matters in issue as between Tunisia and
Libya . . .” (Continental Shelf (TunisialLibyan Arab Jamahiriya),
Application to Intervene, Judgment, LC.J. Reports 1981, p. 12,
para. 19.)

51. The Court specified that Malta thought that any pronouncements
on special circumstances or on equitable principles in that particular
region would be certain, or very likely, to affect Malta’s own rights on
the continental shelf:

“what Malta fears is that in its decision in the present case the
reasoning of the Court . .. may afterwards have a prejudicial effect
on Malta’s own legal interests in future settlement of its own conti-
nental shelf boundaries with Libya and Tunisia” (Continental Shelf
(TunisialLibyan Arab Jamahiriya), Application to Intervene, Judg-
ment, LC.J. Reports 1981, p. 17, para. 29).

52. The Court did not, however, find this a pertinent factor in deciding
whether or not to allow Malta to intervene. The Court noted that a State
could not hope to intervene “simply on an interest in the Court’s pro-
nouncements in the case regarding the applicable general principles and
tules of international law” (Continental Shelf (TunisialLibyan Arab
Jamahiriya), Application to Intervene, Judgment, L.C.J. Reports 1981,
p. 17, para. 30). But the interest in the Court’s findings and pronounce-
ments was not in that case such a generalized interest. The Court thus
turned to an examination of the interests that Malta had specified, not-
withstanding that they did not lie in the very outcome of the case.

53. Malta’s Application was rejected, but not on the grounds that its
expressed intention did not fall within the scope of the dispute as defined
in the Special Agreement. Malta’s Application to intervene was not
granted because the Court felt it was in effect being asked to prejudge the
merits of Malta’s claim against Tunisia in a different dispute, which
Malta had nonetheless not put before the Court.

54, The situation is different in the present case. Indeed, the Court
considers that the request of the Philippines to intervene does not require
the Court to prejudge the merits of any dispute that may exist between
the Philippines and Malaysia, and which is not before the Court.

55. Whether a stated interest in the reasoning of the Court and any
interpretations it might give is an interest of a legal nature for purposes
of Article 62 of the Statute can only be examined by testing whether the
legal claims which the State seeking to intervene has outlined might be
thus affected. Whatever the nature of the claimed “interest of a legal
nature” that a State seeking to intervene considers itself to have (and pro-

26
598 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

vided that it is not simply general in nature) the Court can only judge it
“in concreto and in relation to all the circumstances of a particular case”
(Chamber of the Court in Land, Island and Maritime Frontier Dispute
(El Salvador/Honduras), Application to Intervene, Judgment, LC J.
Reports 1990, p. 118, para. 61).

56. Thus, the Court will now proceed to examine whether the Philip-
pine claim of sovereignty in North Borneo could or could not be affected
by the Court’s reasoning or interpretation of treaties in the case concern-
ing Pulau Ligitan and Pulau Sipadan.

*

57. It is recalled that the Philippines contended that “[t]he threshold
for the invocation of Article 62 is . . . a subjective standard: the State
requesting permission to intervene must ‘consider’ that it has an interest”
of a legal nature (see paragraph 40 above). The Philippines acknowledged
that, having thus invoked Article 62, “the State requesting permission to
intervene must identify the interest in question and relate it to the case at
Bar”.

58. As the Chamber said in the case concerning the Land, Island and
Maritime Frontier Dispute (El Salvador! Honduras), “it is for a State
seeking to intervene to demonstrate convincingly what it asserts”.
Further, “[ilt 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”
(LC.J, Reports 1990, pp. 117-118, para. 61).

59. The Court would add that a State which, as in this case, relies on
an interest of a legal nature other than in the subject-matter of the case
itself necessarily bears the burden of showing with a particular clarity the
existence of the interest of a legal nature which it claims to have.

