Procedural Values in the Intervention Procedure at the International Court of Justice

Abstract

This paper undertakes a re-examination of the Court’s practice in intervention. It contends that the common or popular tendency to ascribe the values of harmonization and efficiency to intervention creates a mirage, which disguises other values that are influential. Efficiency was not a particular motivation for the drafters of the Court’s procedure, and the Court’s jurisprudence gives little weight to efficiency values. The situation is more complex in respect of harmonization. The drafters of the Court’s Statute explicitly acknowledged the potential for intervention to hasten harmonious development of the law, and intervention can be perceived as a panacea for fragmentation. Yet rarely, if ever, has a perceived need for (or the potential normative benefits of) harmonization of the law driven the Court’s approach to intervention. Rather, this paper identifies the values of transparency, party autonomy, confidentiality, representation, and participation at work. It explores how these underlying values drive the Court’s procedural decision-making in respect of intervention, although such value-driven decision-making is at times disguised behind reference to the notion of the ‘sound administration of justice’.

Keywords: International Court of Justice, Intervention, Article 62, Article 63