INTERNATIONAL COURT OF JUSTICE
ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE V. RUSSIAN FEDERATION)
WRITTEN OBSERVATIONS OF UKRAINE ON THE
JOINT DECLARATION OF INTERVENTION OF
CANADA AND THE KINGDOM OF THE NETHERLANDS
30 January 2023
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1. On 7 December 2022, Canada and the Kingdom of the Netherlands (the
“Netherlands”) filed a Joint Declaration of Intervention (the “Joint Declaration”) pursuant to
Article 63 of the Statute of the Court. On the same day, the Registrar of the Court, acting in
accordance with Article 83 of the Rules of Court, forwarded a certified copy of the Joint
Declaration to the Agent of Ukraine and informed him that the Court had fixed 30 January
2023 as the time-limit within which the Governments of Ukraine and the Russian Federation
may furnish their written observations on the Joint Declaration.
2. The Government of Ukraine provides its observations regarding the Joint
Declaration of Intervention below. In the view of the Government of Ukraine, the Joint
Declaration of Canada and the Netherlands fulfills the requirements of Article 63 of the Statute
and Article 82 of the Rules of the Court and is, accordingly, admissible.
* * *
3. Article 63 confers a “right to intervene in the proceedings” to a State notified of
a case involving the construction of a convention to which the State is a party. In assessing
whether a declaration falls under Article 63, “the only point which it is necessary to ascertain
is whether the object of the intervention . . . is in fact the interpretation of the [relevant]
Convention in regard to the question” at issue in the dispute.1 The declaration must also satisfy
the conditions set forth in Article 82 of the Rules of the Court. As Article 63 of the Statute
provides for intervention as of right,2 where a State seeking to intervene has met the conditions
provided under Article 63 of the Statute and Article 82 of the Rules, the declaration is deemed
admissible.3
1 Haya de la Torre Case, Judgment of 13 June, I.C.J. Reports 1951, p. 77. See also Whaling in the
Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February
2013, I.C.J. Reports 2013, pp. 5–6, para. 8.
2 Statute of the International Court of Justice, Article 63(2). See also Haya de la Torre Case,
Judgment of 13 June, I.C.J. Reports 1951, p. 76; Continental Shelf (Tunisia/Libyan Arab Jamahiriya)
Application to Intervene, Judgment, I.C.J. Reports 1981, p. 13, para. 21; Territorial and Maritime
Dispute (Nicaragua v. Colombia), Application for Permission to Intervene, Judgment, I.C.J. Reports
2011, p. 433, para. 35.
3 See Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand,
Order of 6 February 2013, I.C.J. Reports 2013, pp. 5–6, paras. 7–8.
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4. The Joint Declaration of Canada and the Netherlands satisfies all the necessary
requirements. The instant case puts in question the construction of the Genocide Convention.
Canada and the Netherlands are parties to the Genocide Convention and thus have a right to
intervene under Article 63. Based on the text of the Joint Declaration, which identifies
Canada’s and the Netherlands’ interpretations of specific provisions of the Genocide
Convention, namely Articles I and IX, the Joint Declaration’s object is the interpretation of the
Genocide Convention.
5. Article 82(1) provides that declarations under Article 63 “shall be filed as soon
as possible, and not later than the date fixed for the opening of the oral proceedings. In
exceptional circumstances a declaration submitted at a later stage may however be admitted.”
Article 82(2) provides further requirements:
2. The declaration shall state the name of an agent. It shall
specify the case and the convention to which it relates and shall
contain:
(a) particulars of the basis on which the declarant State
considers itself a party to the convention;
(b) identification of the particular provisions of the convention
the construction of which it considers to be in question;
(c) a statement of the construction of those provisions for
which it contends;
(d) a list of the documents in support, which documents shall
be attached.
6. All of these requirements are met. Canada and the Netherlands have filed their
Joint Declaration well before the opening of oral proceedings, which have not been set.
Canada and the Netherlands have also appointed agents,4 and the Joint Declaration notes the
4 Joint Declaration of Intervention Under Article 63 of Canada and the Kingdom of the Netherlands,
Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russia), 7 December 2022, paras. 44–45.
