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

OBSERVATIONS ON THE OBJECTIONS OF THE RUSSIAN FEDERATION TO
THE ADMISSIBILITY OF THE DECLARATION OF INTERVENTION OF THE
REPUBLIC OF LATVIA
Riga, 13 February 2023.
I. I TRODUCTION ............................................................................................................. 2
11. ARGUME TS .. ................................................................. ............................................... 3
A. The Dedaration Falls within the Provisions of Article 63 of the Statute and Article 82
ofthe Rules ofCourt .......... ................................................................................ .............. ...... 3
B. Latvia's Intervention is Compatlble with the Principle of Equality of the Parties and the
Requirements of Good Administration of .rustice ................................................................. 6
C. The Court Can Decide on the Admissibility of the Declaration before It Considers
Russia's Preliminary Objections ................................................................... .................... ..... 8
D. The Declaration D-0es not Inappropriately Presuppose that the Court Has Jurisdiction
and/or that Ukraine's Application is Admissible ........................................ .. ....................... 11
E. The Dedaration Does not Seek to Address Issues Unrelated to the Construction of the
Convention and its Admission would not Prejudge Questions Relating to The Court's
Jurisdiction Ratione Materiae ........... ..... ............ .............. .................................................... 14
Ill. SUBMISSIONS ............................................. .................................................................. 15
I. INTRODUCTION
l. On 21 July 2022, Latvia submitted a Declaration of Intervention ("the Declaration")
pursuant to the right to intervene set out in Article 63, paragraph 2, of the Statute of the
International Court of Justice ("the Court"), in the case concerning Allegations of Genocide
under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation) ("the Proceedings"). 1 On 18 October 2022, the Registrar
of the Court transmitted to Latvia copies of the Written Observations of Ukraine on the
admissibility of the Declaration of Intervention filed by Latvia under Article 63 of the
Statute of the Court2 and the Written Observations of the Russian Federation (presented as
a single document) on the admissibility of the Declarations of Intervention filed by multiple
States, including Latvia, under the same provision. 3 Russia objected to the admissibility of
the Declaration; Ukraine did not.
2. On 31 January 2023, the Registrar of the Court wrote to Latvia, informing it that the Court,
pursuant to Article 84, paragraph 2, of its Rules ("Rules"), had to hear the State seeking to
intervene and the Parties before deciding on the question of admissibility. The Court
decided to do so by means of a written procedure and fixed 13 February 2023 as the timelimit
to submit observations in writing on the admissibility of the Declaration.
3. Russia's objections to the admissibility of the Declaration seek to deprive Latvia of its
important right under Article 63, paragraph 2, of the Statute to intervene in the Proceedings
on the construction of the Convention on the Prevention and Punishment of the Crime of
Genocide ("Genocide Convention").4 Russia's objections are expressed in general tenns
and mostly relate to States other than Latvia or issues not relevant to the current stage of
1 Allegations of Genocide under the Com·ention on the Prevention cmd Punishment of tire Crime of Genocide
(Ukraine v. R11ssicm Federarion) (Declaration of Intervention of the Republic of Latvia of 19 July 2022)
<https://www.icj-cij.org/public/files/case-related/l 82/1 82-20220719-WRI-01-00-EN.pdf>.
~ Allegations of Genocide under the Com·ention on the Prevention cmd Punishment of tire Crime of Genocide
(Ukraine v. Russian Federntion) (Written Observations of Ukraine on the Declaration of Intervention of Latvia
of 17 October 2022).
•
1 Allegations of Genocide under the Com·ention on the Prevention and Punishment of tire Crime of Genocide
(Ukraine v. Russian Federation) (The Russian Federation's Written Observations on admissibility of the
Declarations of Intervention submitted by France, Germany, Italy, Latvia, Lithuania, New Zealand, Poland,
Romania, Sweden, the United Kingdom and the United States of 17 October 2022).
4 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December l 948, entered
into force 12 January 1951) 78 UNTS 277.
2
the Proceedings. Accordingly, Latvia will focus its observations on the small sub-set of
arguments that are directed at the admissibility of its Declaration and explain why the five
Russian objections are unfounded (in law, in fact, or, mostly, both).5 Latvia will address
the objections in the order and under the rubrics presented by Russia. These observations
relate solely to Latvia's position regarding the admissibility of the Declaration, and
constitute, together with the Declaration, the exclusive source for determination of that
position in these Proceedings.
