International Court of Justice
Allegations of Genocide under the Convention on the Prevention and
Punishment of the Crime of Genocide
(Ukraine v. Russian Federation)
Malta's Written Observations
On the Admissibility of Its Declaration of Intervention
13 February 2023
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I. Introduction
1. By way of introduction, Malta notes that on 24 November 2022 it submitted to this
Honourable Court (hereinafter 'the Court') a Declaration of Intervention (hereinafter
referred to as 'the Declaration') pursuant to Article 63 paragraph 2 of the Statute of
the International Court of Justice (hereinafter referred to as 'the Statute') in the Case
concerning The Allegations of Genocide under the Convention on the Prevention and
Punishment of the Crime of Genocide (Ukraine v. Russian Federation). Toe Russian
Federation has pleaded to the Court to reject said Declaration on grounds of
inadmissibility.
2. Malta categorically reaffirms the admissibility of its Declaration and shall, by way of
the present observations, respond to the observations submitted by the Russian
Federation on 30 January 2023, in so far as these relate to Malta, address its
understanding of Article 63 of the Statute and illustrate that it is fully compliant with
the requirements of an admissible Declaration.
3. In its observations, the Russian Federation has presented six grounds, referred to as
'sections', in substantiation of its pleadings on inadmissibility, namely:
a. The interventions are not genuine: Their real object is not the construction
of the convention but pursuing a joint case with Ukraine;
b. The interventions would be incompatible with the principle of equality of
the parties and the requirements of good administration of justice~
c. In any event, the Court cannot decide on the admissibility of the
Declarations before it considers the Russian Federation's preliminary
objections;
d. The Declarations address, in effect, matters which presuppose that the Court
has jurisdiction and/or that Ukraine's application is admissible;
e. The reference to Article IX of the Convention is of no assistance for the
purposes of intervention at the jurisdictional stage of the proceedings. The
Dec1arants cannot intervene on Article IX of the Convention per se;
f. The Declarants seek to address issues unrelated to the construction of the
Convention and their admission would prejudge questions relating to the
Court's jurisdiction ratione materiae.
Il. Malta's Declaration is admissible and fully complies with the requirements of
the Statute
4. The relevant provisions addressing the admissibility or otherwise of a Declaration are
Article 63 of the Statute and Article 82, paragraph 2 of the Rules of the Court
(hereinafter referred to as 'the Rules') which are being laid out below for ease of
reference:
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Article 63 of the Statute:
"1. Whenever the co11struction of a convention to which states other than those
concerned in the case are parties is in question, the Registrar shall notifv 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 it. 1
Article 82, paragraph 2 of the Rules of the Court:
2. 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 dec/arant 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.
5. Upon reading the above, it appears rather clear that Article 63 is unequivocal in its
dictum that every party to the Genocide Convention (hereinafter referred to as 'the
Convention') has a right to intervene. Jn conjunction with Article 82, paragraph 2 of
the Rules, this right must then be exercised in terms of the four requirements laid out
above. In simple words, a State must prove that its Declaration stems from the fact that
it is a party to the Convention and that its intervention relates to an interpretation of the
identified provisions of said Convention.
6. Malta submits that it has fully complied with the pre-requisites for admissibility under
Article 63 of the Statute and 82 of the Rules. Malta has acceded to the Convention and
deposited its instrument of accession in terms of Article XI, paragraph 4 of the
Convention, on 6 June 2014, as stipulated in the Declaration itself.2 Furthermore, just
a cursory look at Malta's Declaration enables one to decipher that the intervention
strictly relates to the interpretation of the Convention. 3
1 Bold and underlining is effected by the undersigned for purposes of emphasis.
2 Annex B to Malta's Declaration oflntervention, submitted on the 24 November 2022.
3 Paragraphs 11, 13, 17, 18, 19, 20, 22, 23, 24, 26, 28, 29, 30 and 31 of Malta's Declaration of Intervention,
submitted on the 24 November 2022.
