International Court of Justice
Allegations of Genocide under the Convention on the
Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation)
Portuguese Republic's Written Observations
on the Admissibility of Its Declaration of Intervention
13 February 2023
I. Introduction
1. On 7 October 2022, the Portuguese Republic 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 under the Convention on the Prevention and
Punishment of the Crime of Genocide {Ukraine v. Russian Federation). While Russia
pleaded to the Court to reject it as inadmissible, Ukraine argued that it is admissible.
2. With the present observations the Portuguese Republic wishes to share with the Court
its understanding of Article 63 of the Statute first in order to demonstrate that it fully
complied with all the requirements (11.). It then addresses Russia's main arguments (Ill.)
before concluding (IV.).
II. The Declaration complies with the requirements of the Statute
3. Article 63 of the Statute provides that
"l. Whenever the construction of a convention to which states other than those
concerned in the case are parties is in question, the Registrar shall notify 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 in."
4. Article 82, paragraph 2, of the Rules of the Court provides that a declaration of a
State's desire to avail itself of the right of intervention conferred upon it by Article 63 of
the Statute shall specify the case and the convention to which it relates and shall
contain:
(a) particulars of the basis on which the declarant State considers itself a party to the
convention;
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(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 documents in support, which documents shall be attached.
5. A plain reading of these provisions indicates that every State party to the Genocide
Convention has a "right" to intervene, as confirmed by the Court1. In line with Article
82(2) of the Rules, this right may be exercised in the present case if four objective criteria
are fulfilled:
{a) The State must show that it has become party to the Genocide Convention;
{b) The intervention must identify the particular provisions of the Genocide
Convention the construction of which is in question;
(c) The intervention must contain "a statement of the construction" of these
provisions of the Genocide Convention.
(d) The intervention must contain a list of documents in support.
6. Hence, the admissibility test is a simple one. The Court must ascertain whether the
object of the desired intervention stems from a State Party to the Genocide Convention
and whether the object of the intervention is in fact the interpretation of the identified
provisions of the Genocide Convention.2
7. The latter condition leaves room for only two grounds of inadmissibility. First, the
Court can reject a statement if it turns out that a State does not advance a
"construction" of the Convention in question, but only ventures into territory of
application. In such a case, an intervener would act as if it was a co-complainant or codefendant,
circumventing the procedural requirements to become a party in its own
1 Haya de la Torre (Colombia v. Peru), Judgment, I.C.J. Reports 1951, p. 76; Continental Shelf
(Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene, Judgment, I.C.J. Reports 1981,
p. 13, para. 21.
2 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6
February 2013, I.CJ. Reports 2013, pp. 5-6, para. 8.
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right. Second, the Court can declare an intervention inadmissible if the statement does
not refer to the Convention in question, but to other self-standing areas of international
law without any connection with the Convention. In such a case, the Court would not be
required to look at the purported intervention, as it would be irrelevant to the case at
hand.
8. The Portuguese Republic considers that it has fully complied with the admissibility
requirements under Article 63 of the Statute and 82 of the Rules of the Court. As
indicated in paragraph 16 of the Declaration, it is a party to the Genocide Convention.
Moreover, in paragraphs 17-19 of the Declaration, it has announced to the Court its
intention to contribute to the interpretation of Articles IX and I of the Genocide
Convention, which must be interpreted also in light od Articles II, Ill and VIII of the same
Convention. In doing so, the Portuguese Republic has refrained from making any
statements that could be regarded as an attempt to apply the Convention to any facts
that occurred between Ukraine and Russia. Accordingly, it has also not endorsed the
Ukrainian pleas or arrogated to itself any other right that is reserved to a party to the
dispute.
9. The Russian Federation, nevertheless, objects to this straightforward analysis by
advocating five counter-arguments. However, a closer analysis reveals that none of
them has a legal basis. Rather, as will be shown in the next section, Russia invites the
Court to read into the Statue additional requirements on admissibility for interventions
under Article 63 of the Statute, which are not there.
