WRITTEN OBSERVATIONS OF THE GOVERNMENT
OF ROMANIA ON THE ADMISSIBILITY OF ITS
DECLARATION OF INTERVENTION
IN THE CASE CONCERNING
ALLEGATIONS OF GENOCIDE UNDER THE
CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE
(UKRAINE V. RUSSIAN FEDERATION)
I. Introduction
1. On 13 September 2022, the Government of Romania filed with the Registrar a
Declaration of Intervention in the case concerning Allegations of genocide under the
Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v.
Russia Federation) on the basis of Article 63, paragraph 2 of the Statute of the
International Court of Justice.
2. On 17 October 2022, the Russian Federation formulated w1itten observations on
admissibility of, inter alia, the Declaration of Intervention of the Government of
Romania, requesting the Court to:
a. dismiss the Declaration on the grounds of inadmissibility; if not,
b. dismiss the Declaration as inadmissible inasmuch as they relate to the
jurisdictional phase of the proceedings;
c. defer consideration of the admissibility of the Declaration until after the Court has
made a decision on the Russian Federation's Preliminary Objections.
3. On the same date, Ukraine filed written observations with the Court, in relation to, inter
alia, the Declaration of Intervention of the Government of Romania, by which it did not
challenge its admissibility.
4. On 31 January 2023, the Government of Romania received a letter from the Registrar of
the Court by which it was informed of the deadline of 13 February 2023 fixed by the
Court in order for the Government of Romania to submit observations in writing on the
admissibility of its Declaration of Intervention following the Russian Federation's
objections to the admissibility of this Declaration.
5. The following written observations are submitted by the Government of Romania in reply
to the mentioned request from the Court.
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II. Arguments in support of the admissibility of the Declaration of Intervention of
Romania
6. The Russian Federation contests the admissibility of the Declaration of Intervention of
the Government of Romania under the following points, which will be addressed in tum:
a. The declaration underscores an intention to intervene which is not genuine, but
part of a joint enterprise in support of Ukraine's application, thus frustrating the
proper administration of justice and the equality of the Parties to the case;
b. The Declaration of Intervention is premature and based on the presumption that
the Court has jurisdiction to entertain the case;
c. The Declaration of Intervention illustrates the intention of the Government to
address issues that go beyond the mere construction of the Genocide Convention.
A. The declaration underscores an intention to intervene which is not genuine, but part
of a joint enterprise in support of Ukraine's application, thus frustrating the proper
administration of justice and the equality of the Parties to the case
7. As mentioned in the Declaration of Intervention, the legal basis for its submission is
represented by Article 63, paragraph 2 of the Statute of the International Court of Justice.
8. According to Article 63 of the Statute,
1. 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 it.
3
9. The correct construction of Article 63 implies that all State Parties to a certain
international convention the construction of which is in question before the International
Court of Justice (other State Parties than the Parties themselves to the case) have the right
to intervene' in the case, being within their discretion to make use of that tight or not.
When making this decision, States must be aware that the judgment of the Court on the
construction of that particular Convention will be binding on the intervening States, as
well.
10. The Government of Romania, as a State Party to the Genocide Convention, received the
notification referred to in paragraph 1 from the Registrar and decided to make use of its
right to intervene as mentioned in paragraph 2. The rationale of this decision as explained
in the Declaration lies in the erga omnes value of the 1ights and obligations under the
Convention, as determined by the Court itself.2
11. The process of the preparation of the Declaration of Intervention was guided by the
requirements under Article 82, paragraph 2 of the Rules of the Court and was organized
in such a manner as to follow those requirements.
12. The Government of Romania explicitly underlined in its Declaration of Intervention, and
reiterates, that the scope of the intervention is limited to those issues pertaining to the
construction of the provisions of the Genocide Convention as they appear relevant in the
context of this case, without the intention of becoming a Party in the case.
