Written Observations of the United Kingdom on the admissibility of its Declaration of Intervention

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Before the
INTERNATIONAL COURT OF JUSTICE
WRITTEN OBSERVATIONS OF THE UNITED KINGDOM OF GREAT
BRITAIN AND NORTHERN IRELAND ON THE ADMISSIBILITY OF ITS
DECLARATION OF INTERVENTION SUBMITTED PURSUANT TO
ARTICLE 63 OF THE STATUTE OF THE INTERNATIONAL COURT OF
JUSTICE
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)
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TABLE OF CONTENTS
Introduction ............................................................................................................................ 3
I. The Russian Federation’s First Objection: The “Real Object” of the Intervention
...................................................................................................................................... 9
II. The Russian Federation’s Second Objection: The Principle of Equality of the
Parties and the Requirements of the Good Administration of Justice ................ 14
III. The Russian Federation’s Third Objection: Admissibility of the Declaration
Prior to the Resolution of Preliminary Objections ............................................... 18
A. The Court’s practice as regards the admissibility of interventions under Article 63
prior to the resolution of preliminary objections ....................................................... 18
B. The existence of the dispute, its subject matter, and the provisions of the Genocide
Convention that it concerns ........................................................................................ 33
IV. The Russian Federation’s Fourth Objection: Alleged Pre-judgment as to the
Court’s Jurisdiction and the Admissibility of Ukraine’s Claim .......................... 36
A. The Declaration’s inclusion of points of construction relating to the merits of the case
.................................................................................................................................... 36
B. The alleged presupposition of a dispute, the Court’s jurisdiction, and the admissibility
of Ukraine’s Application ............................................................................................ 39
V. The Russian Federation’s Fifth Objection: Issues Allegedly Unrelated to the
Construction of the Genocide Convention ............................................................. 41
VI. Submissions ............................................................................................................... 43
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INTRODUCTION
1. On 1 August 2022, the United Kingdom of Great Britain and Northern Ireland (“the
United Kingdom”) exercised its right under Article 63 of the Statute of the International
Court of Justice (“the Statute”) to intervene in the case concerning Allegations of
Genocide under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation).
2. On 17 October 2022, Ukraine filed Written Observations on the Declaration of
intervention filed by the United Kingdom (“the Declaration”), contending that the
Declaration is admissible.1 The United Kingdom agrees with Ukraine’s position.
3. On the same date, the Russian Federation filed Written Observations on Admissibility
of the Declarations of Intervention submitted by France, Germany, Italy, Latvia,
Lithuania, New Zealand, Poland, Romania, Sweden, the United Kingdom and the
United States (“the Written Observations”). The Russian Federation’s position is that
the Declaration is inadmissible.2
4. By letter dated 31 January 2023, the Registry of the Court notified the United Kingdom
that the Court had fixed 13 February 2023 as the time-limit for the United Kingdom to
submit observations in writing on the admissibility of the Declaration, in accordance
with Article 84(2) of the Rules of the Court (“the Rules”). The present observations
respond to the Russian Federation’s Written Observations insofar as they pertain to the
United Kingdom’s Declaration.
5. The United Kingdom addressed in its Declaration that this case raises questions
concerning the construction of the Convention on the Prevention and Punishment of
Genocide (“the Genocide Convention”) and further that, as required for an intervention
pursuant to Article 63 of the Statute, the United Kingdom is a party to the Genocide
1 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Written Observations of Ukraine on the Declaration of Intervention of the
United Kingdom, 17 October 2022, paras. 2, 9.
2 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), 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 United Kingdom and the United States, 17 October 2022 (“Written Observations”),
paras. 8, 132(a).
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Convention.3 The Russian Federation rightly does not contest either of these facts. It
follows that the United Kingdom is entitled to intervene as of right in these proceedings
pursuant to Article 63(2) of the Statute, provided that its Declaration meets the
requirements of Article 82 of the Rules.
6. As to the requirements set out in Article 82, the Russian Federation does not contest
any of the following matters:
(a) That the Declaration in this case was filed within the time limit set out in Article
82(1) of the Rules;
(b) That the Declaration complies with the relevant formalities in Article 82(1)–(2),
including having been appropriately signed, stating the name of an agent,
identifying the basis on which the United Kingdom considers itself a party to
the Genocide Convention, identifying the particular provisions of the Genocide
Convention the construction of which the United Kingdom considers to be in
question, stating the construction of those provisions for which the United
Kingdom contends, and listing and attaching the documents in support.
7. As is reflected in the text of Article 84(1) of the Rules, in relation to an intervention
under Article 63 of the Statute, the Court’s role is merely to determine whether a
declaration is “admissible”, rather than (as is the case with interventions under Article
62 of the Statute) to determine whether the putative intervening State “should be
granted” permission to intervene. The Court’s jurisprudence has repeatedly emphasised
that intervention under Article 63 of the Statute is allowed as of right where the formal
requirements for an intervention under that provision and Article 82 of the Rules have
been satisfied. For example:
(a) In Whaling in the Antarctic, in the order accepting New Zealand’s Declaration
of intervention the Court acknowledged its own limited role in reviewing the
declaration’s compliance with the formal requirements of an intervention under
Article 63 of the Statute. It stated:
3 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Declaration of Intervention under Article 63 of the United Kingdom of Great
Britain and Northern Ireland (“the Declaration”), paras. 13–15.
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“Whereas intervention based on Article 63 of the Statute is an incidental
proceeding that constitutes the exercise of a right; … Whereas … the
fact that intervention under Article 63 of the Statute is of right is not
sufficient for the submission of a ‘declaration’ to that end to confer ipso
facto on the declarant State the status of intervener; whereas such right
to intervene exists only when the declaration concerned falls within the
provisions of Article 63; and whereas, therefore, the Court must ensure
that such is the case before accepting a declaration of intervention as
admissible; … whereas it also has to verify that the conditions set forth
in Article 82 of the Rules of Court are met.”4
In the same case, Judge Cançado Trindade emphasised the distinction between
“discretionary intervention” under Article 62 of the Statute and “intervention as
of right” under Article 63.5
(b) This is consistent with the Court’s statement in Territorial and Maritime
Dispute (Nicaragua v. Colombia) that the text of Article 62 was “markedly
different from Article 63, paragraph 2, [which] clearly gives certain States ‘the
right to intervene in the proceedings’ in respect of the interpretation of a
convention to which they are parties”.6
(c) In Military and Paramilitary Activities, numerous members of the Court
emphasised that the Court lacks any discretion in determining whether to admit
an intervention under Article 63, beyond determining that it satisfies the basic
admissibility requirements. Judges Ruda, Mosler, Ago, Jennings and de
Lacharrière stated in their Separate Opinion:
“Article 63 of the Statute of the Court provides for a right of
intervention in proceedings before it, ‘Whenever the construction of a
convention to which States other than those concerned in the case are
parties is in question’. Where those conditions are fulfilled, a State
wishing to intervene has a right to do so, and it is not for the Court to
grant or withhold permission.”7
4 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6
February 2013, ICJ Reports 2013, p. 3, at pp. 5–6, paras. 7–8.
5 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6
February 2013, ICJ Reports 2013, p. 3, at pp. 5–6, Separate Opinion of Judge Cançado Trindade, at p. 28, para,
38 (emphasis in original).
6 Territorial and Maritime Dispute (Nicaragua v. Colombia), Application for Permission to Intervene,
Judgment, ICJ Reports 2011, p. 420, at p. 434, para. 36.
7 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration of Intervention, Order of 4 October 1984, ICJ Reports 1984, p. 215, Separate Opinion of Judges
Ruda, Mosler, Ago, Sir Robert Jennings and de Lacharrière, at p. 219, para. 1.
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Judge Schwebel made the same point in the following terms:
“While under Article 63 of the Statute, a State has ‘the right’ to
intervene whenever the construction of a convention to which it is a
party is in question in proceedings before the Court, it always has been
accepted that the Court must pass upon whether the State seeking to
intervene is such a party, and whether the construction of the
convention cited is in question in the proceedings. If the Court so finds,
the Court does not need to grant permission to intervene; it simply …
‘records’ that the declarant State intends to avail itself of the right to
intervene conferred upon it by Article 63 of the Statute and ‘accepts’ its
intervention.”8
(d) In Continental Shelf (Libyan Arab Jamahiriya/Malta), in his Separate Opinion
on the admissibility of Italy’s application for permission to intervene under
Article 62 of the Statute, Judge Jiménez de Aréchega stated:
“[T]he two Articles 62 and 63, although dealing with similar subjects,
operate under different legal régimes and attribute functions of a diverse
nature to the Court. One function is intervention as of right; the other is
permissive intervention. Whereas Article 63 confers an unqualified
right on the State party to the convention, and the Court merely
performs the function of verifying formal admissibility, under Article
62 the Court must reach a judicial decision, by means of a judgment, as
to whether permission ‘should be granted’ in accordance with Rule
84.”9
According to Judge Schwebel in the same case, “Article 63 unconditionally
authorizes intervention where the State seeking it is party to a treaty” and
“Article 63 speaks of a ‘right to intervene’ because all that need be ascertained
is that a State which seeks to exercise that right is party to the convention whose
construction is at issue”.10
8. Notwithstanding this clear and settled position, the Russian Federation disputes the
admissibility of the Declaration on five misconceived grounds. Several of these relate
8 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration of Intervention, Order of 4 October 1984, ICJ Reports 1984, p. 215, Dissenting Opinion of Judge
Schwebel, at p. 233.
