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

INTERNATIONAL COURT OF JUSTICE
THE PRINCIPALITY OF LIECHTENSTEIN’S WRITTEN OBSERVATIONS
ON THE ADMISSIBILITY OF ITS DECLARATION OF INTERVENTION
In the case of
ALLEGÄTIONS OF GENOCIDE UNDER THE CONVENTION ON THE
PREVENTION AND PUN1SHMENT OF THE CRIME OF GENOCIDE
(UKRAINE V RUSSIANFEDERATION)
1. On 15 December 2022, the Principality of Liechtenstein (“Liechtenstein5>) 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 tmder the Convention on the Prevention and Pimishment of the
Crime of Genocide (Ukraine v Russian Federation). The Russian Federation has asked the Court to reject
the Declaration as inadmissible, while Ukraine has argued that it is admissible.
2. With the present observations Liechtenstein wishes to share with the Court its understanding of Article
63 of the Statute first in order to demonstrate that it flilly complied with all the requirements (I.) It then
addresses Russia’s main arguments (II.) befoie conciuding (III.).
I. The Declaration complies with the requirements of the Statute
3. A plain reading of Article 63(2) of the Statute of the International Cpourt of Justice indicates that every
State party to the Genocide Convention has a “right” to intervene, as confirmed by the Court.1 In line with
Article 82(2) of the Rules of Procedure of the Court, this right may be exercised if four objective criteria are
fulfilled:
(a) The State shows that it has become party to the Genocide Convention.
(b) The intervention identifies the particular provisions of the Genocide Convention the construction
of which is in question.
(c) The intervention contains “a Statement of the construction” of these provisions of the Genocide
Convention.
(d) The intervention contains a list of documents in support.
4. Liechtenstein considers that it has flilly complied with these admissibility requirements under Article 63
ofthe Statute and 82 ofthe Rules of the Court. As indicated in para. 13 of its Declaration, Liechtenstein is
a party to the Genocide Convention. Moreover, it has announced to the Court its intention to contribute to
the interpretations of Articles I, II and IX of the Genocide Convention in para. 14 of the Declaration.
5. The Russian Federation puts forward five counter-arguments to the admissibility of Liechtenstein’s
intervention. However, these arguments call upon the Court to Import requirements for admissibility which
are not based on the law.
1 Haya de la Torre (Colombia v Peru), Judgment, I.CJ. Reports 1951, p. 76 ; ContinentalShelf (Tunisia/Libyan
Arab Jamahiriya), Application for Pennission to Intervene, Judgment, I.CJ. Reports 1981, p. 13, para 21.
II. 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
6. The Russian Federation argues that Liechtenstein’s Intervention should be rejected as not being
“genuine”, on the basis that it was part of a concerted political süategy to assist Ukraine in the case. Russia
contends this reveals an intention on the part of Liechtenstein to become a de-facto co-complainant.
7. This argument is not based on an accurate presentation of the law. When the Court used the expression
“genuine intervention” in Haya de la Torres? the Court was assessing whether the object of the Intervention
of Cuba was Interpretation of the Havana Convention (a “genuine” intervention), or whether it was an
attempt to re-litigate another case. This was an objective inquiry into whether the intervention was genuine,
and not a subjective inquiry into whethei the intervening government’s intentions were “genuine”. Theie is
no basis in the case law for the importation of a subjective requirement. The motivations of Liechtenstein’s
Declaration of Intervention are accordingly not relevant to admissibility.
8. The question of whether an intervener would be “taking sides” is simüarly not relevant to the question of
admissibility. In Wimbledon, the Court accepted that Poland as an intervening party shaied the arguments
of the applicant.32 Moreover, Liechtenstein does not advocate side-by-side with Ukraine as “de-facto coapplicant”,
as alleged in the Russian observations., Liechtenstein 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 entiiely
unfounded.
B. There is no test verifying the effects of an intervention
9. In its second argument, the Russian Federation contends that admilting the intervention would be
incompatible with the equality of the Parties and the requirements of good administration of justice. Again,
this argument is not supported by the law. The Court confirmed in Whaling in the Antarctic that a declaration
of intervention under Article 63 of the Statute that is limited to submitted observations on the construction
of a convention cannot affect the equality of the Parties.4
2 Haya de la Torre (Colombia v. Peru), Judgment, I.CJ. Reports 1951, p. 71, at p. 77.
3 Case of the SS Wimbledon, judgment of 17 August 1923, P.C IJ. Senes ANr., p. 12, at p. 18.
4 Whaling in the Antarctic (Äustraba v Japan), Declaration of Intel vention ofNew Zealand, Order of 6 Febiuary
2013, I.CJ. Reports 2013, p. 3, at p.9, paras 18-19.
10 The Russian Federation also raises seveial objections on the basis of the high number of interventions
in this case. However, there is no legal basis for these objections
11. First, the Russian Federation suggests that admitting several interveners would be “entirely against the
Court’s previous practice of admitting only one intervener pei case” (para. 49). However, according to
Article 63(2) of the Statute, aHState parties have the light to intervene, irrespective of whether interventions
are made by other State parties. To the best knowledge of Liechtenstein, the Court has never refused a
declaration of intervention on the basis that another Intervention had already been allowed. Rejecting the
intervention of one State party because another State party has aheady made an intervention would be
conti aiy to the “light of intervention” of every State party to a Convention whose construction is at issue.