13. The Government of Romania further identified the provisions in relation with which
arguments would be brought in order to illustrate what would be, in the view of the
Government of Romania, their correct construction, and also provided a statement of the
construction of those provisions for which it contended.
1 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 Febrnary
20 I 3, I.CJ. Reports 2013, p. 3 at para. 7 and the jurisprudence cited therein.
2 See paragraph I I of the Declaration of Intervention of the Government of Romania.
4
14. Therefore, the Declaration of Intervention of the Government of Romania fulfills the
legal conditions as established for that purpose.
15. As confirmed by the jurisprudence of the Court, in the process of assessing the
admissibility of any declaration of intervention, the Court limits itself to checking the
fulfillment of the conditions stipulated in the Statute and in the Rules of the Court for that
purpose.3 Therefore, the Court does not seek to clarify the intention under which a State
intervenes on the basis of Article 63 of the Statute. To the contrary, the Comt clearly
delimitates between the scope of intervention under Article 62 of the Statute and the
scope of intervention under Article 63 of the Statute by clarifying that
the Court, when presented with a "declaration" of intervention based on Article
63 of the Statute, is not required to ascertain whether the State which is the
author of that declaration has "an interest of a legal nature" which "may be
affected by the decision [of the Court]" in the main proceedings, as it is obliged
to do when it is seised of an "application" for permission to intervene under
Article 62 of the Statute. 4
16. The Russian Federation refers, in support of its arguments that the intervention is not
genuine, to the decision of the Court in the Haya de la Torre case.
17. In that case, the Court admitted the intervention of Cuba, but limited it to those points
concerning the construction of the Havana Convention which were relevant to the case
and which have not been addressed with the authority of res judicata in the previous
judgment of the Court (of20 November 1950).
18. However, the Court did not depait from its general approach to the issue of interventions
based on Article 63 of the Statute, but simply limited itself to admit the intervention in
relation only to the construction of those Articles of the Havana Convention which have
3 Whaling (para. 8).
4 Idem (para. 7).
5
not been previously clarified by the Court in a different case. Otherwise, the Court simply
verified the fulfillment of the same criteria for admissibility of such intervention.
19. Nevertheless, given the points made by the Russian Federation in order to argue that the
ttue intention of the States wishing to intervene in the case is for them to become coapplicants,
the Government of Romania would like to make the following principled
points.
20. Should the argument of the Russian Federation be upheld,5 according to which a
convergence of views of States wishing to intervene, which are also in line with the views
of one of the Parties to the case as to the construction of the Convention in question,
would indicate a political intention of those States to become co-applicants, would have
as an effect the fiustration of the exercise of the right to intervene that each State Party to
the Convention in question has.
21. It is our view that if all State Parties to a Convention hypothetically acted in furtherance
of their right to intervene in the case before the Court, and if such Convention (as is the
case with the Genocide Convention/ had a high number of State Parties, there would be
a high probability of convergence of views between State Parties confirming an approach
or another in relation to the construction of the Convention, which could coincide with
the views taken by any of the Parties to the case before the Court.
22. In any case, there is nothing in Article 63 that would prevent States wishing to make use
of their right to intervene to do so if their views coincide with those of any of the Parties
to the case. The Statute and the Rules of the Court framed the object of such declarations
of intervention in order to protect the equality of the Parties.
23. The Declaration ofintervention of the Government of Romania closely follows the scope
of such type of declaration, being limited to aspects pertaining to the construction of the
5 See for reference paragraph 19 of the of the Russian Federation's Written Observations on Admissibility of the
declarations of intervention submitted by France, Germany, Italy, Latvia, Lithuania, New Zealand, Poland,
Romania, Sweden, the UK and the US, 17 October 2022.
6 153 States are Parties to the Genocide Convention.
6
Genocide Convention; thus, it cannot be considered as affecting the equality of the
Parties per se.