9 Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment, ICJ Reports 1984,
Separate Opinion of Judge Jiménez de Aréchega, p. 3, at p. 58, para. 9.
10 Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment, ICJ Reports 1984,
Dissenting Opinion of Judge Schwebel, p. 3, at p. 144, paras. 31–32. See also, in the same case, the Dissenting
Opinion of Sir Robert Jennings, at p. 156, para. 25 (“Article 63 … gives a right of intervention, without the need
of any permission from the Court, to any States parties to a convention the construction of which ‘is in question’
in a case”).
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to alleged conditions on the right to intervene pursuant to Article 63 which it invites the
Court to imply into the Statute, but which have no basis in any of the Statute, the Rules,
or the practice and jurisprudence of the Court. Nor do they have any principled
rationale. Others rely on mischaracterisations of the Declaration. The present
observations address each of the objections in turn.
9. The Russian Federation is correct to characterise the circumstances of this case as
“exceptional”11 in the sense that the case has elicited an unprecedented number of
interventions under Article 63 of the Statute. However, contrary to the Russian
Federation’s submissions, this fact has no bearing on the admissibility of the
Declaration of the United Kingdom (or any other State). The entitlement to intervene
under Article 63 is not in any way conditioned on the extent to which other States
exercise their own right to intervene on the same basis.12 It is entirely logical that a case
involving the construction of an important multilateral convention to which nearly all
States are parties could attract interventions by a large number of States. That many
States have exercised their right to intervene does not affect the existence of that same
right for any other State. In 1981, Judge Oda addressed the possibility of a proliferation
of interventions under Article 62 of the Statute:
“It may be objected that the States which may be affected by the interpretation
of such principles and rules by the Court will be without number, and that, if
an interpretation of the principles and rules of international law can open the
door of the Court to all States as interveners, this will invite many future
instances of intervention. This problem should be considered from the
viewpoint of future judicial policy, and more particularly from the viewpoint
of the economy of international justice. Yet this cannot be the reason why a
request for intervention which is actually pending should be refused when the
requesting State claims that its legal interest may be affected by the Court’s
rulings on the principles and rules of international law. The possibility of an
increasing number of cases invoking Article 63 may likewise not be avoided.
The fact that in the past Article 63 has been rarely invoked does not guarantee
that the situation will remain unchanged in the future. Thus the problem is
related not only to Article 62, but also to Article 63.”13
10. The remainder of the present observations is structured as follows:
11 Written Observations, para. 8.
12 See further paras. 18–19 below.
13 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, Judgment, ICJ Reports 1981,
p. 3, Separate Opinion of Judge Oda, p. 31, para. 17 (emphasis added).
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(a) The Russian Federation’s first objection to the admissibility of the Declaration
— namely, that it is not a “genuine” intervention and has an impermissible
“object”14 — is addressed in Section I. There is no requirement of “genuine
intention” in the Statute, the Rules or the Court’s case law. The object of the
Declaration is the construction of the provisions of the Genocide Convention,
as required under Article 63 of the Statute. The political elements of a dispute
do not render the legal questions inadmissible.
(b) The Russian Federation’s second objection — namely, that allowing the
intervention would be incompatible with the equality of the parties to the case
and the good administration of justice15 — is addressed in Section II. This
objection misconstrues the nature of an intervention under Article 63, which
does not involve the intervening State becoming a “party” or having the “same
interest” as a party. Interventions by multiple States are compatible with the
equality of the parties and the good administration of justice.
(c) Section III addresses the Russian Federation’s third objection, which is that the
Declaration is automatically inadmissible by virtue of it having been filed
before Russia’s preliminary objections to Ukraine’s claims have been
resolved.16 There is nothing in the Statute or the Rules that limits the right to
intervene pursuant to Article 63 in a preliminary objections phase. To the
contrary, the Court’s jurisprudence and practice are consistent with declarations
of intervention being admissible at a preliminary objections phase insofar as
they address the issues in question at this stage of the proceedings.
(d) The Russian Federation’s fourth objection is based on the false premise that the
Declaration presupposes that the Court has jurisdiction and that Ukraine’s claim
is admissible.17 It is addressed in Section IV. This objection simply
misrepresents the Declaration and, in particular, ignores the United Kingdom’s
14 Written Observations, Section II(A).
15 Written Observations, Section II(B).
16 Written Observations, Section II(C).
17 Written Observations, Section II(D).
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clear delineation between issues concerning jurisdiction and issues concerning
the merits.
(e) Section V answers the Russian Federation’s fifth objection, which contends that
the Declaration addresses issues unrelated to the construction of the Genocide
Convention.18 Again, this objection is based on mischaracterising the
Declaration, which is limited to raising matters of construction of the Genocide
Convention.
(f) Finally, Section VI sets out the United Kingdom’s Submissions.
11. The United Kingdom notes that it is aware that 33 States have filed declarations of
intervention in the present case, whereas the Written Observations to which it is
responding relate to the declarations of only 11 States. The United Kingdom is not
aware of whether the Russian Federation has raised or will raise objections to other
States’ declarations additional or different to those asserted in the Written Observations
to which the United Kingdom has been asked to respond. Naturally, only the objections
raised in those Written Observations and in relation to the United Kingdom’s
Declaration are applicable to the United Kingdom, and it is only those objections which
are addressed in the present observations.
I. THE RUSSIAN FEDERATION’S FIRST OBJECTION: THE “REAL OBJECT” OF THE
INTERVENTION
12. The Russian Federation asserts that the United Kingdom’s Declaration is inadmissible
because it is not “genuine”. It makes three points in this regard. First, it contends that
the Court needs to establish the “genuine intention” of a State before it can “confer[]
the status of intervener on [that] State” under Article 63 of the Statute.19 Secondly, the
Russian Federation argues that the object of the United Kingdom’s intervention is not
to submit observations “on the construction or interpretation of the multilateral treaty
in question” but to become a “de facto co-applicant[] and pursue a joint case with
Ukraine”.20 Thirdly, the Russian Federation alleges that the United Kingdom’s
18 Written Observations, Section II(E).
19 Written Observations, paras. 11, 14.
20 Written Observations, paras. 14, 19.
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statements in its Declaration “manifestly contradict” what it stated in the Legality of the
Use of Force cases.21 Each of these points, addressed in turn below, is flawed and
cannot render the Declaration inadmissible.
13. First, it is not a condition of the exercise of the right of intervention under Article 63
that the State hold a “genuine intention”. Article 63(2) provides that, whenever the
construction of a convention is in question in a case, a State that is a party to the
convention “has the right to intervene in the proceedings”. Article 82(1) of the Rules
simply requires a State that wishes to “avail itself of the right of intervention conferred
on it by Article 63 of the Statute” to “file a declaration to that effect”. As set out in the
Introduction to the present observations, the Court has observed that Article 63 “clearly
gives certain States ‘the right to intervene in the proceedings’ in respect of the
interpretation of a convention to which they are parties”.22
14. The Russian Federation relies on the Court’s judgment in Haya de la Torre to justify
the “genuine intention” condition, but the judgment did not create such a condition.
Peru objected to Cuba’s Declaration of intervention under Article 63 because it was
“not an intervention in the true meaning of the term, but an attempt by a third State to
appeal against the Judgment delivered by the Court on November 20th, 1950”.23 The
Court stated:
“In regard to that question, the Court observes that every intervention is
incidental to the proceedings in a case; it follows that a declaration filed as an
intervention only acquires that character, in law, if it actually relates to the
subject-matter of the pending proceedings. The subject-matter of the present
case differs from that of the case which was terminated by the Judgment of
November 20th 1950: it concerns a question — the surrender of Haya de la
Torre to the Peruvian authorities — which in the previous case was completely
outside the Submissions of the Parties, and which was in consequence in no
way decided by the above-mentioned Judgment.
In these circumstances, the only point which is necessary to ascertain is
whether the object of the intervention of the Government of Cuba is in fact the
interpretation of the Havana Convention in regard to the question of whether
Columbia is under an obligation to surrender the refugee to the Peruvian
authorities.
21 Written Observations, paras. 25, 26, 28(c).
22 Territorial and Maritime Dispute (Nicaragua v. Colombia), Application for Permission to Intervene,
Judgment, ICJ Reports 2011, p. 420, at p. 434, para. 36. See further para. 7 above.
23 Haya de la Torre Case (Colombia/Peru), Judgment of June 13th, 1951, ICJ Reports 1951, p. 71, at p. 76.
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On that point, the Court observes that the Memorandum attached to the
Declaration of Cuba is devoted almost entirely to a discussion of the questions
which the Judgment of November 20th, 1950, had already decided with the
authority of res judicata, and that, to that extent, it does not satisfy the
conditions of a genuine intervention. However, at the public hearing on May
15th, 1951, the Agent of the Government of Cuba stated that the intervention
was based on the fact that the Court was required to interpret a new aspect of
the Havana Convention, an aspect which the Court had not been called on to
consider in its Judgment of November 20th, 1950.
