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

INTERNATIONAL COURT OF nJSTICE
OBSERVATIONS ON THE RUSSIAN FEDERATION'S
OBJECTIONS TO THE ADMISSIBILITY OF THE
DECLARATION OF INTERVENTION
OF THE REPUBLIC OF ESTONIA
In the case of
ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON
THE PREVENTION AND PUNISHMENT OF THE CRIME OF
GENOCIDE
(UKRAINE v. RUSSIAN FEDERATION)
OBSERVATIONS ON THE RUSSIAN FEDERATION'S OBJECTIONS TO
THE ADMISSIBILITY OF THE DECLARATION OF INTERVENTION OF
THE REPUBLIC OF ESTONIA
l. INTRODUCTION
1. The present observations are submitted to the International Court of Justice in accordance
with the letter No 158451 dated 31 January 2023 of the Registrar in relation to the
possibility to make written observations to the Russian Federation's objections as
submitted in written observations of 15 November 2022 on admissibility of the declarations
of interventions submitted by Australia, Austria, Denmark, Estonia, Finland, Greece,
Ireland, Luxembourg, Portugal and Spain in the case concerning Allegations of Genocide
under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation).
2. With the present observations, the Republic of Estonia 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. Thereafter, Estonia gives its written observations to the
objections of the Russian Federation.
II. ESTONIAN DECLARATION COMPLIES WI1H TIIB REQUIREMENTS OF THE STATUTE
3. Article 63 of the Statute provides that
"1. 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.
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(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) 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. Therefore, 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
Genocide Convention, but ventures into territory of application instead. 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
1 Haya de Ja Ton-e (Colombia v. Peru), Judgment, I.C.J. Reports 1951, p. 76; Continental Shelf (I'unisia/Libyan
Arab Jamahiriya), Application for Permission to Intervene, Judgment, I.C.J. Reports 1981, p. 13, para. 21.
2 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February
2013, I.C.J. Reports 2013, pp. 5-6, para. 8.
an intervention inadmissible if the statement does not interpret the Genocide Convention,
but elaborates on other self-standing bodies of international law unrelated to the Genocide
Convention. 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. The Republic of Estonia considers that it has fully complied with the admissibility
requirements under Article 63 of the Statute and Article 82 of the Rules of the Court. As
indicated in paragraph 24 of the Declaration, it became a party to the Genocide Convention
on 19 January 1992. Moreover, it has announced to the Court its intention to contribute to
the interpretations of Articles I, II-N, VIII and 1X of the Genocide Convention in
paragraphs 17, 27 and 39 of the Declaration. In doing so, the Republic of Estonia has
expressed its arguments on construction of certain provisions of the Genocide Convention
focusing in particular on construction of the compromissory clause of Article IX in general
terms and refrained from making any statements that could be regarded as an attempt to
apply the Convention to certain facts that 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. However, a
closer analysis reveals that none of the Russian argument in its written observations is based
on the law. Rather, as will be shown next, Russia invites the Court to read into the Statute
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 SUBJECTNE TEST ABOUT THE GENUINE INTERVENTIONS 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 various
intervening States, it takes issue with the fact that the intervention was part of a concerted
political strategy to help Ukraine in the case (paras 16-28). This, in the view of Russia,
would reveal an intention of the Republic of Estonia 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 Torres3 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 13
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 the Republic of Estonia 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 the case of SS Wimbledon, the Court
accepted that Poland as intervener shared the arguments of the applicant4. Moreover, the
Republic of Estonia does not "advocate side-by-side with Ukraine as de facto coapplicant",
as alleged in paragraphs 16, 17, 19, 20, 22, 34 of the Russian observations. As
demonstrated above, the. Republic of Estonia 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. The
Republic of Estonia has clearly stated in its Declaration paragraph 18 that it does not seek
to become a party to the proceedings. Russia's first argument is therefore entirely
unfounded.
B. THERE IS NO TEST VERIFYING THE EFFECTS OF AN INTERVENTION
13. 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
3 Haya de la Torre Case, Judgment ofJune 13th, 1951, I.C.J. Reports 1951, p. 71, at p. 77
4 Case of the SS W'zmhledon, judgment of 17 August 1923, P.C.I.J. Series A Nr. 1, p. 12, at p. 18.
"object" of the intervention to its "effects" on the case. That proposition is equally not
supported by the law.
