INTERNATIONAL COURT OF JUSTICE
OBSERVATIONS ON THE ADMISSIBILI1Y OF THE DECLARATION OF
INTERVENTION UNDER ARTICLE 63
OF NORWAY
13 February 2023
In the case of
ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE
PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE v. RUSSIAN FEDERATION)
OBSERVATIONS ON THE ADMISSIBILITY OF THE DECLARATION OF
INTERVENTION UNDER ARTICLE 63 OF NORWAY
INTRODUCTION
1. On 24 November 2022, the Kingdom of Norway availed itself of its right to intervene in the
proceedings in the Case of Allegations of Genocide under the Convention on the Prevention
and Punishment of the crime of Genocide between Ukraine and the Russian Federation
pursuant to Article 63 paragraph 2 of the Statute of the Court.
2. In its " Written Observations on Admissibility of the Declarations of Intervention submitted
by Belgium, Bulgaria, Cyprus, Liechtenstein, Malta, Canada and the Netherlands, Norway,
Slovalda and Slovenia", The Russian Federation has requested the Court to dismiss Norway's
Declaration of Intervention, as a whole or as it relates to the jurisdictional phase of the
proceedings, or to defer the consideration of admissibility until after the Court has made a
decision on the Russian Federation's Preliminary Objections. The basis of this claim is that 1)
Norway's intervention "is not genuine", 2) Norway's intervention would be incompatible
with the principle of equality of the Parties and the requirements of good administration of
justice, 3) the Court cannot decide on the admissibility of the Declaration before it has
considered the Russian Federation's Preliminary Objections, 4) the Declaration addresses
matters which presuppose that the Court has jurisdiction and/or that Ukraine's Application is
admissible, and that 5) the Declaration seeks to address issues unrelated to the Construction of
the Convention and that admission of the Declaration would therefore prejudge questions
relating to the Court's jurisdiction ratione materiae.
3. Norway maintains that the question of whether Norway's Declaration oflntervention is
admissible depends on an assessment of whether the Declaration falls within the ambit of
Article 63 of the Statute of the Court and adheres to the formal requirements of Article 82 of
the Rules of the Court. As follows from the Declaration itself and as summarized below in
para 2, this is clearly the case.
4. The means of treaty interpretation follow from customary international law as reflected in
the Vienna Convention on the Law of Treaties Articles 31 and 32 and this must form the basis
of an assessment of Article 63. In Norway's view, none of the objections advanced by the
Russian Federation stand up to closer scrutiny. The objections of the Russian Federation are
addressed below in para 3 to 8.
NORWAY'S DECLARATION OF INTERVENTION IS CONSISTENT WITH THE
SCOPE OF ARTICLE 63 OF THE STATUTE OF THE COURT AND MEETS THE
FORMAL REQUIREMENTS OF ARTICLE 82 OF THE RULES OF COURT
5. Article 63 of the Statute of the Court confers a "right" to intervene in ongoing proceedings
to every state notified of a case where the construction of a convention to which it is a party is
2
in question. As follows from the wording, Article 63 provides for interventions as of right.1 It
is for the state itself to decide whether it "desires" to use this right in a specific case or not.2
6. The context confirms this understanding. The Statute of the Court provides two alternative
forms of intervention. In addition to the right given to parties to intervene in a case related to a
convention whose construction is in question, Article 62 specifies that a state "may submit a
request to the Court to be permitted to intervene" where it considers it has "an interest of a
legal nature in a case". As opposed to the situation in Article 63, it is then "for the Court to
decide upon this request" and whether such an intervention is "permitted". This is indeed also
reflected in the Rules of Court Article 84 (1) where it is stated that the Court shall decide
"whether an application for permission to intervene under Article 62 of the Statute shall be
granted, and whether an intervention under Article 63 of the Statute is admissible".3
7. Accordingly, when faced with a Declaration of Intervention under Article 63, the Court is
simply invited to verify that the intervention "is admissible", in other words that the
Declaration is consistent with the scope of Article 63, and that the formal requirements of
Article 82 of the Rules of the Court are met.4
8. As evidenced in the Declaration of Intervention itself, Norway's Declaration is within the
scope of interventions as defined by Article 63: As noted by the Registrar in the formal
notification pursuant to Article 63 (1), "the Genocide Convention is invoked as a basis of the
Court's jurisdiction and as a substantive basis of the Applicant's claims on the merits". 5
Hence, the case concerns the construction of the Genocide Convention. Norway is a party to
this convention.6 Norway's Declaration in tum puts forth Norway's views on the construction
of the Convention. In doing so, the text of the Declaration is confined to Norway's
interpretation of the Convention articles IX, I, II, III and VIII. The object of the Declaration is
thus the construction of the Convention and it "does not extend to general intervention in the
case".7 Norway's Declaration is therefore consistent with the scope of Article 63.