II. ARGUMENTS
4. Before addressing individual objections, Latvia will make a general point regarding the
fatal weakness underpinning the entirety of Russia's position. Latvia exercises its right
under Article 63 of the Statute to intervene on the construction of a convention to which it
is a party. It is not a Party to the Proceedings between Ukraine and Russia, be that an
applicant or a co-applicant. Nor does it want to be. Nor is Latvia what Russia calls a "de
facto co-applicant", 6 a concept unknown to the Statute and the Rules. Russia's attempts to
infuse Article 63 with procedural and substantive considerations borrowed from
qualitatively different procedures that reflect a very different balance of rights, obligations,
and guarantees must fail. Latvia takes the Court and its judicial function very seriously, as
is reflected among other things in its recent acceptance of the Court's jurisdiction as
compulsory. 7 It understands the difference between being a Party and an intervener under
Article 63 of the Statute, has made a conscious choice to appear before the Court in the
latter capacity in the Proceedings, and expects to be held against that benchmark and no
other. In short, Latvia acts in its own name, speaks with its own voice, and presents its own
arguments.
A. THE DECLARATION FALLS WITHIN THE PROVISIONS OF ARTICLE 63 OF THE STATUTE
AND ARTICLE 82 OF THE RULES OF COURT
5. Russia's first objection is that declarations of intervention submitted in the Proceedings by
several States, including Latvia, are not genuine, and that their real object is not the
5 The sixth objection is peculiar to the legal positions of the United States, see ibid Section H.F.
6 Ibid [19], [21], [23), (31 ], [44], [48].
7 <https://www.icj-cij.org/en/declarationsllv> (24 September 2019).
3
construction of the Genocide Convention but pursuing a joint case with Ukraine.8 This
objection adopts an incorrect legal test, which finds no basis in Article 63 of the Statute or
Article 82 of the Rules of Court. It is also factually unfounded.
6. The correct legal test for evaluating the admissibility of the Declaration was set out by the
Court in the case concerning Whaling in the Antarctic (Australia v. Japan; New Zealand
intervening), viz. whether "the declaration concerned falls within the provisions of Article
63" of the Statute of the Court ("Statute").9 Russia describes it as "well established".10
Latvia agrees with this characterisation of Whaling in the Antarctic. There is no support in
the Statute or the Rules, or indeed scholarship, for departing from this test to search instead
for (what Russia advocates for and describes as) a "genuine intention" of the State
concerned. Nor has Russia identified any such authority. 11
7. The proposed "genuine intention" test is incompatible with the well-established
proposition, repeated in a recent judb>111ent, that the Court cannot concern itself with the
political motivation which may lead a State at a particular time, or in particular
circumstances, to choose participation in proceedings before it. 12 Russia's argument is also
not helped by Haya de la Torre (Colombia/Pern), from which it quotes extensively. 13 In
that case, Cuba's intervention was found by the Court to relate almost entirely to questions
already decided with the authority of res judicata in the earlier case concerning ColombianPeruvian
Asylum (Colombia v. Pern), and thus incapable of being addressed anew under
Article 63. 14 The Court's analysis in Haya de la Torre focused exclusively on the substance
of the intervener's position, revealed in the text of the declaration and submissions in the
8 Russian Federation's Written Observations (n 3) Section II.A.
9 Whaling in the Antarctic (Amtralia v. Japan) (Declaration oflntervention of New Zealand, Order of 6 February
2013) [2013) ICJ Rep 3 (8). also (18}.
10 Russian Federation's Written Observations (n 3) ( I I].
11 Ibid [ 13 ]-[ 14).
12 Application of the Con\'ention on the Pre,·ention and Punishment of tire Crime of Genocide (The Gambia v.
Myanmar) (Preliminary Objections) [2022} ICJ Rep <https:/lwww.icJ-ciJ.org/public/files/case-related/178.II 78-
20220722-JUD-O I-00-EN.pdf> (44); also Alleged Violations of the 1955 Treaty of Amity, Economic Rel<1tions,
and Consular Rights (Iran v. United StateJ) (Preliminary Objections) (2021] ICJ Rep 9 [55)-(59).
