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

WRITTEN OBSERVATIONS
OF THE REPUBLIC OF BULGARIA ON
THE ADMISSIBILITY OF ITS
DECLARATION OF INTERVENTION
IN THE CASE
ALLEGATIONS OF GENOCIDE UNDER THE
CONVENTION
ON THE PREVENTION AND PUNISHMENT
OF THE CRIME OF GENOCIDE
(UKRAINE V. RUSSIAN FEDERATION)
13 February 2023
I. INTRODUCTION
1. With reference to the Registrar's Letter No. 158426 of 30 January 2023 and Letter No.
158445 of 31 January 2023, the Republic of Bulgaria hereby submits its written
observations on the admissibility of its Declaration oflntervention in the case Allegations
of Genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation).
2. On 18 November 2022, the Republic of Bulgaria submitted to the International Court of
Justice a Declaration oflntervention pursuant to Article 63, paragraph 2 of the Statute of
the [nternational Court of Justice (,,the Statute") on the case Allegations o,f Genocide
under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation) ("the Convention" or "the Genocide Convention").
3. On 30 January 2023, Ukraine submitted its written observations on the Declaration of
Intervention of the Republic of Bulgaria ( .. the Bulgarian Declaration"'). stating the
admissibility of the Declaration pursuant to the fulfillment of the requirements of Article
63 of the Statute and Article 82 of the Rules of the International Court of Justice ("the
CoU1t").
4. On 30 January 2023, the Russian Federation submitted its written observations on the
Declarations of Intervention of a number of States, including the Republic of Bulgaria,
challenging the admissibility of those on the following grounds:
a) the interventions are not genuine: their real object is not the construction
of the relevant provisions of the Genocide Convention, as required by Article
63 of the Statute, but rather pursuing a joint case alongside Ukraine as de facto
co-applicants rather than non-parties;
b) the participation of the Declarants in these proceedings would result in a
serious impairment of the principle of equality of the pat1ies to the detriment of
the Russian Federation and would be incompatible with the requirements of
good administration of justice;
c) the Court cannot, in any event, decide on the admissibility of the
Declarations before it has made a decision on the Preliminary Objections, and
that the Declarations address matters that presuppose that the Comt has
jurisdiction and/or that Ukraine's Application is admissible;
d) the reference to Article IX of the Convention is of no assistance for the
purpose of intervention at the judicial stage of the proceedings; the Declarants
cannot intervene on Article IX of the Convention per se;
e) the Declarants seek to address issues umelated to the "construction·• of
the Genocide Convention, such as the interpretation and application of other
rules of international law and several questions of fact; allowing the Declarants
to intervene on such matters at this stage would prejudge the question of the
Court's jurisdiction ratione materiae 1.
5. The Republic of Bulgaria will address the observations of the Russian Federation's
written observations on admissibility of the Declarations of Intervention submitted by
Belgium, Bulgaria, Cyprus, Liechtenstein, Malta, Canada and the Netherlands, Norway,
Slovakia and Slovenia, that are relevant to the Bulgarian Declaration of Intervention.
6. The Republic of Bulgaria will argue that all requirements for intervention under Article
63 of the Statute and A1ticle 82 of the Rules of the Court are fulfilled and its Declaration
oflntervention is in full compliance with the said provisions, therefore is admissible; will
address the Russian Federation's objections in Chapter II, Section A (Section II of this
written observations); Fmther, the Republic of Bulgaria will argue that its Declaration of
Intervention does not impair the principle of equality of the Paities to the proceedings.