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7. Having dealt with some preliminary matters, Malta shall now proceed by rebutting the
arguments, postulated in Sections 'A-F', by the Russian Federation in its observations
submitted on 30 January 2023.
ill. Malta's rebuttal to the Russian Federation's Section 'A', namely: "The
interventions are not genuine: Their real object is not the construction of tl,e
convention but pursuing a joint case with Ukraine"
8. Malta submits that the Russian Federation alleges that Malta's Declaration is not
genuinely motivated in so far as its real object is "to side with, advocate for, or pursue
a joint case with Ukraine.',4 The pretext to the contention of the Russian Federation
consists in the Joint Statements which "show that the real intention of the Declarants
is not to express their own views regarding the construction or interpretation of the
relevant provisions of the Genocide Convention. "5 Jn fact, the very last written
observation before the commencement of Section 'B' is the following:
"For these reasons, all the Declarations filed pursuant to the Joint Statements
should be declared inadmissible.'>6
9. This certainly cannot impinge upon the validity and admissibility of Malta's
Declaration because Malta:
a. Has limited its Declaration specifically to the prevailing jurisdictional issue,
this being the construction of the compromissory clause contained in Article IX
of the Convention; 7
b. Jn view of its prospective status as non-permanent member of the United
Nations Security Council, felt duty bound to embrace, in principle, the position
adopted by the international community in so far as this is consistent with the
United Nations Charter and the special status of the Convention itself. So much
so that the annexes iiled by the Russian Federation do not refer to any such
additional statement by Malta;8
c. Has never wished or intended to "become de facto co-applicant and pursue a
joint case with Ukraine. "9 On the contrary, Malta had declared that ''for the sake
of clarity, Malta does not seek to become a party to the proceedings ... "10
4 Paragraph 15 of the written observations submitted by the Russian Federation on 30 January 2023.
5 Ibid.
6 Paragraph 35 of the written observations submitted by the Russian Federation on 30 January 2023.
7 Paragraph 13 of Malta's Declaration oflntervention submitted on the 24 November 2022.
8 See paragraphs 18(a)-(n) and 19 of the written observations submitted by the Russian Federation on 30 January
2023; see also all Annexes filed by the Russian Federation together with its written observations submitted on 30
January 2023.
9 Paragraph 21 of the written observations submitted by the Russian Federation on 30 January 2023.
io Paragraph 15 of Malta's Declaration oflntervention submitted on the 24 November 2022. Bold text is effected
by the undersigned for purposes of emphasis.
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d. Has never made any core statements in the context of the Legality of Use of
Force cases; 11
e. Has never made reference to the prevention of genocide as an excuse or pretext
for armed intervention, unilaterally. 12 It could not have done so multi-laterally
because Malta is not a NATO Member State; and
f. Cannot be said to have made a "sudden apparent change of legal positions that
can be seen in the Declarants' conduct" in this regard. 13 Malta's position bas
remained unchanged. It has always safeguarded international law and strives
to contribute to its progressive development, more so now that it enjoys nonpermanent
member status of the Security Council.
10. Consequently, Malta does not pursue a "collective political strategy" designed "with
the object of assisting, strengthening or bolstering Ukraine's claims before the
Court'. 14 It is indeed unfortunate that the Russian Federation (with the exception of its
Section 'G'), places all Declarants into one basket, rendering the validity of its written
observations filed on 30 January 2023 questionable, or at the very least, equivocal and
ambiguous. It is equally unfortunate that the Russian Federation seems to suggest that
the Court can somehow be swayed by numbers when it cites from scholarly works to
the effect that " ... the massive number of the interventions would put pressure on the
Court to accept them.""
11. For the sake of clarity, Malta's above stance shall, in no manner whatsoever, be
construed or understood as suggesting that Declarations by Declarants which have
subscribed to any additional statement or core statements have not been undertaken in
good faith. In any case, the exercise of a right cannot be undertaken in bad faith, but
at worst, for ulterior motives. Nothing prohibits this, although this is not the case in so
far as such Declarations are concerned, especially Malta's.
12. The allegation purporting that Malta's Declaration lacks genuineness cannot even be
made at this stage since it relies heavily on an erroneous underlying assumption,
being "a collective political strategy."16 Even if this underlying assumption were to be
correct and were to be proved to the satisfaction of the Court, no legal impediment
under Article 63 of the Statute exists which could render such Declarations inadmissible
ab initio. This is especially and naturally so since the Russian Federation itself is
11 Paragraph 29 of the written observations submitted by the Russian Federation on 30 January 2023.
12 Paragraphs 30-32 of the written observations submitted by the Russian Federation on 30 January 2023.
13 Paragraph 34 of the written observations submitted by the Russian Federation on 30 January 2023.
14 Paragraph 21 of the written observations submitted by the Russian Federation on 30 January 2023. This is more
so when one considers Malta's neutrality which is constitutionally entrenched {Article 1 sub-article (3) and Article
66(2)(b) of the Constitution of Malta; see T.Borg, A Commentary on the Con~titution of Malta Second Edition,
Kite Group Malta, 2022, p. 29-32; vide also D.J.Attard, Tlze Maltese Legal System: Constitutional and Human
Rights Law, Vol H, Part A, Malta University Press, 2015, p. 31-33}.