24. The fact that the views of the Government of Romania on the construction of the
Genocide Convention coincide with the arguments upheld by Ukraine cannot be held
against it or against the admissibility of its declaration, since only by the simple fact of
them having been in alignment with the position of the Russian Federation would not
have made the Declaration ipso facto admissible.
25. Moreover, Atiicle 63 itself is designed to contribute to the proper administration of
justice and to the protection of an interest of a legal nature that may be affected by the
interpretation to be given by the Court to the multilateral convention the construction of
which is in question in proceedings before it. 7
26. It is for the Court to determine on the basis of the declarations themselves whether they
are in conformity with the legal requirements and decide on their admissibility.
27. In conclusion, the Government of Romania kindly asks the Court to acknowledge that it
seeks to intervene in the case as a non-Party, in order to put forward its own views on the
construction of relevant Articles of the Genocide Convention in exercise of its right
conferred by Article 63, paragraph 2 of the Statute.
B. The Declaration of Intervention is premature and based on the presumption that the
Court has jurisdiction to entertain the case
28. In the view of the Russian Federation, the jurisprudence of the Court indicates that it has
never admi_tted interventions at the jurisdictional phase and in any case not before having
determined the existence of the dispute and having established its jurisdiction following
the consideration of the Preliminary Objections raised. 8
7 Shabtai Rosenne, The Law and Practice of the International Court 1920-2005, Volume III Procedure, 41
" edition,
Martinus Nijhoff Publishers, Leiden/Boston, 2006, p. 1466.
8 See for reference paragraphs 50, 66-67 of the Russian Federation's Written Observations.
7
29. The Russian Federation further argues that the submissions included in the declarations
of intervention largely refer to the issues of substance of the alleged dispute and do not
include, but only in appearance, arguments pertaining to the jurisdiction. Acting in this
manner, the States wishing to intervene act, in view of the Russian Federation, with the
aim of overcoming the impossibility to introduce the declarations of interventions at the
preliminary objection stage.9
30. It further contends that the way in which the declarations are written indicate that they are
premised on the assumption that the Court has jurisdiction to entertain the dispute. 10
31. The Government of Romania recalls that according to Article 82 of the Rules of the
Court, if a State Party to a convention the construction of which appears in a case before
the Court wishes to intervene, it should deposit the declaration of intervention "as soon as
possible", but before the date set for the opening of the oral proceedings.
32. According to Atticle 84 of the Rules of the Court, it is for the Court to decide on the
declaration of intervention "as a matter of priority" (this is the rule) unless "in view of the
circumstances of the case the Court shall otherwise determine" (this is the exception).
33. There is, hence, no duty for the Court to first decide on the preliminary objections and
only thereafter to decide on the admissibility of the declarations of intervention; the Court
is at libe1ty to decide on the organization of the proceedings in light of the circumstances
of the case.
34. Moreover, under Article 63 of the Statute, a State Pa1ty to a Convention the construction
of which is before the Court has the right to intervene irrespective of which provisions in
the Conventions are in question (the substantive or the procedural ones or both).
35. Even if the Court has so far rejected the interventions on the basis of Article 63 of the
Statute in the jurisdictional phase, it has done so not on the premise that there is no right
9 See for reference paragraphs 69, 80 of the Russian Federation's Written Observations.
10 See for reference paragraphs 79, 82 of the Russian Federation's Written Observations.
8
to intervention in this procedural phase, but rather due to the circumstances pertaining to
each case and the assessment of the elements included in the declarations of intervention.
36. In support of its position, the Russian Federation scrntinized the relevant jurisprndence of
the Court, giving it, however, a particularly biased interpretation.
37. Out of the three cases relied upon by the Russian Federation in its written observations, 11
only the Military and Paramilitary Activities case might be a relevant precedent for the
present proceedings.