Reduced in this way, and operating within these limits, the intervention of the
Government of Cuba conformed to the conditions of Article 63 of the Statute,
and the Court, having deliberated on the matter, decided on May 16th to admit
the intervention in pursuance of paragraph 2 of Article 66 of the Rules of
Court.”24
15. The Russian Federation focuses on the phrase “the conditions of a genuine
intervention” to assert that the Court needs to “establish the ‘genuine intention’ of the
State concerned, thus establishing whether the conditions of a genuine intervention are
satisfied”.25 However, as is clear from the passage above, the Court did not refer to a
requirement of the intervening State having a “genuine intention”; indeed, the phrase
“genuine intention” does not even appear. Rather, the Court was concerned with
whether the declaration of intervention “actually relate[d] to the subject-matter of the
pending proceedings”, namely the interpretation of the Havana Convention and the
question of an obligation to surrender.
16. The Haya de la Torre judgment, along with the Court’s judgment in Whaling in the
Antarctic,26 emphasise that an intervention under Article 63 has a “limited object”, but
this is not the same as seeking to establish any intention of a State in intervening or
assessing whether an intention should be characterised as genuine. As set out in
Whaling in the Antarctic, the Court will assess the admissibility of the intervention by
examining whether the declaration “falls within the provisions of Article 63” and meets
the conditions in Article 82 of the Rules as regards the timing of the declaration, the
naming of the Agent, the case and the convention to which the declaration relates, the
basis on which the State is a party to the convention, the identification of the particular
24 Haya de la Torre Case (Colombia/Peru), Judgment of June 13th, 1951, ICJ Reports 1951, p. 71, at pp. 76–77
(emphasis added).
25 Written Observations, para. 14.
26 Cited in Written Observations, paras. 11–12.
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provisions of the convention the construction of which are in question, the statement of
the construction of the provisions, and the enclosure of supporting documents.27
17. The issue before the Court is an objective one as to whether the United Kingdom’s
Declaration fulfils the conditions of Article 63 of the Statute and Article 82 of the Rules.
It is not one of seeking to determine a State’s subjective intention and whether any
intention held or presented by a State should be characterised as genuine. As already
addressed in the Written Observations of Ukraine28 and the Introduction of the present
observations,29 the applicable conditions are objective and the United Kingdom’s
Declaration satisfies them.
18. There is also no support for the Russian Federation’s second allegation, which is that
the United Kingdom’s object is to become a “de facto co-applicant[] and pursue a joint
case with Ukraine”.30 The Russian Federation points to the 20 May 2022 and 13 July
2022 Joint Statements on Ukraine’s Application as evidence of States, including the
United Kingdom, pursuing a “joint case”.31 However, those statements simply confirm
the interest of all States Parties that the Genocide Convention “not be misused or
abused” and express their trust in the Court to play a vital role in the peaceful settlement
of disputes.32 In the Whaling in the Antarctic case, Japan had contended that the Joint
Media Release of New Zealand and Australia in which New Zealand stated it was “a
strong partner of Australia in the bid to end ‘scientific’ whaling and improve whale
conservation worldwide” was a “serious anomal[y]”.33 However, the Court did not
consider the media release to relate to the conditions for admissibility and proceeded to
conclude that New Zealand had met the objective requirements of Article 63 of the
Statute and Article 82 of the Rules.34
27 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6
February 2013, ICJ Reports 2013, p. 3, at pp. 5–6, paras. 8–11.
28 Declaration, paras. 5–6.
29 See paras. 5–6 above.
30 Written Observations, paras. 14, 19.
31 Written Observations, paras. 15–16.
32 Written Observations, Annexes 1, 2.
33 Whaling in the Antarctic (Australia v. Japan), Written Observations of Japan on the Declaration of
Intervention of New Zealand, 21 December 2012, paras. 2–4.
34 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6
February 2013, ICJ Reports 2013, p. 3, at p. 9, paras. 18–19.
13
19. The Russian Federation seeks to characterise the interventions of the United Kingdom
and other States as a “collective political strategy” rather than interventions aimed at
the correct legal construction of the Genocide Convention.35 The Court has long
recognised that “legal disputes between sovereign States by their very nature are likely
to occur in political contexts, and often form only one element in a wider and longstanding
political dispute between the States concerned”.36 At the same time, the Court
has repeatedly confirmed that the political elements of a dispute do not render the legal
questions before the Court inadmissible. The fact that a disagreement over the
interpretation or application of a convention “has arisen in a broader context” does not
deprive a body of its jurisdiction.37 The Court is capable of drawing a distinction
between a broader “goal” of a State and the “related but distinct dispute presented by
the Application”.38 Similarly, there is a distinction between the goal of supporting
Ukraine in the face of the Russian Federation’s aggression and legal questions
concerning the correct interpretation of the Genocide Convention, which has been
invoked by the Russian Federation to seek to justify its use of force. Indeed, in a past
case before the Court, the Russian Federation accepted that “[o]ne situation may
contain disputes which relate to more than one body of law and which are subject to
different dispute settlement procedures”, including disputes involving the status of
territories, outbreaks of armed conflict and alleged breaches of international
humanitarian law and of human rights.39 The fact that a dispute of which the Court is
properly seized is part of a multi-faceted dispute does not deprive the Court of
jurisdiction.
35 Written Observations, para. 19.
36 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, ICJ
Reports 1980, p. 3, at p. 20, para. 37. See also Certain Iranian Assets (Islamic Republic of Iran v. United States
of America), Preliminary Objections, Judgment, ICJ Reports 2019, p. 7, at p. 23, para. 36.
37 Appeal relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International
Civil Aviation (Bahrain, Egypt, Saudi Arabia and United Arab Emirates v. Qatar), Judgment, ICJ Reports 2020,
p. 81, at pp. 100–101, para. 48.
38 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment, ICJ
Reports 2015, p. 592, at p. 604, para. 32.
39 Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Preliminary Objections, Judgment, ICJ Reports 2011, p. 70, at pp. 85–86,
para. 32. See also Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, ICJ Reports 1988, p. 69, at pp. 91–92, para. 54.
14
20. In short, the Court has never shied away from a case brought before it merely because
it had political implications, including as regards the use of force.40
21. Thirdly, the Russian Federation’s allegation that the United Kingdom has made
contradictory statements in its Declaration and in the Legality of the Use of Force cases
is irrelevant to the question of the admissibility of its intervention. At the very most,
such matters could be relevant only to the soundness of the United Kingdom’s
contentions as to the construction of the relevant provisions of the Genocide
Convention. These would be matters to be addressed following the Court’s resolution
of the issue of the admissibility of the Declaration. Given their irrelevance in the present
context, the United Kingdom does not address these allegations here, but records that
it rejects those allegations and reserves its right to respond to them at an appropriate
stage.
II. THE RUSSIAN FEDERATION’S SECOND OBJECTION: THE PRINCIPLE OF EQUALITY OF
THE PARTIES AND THE REQUIREMENTS OF THE GOOD ADMINISTRATION OF JUSTICE
22. The Russian Federation contends that “conferring on the Declarants the status of
interveners would seriously impair the principle of equality of the parties before the
Court and be contrary to the requirements of the good administration of justice”.41 This
argument misconstrues the nature of an intervention under Article 63 and the
requirements of the principle of equality and the good administration of justice in
international law.
23. Interventions under Article 63 of the Statute have a confined scope. An intervening
state is “limited to submitting observations on the construction of the convention in
question”.42 It does not become a party to the proceedings and the intervention is not
permitted “to deal with any other aspect of the case before the Court”.43 In accordance
with Article 86 of the Rules, the intervening State is restricted to making written and
oral observations which address only the subject-matter of the intervention. As the
40 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Jurisdiction and
Admissibility, Judgment, ICJ Reports 1984, p. 392, at p. 435, para. 96.
41 Written Observations, para. 32.
42 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6
February 2013, ICJ Reports 2013, p. 3, at p. 9, para. 18.
43 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6
February 2013, ICJ Reports 2013, p. 3, at p. 9, para. 18.
15
Court observed in the Whaling in the Antarctic judgment, “such an intervention cannot
affect the equality of the Parties to the dispute”.44
24. Article 63 interventions are intended to inform the Court of the views of States Parties
on the construction of a convention. The right to intervene arises only when “the
construction of a convention … is in question” (Article 63(1)). Once the right arises,
the Registrar has to notify “all” States Parties to the convention, other than the applicant
and the respondent (Article 63(1)). It is only “the construction given by the judgment”
that will be binding on any intervening State (Article 63(2)).
25. Article 63 acknowledges that all parties to a convention have an interest in the Court’s
construction of the convention. The numerical limit on participation is set by the
number of parties to the convention, not by some extrinsic measure of what might give
rise to perceived “undue and unnecessary pressure on the Judges and the Court as a
whole”.45
26. A useful contrast may be drawn with interventions under Article 62 which are based on
whether a state “has an interest of a legal nature which may be affected by the decision
in the case”. A State with a legal interest may make submissions about the application
of law to facts, but, accordingly, whether it should be granted permission to do so is for
the Court to determine in its discretion, pursuant to Article 84(1) of the Rules.
