Written Observations of Austria on the admissibility of its Declaration of Intervention

OBSERVATIONS ON THE ADMISSIBILITY
OF AUSTRIA'S DECLARATION OF INTERVENTION
13 February 2023
To the Registrar of the International Court of Justice, the undersigned being duly authorized
by the Republic of Austria:
1. On behalf of the Republic of Austria, I have the honour to refer to the Registrar's Letter No.
158444 of 31 January 2023 and submit to the Court the following Observations on the
admissibility of Austria's Declaration of Intervention filed on 12 October 2022 ("Declaration")
pursuant Article 63,paragraph2, of the Statute of the International Court of Justice ("Statute"),
in the case conceming Allegations of Genocide under the Convention on the Prevention and
Punishment of the Crime of Genocide (Ulcraine v. Russiqn Federation).
2. On l5 Novemb er 2022, the Russian Federation filed objections to the admissibility of the
Declarations of Intervention submitted by Austria and nine other Parties to the 1948
Convention on the Prevention and Punishment of the Crime of Genocide ("Genocide
Convention" or "Convention").1 The Russian Federation's objections to the admissibility of
Austria's Declaration are addressed below.
I. Article 63 of the Statute provides for a Righl to Intervene
3. At the outset, it is worthwhile to reiterate that Article 63 of the Statute provides for the
possibility of interventions by other Parties of a convention as of right.2 As long as the
prerequisites of an intervention under Article 63 of the Statute are fulfilled, which is for the
Court to determine, the intervention is admissible.3 Unlike Article 62 of the Statute, the
decision on admissibility under Article 63 does not entail an element of discretion.a
4. Notably, an intervention under Article 63 ofthe Statute does not require the intervening State
to show any "interest of a legal nature which may be affected by the decision in the case",s a
core requirement of interventions under Article 62. Under Article 63, such interest is
presupposed: every Party of a convention ipso facto has an interest in the proper construction
of the convention, which also determines the other Parties' own rights and obligations under
I Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), The Russian Federation's Written Observations on Admissibility of the
Declarations of Intervention submitted by Australia, Austria, Denmark, Estonia, Finland, Greece, Ireland,
Luxembourg, Portugal and Spain of l5 November 2022 ("Written Observations of the Russian Federation").
2 See also Haya de lq Torre (Colombia v. Peru), Judgment of l3 June l95l,I.C.J. Reports 1951, p. 71, atp.76;
Continentel Shelf (TunisialLibyan Arab Jamahiriya), Application by Malta for Permission to Intervene, Judgment
of 14 April 1981, I.C.J. Reports 1981, p. 3, at pp. 13, 15, paras.2l,26; Territorial and Meritime Dispute
(Nicaragua v. Colombia), Application by Honduras for Permission to Intervene, Judgment of 4 May 2011, I.C.J.
Reports 201 l, p. 420, at p. 433, para. 35.
3 See Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention by New Zealatd, Order of 6
February 2013,I.C.J. Reports 2013, p. 3, at pp. 5-6, paras. 7-8; ^S.^S.
"Wimbledon" (Britain et al. v. Germany),
Question of Intervention by Poland, Judgment of 28 June 1923, P.C.I.J. Series A, No. I, p. 12, atp. 13; Continental
Shelf (Llbyan Arab Jamahiriya/Malta), Application for Permission to Intervene of Italy, Judgment of 2l March
1984, Dissenting Opinion of Sir Robert Jennings, LC.J. Reports 1984, p. 148, at pp. 156-157,paras.25-26.
a J. quintana, "Intervention under Article 63 of the Statute", in J. Quintana (ed.), International Litigation in
Practice, Vol. 10 (2015), p.941.
s Article 62,paragraph l, Statute of the International Court of Justice.
intemational law. This is especially true with regard to a convention of such importance as the
Genocide Convention. For this reason, Article 63 of the Statute vests every State Party, such
as Austria, with a right to express its views on the construction of the Genocide Convention.
5. The prerequisites for the admissibility of interventions under Article 63 are limited to those
stated in the Statute and the Rules of Court. In addition to certain procedural requirements, all
of which Austria has satisfied and none of which were put into question by the Russian
Federation, there are only few substantive requirements to be determined by the Court.