15 Paragraph 28 of the written observations submitted by the Russian Federation on 30 January 2023.
16 Paragraph 21 of the written observations submitted by the Russian Federation on 30 January 2023.
5 115
contesting the jurisdiction of the Court. The Russian Federation cannot contest
jurisdiction and elect to claim that Declarations are politically motivated because the
latter, the alleged political motivation, cannot affect the former, the subsistence of
jurisdiction or otherwise. Moreover, Malta invokes the legal maxim electa una via non
datur recursus ad alteram.
13. Finally, it must be stated that Malta has not politicised its Declaration and/or arguments
at all. Malta's arguments are in fact deemed legal and only legal since the Court upheld
that a question has a legal character if it is framed in terms of law and raises problems
of international law, or ifit is related to a breach of obligations under international law,
even if it had political aspects. In this vein, if the Court determines that a question is
decided in accordance with the prevailing rules of Jaw it bas to consider such a question
as intrinsically juridical, irrespective of its political dimension or elements. 17 In this
regard, mention must be made of the fact that "the Court made it clear that a question
is considered to be a legal one ifit is by its nature susceptible of a reply based on law."18
IV. Malta's rebuttal to the Russian Federation's Section 'B', namely: "tlze
interventions would be incompatible with die principle of equality of the parties
and tlie 1·equirements of good administration of justice"
14. This argument is intricately linked to, if not dependent upon, the previous Section 'A',
so much so that the Russian Federation repeats its concern connected with "a
coordinated mass inten,ention before the Court", referring to "unprecedented
circumstances" as a result of which "the Court should find the Declarations
inadmissible. "19
15. Malta submits that Malta's above written observations in relation to Section 'A' shall
also serve to rebut the arguments raised by the Russian Federation under its Section
'B '. In addition to this Malta submits that the arguments raised by the Russian
Federation under Section 'B' certainly cannot impinge upon the validity and
admissibility of Malta's Declaration because Malta:
17 See, for example, Tl,e Admission Case (1948) ICJ Rep., 1948, pp. 6lff; The Competence of the General
Assembly for the Admission of a State to the United Nations Case (1950), ICJ Rep., 1950, pp. 6ff; The Peace
T,-eaties Case (1950) ICJ Rep., 1950, pp. 65ff; The Western Sahara Case {1975) ICJ Rep., 1975, pp. 18ff; The
WHO and Egypt Case(l980) ICJ Rep., 1980, pp. 88ff; The Legality of the Use by a State of Nuclear Weapotzs in
Anned Conflict Case (1996) ICJ Rep., 1996 pp.71-72; The Legality of the Threat or Use of Nuclear Weapo1zs
Case (1996) ICJ Rep., 1996, p. 233-234.
18 Mohamed Sam eh M. Amr, The Role of the International Court of Justice as the Principal Judicial Organ of the
U11ited Nations, Kluwer Law International, 2003, p.87.
19 Paragraph 36 of the written observations submitted by the Russian Federation on 30 January 2023.
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a. Has no Maltese national on the bench of the Court.20 However, even should
Malta or any other State Party, have a national on the Bench of the Court, this would
not impair the equality of the parties. Reference is hereby being made to the Court's
order in the Whaling case to the following effect:
"Whereas the concerns expressed by Japan relate to certain procedural issues
regarding the equality of the Parties to the dispute, rather than to the conditions
for admissibility of the Declaration of Intervention, as set out in Article 63 of
the Statute and Article 82 of the Rules of Court; whereas intervention under
Article 63 of the Statute is limited to submitting observations on the construction
of the convention in question and does not allow the intervenor, which does not
become a party to the proceedi,igs, 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. 21"
Consequently, Articles 31 (5) of the Statute, and Articles 32 and 36 of the Rules, as
quoted by the Russian Federation, do not apply. In any case, all judges are bound to
uphold their neutrality and impartiality in accordance with Article 20 of the
Statute;22
b. Has limited its Declaration specifically to the prevailing jurisdictional issue, this
being the construction of the compromissory clause contained in Article IX of the
Convention;23
c. In view of its prospective status as non-pennanent member of the United Nations
Security Council, felt duty bound to embrace, in principle, the position adopted by
the international community in so far as this is consistent with the United Nations
Charter and the special status of the Convention itself. So much so that the annexes
filed by the Russian Federation do not refer to any such additional statement
by Malta 24 whereas the Russian Federation claims that "this in fact has already
occurred when several States filed declarations of intervention, pursuant to the
20 Paragraphs 42 and48 of the written observations submitted by the Russian Federation on 30 January 2023. See
also paragraph 52 oftbe written observations submitted by the Russian Federation on 30 January 2023 in so far
as this reveals increasing unease on the part of the Russian Federation on the composition of the Court and
constitutes an implicit attack of its impartiality and independence.
