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

International Court of Justice
Allegations of Genocide under the Convention on the Prevention and Punishment of the
Crime of Genocide
(Ukraine v. Russian Federation)
Spain's Written Observations
on the Admissibility of Its Declaration of Intervention
10 February 2023
1
I. Introduction
1. On 29 September 2022, Spain submitted to the Court a Declaration of Intervention pursuant
to Article 63 paragraph 2 of the Statute of the Court in the Case concerning The Allegations of
Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation). While Russia pleaded to the Court to reject it as inadmissible,
Ukraine argued that it is admissible.
2. With the present observations, Spain wishes to share with the Court its understanding of
Article 63 of the Statute first in order to demonstrate that it fully complied with all the
requirements (II.). It then addresses Russia's main arguments (III.) before concluding (IV.).
II. The Declaration complies with the requirements of the Statute
3. Article 63 of the Statute provides that
"I. Whenever the construction of a convention to which states other than those concerned
in the case are parties is in question, the Registrar shall notified all such states forthwith.
2. Every state so notified has the right to intervene in the proceedings; but if it uses this
right, the construction given by the judgment will be equally binding upon in."
4. Article 82, paragraph 2, of the Rules of the Court provides that a declaration of a State's
desire to avail itself of the right of intervention conferred upon it by Article 63 of the Statute
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 documents in support, which documents shall be attached
5. A plain reading of these provisions indicates that every State party to the Genocide
Convention has a "right" to intervene, as confirmed by the Court1. In line with Article 82(2)
'Haya de la Torre (Colombia v. Peru), Judgment, I.CJ. Reports 1951, p. 76; Continental Shelf (Tunisia/Libyan
Arab Jamahiriya), Application for Permission to Intervene, Judgment, I.CJ. Reports 1981, p. 13, para. 21.
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of the Rules, this right may be exercised in the present case if four objective criteria are fulfilled:
(a) The State must show that it has become party to the Genocide Convention;
(b) The intervention must identify the particular provisions of the Genocide Convention the
construction of which is in question;
( c) The intervention must contain "a statement of the construction" of these provisions of
the Genocide Convention.
( d) The intervention must contain a list of documents in support
6. Hence, the admissibility test is a simple one. The Court has to ascertain whether the object
of the desired intervention stems from a State Party to the Genocide Convention and whether
the object of the intervention is in fact the interpretation of the identified provisions of the
Genocide Convention2
.
7. The latter condition leaves room for only two grounds of inadmissibility. First, the Court can
reject a statement if it turns out that a State does not advance a "construction" of the Convention
in question, but ventures into territory of application. In such a case, an intervener would act as
if it was a co-complainant or co-defendant, circumventing the procedural requirements to
become a party in its own right. Second, the Court can declare an intervention inadmissible if
the statement does not refer to the Convention in question, but to other self-standing bodies of
international law. In such a case, the Court would not be required to look at the purported
intervention, as it would be irrelevant to the case at hand.
8. Spain considers that it has fully complied with the admissibility requirements under Article 63
of the Statute and 82 of the Rules of the Court. As indicated in para. 16 of the Declaration, it
became a party to the Genocide Convention. Moreover, it has announced to the Court its intention
to contribute to the interpretations of Article IX of the Genocide Convention in paras. 13 of the
Declaration. In doing so, Spain has refrained from making any statements that could be regarded
as an attempt to apply the Convention to certain facts the occurred between Ukraine and Russia.
Accordingly, it has also not endorsed the Ukrainian pleas or arrogated itself any other right that
is reserved to a party to the dispute.
9. The Russian Federation nevertheless objects to this straightforward analysis by advocating five
counter-arguments. However, a closer analysis reveals that none of them is based on the law.
Rather, as will be shown in the next section, Russia invites the Court to read into the Statue
' Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of
6 February 2013, l.C.J. Reports 2013, pp. 5-6, para. 8.
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additional requirements on admissibility for interventions under Article 63 of the Statute, which
are not there.
III. The arguments of the Russian Federation are not based on the law
A. There is no subjective test about the genuine intentions of the intervener
10. In its first argument, the Russian Federation tries to convince the Court rejecting the
intervention as not being "genuine". Quoting several political statements of a various
intervening States in paragraphs 15-29, it takes issue with the fact that the intervention was part
of a concerted political strategy to help Ukraine in the case. This, in the view of Russia, would
reveal an intention of Spain to become a de-facto co-complaint.