6. First and foremost, the Court must detemine whether a convention,to which the intervening
State is aParty, is in question in the relevant case.6 The Russian Federation has neither denied
that the Genocide Convention is in question, nor that Austria is a State Party to the Convention.
7. Second, an intervention under Article 63 must be limited to the construction of the
convention in question. The Russian Federation claims that the existence of a dispute - a notion
addressed in detail in Austria's Declaration - is not a question of construction of the Genocide
Convention.T However, this argument disregards the fact that the term "dispute" is a central
term in Article IX of the Genocide Convention, the provision which Austria wishes to construe
in its intervention.8
8. Article IX hinges on the question of what does or does not constitute a dispute. It would be
virtually impossible to formulate a construction of Article IX without assessing the scope of
the term "dispute". In the same vein, Austria invokes the question of good faith and abuse of
rights only as tools of treaty interpretation that form part of its statement on the construction of
Article IX. More specifically, the notions of good faith interpretation and abuse ofrights inform
Austria's view that the abusive interpretation of the Genocide Convention may result in a
dispute under Article IX.
8. Contrary to what the Russian Federation claims,e Austria's Declaration does not discuss the
factual question as to whether a genocide has been or may be committed in Ukraine.
9. None of the other objections of the Russian Federation pertain to prerequisites for the
admissibility of interventions under Article 63. It is not a prerequisite that only a certain number
of States may intervene in a given case. It is also not a prerequisite that intervening States may
not share the legal views of one of the disputing Parties, as confirmed in the PCIJ's
Wimbledon 10 and the Court's Haya de la Torrett and Whaling cases.12 Nor does the principle
of equality of arms or the requirement of good administration abrogate the right of other Parties
6 J. qnintana, "Intervention under Article 63 of the Statute", in J. Quintana (ed.), International Litigation in
Practice, Vol. l0 (2015), pp.932-933.
7 Written Observations of the Russian Federation, para. 106(b).
8 See Austria's Declaration, paras. 29 et seq.
e Written Observations of the Russian Federation, para. 106(b).
I0 S.S. "Wimbledon" (Britain et al. v. Germany), Application to Intervene by Poland, 22May 1923,P.C.LJ. Series
A, No. 1,p.9; S.S. 'Wimbledon" (Britain et al. v. Germany), Question of Intervention by Poland, Judgment of 28
June 1923, P.C.I.J. Series A, No. l, p. 12.
tt Haya de la Torre (Colombia v. Peru), Judgment of l3 June 1951, I.C.J. Reports 1951, p. 7l; Haya de lq Torre
(Colombia v. Peru), Declaration of intervention by the Government of Cuba, 13 March 1951, p. I17.
t2 Whaling in the Antarctrc (Australia v. Japan), Written observations of Japan on the Declaration of Intervention
by New Zealand, 2l December 2012; Whaling in the Antarclic (Australia v. Japan), Declaration of Intervention
by New Zealand, Order of 6 February 2013,I.C.J . Reports 2013, p. 3, at p. 9, para. 21.
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to the Convention to intervene, as the Statute and the Rules of Court vest the Court with
appropriate tools to ensure procedural fairness and effrciency.13
10. Accordingly, it is submitted that Austria's Declaration complies with all prerequisites for
the admissibility of its intervention under Article 63 of the Statute. For the avoidance of doubt,
the following sections of Austria's Observations will rebut the objections raised by the Russian
Federation, even though the purported additional conditions invoked by the Russian Federation
have no legal basis in the prerequisites prescribed by the Statute, the Rules of Court, and the
Court's case law.
II. The Intervention is togenuine"
1 1. The Russian Federation claims that Austria effectively seeks to become a de facto coapplicant
by virtue of its intervention.ra Austria explicitly stated in its Declaration that it does
not wish to become aParly to the proceedings.l5 Contrary to how the Russian Federation
interprets Austria's Declaration, the objective of Austria's Declaration is for the Court to take
note of Austria's views on the proper construction of the Convention, as the Court's
construction of the Convention affects Austria's rights and obligations as aParty. These rights
and obligations also entail the compromissory clause in Article IX of the Convention.