60. In order to make concrete its submission that it has an interest of
a legal nature which might be harmed by the reasoning of the Court in
the forthcoming Judgment as to sovereignty over Pulau Ligitan and
Pulau Sipadan, the Philippines may not introduce a new case before the
Court nor make comprehensive pleadings thereon, but must explain with
sufficient clarity its own claim of sovereignty in North Borneo and the
legal instruments on which it is said to rest, and must show with adequate
specificity how particular reasoning or interpretation of identified treaties
by the Court might affect its claim of sovereignty in North Borneo.

61. Basing itself on Article 53, paragraph |, of the Rules of the Court,
the Philippines submitted to the Court on 22 February 2001 a request to
be provided with the pleadings and documents annexed by Indonesia and
Malaysia in their written pleadings. After ascertaining the views of the

27
599 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

Parties, the Court decided that it was not appropriate to accede to the
Philippine request. This decision was communicated to the Philippines,
Indonesia and Malaysia by letters dated 15 March 2001 (see paragraph 6
above).

62. The Philippines has strongly protested that it is severely and
unfairly hampered in “identifying” and “showing” its legal interest in the
absence of access to the documents in the case between Indonesia and
Malaysia (see paragraph 39 above). Indeed, it has stated to the Court
that “as long as we do not have access to the submissions of the Parties
and don’t know their contents, we can not really explain what our inter-
est is”. The Philippines observes that since the written pleadings in the
case between Indonesia and Malaysia have not yet been made accessible
to the public, it was not until the oral phase of the present proceedings
that the two Parties publicly stated which treaties they considered to be in
issue in their respective claims to Pulau Ligitan and Pulau Sipadan. Its
request for access to the pleadings not having been granted by the Court,
the Philippines maintains that it does not know (save in so far as it has
emerged through these proceedings) the precise reliance that either Malay-
sia or Indonesia places on any one of these instruments. The Philippines
also observed, during the oral phase of these proceedings, that not only
do Malaysia and Indonesia seem to have different views on certain of
these treaties, but that they do not have identical views as to whether
some treaties that the Philippines regards as relevant to its own different
claim do indeed have legal significance for the disposition of Pulau
Ligitan and Pulau Sipadan.

63. The Court observes, however, that the Philippines must have full
knowledge of the documentary sources relevant to its claim of sover-
eignty in North Borneo. While the Court acknowledges that the Philip-
pines did not have access to the detailed arguments of the Parties as
contained in their written pleadings, this did not prevent the Philippines
from explaining its own claim, and from explaining in what respect any
interpretation of particular instruments might affect that claim.

64. In outlining that claim, for purposes of showing an interest of a
legal nature that might be affected by the reasoning or interpretation
of the Court in the dispute over Pulau Ligitan and Pulau Sipadan, the
Philippines has emphasized the importance of the instrument entitled,
in English translation, “Grant by Sultan of Sulu of territories and lands
on the mainland of the island of Borneo”, dated 22 January 1878 (here-
inafter the “Sulu-Overbeck grant of 1878”).

65. This instrument which bears the official seal of the Sultan of Sulu
is said by the Philippines to be its “primal source” of title in North

28
600 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

Borneo. The Philippines interprets the instrument as a lease and not as a
cession of sovereign title. It also acknowledges that the territorial scope
of the instrument described in its first paragraph (“together with all the
islands which lie within nine miles from the coast”) did not include Pulau
Ligitan and Pulau Sipadan.

66. The Court observes, however, that the Philippine claims of sover-
eignty, as shown on the map presented by the Philippines during the oral
proceedings, do not coincide with the territorial limits of the grant by the
Sultan of Sulu in 1878. Moreover, the grant of 1878 is not in issue as
between Indonesia and Malaysia in the case, both agreeing that Pulau
Ligitan and Pulau Sipadan were not included in its reach. Also, the ques-
tion whether the 1878 grant is to be characterized as a lease or a cession
does not form part of the claim to title of either Party to the islands in
issue. Neither Indonesia nor Malaysia relies on the 1878 grant as a source
of title, each basing its claimed title upon other instruments and events.

67. The burden which the Philippines carries under Article 62, to show
the Court that an interest of a legal nature may be affected by any inter-
pretation it might give or reasoning it might adduce as to its “primal
source” of title, is thus not discharged.