9. Norway's Declaration also meets the formal requirements of Article 82 of the Rules of the
Court. The Declaration, signed in the manner provided for in Article 38 paragraph 3 of the
Rules, was filed "as soon as possible" and well before any opening of oral proceedings, the
dates of which have not yet been set. 8 The Declaration appoints an agent and specifies the
case and the convention to which it relates. 9 It also contains the basis on which Norway is a
party to the Convention, identifies the "particular provisions" of the convention the
construction of which Norway "considers to be in question", and includes a statement of the
1 Statute of the International Court of Justice Article 63 (2) "Every state so notified has the rights to intervene
( ... )". Rules of Court Article 82 (I) also speaks of "the right of intervention conferred upon it".
2 As reflected in Rules of Court Article 82 (I) "A state which desires to avail itself the right of intervention
conferred upon it by Article 63 of the Statute( ... )".
3 Rules of Court Article 84 (1).
4 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February
2013, I.CJ. Reports 2013.
5 Annex A to Norway's Declaration of Intervention under Article 63: Letter from the Registrar of the
International Court of Justice to the Ambassador of Norway to the Kingdom of the Netherlands dated 30 March
2022.
6 Annex B to Norway's Declaration of Intervention under Article 63: Letter from the United Nations regarding
the Ratification by the Government of Norway of the Convention on the Prevention and Punishment of the
Crime of Genocide.
7 Haya de la Torre (Colombia v. Peru), Judgment of 13 June 1951 , I.C.J. Reports 1951 pp. 74, 76-78.
8 In accordance with Rules of Court Article 82 ( 1 ).
9 Rules of Court Article 82 (2)
3
construction of these provisions as well as a list of the documents in support, which are
attached to the Declaration. 10
10. For these reasons, Norway asserts that its Declaration of Intervention "is admissible" and
therefore "shall be granted" by the Court. In Norway's view, none of the objections raised by
the Russian Federation in its Written Observations change this outcome. For the sake of good
order, Norway will briefly outline its reasons for this conclusion below.
THE "GENUINESS" OF A DECLARATION OF INTERVENTION IS NOT RELEVANT
UNDER ARTICLE 63
11. In its Written Observations, the Russian Federation argues that the interventions received
by the Court "are not genuine" as their "real objective" is not the construction of the
convention, but "to pursue a joint case with Ukraine". 11 The Russian Federation seems to
suggest that the Court should attempt to look beyond the text of a submitted declaration to
identify the "real objectives" of a state that has availed itself of the right to provide the Court
with its views on the interpretation of a convention in question in a case. Apparently, this test
of the "genuineness", i.e., the "sincerity" of a declaration should be assessed based on "the
context of the declaration", and the Russian Federation proceeds to provide the Court with a
variety of political statements and press releases as the basis for this evaluation.
12. Norway notes that none of these "sources" provided in Part II A of the Russian
Federation's Written Observations concern Norway or the Norwegian Declaration of
Intervention specifically. Still, Norway will briefly outline why this argument lacks legal
basis.
13. First, Article 63 invites the Court to ascertain whether a declaration of intervention meets
the described requirements. This precludes any consideration of the "genuineness" of a
declaration or the "real objectives" of the state submitting it. There is nothing in Article 63,
interpreted in good faith and otherwise in line with the acknowledged rules of interpretation
reflected in the Vienna Convention on the Law of Treaties Articles 31 and 32, that supports
the Russian interpretation of Article 63 in this regard.
14. Second, the Norwegian Declaration is an independent statement by the Kingdom of
Norway as a party to the Genocide Convention submitting Norway's views on its
construction. Whether Norway's views align with one of the parties to the case, or with other
states who also desire to avail themselves of their right of intervention, is irrelevant to the
assessment of the conditions under Article 63.