Ill. The arguments of the Russian Federation have no legal basis
A. There is no subjective test about the genuine intentions of the intervener
10. In its first argument, the Russian Federation tries to convince the Court to reject the
intervention as not being "genuine". Quoting several political statements of various
intervening States in paragraphs 16-32, it takes issue with the fact that the intervention
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was part of a concerted political strategy to help Ukraine in the case. This, in the view of
Russia, would reveal an intention of Portuguese Republic to become a de facto cocomplainant.
11. The Russian presentation is erroneous. The Court has used the expression of
"genuine intervention" in Haya de la Torre3 to describe how it operated the objective
test of finding out whether the object of the intervention of Cuba was the interpretation
of the Havana Convention (a "genuine" intervention) or an attempt to re-litigate another
case (not a "genuine" intervention). However, contrary to the Russian observation in
paragraph 15, the Court did not consider the text of the declaration and the context
within it had been filed to establish the "genuine intention" of Cuba. This semantic shift
from an objective test (was the intervention "genuine"?) to a subjective test (was the
government's intention "genuine"?) does not have any basis in the case law of the Court.
Accordingly, the motivation of the Portuguese Republic underlying the declaration of
intervention is irrelevant.
12. Similarly, the question whether an intervener would be "taking sides" or not, cannot
trigger the inadmissibility of an intervention. Already in the Wimbledon case, the Court
accepted that Poland as intervener shared the arguments of the applicant4. Moreover,
the Portuguese Republic does not "advocate side-by-side with Ukraine as de facto coapplicant",
as alleged in paragraph 34 of the Russian observations. As demonstrated
above, the Portuguese Republic 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 to itself any other rights of a complainant. Russia's first
argument is therefore entirely unfounded.
13. Finally, the Russian allegation that the Portuguese Republic has taken a different
position on Article IX of the Genocide Convention in the case Serbia and Montenegro v.
Portugal is erroneous. In any case, even if a legal position had evolved over time (quod
3
Haya de la Torre, Judgment of 13 June 1951, I.C.J. Reports 1951, p. 71, at p. 77.
4 55 Wimbledon, Judgment of 17 August 1923, P.C.I.J. Series A Nr. 1, p. 12, at p. 18.
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non est), such evolution would not be a criterion to deny the admissibility of the
intervention.
B. There is no test verifying the effects of an intervention
14. In its second argument, the Russian Federation pleads that admitting the
intervention would be incompatible with the equality of the Parties and the
requirements of good administration of justice. It thereby shifts the test under Article
63 of the Statute from verifying the "object" of the intervention to its "effects" on the
case. That proposition lacks equally any legal basis.
15. The first argument was already advanced by Japan in Whaling in the Antarctic. True,
Judge Owada gave some credence to the idea of an effects test to restrict the
admissibility of an intervention, as quoted extensively in paragraphs 37-40 of the
Russian submission. However, he remained isolated with his position in the bench. The
Court itself dismissed the very idea that an intervention would affect the equality of
parties if it stays within the limits drawn by Article 63 of the ICJ Statute. When admitting
New Zealand's intervention, it ruled5
:
"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, os 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
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;
19. Whereas New Zealand has met the requirements set out in Article 82 of the Rules
of Court; whereas its Declaration of Intervention falls within the provisions of Article
s Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6
February 2013, I.C.J. Reports 2013, p. 3, at p. 9, paras. 18-19.
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63 of the Statute; whereas, moreover, the Parties raised no objection to the
admissibility of the Declaration; and whereas it follows that New Zealand's
Declaration of Intervention is admissible".
16. In other words, the Court confirmed that a proper declaration of intervention under
Article 63 of the Statute, which is limited to submitting observations on the construction
of the convention in question, cannot affect the equality of the Parties per se.
17. While acknowledging the existence of this order (paragraph 40), Russia takes issue
with the fact that the high number of interventions would nevertheless raise an issue of
representativeness in the bench under Article 31(5) of the Statute (paragraphs 41-47)
and become "unmanageable" for itself and the Court (paragraph 49). Admitting several
interveners would also run "entirely against the Court's previous practice of admitting
only one intervener per case" (paragraph 52). However, contrary to the Russian
assertions expressed in paragraphs 37-52, the Court's order in Whaling in the Antarctic
presents the correct legal position when the Court faces a situation of several
interveners.