27. An even starker contrast is with Article 31(5) of the Statute, on which the Russian
Federation relies. That provision concerns the identification of “several parties in the
same interest” (emphasis added) for the purposes of determining the proper
composition of the Court in a given case. However, intervention under Article 63
cannot confer the status of “party to the proceedings”.46 Intervention under Article 63
is not concerned with any “interest” of the State in the dispute. It is, as explained above,
concerned with the construction of the convention to which the intervening State is a
party. The Russian Federation’s invocation of Article 31(5) of the Statute and related
cases is therefore irrelevant. The references to Judge Owada’s Declaration in the
44 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6
February 2013, ICJ Reports 2013, p. 3, at p. 9, para. 18.
45 Written Observations, para. 51.
46 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6
February 2013, ICJ Reports 2013, p. 3, at p. 6, para. 9.
16
Whaling in the Antarctic case and Judge Xue’s Dissenting Opinion in the Gambia v.
Myanmar case are also irrelevant.47 As the Russian Federation acknowledges, Japan
did not object to the admissibility of New Zealand’s declaration and Judge Owada’s
views were not adopted by the majority. Judge Xue was referring to a different and
specific scenario where an applicant State (not an intervening State) was said to be
acting on behalf of an international organisation. Similarly, the Russian Federation’s
observation that “7 out of the 16 Judges of the Court (including the President of the
Court) are nationals of the States that have announced their intention to intervene”48 is
not relevant to the admissibility of an Article 63 intervention. Intervening States do not
have a right to appoint a judge ad hoc. And, as the Court noted in Whaling in the
Antarctic, an Article 63 intervention also has no impact on the right of an applicant or
a respondent to appoint a judge ad hoc.49
28. The Russian Federation also raises a number of complaints that reflect a
misunderstanding of the principle of equality and the good administration of justice in
international law. The Russian Federation complains that it “would be forced to respond
to numerous lengthy written pleadings by the interveners supporting Ukraine … as well
as to many statements at any oral phase”.50 It suggests that “multiple interventions and
public statements” by intervening States “undoubtedly put undue and unnecessary
pressure on the Judges and the Court as a whole”.51
29. The principle of equality is concerned with a fair balance between the parties so that
neither is placed at a substantial disadvantage. The principle affords each party a
reasonable opportunity to present its case and to contest the case of the other side. The
Court has considered the principle in cases arising between international organisations
and their officials. According to the Court, “[t]he judicial character of the Court requires
that both sides directly affected by these proceedings should be in a position to submit
their views and their arguments to the Court”.52 While in that case there was no obstacle
to the international organisation submitting its views in writing or orally, it was
47 Written Observations, paras. 34–38.
48 Written Observations, para. 48.
49 Written Observations, para. 68.
50 Written Observations, para. 47.
51 Written Observations, para. 48.
52 Judgments of the Administrative Tribunal of the I.L.O. upon complaints made against the U.N.E.S.C.O.,
Advisory Opinion of October 23rd, 1956, ICJ Reports 1956, p. 77, at p. 86.
17
challenging to receive the observations of individual officials on equal terms under
Article 66 of the Statute. The Court therefore adjusted its procedure in order to receive
the written statement of officials through an intermediary; it also decided not to hold
oral hearings.53 In a later case, the Court confirmed that “[g]eneral principles of law
and the judicial character of the Court do require that, even in advisory proceedings,
the interested parties should each have an opportunity, and on a basis of equality, to
submit all the elements relevant to the questions which have been referred to the review
tribunal”, a condition which it considered was “fulfilled by the submission of written
statements”.54 This solution was adopted in other cases and the Court noted that when
parties have “adequate and in large measure equal opportunities to present their case
and to answer that made by the other … in essence, the principle of equality in the
proceedings before the Court, required by its inherent judicial character and by the good
administration of justice, has been met”.55 Consequently, even in proceedings where
the parties have had demonstrably unequal access to the Court, the Court has been able
to ensure equality and good administration of justice.
30. In these proceedings, the Russian Federation and Ukraine are the parties to a
contentious dispute and have equal access to and standing before the Court. They have,
and will continue to have, equal opportunities to present their cases and answer the case
of the other. The intervention of multiple States on the question of the construction of
the Genocide Convention will neither undermine this equality nor impair the good
administration of justice. The interventions are limited in scope, and both Ukraine and
the Russian Federation have had and will have equal opportunity to comment on them.
The Court will, as it has shown in the past, be able to ensure equality and fairness are
respected through decisions on procedure, if required.
53 Judgments of the Administrative Tribunal of the I.L.O. upon complaints made against the U.N.E.S.C.O.,
Advisory Opinion of October 23rd, 1956, ICJ Reports 1956, p. 77, at p. 86.
54 Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory
Opinion, ICJ Reports 1973, p. 166, at p. 181, para. 36.
55 Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a
Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, ICJ Reports
2012, p. 10, at p. 30, para. 47.
18
III. THE RUSSIAN FEDERATION’S THIRD OBJECTION: ADMISSIBILITY OF THE
DECLARATION PRIOR TO THE RESOLUTION OF PRELIMINARY OBJECTIONS
31. In its third objection, the Russian Federation contends that the Court cannot decide on
the admissibility of the Declaration prior to ruling on its preliminary objections raised
with respect to Ukraine’s claim.56 The United Kingdom notes that, as it has not yet been
admitted as an intervener, it has not seen the preliminary objections filed by the Russian
Federation. That is, however, immaterial in the present context, because the Russian
Federation’s objection to the admissibility of the Declaration is based on it being
impermissible in principle to allow interventions before preliminary objections have
been resolved, rather than anything specific to the preliminary objections it has raised
in this case.
32. The Russian Federation advances two arguments in relation to this objection. First, it
argues that the Court’s practice militates against admitting interventions at the
preliminary objections phase of proceedings.57 This argument is addressed in subsection
A below. Secondly, it contends that the Declaration cannot be admitted before
the Court has ascertained the existence and subject matter of the dispute between
Ukraine and the Russian Federation and has established the provisions of the Genocide
Convention which may be in question.58 This argument is addressed in sub-section B
below.
A. The Court’s practice as regards the admissibility of interventions under
Article 63 prior to the resolution of preliminary objections
33. The Russian Federation asserts that “the Court’s practice is consistent in not allowing
interventions at the jurisdictional phase of the proceedings”.59 It does so by reference
both to cases in which the Court did not allow an Article 63 intervention to proceed,60
and to additional cases in which the Court allowed an Article 63 intervention in
circumstances where the respondent State did not raise any preliminary objections.61
56 Written Observations, Section II(C).
57 Written Observations, Section II(C)(i).
58 Written Observations, Section II(C)(ii).
59 Written Observations, para. 52.
60 Written Observations, para. 50.
61 Written Observations, para. 51.
19
34. It is conspicuous from the outset that the Russian Federation, beyond referring to such
“practice” (which is addressed below), has not identified any provision of the Statute
or the Rules which could support a restriction on the right to intervene under Article 63
to the effect that it can only be exercised following the resolution of preliminary
objections raised by a respondent State. This is because there is no support in the Statute
or Rules for such a restriction — and, to the contrary, they both support the conclusion
that interventions can in principle be admissible at the preliminary objections phase. In
particular:
(a) Article 63 of the Statute sets out the circumstances in which a State has the right
to intervene — namely, in the words of Article 63(1), “[w]henever” the
construction of a convention to which it is a party is in question in a case before
the Court. According to Article 63(2), in those circumstances,62 the State has
“the right to intervene”. The term “[w]henever” is notably broad and does not
distinguish between preliminary objections and merits phases of a case.
(b) Article 63(1) of the Statute also refers to “the construction of a convention”
being the permissible subject matter of an intervention, and this is reflected in
Article 82(2)(b)–(c) of the Rules, which sets out the matters that a declaration
of intervention must address. There is no reason why the plain terms of Article
63(1) and/or Article 82(2) should be read as referring only to the construction
of a convention in relation to a substantive question that falls to be determined
at the merits phase of the case. Throughout the Court’s history, there are many
examples of the Court being required to construe conventions in relation to
jurisdictional and/or admissibility questions, and the present case is one such
example (as addressed further below).
62 The Russian Federation seeks to attach some significance to the fact that the word “[w]henever” appears in
Article 63(1), but the right to intervene is set out in Article 63(2): Written Observations, para. 78(d). This is
misconceived. The right to intervene and the circumstances in which it may be exercised are contained in
Article 63 as a whole. See the formulation in Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Declaration of Intervention, Order of 4 October 1984, ICJ Reports
1984, p. 215, Separate Opinion of Judges Ruda, Mosler, Ago, Sir Robert Jennings and de Lacharrière, at p. 219,
para. 1 (“Article 63 … provides for a right of intervention in proceedings before it, ‘Whenever the construction
of a convention to which States other than those concerned in the case are parties is in question’”).
20
(c) Article 63(2) provides for a “right to intervene in the proceedings” (emphasis
added), again without distinction between any preliminary objections phase and
the merits phase of the proceedings.63
(d) Article 63(1) refers to States parties to a convention being notified “forthwith”,
while Article 82(1) of the Rules requires a State to file a declaration of
intervention “as soon as possible”. Further, Article 84 requires that the Court
determine the admissibility of an intervention under Article 63 “as a matter of
priority”. The requirement for expedition having been repeatedly referred to as
a feature of the procedure is inconsistent with the argument that it is not
permissible for declarations to be filed until after the resolution of any
preliminary objections.