15. Third, the Russian Federation bases its argument on an erroneous reading of the Court's
practice in the Haya de la Torre case. In this case, the Court simply assessed if Cuba's
intervention in the case was made regarding the construction of the Havana Convention in
connection with the subject matter of the case, namely the question of whether Colombia was
obligated to surrender Haya de la Torre to the Peruvian authorities and not made as an attempt
to appeal against a former Judgment by the Court. It is in this context that the concept of a
"genuine intervention" appears. The Court found that to a large extent, the Cuban intervention
was in fact devoted to questions already decided by the Court in its former Judgment.
10 Rules of Court Article 82 (2) litra a-d.
11 Written Observations of the Russian Federation part A.
4
Importantly however, the Court accepted the intervention in as far as it pertained to the
interpretation of aspects that had not been considered in the former Judgment. 12
16. Fourth, the Russian Federation seems to indicate that Norway, as well as the other
Declarants, has ulterior motives for intervening other than opining on the construction of the
Genocide Convention. However, the Russian Federation can rest assured that Norway is
perfectly capable of exercising its right under the ICJ Statute as a party to the Genocide
Convention while also condemning the Russian Federation's war of aggression against
Ukraine in the strongest possible terms as a blatant violation of international law. The two are
not mutually exclusive. The difference is that where the first gives Norway the right to
intervene under Article 63 in the case currently before the Court, the latter does not provide
the Russian Federation with any grounds for its dismissal.
17. As shown above, the "genuineness" of a Declaration of Intervention is not relevant under
Article 63. Norway thus rejects this claim by the Russian Federation.
ADMITTING NORWAY'S DECLARATION OF INTERVENTION IS CONSISTENT
WITH THE PRINCIPLE OF EQUALITY OF THE PARTIES AND THE REQUIREMENTS
OF GOOD ADMINISTRATION OF JUSTICE
18. In part II B of its Written Observations, the Russian Federation attempts to show that
Norway's Declaration oflntervention would be incompatible with the principle of equality of
the parties and the requirements of good administration of justice.
19. This too does not pass muster. The Court is not undermined because other parties to a
convention whose construction is in question before the Court, use their right of intervention.
On the contrary, Article 63 explicitly provides for this. Article 63 is itself an essential part of
the set of rules which shall ensure good administration of justice. As such, the object and
purpose of Article 63 is to ensure that other states than the parties to a case, can present their
views to the Court on the construction of conventions to which they too are parties. It is of
inherent value for the Court not only to hear the views of the parties at bar, but also other
states' interpretations of the questions of law before the Court. This is even more important,
as in this case, when the legal issues raised involve }us cogens norms and obligations erga
omnes as enshrined in the Genocide Convention.
20. In addition, it must be assumed that the principles of equality of the parties and good
administration of justice are achieved precisely through the Court performing its role based on
the Statute of the Court and according to the Rules of Court, which are conducive to cases
being addressed on the basis of fairness, impartiality and timeliness. Reciprocity for the
parties to the case is in tum provided for through the opportunity for the parties to respond to
a Declaration of Intervention, as the Russian Federation has also done.
21. Among other claims, the Russian Federation alleges that the Court in its evaluation of
Article 63 must have the "circumstances of each specific case" in mind. Norway respectfully
submits that this is incorrect as the purpose of Article 63 is to ensure that other parties to a
convention whose construction is in question in a case can provide the Court with its
interpretation, irrespective of the circumstances of a specific case.
12 Haya de la Torre (Colombia v. Peru) Judgment of 13 June 1951, I.CJ. Reports I 951 pp. 77.
5
22. The Russian Federation also refers to procedural rules of the Court pertaining to cases
where there are several parties involved. It is correct that the Rules of Court have specific
procedural rules governing a case with several parties. However, Norway is not a party to the
case between Ukraine and the Russian Federation. Neither has Norway requested permission
from the Court to intervene as a party under Article 62. Importantly, Norway is not a "defacto-
applicant" but has declared that it desires to use its right to intervene under Article 63.
Consequently, the procedural rules regarding several parties are not relevant.
23. As shown above, admitting Norway's Declaration oflntervention is consistent with the
principle of equality of the parties and the requirements of good administration of justice.