18. First, the assertion that the Court admitted only one intervener per case is
misleading. To the best knowledge of the Portuguese Republic, the Court has never
refused a declaration of intervention with the reasoning that it had already allowed the
intervention of another State and allowing a second one would therefore be
inadmissible.
19. Second, such an approach would also be manifestly arbitrary. The Court has no
power to declare an intervention inadmissible because another State had already done
so before. Such a restriction would directly encroach of the "right of intervention" of
every State party to a Convention whose construction is at issue. It may well be the case
that States were cautious to exercise this right in the past, leading to very few
interventions in the history of the Court so far. However, that is a pure matter of policy.
According to the Court's Statute, all State parties have the right to intervene under
Article 63 at the same time, if they so wish. Under the Genocide Convention, all State
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Parties can even invoke the responsibility of another party for a breach of its obligations
erga omnes to institute proceedings against the other party°. In such a situation, when
the treaty embodies matters of collective interest, the late Judge Canc;:ado Trindade
called upon all State Parties to contribute to the proper interpretation of the treaty as
sort of a "collective guarantee of the observance of the obligations contracted by the
State parties"7. In the present case, the fact that many other States felt the need to share
their interpretation of the Genocide Convention with the Court cannot deprive the
Portuguese Republic of its right to intervene under Article 63 of the Statute on this
important matter.
20. Third, it is a direct and inevitable consequence of numerous interventions that some
judges in the bench may hold the same nationality as an intervening State. However,
that does not infringe the equality of the parties. As recalled by the Court in paragraph
18 of its order in the Whaling case, the interveners do not become party to the
proceedings. Therefore, Articles 31 (5) of the Statute, and Articles 32 and 36 of the Rules,
as quoted by the Russian Federation, do not apply. Moreover, all judges are bound to
uphold their neutrality and impartiality in accordance with Article 20 of the Statute.
21. Fourth, the Portuguese Republic recognises that the number of interveners in the
present case is unprecedented and may indeed present new organisational challenges
to the Court. In line with Article 30(1) of the Statute, the Court enjoys large discretion to
organise the proceedings. The Portuguese Republic welcomes the decision of the Court
to ask for written submissions of the interveners with an identical deadline in order to
streamline the process. In order to help in the good administration of justice, it also
reiterates its availability to coordinate its further action before the Court with other
interveners in order to contribute to an effective management of time of the Court and
both parties.
6 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gombia
v. Myanmar), Judgment of 22 July 2022, p. 36, paras. 107-108.
7 Separate Opinion of Judge Cani;ado Trindade, attached to Whaling in the Antarctic (Australia v. Japan),
Declaration of Intervention of New Zealand, Order of 6 February 2013, I.C.J. Reports 2013, p. 33, para 53.
8
C. There is no duty of the Court to refrain from deciding on the admissibility of the
intervention before considering Russia's preliminary objections
22. 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 admissibility of an application was challenged. In paragraphs 53-54, it quotes six cases
in support. In the first three instances (Military and Paramilitary Activities, Nuclear Tests
and Nuclear Tests (Request for Examination)), the Court is said to have discarded
interventions in the respective phases relating to jurisdiction or admissibility. In the
second three instances (Haya de la Torre, Whaling in the Antarctic and Wimbledon), the
Court accepted interventions within the main phase, because - according to Russia in
paragraph 54- the jurisdiction was not challenged in a separate stage.
23. It appears that Russia draws from this practice a duty of the Court to refrain from
deciding on the admissibility of the interventions before considering its preliminary
objections. However, such a duty does not have a legal basis and the alleged precedents
do not support this view either.
24. First, Article 63 of the Statute does not make any distinction between separate
phases before the Court. Rather, the opening word "whenever" indicates that a State is
allowed to intervene in all phases of the proceedings8. Moreover, Article 82(1), second
sentence of the Rules sets out only an outer time limit, i.e. a duty to intervene no later
than the date fixed for the oral hearing. Again, the mention of an "oral hearing" does
not distinguish between separate phases of the Court - the intervention may be filed
before the oral hearings set for the jurisdictional/admissibility phase or before the
merits phase. In addition, the invitation to file a declaration "as soon as possible" in that
provision confirms that the filing of an Article 63 declaration is admissible at this stage
of the proceedings.