(e) Article 82(1) states that a declaration must usually be filed “not later than the
date fixed for the opening of the oral proceedings”. There is no indication that
this is limited to the oral proceedings at the merits phase and it would apply
equally to oral proceedings at which preliminary objections are to be heard.
35. In Military and Paramilitary Activities, Judge Schwebel referred to such textual
indicators in support of his view that Article 63 interventions could in principle be
permissible at the jurisdictional phase of proceedings, and also noted that there was
nothing in the travaux préparatoires of the Statute which supported any contrary
view.64
36. In addition, there is no reason of principle as to why an intervention should not be
permitted at the preliminary objections phase of a case. To the contrary, it is right that
a State which is a party to a convention which falls to be construed in proceedings to
which it is not a party should be entitled to convey its views as to the construction of a
compromissory clause within that convention, as eminent commentators have noted.65
63 See Malcolm N. Shaw, Rosenne’s Law and Practice of the International Court: 1920–2015, 5th Ed., (Brill,
2016), p. 1533; Alina Miron and Christine Chinkin, “Article 62” in Andreas Zimmermann, Christian J. Tams,
Karin Oellers-Frahm and Christian Tomuschat (Eds.), The Statute of the International Court of Justice: A
Commentary, 3rd Ed., (OUP, 2019), p. 1695.
64 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration of Intervention, Order of 4 October 1984, ICJ Reports 1984, p. 215, Dissenting Opinion of Judge
Schwebel, at pp. 234–235.
65 See, e.g., Malcolm N. Shaw, Rosenne’s Law and Practice of the International Court: 1920–2015, 5th Ed.,
(Brill, 2016), p. 1533; Alina Miron and Christine Chinkin, “Article 63” in Andreas Zimmermann, Christian J.
21
As the Court stated in the Jurisdiction of the ICAO Council case, a decision concerning
matters of jurisdiction and admissibility is capable of being “of scarcely less importance
than a decision on the merits” and can “involve questions of law” as “important and
complicated [as those] that arise on the merits”.66 Indeed, the Court observed that
decisions on jurisdiction under multilateral conventions “may … create precedents
affecting the position and interests of a large number of States, in a way which no
ordinary procedural, interlocutory or other preliminary issue could do”, especially
given “the drastic effects which … they are capable of having”.67
37. Judge Schwebel recognised in Military and Paramilitary Activities the reality that
States could therefore have a compelling interest in intervening on matters of the
construction of a convention concerning jurisdiction, stating:
“Thus the terms of Article 63 and the Rules which the Court has adopted in
implementation of those terms both indicate that intervention under Article 63
in the jurisdictional phase of a case is permitted. The sense of Article 63 implies
no less. Why should intervention at the jurisdictional phase of a case not be
admitted? There are multilateral conventions that, in whole or in part, relate to
jurisdictional questions. Their construction by the Court in a case between two
States can affect the legal position of a third State under such conventions no
less than it can affect their position under other conventions, or parts of other
conventions, whose clauses are substantive rather than jurisdictional. Take, for
example, the controversies that have come before the Court more than once
over the force and effect of the General Act of 26 September 1928 for the
Pacific Settlement of International Disputes. If one State maintains that that
Act remains in force and is a basis of the Court’s jurisdiction, and another
contests those contentions, why should not a third State party to the Act be able
to intervene under Article 63 at the jurisdictional stage of the proceedings to
submit a statement of the construction of the relevant provisions of that Act for
which it contends?”68
38. Judge Lauterpacht made a similar observation in Norwegian Loans. In this case, the
Court made various findings as to the effect of an “automatic reservation” to a State’s
Tams, Karin Oellers-Frahm and Christian Tomuschat (Eds.), The Statute of the International Court of Justice: A
Commentary, 3rd Ed., (OUP, 2019), p. 1763; Hugh Thirlway, The Law and Procedure of the International Court
of Justice: Fifty Years of Jurisprudence, Volume I, (OUP, 2013), p. 1031.
66 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, ICJ Reports 1972, p.
46, at pp. 56–57, paras. 18(a), 18(d).
67 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, ICJ Reports 1972, p.
46, at p. 57.
68 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration of Intervention, Order of 4 October 1984, ICJ Reports 1984, p. 215, Dissenting Opinion of Judge
Schwebel, at p. 235.
22
declaration under Article 36(2) of the Statute accepting the compulsory jurisdiction of
the Court. Judge Lauterpacht recognised that the Court’s ruling “has a bearing upon
Declarations, similarly formulated, of a number of other States”, whose amenability to
the Court’s jurisdiction could therefore be significantly affected in future cases. He
stated that “[i]t would have been preferable if, in accordance with Article 63 of the
Statute, the Governments which have made a Declaration in these terms had been given
an opportunity to intervene”.69 This shows both that: (i) both the parties to a case and
third States can have a strong interest in findings of the Court on jurisdictional matters;
and (ii) Judge Lauterpacht, like Judge Schwebel, expressly contemplated the possibility
of States intervening pursuant to Article 63 of the Statute on questions of construction
pertaining to the Court’s jurisdiction.
39. Further, contrary to the Russian Federation’s suggestion, the practice of the Court
clearly favours the conclusion that interventions filed prior to the resolution of
preliminary objections by the respondent State are not for that reason inadmissible. The
Russian Federation emphasises that the Court has not, to date, admitted an intervention
under Article 63 at a preliminary objections phase of a case.70 This must be seen in the
context of the very small number of cases in which States have sought to exercise the
right of intervention under Article 63 and the specific circumstances of each of those
cases, rather than any principled position against the admissibility of interventions at
such a stage. Each of the cases to which it refers are addressed in turn below.71
40. The Russian Federation refers72 to the fact that El Salvador’s intervention was deemed
inadmissible during the jurisdictional phase of Military and Paramilitary Activities
“inasmuch as it relates to the current phase of proceedings”.73 However, the Court’s
69 Case of Certain Norwegian Loans (France v. Norway), Judgment of July 6th, 1957, ICJ Reports 1957, p. 9,
Separate Opinion of Sir Hersch Lauterpacht, at pp. 63–64. Judge Lauterpacht reiterated this view at Interhandel
Case (interim measures of protection), Order of October 24th, 1957, ICJ Reports 1957, p. 105, Separate Opinion
of Sir Hersch Lauterpacht, at p. 120.
70 Written Observations, para. 50.
71 The Russian Federation refers (at Written Observations, paras. 51(a) and 51(c)) to two cases in which Article
63 interventions were admitted in circumstances where the respondent State had not raised (and did not
subsequently raise) preliminary objections: Haya de la Torre Case (Colombia/Peru), Judgment of June 13th,
1951, ICJ Reports 1951, p. 71; Case of the S.S. “Wimbledon”, PCIJ, Series A, No. 1, 1923, p. 11. Given that no
preliminary objections were raised in those cases, they do not assist in ascertaining whether interventions are
admissible when preliminary objections are pending and are not addressed further here.
72 Written Observations, para. 50(a).
73 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration of Intervention, Order of 4 October 1984, ICJ Reports 1984, p. 215, at p. 216, dispositif, para. (ii).
23
Order made clear that this finding was based on the specific circumstances and
characteristics of El Salvador’s intended intervention, rather than any broader
conclusion that interventions under Article 63 were inherently inadmissible pending the
resolution of preliminary objections.74 The Court noted that El Salvador’s declaration
“addresse[d] itself also to matters, including the construction of conventions, which
presuppose that the Court has jurisdiction to entertain the dispute between Nicaragua
and the United States of America and that Nicaragua’s Application … in respect of that
dispute is admissible”.75 This indicates only that the Court did not consider it
permissible to admit an intervention that was predicated on a finding that the dispute
was within the Court’s jurisdiction and admissible. Neither the order itself nor any of
the separate or dissenting opinions which accompanied it (reflecting the views of a total
of 9 members of the Court) suggested that interventions were necessarily inadmissible
at the preliminary objections phase.76 Specifically:
(a) Judge Nagendra Singh observed that El Salvador’s Declaration “in effect
appears directed to the merits of the case”, which is what “weighed with the
Court”.77 He was concerned that, if El Salvador were heard “at the present first
phase”, then “there would inevitably be arguments presented touching the
merits, which aspect belongs to the second phase of the case after the Court’s
jurisdiction to deal with the dispute has been established”.78 The Court’s order,
he stated, was “directed towards placing things in the order and sequence in
which they rightly belong”.79
74 Supporting this view, see Hugh Thirlway, The Law and Procedure of the International Court of Justice: Fifty
Years of Jurisprudence, Volume I, (OUP, 2013), p. 1031.
75 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration of Intervention, Order of 4 October 1984, ICJ Reports 1984, p. 215, at p. 216, para. 2.
76 The Separate Opinion of Judge Bedjaoui addressed only the possibility of a hearing being held to determine
the admissibility of El Salvador’s intervention: Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Declaration of Intervention, Order of 4 October 1984, ICJ Reports
1984, p. 215, Separate Opinion of Judge Bedjaoui, at p. 222.