12. As the Russian Federation points out itself, "the only point which it is necessary to ascertain
is whether the object of the intervention of [the intervening government] is in fact the
interpretation of the ftreaty in question] ...".t6 Austria solely requests to intervene with respect
to the construction of Article IX of the Convention, the interpretation of which forms part of
the present dispute; Austria's Declaration addresses no other points.
13. Whether an intervention concerns the subject-matter of the respective case is to be
determined by reference to the text of the Declaration of Intervention. The political context of
an intervention is immaterial to determining the subject-matter of the intervention as well as
the dispute.lT The Court confirmed this in its Continental Shelf case between Tunisia and Libya,
where it "... emphasizefd] that it does not fhave] any general discretion to accept or reject a
request for permission to intervene for reasons simply of policy. On the contrary, in the view
of the Court the task entrusted to it ... is to determine the admissibility or otherwise of the
request by reference to the relevant provisions of the Statute."ls Although this quotation stems
from a judgment on an intervention under Article 62 of the Statute, it applies a fortiori for the
t3 See l{haling in the Antarctic (Australia v. Japan), Declaration of Intervention by New Zealand, Order of 6
February 2013, I.C.J. Reports 2013, p. 3, at p. 9, para. I 8.
ra Written Observations of the Russian Federation, paras.22,24,34,48.
rs Austria's Declaration, para.7.
t6 Haya de laTone (Colombia v. Peru), Judgment of l3 June 1951, LC.J. Reports 1951, p. 71,atp.77.
n Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of
Iran v. United States of America), Preliminary Objections, Judgment of 3 February 2021,LC.J. Reports 2021,p.
9, at pp. 27-28, para. 59; Whaling in the Antarcllc (Australia v. Japan), Written observations of Japan on the
Declaration of Intervention by New Zealand,2l December 2012; Waling in the Antarctic (Australia v. Japan),
Declaration of Intervention by New Zealand, Order of 6 February 2013, I.C.J. Reports 2013, p.3, at p. 9, paras.
t8-21.
tB Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application by Malta for Permission to Intervene,
Judgment of 14 April 1981, I.C.J. Reports 1981, p. 3, atp. 12,para. 17.
J
admissibility of interventions 4s of right under Article 63, in contrast to discretionary
interventions under Article 62.
14. It is thus immaterial that Austria had publicly expressed its intention to intervene prior to
filing its Declaration. Yet, if the Russian Federation insists on probing Austria's "true
intentions",le Austria reiterates that its "true" and stated2O intention is the proper construction
of the Genocide Convention by all member States and that the rule of law be upheld.
15. Therefore, Austria's Declaration must be distinguished from the intervention lodged in the
Court's Haya de la Tone case, where the Court limited the admissibility of Cuba's intervention
to arguments that concerned the subject-matter of the proceedings.ln Haya de la Toruq Cuba
aimed to intervene on matters that were not the subject-matter of the case but had already been
decided by the Court in a previous judgment, making them res judicata. These matters were
declared inadmissible, whereas Cuba's other submissions, which the Parties' submissions had
not even addressed, were admitted, as they concerned the construction of a relevant
Convention.2l Austria's Declaration, by contrast, concerns the same subject-matter on which
both Parties to the present case have already presented their legal views.22 As a result, the
Russian Federation's invocation of Haya de la Torre to argue that Austria's intervention is not
"genuine" is inapposite.
16. Further, it is possible and has indeed been a common occurrence that an intervening State's
views on the proper construction of a convention overlap with the views of one of the disputing
Parties23 - this does not tum the intervening State into a "co-appli cant".24 The intervening State
enjoys a distinct, statutory right to have its legal position heard, irrespective of what the other
States may choose to argue.
17. Finally, Austria's opennoss to its intervention being grouped together by the Court with
like-minded intervening States2s is meant to assist the Court in the good administration of
justice, not to confer its right to intervene to another State.
re Written Observations of the Russian Federation, para.23.