14. 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 an intervention would affect the equality of parties if it stays within the
limits drawn by Article 63 of the 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 Inte-rvention, as set out in Article 63 of the Statute
and Article 82 of the Rules of Court ; whereas inte-rvention 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 Inte-rvention 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".
15. In other words, the Court confirmed in that order 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.
16. While acknowledging the existence of that order (para. 40), 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. 42-46) and
s Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of6 February
2013, I.C.J. Reports 2013, p. 3, at p. 9, paras. 18-19.
become '\mmanageable" for itself and the Court (para. 48-49). Admitting several
interveners would also rune "entirely against the Court's previous practice of admitting
only one intervener per case" (para. 52). However, contrary to the Russian assertions
expressed in paragraphs 39-51, the Court's order in Whaling in the Antarctic also presents
good law when the Court faces a situation of several interveners.
1 7. First, the assertion that the Court admitted only one intervener per case is misleading. To
the best knowledge of the Republic of Estonia, 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.
18. 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 party'. In such a situation, when the treaty embodies matters
of collective interest, the late Judge Cane:;ado 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 the Republic of Estonia of its right to intervene under Article
63 of the Statute on this important matter.
19. 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 paragraph 18 of its order in
6 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (I'he Gambia v.
Myanmar), Judgment of22 July 2022, p. 36, paras. 107-108.
7 Separate Opinion of Judge Can~ado Trindade, attached to Whaling in the Antarctic (Australia v. Japan),
Declaration of Intervention of New 7.ealand, Order of6 February 2013, I.C.J. Reports 2013, p. 33, para 53.
the Whaling in the Antarctic, the interveners do not become parties 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.
20. Fourth, the Republic of Estonia reckons that the number ofinterveners 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. The Republic of Estonia 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 to contribute to an
effective management of time of the Court and both parties.
C. THERE IS NO DUTY OF THE COURT TO REFRAIN FROM DECIDING ON THE
ADMISSIBILITY OF THE INTERVENTION BEFORE CONSIDERING RUSSIA'S
PRELIMINARY OBJECTIONS
21. 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 paragraphs 53-54, 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 SS Wimbledon), the Court
accepted interventions within the main phase, because - according to Russia in paragraph
54 - the jurisdiction was not challenged in a separate stage.
22. 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 prelinrinary objections.
However, such a duty does not exist in the law and the alleged precedents do not support
this view either.
23. 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, the second sentence of Article 82(1)
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.
24. Russia also advances an erroneous interpretation of the 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 the states, which are parties to the convention, to
intervene. However, the role of the Court in Article 63 of the Statute is restricted to verify
whether the conditions enumerated in Article 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 Torres9. 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.
25. 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
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
jurisdictionaVadmissibility phase, in the present case there is none.
8 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Dissenting Opinion ofJudge Schwebel, I.C.J. Reports 1984, p. 223, at p. 234.
9 Haya de la To"es Case, Judgment of June 13th. 1951, I.C.J. Reports 1951, p. 71, atp. 77.
10 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Provisional Measures, Orderofl0 May 1984, I.C.J. Reports 1984,p. 169, atp. 187, PointD (separatingjurisdiction
and admissibility from the merits phase); Nuclear Tests (New Zealand v. France), Interim Protection, Order of 22
June 1973, I.C.J. Reports 1973, p. 135, at p. 142
26. 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 12, Judges Ruda, Mosler, Ago, Jennings and De Lacharriere13, as well as Judge Oda14
ex.plained, 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.
27. 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 3 6(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.
28. The same is true for Nuclear Tests. 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 case16. In other words, the Court was able to
11 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Order of 4 October 1984, 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.
13 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.
14 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Intervention ofEI Salvador, Separate Opinion of Judge Oda, I.C.J. Reports 1984, p. 220.
15 Juan Jose Quintana, Litigation at the International Court of Justice, Brill 2015, pp. 943-944.
16 Nuclear Tests (New Zealand v. France), Application to Intervene, Order of 12 July 1973, I.C.J. Reports 1973,
p. 324, at p. 325.
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.
29. Fourth, Nuclear Tests (Request/or 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 reexamine
paragraph 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.
30. 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 objections.
D. THERE IS NO PROHIBITION FOR THE REPUBLIC OF ESTONIA TO ADDRESS
THE COURT'S JURISDICTION
31. In its fourth and fifth argument, the Russian Federation criticises that the Declaration 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 not 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 the Republic of Estonia's right
to intervene on Article IX of the Genocide Convention per se.