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basis on which Canada and the Netherlands consider themselves parties to the Genocide
Convention,5 identifies “particular provisions” of the Genocide Convention they consider to be
in question, and provides a statement regarding the “construction of those provisions.”6
Finally, the Joint Declaration includes “a list of the documents in support and attaches those
documents.”7 Accordingly, all of the requirements of Article 82 are met and the Joint
Declaration is admissible.
7. Russia’s filing of preliminary objections on 3 October 2022 does not have an
effect on the admissibility of the Joint Declaration. As stated in the Joint Declaration, Canada
and the Netherlands wish to avail themselves of their right to intervene with respect to the
construction of several provisions of the Genocide Convention, including those relevant to the
merits of this case (Article I) and to the Court’s jurisdiction (Article IX).8 Russia’s preliminary
objections place at issue the interpretation of several articles of the Convention. Russia takes
the position that, in addition to Article IX, the Court should “carry out, at this stage, a proper
interpretation of the provisions invoked by Ukraine (Articles I and IV of the Convention) to
determine the obligations contained therein and the scope of the Court’s jurisdiction ratione
materiae.”9 Without prejudice to Ukraine’s ultimate position as to whether the interpretation
of these provisions should take place at the preliminary objections or merits phase of these
proceedings, Canada and the Netherlands have the right under Article 63 of the Statute to
intervene with respect to the interpretation of any provision of the Convention that is at issue,
5 Id. para. 17.
6 Id. paras. 18–41.
7 Id. para. 42.
8 Id. paras. 24–41.
9 Preliminary Objections of the Russian Federation, Allegations of Genocide Under the Convention on
the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russia), filed 3 October 2022,
para. 163.
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including any provision that the Court is asked to interpret during the preliminary objections
phase of the case.10
8. Moreover, as the Court did not decide under Article 79 of the Rules that
questions concerning its jurisdiction or the admissibility of the application shall be determined
separately, and Ukraine accordingly filed a Memorial addressing both the Court’s jurisdiction
and the merits, it was appropriate for Canada and the Netherlands to submit a Joint
Declaration of Intervention addressing their interpretation of provisions of the Genocide
Convention relevant to both jurisdiction and the merits in this case.11
* * *
9. For the reasons set forth above, it is the view of the Government of Ukraine that
the Joint Declaration of Intervention filed by Canada and the Netherlands under Article 63 of
the Statute of the Court is admissible.
10 See Hugh Thirlway, THE LAW AND PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE: FIFTY YEARS
OF JURISPRUDENCE, VOLUME I (2013), p. 1031 (“If for example a case is brought on the basis of the
compromissory clause in a multilateral convention, the interpretation of that clause may be of interest
to all the other States parties (or at least those of them who have not made a reservation to the clause).
It would therefore seem that there is no reason why intervention under Article 63 should not be
possible to argue a question of jurisdiction or admissibility, if that question involves the interpretation
of a multilateral treaty.” (internal citations omitted)); ROSENNE’S LAW AND PRACTICE OF THE
INTERNATIONAL COURT: 1920–2017, VOLUME III PROCEDURE (Malcolm N. Shaw QC ed., 5th ed. 2016),
p. 1533 (“If the dispute over jurisdiction relates to the interpretation of a multilateral treaty which
contains a compromissory clause or any other provision including another instrument intrinsically
linked to that treaty, it is not self-evident why any other party to that treaty cannot intervene under
Article 63 in any phase of the proceedings: close examination of the legislative history of that
provision in 1920 and of the initial Rules of Court of 1922 strongly indicates that this was precisely the
intention behind that provision.” (internal citation omitted)).
11 Cf. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America) (Declaration of Intervention of El Salvador), Order of 4 October 1984, I.C.J. Reports 1984,
p. 216 (finding inadmissible El Salvador’s declaration, which addressed merits as well as jurisdictional
issues, where the Court had ordered a separate jurisdictional phase of proceedings and Nicaragua had
filed a Memorial limited to jurisdiction and admissibility).
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30 January 2023
Mr. Anton Korynevych
Agent of Ukraine
Written Observations of Ukraine on the Declaration of Intervention filed by Canada and the Netherlands