13 Russian Federation's Written Observations (n 3) (13).
14 Colombi<1n-Penl\'ian Asylum (Colombia v. Peru) (1950] ICJ Rep 226.
4
oral proceedings, so as to detennine whether the conditions of a genuine intervention under
Article 63 of the Statute were satisfied. It engaged - rightly - in no inquiry of motivations
or the broader political context. 15 Properly understood, Haya de la Torre does not reflect
or suggest the existence of a different test, but rather is an example of the application of the
principle expressed in Whaling in the Antarctic.
8. Russia's first objection is based on an incorrect legal test for detennining admissibility of
intervention, which means that even factually correct allegations (vel non) could not lead
to inadmissibility of the Declaration. Latvia will briefly explain, nevertheless, why Russia's
factual allegations on which its objection rests are also irrelevant or unjustified.
9. Some of Russia's allegations are not relevant for Latvia. First, Russia criticises individual
statements by States regarding intervention in the Proceedings. 16 No such statements by
Latvia have been identified. Secondly, Russia alleges inconsistency between the position
adopted by States in declarations of intervention in the Proceedings and legality of Use of
Force cases, to which Latvia was not a Party. 17
10. Other Russia's allegations are unjustified.
10.1. First, the Joint Statements quoted by Russia show nothing more than the very proper
and public support by Latvia to the Court18 in pursuing the important function of
judicial settlement of disputes likely to endanger the maintenance of international
peace and security. 19
10.2. Secondly, Russia refers to Latvia as one of the States that "have consistently
expressed that they possess a legal interest in light of the erga omnes character of
the obligations under the Convention" and describes as "telling ... the express
references to a 'a legal interest' and erga omnes obligations".20 Latvia, in fact,
15 Haya de la Torre Case (Colombia/Peru) [ 1951 ] lCJ Rep 71, 77.
16 Russian Federation's Written Observations (n 3) (I 7]-[l 8).
17 Ibid [25]·[30].
18 Ibid [ I 5]-[ 16].
19 Arbitral Award of 3 October 1989 (Guyana v. Venezuela) (Jurisdiction of the Court) [2020] ICJ Rep 455 [82].
w Russian Federation's Written Observations (n 3) [23].
5
agrees with the thrust of Russia's observation that the erga omnes character of treaty
obligations under construction is not relevant for determining the admissibility of
an intervention under Article 63. That is why there is no express reference to "a
legal interest" or erga omnes obligations in the Declaration, including in the
paragraph specifically cited by Russia.21
I 0.3. Thirdly, Russia sees a sign of "a joint effort with Ukraine" in the alleged similarity
of the interveners' arguments with Ukraine's, including in "its Memorial (which
should have been unavailable to the Declarants until their Declarations have been
admitted").22 Latvia was the first State in the Proceedings to submit its declaration
of intervention, and did not coordinate its substance with that of any other State.
For the avoidance of doubt, Latvia confirms that it has at no point had access to any
documents submitted to the Court in the Proceedings, other than those transmitted
to it by the Registrar or available on the Court's website.23 More generally, it is hard
to see what Latvia could respond to this objection at this stage, given that it does
not have access to Ukraine's memorial, which in any event apparently (as Russia
itself states) "differs significantly from the Application".24
8. LATVIA'S INTERVENTION IS COMPATIBLE WITH THE PRINCIPLE OF EQUALITY OF THE
PARTIES AND THE REQUIREMENTS OF GOOD ADMINISTRATION OF JUSTICE
11. Russia's second objection is that if the Court were to admit multiple States, including
Latvia, as interveners, it would seriously impair the principle of equality of the parties
before the Court and be contrary to the good administration of justice.25 Latvia agrees in
general terms with what Russia says about the importance of the principle of equality of
21 Ibid fn 21 (citing Declaration (n I) (46]). The cited paragraph, found in the section of the Declaration that
addresses the construction of Article I of the Genocide Convention, quotes from an advisory opinion of the Court
solely in relation to construction, and has no relevance for admissibility of a claim or an intervention, Declaration
(n l) Section F(ii) (quoting Resermtions to the Com·ention on tire Pre,·ention and Punishment of tfte Crime of
Genocide (Advisory Opinion) (1951 ) ICJ Rep 15, 23).
22 Russian Federation's Written Observations (n 3) (24].
23 <https://www.icj-cij.org/enlcase/1 82>.
24 Russian Federation's Written Observations (n 3) [91 ).
is Ibid Section H.B.