THE COURT SHALL ASSESS THE ADMISSIBILITY OF NORWAY'S INTERVENTION
BEFORE CONSIDERING THE RUSSIAN FEDERATION'S PRELIMINARY
OBJECTIONS. THE DECLARATION DOES NOT PRESUPPOSE THAT THE COURT
HAS JURISDICTION AND/OR THAT UKRAINE'S APPLICATION IS ADMISSIBLE
24. The Russian Federation claims in part II C of its Written Observations that the Court must
decide on its Preliminary Objections before it can assess Norway's Declaration of
Intervention. At the same time, however, the Russian Federation argues in its Preliminary
Objections that the Court must interpret several provisions of the Convention to establish the
Court's jurisdiction ratione materiae. 13
25. Norway has a right to intervene under Article 63 on the construction of a convention
"whenever" it is in question. It follows that Norway can intervene on the construction of any
provision of the Convention whenever any such provision is in question. This includes the
jurisdictional stage. Whether the Court decides to address questions of jurisdiction separately
from other issues does not alter this.
26. This understanding is indeed confirmed by Article 63 read in conjunction with the Rules
of Court which state that an intervening state shall file a declaration "as soon as possible" and
at the same time identify "the particular provisions of the convention the construction of
which it considers to be in guestion". 14 The choice of plural form - provision~ - confirms that
a state can provide its views on the construction of several provisions.
27. Further, the wording attests that it is for the intervening state to identify which provisions
"it considers to be in question". Thus, the intervening state must, based on the information
available to it at the time of the declaration - which must be as soon as possible - evaluate
and identify which of the provisions of a convention before the Court it seeks to exercise its
right to intervene. Norway has done precisely this. Coincidently, this point is illustrated by the
fact that the intervening states in this case have focused on different provisions in their
respective declarations.
28. Norway submits that if the right to intervene under Article 63 is to fulfill its purpose, it
must be possible to intervene before the Court decides on the matter. This understanding is
supported by the wording in Article 84 of the Rules of Court obliging the Court to decide
13 Preliminary Objections of the Russian Federation, Allegations of Genocide Under the Convention on
the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russia), filed 3 October 2022,
para. 163.
14 Rules of Court Article 82 (2) litra b ).
6
whether an intervention under Article 63 is admissible "as a matter of priority". 15 If the Court
does not assess the admissibility of Norway's Declaration before considering the Russian
Federation's Preliminary Objections, Norway's views on the Articles relevant for this
assessment will not be heard by the Court. Consequently, Article 63 is devoid of its purpose.
29. For the same reasons stated above, it must be clear that the Norwegian Declaration does
not "presuppose" that the Court has jurisdiction or that Ukraine's Application is admissible to
the Court, as argued by the Russian Federation in part II D of its Written Observations.
Rather, it adheres completely to the scope and intention of Article 63, as well as the formal
requirements established in the Rules of Court.
30. Norway rejects the Russian Federation's claim that the Court must decide on its
Preliminary Objections before it can assess the admissibility ofNorway's Declaration of
Intervention, as well as the claim that the Declaration is inadmissible since it relates to the
jurisdictional phase of the proceedings.
NORWAY HAS THE RIGHT TO INTERVENE ON THE GENOCIDE CONVENTION
ARTICLE IX
31. In part II E of its Written Observations, the Russian Federation argues that Norway is
prevented from intervening on the construction on the Genocide Convention Article IX,
apparently because it is a compromissory clause and therefore cannot form the "subjectmatter"
of the proceedings.
32. From the documents available, it is clear that Ukraine contends that the Court has
jurisdiction to hear its case under Article IX. The Russian Federation has disputed this.
Accordingly, Norway has identified that the construction of Article lX of the Genocide
Convention is in question in the case, and Norway has a right to provide its view on its
construction.
33. Norway recalls that the right to intervene under Article 63 arises "whenever the
construction of a convention to which States other than those concerned in the case are parties
is in question". There is no distinction between jurisdictional and substantive issues in this
regard.
34. Further, and as highlighted above, it is for the intervening state to identify which
particular provisions of a convention it considers to be in question. Consequently, states may
offer their assistance to the Court on any occasion of interpretation of a convention to which
they are party, including on a compromissory clause as the basis for the Court's jurisdiction.
35. The Russian Federation has not provided any sound legal basis for its claim to the
contrary. There is nothing in the travaux preparatoires - as a supplementary means of
interpretation - to contradict Norway's interpretation of Article 63 outlined above. On the
contrary, the report made by the representative of France, to which the Russian Federation
refers, confirms the object and purpose of Article 63 as allowing states "not involved in the
dispute" "the right of intervening in the case in the interest of the harmonious development of
15 Rules of Court Article 84 (1).
7
the law". 16 Depending on the circumstances of the case, this naturally applies also in relation
to questions of jurisdiction.
