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The International Court of Justice THE INTERNATIONAL COURT OF JUSTICE THE POSITION OF THIRD PARTIES RECONSIDERED BASHIRIDEEN IDDRISU KORAY Thesis submitted to the London School of Economics and Political Science, University of London, for the degree of Doctor of Philosophy in the Department of Law September 1991 UMI Number: U048642 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Dissertation Publishing UMI U048642 Published by ProQuest LLC 2014. Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 ^<\7-oO Library British Library of Political and Economic Science ABSTRACT This thesis seeks to investigate the impact of the decisions of the International Court of Justice on third parties from the perspective of the general and specific guarantees available for the protection of their interests under the Court's Statute. In the first chapter, the general protection extended to third parties is considered from the viewpoint of the general principle of the relative effect of judicial decisions, their value as building blocks of the Court's jurisprudence and their role as a subsidiary legal source. The second and third chapters are devoted to a critical analysis of the nature, scope, effect and conditions for the operation of the specific third party guarantees, namely, intervention for the purpose of the protection of the interest of a third party and intervention when the construction of a convention is in issue in a pending case. The fourth chapter examines the position of third parties in relation to the Court's advisory jurisdiction by considering the nature and effect of advisory opinions, by defining and identifying "third parties" in the context of the advisory procedure, by assessing the nature and extent of their participation in advisory proceedings and by undertaking a brief empirical survey of the impact of advisory opinions on them. Finally, some of the principal observations are 2 r recapitulated and suggestions for improving and strengthening the third party safeguards, which have been explored, are offered. The main conclusion of this study is that in the final analysis the utility of the various third party safeguards considered, lies both in a liberal interpretation of the conditions governing their operation and in full participation by interested parties in contentious and advisory proceedings. 3 TABLE OF CONTENTS Page Acknowledgements ............................... 10 List of Abbreviations ......................... 13 Table of Cases ................................ 17 INTRODUCTION ................................... 26 CHAPTER ONE: GENERAL PROTECTION FOR THIRD PARTIES: ARTICLES 59 AND 38(1)(d) OF THE STATUTE ......................... 32 1. Introduction............ .................... 32 2. Structure of a Judgment .................. 33 (a) Elements of the Judgment ............ 33 (b) The Operative Provisions of the Judgment 35 (c) The Reasons in Point of Law ......... 37 (d) Individual and Dissenting Opinions .. 39 3. The Impact of the Judgment ................ 42 (a) Article 59 of the Statute ........... 43 (b) Article 59 and the Doctrine of Stare Decisis ............................. 50 (c) The Decisions of Other Tribunals .... 56 (d) Decisions of Municipal Tribunals .... 64 (e) Reasons for Observance of Judicial Precedent ........................... 68 (f) State Practice and Judicial Precedent 72 4. Article 38(1) (d) of the Statute .......... 77 (a) Background ........................... 78 4 (b) Judicial Decisions as a Source of Law 86 (c) Limitations of Judicial Decisions as a Source of Law ....................... 99 (d) Normative Impact of Judicial Decisions 102 (i) Corfu Channel Case .......... 103 (ii) Fisheries Case .............. 109 (iii) The North Sea Cases ........... 112 5. Conclusion ............................... 114 CHAPTER TWO: SPECIFIC PROTECTION FOR THIRD PARTIES: DISCRETIONARY INTERVENTION........ 117 1. Introduction ............................. 117 2. Preliminary Remarks ...................... 119 (a) Definition .......................... 119 (b) Objectives .......................... 120 (c) How does one account for the Slow Acceptance of Intervention by the International Judicial System?....... 123 (d) Types of Intervention .............. 126 (e) Evolution of Article 62 of the Statute 128 3. Conditions Necessary for Discretionary Intervention ............................. 132 (a) Who may intervene under Article 62? 132 (b) The Meaning of "an interest of a legal nature" ............................. 133 (i) The Permanent Court of International Justice ........ 