thus objecting the arguments of the Russian Federation in Section B of Chapter II of the
written observations of the Russian Federation (Section III of this document); the
Republic of Bulgaria will argue that it is entitled to intervene under A1ticle 63 of the
Statute at the jurisdictional stage, thus objecting the arguments in Section C (i) of Chapter
II of the Observations of the Russian Federation (Section IV of this document); the
Republic of Bulgaria will argue that is intervening on the construction of the
Convention's provision relevant to the jurisdictional phase, thus objecting to the
arguments in Section C (ii) of Chapter II of the Russian observations (Section V of this
document); the Republic of Bulgaria will argue that its Declaration does not presuppose
the positive determination of jurisdiction of the Court and the admissibility of the
application of Ukraine, thus objecting to the arguments in Section D of Chapter II of the
Russian observations (Section VI of this document); the Republic of Bulgaria will argue
that its Declaration contains arguments relevant to the construction of the Genocide
Convention in relation to the interpretation of the provision at the jurisdictional phase,
thus objecting to the arguments in Section E of Chapter II of the Russian observations
(Section VII of this document); the Republic of Bulgaria will argue that its Declaration
contains arguments relevant to the construction of the Genocide Convention in relation
to the systemic integration principle of interpretation, thus objecting to the arguments in
Section F of Chapter II of the Russian observations (Section VIII of this document). In
conclusion, the Republic of Bulgaria will respectfully request the Court to reject all
objections to the admissibility of the Bulgarian Declaration by the Russian Federation
and to declare its intervention admissible.
1 The Russian Federation ·s Written observations on ad111issibili1y of the Declarations of intervention
submitted by Belgium, Bulgaria, Cyprus, Liechtenstein, Al/a/ta, Canada and the Netherlands. Norway,
Slovakia and Slovenia, 30 January 2023, (Written observations of the Russian Federation), para. 9
I. THE DECLARATION OF INTERVENTION OF THE REPUBLIC OF BULGARIA IS
IN FULL COMPLIANCE WITH ARTICLE 63 OF THE STATUTE AND ARTICLE
82 OF THE RULES OF THE COURT
7. In line with Article 63 of the Statute and the Cou1t's case law in its Declaration Bulgaria
indicated that it is a Party to the Convention as of 12 January 1951 2 and presented the
relevant documents thereto3
. The Bulgarian Declaration demonstrated that in accordance
with Article 63, para. 1 of the Statute, Bulgaria has received on 30 March 2022 a
notification by the Registrar in the capacity of a Party to the Convention4. In addition,
Bulgaria identified the particular provisions of the Genocide Convention the construction
of which considers in question5 and provided a statement of the construction of this
provision.6 The Declaration was filed on 18 November 2022, --as soon as possible" and
before the opening of the oral proceedings. In accordance with the procedural
requirements of Article 82 of the Rules of the Court, it was accompanied by a list of
documents and annexes 7.
8. In accordance with the case law of the Court, underlining that an intervention is limited
to the construction of the Convention in question and does not allow the intervener, which
does not become a party to the proceedings, to deal with any other aspect of the case
before the Court8
, the Republic of Bulgaria stated that it does not seek to become a party
to the proceedings and accepted the binding effect of the construction given by the
Court9
. The Declaration was explicitly limited to the construction of the Genocide
Convention in the context of the case 1°.
9. The Declaration of Intervention of the Republic of Bulgaria is in full compliance with
the provisions of Article 63 of the Statute and Article 82 of the Rules of the Court, as
well as the case law of the Court, confirming exhaustively the requfrements for the
execution of the right to intervene under Article 63 of the Statute 11 .
10. In its observations the Russian Federation states that the interventions are not genuine,
futther developing that their real object is not the construction of the relevant provisions
2 Declaration of Intervention of the Republic of Bulgaria pursuanr to Article 63, paragraph 2 of the Statute
of the International Court of Justice in the case concerning Allega1ions a/Genocide under the Convention
on the Prevention and Punishment of the Crime o_(Genocide (Ukraine v. Russian Federation), 18 November
2022 (''the Bulgarian Declaration").
3 Annex 8 to the Bulgarian Declaration
48ulgarian Declaration, para 9
5 lbidem,para 17
6 Jbidem,paras 19 - 28
7 lbidem,para 29 and Annexes
8 Whaling in the Antarctic (Australia v. Japan), Declaration o_f Intervention of New Zealand, Order of 6
February 20 I 3, ICJ Reports 20 I 3, p. 3, at p. 9, para. 18.