77 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration of Intervention, Order of 4 October 1984, ICJ Reports 1984, p. 215, Separate Opinion of Judge
Nagendra Singh, at p. 218 (emphasis in original).
78 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration of Intervention, Order of 4 October 1984, ICJ Reports 1984, p. 215, Separate Opinion of Judge
Nagendra Singh, at p. 218.
79 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration of Intervention, Order of 4 October 1984, ICJ Reports 1984, p. 215, Separate Opinion of Judge
Nagendra Singh, at p. 218.
24
(b) Judges Ruda, Mosler, Ago, Jennings and de Lacharrière stated that they
considered El Salvador’s intervention to be inadmissible:
“because we have not been able to find, in El Salvador’s written
communications to the Court, the necessary identification of such
particular provision or provisions which it considers to be in question
in the jurisdictional phase of the case between Nicaragua and the United
States; nor of the construction of such provision or provisions for which
it contends”.80
Thus, for these Judges, the defect in the declaration which rendered it
inadmissible was that it did not identify either provisions of the convention
which fell to be determined at the jurisdictional phase, or the construction of
those provisions which El Salvador wished to advance.
(c) Judge Oda explained that El Salvador’s intervention “appeared mainly directed
to the merits of the case, was vague and did not appear to satisfy the
requirements of Article 82, paragraph 2 (b) and (c), of the Rules of Court for an
intervention at the present stage”.81 He proceeded to state that, “[h]ad El
Salvador’s initial Declaration been properly formulated, … El Salvador’s
Declaration might well have been the first case of intervention under Article 63
of the Statute to be considered by the Court at a jurisdictional phase of a case”.82
Thus, far from ruling out the possibility of interventions under Article 63 being
admitted at the preliminary objections phase of a case, Judge Oda expressly
acknowledged such a possibility, provided that a declaration complies with the
relevant formalities and admissibility requirements.
80 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration of Intervention, Order of 4 October 1984, ICJ Reports 1984, p. 215, Separate Opinion of Judges
Ruda, Mosler, Ago, Sir Robert Jennings and de Lacharrière, at p. 219, para. 3.
81 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration of Intervention, Order of 4 October 1984, ICJ Reports 1984, p. 215, Separate Opinion of Judge Oda,
at p. 220, para. 2.
82 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration of Intervention, Order of 4 October 1984, ICJ Reports 1984, p. 215, Separate Opinion of Judge Oda,
at p. 221, para. 5.
25
(d) As set out above, Judge Schwebel expressed the view that there was no reason
that interventions could not be admitted at the preliminary objections phase of
a case.83
41. Thus, the Court’s decision not to allow El Salvador’s intervention was based on the
circumstances of the case before it and not any view that interventions under Article 63
could never be admitted at the preliminary objections phase. Further, none of the
grounds for dismissing El Salvador’s intervention apply to the United Kingdom’s
Declaration:
(a) As addressed further in Section IV below, the United Kingdom’s Declaration
expressly differentiates matters of construction pertaining to the Court’s
jurisdiction (which it seeks to address at the preliminary objections phase)84
from matters of construction pertaining to the merits of the case.85 Given that it
has now been determined that there will be a preliminary objections phase to
these proceedings (which was not the case when the United Kingdom filed the
Declaration on 1 August 2022), the United Kingdom has already undertaken not
to address any matters in the latter category unless and until the Court finds that
the claims are within its jurisdiction and admissible.86
(b) Unlike El Salvador, the United Kingdom’s Declaration complies with all the
formal requirements of an Article 63 intervention, including by identifying the
convention the construction of which is in question (namely, the Genocide
Convention),87 setting out the basis on which the United Kingdom is a party to
the Genocide Convention,88 identifying the provisions of the Genocide
Convention the construction of which it considers to be in question,89 stating
83 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration of Intervention, Order of 4 October 1984, ICJ Reports 1984, p. 215, Dissenting Opinion of Judge
Schwebel, at pp. 234–236.
84 Declaration, paras. 17–20, 31–47.
85 Declaration, paras. 21–27, 48–65.
86 Declaration, para. 16.
87 Declaration, para. 13.
88 Declaration, para. 15.
89 Declaration, paras. 17–27.
26
the construction of those terms for which it contends,90 and enclosing
documents in support.91
42. The Russian Federation quotes several passages from three separate opinions at the
merits phase of Military and Paramilitary Activities, but none of them supports its
contention that Article 63 interventions are necessarily inadmissible at the preliminary
objections phase of a case.
(a) Judge Lachs merely paraphrased the Court’s earlier finding that there had been
“no adequate reason” to allow El Salvador’s intervention during the
jurisdictional phase (the reasons for that earlier finding being set out above in
the present observations), while expressing some regret at the fact that El
Salvador had not been granted a hearing to defend the admissibility of its
application92 (a regret which he was not alone in expressing93).
(b) Similarly, Judge Sette-Camara referred to, without elaborating on, the Court’s
previous finding that El Salvador’s intervention had been “untimely”.94 As
stated above, the basis for this finding was that El Salvador’s intervention
focused on matters pertaining to the merits and did not either identify relevant
treaty provisions relevant to jurisdictional issues or proffer particular
constructions of any such provisions.
(c) The same is true of Judge Ni’s reference to the Court having previously
determined that El Salvador’s intervention was “premature”.95 Again, this was
simply a reference to El Salvador’s specific intervention being inappropriate for
determination at the jurisdictional phase (for the reasons set out above), rather
90 Declaration, paras. 28–65.
91 Declaration, para. 66 and Annexes A–B.
92 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, ICJ Reports 1986, p. 14, Dissenting Opinion of Judge Oda, at p. 244, para. 66, Dissenting
Opinion of Judge Schwebel, p. 313, paras. 108–110.
93 See also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, ICJ Reports 1986, p. 14, Separate Opinion of Judge Lachs, at p. 171.
94 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, ICJ Reports 1986, p. 14, Separate Opinion of Judge Sette-Camara, at p. 195.
95 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, ICJ Reports 1986, p. 14, Separate Opinion of Judge Ni, at p. 204.
27
than any broader suggestion that any intervention filed before preliminary
objections are resolved is necessarily premature.
43. The Russian Federation also refers to the dismissal of Fiji’s attempted intervention
under Article 62 in the Nuclear Tests cases between New Zealand and Australia (as
applicants) and France (as respondent).96 In each of those cases, consideration of Fiji’s
intervention was initially deferred to the merits phase of the case following resolution
of France’s preliminary objections, given that the intervention did not involve questions
of jurisdiction and therefore “by its very nature presuppose[d] that the Court ha[d]
jurisdiction” over the dispute and that the dispute was admissible.97 Ultimately, the
applications to intervene in each case were never resolved because, France’s
preliminary objections having been upheld and the cases accordingly dismissed, the
interventions equally fell away as there was no longer “any proceedings before the
Court to which the Application for permission to intervene could relate”.98 As
Professors Miron and Chinkin have written, this case is authority for the proposition
“that an intervention based on a legal interest relating to the merits shall be considered
as premature at the jurisdictional stage”, but “should not be interpreted as rejecting at
large the possibility of intervention on jurisdictional issues at the jurisdictional stage”.99
44. The approach of deferring Fiji’s intervention to the merits phase was appropriate in
circumstances where Fiji did not seek to intervene on any issues of construction
relevant to jurisdictional issues. To that extent, Fiji’s intervention is distinguishable
from the Declaration of the United Kingdom in the present proceedings, which does in
part address matters of construction relevant to the Court’s jurisdiction.100 As the
United Kingdom acknowledged in its Declaration, to the extent that the Declaration
addresses matters of construction relevant to the merits of the case, those will be
addressed by the United Kingdom only during any merits phase, following resolution
96 Written Observations, para. 50(b).
97 Nuclear Tests (Australia v. France), Application to Intervene, Order of 12 July 1973, ICJ Reports 1973, p.
320, at p. 321, para. 1; Nuclear Tests (New Zealand v. France), Application to Intervene, Order of 12 July 1973,
ICJ Reports 1973, p. 324, at p. 325, para. 1.
98 Nuclear Tests (Australia v. France), Application to Intervene, Order of 20 December 1974, ICJ Reports 1974,
p. 530, at p. 530, para. 2; Nuclear Tests (New Zealand v. France), Application to Intervene, Order of 20
December 1974, ICJ Reports 1974, p. 535, at p. 535, para. 2.
99 Alina Miron and Christine Chinkin, “Article 62” in Andreas Zimmermann, Christian J. Tams, Karin Oellers-
Frahm and Christian Tomuschat (Eds.), The Statute of the International Court of Justice: A Commentary, 3rd Ed.,
(OUP, 2019), p. 1695.
100 Declaration, paras. 17–20, 31–47.
28
of the Russian Federation’s preliminary objections.101 Thus, admitting the Declaration,
at this stage exclusively in relation to the jurisdictional matters it addresses, does not
presuppose that the Court has jurisdiction over the claim or that the claim will be found
to be admissible.