36. Nor does the Court's reasoning in the Haya de la Torre case support the Russian
Federation's view. 17 The " subject-matter" of the current proceedings between Ukraine and the
Russian Federation is the allegations of genocide made by the Russian Federation. Norway's
Declaration of intervention is made on the construction of the Genocide Convention in this
context.
37. The remaining sources cited by the Russian Federation in part II E of its Written
Observation deal with whether compromissory clauses give substantive rights. Norway has
not claimed that Article IX gives substantial rights. Norway has simply, in line with its right
under Article 63 and in line with the Rules of Court, identified that Article IX is one of the
provisions Norway "considers to be in question" in the case and has provided its opinion on
its construction accordingly.
38. Thus, Norway submits that it has the right to intervene with respect to Article IX.
NORWAY'S DECLARATION CONCERNS THE CONSTRUCTION OF THE GENOCIDE
CONVENTION, AND NORWAY'S INTERPRETATION IS BASED ON THE
RECOGNIZED RULES OF TREATY INTEPRET ATION AS WELL AS THE RELEVANT
SOURCES OF INTERNATIONAL LAW
39. In part II F of its Written Observations the Russian Federation claims that the Declaration
is inadmissible because Norway refers to "issues that are unrelated to the construction of the
provisions of the Convention", with the following specific examples pertaining to Norway:
(g) Norway touches upon the issues such as the existence of dispute between the
Parties, good faith in the application of the Convention, the use of force and abuse of
rights, while also referring to the UN Charter and other rules of international law.
40. When it comes to the alleged references to "the existence of a dispute between the
parties", Norway submits that for a state to effectively identify which "particular provisions"
it "considers to be in question", it is necessary to assess - prima facie - based on the
information and documents available, whether the parties seem to disagree on the
interpretation of a specific provision, and in tum whether it wishes to intervene on the
construction of it. This is precisely what Norway has done, completely in line with Article 63
and the Rules of Court. 18
41. Moreover, Norway's interpretation of the relevant provisions of the Convention is based
on the recognized rules of treaty interpretation as they follow from customary international
law and as reflected in The Vienna Convention on the Law of Treaties Articles 31 and 32,
including the principle of good faith, as reflected in Article 31 (1 ), and other "relevant rules of
16 League of Nations, Permanent Court of International Justice, Documents concerning the action taken by the
Council of the League of Nations under Article 14 of the Covenant and the Adoption by the Assembly of the
Statute of the Pennanent Court of International Justice ( 1921 ), p. 50.
17 As outlined in paragraph 2 above, the Court's reference to an intervention relating to "the subject-matter of the
pending proceedings" meant that Cuba's intervention had to be on the construction of the Havana Convention in
connection with the question of whether Colombia was obligated to surrender Haya de la Torre to the Peruvian
authorities, cf. Haya de la Torre (Colombia v. Peru) Judgment of 13 June I 95 I, I.CJ. Reports I 951.
18 E.g. cf. Norway's Declaration on Intervention, paragraph 13.
8
international law applicable in the relations between the parties", as reflected in Article 31 (3)
litra c). When it comes to the references to the UN Charter, Norway recalls that the Statute of
the International Court of Justice is considered an integral part of the Charter. 19
42. Norway furthermore submits that the Russian Federation's claim that the Declaration is
inadmissible because Norway refers to "issues that are unrelated to the construction of the
provisions of the Convention" are irrelevant to the assessment of whether the Declaration
meets the conditions under Article 63. Norway thus rejects the claim that the Declaration is
inadmissible for the reasons referred to in part II F of the written observations of the Russian
Federation.
CONCLUSION
43. In Norway's view, none of the objections advanced by the Russian Federation in its
Written Observations can render the Norwegian Declaration inadmissible.
44. The Norwegian Declaration oflntervention is admissible pursuant to Article 63 and meets
the formal requirements of Article 82 of the Rules of Court and shall therefore be granted by
the Court.
45. Based on the above, Norway respectfully requests the Court to admit Norway's
Declaration of Intervention.
Respectful! y,
~ E.~ Kristian J ervell
Agent of the Governm nt of Norway
19 Cf. the Charter of the United Nations Article 92.
9
Written Observations of Norway on the admissibility of its Declaration of Intervention