68. The Philippines supplements its contention that sovereignty in
North Borneo was retained by the Sultanate of Sulu by means of cited
extracts from British State Papers of the late nineteenth century and the
first part of the twentieth century.

69. The 7 March 1885 Protocol between Great Britain, Germany and
Spain, recognizing the sovereignty of Spain over the Archipelago of Sulu
(Jolé), and by which Spain renounced “as far as regards the British Gov-
ernment, all claims of sovereignty over the territories of the continent of
Borneo, which belong, or which have belonged in the past, to the Sultan
of Sulu”, is said by the Philippines to have great importance for its claim.
This is because — in the Philippine view — this Protocol too made clear
that sovereignty in North Borneo lay with Sultans and not with the Brit-
ish Crown. However, neither Malaysia nor Indonesia base their claims to
Pulau Ligitan and Pulau Sipadan on the Protocol. It is not to be envis-
aged that either through its reasoning or through interpretation any legal
interests as articulated by the Philippines may be affected.

70. The Philippines has also explained to the Court its view that the
Royal Charter of 1 November 1881, incorporating the BNBC, clearly
shows that the BNBC was not itself invested with a sovereign character.
The Philippines also finds support for its claim of sovereignty in North
Borneo in the Agreement of 12 May 1888 between the British Govern-

29
601 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

ment and the BNBC, and especially Article II] thereof, which provided
that “The relations between the State of North Borneo and all foreign
States .. . shall be conducted by Her Majesty’s Government.” The Phil-
ippines advances comparable views as to the Confirmation by the Sultan
of Sulu of the Cession of Certain Islands, dated 22 April 1903, asserting
that this instrument shows a continuing and uninterrupted sovereignty of
the Sultan of Sulu over the mainland of North Borneo as well as islands
lying off that coast.

Neither of these agreements is regarded by the Parties to the main pro-
ceedings as founding title to Pulau Ligitan and Pulau Sipadan. Their
claims do not implicate the precise status of rule in North Borneo at this
period. Accordingly, the Philippines has not demonstrated any interest of
a legal nature that could be affected in relation to these agreements, and
which might warrant intervention under Article 62 of the Statute.

71. Certain other instruments to which the Court was referred by the
Philippines do appear to have a certain relevance not only to the Philip-
pine claims of sovereignty in North Borneo, but also to the question of
title to Pulau Ligitan and Pulau Sipadan. The Philippine interest in the
20 June 1891 Convention, concluded between Great Britain and the
Netherlands for the purpose of defining boundaries in Borneo, lies in
noting that while the Convention set boundaries defining “Netherlands
possessions” and “British Protected States”, the “State of North Borneo”
was indeed one of the British Protected States.

72. Indonesia does claim Pulau Ligitan and Pulau Sipadan under the
same Convention. In particular, it contends that, for various reasons,
Article 4 of that Convention should be read as extending into the sea on
the latitude 4° 10’ north mentioned therein. Thus, in Indonesia’s view,
islands to the south of that parallel, such as Pulau Ligitan and Pulau
Sipadan, did not belong after 1891 to the State of North Borneo, but to
the Netherlands. Malaysia offers various grounds for rejecting that inter-
pretation of Article 4.

73. In resolving the disputed interpretation of Article 4, the Court has
no need to pronounce upon the precise nature of the British interests
lying to the north of latitude 4° 10’. Notwithstanding that the 1891 Con-
vention may be said to have a certain relevance for Indonesia, Malaysia
and the Philippines, the Philippines has demonstrated no legal interest
that could be affected by the outcome or reasoning in the case between
Indonesia and Malaysia.