9 Bulgarian declaration, para 12
10 Ibidem, para 13
11 Whaling in the Antarclic (A uslralia v. Japan), Declaration of Intervention of New Zealand, Order of 6
February 2013, !CJ Reports 2013, p. 3, para 8.
of the Genocide Convention, as required by Article 63 of the Statute, but rather pursuing
a joint case alongside Ukraine as de facto co-applicants rather than non-parties (Section
A of Chapter II. Arguments of the Russian Observations).
11. By deciding on the admissibility of intervention under A1ticle 63 of Statute in the Haya
de la Torre case, the Court has ruled that "the only point which it is necessary to ascertain
is whether the object of the intervention... is in fact the interpretation of the ...
Convention" 12
• In the Court's reasoning a "genuine" intervention would not discuss
already decided questions, rather aimed at the interpretation of the construction of the
Convention in question13
• Contrary to the Russian observation14, the Court did not
consider the text of the declaration together with the context within it was filed. The
Court did not look to establish "the real intention of the State". In addition, the Bulgarian
Declaration does not address already reexamined or litigated questions by the Court and
in this aspect, it should be regarded as '·genuine" intervention.
12. Similarly, in the S.S. Wimbledon case the Permanent Cow-r of International Justice stated
that "[i]t will suffice for the Court to note that in this case the interpretation of certain
clauses of the Treaty of Versailles is involved in the suit and that the Polish Republic is
one of the States which are parties to this treaty" [ emphasis added] .15
13. With regard to the Joint Statements of 20 May 2022 and of 13 July 202216 it should be
noted, that in the Whaling case 17 the argument of Joint Media Release of the Intervener
and the Applicant in support of the position of the latter was brought to the attention of
the Court18
• The Comt did not explore the intentions of the Intervener, although the
argument was used in the context of the principle of equality of the parties.
14. From the nature of the provision of A1ticle 63 of the Statute as recognized by the Court,
namely a "right" of intervention 19
, two relevant conclusions should be made. First,
different from the obligation, it is a general principle of law that it is up to the holder of
the right if the right will be exercised. Second, once the material and procedural
requirements are met, the holder of the right does not have to present its motivation or
12 Haya de la Torre (Colombia v. Peru). Judgment. I.C J. Reports 1951. p. 77: Continental Shelf
(Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene, .Judgment, I. C J. Reports I 98 1.
p. 13, para. 21.
13 Ibidem, para 77
14 The Russian Federation· s Written observations, para. 14
15 S.S. Wimbledon, Judgment of28 June 1923 (Question of Intervention by Poland), PCIJ, Series A. No. 1. p.
11, p. 13.
16 Respectively para 15 and para 16 of the Russian Federation Written observations
17 Whaling in the Antarctic (Australia v. Japan). Declaration of Intervention of New Zealand. Order of 6
February 2013, lCJ Reports 2013, p. 3, para 8.
18 Japan's Written Observations of 21 December 20 I 2 on the Declaration of Intervention filed by New
Zealand
19 Haya de la Torre (Colombia v. Peru), .Judgment, I.C J. Reports /951, p. 76; Continental She((
(Tunisia/Libyan Arab .Jamahiriya), Application for Permission to Intervene, Judgment, I.C.J Reports 1981,
p. 13, para. 21.
intention behind the decision to or not to exercise its right. Thus. the intentions and
motivations of the Intervening States are irrelevant to the case.
15. The erga omnes nature of the rights and obligations was noted by the Republic of
Bulgaria with regard to ·'the construction that might be placed by the Court on the
relevant provisions of the Convention" and demonstrating the aim of the intervention ··to
observe the consistent interpretation·· of the Convention among all Contracting Parties20.
In this regard, it was misrepresented in paragraph 25 of the written observations of the
Russian Federation. Thus, the aim of the Bulgarian intervention. as presented by the
Declaration as a legal document relevant to the case, is to assist the Court in the
interpretation of the construction in question of the Genocide Convention (paragraphs 19
- 28 of the Bulgarian Declaration).
16. The statement of agreement of the Republic of Bulgaria to group its Declaration together
with similar interventions, discussed under paragraph 27 of the written observations of
the Russian Federation. was made in the interest of --sound and expeditious
administration of justice" as clearly stated in para 15 of the Bulgarian Declaration, and
should not be misinterpreted.