8 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Dissenting Opinion of Judge Schwebel, I.CJ. Reports 1984, p. 223, at p. 234.
9
25. Russia also advances an erroneous interpretation of the words "Convention in
question" in Article 63 of the Statute. In its view, it would be first for the Court to
determine the "dispute" pending before it prior to allowing Parties to the Convention to
intervene. However, the role of the Court in Article 63 of the Statute is restricted to
verify whether the conditions enumerated in Art. 82(2) of the Rules are complied with.
Contrary to the Russian allegation, the Court did not determine first the subject matter
of the dispute in Haya de fa Torre9. Rather, 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.
26. Second, in the first two cases quoted by Russia in support for such a duty (Military
and Paramilitary Activities and Nuclear Tests) the Court had actually decided to split the
proceedings in separate phases10 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 objections.
Rather, it has allowed Ukraine to address jurisdiction, admissibility and merits in one
memorial. Accordingly, no authority can be drawn from Military and Paramilitary
Activities and Nuclear Tests for the present case: in those cases, there was a different
jurisdictional/admissibility phase, in the present case there is none.
27. Third, even if the Court had separated the proceedings in the two separate phases
here, nothing in the case law supports a duty of the Court to refrain from deciding on
the admissibility of an intervention during the jurisdictional phase. In Military and
Paramilitary Activities, the Court's jurisdiction depended on an understanding of Article
36(2) and (5) of the Statute, and the merits touched upon questions of the UN Charter
and customary international law. El Salvador's Declaration of intervention of 15 August
9 Haya de la Tarre Case. Judgment of June 13th 1951, I.C.J. Reports 1951, p. 71, at p. 77.
10 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Provisional Measures, Order of 10 May 1984, 1.C.J. Reports 1984, p. 169, at p. 187, Point D (separating
Military and Paramilitary Activities in and 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 of 22 June 1973, I.C.J. Reports 1973, p. 135, at p. 142.
10
1984 addressed mainly the latter and did not contain any statement on how it would
construe Article 36(2) and (5) of the Statute. Against that background, the Court
dismissed the application "in as much as it relates to the current phase of the
proceedings"11. As judge Singh12, judges Ruda, Mosler, Ago, Jennings and De
Lacharriere13, as well as judge Oda14 explained, it had weighed in the Court that El
Salvador's declaration was mainly directed to the merits ofthe case, but insufficient with
respect to the jurisdictional question before the Court. This explanation is shared by the
doctrine15 .
28. Therefore, it appears that the Court rejected El Salvador's declaration as
inadmissible during the jurisdictional phase because and only insofar it did not contain
any construction of Article 36(2) and (5) of the Statute as the jurisdictional base of the
case. The Court did not find that no intervention under Article 63 of the Statute could
ever be admissible during a jurisdictional phase, as the Russian Federation seems to read
from the Court's order of 4 October 1986.
29. The same is true for the Nuclear Tests case. After having ordered a jurisdictional
phase in June 1973, the Court declared in July 1973 Fiji's intervention of May 1973
admissible. However, it deferred the consideration thereof to the merits as the
intervention did not contain any construction of the jurisdictional basis of the case16. In
other words, the Court was able to decide about the admissibility of the intervention
during the ongoing jurisdictional phase, but deferred it to the merits phase, as it only
dealt with issues relating to the merits.
11 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Order of 4 October 1984, I.C.J. Reports 1984, p. 215, at p. 216.
11 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United Stotes of America),
Intervention of El Salvador, Separate Opinion of Judge Singh, I.C.J. Reports 1984, p. 218.
13 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Separate Opinion of Judges Ruda, Mosler, Ago, Robert Jennings, and De
LacharriE're, I.C.J. Reports 1984, p. 219.
14 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Separate Opinion of Judge Oda, I.C.J. Reports 1984, p. 220.