74. The Philippines has also explained to the Court its view that the
Exchange of Notes on 3 July and 10 July 1907 between Great Britain and
the United States, relating to the administration of certain islands on the
east cost of Borneo by the BNBC, again shows that Great Britain was
acting in a capacity other than as sovereign over North Borneo. While

30
602 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

this Exchange of Notes is also of a certain interest for Malaysia, it relies
on the exchange as evidence that the two islands it disputes with Indo-
nesia were at that time historically and administratively tied to North
Borneo. The precise status of the legal ties in 1907 is not central to
Malaysia’s claims. Accordingly, no interest of a legal nature that requires
an intervention under Article 62, to present their interpretation of the
1907 Exchange of Notes, has been shown by the Philippines.

75. The 2 January 1930 Convention between Great Britain and the
United States regarding the boundary between the Philippine Archi-
pelago and North Borneo may assume a somewhat greater significance
for these proceedings.

76. One of Malaysia’s arguments appears to be that the BNBC’s right
of administration of the islands was, by the terms of the 1930 Conven-
tion, converted into a full right of sovereignty.

77. Itis recalled that the Philippines, commenting on this Convention,
stated that it follows from the sovereignty held by the Sultan of Sulu over
North Borneo that the attribution of islands to the south and west of the
described line was on behalf of the Sultan of Sulu (see paragraph 41
above); and that this is supported by the text.

78. The Court notes that the 1930 Convention, which delimits the
boundary between the Philippine Archipelago (under United States sov-
ereignty) and the State of North Borneo (under British protection), has
as its particular object the determination of which of the islands in the
region “belong” to the United States on the one hand and to the State of
North Borneo on the other. This Convention does not appear to the
Court at this stage of the proceedings to concern the legal status of the
principal territory of North Borneo. As the Court has already had occa-
sion to emphasize above (see paragraph 59), the interest of a legal nature
invoked by the Philippines in order to be permitted to intervene in the
case must be shown with a particular clarity, since it does not relate to
the actual subject-matter of the case. It appears, however, in light of the
object of the 1930 Convention and of the rights claimed by the Philip-
pines in North Borneo, that the Philippines has not shown how any inter-
pretation of that Convention which the Court might make for purposes
of the case between Indonesia and Malaysia could affect an interest of a
legal nature of the Philippines which would justify its intervention under
Article 62 of the Statute.

79. The North Borneo Cession Order in Council, adopted on
10 July 1946, which provided in its sixth paragraph that “with effect from
the fifteenth day of July, 1946, ... the Crown should . . . have full sov-
ereign rights over, and title to, the territory of the State of North Bor-
neo”, is said by the Philippines to demonstrate that only on that date did
the British Crown purport for the very first time to acquire full sovereign
rights over North Borneo. The Philippines couples that position with the

31
603 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

contention that any such purported order of cession is without legal
effect.

80. Indonesia does not contest the status of the 1946 Order or British
competence to act thereunder; rather, its views diverge from those of
Malaysia as to the bearing it has on Pulau Ligitan and Pulau Sipadan.
Any interest that the Philippines claims to have as to references that the
Court might make in the case between Indonesia and Malaysia to the
1946 Order is too remote for purposes of intervention under Article 62.

*

81. The Philippines needs to show to the Court not only “a certain
interest in . . . legal considerations” (Continental Shelf (Libyan Arab
Jamahiriyal Malta), Application to Intervene, Judgment, 1 C.J. Reports
1981, p. 19, para. 33) relevant to the dispute between Indonesia and
Malaysia, but to specify an interest of a legal nature which may be
affected by reasoning or interpretations of the Court. The Court has
stated that a State seeking to intervene should be able to do this on the
basis of its documentary evidence upon which it relies to explain its own
claim.

82. Some of the instruments which the Philippines has invoked, and
the submissions it has made as to them, may indeed have shown a certain
interest in legal considerations before the Court in the dispute between
Indonesia and Malaysia; but as regards none of them has the Philippines
been able to discharge its burden of demonstrating that it has an interest
of a legal nature that may be affected, within the sense of Article 62. The
Philippines has shown in these instruments no legal interest on its part
that might be affected by reasoning or interpretations of the Court in the
main proceedings, either because they form no part of the arguments of
Indonesia and Malaysia or because their respective reliance on them does
not bear on the issue of retention of sovereignty by the Sultanate of Sulu
as described by the Philippines in respect of its claim in North Borneo.