17. For the above set reasons, it is the view of the Republic of Bulgaria that its Declaration
is in conformity with Article 63 of the Statute; there is no requirement to demonstrate
and discuss the intentions of the decision to exercise the right of intervention.
Consequently, the Republic of Bulgaria respectfully requests the Court to reject the
argument of the Russian Federation that the Bulgarian Declaration is not genuine and on
that ground inadmissible21 (Chapter II. Section A of the Russian Federation's
observations).
20 Bulgarian Declaration. para 11
21 Written observations of the Russian Federation, Section A of Chapter II
II. THE DECLARATION OF INTERVENTION OF THE REPUBLIC OF BULGARIA
DOES NOT IMPAIR THE PRINCIPLE OF EQUALITY OF THE PARTIES
18. ln its written observations, the Russian Federation raises the objection that the
interventions would be incompatible with the principle of equality of the parties and the
requirements of good administration of justice (Section B of Chapter II of the written
observations of the Russian Federation).
19. The Republic of Bulgaria recalls that equality of the parties is a fundamental principle of
the procedural law closely linked to the fair trial and good administration of justice
principle. In the context of the right to intervention under Article 63 of the Statute, the
argument was considered by the Court in the Whaling case. By making
1) a clear distinction between '·ce1iain procedural issues regarding the equality
of the Parties to the dispute'' and "the conditions for admissibility of the
Declaration of Intervention as set out in Article 63 of the Statute and Atiicle 82
of the Rules of Court";
2) emphasizing the limitation of the intervention to the construction of the
convention in question and
3) not allowing the intervener, which does not become a patiy to the
proceedings, to deal with any other aspect of the case before the Comi,
the Court ruled that such an intervention cannot affect the equality of the Parties to the
dispute principle. 22
20. With regard to the argument of the Russian Federation about the number of intervening
states, the Republic of Bulgaria recalls the provision of Article 63, paragraph 1 of the
Statute, stating that "whenever the construction of a convention to which states other that
those concerned in the case are parties is in question, the registrar shall notify all such
states forthwith" [ emphasis added]. In addition, paragraph 2 of the same provision
stipulates that "Every state so notified has the right to intervene in the proceedings"
[ emphasis added]. The right to intervention is owned by all Parties to the Convention
and second, every party has its own right to intervene. Thus, the exercise of its own right
of one Party to the Convention does not deprive the others to decide on their own whether
to exercise their own right and to intervene. Drawing the opposite conclusion would be
contrary to the general principle of law and on further note against the sovereign equality
of States in the international relations.
22 Whaling in the Amarctic (A ustralia v. Japan). Order of the Cour/, Declaration qf Intervention of New
Zealand, p., 9, para 18
21 . In light of the above, the Republic of Bulgaria is in the view that there are no reasons
for the Com1 to reverse its case law and respectfully requests the Cou11 to reject the
objection of the Russian Federation to the admissibility of the Bulgarian Declaration as
incompatible with the principle of equality of the parties and the requirements of good
administration of justice23 .
n Written observations of the Russian Federation, Section B of Chapter 11
III. THE REPUBLIC OF BULGARIA IS ENTITLED TO INTERVENE UNDER ARTICLE
63 OF THE STATUTE AT THE JURISDICTIONAL ST AGE
22. ln its foJlowing argument, the Russian Federation expresses the view that the Court
cannot allow an intervention at the preliminary stage of the proceedings in which its
jurisdiction or the admissibility of an application is challenged (Section C (i) of Chapter
II of the Observations of the Russian Federation).
23. The Republic of Bulgaria recalls the wording of Article 63, paragraph I of the Statue:
"Whenever the construction of a convention to which states other than those
concerned in the case are parties is in question, the Registrar shall notify all such
states forthwith" [ emphasis added].
The ordinary meaning of the opening word "whenever'· indicates the existence of the right
at any time of the proceeding, specified by the provision of A1ticle 82, paragraph 1 of the
Rules of the Court, stipulating that "a declaration shaJl be filed as soon as possible, and
not later than the date fixed for the opening of the oral proceedings'' [ emphasis added] .