11. The Russian presentation of the law is erroneous. The Court has used the expression of
"genuine intervention" in Haya de la Torre3 to describe how it operated the objective test of
finding out whether the object of the intervention of Cuba was the interpretation of the Havana
Convention (a "genuine" intervention) or an attempt to re-litigate another case (not a "genuine"
intervention). However, contrary to the Russian observation in paragraph 14, the Court did not
consider the text of the declaration and the context within it had been filed to establish the
"genuine intention" of Cuba. This semantic shift from an objective test (was the intervention
"genuine"?) to a subjective test (was the government's intention "genuine"?) does not have any
basis in the case law of the Court. Accordingly, the political motivation of Spain underlying
the declaration of intervention is irrelevant.
12. Similarly, the question whether an intervener would be ''taking sides" or not, cannot trigger
the inadmissibility of an intervention. Already in Wimbledon, the Court accepted that Poland as
intervener shared the arguments of the applicant4. Moreover, Spain does not "advocate side-byside
with Ukraine as "de-facto- co-applicant", as alleged in paragraph 31 of the Russian
observations. As demonstrated above, Spain did not submit a complaint against Russia, did not
advance any facts and claims against Russia on which it asked the Court to hand down a
judgment, and did not arrogate itself any other rights of a complainant. Russia's first argument is
therefore entirely unfounded.
13. Finally, the Russian allegation that Spain has taken a different position on Article IX of
the Genocide Convention in the Yugoslavia v. Spain case is erroneous. (par 31 ). In any case,
even if a legal position had evolved over time (quad non est), such evolution would not be a
criterion to deny the admissibility of the intervention .
., Haya de la Torre Case, Judgment of June 13th, 1951, I.C.J. Reports 1951, p. 71, at p. 77
'Case of the SS Wimbledon, judgment of 17 August 1923, P.C.I.J. Series A Nr. 1, p. 12, at p. 18.
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B. There is no test verifying the effects of an intervention
14. In its second argument, the Russian Federation pleads admitting the intervention would be
incompatible with the equality of the Parties and the requirements of good administration of
justice. It thereby shifts the test under Article 63 of the Statute from verifying the "object" of
the intervention to its "effects" on the case. That proposition is equally not supported by the
law.
15. The first argument was already advanced by Japan in Whaling in the Antarctic. True, Judge
Owada gave some credence to the idea of an effects test to restrict the admissibility of an
intervention, as quoted extensively in paragraphs 36-38 of the Russian submission. However,
he remained isolated with his position in the bench. The Court itself dismissed the very idea that
it an intervention would affect the equality of parties if it stays within the limits drawn by Article
63 !CJ-Statute. When admitting New Zealand's intervention, it ruled5:
"18. Whereas the concerns expressed by Japan relate to certain procedural issues
regarding the equality of the Parties to the dispute, rather than to the conditions for
admissibility of the Declaration of Intervention, as set out in Article 63 of the Statute
and Article 82 of the Rules of Court ; whereas intervention under Article 63 of the
Statute is limited to submitting observations on the construction of the convention in
question and does not allow the intervenor, which does not become a party to the
proceedings, to deal with any other aspect of the case before the Court ; and whereas
such an intervention cannot affect the equality of the Parties to the dispute;
19. Whereas New Zealand has met the requirements set out in Article 82 of the Rules
of Court; whereas its Declaration of Intervention falls within the provisions of Article
63 of the Statute; whereas, moreover, the Parties raised no objection to the
admissibility of the Declaration; and whereas it follows that New Zealand's
Declaration of Intervention is admissible".
16. In other words, the Court confirmed that a proper declaration of intervention under Article
63 of the Statute, which is limited to submitting observations on the construction of the
convention in question, cannot affect the equality of the Parties per se.
17. While acknowledging the existence of this order (para. 3 7), Russia takes issue with the fact
that the high number of interventions would nevertheless raise an issue of representativeness in
the bench under Article 31 ( 5) of the Statute (paras. 3 9-4 3) and become "unmanageable" for itself
and the Court (para. 45). Admitting several interveners would also rune "entirely against the
Court's previous practice of admitting only one intervener per case" (para. 49). However,
' Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order
of6 February 2013, I.CJ. Reports 2013, p. 3, at p. 9, paras. 18-19.
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contrary to the Russian assertions expressed in paragraphs 36-48, the Court's order in Whaling
in the Antarctic also presents good law when the Court faces a situation of several interveners.