83. Furthermore, the Court notes that the prime basis which the Phil-
ippines cites in support of its claim is the Sulu-Overbeck grant of 1878
and the historical facts which preceded it. It is notable that a number of
the documents to which it drew the Court’s attention do not appear in
the official publication of the Philippines of 1963, presented to the Court
by Malaysia, explaining the legal basis of the Philippine claim of sover-
eignty in North Borneo (Philippine Claim to North Borneo, Volume I,
Manila, Bureau of Printing, 1963). All instruments to which the Philip-
pines has drawn the Court’s attention. save the Sulu-Overbeck grant of

32
604 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

1878, are instruments said to be confirmatory of title, or treaties in
respect of which the Philippines wishes to advance interpretations that
preclude them being read as entailing a loss of any previous title that may
have existed in the Sultan of Sulu. Not only are they not, for the most
part, at the centre of the Court’s attention in the case between Indonesia
and Malaysia, but they are not themselves sources of title for the Philip-
pines. The wish of a State to forestall interpretations by the Court that
might be inconsistent with responses it might wish to make, in another
claim, to instruments that are not themselves sources of the title it claims,
is simply too remote for purposes of Article 62.

* *

84. In respect of the “the precise object of the intervention”
(Article 81, paragraph 2 (6), of the Rules of Court), the Philippines
states that its Application has the following objects:

“{a) First, to preserve and safeguard the historical and legal rights
of the Government of the Republic of the Philippines arising
from its claim to dominion and sovereignty over the territory
of North Borneo, to the extent that these rights are affected,
or may be affected, by a determination of the Court of the
question of sovereignty over Pulau Ligitan and Pulau Sipadan.

(6) Second, to intervene in the proceedings in order to inform the
Honourable Court of the nature and extent of the historical
and legal rights of the Republic of the Philippines which may
be affected by the Court’s decision.

(c) Third, to appreciate more fully the indispensable role of the
Honourable Court in comprehensive conflict prevention and
not merely for the resolution of legal disputes.”

The Philippines submitted during the oral proceedings “that the
objects {a) and /h}) in the Application make clear the objectives of the
Philippines in applying to the Court for permission to intervene under
Article 62, are consistent with the Court’s jurisprudence; and amply
fulfil the requirements of the Statute”.

85. For its part, Indonesia argues that

“the objective of the Philippines is not to inform [the] Court of its
interests in the case before [it], but to draw the Court’s attention to
another dispute, speculating that this might, perhaps, be of interest.
At best, the Philippines might appear as amicus curiae.”

33
605

PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

Indonesia further argues that

(5) the information that the Philippines is seeking, by this means, to
give to the Court therefore does not constitute, in the circum-
stances of the case, a legitimate object of the intervention
requested ;

(6) this equally applies a fortiori to the avowed aim of the Philip-
pines of thus securing communication of the pleadings and
documents refused by the Court’s decision of 15 March [2001];

(7) more generally, intervention by the Philippines would create a
dangerous and unwelcome precedent, which would seriously
jeopardize the confidentiality of proceedings which States
appearing before the Court are legitimately entitled to expect —
and indeed the very system of intervention . . .”

86. As for Malaysia, it maintains that:

“the Philippines assertion that it has historical and legal rights to the
territory of Borneo which it wishes ‘to preserve and safeguard’ is a
fiction which is quite unsustainable. It must, therefore, be regarded
as a claim evidently lacking in preciston. The pursuit of so manifestly
defective a claim is not a proper object for an intervention
application.”

As to the “second stated object” of the Philippine Application (see para-
graph 84 above), Malaysia contends that “the assertion of such fhistori-
cal and legal] rights is manifestly unsustainable”, and that “[t]he giving of
information to the Court about unsustainable rights is not a proper
object for intervention”.

Malaysia also maintains that

“by reference to published sources and even without access to the
pleadings, the Philippines could readily have ascertained for itself
some of the fundamental elements in the dispute between Malaysia
and Indonesia; and it could more specifically have related its con-
cerns to those issues”.