20 Statement by the Austrian Minister of Foreign Affairs of 23 August 2022, available at
http://www.eza.gv.atlen/the-ministry/press/speeches/2022l08/statment-of-foreign-minister-schallenbere-at-thekrim-
plattform/.
2t HayadelqTorre (Colombiav.Peru),Judgmentof 13June l95l,I.C.J.Reports l95l,p.7l,atpp.76-77.
22 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Application instituting proceedings of 26 February 2022, pp. 4-8; Allegations of
Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian
Federation), Request for the indication of provisional measures, 26 February 2022, pp. 2-4; Allegations of
Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian
Federation), Document (with annexes) from the Russian Federation setting out its position regarding the alleged
"lack ofjurisdiction" of the Court in the case, 7 March 2022,pp.1-6.
23 ltrhaling in the Antarclrc (Australia v. Japan), Written observations of Japan on the Declaration of Intervention
by New Zealand, 21 December 2012, paras. 2-5; Whaling in the Antarclic (Australia v. Japan), Written
Observations of Japan on the written observations submitted by New Zealand,3l May 2013, pp. 5-6, para. 9.
2a Written Observations of the Russian Federation, para. 22; Whaling in the Antqrclic (Australia v. Japan),
Declaration of Intervention by New Zealand, Order of 6 February 2013,I.C.J. Reports 2013,p.3, atp.9, paras.
I 8-2 l.
25 Written Observations of the Russian Federation, para.28.
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III. Austria's Declaration of Intervention is in Line with the Principle of Equality of the
Parties and the Requirement of Good Administration of Justice
18. Article 63 Statute creates a distinct right for intervening States, which exists in parallel to
the principles of equality of the Parties and the requirement of good administration.
19. The Court has the requisite procedural tools and flexibility to reconcile the good
administration ofjustice with multiple interventions. Consequently, denying States the right to
intervene is not necessary to ensure the requirement of good administration of justice and
would be contrary to the right enshrined in Article 63 of the Statute.
20. This was confirmed by the Court in the Whaling case: as long as an intervention under
Article 63 of the Statute only concems the construction of a convention, the equality of the
parties is not at issue.26
21. Russia's argument on the nationality of the Judges on the bench puts their impartiality and
independence unduly into question.2T The Judges' nationality is immaterial for the
admissibility of interventions and is thus not a consideration under the Statute and the Rules of
Court. The Court's case law confirms this, most recently in the Whaling case, where the fact
that Judge Keith shared the nationality of the intervening State did not affect the admissibility
of the intervention.28
IV. Austria's Declaration of Intervention is Admissible in the Jurisdictional Phase of
these Proceedings
22. Austria's Declaration focuses entirely on jurisdictional questions, namely the
compromissory clause of the Genocide Convention. Therefore, the jurisdictional phase is the
only phase of the proceedings when Austria can exercise its right to intervene on the
construction of Article IX of the Convention in an effective and meaningful manner. If
Austria's Declaration was only admitted in the merits phase, its intervention would be moot.
In turn, this would amount to a de facto denial of Austria's right to intervene as provided for
under Article 63 of the Statute. It must also be borne in mind that Rule 82 (1) of the Rules of
Court states unequivocally that "(s)uch a declaration shall be filed as soon as possible, and not
later than the date fixed for the opening of the oral proceedings." If Article 63 were to only
allow for interventions on substantive provisions, Rule 82 (1) would have tied the time limit
for Declarations to the "opening of the oral proceedings on the merits", which it does not.
23.The reason for the lack of case law on interventions in the jurisdictional phase is that so far
none of the interventions under Article 63 of the Statute presented views on the construction
of a jurisdictional clause.2e Consequently, and contrary to what the Russian Federation would
like the Court to draw from this, nothing can be derived from the absence of case law on
26 Whaling in the Antqrclic (Australia v. Japan), Declaration of Intervention by New Zealand, Order of 6 February
2013,I.C.J. Reports 2013,p.3, at p. 9, para. 18.
