Colleagues,

FYI

Charles Gurdon
Menas Associates
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Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)

The Court finds that the Application of the Philippines for permission to
intervene cannot be granted

THE HAGUE, 23 October 2001. Today the International Court of Justice (ICJ),
principal judicial organ of the United Nations, delivered its Judgment on
the Application of the Philippines for permission to intervene in the case
concerning Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indonesia/Malaysia).

In its Judgment, the Court 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".

Reasoning of the Court

After recalling the procedural history of the case, the Court considers the
contention by the Parties that the Application for permission to intervene
should not be granted because of its late submission by the Philippines and
because of the failure of the Philippines to annex documentary or other
evidence in support of the Application. The Court observes that,
notwithstanding that the Application was not filed "as soon as possible", as
contemplated by Article 81 of the Rules of Court, the Philippines cannot be
held to be in violation of the requirement of that same Article, according
to which an Application for permission to intervene should be filed "not
later than the closure of the written proceedings". In fact, on the date of
the filing of the Philippine Application, neither the Court nor third States
could know whether the written proceedings had come to an end since the
Special Agreement (the document by which the Parties brought the dispute to
the Court) provided for the possibility of one more round of written
pleadings, which eventually were not filed. The Court further emphasizes
that, while Article 81 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 should necessarily attach
such documents to its application. The Court therefore concludes that the
Philippine Application was not filed out of time and contains no formal
defect.

The Court then considers the objections based on the absence of a
jurisdictional link. It recalls that the Philippines specified that it was
seeking to intervene in the case as a non-party. Hence, the Court finds that
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.

The Court finally considers the arguments of the Parties 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. It begins by recalling that the
Philippines does not seek to intervene in the case because it has a
territorial interest on Sipadan and Ligitan islands, but because it believes
that its claim of sovereignty over North Borneo might be affected by the
Court's reasoning or interpretation of treaties in issue in the dispute
between Indonesia and Malaysia.

The Court finds that the interest of a legal nature to be shown by a State
seeking to intervene is not limited to the dispositif alone of a judgment,
but may also relate to its reasons. It goes on to consider the question
whether the interest invoked by the Philippines might be affected within the
sense of Article 62 of the Statute. It notes that, in outlining its claim,
the Philippines has emphasized the importance of a document dated 22 January
1878 by which the Sultan of Sulu, with whom title, at least to part of Sabah
(North Borneo), lay, had made a grant in that part to Messrs. Overbeck and
Dent (which grant did not include Pulau Ligitan and Pulau Sipadan). This
instrument, according to the Court, is said by the Philippines to be its
"primal source" of title in North Borneo and is interpreted by it as a lease
and not as a cession of sovereign title. The Court however observes that
neither Indonesia nor Malaysia relies on the 1878 grant as a source of title
to Ligitan and Sipadan islands.

After consideration of other instruments invoked by the Philippines in
support of its claim, the Court observes that, 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 specific to it that may be affected,
within the meaning of Article 62, by reasoning or interpretations of the
Court in the main proceedings. According to the Court, either such interests
form no part of the arguments of Indonesia and Malaysia or those Parties'
reliance on those arguments does not bear on the issue of retention of
sovereignty by the Sultanate of Sulu in respect of its claim to North
Borneo. Accordingly, and notwithstanding that the first two of the objects
indicated by the Philippines for its intervention are appropriate, the Court
cannot grant the Application. It adds, however, that it remains cognizant of
the positions stated before it by Indonesia, Malaysia and the Philippines.

Composition of the Court

The Court was composed as follows: President Guillaume; Vice-President Shi;
Judges Oda, Ranjeva, Fleischhauer, Koroma, Vereshchetin, Higgins,
Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc
Weeramantry, Franck; Registrar Couvreur.

Judge Oda 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 Kooijmans append declarations to the Judgment of the
Court; Judges ad hoc Weeramantry and Franck append separate opinions to the
Judgment of the Court.

___________


A summary of the Judgment is given in Press Communiqué No. 2001/28bis, to
which a summary of the declarations and opinions is annexed. The full text
of the Judgment, of the declarations and opinions is available on the Court'
s website (http://www.icj-cij.org).