The latter regulating the final stage of the deposition of the Declaration of Intervention.
This reading is supported by the view of members of the Court concluding that:
"There is no hint in these terms - or in their travaux preparatoires - that they mean
other than what their plain meaning says. "Whenever"- that is, whatever time in the
proceedings of a case - imports not some but all, not some phases of a case but any
phase". (Dissenting opinion of Judge Schwebel p. 234) 2-1
and also
"If the intention had been to confine intervention to the stage of the merits, the Rule
presumably would have so stated". (Dissenting opinion of Judge Schwebel p. 235)
By arguing its dissenting opinion, Judge Schwebel concluded that '"[t]hus the tem1s of
Article 63 and the Rules which the Court has adopted in implementation of those terms
both indicate that intervention under Article 63 in the jurisdictional phase of a case is
pennitted"25 .
24. The Republic of Bulgaria shares the view that due to significant differences on conceptual
basis no conclusions should be drawn from the Court's case law under Article 62 of the
Statute to the present proceedings, primary but not only because this provision allows a
2
~ See Dissenting opinion of Judge Schwebel in 1'v!ilita,y and Paramilitwy Activities in and against
Nicaragua (Nicaragua v. United States of America) (Declaration of Intervention of El Salvado1 ), Order of
4 October 1984, ICJ Repo11s 1984, p. 223, at pp. 235-236
25 Ibidem, para 235
third state to become a party to the proceedings with equal rights and obligations of the
initial ones. The comparison of the two provisions, respectively of Article 62 and Article
63 of the Statute demonstrates inequalities not only to the effect of the intervention but
also of the admissibility criteria. Therefore, no analogy should be made with Cowt's
rulings on Declarations of Intervention under Article 62 of the Statute, making the
aTguments of the Russian Federation based on the Nuclear Tests case26 and Nuclear Tests
(Request/or Examination/ 7 case irrelevant and unjustified.
25. With regard to the Declaration of Intervention of El Salvador in the Military and
Paramilitary Activities case28
, it should be noted that the request was rejected on the
ground not of its time of submission but rather for reasons of its substance considering
questions on the merits of the case29
. In the view of the majority of the judges "[t]his
Declaration did not adequately meet the specifications set forth in Article 82, paragraph
2, of the Rules of Court; specifically, it failed to identify the paiiicular provisions of the
conventions whose construction El Salvador considered to be in question, and it did not
contain a statement of the construction of those provisions for which El Salvador
contends"30.
26. In light of the above, the Republic of Bulgaria respectfully requests the Court to reject the
argument of the Russian Federation concerning the misinterpretation of Article 63 of the
Statute31 as inapplicable at the jurisdictional phase of the proceedings.
26 Nuclear Tests Case (Australia v. France)
27 Request for an Examination of the Situation in Accordance with paragraph 63 of the Court 's J11dg111ent of 20
December 1974 in the Nuclear Tests (New Zealandv. France)
28 Mililary and Paramilitary AcUvities in and against Nicaragua case (Nicargua v. USA)
29 Quintana, J. J. (20 l5), Litigation at the international court ofjustice: Practice and procedure. BRILL, p. 943
30 Milita1y and Paramilita1y Ac1ivities in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Separate Opinion of Judge Schwebel, !CJ Reports 198./, p. 13. at p. 22./
31 Written Observations of the Russian Federation, Section C (i) of Chapter 11
IV. THE REPUBLIC OF BULGARIA IS INTERVENING ON THE CONSTRUCTION
OF THE PROVISION OF THE CONVENTION RELEVANT TO THE
JURISDICTIONAL PHASE
27. The Russian Federation argues that the intervener has to address interpretation of ·'a
provision of the convention over ·which the Parties express diverging views as to their
interpretation in the case "'32 [emphasis added] (Section C (ii) of Chapter II of the Russian
observations).