6
the parties and good administration of justice.26 It disagrees, however, that the Declaration
is capable of affecting these guarantees in the Proceedings either in principle or in practice.
12. Russia's objection can again be dismissed as incompatible with the leading authority on
the precise issue it raises, namely the unanimous decision of the Court in the Whaling in
the Antarctic (serious engagement with which is absent from the objection). In that case,
the Court held that "an intervention [ under Article 63 of the Statute] cannot affect the
equality of the Parties to the dispute".27 Nor is Russia's concern about equality of rights
and Judges of the Court who are nationals of the States that have announced their decision
to intervene in the Proceedings relevant for Latvia, which does not have (and has never
had) a Judge on the Court. 28
13. But more to the point, this objection begs a key question. Even if justified on its own terms
(vel non), the objection could succeed only if the Court accepts that it is necessarily
incapable of administering the Proceedings in line with these guarantees, as Russia
evidently believes to be the case. Latvia disagrees. The Court has broad and flexible powers
under the Statute to craft procedural solutions necessary to ensure a good administration of
justice where more than two States participate in the proceedings. By way of example, in
recent years the Court has ensured good administration of justice in a contentious case
brought by joint applicants against a single respondent,29 and in an advisory proceeding
that raised the question of responsibility of a single State, where most States inclined in one
direction.30 More generally, there is nothing unusual in international dispute settlement
26 Ibid [33].
17 Whaling in the Ant(ll'Ctic (Order) (n 9) [ 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, ai; 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 10 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.").
28 Russian Federation's Written Observations (n 3) [48).
29 Appeal relating to the Jurisdiction of the /CAO Council under Article 84 of the Co,ll'ention on International
Cil'i/ Ai·iation (Bahrain, Egypt, Saudi Arabia and United Arab Emirates v. Qatar) [2020] ICJ Rep 81.
311 Legal Consequences of the Separation of the Clwgos Archipelago from Mauritius in 1965 (Advisory Opinion)
[2019) ICJ Rep 95.
7
about multiple third-party interventions in inter-State proceedings.31 Latvia is confident in
the Court's ability to ensure a sound administration of justice in the Proceedings that
respects the rights and interests of Parties and interveners alike. 32 Indeed, the Court is
already doing so: its decision to hear the States seeking to intervene by means of a written
procedure with a short deadline pursuant to Article 84, paragraph 2, of the Rules is an
excellent example of how good administration of justice in relation to Article 63 of the
Statute can and will work.
C. THE COURT CAN DEClDE ON THE ADMISSIBILITY OF THE DECLARATION BEFORE IT
CONSIDERS RUSSIA'S PRELIMINARY OBJECTIONS
14. Russia's third and fourth objections to the admissibility of the Declaration are related. For
the Court's convenience, Latvia will address them separately.
15. Russia's third objection is two-fold: first, it asserts that the long-standing practice of the
Court militates against admitting declarations of intervention prior to the resolution of
preliminary objections.33 Upon closer examination, this supposed practice resolves itself as
partly irrelevant for Russia's argument and partly incompatible with the same. Of the six
cases Russia identifies as relating to interventions under Article 63 prior to the resolution
of preliminary objections, in three (as Russia itself accepts),34 the issue was not put to the
Court at all: in one case the intervention was attempted not under Article 63 but Article
6235 (thought at the time of the handing down of the order to raise particular issues
11 E.g. WTO, European Communities Regime for the lmporlalion, Safe and Dislrihution of Bananm,
WT/DS27/AB/R, Report of the Appellate Body, 9 September 1997 [106)-(128) (17 States intervened); WTO,
Canada- Patent Protection of Pharmaceutical Products, WTlDS 114/R, Report of the Panel, 17 March 2000 [5.1 )(
5.36) (11 States intervened); WTO, Russia- Measures Concerning Traffic in Transit, WTIDS512/R, Report of
the Panel, 5 April 2019 { 1.6] ( 16 States and the European Union in); ECtHR Press Release, 'Multiple third-party
intervention requests in inter-State proceedings Ukraine v. Russia (X)' {23 September 2022) (23 States intervened
and 2 expressed an interest to intervene).
u Militmr and Paramilitm)' Actil'ities in and against Nicarag1w (Nicarag11a v. United States r?f America) (Merits)
[1986] ICJ Rep 14, para. 38.
