International Court of Justice
Allegations of Genocide under the Convention on the Prevention and
Punishment of the Crime of Genocide
(Ukraine v. Russian Federation)
OBSERVATIONS OF IRELAND ON THE ADMISSIBILITY OF ITS
DECLARATION OF INTERVENTION
13 February 2023
Observations of Ireland on the Admissibility of its Declaration of
Intervention
1. On 19 September 2022 the Government of Ireland filed its Declaration of Intervention
at the International Court of Justice ('the Court') under Article 63 of the Court's Statute
('the Statute') in the case concerning Allegations of Genocide under the Convention on
the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian
Federation). In its Declaration Ireland, as a Contracting Party to the Convention on the
Prevention and Punishment of the Crime of Genocide ('the Convention'), sets out the
construction of Articles I and IX of the Convention for which it contends.
2. Ireland notes that both Ukraine and the Russian Federation have filed observations on
Ireland's Declaration and that in its Observations the Government of Ukraine expresses
its view that the Declaration is admissible1.
3. Ireland further notes that in its Observations2 the Russian Federation has filed
objections to the admissibility oflreland's Declaration oflntervention and that, in such
circumstances and pursuant to Article 84, paragraph 2, of its Rules, the Court shall hear
from Ireland and the Parties to the case before determining the question of the
admissibility of Ireland's Declaration. Ireland further notes that, as the Registrar of the
Court indicated in his letter to the Agent of Ireland dated 31 January 2023, the Court
has decided to do so by means of a written procedure and has fixed 13 February 2023
as the time-limit for submission oflreland's written observations on the admissibility
of its Declaration.
4. Accordingly, Ireland submits herewith the following written observations on (i) the
admissibility of its Declaration of Intervention and (ii) the objections of the Russian
Federation to the admissibility of the said Declaration.
Observations on the Admissibility of Ireland's Declaration of Intervention
5. In its case law the Court has established that a declaration of intervention under Article
63 of the Statute shall be admissible only when the Court has ensured that the
1 Observations of Ukraine on the Declaration of Intervention of Ireland, 15 Nov. 2022, para 9.
2 Written Observations on Admissibility of the Declarations of Intervention submitted by Australia, Austria,
Denmark, Estonia, Finland, Greece, Ireland, Luxembourg, Portugal and Spain, 15 Nov. 2022
declaration concerned falls within the provisions of Article 63 and then verified that the
conditions set out in Article 82 of the Rules of Court ('the Rules') have also been met3.
6. 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 not[fy all such states
forthwith.
2. Every state so notified has the right to intervene in the proceedings; but tf it
uses this right, the construction given by the judgment will be equally binding upon it.'
7. By letter dated 30 March 2022 to the Ambassador of Ireland to the Kingdom of the
Netherlands, the Registrar of the Comi duly notified the Government of Ireland as a
Contracting Party to the Convention that, by Ukraine's Application of 26 February 2022
instituting proceedings against the Russian Federation, the Convention had been
'invoked both as a basis for the Court's jurisdiction and the substantive basis of
[Ukraine 's] claims on the merits.' The Registrar noted in his letter that: 'Ukraine seeks
to found the Court's jurisdiction on the compromissory clause contained in Article IX
of the Genocide Convention, asks the Court to declare that it has not committed a
genocide as defined in Articles II and III of the Convention, and raises questions
concerning the scope of the duty to prevent and punish genocide under Article I of the
Convention. It therefore appears that the construction of this instrument will be in
question in this case.'
8. Article 82, paragraph 1 of the Rules of the Court provides that:
'A State which desires to avail itself of the right of intervention conferred upon it by
Article 63 of the Statute shall file a declaration to that effect, signed in the manner
provided for in Article 38, paragraph 3, of these Rules. Such a declaration shall be
filed as soon as possible, and not later than the date fixed for the opening of the oral
proceedings. In exceptional circumstances a declaration submitted at a later stage may
however be admitted.'