28. The Republic of Bulgaria recalls another aspect of the wording of Article 63, paragraph
1 of the Statue:
"Whenever the construction of a convention to whkh states other than those
concerned in the case are parties is in question, the Registrar shall notify all such
states forthwith" [ emphasis added].
It follows from the phrase used, that in question could be a construction of one or more
provisions of the convention, with no exceptions, as well as .. the construction of the
convention" itself. A distinction between the interpretation of provisions on jurisdictional
matters and on the merits is also not envisaged.
29. Paragraphs 19 - 28 of the Declaration of Intervention of the Republic of Bulgaria are
dedicated to the identification and the statement of the construction of the compromissory
clause of Article IX of the Genocide Convention. They represent the Bulgarian
arguments in assistance of the Court in the interpretation of this Article in relation to the
jurisdictional phase of the case.
30. In support of the view that Parties to the Convention could intervene at the jurisdictional
phase before the findings of the Court on the preliminary objections by presenting their
statement of the construction of the provisions of the convention is the wording of Article
82, paragraph 2, letter "b" of the Rules of the Court, stating that the intervener should
identify "the particular provision of the convention the construction of which it cons;ders
to be in question" [ emphasis added]. This provision clearly rejects the argument of the
Russian Federation that the intervener should state the construction of "a provision of the
convention over which the Parties express diverging vie-ws as to their interpretation in
the case ''.
31. The Bulgarian Declaration explicitly states that it addresses .. jurisdictional issues, i.e. to
the construction of the compromissory clause in Article IX of the Genocide
Convention"33
32 Ibidem, para 59
33 Bulgarian Declaration, para 17
32. ln light of the above. the Republic of Bulgaria respectfully requests the Court to reject
the objection to the admissibility of its intervention contained in Section C (ii) of
Chapter II of the written observations of the Russian Federation.
V. THE DECLARATION OF INTERVENTION OF THE REPUBLIC OF BULGARIA
DOES NOT PRESUPPOSE THE POSITIVE DETERMINATION OF JURISDICTION
OF THE COURT AND THE ADMISSIBILITY OF THE APPLICATION OF
UKRAINE
33. The Russian Federation argues that the Declaration of Intervention of the Republic of
Bulgaria "attempt[ s] to argue Court's jurisdiction in favour of Ukraine34" and
presupposes the jurisdiction of the Comt and the admissibility of the application of
Ukraine. (Section D of Chapter II of the Russian observations).
34. With regard to the Bulgarian Declaration, the Russian Federation refers to the analysis
of the term "dispute" as established in the case law of the Court35 and the proposed
reading of the compromissory clause of the Genocide Convention.36 With reference to
the last sentences of those paragraphs, the Russian Federation argues that the Bulgarian
Declaration addresses matters, ·'which presuppose that the Court has jurisdiction in this
case or that Ukraine's Application is admissible··.
35. The Russian Federation refers specifically to the following paragraph of the Bulgarian
Declaration37
"The meaning of the term "dispute'' is long established in the case law of the Court
and previously of the Permanent Court of International Justice ("PCIJ"). The
dispute as '·a disagreement on a point of law or fact, a conflict of legal views or of
interests" between the parties is essential for the interpretation of the construction
of A1ticle IX. In order for a dispute to exist, ·'[i]t must be shown that the claim of
one party is positively opposed by the other". The parties must "hold clearly
opposite views concerning the question of the perfom1ance or non-performance of
certain international obligations". Moreover, '•in case the respondent has failed to
reply to the applicant's claims, it may be inferred from this silence, in ce,tain
circumstances, that it rejects those claims and that, therefore, a dispute exists". The
Cowt has established that the dispute must in principle exist on the date on which
the application was submitted. Wilh regard to the present application those
requirements are clearly met." [references omitted, emphasis added]. (paragraph
20 of the Bulgarian Declaration)
By citing the last sentence with the emphasized insertion,
"With regard to the present application those requirements [for existence of
dispute} are clearly met."
3-1 Written Observations of the Russian Federation, para 74
35 Bulgarian Declaration, para 20
36 lbidem para 24
37 Written Observations of the Russian Federation, letter 8 , para 83
36. The Republic of Bulgaria notes, that the cited last sentence of paragraph 20 of its
Declaration (as it is without the inse1tion of the Russian Federation) has theoretical and
abstract nature, does not incline facts, evidences or matters of the discretion of the Court.