21 Whaling in the Antarctic (Australia vs Japan), Declaration oflntervention of New Zealand, Order of 6 February
2013, I.CJ. Reports 2013, p.3 at p.9, para 18. Bold teKt is effected by the undersigned for purposes of emphasis.
22 Article 20 of the Statute reads as follows: "Every member of tire Court shall before taking up his duties, make
a solemn declaration in open court that lie will _exercise his powers impartially and conscientiously."
23 Paragraph 13 of the Malta's Declaration of Intervention submitted on 24 November 2022.
24 See paragraphs I8(a)-(n) and 19 of the written observations submitted by the Russian Federation on 30 January
2023; see also all Anneites tiled by the Russian Federation together with its written observations submitted on 30
January 2023.
7 115
Joint Statements, at the time when the Russian Federation had to prepare its
Preliminary Objections, thereby causing considerable difficu/ties;"25
d. Has never wished or intended to become a "de facto co-applicant. "26 On the
contrary, Malta had declared that "for the sake of clarity, Malta does not seek to
become a party to the proceedings ... ;"27 and
e. Has never made any core statements in the context of the Legality of Use of Force
cases.2 p,
16. For the sake of clarity, Malta's above stance shalL in no manner whatsoever, be
construed or understood as suggesting that Declarations by Declarants which have
subscribed to any additional statement or core statements have not been undertaken in
good faith, or else that no equality of arms subsists in view of members of the bench
who are nationals ofDeclarants.
17. With respect to the Russian Federation's claim of inequality of anns, Malta notes that
this most certainly is not the case. Instead, Malta wonders what the Russian Federation
would have alleged had they been given only eleven (11) days to prepare and file these
written observations in reply to a sixty-one {61) page document.29 This said, Malta
understands and appreciates that the Court's intention is to expedite this phase of the
proceedings as far as practicable. Hence Malta has made its best endeavours to satisfy
the deadline imposed by the Court rather than request an extension of such time limit.
This context and perspective, with all due respect towards the Russian Federation,
manifests the unfairness of the arguments presented by the Russian Federation in
Section 'B'.
18. Additionally, Malta cannot but highlight contradictory dispositions in the written
observations of the Russian Federation which unmask the fragility of its argumentation.
Suffice to note, just by way of example, that positions and arguments presented in
Declarations "are, in substance and sometimes even in form, virtually - and in some
cases, literally - identical to the submissions presented in Ukraine's application and
even its MemoriaI"30 {this being the former position). whereas, on the other hand, "the
25 Paragraph 50 of the written observations submitted by the-Russian Federation on 30 January 2023.
26 Paragraph 49 of the written observations submitted by the Russian Federation on 30 January 2023.
17 Paragraph 15 of Malta's Declaration ofintervention submitted on 24 November 2022. Bold text is effected by
the undersigned for purposes of emphasis.
18 Paragraph 46 of the written observations submitted by the Russian Federation on 30 January 2023.
29 See Annex I consisting in a communication sent on 2 February 2023 by H.E. Philippe Gautier, Registrar of the
Court, with a deadline to reply to a 61-page document by 13 February 2023.
30 Paragraph 26 of the written observations submitted by the Russian Federation on 30 January 2023. See also
explicit reference to the contention that "the Declaratious are drafted in identical or almost identical terms lo
those earlier filed by other States seeking to intervene in support of Ukraine" in paragraph 27 of the written
observations submitted by the Russian Federation on 30 January 2023.
B 115
Russian Federation would be forced to respond to numerous lengthy written pleadings
by the interveners supporting Ukraine at different and critical stages of the
proceedings, as well as to many statements at any oral phase,"31 totaling "thirty-one
different pleadings, in addition to those of Ukraine"32 (this being the latter position).
These positions are diametrically opposed and thus cannot co-exist. If the Russian
Federation's former observation is correct, then any and all oral pleadings could be
expedited, and the Russian Federation would not be burdened in having to rebut
pleadings of many States in so far as these are practically identical. Such common
positions could reflect consistent and settled practice in so far as the position at law is
one and only one. If, on the other hand, the Russian Federation's latter observation is
correct, the pretext upon which Sections 'A' and 'B' are grounded disintegrates like a
house of cards because that would mean that the pleadings of the intervenors are
indeed distinct and different.