45. The Russian Federation refers also to the declarations of intervention filed pursuant to
Article 63 by Samoa, the Solomon Islands, the Marshall Islands and the Federated
States of Micronesia in Nuclear Tests (Request for Examination).102 Like Fiji’s
interventions in the Nuclear Tests cases, none of these interventions dealt with
jurisdictional issues, and all of them were dismissed after the Court determined that it
lacked jurisdiction over the main dispute. Specifically:
(a) New Zealand had invoked, as the basis for the Court’s jurisdiction, paragraph
63 of the Court’s previous judgment in Nuclear Tests.103
(b) Each of the States seeking to intervene under Article 63 did so on the basis that
they were States parties to the Convention for the Protection of Natural
Resources and Environment of the South Pacific Ocean.104 None of the
declarations of intervention advanced any argument relevant to the question of
jurisdiction, which New Zealand had not contended arose under this
Convention.
(c) France raised a preliminary objection as to the Court’s jurisdiction based on its
previous judgment.105
101 Declaration, para. 16.
102 Written Observations, para. 50(c). Australia also sought to make an intervention under Article 62 of the
Statute, and was denied on the same grounds as the States seeking to intervene under Article 63.
103 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, ICJ Reports 1995, p. 288, at p. 289, para.
3.
104 See, e.g., 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, Application for Permission
to Intervene under Article 62 of the Statute – Declaration of Intervention under Article 63 of the Statute
submitted by the Government of the Solomon Islands, 24 August 1995, paras. 1(2), 41(b). The declarations of
intervention under Article 63 by each of the Marshall Islands, the Federated States of Micronesia and Samoa
were materially identical.
105 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, ICJ Reports 1995, p. 288, at p. 292, para.
13.
29
(d) Following a hearing on France’s preliminary objection, the Court determined
that it lacked jurisdiction to hear New Zealand’s request and thus dismissed the
claim.106
(e) As a result, the Court dismissed the interventions which had previously been
filed.107 This was, as in Nuclear Tests, the inevitable consequence of the Court’s
finding that the case would not proceed to a merits phase, given that the
interventions in question solely concerned merits issues.
46. The present case is distinguishable from that situation for the same reasons as are set
out in paragraph 44 above.
47. The fourth case invoked by the Russian Federation,108 Whaling in the Antarctic, further
undermines its position. In that case, Japan objected to the Court’s jurisdiction, but did
so in its Counter-Memorial rather than in a separate pleading, with the consequence
that the Court’s jurisdiction was considered alongside the merits in a single phase of
proceedings.109 After Japan had filed its Counter-Memorial, New Zealand filed a
declaration of intervention.110 Despite the fact that Japan’s objection to the Court’s
jurisdiction had not been resolved, New Zealand’s declaration was admitted
unconditionally.111 This demonstrates that it is entirely possible for interventions
pursuant to Article 63 to be admitted prior to the resolution of jurisdictional objections.
48. This conclusion is reinforced by the Court’s practice in relation to notifying States, in
accordance with Article 63(1) of the Statute, that the construction of a convention to
which they are parties is in question in a case. Its practice in this regard makes clear
106 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, ICJ Reports 1995, p. 288, at pp. 306–307,
paras. 65, 68(1)–(2).
107 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, ICJ Reports 1995, p. 288, at pp. 306–307,
paras. 67–68(3).
108 Written Observations, para. 51(b).
109 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, ICJ Reports 2014, p.
226, at pp. 235, 239, paras. 5, 25.
110 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, ICJ Reports 2014, p.
226, at pp. 235, para. 7.
111 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6
February 2013, ICJ Reports 2013, p. 3, at p. 10, para. 23(1).
30
that the Court does not consider it contrary to the Statute or the Rules for States to
intervene under Article 63 at the preliminary objections phase of a case.
49. In several cases, the Registrar (acting on directions of the Court under Article 43(1) of
the Rules) has issued such notifications to States where the convention to which they
are parties is relevant to the case in question only in relation to jurisdictional issues.
This has repeatedly occurred in relation to, for example, cases where an applicant State
asserts jurisdiction based on the American Treaty on Pacific Settlement (“the Pact of
Bogotá”). The sole focus of this convention is to set out procedures which the States
parties agree to use for the peaceful resolution of their disputes. Article XXXI confers
jurisdiction on the Court in respect of disputes submitted by a State party. In numerous
cases, the Registry has provided notifications to States parties of the Pact of Bogotá
pursuant to Article 63(1) of the Statute.112 The only conceivable basis for an
intervention relating to the Pact of Bogotá would be one relating to the Court’s
jurisdiction under that convention.
50. In Obligation to Negotiate Access to the Pacific Ocean, the Registry notified not only
States parties but also, in accordance with Article 34(3) of the Statute and Article 69(3)
of the Rules, notified the Organization of American States that the construction of the
Pact of Bogotá was in question in the case and asked whether it intended to furnish
observations within the meaning of Article 69(3). According to the Court’s judgment
on preliminary objections, the Registry’s communication stated that, “in view of the
fact that the current phase of the proceedings related to the question of jurisdiction, any
written observations should be limited to the construction of the provisions of the Pact
of Bogotá concerning that question”.113 As has been observed, “If, under Article 43 of
112 See, e.g., Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility,
Judgment, ICJ Reports 1988, p. 69, at p. 71, para. 5; Territorial and Maritime Dispute between Nicaragua and
Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, ICJ Reports 2007, p. 659, at p. 664, para.
3; Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, ICJ Reports 2009,
p. 213, at p. 219, para. 3; Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections,
Judgment, ICJ Reports 2007, p. 832, at pp. 835–837, para. 3; Maritime Dispute (Peru v. Chile), Judgment, ICJ
Reports 2014, p. 3, at p. 10, para. 3; Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment, ICJ Reports 2016, p. 3, at p. 9,
para. 6; Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200
Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment, ICJ
Reports 2016, p. 100, at p. 107, para. 6; Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile),
Judgment, ICJ Reports 2018, p. 507, at p. 515, para. 7.
113 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment, ICJ
Reports 2015, p. 592, at p. 597, para. 7.
31
the Rules, an international organization is authorized to file written observations on
jurisdictional issues, there is little reason not to allow the States parties to the
convention in question to do the same.”114
51. The Pact of Bogotá is not the only convention which has given rise to this practice. In
the Nuclear Tests case between Australia and France, the Registry sent a notification to
States parties to the General Act for the Pacific Settlement of International Disputes,
which was relevant to Australia’s claim only as the alleged basis for the Court’s
jurisdiction.115
52. In the context of notifications pursuant to Article 63(1), the Court has also expressly
drawn States’ attention to the fact that the construction of a convention to which they
are parties is in question in relation to both jurisdictional and merits matters. By way of
example, in the present case, the Registry’s notification in accordance with Article
63(1) to States parties to the Genocide Convention stated as follows:
“In the above-mentioned Application, the 1948 Convention on the Prevention
and Punishment of the Crime of Genocide (hereinafter the ‘Genocide
Convention’) is invoked both as a basis of the Court’s jurisdiction and as a
substantive basis of the Applicant’s claims on the merits. In particular, the
Applicant seeks to found the Court’s jurisdiction on the compromissory clause
contained in Article IX of the Genocide Convention, asks the Court to declare
that it has not committed a genocide as defined in Articles II and III of the
Convention, and raises questions concerning the scope of the duty to prevent
and punish genocide under Article I of the Convention. It therefore appears that
the construction of this instrument will be in question in the case.”116
53. This notification encompasses both issues of construction relevant to the Court’s
jurisdiction and those relevant to the substantive claim, with the clear implication that
all these issues of construction are amenable to intervention at the election of a State
party to the Genocide Convention. This is not isolated practice on the part of the Court.
Similarly, in Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (The Gambia v. Myanmar), in its notification pursuant to Article
63(1) of the Statute, the Registry similarly referred to the fact that The Gambia sought
114 Alina Miron and Christine Chinkin, “Article 63” in Andreas Zimmermann, Christian J. Tams, Karin Oellers-
Frahm and Christian Tomuschat (Eds.), The Statute of the International Court of Justice: A Commentary, 3rd Ed.,
(OUP, 2019), p. 1765.
115 Nuclear Tests (Australia v. France), Judgment, ICJ Reports 1974, p. 253, at p. 255, para. 8.
116 Letter from the Registrar of the International Court of Justice to the Ambassador of the United Kingdom to
the Netherlands, 30 March 2022: see Declaration, Annex A.
32
to found the Court’s jurisdiction on the compromissory clause of the Genocide
Convention, and this supported its conclusion that “[i]t therefore appears that the
construction of this instrument will be in question in the case”.117 The Registry’s
notifications in cases brought pursuant to the compromissory clause in the Convention
on the Elimination of All Forms of Racial Discrimination are equivalent.118 This
practice is also of very long standing. As long ago as 1936, the Registry, acting pursuant
to the predecessor of what is now Article 63 of the Statute, notified Australia, as a State
party to the “Agreement II signed at Paris on April 28th, 1930”119 and the “Agreement
III signed at Paris on the same date”,120 of the fact that Yugoslavia had filed a
preliminary objection which “concern[ed] the interpretation of Agreements II and III
of Paris”. The Registrar wrote that, given this fact, it was “his duty, under Article 63 of
the Statute … to bring it to Your Excellency’s Notice”.121 Again, the only conceivable
reason that such a notification would have been made is that the Registry considered
that an intervention would be admissible if it related to the interpretation of those
conventions in relation to Yugoslavia’s preliminary objection. It is especially striking
that this notification was made after the Registry had already provided a notification to
Australia under Article 63 when Hungary had filed its Application. The Registry
considered it necessary to provide an additional notification relating specifically to the
fact that the conventions would fall to be construed during the jurisdictional phase.