The conect understanding of the sentence ( as it is without the insertion of the Russian
Federation) is to demonstrate the requirements of the legal '·construction'· of the first
element of the concept of Article IX.
37. The Russian Federation refers as well to the following paragraph38
"The reading of the Genocide Convention's compromissory clause is further
supported by its context. In particular, the use of the word •'including" in the
intermediate sentence indicates a broader scope of Article IX of the Convention.
Disputes relating to the responsibility of a State for genocide or for any of the other
acts enumerated in Article III are therefore only one type of dispute covered by
A1ticle IX, which are '·included" in the wider phrase of disputes ·'relating to the
interpretation, application and :fulfilment'" of the Convention. Hence, the context of
the phrase ("relating to") in Article IX confirms that the Court ·s jurisdiction goes
beyond disputes between States about the responsibility for alleged genocidal acts,
but also covers disputes between States about the absence of genocide and the
violation of a good faith performance of the Convention, resulting in an abuse of
the law" [references omitted, emphasis added]. (paragraph 24 of the Bulgarian
Declaration)
3 8. The Republic of Bulgaria further notes that the aim of the paragraph above is to clarify
the statement of the construction in question by considering all of the elements of the
interpreted provision under its context, thus clarifying the scope of Atticle IX of the
Convention. The text uses legal te1ms and concepts, means and principles of
interpretation, in order to place the provision under consideration within the broader
perspective of the systemjc integration interpretation principle. It does not relate to
arguments of facts and draws no conclusions with regard to matters of discretion of the
Comt in the present case.
39. The Republic of Bulgaria further stresses that those arguments are part of the Section
dedicated to the provisions of the Convention in question in the case (as the name of the
Section clearly states) and are the expression of the view that the Bulgarian Declaration
is limited "to the construction of the compromissory clause in Atticle IX of the Genocide
Convention in line with the rule of interpretation envisaged in A1ticle 26 and Article 31
of the Vienna Convention of the Law of Treaties as a reflection of the rules of customary
international law."39
38 Bulgarian Declaration, para 17
39 Written Observations of the Russian Federation, letter B, para 83
40. In the light of the above, the Republic of Bulgaria respectfully requests the Court to reject
the objection to the admissibility of its intervention as stated by Section D of the written
observations of the Russian Federation.
VI. THE DECLARATION OF INTERVENTION OF THE REPUBLIC OF BULGARIA
CONTAINS ARGUMENTS RELEVANT TO THE CONSTRUCTION OF THE
GENOCIDE CONVENTION IN RELATION TO THE INTERPRETATION OF THE
PROVISION AT THE JURISDICTIONAL PHASE
41. The Russian Federation further argues that the reference to Article IX of the Convention
is of no assistance for the purposes of intervention at the judicial stage of the proceedings
and that the Republic of Bulgaria cannot intervene on Article IX of the Convention per
se (Section E of Chapter II of the Russian Federation written observations).
42. The Declaration of the Republic of Bulgaria clearly states that it is limited '·to the
construction of the compromissory clause in A1ticle IX of the Genocide Convention in
line with the rule of interpretation envisaged in Article 26 and Article 31 of the Vienna
Convention of the Law of Treaties as a reflection of the rules qf customary intemational
law''40 [emphasis added].
43. Therefore, the main paragraphs 19 - 28 of the Bulgarian Declaration are dedicated to the
detailed analysis of Article IX of the Genocide Convention, starting from the term
"dispute" as established in the case law of the Court41 ; focusing next on the proper
construction of other parts of the provision by discussing the ordinary meaning of the
provision with all aspects involved; suppotted by the context of the norm and the object
and purpose ofit in accordance with rules of interpretation of the Vienna Convention on
the Law of Treaties42
; and in conclusion bringing all those elements in the framework of
the inter legal system under the systemic integration principle of interpretation43.