19. Matters are further complicated by the Russian Federation's reference to Declarants
which "either claim to address issues of jurisdiction only or allege that they seek to
intervene to interpret provisions of the Convention that in their view relate not only to
merits, but also to the Court's jurisdiction. "33
V. Malta's rebuttal to the Russian Federation's Section 'C', namely: "in any event
the Court cannot decide on tT,e admissibility of the Declarati.ons before it
considers the Russian Federations pl'eliminary objections."
20. Malta disagrees with the Russian Federation's arguments outlined under this section
particularly because of the following reasons which are being laid out below.
21. Jn terms of Article 30(1) of the Statute, the Court enjoys wide discretion in so far as
proceedings before it are concerned. 34
22. Whereas Article 30{1) of the Statute grants discretionary powers to the Court, Article
63 of the Statute burdens the Court with certain obligations, one of which is the duty to
verify whether the conditions stipulated in Article 82(2) of the Rules are observed. In
Haya de la Torre, the Court did not detennine the subject matter of the dispute first,
unlike as stated by the Russian Federation. On the contrary, the Court only ascertained
whether the object of the Intervention of the Government of Cuba was in fact the
interpretation of the Havana Convention regarding the question whether Colombia is
under an obligation to surrender the refugee to the Peruvian Authorities. 35
31 Paragraph St of the written observations submitted by the Russian Federation on 30 January 2023.
' 2 Footnote 72 at page 29 of the written observations submitted by the Russian Federation on 30 January 2023.
33 Paragraph 74 of the written observations submitted by the Russian Federation 30 January 2023.
34 Article 30(1) of the Statute is being laid out for ease of reference: "The Court s/,aliframe rules for carrying out
its functions. Jn particular, ii shall lay down rules of procedure. "
3s Haya de la Torre (Colombia v. Peru), Judgment of13 June 1951, 1.C.J. Reports 1951, p.71, at p.77.
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23. Article 63 of the Statute does not distinguish between separate phases of the Court.
Its opening word 'whenever' clearly indicates that a State is allowed to intervene in all
phases of the proceedings.36
24. Interventions should be made in limine litis, hence at the very start of the proceedings,
and before the oral hearing. In this vein, Article 82(1) of the Rules provides that
declarations under Article 63 "shall be filed as soon as possible, and not later than the
date fzxed for the opening of the oral proceedings. In exceptional circumstances a
declaration submitted at a later stage may however be admitted. "
25. Furthermore, in the first two cases quoted by the Russian Federation in support of its
written observations (namely the Military and Paramilitary Activities case and the
Nuclear Tests case) the Court had actually decided to split the proceedings in separate
phases37 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 a single memorial. Hence,
no authority can be drawn from the Military and Paramilitary Activities and
Nuclea1· Tests for the purposes of the present case. In Military and Paramilitary
Activities and Nuclear Tests, there was a different jurisdictional/admissibility phase,
whereas in the present case there is no such difference. Consequently, the scenarios
postulated by the Russian Federation are not analogous at all and cannot serve as
a frame of reference or as a jurisprudential tool for the Court. Even if the Court
had separated the proceedings in two seperate phases, nothing in the Court's caselaw
supports an obligation of the Court to refrain from deciding on the admissibility of an
intervention during the jurisdictional phase. It seems that the Russian Federation has
largely misread the Court's rejection of El Salvador's Declaration as inadmissible
during the jurisdictional phase. In actual fact, the Court rejected El Salvador's
Declaration as inadmissible not because no intervention under Article 63 of the Statute
could ever be admissible during the jurisdictional phase, but because it did not contain
any construction of Article 36(2) and (5) of the Statute as the jurisdictional base of the
case.
26. In any case, the written observations of the Russian Federation also take a restrictive
view of the conclusions of the Court in relation to El Salvador's intervention.38 In fact,
36 Military and Paramilitary Activities in and against Nicaraguara (Nicaragua vs United States of America),
Intervention of BI Salvador, Dissenting Opinion of Judge Schwebel, l.C.J. Reports 1984, p. 223, at p.234.
37 Military and Paramilftary Activities in a11d against Nicaragua (Nicaragua v. United States of America),
Provisional Measures, Order of 10 May 1984, I.C.J. Reports 1984, p. 169, at p. 187, Point D (separating
jurisdiction and admissibility from the merits phase); Nuclear Tests (New Zealand v. France), Interim Protection,
Order of22 June 1973, I.C.J. Reports 1973, p. 135, atp. 142.