12. Second, the Russian Federation asserts the number of interventions would raise an issue of
representati veness in the bench under Article 31(5) of the Statue (pai as. 3 9-43). However, the fact that some
judges in the bench may hold the same nationality as an intervening State does not infringe the equality of
the parties. As recalled by the Court in para. 18 of its order in the Whaling case, the interveneis do not
become party to the proceedings. Therefore, Articles 31(5) of the Statute, and Aficles 32 and 36 of the
Rules, as quoted by the Russian Federation, do not apply. Moieover, all judges are bound to uphold their
neutrality and impartiality in accordance with Article 20 of the Statue.
13. Third, the Russian Federation expresses concems that the number of interveners would become
“unmanageable” for itself and the Court (paia. 45). In line with Article 30(1) of the Statute, the Court enjoys
large discretion to organize the proceedings. Liechtenstein welcomes procedural decisions by the Court
intended to streamline the process. In order to help in the good administration of justice, it also reiterates its
willingness to coordinate its fuither action before the Court with other interveners to contribute to the
effective management of the time of the Court and both parties.
C. The Court may decide on admissibility of the intervention before considering Russia’s
preliminary objections
14. 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 the admissibility of an application was
challenged. There is, however, no legal bar to national interventions at this stage of the proceedings.
15. Article 63 of the Statute does not make any distinction between separate phases of proceedings before
the Court. Rather, the opening word “whenevei” indicates that a State is allowed to inteivene in all phases
of the proceedings.5 Moreover, Article 82(1) ofthe Rules only imposes an outer time limit for interventions
- being no later than the date fixed for the oral heaiing. In addition, the invitation to file a declaration “as
soon as possible” in that Provision indicates that the filing of an Article 63 declaration is admissible at this
stage of the proceedings.
D. Liechtenstein is entitled to address the Court’s Jurisdiction
17. In its fourth argument, the Russian Federation criticizes that the declaration would in effect address
matters which presuppose that the Court has Jurisdiction and/or that Ukraine’s application is admissible. In
particular, Russia notes that the declaration contains a construction of Article IX of the Genocide
Convention on the Jurisdiction ofthe Court, which in its argument piesupposes that the Court has Jurisdiction
over the alleged dispute.
18. In Liechtenstein’s view, this line of reasoning is contrary to Article 63 of the Statute and the Court’s
practice. 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. This construction is further strengthened by the object and puipose of Article 63 ofthe Statute.
States have a legitimate interest in sharing with the Court their views on Jurisdictional issues, in addition to
substantive obligations, as this may affect their own position before the Court in future cases relating to
themselves. An intervention under Article 63 of the Statute may accordingly cover both jurisdictional and
substantive aspects.6
19. This Interpretation is also supported by Court practice, as the Court has never dismissed an intervention
on the basis that it was entirely or primatily directed to interpreting a compromissory clause.
20. It follows that Liechtenstein correctly exercised its right to intervene under Article 63 of the Statute.
E. Liechtenstein’s arguments are relevant to the construction of the Genocide Convention
21. Finally, the Russian Federation notes that Liechtenstein “somehow concludes that there is a ‘dispute’
between Ukraine and the Russian Federation concerning the Genocide Convention, and addresses issues
relating to abuse of rights and the use of force” (at para. 104). It alleges that this Observation does not relate
5 Military and Paramilitary Äctivities in and against Nicaragua (Nicaragua v United States of America),
Intervention ofEl Salvador, Dissenting Opinion of Judge Schwebel, I.CJ Reports 1984, p. 223, at p. 234.
6 MN Shaw (ed), Roseanne 's Law and Practice of the International Corut 1920-2015 (5* ed, Vol IU, Bull NiJhoff
2016), p. 1533, H. Thiilway, The Law and Procedure of the International Court ofJustice' Fifty Years of
Jurisprudence (Vol I, OUP 2013), p. 1031; A. Miron/C. Chinkin, “Article 63” in: Zimmernian/Tams/Oellers-
Frahm/Tomuschat (eds), The Statute ofthe International Court ofJustice: A Commnetary (3rd ed. OUP 2019), p.
1741, at p.1753, note 46.
to the construction of the Genocide Convention and contains an impermissible incursion into the
interpretation or application of other rules of international mies that are distinct from the treaty in question
and derive from different sources.
22. This argument is based on a misrepresentation of Liechtenstein’s Intervention. Clearly, the Statement
did not introduce the doctrine of abuse of rights and the use of force as a self-standing matter. Rather, the
references to “abuse of the law” and “use of military force” were part of the construction of Article IX of
the Convention, in conjunction with Articles I and II.
III. Conclusion
23. For the reasons set out above Liechtenstein understands that its Declaration of Intervention flilly
complies with the requirements under Article 63 of the Statute and Article 82 of the Rules. Accordingly, the
Court should decide that the Intervention is admissible and allow Liechtenstein to present its written
observations in good time in order to exercise its right to intervene as party to the Genocide Convention.
13 February 2023
Ambassador Pascal Schafhauser
Agent of the Government of the Principality of Liechtenstein