18. First, the assertion that the Court admitted only one intervener per case is misleading. To
the best knowledge of Spain, the Court has never refused a declaration of intervention with the
reasoning that it had already allowed the intervention of another State, and allowing a second
one would therefore be inadmissible.
19. Second, such an approach would also be manifestly arbitrary. The Court has no power to
declare an intervention inadmissible because another State had already done so before. Such a
restriction would directly encroach of the "right of intervention" of every State party to a
Convention whose construction is at issue. It may well be the case that States were cautious to
exercise this right in the past, leading to very few interventions in the history of the Court so far.
However, that is a pure matter of policy. According to the law, all State parties have the right to
intervene under Article 63 of the Statute at the same time, if they so wish. Under the Genocide
Convention, all State Parties can even invoke the responsibility of another party for a breach of
its obligations erga omnes to institute proceedings against the other party6. In such a situation,
when the treaty embodies matters of collective interest, the late Judge Can9ado Trindade called
upon all State Parties to contribute to the proper interpretation of the treaty as sort of a "collective
guarantee of the observance of the obligations contracted by the State parties"7
. In the present
case, the fact that many other States felt the need to share their interpretation of the Genocide
Convention with the Court cannot deprive Spain of its right to intervene under Article 63 of the
Statute on this important matter.
20. Third, it is a direct and inevitable consequence of numerous interventions that some judges
in the bench may hold the same nationality as an intervening State. However, that does not
infringe the equality of the parties. As recalled by the Court in para. 18 of its order in the
Whaling case, the interveners do not become party to the proceedings. Therefore, Articles 31
(5) of the Statute, and Articles 32 and 36 of the Rules, as quoted by the Russian Federation,
do not apply. Moreover, all judges are bound to uphold their neutrality and impartiality in
accordance with Article 20 of the Statute.
21. Fourth, Spain reckons that the number of interveners in the present case is unprecedented
and may indeed present new organisational challenges to the Court. In line with Article 30(1)
of the Statute, the Court enjoys large discretion to organise the proceedings. Spain welcomes
the decision of the Court to ask for written submissions of the interveners with an identical
deadline in order to streamline the process. In order to help in the good administration of
justice, it also reiterates its willingness to coordinate its further action before the Court with
other interveners, in particular other EU Member States, to contribute to an effective
management of time of the Court and both parties.
'Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Judgment of22 July 2022, p. 36, paras. 107-108.
' Separate Opinion of Judge Carn;:ado Trindade, attached to Whaling in the Antarctic (Australia v. Japan),
Declaration of Intervention of New Zealand, Order of6 February 2013, I.CJ. Reports 2013, p. 33, para 53.
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C. There is no duty of the Court to refrain from deciding on the admissibility of the
intervention before considering Russia's preliminary objections
22. In its third argument, the Russian Federation maintains that the Court has never allowed
interventions at the preliminary stage of the proceedings in which jurisdiction or admissibility
of an application was challenged. In paras. 50-52, it quotes six cases in support. In the first
three instances (Military and Paramilitary Activities, Nuclear Tests and Nuclear Tests (Request
for Examination), the Court is said to have discarded interventions in the respective phases
relating to jurisdiction or admissibility. In the second three instances (Haya de la Torre,
Whaling in the Antarctic and Wimbledon), the Court accepted interventions within the main
phase, because - according to Russia in para. 51 - the jurisdiction was not challenged in a
separate stage.
23. It appears that Russia draws from this practice a duty of the Court to refrain from deciding on
the admissibility of the interventions before considering its preliminary objections. Helas, such a
duty does not exist in the law and the alleged precedents do not support this view either.
24. First, Article 63 of the Statute does not make any distinction between separate phases before
the Court. Rather, the opening word "whenever" indicates that a State is allowed to intervene
in all phases of the proceedings8. Moreover, Article 82(1 ), second sentence of the Rules sets
out only an outer time limit, i.e. a duty to intervene no later than the date fixed for the oral
hearing. Again, the mention of an "oral hearing" does not distinguish between separate phases
of the Court - the intervention may be filed before the oral hearings set for the
jurisdictional/admissibility phase or before the merits phase. In addition, the invitation to file a
declaration "as soon as possible" in that provision confirms that the filing of an Article 63
declaration is admissible at this stage of the proceedings.