H Russian Federation's Written Observations (n 3) (50]-[53).
34 Ibid [50(b)), [5l(a), (c) ).
H Nuclear Tests (A11stralia v. France) (Order of 12 July 1973) [1973) ICJ 320, Declaration of Judge Onyeama
322; ibid Declaration of Judge Ignacio-Pinto 322; N11cfear Tests (Australia v. France) (Order of 20 December
1974) [ 1974] ICJ 530, Declaration of Judge Onyeama 531 -2; ibid Joint Declaration of Judges Dillard and Waldock
532-3.
8
regarding jurisdiction);16 and in two cases jurisdiction was not challenged.37 The fourth
case is too peculiar to permit serious insight to be gleaned from the brief half-paragraph on
the issue.38 The fifth case is Milita,y and Paramilita,y Activities in and against Nicaragua
(Nicaragua v. United States of America). Latvia has explained in the Declaration why,
properly understood, that case supports the admissibility of Article 63 interventions on
issues of jurisdiction.39 The sixth case, which is precisely on point, is Whaling in the
Antarctic. where a unanimous Court was perfectly comfortable with admitting a declaration
of intervention before objections to jurisdiction had been decided.40 This approach is also
in line with the practice of the Permanent Court of International Justice ( .. PCIJ") (not
mentioned by Russia).4 1
16. Secondly, Russia argues that the Court has not yet established the existence of the alleged
dispute, its subject-matter, and the provisions of the Convention that may be in question.42
16 See the explanation of lV11dec1r Tests and Article 62 in Continental Slwlf (Tunisiallihyan Arah Jamahiriya)
(Application to Intervene) (1981 ] ICJ Rep 3 [27].
31 A point accepted in Russian Federation's Written Observations (n 3) (51 ], see S.S. "IVimhledon" [1923] PCIJ
Series A No I: Haya de la Torre (n 15) 78.
18 Req11est .f<1r an Examination of the Sit11ation in Accordance ll'ith Pa mg mph 63 ,f tll<' Court's J11dgment <d'20
D,•cemher /974 in the Nuclear Tests (New Zealand, •. France) (1995) ICJ Rep 288 (67].
,q Declaration (n I} (20] ("Latvia's interpretation of Article 63 of the Statute is in line with the Court's practice,
including in its decision to refuse El Salvador's application to intervene under Article 63, paragraph I, of the
Statute in the jurisdictional phase of the case concerning Militwy and Paramiliwry Acti1·ities in and against
Nicaragua (Nicaragua v. United States of America). First, neither the Court nor Judges writing individually in
that case suggested that Article 63 could not, in principle, apply to jurisdictional issues. The only explicit
discussion of the issue is found in Judge Schwebel's extended argument that 'intervention in the jurisdictional
phase ofa proceeding is within the scope of the right with which States are endowed by the terms of Article 63.'
Similar views are held by leading scholars. Secondly, a key element that led to the rejection of El Salvador's
declaration of intervention in that case was that the Court and Judges perceived it as primarily or even exclusively
directed at the merits of the case. Conversely, in the Proceedings, Latvia wishes to intervene on matters that
concern the Court's jurisdiction under Articles IX and I of the Genocide Convention. To the extent it is on foot
with the Proceedings, therefore, the Court's prior practice supports the admissibility of properly framed Article
63 interventions on issues of jurisdiction.") (internal footnotes omitted).
4'° Whaling in the Antarctic (Australia v. Japw1; New Zealand inte1w11ing) [2014] ICJ Rep 226 (5], (24] (Japan's
objection to jurisdiction on 9 March 2012); [ 12] (the order on admissibility of New Zealand's intervention on 6
February 2013 ); Section I ( dismissal of Japan's objection to jurisdiction on 31 March 2014 ).
41 Appeals from Certain Judgmenrs of the H11ngaro-Czechoslomk Mixed Arhitral Trihimal, Ninth Annual Repol'I
of the Permanent Court of International Justice (June 15th
, /932 June 15'". 1933) Series Eno 9 176 ("In view
of the fact that these objections concerned the interpretation of Art. X of Agreement No. II of Paris, they were
communicated, pursuant to Art. 63 of the [Statute], to all States which had signed and ratified that agreement, but
not to signatories of the Treaty of Trianon (to which the application was also related but no objections had been
made]").
