To Apply or to Declare, or Both? Links between the Two Types of Intervention under the ICJ Statute

Author:Hyun Seok Park
Pages:415-434
SUMMARY

It is conceivable that the construction of a convention is in question in a case brought before ICJ and a State that is a party to the convention but not to the case has legal interests which may be affected by the construction given by the judgment in the case. As hinted at in the Whaling in the Antarctic case and the Sovereignty over Pulau Ligitan and Pulau Sipadan case, such a third State... (see full summary)

 
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Two Types of Intervention in ICJ
415
VI JEAIL 2 (2013)
Hyun Seok Park
It is conceivable that the construction of a convention is in question in a case
brought before ICJ and a State that is a party to the convention but not to the
case has legal interests which may be affected by the construction given by the
judgment in the case. As hinted at in the Whaling in the Antarctic case and the
Sovereignty over Pulau Ligitan and Pulau Sipadan case, such a third State might
intervene in the proceedings under Article 62 as well as Article 63 of the Statute
unless it should be interpreted otherwise. In light of relevant provisions of the
Statute and jurisprudence of the Court, this paper explores the question whether
such a State has the choice, to submit an application to intervene under Article
62 or to make a declaration of intervention under Article 63.
Keywords
Intervention as of Right, Discretionary Intervention, Non-Party
Intervener, Intervener as a Party, ICJ Statute, Article 62, Article 63
To Apply or to Declare,
or Both? Links between the
Two Types of Intervention
under the ICJ Statute
Professor of International Law at Hongik University, Seoul, Korea. LL.B./LL.M./Ph.D.(SNU). The author may be
contacted at: ctrl_83@hanmail.net / Address: 94 Wausan-ro, Mapo-gu, Seoul 121-791 Korea.
DOI: http://dx.doi.org/10.14330/jeail.2013.6.2.04
416 H. S. Park
I. Introduction
The Statute of the International Court of Justice (hereinafter ICJ Statute) provides
two different forms of intervention for a third State who is willing to protect its own
interest in a case already brought before the Court. If a third State considers that it
has a legal interest which may be affected by the decision of the Court in the case,
the State is allowed to submit a request to the Court for permission to intervene in
accordance with Article 62 of the ICJ Statute. If a multilateral treaty is in question
regarding its interpretation before the Court, Article 63 grants a third State who is a
party to the treaty the right to intervene in the proceedings.
In the Whaling in the Antarctic case, Japan has argued that New Zealands
declaration of intervention under Article 63 of the ICJ Statute can be interpreted as
a strategy to avoid the burden of proving an interest of a legal nature which may
be affected by the decision in the case, as required under Article 62.
1
By contrast,
the Philippines has invoked Article 62 instead of Article 63 to intervene in the
Sovereignty over Pulau Ligitan and Pulau Sipadan case. It considered having an interest
of a legal nature which might be affected by the Courts interpretation of certain
treaties to which it is the successor-in-interest of one party.
2
In the S. S. Wimbledon case, Poland also filed an application for permission to
intervene into the interpretation of the Treaty of Peace of Versailles, to which Poland
was then also a party, under Article 62 of the Statute of the Permanent Court of
International Justice (hereinafter PCIJ Statute).
3
From a further communications
with PCIJ, it appears to the Court that: The Polish Government, abandoning the
    
to avail itself of the right conferred upon it, as a party to the Treaty of Versailles, by
Article 63 of the Statute.
4
Poland did not insist that the grounds for justifying the
intervention under Article 62 should be taken into consideration.
5
PCIJ determined
1 ICJ, Written Observations of Japan on New Zealand’s Written Observations (hereinafter Written Observations of
Japan), ¶¶ 1-4, re-cited from Whaling in the Antarctic (Austl. v. Japan), Order, 2013 I.C.J. (Feb. 6) (Separate Opinion of
Judge Cançado Trindade), available at http://www.icj-cij.org/docket/files/148/17272.pdf (last visited on Oct. 18, 2013).
For an account of this dispute, see R. Davis, The Whaling Dispute in the South Pacific: an Australian Perspective, 4 J.
East asia & intl L. 419 (2012).
2 See Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon. v. Malay.), Judgment, 2001 I.C.J. 580 (Oct. 23). The
Application was rejected.
3 See Application by Polish Government to Intervene of May 22, 1923, S.S. Wimbledon (U.K., France, Italy, Japan v.
Germ.), 1923 P.C.I.J. (ser. A) No.1, at 9-10.
4 See S.S. Wimbledon (U.K., France, Italy, Japan v. Germ.), 1923 P.C.I.J. (ser. A) No.1, at 13 (Jun. 28).
5 Id.

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