38. In this particular case, El Salvador formulated a Declaration of Intervention on the basis
of A1ticle 63 of the Statute of the Court referring exclusively to matters pe1taining to the
me1its of the proceedings, and not to the jurisdiction of the Court. This circumstance,
assessed against the decision of the Court to split the proceedings and to first address the
question of jurisdiction, led the Comt to declare inadmissible the intervention of El
Salvador "inasmuch as it relates to the current phase of the proceedings". 12 The separate
opinions appended to the Order by which the Comt decided that the Declaration of
Intervention of El Salvador is inadmissible inasmuch as it relates to the current phase of
the proceedings, confirm that the decision of the Court was taken in view of the fact that
El Salvador's declaration was mainly concerned with questions pertaining to the merits of
the case. In any case, the Comt did not determine that the declarations of intervention
based on Alticle 63 of the Statute are ipso facto inadmissible during the jmisdictional
phase.
39. In the other two cases invoked by the Russian Federation the interventions were based on
Article 62 of the Statute of the Court.
40. In the Nuclear Tests (Australia v France) case, the Court similarly decided to split the
proceedings and to first address the issue of jurisdiction. Hence, since the intervention
sought by Fiji was mainly focused on issues pertaining to the merits of the case, the Court
11 Military and Paramilitary Activities case; Nuclear Tests case and Nuclear Tests (Request for Examination) case.
12 Military and Paramilitaiy Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration oflntervention, Order of 4 October 1984, I. C.J. Reports 1984, p. 215.
9
"decided to defer its consideration of the application of the Government of Fiji for
permission to intervene in the proceedings instituted by Australia against France until it
has pronounced upon the questions [ofjurisdiction]". 13
41. In the Nuclear Tests (Request for Examination) case, the Court dismissed the "Request
for an Examination of the Situation" and, in the same decision, dismissed all the requests
for intervention introduced on the basis of Article 62 of the Statute. 14
42. The jurisprudence of the Court confirms that it enjoys a wide discretion in organizing the
proceedings in light of the circumstance of each case. The jurisprudence of the Court
does not confirm that declarations of intervention based on A1ticle 63 of the Statute are
inadmissible in the jurisdictional phase or premature if formulated before the Court has
dealt with the preliminary objections.
43. Neve1theless, the Government of Romania underscores that in its Declaration of
Intervention it expressed its intention to put forward its views also in relation to Article
IX of the Convention - which includes the compromissory clause that would give the
Court jurisdiction to entertain a case relating to the interpretation, application or
fulfillment of the Convention.
44. It is the view of the Government of Romania that a correct construction of this particular
procedural Article, which is essential for the determination of the Court's jurisdiction,
implies that the Court would have jurisdiction even when it were called to determine that
there was no act of genocide committed and to confirm that a State Party acted in good
faith in the fulfillment of the Convention. This issue set aside, there is also the aspect of
the interpretation of the notion of dispute within the meaning of Article IX, and the
Government put forward considerations on that notion as well, recalling the well-known
jurisprudence of the Court.
13 Nuclear Tests (Australia v. France), Application to Intervene, Order of 12 July 1973, I.CJ. Reports 1973, p. 320.
14 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court S Judgment of 20
December 1974 in the Nuclear Tests (New Zealand v. France) Case, I. C. J. Reports 1995, p. 288.
10
45. The statements put forward by Romania in its Declaration are strictly concerned with the
construction of Article IX of the Genocide Convention and do not make under any
circumstance a determination as to the existence of the jurisdiction of the Court in this
case. Such a determination would imply an analysis of the law against the factual
circumstances of the case, analysis which an intervener has no right to do under the legal
rnles underpinning this institution.
46. Therefore, contrary to what the Russian Federation claims, 15 the Government of Romania
identified that particular procedural provision as being a provision the construction of
which is in question in the context of the case, within the meaning of Article 63 of the
Statute.
47. Thus, by this simple fact it is evident that the Government of Romania did not construe
its intervention as lying on the presumption of jurisdiction, or as being solely directed to
the merits of the case (meaning addressing only aspects pertaining to the construction of
substantive provisions of the Genocide Convention).