42 Russian Federation's Written Observations (n 3) [54]-(68].
9
This misstates the legal test. Article 63 of the Statute speaks about construction of a
convention being "in question", which is textually and functionally an importantly different
benchmark from "dispute" in Article 36 of the Statute (and Russia's attempt to conflate the
two and rely upon practice in relation to the "dispute" must therefore fail). Russia's further
reliance on Haya de la Torre does not strengthen its argument:43 the Court in that case did
not mention "dispute" in relation to intervention,44 even though the technical term and
associated concepts were well-recognized in the case law of the PCIJ and the Court45 (and
indeed had been explicitly considered just a year before in relation to the Asylum case).46
Russia's objection is also out of line with the practice of application of Article 63 by the
Registrar of the Court.47 Latvia does, however, agree with Russia's statement that Article
82 of the Rules is applicable to interventions under Article 63 of the Statute.48 That is
correct: indeed, the Declaration quotes the provision in its very first page and uses Article
82, para1,,7faph 2, to structure the argument throughout (including in the detailed explanation
for why Latvia "considers ... [the construction of] particular provisions of the convention
... to be in question"). 49 Importantly, Russia has not pointed to any particular aspect of the
Declaration that would be incompatible with the Statute or the Rules, nor any "particular
provisions of the [Genocide Convention) the construction of which" Latvia has identified
in the Declaration that would not be "in question".50
17. On closer inspection, Russia's concern seems more diffuse. It argues that, unless the Court
has "con finned that the Court has jurisdiction to hear the applicant's claims and that such
4
' Ibid [57]-[60].
u Haya de la Torre (n 15) 76-77.
~5 Alleged Violations (n 12) [63}.
4
~ Request for lnteq,retation of the Judgement of November 20'~. 1950, in the A.1ylum case, Judgement of
Nm·emher 27th, 1950 [I 950) ICJ Rep 395,403.
47 Allegations of Genocide under the Co11l'e11tion on the Pre,·ention and Punishment of the Crime of Genocide
(Ukrnine v. Russian Fedemtion) (Letter from the Registrar of the Court to the Ambassador of Latvia to The
Netherlands of30 March 2022) (by reference to Ukraine's application, " [i]t therefore appears that the construction
of [the Genocide Convention] will be in question in this case").
48 Russian Federation's Written Observations (n 3) [56), [63].
49 Declaration (n I) Section E.
50 Russian Federation's Written Observations (n 3) [56), [63].
10
claims are admissible, it cannot be certain" that the conditions of Article 82 of the Rules
are fulfilled, and thus the Court should first decide upon the objections it has raised before
admitting interventions with respect to the merits.51 This again begs the question by
alluding to Latvia's ignorance of the particular objections to Ukraine's application Russia
has raised. But the matter is otherwise: if Latvia is admitted as an intervener, then in
accordance with Article 86, paragraph 1, of the Rules it will be furnished with copies of the
pleadings and will be able to submit its fully informed written observations on the subjectmatter
of intervention at the relevant procedural stage.
18. Russia also appears to suggest that no interpretation of a treaty would be given if
preliminary objections were successful. 52 This is hard to reconcile with the Court's practice
of thorough engagement with questions of treaty interpretation in judbrments upholding
preliminary objections53 (or indeed Russia's invocation of a judgment upholding its own
preliminary objections as an authority on interpretation).54 But, ultimately, to dismiss this
objection it again suffices to point to Whaling in the Antarctic, where the Court
unanimously admitted New Zealand as an intervener before it had decided upon Japan's
earlier-made objection to the Court's jurisdiction over Australia's application.55 That is
precisely the approach that Latvia asks the Court to follow in this case.
D. THE DECLARATION DOES NOT INAPPROPRIATELY PRESUPPOSE THAT THE COURT HAS
JURISDICTION AND/OR THAT UKRAINE'S APPLICATION IS ADMISSIBLE
19. Russia's fourth objection follows on from its third. By this, it asserts that Latvia's
application to intervene on questions of the Court's jurisdiction is to no avail because it
presupposes that the Court has jurisdiction over the alleged dispute and that the Ukraine's
SI Ibid [64]-[68).
Sl Ibid [67].
SJ E.g. Application of the International Conl'ention 011 the Elimination of All Forms of Racial Discrimination
(Qatar v. United Arab Emirates) (Preliminary Objections) [2021) ICJ Rep 71 [74 ]-[ I 05).