38 Paragraphs 56 and 57 of the written observations submitted by the Russian Federation on 30 January 2023.
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scholarly writings confirm, in relation to El Salvador's intervention in Military and
Paramilitary Activities, that:
"This intervention, if it had been examined by the Court, would have raised the
question whether it is possible to rely on Article 63 in order to intervene in a
preliminary phase of the proceedings, and in particular a phase devoted to
questions of jurisdiction and admissibility. lffor example a case is brought on
the basis of the compromissorv clause in a multilateral convention, the
interpretation of that clause mav be ofinterest to all tlie other States p_arties
(or at least those of them who have not made a rese1-vation to the clause), 11.
would therefore seem that there is no reason Jv/ry i11tervention u11der Article
63 should not be possible to argue a question ofiurisdictio11 or admissibility.
if that question involves the interpretation ofa multilateral treatv. Sir Hersch
Lauterpachtwould have favoured intervention under Article 63 of States parties
to the Statute itself, when the question arose, in the Norwegian Loans case, of
the effect of an optional-clause declaration subject to an invalid condition. The
practice of the Court has been to make the notification required by Article 63,
paragraph I, to the parties to a multilateral convention where such a convention
is invoked as a basis for the jurisdiction of the Court (but not simply where
questions of interpretation of the Statute may arise.
The decision on the intervention of El Salvador is not inconsistent with this
practice; the intervention was not rejected on the basis of any general finding
that intervention at a jurisdictional phase is premature, though the handling of
the matter by the Court was less than adroit, and thus lent itself to
misunderstanding on the point. "39
27. Likewise, in the Nuclear Tests case,4° the Court deemed Fiji's Intervention as
admissible, but it deferred the consideration thereof to the merits, since the intervention
did not contain any construction of the jurisdictional basis of the case.
28. In Nuclear Tests (Request for Examination) the Court had an application before it
together with four Declations of Intervention. By way of an order issued in October
1995, the Court chose to reject both the application and the four interventions. Rather
than separating the proceedings the Court, thus, simply enforced its discretion to
dismiss the application together with the interventions, and nothing more. Nowhere in
said order can it be inferred that a precedent has been created by the Court to
disregard an intervention before examining preliminary objections raised by the
defendant of the proceedings. Therefore, the Russian Federation's arguments also
cannot serve as a jurisprudential tool for the Court for the purpose of the present
proceedings.
39 H. Thirlway, Tire Law and Procedure of the llllernational Court of Justice-Fifty Years of Jurisprode11ce Vol.
I, ( OUP, 2013 ), p. 1031. Bold and underlining is effected by the undersigned for purposes of emphasis.
40 Nuclear Tests (New Zealand v. France), Application to Interve, Order of 12 July 1973, I.CJ. Reports 1973,
p.324, at p.325.
11 JlS
29. At this juncture, mention must also be made of the very essence and need of the
intervention which fits squarely within the parameters of the phrase 'if that question
involves tlie interpretation of a multilateral treaty. • Just a cursory look at Malta's
intervention enables one to decipher that the intervention strictly relates to the
interpretation of the Convention.41 When the intervention is sought in relation to a
legal provision of a treaty the object of which is to safeguard a }us cogens norm of
international law by criminalizing the act of genocide,42 admissibility should be
presumed, at least on a iuris tantum basis. Under international law, the consequence of
the categorisation of a norm enjoying }us cogens status, such as the prohibition of
genocide, should lead this Court to conclude that any legal issue emanating from the
interpretation of the Treaty which penalises the act of genocide itself does not "impose
limits on the will of states: rather it recognises that they have fimctional powers (or, if
one prefers, collective rights) to be managed on behalf of the International community
as a whole. "43
VI. Malta's rebuttal to the Russian Federation's Section 'D\ namely: "the
Decla,·ations address in effect matters whicli presuppose that the Court has
jurisdiction and/or that Uk1·aine's application is admissible."
30. At the outset it must be pointed out that Sections 'C', 'D', 'E' and 'F' are intrinsically
similar, so much so that the Russian Federation contends: "Sections C and D explain
that the court cannot, in any event, decide on the admissibility of the Declarations
before it has made a decision on the Preliminary Objections, and that the Declarations
address matters that presuppose that the Court has jurisdiction and/or that Ukraine's
application is admissible. "44 Remarkably, Sections 'D' and 'F' are nearly identical, to
the extent that replies to Section 'D' herein serve to constitute replies to Section 'F'
here below.
31. It is yet again unfortunate that the Russian Federation draws .inferences from the mere
existence of a declaration to intervene. Malta's Declaration to intervene cannot, ah
initio, presuppose that the Court has jurisdiction and/or that Ukraine's application is
admissible. The very reason for this is that a request for intervention could precede
considerations on jurisdiction as reflected in the reply to Section 'C' here above, and
for the reasons stated therein. To this effect, the same reply provided for Section 'C'
serves to rebut Section 'D' of the Russian Federation. If the Court agrees with the reply
to Section 'C' here above, a corollary thereof would necessarily entail that Malta could
never have pre-supposed the Court's jurisdiction in so far as Malta is merely
exercising a right to intervene further to a notification by the Court Registrar.