3 cf Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6
February 2013, I.C.J. Reports 2013, pp. 5-6, paras. 7-8.
9. The Government of Ireland recalls that, desiring to avail itself of the right of
intervention in this case, it filed its Declaration of Intervention on 19 September 2022,
and that as of the date of these Observations no date for the opening of oral proceedings
has been fixed by the Court.
10. Article 82, paragraph 2 of the Rules of the Court provides that:
'The declaration shall state the name of an agent. It shall specify the case and the
convention to which it relates and shall contain:
(a) particulars of the basis on which the declarant State considers itself a party to the
convention;
(b) identification of the particular provisions of the convention the construction of
which it considers to be in question;
(c) a statement of the construction of those provisions for which it contends;
(d) a list of the documents in support, which documents shall be attached.'
11. Ireland recalls that in its Declaration of 19 September 2022 the name of the undersigned
was stated as its Agent in these proceedings and that the said Declaration specified the
present case and the Convention as those to which it relates. Ireland further recalls that
the said Declaration contained:
( a) particulars of the basis on which Ireland considers itself a Contracting Party to the
Convention, namely that it acceded to the Convention on 22 June 1976 and that, in
accordance with Article XIII of the Convention, the accession of Ireland became
effective on 20 September 1976;
(b) the identification of the particular provisions of the Convention the construction of
which Ireland considers to be in question, namely Articles I and IX;
( c) a statement of the construction of those provisions for which Ireland contends; and
(d) a list of the documents in support of its Declaration, which documents were attached
to it, namely a copy of the above referenced letter of the Registrar to the Ambassador
of Ireland at The Hague, dated 30 March 2022, and a copy of the Notification by the
Director of the General Legal Division of the Office of Legal Affairs, United Nations
Secretariat, of the Accession by Ireland to the Convention, dated 9 July 1976.
12. Accordingly, having regard to the particulars set out above, it is submitted that Ireland's
Declaration of Intervention clearly falls within the provisions of Article 63 of the
Statute and meets the conditions set out in Article 82 of the Rules of the Court.
Observations on the Objections raised by the Russian Federation
13. By its Written Observations on Admissibility of the Declarations of Intervention
submitted by Australia et al, dated 15 November 2022, the Russian Federation has filed
objections to the admissibility of Ireland's Declaration of Intervention. These
objections may be briefly summarised as follows:
(i) that in making its Declaration Ireland's 'real intention' is not to express its own
views on the construction of the Convention but rather become de facto co-applicants
and pursue a joint case with Ukraine, and that in this sense its Declaration is not a
'genuine intervention';
(ii) that Ireland's intervention, as one of a number of interventions under Article 63 of
the Statute, would be incompatible with the principle of equality of the parties and the
requirements of the good administration of justice;
(iii) that the Court cannot decide on admissibility of declarations of intervention before
it considers the preliminary objections of the Russian Federation;
(iv) that Ireland's declaration presupposes that the Court has jurisdiction and/ or that
Ukraine's Application is admissible;
(v) that an intervention on Article IX of the Convention is impermissible per se; and
(vi) that Ireland's Declaration seeks to address issues unrelated to the construction of
the Convention.
14. Having considered the objections of the Russian Federation Ireland offers the following
observations.
15. With regard to the first objection of the Russian Federation, Ireland can assure the Court
that its real intention is indeed to express its view on the construction of Articles I and
IX of the Convention and accordingly has advanced in its Declaration the construction
of those provisions for which it contends. Notwithstanding that real intention, however,
Ireland also notes that the Russian Federation has advanced no authority in the case law
of the Court to support its contention that a 'genuine intervention' is one determined by
reference to the intentions of the intervening state. As the case law of the Court
demonstrates, a 'genuine intervention' is one that falls within the provisions of Article
63 of the Statute and meets the conditions set out in Article 82 of the Rules of Court.
This is an objective test and no subjective requirement of 'real intentions' exists.