54 Application of the International Com·emion for the Suppression of the Financing of Terro,-ism and of the
International Conwntion on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian
Federation) (Preliminary Objections) CR 20 I 9/1 1, 6 June 2019 <https:i/www.icj-cij.orglpubliclfiles/caserelatedll66/
166-20190606-0RA-01-00-81.pdf> 42 [ I 0) (Pellet on behalf of Russia, invoking Application of the
International Com·ention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian
Federation) (Preliminary Objections) [2011 ] !CJ Rep 70).
55 See discussion in 40 of Whaling in the Antarctic (Judgment) (n 40).
11
application is admissible.56 Russia first quotes from the Declaration (that "a key element
that led to the rejection of El Salvador's declaration of intervention in that case [Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America)] was that the Court and Judges perceived it as primarily or even exclusively
directed at the merits of the case"}. It then, with an apparent emphasis on the word
"primarily", notes approvingly that "Latvia agrees that a declaration of intervention which
is primarily directed at the merits of the case (as the vast majority of the Declarations,
including Latvia's own} should be dismissed".57
20. This objection fails to engage, however, with the Declaration's explanation as to why an
intervention under Article 63 of the Statute on issues relating to jurisdiction is, in principle,
just as admissible as an intervention on issues relating to the merits. (In summary, Latvia
relied upon the text of Article 63; the Court's routine construction of treaty provisions when
assessing its jurisdiction; the Court's practice of notifying States party to a convention; the
lack of unifonnity on the important question of prima facie jurisdiction over the
Proceedings; and the support for its position in the properly understood Militmy and
Paramilitm:v Actil'ities in and against Nicaragua (Nicaragua v. United States of
America)). 58 But Latvia agrees with Russia that the correct legal question is indeed whether
"a declaration of intervention is ... primarily or even exclusively directed at the merits of
the case" (using "primarily" in the ordinary sense of "for the most part, mainly").59
Applying this test, the Declaration is plainly admissible: it identifies distinct provisions of
the Convention in question regardingjurisdiction of the Court60 and proposes a construction
of those provisions so far as they concern the jurisdiction of the Court (and is, indeed,
"primarily" directed at its jurisdiction in the Proceedings).61
"' Russian Federation's Written Observations (n 3) Section 11.D.
H Ibid [77).
~ Declaration (n I) [ 15]-[20].
~ 'primarily, tl(/l'', I, Oxford English Dictionmy.
~ Declaration (n I) (30]-[34).
6l Ibid [40]-(44], [46]-[49], [51 )-(53).
·12
21. The Declaration also identifies provisions of the Convention in question and their proposed
construction regarding the merits of the claim. The reason for addressing jurisdiction and
merits in one document is clear: the Declaration was submitted before Russia had filed its
preliminary objections, when there were doubts regarding its participation in the
Proceedings62 and the possible use by the Court of its power to decide questions of
jurisdiction or admissibility separately from the merits. In line with the injunction of Article
82, paragraph 1, of the Rules, Latvia filed the Declaration "as soon as possible". For the
avoidance of doubt, Latvia confirms that, if its intervention were admitted under Article 63
of the Statute and if so directed by the Court, it would only submit its observations on the
subject-matter of the intervention relevant to the particular procedural stage; i.e. only
regarding jurisdiction at the preliminary objections stage.
22. With its position set out, Russia objects to the admissibility of the Declaration in the
following terms:
"[T]he Declarations effectively presuppose that there is a dispute between the Parties
under the Genocide Convention and that the Court has jurisdiction to entertain the
dispute and/or that the Application of Ukraine is admissible: ... (d) Latvia points out
that 'the Court will have jurisdiction over any claim by the latter State seeking a
declaration that the former State's accusations are without legal and factual
foundation'" .63
This is simply wrong. The relevant section of the Declaration does not mention Ukraine or
Russia at all, nor does it say anything about a dispute between them, the Court's jurisdiction
to adjudicate such a dispute, or the admissibility of Ukraine's application.64 The
Declaration on this point is confined solely to the construction of Article IX of the
Convention, as mandated by Article 63 of the Statute.