25. Russia also advances an erroneous interpretation of the words "Convention in question" in
Article 63 of the Statute. In its view, it would be first for the Court to determine the "dispute"
pending before it before allowing Convention states to intervene. However, the role of the Court
in Article 63 of the Statute is restricted to verify whether the conditions enumerated in Art.
82(2) of the Rules are complied with. Contrary to the Russian allegation, the Court did not
determine first the subject matter of the dispute in Haya de la Torre9. Rather, the Court only
ascertained whether the object of the intervention of the Government of Cuba was in fact the
interpretation of the Havana Convention in regard to the question whether Colombia is under
an obligation to surrender the refugee to the Peruvian authorities.
26. Second, in the first two cases quoted by Russia in support for such a duty (Military and
Paramilitary Activities and Nuclear Tests) the Court had actually decided to split the
proceedings in separate phases10 before examining the admissibility of the subsequent
' Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Dissenting Opinion of Judge Schwebel, I.CJ. Reports 1984, p. 223, at p. 234.
'Haya de la Torres Case, Judgment of June 13th 1951, I.CJ. Reports 1951, p. 71, at p. 77.
10 Milita,y and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Provisional Measures, Order of 10 May 1984, I.CJ. Reports 1984, p. 169, at p. 187, Point D (separating
7
interventions. In the present case, the Court did not order under Article 79(1) of the Rules to
separate the proceedings after the filing of Russia's preliminary objection. Rather, it has allowed
Ukraine to address jurisdiction, admissibility and merits in one memorial. Accordingly, no
authority can be drawn from Military and Paramilitary Activities and Nuclear Tests for the
present case: in those cases, there was a different jurisdictional/admissibility phase, in the present
case there is none.
27. Third, even if the Court had separated the proceedings in the two separate phases here, nothing
in the case law supports a duty of the Court to refrain from deciding on the admissibility of an
intervention during the jurisdictional phase. In Military and Paramilitary Activities, the Court's
jurisdiction depended on an understanding of Article 36(2) and (5) of the Statute, and the merits
touched upon questions of the UN Charter and customary international law. El Salvador's
Declaration of intervention of 15 August 1984 addressed mainly the latter and did not contain any
statement on how it would construe Article 36(2) and (5) of the Statute. Against that background,
the Court dismissed the application "in as much as it relates to the current phase of the
proceedings"11
. As judge Singh 1
2
, judges Ruda, Mosler, Ago, Jennings and De Lacharriere13
, as
well as judge Oda14 explained, it had weighed in the Court that El Salvador's declaration was
mainly directed to the merits of the case, but insufficient with respect to the jurisdictional question
before the Court. This explanation is shared by the doctrine15.
28. Therefore, it appears that the Court rejected El Salvador's declaration as inadmissible
during the jurisdictional phase because and only insofar it did not contain any construction of
Article 36(2) and (5) of the Statute as the jurisdictional base of the case. The Court did not find
that no intervention under Article 63 of the Statute could ever be admissible during a
jurisdictional phase, as the Russian Federation seems to read into the Court's order of 4 October
1986.
29. The same is true for the Nuclear Tests case. After having ordered a jurisdictional phase in
June 1973, the Court declared in July 1973 Fiji's intervention of May 1973 admissible. However,
it deferred the consideration thereof to the merits as the intervention did not contain any
construction of the jurisdictional basis of the case 1
6
. In other words, the Court was able to
jurisdiction and admissibility from the merits phase); Nuclear Tests (New Zealand v. France), Interim
Protection, Order of22 June 1973, I.C.J. Reports 1973, p. 135, at p. 142
11 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Order of 4 October I 984, I.C.J. Reports 1984, p. 215, at p. 216.
12 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Separate Opinion of Judge Singh, I.C.J. Reports 1984, p. 218.
,, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Separate Opinion of Judges Ruda, Mosler, Ago, Sir Robert Jennings, and De
Lacharriere, I.C.J. Reports 1984, p. 219.
"Milita,y and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Separate Opinion of Judge Oda, I.C.J. Reports 1984, p. 220.
,s Juan Jose Quintana, litigation at the International Court of Justice, Brill 2015, pp. 943-944.
"Nuclear Tests (New Zealand v. France), Application to Intervene, Order of 12 July 1973, I.C.J. Reports 1973,
p. 324, at p. 325.
8
decide about the admissibility of the intervention during the ongoing jurisdictional phase, but
deferred it to the merits phase, as it only dealt with issues relating to the merits.