27 Written Observations of the Russian Federation, para. 5l .
28 Whaling in the Antarclic (Australia v. Japan), Declaration of Intervention by New Zealand, Order of 6 February
2013, I.C.J. Reports 2013, p. 3, at p. 9, para. 21.
2e J. Quintana, "Intervention under Article 63 of the Statute", in J. Quintana (ed.), International Litigation in
Practice, Vol. l0 (2015), pp.929-931.
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interventions in the jurisdictional phase. The case at hand is the first time the Court is called
upon to decide on this matter.
V. Austria's Declaration of Intervention does not presuppose the Court's Jurisdiction
24. The Russian Federation claims that Austria's Declaration presupposes the Court's
jurisdiction, when in fact, the Declaration does the exact opposite: it revolves entirely around
the Court's jurisdiction under the Genocide Convention.
25.The Court's decision on El Salvador's DeclarationinNicaragua cannot serye as aprecedent
for Austria's Declaration. Not even one of El Salvador's points was related to the jurisdictional
clause of the case. Conversely, Austria's Declaration concems only the compromissory clause
of the Genocide Convention and does not construe any substantive provisions. Accordingly,
and in distinction to El Salvador's Declaration, Austria's Declaration does not touch upon the
merits of the case. Rather than presupposing the Court's jurisdiction, the question of
jurisdiction takes centre stage in Austria's Declaration.
VI. Article IX can be the Subject of Interventions per se
26. The Russian Federation claims that Article IX of the Genocide Convention cannot be the
subject of construction in interventions under Article 63 of the Statute.3o The Russian
Federation's Written Observations do not, however, state any valid reasons why Article IX -
an integral part of the Genocide Convention - should be treated differently from the substantive
provisions of the Convention.
27 .The fact that the dissenting Judge ad hoc Kreöa in the Court's Bosnian Genocide case called
Article IX a "standard" compromissory clause does not explain why it should be impermissible
for Austria to express its views on the proper construction of that provision.
28. Further, and contrary to what the Russian Federation claims,3l the travaux pröparatoires
of Article 63 of the Statute and its predecessor, Article 63 in the PCIJ Statute, do not exclude
the construction of compromissory clauses from the purview of interventions under Article
63.32 That the intervention must relate to the "subject-mattet'' of the case is in no way
equivalent to a condition that the intervention relate to substantive provisions of the convention
in question.33 Such a limitation to substantive provisions is neither stated in the Statute and
Rules of Court nor would this align with their context or object and purpose.3a
30 Written Observations of the Russian Federation, para.93,
3r Ibid.
32 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration of Intervention of the Republic of El Salvador, Order of 4 October 1984, Dissenting Opinion of Judge
Schwebel, 223, atpp.234-236; A. Miron/C. Chinkin, "Article 63", inZimmermann et al. (eds.), The Statute of
the International Court of Justice: A Commentary (2019),p. 1741, atp. 1758,para.46.
33 Cf. Written Observations of the Russian Federation, para.95.
34 M. Shaw (ed.), Rosenne's Law and Practice of the International Court 1920-2015 (5th edn., Vol III, 2016),p.
1533; H. Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence
(Vol I, 2013), p. 1031; A. Miron/C. Chinkin, "Article 63", in Zimmermann et al. (eds.), The Statute of the
International Court of Justice: A Commentary (2019),p.1741, atp. 1763,para.46.
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29. In fact, the subject-matter currently litigated in the present proceedings is of a nonsubstantive
nature, as Russia opposes the Court's jurisdiction with Preliminary Objections. The
Russian Federation contends, in a single sentence, that "[t]he mere fact that the Preliminary
Objections were filed does not attest to the existence of a dispute on interpretation of this
Article."35 It remains unclear what the Russian Federation's manifest opposition to Ukraine's
invocation of the Court's jurisdiction could be, other than a dispute on the subject-matter of
jurisdiction.
VIII. Conclusion
30. For the reasons set out above, Austria respectfully requests the Court to decide that the
Declaration of Intervention filed by Austria on 12 October 2022 is admissible.
For the Republic of Austria
H .'Ti c.{r r4
Ambassador Helmut Tichy, Agent
3s Written Observations of the Russian Federation, para.92
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