62 In another recent inter-State dispute, Russia did not participate in the proceedings where it had not appeared at
the provisional measures stage, The "Arctic Sunrise" Case (the Netherlands v. Russia) (Provisional Measures)
[2013) ITLOS Rep 230 (30); The "Arctic Sunrise" Case (the Netherlands v. Russia) (Award on Jurisdiction)
(2014) 32 RIAA 183 (5); ibid (Award on the Merits) (2015) 32 RIAA 205 [5)-[7]: ibid (Award on Compensation)
(2017) 32 RIAA 315 [8], [13].
63 Russian Federation's Written Observations (n 3) [81(d)].
64 Declaration (n I) (40]-[44].
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E. THE DECLARATION DOES NOT SEEK TO ADDRESS ISSUES UNRELATED TO THE
CONSTRUCTION OF THE CONVENTION AND ITS ADMISSION WOULD NOT PREJUDGE
QUESTIONS RELATING TO THE COURT'S JURISDICTION RAT/ONE MATER/A£
23. Russia's fifth objection is that the Declaration must be declared inadmissible because it is
not confined to the construction of a convention in question.65 Russia's position is
unfounded both in law and in fact.
24. First, Russia's interpretation of Article 63 of the Statute is wrong in law. In particular, it is
incompatible with the Court's finding in Haya de la Torre, where the declaration of the
intervener was "devoted almost entirely" to provisions of the convention the construction
of which were not in question in the case. Nevertheless, in the oral proceedings a narrowly
relevant aspect of construction was identified, and "[r]educed in this way, and operating
within these limits, the intervention of the Government of Cuba conformed to the
conditions of Article 63 of the Statute".66 Consequently, if a declaration of intervention
falls partially within the provisions of Article 63 of the Statute, the Court's reasoning in
Haya de la Torre suggests that it should be admitted within these limits, rather than
declared fully inadmissible.
25. Secondly, Russia's position is not tenable as a matter of fact. The Declaration is confined
to Latvia's construction of the provisions of the Genocide Convention and relates
specifically to the Court's ratione materiae jurisdiction under Articles [X and I of the
Convention. Russia objects against the Declaration in the following terms:
"Latvia alleges that it 'will not address application'. Yet it then states that it intends to
address issues relating to the existence of evidence that genocide has occurred or may
occur in Ukraine; the doctrine of abuse of rights; and the legality of the use of force. ln
this respect, Latvia expressly admits that 'the content of the rule prohibiting unlawful
unilateral use of force ... is to be detennined by taking into account other relevant rules
of international law' rather than legal provisions of the Convention."67
Again, this is simply wrong. Latvia is baffled about where its alleged intention to "address
issues relating to existence of evidence that genocide has occurred or may occur in
~ Russian Federation's Written Observations (n 3) Sec1ion 11.E.
66 Haya de la Torre (n I 5) 78.
67 Russian Federation's Written Observations (n 3) [85(d)] (internal footnotes omitted).
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Ukraine", provided without a paragraph reference, appears in the Declaration, when even
the word "evidence" is used only once (in a quote from a 2007 Court'sjudgment).68 Nor is
the language of "doctrine of abuse of rights" ( or "doctrine" or "abuse of rights", or indeed
"abuse") found in the Declaration, and the passages Russia refers to speak consistently
about construction of Article I of the Convention as possibly prohibiting abusive allegations
of genocide.69 Russia's quote relating to use of force omits the crucial explanation of its
legal rationale as interpretation of the Genocide Convention "[ c ]onsistently with Article
31, paragraph 3, sub-paragraph (c), of the Vienna Convention [on the Law of Treaties]"
(which is to say, again, an argument about construction of a convention to which Latvia is
a party). 70 In short, all of the points identified by Russia relate to construction of the
Convention and fall within the provisions of Article 63 of the Statute.
Ill. SUBMISSIONS
26. In view of the foregoing, Latvia respectfully requests the Court:
(a) to reject all the objections raised by the Russian Federation to the admissibility of the
Declaration;
(b) to declare the Declaration admissible as to the jurisdictional phase of the proceedings;
(c) to declare e Declaration admissible as to the merits phase of the proceedings.
Republic of Latvia.
68 Declaration (n I) [47] (quoting Application of the Com·ention 011 tire Pre,•ention and Punishment of the Crime
of Genocide (Bosnia and Herzegm·ina v. Serbia and Montenegro) [2007] ICJ Rep 43 [209]).
69 Ibid Section F(ii).
70 Ibid [ 54).
15