16. With regard to the objection of the Russian Federation that interventions, including
Ireland's, if deemed admissible, would be incompatible with the principle of equality
of the parties and the requirements of the good administration of justice, in Ireland's
view the equality of the paiiies before the Court cannot be affected by the intervention
of states pursuant to Article 63 of the Statute. The Court has observed that 'the principle
of the equality of the parties follows from the requirements of good administration of
justice. '4 Ireland agreed that equality of the parties is essential to ensure a fair outcome
but notes that this is assured where both parties have the same opportunities to plead
and present their cases. In Ireland's view an intervention under Article 63 of the Statute
does not disturb the pleading or presentation by either party of its case, and by making
such an intervention a state does not thereby become a party to the case. This view is
confirmed in the case law of the Court. For instance, in its Order of 6 February 2013
on the Declaration oflntervention of New Zealand in the Whaling case, the Court was
clear in its statement that 'such an intervention cannot affect the equality of the Parties
to the dispute.' 5
17. In its third objection the Russian Federation argues that the Comi may not decide on
the admissibility of declarations of intervention before it first considers the preliminary
objections of the Russian Federation, and the Russian Federation cites several
judgments of the Court as authority for this argument. However, in Ireland's view the
Russian Federation is mistaken in its understanding of these judgments, all of which
can be distinguished from the present case. There is in fact no authority for the view
advanced by the Russian Federation in the case law of the Court nor does the plain
meaning of Article 63 of the Statute suppo1i that view.
4 Judgments of the Administrative Tribunal of the ILO upon complaints made against UNESCO, ICJ Reports
1956, pp77
5 ICJ Reports 2013, p. 9, para. 18.
18. The Russian Federation cites the Military and Paramilitary Activities6 and the Nuclear
Tests7 cases as authorities for excluding consideration of an intervention prior to
disposing of preliminary objections. However, in both these cases the Court had
decided under Article 79 of the Rules to address the issues of jurisdiction and
admissibility in the first phase before dealing with merits in a second phase. This is not
the approach taken by the Court in the present case as the Court has taken no decision
under Article 79 that questions concerning its jurisdiction or the admissibility of the
Application are to be determined separately.
19. In fact, in the Military and Paramilitary Activities case the Court would appear to have
dismissed El Salvador's declaration during the jurisdictional phase because it did not
contend for the construction of Article 36 of the Statute of the Court, which provided
the basis for the Court's jurisdiction in that case. In the Nuclear Tests case, having
deemed it admissible, the Comt nevertheless deferred consideration of Fiji's
declaration to the merits phase because it did not contend for the construction of any
convention providing a legal basis for the Court's jurisdiction and was in fact limited
to matters relating to the merits.
20. The Russian Federation also cites the Nuclear Tests (Request/or Examination)8 case.
However, in that case the Court held a hearing on both New Zealand's Application to
revive earlier proceedings and the declarations of interventions made by Samoa, the
Solomon Islands, the Marshall Islands and the Federated States of Micronesia, and
dismissed both the Application and the declarations together. This case is not an
authority for postponing consideration of interventions until after disposal of
preliminary objections.
6 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America},
Declaration of Intervention, Order of 4 October 1984, I.C.J. Reports 1984, p. 216, paras 2-3.
7 Nuclear Tests {New Zealand v. France), Application to Intervene, Order of 12 July 1973, I.C.J. Reports 1973, p.
325.
8 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20
December 1974 in the Nuclear Tests {New Zealand v. France) Case, I.CJ. Reports 1995, pp. 306-307, paras 67-
68.
21. In its fourth objection the Russian Federation presents the Military and Paramilitary
Activities9 case as supporting its argument that a declaration of intervention made in the
jurisdiction and admissibility phase of a case 'presupposes' jurisdiction and
admissibility and its consideration should therefore be delayed until the merits phase.