41 Paragraphs 11, 13, 17, 18, 19, 20, 22, 23, 24, 26, 28, 29, 30 and 31 of Malta's Declaration of Intervention
submitted on 24 November 2022.
42 Paragraph l J of Malta's Declaration ofintervention submitted on 24 November 2022.
43 P. Picone, The Distinction between jus cogens and obligations erga omnes, p. 4] 1-424, Chapter 24 in E.
Cannizzaro (ed.), The Law o/Treaties Beyond the Jlienna Convention, OUP, 2011, p.415.
44 Para 9(c) of the written observations submitted by the Russian Federation on 30 January 2023.
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32. It is undisputed that "Article 63 speaks unequivocally of a right to intervene."45 Such
plain wording refers to the Convention in its entirety, hence, including the
compromissory clause. Such reasoning is also consonant with an understanding of the
object and purpose of Article 63 of the Statute. Therefore, the fact that Malta's
Declaration addresses the compromissory clause under Article IX of the Convention
cannot render such intervention inadmissible. As a matter of fact, the Court has never
dismissed an intervention because it was, either entirely or predominantly,
designed to interpret a compromissory clause. Furthermore, the effect of Article
36(6) of the Statute, which legal provision mirrors the Court's kompetenz-kompetenz,
is rather significant since "any otlier constructw,i would de0,l"lve the compromissory
clause of all its intended effectiveness .. .''46
33. The existence of this right is settled under international law because there is, in actual
fact, no limitation under Article 63 of the Statute or Article 82 paragraph 2 of the Rules
which can prevent any party to the Convention from exercising its right to intervene on
the construction of the provisions of the Convention pertaining to issues of jurisdiction.
Upon reading the text of Article 63 of the Statute it becomes very clear to the reader
that a State is permitted to intervene "whenever the construction of a convention to
which it is a partv is in question." 47
VIL Malta's rebuttal to the Russian Federation's Section 'E', namely: ''the
reference to Article IX of the Co,ivention is of no assistance for tlie purpose of
intervention at the jurisdictional stage of tlie proceedings. The Declarants cannot
intervene 011 Article IX of tl,e Convention per se."
34. The Russian Federation seems to argue that Malta's Declaration does not relate to the
construction of the Convention but includes an incursion into the interpretation or
application of .Qthg rules of international law which are separate and distinct from the
conventional provision in question, and which emanate from different sources. In fact,
the Russian Federation states that:
"The Declarants, invoking Article IX of the Convention, are in fact seeking to
use this reference as a gateway to comment on the Court's jurisdiction ratione
materiae, providing their views on other articles of the Convention that have
not been identified by the Court as being "in question" between the Parties. ,,4a
45 H. Thirlway, Tire Law and Procedure of tire International Court of Justice - Fifty Years of Jurispn1dence Yo/.
I, (OUP, 2013), p. 1027.
46 R. Kolb, The Scope Ratione Materiae of the Compulsory Jurisdiction of the JC/, p. 442-470, Chapter 22 in P.
Gaeta, Tire UN Genocide Co11ventio11: A Commentary, OUP, 2009, p.451. Bold and underlining is effected by the
undersigned for purposes of emphasis.
47 Bold and underlining is effected by the undersigned for purposes of emphasis.
4s Paragraph 87 of the written observations submitted by the Russian Federation on 30 January 2023.
13 11s
35. The Russian Federation sidelines and undermines the significance of the words
"interpretation" and "application" within Article IX of the Convention. Jurists have
confirmed that:
" 'Interpretation' is typically understood as the process of 'explaining the
meaning' of a legal norm; 'application• is 'the action of putting something in
operation' in a given case. Very often, disputes about the application of a
particular treaty will be based on differences of interpretation; at the same time,
differences of interpretation will only become relevant if some fomi of treaty
application is at least considered ...