15 Juan Jose Quintana, Litigation at the International Court of Justice, Brill 201S, pp. 943-944.
16 Nuclear Tests (New Zealand v. France), Application to Intervene, Order of 12 July 1973, I.C.J. Reports
1973, p. 324, at p. 325.
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30. Fourth, Nuclear Tests (Request for Examination) does not support the Russian
argument either. In that rather specific case, the Court had before it New Zealand's
application from August 1995 and four subsequent interventions under Article 63 of the
Statute to re-examine paragraph 63 of its earlier judgment in Nuclear Tests. Instead of
separating the proceedings, the Court held a hearing in September 1995 and rejected
both the application and the four interventions in an order of October 1995. Hence, the
only lesson from this case is that the Court has discretion to dismiss an application
together with purported interventions. However, the precedent does not entail a duty
of the Court to disregard an intervention prior to the examination of preliminary
objections from the Defendant.
31. In conclusion, nothing in Article 63 of the Statute or in the Court's case law supports
the Russian view that the Court cannot deal with the admissibility of an intervention
before deciding on Russia's preliminary objection.
D. There is no legal obstacle for the Portuguese Republic to address the Court's
jurisdiction
32. In its fourth and fifth arguments, the Russian Federation criticises that the
declaration would in effect address matters which presuppose that the Court has
jurisdiction and/or that Ukraine's application is admissible. Russia complains, in
particular, that the declaration contains a construction of Article IX of the Genocide
Convention on the jurisdiction of the Court. For Russia, this makes the declaration
inadmissible as it is written in a way that presupposes that the Court has jurisdiction
over the alleged dispute. Thereby, Russia effectively maintains that a State may note
intervene on questions of jurisdiction, as taking a position on that point would
"presuppose" that the Court has jurisdiction. In its fifth argument, it repeats this point
with more clarity, contesting the Portuguese Republic right to intervene on Article IX of
the convention per se.
33. In the Portuguese Republic view, this line of reasoning also runs contrary to Article
63 of the Statute and the Court's practice.
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34. 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. Accordingly, nothing in the text
suggests that a State may not offer its construction of Article IX of the Genocide
Convention to the Court.
35. That point is further strengthened by the object and purpose of Article 63 of the
Statute. States do not only have a legitimate interest to share with the Court their
interpretation of substantive obligations contained in a Convention at stake before the
Court. It is of equal importance to be heard on jurisdictional issues, as this may affect
their own position before the Court in future cases relating to themselves. Hence, an
intervention under Article 63 of the Statue may cover both jurisdictional and substantive
aspects17.
36. Subsequent practice before the Court points into the same direction. So far, the
Court has never dismissed an intervention because it was (entirely or primarily) directed
to interpreting a compromissory clause. Rather, in Military and Paramilitary Activities El
Salvador's attempt to influence the jurisdictional question before the Court was
unsuccessful because the declaration had not complied with the formal requirements
under Rule 82(2)(b) and (c) for the great majority in the Court. Had it done so, it would
have been of interest to the Court, as expressly confirmed by Judge Oda18. Moreover,
Judge Schwebel19 even found that the faults of El Salvador's initial declaration on
jurisdiction had been healed by subsequent letters. Based on this reading, he was
prepared to admit El Salvador's declaration on jurisdictional matters.
17 MN Shaw (ed), Rosenne's Law and Practice of the International Court 1920-2015 (5th ed, Val Ill, Brlll
Nijhoff 2016), p. 1533; H. Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years
of Jurisprudence {Vol I, OUP 2013), p. 1031; A. Miron/C. Chinkin, "Article 63" in:
Zimmermann/Tams/Oellers-Frahm/Tomuschat (eds), The Statute of the International Court of Justice: A
Commentary (3rd ed. OUP 2019), p. 1741, at p. 1763, note 46.
18 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Separate Opinion of Judge Oda, I.CJ. Reports 1984, p. 220, at p. 221.
19 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Intervention of El Salvador, Dissenting Opinion of Judge Schwebel, I.C.J. Reports 1984, p. 223.