32. In the Republic of Estonia's view, this line of reasoning also runs contrary to Article 63 of
the Statute and the Court's practice.
3 3. According to Article 63 of the Statute, a State party may intervene in the proceedings
whenever the construction of a convention is in question. The plain wording of Article 63
of the Statute is not selective and refers to the entire convention, including its
compromissory clause, as the case may be. Accordingly, nothing in the text suggests that
the Republic of Estonia may not offer its construction of Article IX of the Genocide
Convention to the Court as it did in its Declaration paragraphs 25-38.
34. That point is further strengthened by the object and pwpose 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 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 indicates the same. 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 Salvadoes
attempt to influence the jurisdictional question before the Court was unsuccessful because
the declaration had not complied with the formal requirements under Article 82(2)(b) and
(c) of the Rules 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. 19 Based on this reading, he was prepared to admit El
Salvador's declaration on jurisdictional matters.
3 6. 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
17 MN Shaw (edJ, Rosenne's Law and Practice of the International Court 1920-2015 (stl' ed, Vol III, Brill Nijhoff
2016), 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/fams/OellersFrabmffomuschat
(eds), The Statute of the International Court of Justice: A Commentary (3ni ed. OUP 2019), p.
1741, at p. 1763, note 46.
18 Separate Opinion of Judge Oda in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), (Declaration of Intervention of El Salvador), Order of 4 October 1984, ICJ Reports
1984, p. 220, at p. 221.
19 Separate Opinion of Judge Schwebel in Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), (Declaration of Intervention of El Salvador). Order of 4 October 1984,
ICJ. Reports 1984, p 223-244.
question "20. Such an invitation would make no sense if States would not be able to make a
statement in Article IX of the Genocide Convention under Article 63 of the Statute.
3 7. It follows that the Republic of Estonia correctly exercised its right to intervene under Article
63 of the Statute. The fact that the intervention also addresses the compromissory clause
under Article IX of the Genocide Convention does not render the intervention inadmissible.
E. THE REPUBLIC OF ESTONIA'S ARGUMENTS ARE RELEVANT TO THE
CONSTRUCTION OF THE GENOCIDE CONVENTION AND THE DECLARATION
DOES NOT CONTAIN ISSUES UNRELATED TO THE GENOCIDE CONVENTION
38. In its last argument, the Russian Federation refers to Republic of Estonia's statement that
"addresses good faith in application of the Convention, whether there is evidence that
genocide has been committed or may be committed in Ukraine, issues relating to the use
of force, and compliance with the Court's provisional measures order." It alleges that these
issues do not relate to the construction of the Genocide Convention and contain an
impennissible 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.
39. The argument is based on a misperception of the Republic of Estonia's statement. Clearly,
the statement did not introduce any of these issues as a self-standing matter. Rather, the
statement was part of the construction of Articles I, II-N, VIII and IX of the Genocide
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 law21, the
20 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.
21 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Judgment of 22 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 31 to 33 of the Vienna Convention on the Law of
Treaties of 23 May 1969 "; 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.
interpretation of a treaty may include "any relevant rules of international law applicable
in the relations between the parties."
41. 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 Iaw22. It follows that mentioning either good faith, issues relating to the use of
force, or compliance with the Court's provisional measures order as an interpretative aid
to Articles I, 11-N, VIII and 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.
42. The Republic of Estonia 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
1 of the United Nations Charter. "23
43. It appears that the Court interpreted Article I of the Genocide Convention in light of Article
I of the UN Charter. In a similar vein, the Republic of Estonia suggests that it is possible
to interpret the Articles of the Genocide Convention on which the Republic of Estonia has
focused in its Declaration in the light of relevant international law, 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.
N. CONCLUSION
44. For the reasons set out above the Republic of Estonia is convinced that its Declaration of
Intervention fully complies with the requirements under Article 63 of the Statute and
22 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 K.oskenniemi, 13 April 2006, pp. 94-96.
https://legal.un.org/ilc/documentation/english/a cn4 1682.pdf.
23 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.
Article 82 of the Rules. In view of the foregoing, the Republic of Estonia respectfully
requests the Court to decide that the intervention is admissible and allow the Republic of
Estonia to present its written observations in good time in order to exercise its right to
intervene as party to the Genocide Convention.
Respectfully,
,..
/--7
Co-Agent of the Republic of Estonia
Den Haag, 13 February 2023