Disputes about the 'fulfilment' of the Convention will typically implicate the
application (and possibly interpretation) of the Convention. On that basis it may
indeed have been said that the addition of the word 'fulfilment' does not appear
to be significant. If anything, it confirms the impression that by inserting all
three alternative terms, drafters had sought to give a coverage as exhaustive as
possible to the compromissory clause and to close down all possible
loopholes. "49
36. Moreover, the argument of the Russian Federation belies the very essence of treaty law.
In fact, Article 31 (3 )( c) on the Vienna Convention on the Law of Treaties stipulates
that the interpretation of a treaty may include "any relevant rules of international law
applicable in the relations between the parties". The notion of "relevant rule" includes
various sources of international law such as treaty law, customary international law and
the general principles of law. 50 Therefore, mentioning any other rule of international
law deriving from conventional or customary law cannot be tantamount to
'impermissible incursions'.s1 On the contrary, such rules may serve as an interpretive
tool for the purposes of Article IX of the Convention.
37. International law, as applied by this Court is one corpus iuris. You cannot disentangle
one rule from another because international law, enriched by its various sources, not
only allows but demands that the proceedings of this Court are also governed by
separate and distinct legal instruments including, inter alia, the United Nations Charter.
Consequently, "the interpretation of Article IX has to take account of this 'normative
environment, ' as it has an immediate bearing on the application of Article IX."52 This
matter is settled even jurisprudentially, as follows:
49 C. Tams, Article IX, p.293~318, in C. Tams, L. Berster, B. Schiftbauer, Convention on the Prevention of
Punishment on the Crime of Genocide; a Commentary, CH Beck, Hart Nomos, 2014, p.313.
50 Fragmentation oflntemational Law: Difficulties arising from the Diversification and Expansion oflntemational
Law: Report of the Study Group of the ILC finalised by Mr Martti Koskenniemi, 13 April 2006, pp. 94-96.
https://legal.1Jn.org/ilc/documentation/english/n cn4 1682.pdf.
51 Paragraph 108 of the written observations submitted by the Russian Federation on 30 January 2023.
52 C. Tams, Article IX, p.293-318, in C. Tams, L. Berster, B. Schiftbauer, Co11vet1tio11 011 the Prevention of
Punishment 011 tire Crime of Genocide; a Commentary, CH Beck, Hart Nomos, 2014, p.300-301. Bold and
underlining is effected by the undersigned for purposes of emphasis.
14 115
"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. "53
VIII. Malta's rebuttal to the Russian Federation's Section 'F', namely: "the
Declara,its seek to address issues unrelated to the construction of the Convention
and their admission would prejudge questions relating to the Court's jurisdiction
ratione materiae. "
3 8. Malta notes that the bulk of the points (arguments) raised in Section 'F' are very similar,
if not identical, to those dealt with by the Russian Federation in Sections 'A'~'E'.
Suffice to mention, inter alia the repeated reference to the absence of a "genuine
intervener"54 and the fact that the determination of the admissibility or otherwise of an
intervenor under Article 63 of the Statute should not prejudge jurisdictional issues. 55
39. Moreover. this Section also lumps certain States with situations relating to other third
states. By way of example, the Russian Federation argues that an intervenor" .. . should
not refer directly to matters of evidence ... ". Here again no account was taken of the
fact that Malta, the intervention of which is not hybrid, has not referred to matters of
evidence in its Declaration. In fact, just by way of example, Malta refers to the words
'use of force' only once in its entire Declaration, this being in paragraph 6 wherein it
explains the claim put forward by Ukraine in these proceedings. Frankly, even if it did
refer to evidcntiary matters, this certainly does not render its request to intervene as
inadmissible.
IX. Conclusion
40. For the reasons set out above, Malta hereby submits that its Declaration fully complies
with the requirements under Article 63 of the Statute and Article 82 of the Rules of the
Court.
41. Malta hwnbly and respectfully submits that the Court should decide that Malta's
Declaration of Intervention is admissible. Hence, the Court should allow Malta to
present its written observations in good time in order to exercise its right to intervene
as party to the Convention.
s3 Allegations of Genocide under the Convention on the Prevention and Punishment of the crime of Genocide
(Ukraine vs Russia), Order of 16 March 2022, p.13 para 58.
54 Paragraph 107 of the written observations submitted by the Russian Federation on 30 January 2023, reference
to which is repeated throughout Section 'A'.
55 Paragraphs 111 and 113 of the written observations submitted by the Russian Federation on 30 January 2023,
reference to which is repeated throughout Section 'D'.
Respectfully,
Christopher Soler
STATE ADVOCATE
AGENT OF THE GOVERNMENT OF MALTA
Mark Pace
MALTA'S AMBASSADOR TO THE KINGDOM OF THE NETHERLANDS
CO-AGENT OF THE GOVERNMENT OF MALTA
15 115
Annex 1: Communication sent, on 2 February 2023, by H.E. Philippe Gautier, Registrar of the
Court.
Written Observations of Malta on the admissibility of its Declaration of Intervention