13
37. In Pakistani Prisoners of War, Judge Petren defended a similar view. He noted that
Pakistan and India had different views about the Genocide Convention, including its
jurisdictional clause. In his view, "Article 63 of the Statute of the Court required the
questions thus raised to be notified without delay to the States parties to the two
international instruments in question"20. Such an invitation would make no sense if
States would not be able to make a statement in Article IX Genocide Convention under
Article 63 of the Statute.
38. It follows that the Portuguese Republic correctly exercised its right to intervene
under Article 63 of the Statute. The fact that the intervention also addresses the
compromissory clause under Article IX of the Genocide does not render the intervention
inadmissible.
E. The Declaration does not contain issues unrelated to the Genocide Convention
39. In its last argument, the Russian Federation refers in paragraph 106 {i) that
"Portugal states that a dispute exists between Ukraine and the Russian Federation. It
further addresses issues such as whether there is evidence that genocide has been
committed or may be committed in Ukraine, the principles of good faith and abuse
of law, and use of force."
It alleges that this observation does not relate to the construction of the Genocide
Convention and contains an impermissible incursion into the interpretation or
application of other rules of international law that are distinct from the treaty in
question and derive from different sources.
40. The argument is based on a misperception of the Portuguese Republic statement.
Clearly, the statement did not introduce good faith, abuse of law and the law on the use
20 Trial of Pakistani Prisoners of War (Pakistan v. India), Interim Protection, Order of 13 July 1973, Separate
Opinion of Judge PE'tren, I. C.J. Reports 1973, p. 334, at p. 335.
14
of force as self-standing matters. Rather, the statement was part of the construction of
Article I of the Convention.
41. Such interpretation technique is in accordance with international law. According to
Article 31(3)(c) oft he Vienna Convention on the Law of Treaties, representing customary
international law21, the interpretation of a treaty may include "any relevant rules af
international law applicable in the relations between the parties.,,
42. According to the Report of the ILC Study Group on Fragmentation of International
law, the notion of "relevant rule" includes customary international law, general
principles of law and treaty law22. It follows that referring to good faith, abuse of law or
article 2(4) of the Charter of the United Nations as interpretative aids to Article I of the
Convention cannot be disqualified as "impermissible incursion". Rather, it contributes
to the required integral interpretation of international law as a legal order.
43. The Portuguese Republic finds further support for its position in the Court's order of
16 March 2022. In paragraph 58, the Court stated:
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. 23
44. It appears that the Court interpreted Article I of the Genocide Convention in light of
Article 1 of the UN Charter. In a similar vein, the Portuguese Republic suggests that it is
possible to interpret Article I in the light of the other relevant rules of international law
21 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia
v. Myanmar), Judgment of 22 July 2022, p. 31, para. 87: NThe Court will have recourse to the rules of
customary international law on treaty interpretation as reflected in Articles 31 to 33 of the Vienna
Convention on the law of Treaties of 23 May 1969"; see also Application of the International Convention
on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Preliminary
Objections, Judgment of 4 February 2021, p. 24, para. 75 with further references.
22 Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of
International Law: Report of the Study Group of the ILCfinalised by Mr. Martti Koskenniemi, 13 April 2006,
pp. 94-96. https:/ /legal, un.org/ilc/documentation/english/a cn4_I682.pdf.
2
~ Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russia), Order of 16 March 2022, p. 13, para. 58.
15
mentioned by the Portuguese Republic, as permitted by Article 31(3)(c) of the Vienna
Convention. Such operation does not transcend the boundaries of Article 63 of the
Statute but stays within the requirement of constructing the Convention at issue in line
with accepted rules of treaty interpretation.
IV. Conclusion
45. For the reasons set out above, the Portuguese Republic is convinced that its
Declaration of Intervention fully complies with the requirements under Article 63 of the
Statute and Article 82 of the Rules.
46. Therefore, the Portuguese Republic respectfully submits that the Court should
decide that the intervention is admissible and allow the Portuguese Republic to present
its written observations in good time in order to exercise its right to intervene as party
to the Genocide Convention.
Respectfully submitted,
Patricia Galvao Teles
Agent of the Portuguese Republic
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Written Observations of Portugal on the admissibility of its Declaration of Intervention