30. Fourth, Nuclear Tests (Request for Examination) does not support the Russian argument
either. In that rather specific case, the Court had before it New Zealand's application from
August 1995 and four subsequent interventions under Article 63 of the Statute to re-examine§
63 of its earlier judgment in Nuclear Tests. Instead of separating the proceedings, the Court
held a hearing in September 1995 and rejected both the application and the four interventions
in an order of October 1995. Hence, the only lesson from this case is that the Court has
discretion to dismiss an application together with purported interventions. However, the
precedent does not entail a duty of the Court to disregard an intervention prior to the
examination of preliminary objections from the Defendant.
31. In conclusion, nothing in Article 63 of the Statute or in the Court's case law supports the
Russian view that the Court cannot deal with the admissibility of an intervention before
deciding on Russia's preliminary objection.
D. There is no prohibition for Spain to address the Court's jurisdiction
32. In its fourth and fifth argument, the Russian Federation criticises that the declaration
address would in effect address matters, which presuppose that the Court has jurisdiction and/or
that Ukraine's application is admissible. Russia complains, in particular, that the declaration
contains a construction of Article IX of the Genocide Convention on the jurisdiction of the
Court. For Russia, this makes the declaration inadmissible as it is written in a way that
presupposes that the Court has jurisdiction over the alleged dispute. Thereby, Russia effectively
maintains that a State may note intervene on questions of jurisdiction, as taking a position on
that point would "presuppose" that the Court has jurisdiction. In its fifth argument, it repeats
this point with more clarity, contesting Spain's right to intervene on Article IX of the
convention per se.
In Spain's view, this line of reasoning also runs contrary to Article 63 of the Statute and the
Court's practice.
33. According to Article 63 (1) of the Statute, a State party may intervene on the "construction
of a convention". The plain wording refers to the entire Convention, including its
compromissory clause, as the case may be. Accordingly, nothing in the text suggests that a
State may not offer its construction of Article IX of the Genocide Convention to the Court.
34. That point is further strengthened by the object and purpose of Article 63 of the Statute. States
do not only have a legitimate interest to share with the Court their interpretation of substantive
obligations contained in a Convention at stake before the Court. It is of equal importance to be
heard on jurisdictional issues, as this may affect their own position before the
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Court in future cases relating to themselves. Hence, an intervention under Article 63 of the
Statue may cover both jurisdictional and substantive aspects 17.
35. Subsequent practice before the Court points into the same direction. So far, the Court has
never dismissed an intervention because it was ( entirely or primarily) directed to interpreting a
compromissory clause. Rather, in Military and Paramilitary Activities El Salvador's attempt to
influence the jurisdictional question before the Court was unsuccessful because the declaration
had not complied with the formal requirements under Rule 82(2)(b) and ( c) for the great majority
in the Court. Had it done so, it would have been of interest to the Court, as expressly confirmed
by Judge Oda 18. Moreover, Judge Schwebel even found that the faults of El Salvador's initial
declaration on jurisdiction had been healed by subsequent letters. Based on this reading, he was
prepared to admit El Salvador's declaration on jurisdictional matters.
36. In Pakistani Prisoners of War, Judge Petren defended a similar view. He noted that
Pakistan and India had different views about the Genocide Convention, including its
jurisdictional clause. In his view, "Article 63 of the Statute of the Court required the
questions thus raised to be notified without delay to the States parties to the two international
instruments in question" 19 . Such an invitation would make no sense if States would not be
able to make a statement in Article IX Genocide Convention under Article 63 of the Statute.
37. It follows that Spain correctly exercised its right to intervene under Article 63 of the
Statute. The fact that the intervention entirely addresses the compromissory clause under
Article IX of the Genocide does not render the intervention inadmissible.
E. The Declaration does not contain issues unrelated to the Genocide Convention
38. In its last argument, the Russian Federation refers to Spain's statements in par. 8, 29
and 30. It alleges that these observations does not relate to the construction of the Genocide
Convention and contains an impermissible incursion into the interpretation or application of
other rules of international rules that are distinct from the treaty in question and derive from
different sources.
"MN Shaw (ed), Rosenne's Law and Practice of the International Court 1920-2015 (5th ed, Vo! III, Brill
Nijhoff2016), p. 1533, H. Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years
of Jurisprudence (Vol I, OUP 2013), p. 1031; A. Miron/C. Chinkin, "Article 63" in:
Zimmermann/Tams/Oellers-Frahm/Tomuschat (eds), The Statute of the International Court of Justice: A
Commentary (3 rd ed. OUP 2019), p. 1741, at p. 1763, note 46.