134 (ii) The International Court of Justice ....................... 135 (iii) The Maltese Intervention Case 138 (iv) The Italian Intervention Case 146 (v) The Nicaraguan Intervention Case 150 5 (c) The "interest of a legal nature" and the Precise Object of Intervention ...... 151 (d) Classification of an "interest of a legal nature" ........................ 158 (e) How the "interest of a legal nature" may be affected for Purposes of Discretionary Intervention .......................... 174 4. Intervention Proceedings .................. 188 (a) The Role of the Court and the Parties 188 (b) Procedure and Timing of Intervention 205 5. Unresolved Issues of Intervention..... 217 (a) The Issue of the Scope of Intervention 217 (b) The Issue of the Status of the Intervening Party ................................ 223 (c) The Issue of the Jurisdictional Link 228 (i) Background ....................... 228 (ii) The Principle of Consent ....... 231 (iii) Incidental Jurisdiction ....... 236 (iv) The Principle of Equality ....... 239 (v) Reciprocity of Rights and Obligations ...................... 240 (vi) Other Arguments Concerning the Jurisdictional L i n k ............... 242 6. Conclusion ................................. 248 CHAPTER THREE: INTERVENTION AS OF RIGHT ........ 252 1. Introduction ................................ 252 2. Evolution ................................... 253 3. Conditions for the Operation of Intervention as of Right ............................... 257 (a) The Meaning of Article 63(1) 258 (b) The Practice of the Permanent Court of International Justice ................. 262 6 (c) The SS Wimbledon Case ................. 262 (d) The Practice of the International Court of Justice ............................ 268 (e) The Hava de la Torre C a s e ............. 268 \ (f) The Position under the 1972 and 1978 Rules ................................. 275 (g) The Salvadorean Intervention Case ..... 279 (h) The Role of the Parties ............... 288 (i) The Role of the Court ................. 290 (j) The Concept of Intervention as of Right 292 4. Procedure .................................... 295 (a) Identification of Parties to a Convention 296 (b) The Significance of the Notification ... 300 (c) The Character of the Notification....... 301 (d) The Phase of a Case at which Notification may be sent ............................ 304 (e) The Timing of Filing a Declaration..... 307 (f) Conventions regarding whose Construction Notification may be sent ............... 312 (g) Timing of the Notification ............ 316 5. Effect of Intervention as of Right .......... 318 6. Amicus Curiae ................................ 324 7. Controversial Issues of Intervention as of Right ........................................ 326 (a) Intervention in the Preliminary Objection Phase of a Case.......................... 327 (b) Intervention regarding Declaration under the Optional Clause .................... 330 8. Conclusion ................................... 336 CHAPTER FOUR: THE IMPACT OF ADVISORY OPINIONS ... 340 1. Introduction ................................. 340 7 2. (a) Legal Basis of Advisory Opinions ....... 342 (b) Purposes Served by Advisory Opinions ... 343 3. Effect of Advisory Opinions ................. 345 (a) The Binding Force of Advisory Opinions 345 (b) Advisory Opinions with Binding Force .... 346 (c) The Authority of Advisory Opinions ..... 348 4. Third Parties in Advisory Proceedings ...... 351 (a) Meaning of Third Parties ............... 351 (b) Requesting Organs ...................... 353 (c) States and International Organisations as Amic£* Curiae in Advisory Proceedings .. 355 (d) Intervention by States in Advisory Proceedings ............................ 361 (e) Consent of Interested States in Advisory Opinions ............................... 362 (f) Advisory Opinions as Precedents ........ 390 (g) Advisory Opinions as a Source of Law ... 395 (h) Judges Ad Hoc and Advisory Proceedings 396 (i) Individuals or Private Persons ......... 411 5. The Impact of Advisory Opinions on "Third Parties": A Brief Empirical Study ......... 426 (a) Introduction ............................ 426 (b) The Admissions and Competence Cases .... 427 (c) The Reparations Case ................... 433 (d) The Peace Treaties Cases ................ 437 (e) The South West Africa and Namibia Advisory Opinions ............................... 442 (i) The South West Africa (Status) Case 442 (ii) The South West Africa (Voting) Case 444 (iii) The South West Africa (Committee) Case .............................
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