48. Subsequently, it cannot be inferred - as the Russian Federation does16
- that only because
the statement of reasons in relation to the jurisdictional aspects occupy a smaller part in
the economy of the Declaration, it concerns solely the merits phase.
C. The Declaration of Intervention illustrates the intention of the Government to
address issues that go beyond the mere construction of the Genocide Convention
49. One last objection of the Russian Federation is based on allegations that the Declaration
of Intervention of the Romanian Government addresses issues unrelated to the
construction of the Genocide Convention. 17
15 Paragraphs 81-83 of the Russian Federation's Written Observations on Admissibility of the declarations of
intervention submitted by France, Germany, Italy, Latvia, Lithuania, New Zealand, Poland, Romania, Sweden, the
UK and the US, 17 October 2022.
16 See paragraph 80 of the Russian Federation's Written Observations.
17 Point E of the Russian Federation's Written Observations (p.40 to 44); the reference to the Romanian Declaration
is at para. 85 (h).
11
50. Contrary to these allegations, the Government of Romania has put forward in its
Declaration of Intervention, elements strictly pertaining to the construction of Articles I,
II, III and VIII of the Genocide Convention, in addition to those concerning Article XII.
51. The interpretation of these provisions entail, in the view of this Government, reference to
other norms of international law, as international law itself functions as a system.
Therefore, the incidental reference to other norms of international law is strictly made in
the context of the construction of the relevant Articles of the Genocide Convention; in
other tetms, the Articles of the Genocide Convention do not serve as a pretext for
statements in relation to other norms of international law.
52. The interpretation given by this Government to those provisions relies on the customary
rules of treaty interpretation as codified in Article 31 of the Vienna Convention on the
Law of Treaties.18
53. It is to be noted that according to paragraph 3 ( c) of that Article, the interpretation of a
treaty may include
any relevant rules of international law applicable in the relations between the
parties.
54. It should be further noted that "any relevant rules of international law" include customary
international law, general principles of law and treaty law. 19 Therefore, it is not
impermissible that the provisions of the Genocide Convention be interpreted in light of
other norms of international law. When doing so; the objective of interpreting the
provisions of relevant Articles of the Genocide Convention is preserved, the reliance on
other norms of international law serving simply to ensuring a consistent and systemic
interpretation of those norms as part of international law.
55. This Court, when assessing the scope of the duties under Atiicle I of the Convention,
ruled that when acting upon the duty to prevent genocide a State Party cannot go beyond
18 See paragraph 13 of the Declaration of intervention of the Government of Romania.
19 Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International
Law: Report of the Study Group in the ILC finalized by Mr. Martti Koskenniemi, 13 April 2006, pp. 94-96
consulted at https://legal.un.orgiilc/documentation/english/a cn4 1682.pdf (last visited 8 February 2023)
12
the limits of international law.20 Hence, the assessment of the acts committed in the
performance of the duties under Article I is done against the assessment of other no1ms of
international law.
56. The pacta sunt servanda principle is a fundamental principle of international law,
underlying the obligations of States to fulfill in good faith all international obligations
incumbent upon them. The reference to this principle only serves as guidance in
dete1mining the scope of relevant Articles of the Genocide Convention operating under
the presumption of good faith performance.
57. The Government of Romania contends that its intention is to refer only to the
construction of relevant provisions of the Genocide Convention, taking into consideration
other relevant norms of international law for this purpose.
III. Conclusion
58. For the reasons mentioned above (indent II) the Government of Romania contends that its
Declaration of Intervention fully complies with the requirements of Article 63 of the
Statute and of Article 82 of the Rules of the Court.
59. The Government of Romania kindly requests the Court to reject the arguments put
forward by the Russian Federation against the Declaration of Intervention of the
Government of Romania and to decide that this intervention is admissible.
Respectfully,
20 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, at p. 221 (paragraph 430).
13
Written Observations of Romania on the admissibility of its Declaration of Intervention