44. As already demonstrated under Section V and VI of this document. Article 63 of the
Statute states that a Party to the Convention may intervene on the ·'construction of the
convention". Accordingly, there are no exceptions of the provisions that could be in
question, including the compromissory clause of Article IX of the Genocide Convention,
isolated or together with other provisions of the Convention. The relevance of the
provision at the judicial stage of the proceedings was already discussed under Section V
of the present document.
45. ln light of the above, the Republic of Bulgaria respectfully requests to the Court to reject
the objection to the admissibility of its intervention as stated by Section E of the written
observations of the Russian Federation.
40 Bulgarian Declaration, para 17
41 Ibidem, para 20
42 Ibidem, paras 21, 22, 23, 24, 26
~3 Ibidem, para 28
VII. THE DECLARATION OF INTERVENTION OF THE REPUBLIC OF BULGARIA
CONTAINS ARGUMENTS RELEVANT TO THE CONSTRUCTION OF THE
GENOCIDE CONVENTION IN RELATION TO THE SYSTEMIC INTEGRATION
PRINCIPLE OF INTERPRETATION
46. Under Section F of its written observations the Russian Federation argues that the
Bulgarian Declaration contains references um-elated to the construction of the Genocide
Convention that would result in prejudging questions relating to the Court's jurisdiction
ratione materiae.
47. In paragraph 104, letter b of its Observations the Russian Federation discusses elements
from the "Provisions of the Convention in Question in the Case" Sections of the
Bulgarian Declaration44
, already addressed in the Observations under Chapter V of this
document.45 Those paragraphs of the Bulgarian Declaration are dedicated to the
theoretical analysis by abstract notions of the construction of the compromissory clause
in Article IX of the Genocide Convention. No statements of facts or evidences are
contained.
48. The true understanding of those arguments could be reached by stressing that the
elements of the provision of the Convention were analyzed through their "'conformity
with the Convention with regard to the principle of interpretation .. . in good faith.'"46
Moreover, the proper understanding of the Bulgarian arguments would be given by
noting the consideration of the Cow-t' s case law used in the last sentence of paragraph 23
of the declaration, namely that "[i]n this aspect by the theological approach of
interpretation . . . 'an international instrument has to be interpreted . . . with.in the
framework of the entire legal system' _-P··
49. Those considerations apply to the interpretation of the term "dispute"48
, the principle of
good faith49 and the conclusion through generalization of the meaning of the concepts of
"a good faith performance"50, of the notion of "abuse of the law''51 (falsely cited as '·the
notion of abuse of rights" in paragraph 104, letter "b'. of the Russian observations) and
the use of force52, all necessary to assess the scope of Article IX of the Genocide
44 Bulgarian Declaration, paras 20, 23 and 28
45 Ibidem paras 19 - 28
~6 Ibidem para 23
~7 Ibidem para 23, last sentence referring to the Legal Consequences for States of the Continued
Presence ofSolllh Ajf'ica in Namibia, Advisory opinion, ICJ, 21 June 1971 , p. 53
48 Ibidem para 20
49 Ibidem para 23
50 Ibidem para 28
51 Ibidem para 28
52 Ibidem para 28
Convention related to the interpretation of the provision within its jurisdictional aspect
"within the framework of the entire legal system."53
50. In light of the above, The Republic of Bulgaria respectfully requests the Court to reject
the objection under Section F of Chapter II of the written observations of the Russian
Federation.
53 Legal Consequences/or States a/the Continued Presence a/South A.fi"ica in Namibia, Advisory opinion,
!CJ, 21 June 1971, p. 53
IX. CONCLUSION
51. For the above reasons, the Republic of Bulgaria respectfully requests the Court that all
objections to the admissibility of its intervention raised by the Russian Federation are
rejected and that the Declaration of intervention of the Republic of Bulgaria under
Article 63 of the Statute of the International Court of Justice in the case concerning
Allegations of Genocide under the Convention on the Prevention and Punishment of the
Crime of Genocide (Ukraine v. Russian Federation) is declared admissible.
Respectfully submitted,
Dr. Dimana Dramova
Agent of the Republic of Bulgaria