In Ireland's view this objection is misconceived for two reasons. Firstly, the Court has
not ordered separate phases in the present case. Secondly Article 63 of the Statute does
not distinguish between the jurisdictional and merits phases of litigation or between
substantive and procedural provisions of a convention: an intervention may be made by
a state in relation to the construction of any or all provisions of a convention to which
it is a party and which is or are in question in a case before the Court, including the
provision of a convention on the basis of which the Court's jurisdiction may be
grounded. As noted above, El Salvador's declaration during the jurisdictional phase in
the Military and Paramilitary Activities case would appear to have been dismissed at
that stage because it did not contend for the construction of any provision of a
convention relevant to questions of jurisdiction and admissibility in that case. That did
not prevent it from making a later declaration on the construction of a convention
relevant to the merits of the case if it wished to do so.
22. With respect to the fifth objection raised by the Russian Federation, namely that an
intervention on Article IX of the Convention is impermissible per se, in Ireland's view
there is simply no authority for this proposition. The fact that Judge Kreca in the Bosnia
Genocide10 case described Article IX of the Convention as 'a standard compromissory
clause' does not in any way mean that it is a clause of a convention for the construction
of which a state may not contend under Article 63 of the Statute or Article 82 of the
Rules. There is no authority for such an assertion.
23. In its Declaration of Intervention in the present case the construction of Article IX for
which Ireland contends is that a dispute in which an allegation of commission of
genocide, or failure to prevent genocide, is made by one Contracting Party to the
Convention against another Party, which the latter denies, is a dispute that comes within
9 Military and Paramilitary Activities in and against Nicaragua {Nicaragua v. United States of America),
Declaration of Intervention, Order of 4 October 1984, I.C.J. Reports 1984, p. 216, para. 2.
10 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary
Objections, Judgment, Separate opinion of Judge ad hoe Kreca, I.C.J. Reports 1996, p. 770, para. 105.
the scope of Article IX. This is a legitimate subject of intervention under Article 63 of
the Statute.
24. Finally, the Russian Federation notes that 'intervention under Article 63 of the Statute
is limited to the interpretation of the treaty provisions in question in a contentious case'
and argues that '(a)ny declaration of intervention purporting to address any matter that
is not confined to this limited object must consequently be declared inadmissible.' 11 It
proceeds to argue that Ireland's Declaration should be deemed inadmissible because it
'refers to the principle of good faith in the application of the Convention.' 12
25. This argument rests on a misunderstanding oflreland' s Declaration. That Declaration's
reference to the principle of good faith simply recalls the provisions of the Vienna
Convention on the Law of Treaties relevant to the interpretation of a treaty, namely
Article 31 ( 1) and (3 )( c ), which codify the relevant rules of customary law on these
points. Article 31(1) provides that 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.' Article 31 (3 )( c) provides that in
interpreting a treaty there 'shall be taken into account ... any relevant rules of
international law applicable in the relations between the parties.' One such rule is set
out in Article 26 of the Vienna Convention on the Law of Treaties, which codifies the
relevant customary international law rule and provides that 'Every treaty in force is
binding upon the parties to it and must be performed by them in good faith.' Ireland is
not asking the Court to construe the provisions of the Vienna Convention on the Law
of Treaties but rather, in contending for the construction it places on Articles I and IX
of the Genocide Convention, simply recalling the relevant rules of treaty interpretation.
Conclusion
26. For the reasons set out above Ireland is satisfied that its Declaration of Intervention
clearly falls within the provisions of Article 63 of the Statute and meets the conditions
set out in Article 82 of the Rules of Court. Accordingly, it requests the Court to dismiss
11 Written Observations of the Russian Federation 15 November 2022, para 105, p. 47.
12 Written Observations of the Russian Federation 15 November 2022, para 106(g), p. 49.
the objections of the Russian Federation and determine that its Declaration of
Intervention is admissible.
Agent of the Government of Ireland
Written Observations of Ireland on the admissibility of its Declaration of Intervention