In this respect, Malaysia concludes that:

34

“(The Philippines] has not attempted to grapple with the signifi-
cance of actual British and later Malaysian possession and adminis-
tration of the territory for a century and a quarter.

But that does not entitle the Philippines to be given a second
chance by being allowed now to intervene further in this case. A fail-
ure specifically to define the object of the Application cannot be con-
verted into a statement of an object. The Philippines has not met the
606 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

requirements that the Court has laid down for a successful applica-
tion.”

As to the third stated object of the Philippine Application (see para-
graph 84 above), Malaysia considers that “[t]his is a purely abstract
and general matter, on which the Court needs no instruction from the
Philippines or anyone else” and that “[i]t is a gratuitous and imper-
missible object for an intervention”.

x

87. As regards the first of the three objects stated in the Application of
the Philippines (see paragraph 84 above), the Court notes that similar
formulations have been employed in other applications for permission to
intervene, and have not been found by the Court to present a legal obstacle
to intervention (Continental Shelf (Libyan Arab Jamahiriyal Malta),
Application for Permission to Intervene, Judgment, C.J. Reports 1984,
pp. 11-12, para. 17; Land, Island and Maritime Frontier Dispute (El Sal-
vadorlHonduras), Application to Intervene, Judgment, C.J. Reports
1990, pp. 108-109, para. 38, and pp. 130-131, para. 90; Land and Mari-
time Boundary between Cameroon and Nigeria, Application to Intervene,
Order of 21 October 1999, 1 C.J. Reports 1999 (11), p. 1032, para. 4).

88. So far as the second listed object of the Philippines is concerned,
the Court, in its Order of 21 October 1999 in the case concerning the
Land and Maritime Boundary between Cameroon and Nigeria, Applica-
tion to Intervene, recently reaffirmed a statement of a Chamber that:

“[s]o far as the object of [a State’s] intervention is ‘to inform the
Court of the nature of the legal rights [of that State] 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”
(LC.J. Reports 1999 (IT), p. 1034, para. 14).

89. That the rights claimed by the Philippines lie in North Borneo
rather than in Pulau Ligitan and Pulau Sipadan makes the second stated
object of the Philippines no less a proper one.

90. As to the third object listed in its Application, very occasional
mention was made of it during the oral pleadings. But the Philippines did
not develop it nor did it contend that it could suffice alone as an “object”
within the meaning of Article 81 of the Rules. The Court rejects the
relevance under the Statute and Rules of the third listed object.

91. Indonesia also suggested that the Philippines has another object in
seeking intervention, and it stated that “although the Philippines denies
this . . ., it has indeed progressively transformed its Application for per-

35
607 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

mission to intervene into an appeal against the decision not to allow it to
have access to the pleadings”.

92. During the oral proceedings, the Agent of the Philippines, on
behalf of his Government, presented by way of conclusion the desire of
that State to be furnished with copies of the pleadings and documents as
a first “remedy” under Article 85 of the Rules (see paragraph 13 above).
The Court notes however that Article 85 does not provide for “remedies”
as such, but rather deals with the procedural consequences of a decision
to accede to an application for permission to intervene under Article 62.

* *

93. Notwithstanding that the first two of the objects indicated by the
Philippines for its intervention are appropriate, the Court finds that the
Philippines has not discharged its obligation to convince the Court that
specified legal interests may be affected in the particular circumstances of
this case.

94. The Court nevertheless observes that, notwithstanding its finding
that the Philippines has not demonstrated an entitlement to intervene in
the pending case between Indonesia and Malaysia, it remains cognizant
of the positions stated before it by Indonesia, Malaysia and the Philip-
pines in the present proceedings.

95. For these reasons,
THE Court,
By fourteen votes to one,

Finds that the Application of the Republic of the Philippines, filed in
the Registry of the Court on 13 March 2001, for permission to intervene
in the proceedings under Article 62 of the Statute of the Court, cannot be
granted.

IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva,
Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren.
Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc
Weeramantry, Franck;

AGAINST: Judge Oda.

Done in English and in French, the English text being authoritative,
at the Peace Palace, The Hague, this twenty-third day of October, two
thousand and one, in four copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of

36
608 PULAU LIGITAN AND PULAU SIPADAN (JUDGMENT)

the Republic of Indonesia, the Government of Malaysia, and the Gov-
ernment of the Republic of the Philippines, respectively.

(Signed) Gilbert GUILLAUME,
President.

(Signed) Philippe COUVREUR,
Registrar.

Judge Opa appends a dissenting opinion to the Judgment of the Court;
Judge Koroma appends a separate opinion to the Judgment of the
Court; Judges PARRA-ARANGUREN and KoolMANs append declarations
to the Judgment of the Court: Judges ad hoc WEERAMANTRY and FRANCK
append separate opinions to the Judgment of the Court.

({nitialled} G.G.
(Initialled} Ph.C.

37


COUR INTERNATIONALE DE JUSTICE

ANNÉE 2000
2000
27 juin
Rôle général
n° 118
27 juin 2000

AFFAIRE RELATIVE À L'APPLICATION DE LA CONVENTION POUR LA
PRÉVENTION ET LA RÉPRESSION DU CRIME DE GÉNOCIDE

(CROATIE c. YOUGOSLAVIE)
ORDONNANCE

Présents : M. Guillaume, président; M. Shi, vice-président, MM. Oda, Bedjaoui, Ranjeva, Herczegh,
Fleischhauer, Koroma, Vereshchetin, Mme Higgins, MM. Parra-Aranguren, Kooijmans, Rezek,
Al-Khasawneh, Buergenthal, juges; M. Couvreur, greffier.

La Cour internationale de Justice,

ainsi composée,

après délibéré en chambre du conseil,

Vu l'article 48 du Statut de la Cour et le paragraphe 3 de l'article 44 de son Règlement,

Vu l'ordonnance du 10 mars 2000, par laquelle le président de la Cour a reporté, respectivement, au
14 septembre 2000 et au 14 septembre 2001 les dates d'expiration des délais pour le dépôt du mémoire de
la République de Croatie et du contre-mémoire de la République fédérale de Yougoslavie;

Considérant que, par lettre datée du 26 mai 2000 et parvenue au Greffe le 29 mai 2000, sous le couvert
d'une lettre également en date du 26 mai 2000 de l'ambassadeur de la République de Croatie aux
Pays-Bas, l'agent de la Croatie a demandé à la Cour un nouveau report de six mois de la date d'expiration
du délai pour le dépôt de son mémoire, et a indiqué les raisons à l'appui de cette demande; et considérant
que, dès réception de cette lettre, le greffier, se référant au paragraphe 3 de l'article 44 du Règlement, en a
fait tenir copie à l'agent de la Yougoslavie;

Considérant que, par lettre datée du 6 juin 2000 et parvenue au Greffe le même jour par télécopie, l'agent
de la Yougoslavie a indiqué que «si la Cour accorde au demandeur une prorogation de délai de six mois,
la République fédérale de Yougoslavie prie la Cour de lui accorder, pour le dépôt de son contre-mémoire,
un délai identique à celui dont disposera le demandeur, à savoir un délai de dix-huit mois»,

Reporte au 14 mars 2001 la date d'expiration du délai pour le dépôt du mémoire de la
République de Croatie;

Reporte au 16 septembre 2002 la date d'expiration du délai pour le dépôt du contre-mémoire
de la République fédérale de Yougoslavie;

Réserve la suite de la procédure.

Fait en français et en anglais, le texte français faisant foi, au Palais de la Paix, à La Haye, le
vingt-sept juin deux mille, en trois exemplaires, dont l'un restera déposé aux archives de la Cour et les
autres seront transmis respectivement au Gouvernement de la République de Croatie et au Gouvernement
de la République fédérale de Yougoslavie.

Le président,
(Signé) Gilbert Guillaume.

Le greffier,
(Signé) Philippe Couvreur.