"Milita,y and Paramilita,y Activities in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Separate Opinion of Judge Oda, I.CJ. Reports 1984, p. 220, at p. 221.
"Trial of Pakistani Prisoners of War (Pakistan v. India), Interim Protection, Order of 13 July 1973, Separate
Opinion of Judge Petren, I. C.J. Reports 1973, p. 334, at p. 335.
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39. The argument is based on a misperception of Spain's statement. Clearly, the statement did
not introduce this issue as a self-standing matter. Rather, the statement was part of the
construction of Article IX of the Convention.
40. Such technique is permissible under international law. According to Article 31 (3)( c) of the
Vienna Convention on the Law of Treaties, representing customary international law20
, the
interpretation of a treaty may include
"any relevant rules of international law applicable in the relations between the parties."
According to the Report of the ILC Study Group on Fragmentation of International law, the
notion of "relevant rule" includes customary international law, general principles of law and
treaty law21
. It follows that mentioning a general principle of law as an interpretative aid to
Article IX of the Convention cannot be disqualified as "impermissible incursion". Rather, it
contributes to the required integral interpretation of international law as a legal order.
41. Spain finds further support for its position in the Court's order of 16 March 2022. In
paragraph 58, the Court stated:
The acts undertaken by the Contracting Parties "to prevent and to punish" genocide
must be in conformity with the spirit and aims of the United Nations, as set out in
Article I of the United Nations Charter. 22
42. It appears that the Court interpreted Article I of the Genocide Convention in light of Article
1 of the UN-Charter. In a similar vein, Spain suggest that it is possible to interpret Article IX in
the same light, as permitted by Article 31 (3)( c) of the Vienna Convention. Such operation does
not transcend the boundaries of Article 63 of the Statute, but stays within the requirement of
constructing the Convention at issue in line with accepted rules of treaty interpretation.
43. As it is known, Spain's intervention focuses on art. IX which is certainly a procedural article
as it refers to the solution of disputes that arise between the parties at the time of interpreting,
• Appt'icution oft-he Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Judgment of22 July 2022, p. 31, para. 87: "The Court will have recourse to the rules of customary
international law on treaty interpretation as reflected in Articles 3 I to 33 of the Vienna Convention on the Law
of Treaties of 2 3 May I 969 "; see also Application of the International Convention On the Elimination of All
Forms of Racial Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment of 4
February 2021, p. 24, para. 75 with further references.
21 Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of
International Law: Report of the Study Group of the ILC finalised by Mr. Martti Koskenniemi, 13 April 2006,
pp. 94-96. https://legal.un.org/ilc/documentation/english/a cn4 1682.pdf.
"Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russia), Order of 16 March 2022, p. 13, para. 58.
11
applying and executing the convention. However, to the extent that "executing the convention
implies the adoption by the States of legislative, judicial and judicial cooperation measures,
article IX considerably broadens its profiles.
44. Spain, therefore, considers of importance that Article IX be interpreted by the Court. This
is the aim of Spanish declaration which, as required, includes a constructive reading of Art. IX.
45. Spain considers that Article IX allows recourse to the International Court of Justice for it to
determine whether or not a State ("any of the parties to the dispute"):
1) has committed a specific act of genocide,
2) has complied or not with the treaty obligation to prevent the commission of acts of genocide
in its territory, and
3) has sanctioned the acts of genocide in the manner required by the Convention.
Spain offers this construction of a capital article of the Convention based on the rules of
interpretation included in the Vienna Convention on the Law of Treaties: "A treaty shall be
interpreted in good faith in accordance with the ordinary meaning to be given to the terms of
the treaty in their context and in the light of its object and purpose" (Art. 31.1 ).
46.Consequently, contrary to what Russia has stated, the Spanish Declaration does not ask the
Court to analyze provisions unrelated to the Convention, such as those relating to the prohibition
of the use of armed force, or provisions other than Article IX.
IV. Conclusion
47.For the reasons set out above Spain is convinced that its Declaration of Intervention fully
complies with the requirements under Article 63 of the Statute and Article 82 of the Rules.
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The Court should therefore decide that the intervention is admissible and allow Spain to present
its written observations in good time in order to exercise its right to intervene as party to the
Genocide Convention.
10th February 2023, Sant ago Ripol Camila, Agent of the Government of Spain
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