54. It is clear from the foregoing that no support can be found in the text of the Statute or
the Rules, in the practice of the Court, or as a matter of principle, for the Russian
Federation’s claim that the Declaration is necessarily inadmissible because the Russian
Federation has made preliminary objections that have not been resolved.
117 Letter from the Registrar of the International Court of Justice to the Ambassador of the United Kingdom to
the Netherlands, 24 January 2020.
118 E.g., Letter from the Registrar of the International Court of Justice to the Ambassador of the United
Kingdom to the Netherlands, 13 December 2021 (relating to Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia) and recording that “[t]his
Convention is also invoked as a basis of jurisdiction”).
119 This convention’s full title was Agreement No. II on the Settlement of Questions Relating to the Agrarian
Reforms and Mixed Arbitral Tribunals.
120 This convention’s full title was Agreement No. III Concerning the Organisation and Working of an Agrarian
Fund Entitled “Fund A”: Creation and Working of the Agrarian Fund.
121 The Pajzs, Csáky, Esterházy case, Correspondence, PCIJ Series C, No. 80, p. 1368, at p. 1382. See also
Appeals from certain judgments of the Hungaro-Czechoslovak mixed arbitral tribunal, PCIJ Series C, No. 68,
Correspondence, p. 240, at pp. 264–265.
33
B. The existence of the dispute, its subject matter, and the provisions of the
Genocide Convention that it concerns
55. The second aspect of the Russian Federation’s third objection to the Declaration is that,
given that the case is only at the preliminary objections phase, the Court has not yet
ascertained whether a dispute exists, and, if it does, the scope of the dispute or the terms
of the Genocide Convention which will fall to be construed at the merits phase. In the
Russian Federation’s contention, the consequence of this fact is that any declaration of
intervention must be deemed inadmissible at the present stage.122
56. This argument, however, proceeds on the false premise that an intervention is
permissible only if it relates to a matter of construction that is in dispute between the
parties in the merits phase of the case. That is incorrect. In fact, all that Article 63 of
the Statute requires is that the construction of the convention is “in question” in the
case. As set out above,123 the right to intervene arises “[w]henever” this is the case, not
only at the merits phase of proceedings.
57. The Russian Federation emphasises that “a State can intervene in a case only if it seeks
to interpret a provision of the convention over which the Parties express diverging
views as to their interpretation in that case”.124 That proposition, taken alone, may be
uncontroversial. Article 82(2)(b) makes clear that a State seeking to intervene under
Article 63 of the Statute must identify “the particular provisions of the convention the
construction of which it considers to be in question”. A State may not intervene on a
point of construction that is extraneous to the case before the Court and is not “in
question” between the parties. This is the same proposition that the Court confirmed in
a passage of Haya de la Torre cited by the Russian Federation125 — namely, that an
intervention must “actually relate to the subject-matter of the pending proceedings”.126
It was this finding which led to the inclusion of Article 82(2) in the 1978 version of the
Rules (which has not since been amended), the purpose of which was “to ensure that
122 Written Observations, Section II(C)(ii).
123 See para. 34(a) above.
124 Written Observations, para. 55.
125 Written Observations, paras. 57–58.
126 Haya de la Torre Case (Colombia/Peru), Judgment of June 13th, 1951, ICJ Reports 1951, p. 71, at p. 76.
34
[an intervention] would remain within the bounds of Article 63 of the Statute and
concern only the interpretation of the convention in question”.127
58. It does not follow, however, that a point of construction will be considered to be “in
question” in a case for the purposes of Article 63 of the Statute and Article 82(2)(b) of
the Rules only if it is a matter of construction going to the merits of the case. Rather,
points of treaty interpretation may equally arise in relation to jurisdictional issues.
Provided that the point of construction is “in question” in the sense that it is the subject
of disagreement between the parties to the case, then States parties to the relevant
convention have a right of intervention to contend for their construction of the relevant
provision(s). Consistently with this approach, when the Court referred in Haya de la
Torre to the “subject-matter of the pending proceedings”, this was not a reference
exclusively to the substance of the dispute which would be resolved at the merits phase.
The relevant “subject-matter” equally encompassed points of disagreement at the
jurisdictional phase, as reflected in the language subsequently adopted in Article
82(2)(b).
59. It is on this point that the Russian Federation falls into error. It states that, “unless the
Court has examined the submissions of the Parties and confirmed that the Court has
jurisdiction to hear the applicant’s claims and that such claims are admissible, it cannot
be certain if there is ‘a dispute’ or ‘a question’ regarding the construction of a
convention’, or what provisions of the Convention are ‘the subject-matter’ of a dispute
or are ‘in question’, and whether ‘the question’ relates to the interpretation of that
provision of a convention”.128 It is correct that the Court’s ruling on preliminary
objections will determine the existence and subject matter of a dispute that will fall to
be resolved at the subsequent merits phase. That does not, however, preclude the
possibility that there will also be points of construction that fall to be resolved within
the preliminary objections phase. Any such points of construction also constitute the
127 Shabtai Rosenne, Intervention in the International Court of Justice (Martinus Nijhoff, 1993), p. 75.
128 Written Observations, para. 64. See also para. 65 (“if the respondent State files preliminary objections … the
Court will first have to examine the submissions of the original parties and establish (i) whether there is a
dispute between such original parties, (ii) what the real natural of such dispute, if any, is; and (iii) what
provisions of the relevant convention, if any, are in question”).
35
subject matter of the case in the relevant sense and are matters “in question” for the
purposes of Article 63 of the Statute and Article 82(2) of the Rules.
60. As noted above, the United Kingdom has not yet had access to the preliminary
objections filed by the Russian Federation. However, Ukraine’s observations on the
admissibility of the Declaration indicates that Russia’s preliminary objections invite
(and require) the Court to interpret Articles I, IV and IX of the Genocide Convention.129
Thus, based on its own preliminary objections, it is unsustainable for the Russian
Federation now to contend that, unless and until the case proceeds to a merits phase,
the Court “cannot give a binding interpretation of any provision of the Convention in
line with Article 63 of the Statute, either for the original Parties or for the intervening
States”.130 Based on Ukraine’s description of the Russian Federation’s objections, the
Court is already being invited by the Russian Federation to give binding rulings on (at
least) Articles I, IV and IX of the Genocide Convention, and the construction of these
provisions will be “in question” for the purposes of Article 63 during the jurisdictional
phase.
61. The Russian Federation refers to Article 40(1) of the Statute and Article 38 of the Rules,
as well as judgments which explain how the Court will ascertain the subject of a dispute
before it by reference to the parties’ pleadings.131 The relevance of these references is
not clear. The provisions and judgments cited all relate to the question of whether a
given substantive issue falls within the scope of the dispute of which the Court has been
properly seized. This has no bearing on the scope of Article 63, which requires only
that an issue of construction be “in question” in the case, without distinction as to
whether the issue relates to jurisdiction or the merits.
62. Accordingly, there is no basis for finding the Declaration to be inadmissible on the
grounds that the Court has not yet determined the existence or scope of any dispute
which may fall to be determined at a future merits phase of this case. Even at the
jurisdictional phase, on the Russian Federation’s own case, matters of construction of
the Genocide Convention will be resolved by the Court. As those matters will be “in
129 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Written Observations of Ukraine on the Declaration of Intervention of the
United Kingdom, 17 October 2022, para. 7.
130 Written Observations, para. 67.
131 Written Observations, paras. 61–62.
36
question” in the case, States parties to the Genocide Convention such as the United
Kingdom have a right to intervene in respect of them.
IV. THE RUSSIAN FEDERATION’S FOURTH OBJECTION: ALLEGED PRE-JUDGMENT AS TO
THE COURT’S JURISDICTION AND THE ADMISSIBILITY OF UKRAINE’S CLAIM
63. The Russian Federation’s fourth objection is that admission of the Application at this
stage “would essentially prejudge the preliminary objections that the Russian
Federation raised within a separate phase of the proceedings, and the outcome of such
phase overall”.132 Like its third objection, this objection has two aspects. The first is
that, because the Declaration contains submissions relevant to points of construction
that will arise at the merits stage (if there is one), it is inadmissible in its entirety.133
This argument is addressed in sub-section A below. The second is that the Declaration
“effectively presuppose[s] that there is a dispute between the Parties under the
Genocide Convention and that the Court has jurisdiction to entertain the dispute and/or
that the Application of Ukraine is admissible”.134 This argument is addressed in subsection
B below.
A. The Declaration’s inclusion of points of construction relating to the merits
of the case
64. The Russian Federation takes the position that, if a declaration of intervention includes
any matters pertaining to the merits of a case, it is automatically inadmissible in its
entirety. It states:
“[E]ven if a declaration contains arguments ostensibly related to jurisdiction,
the presence of arguments related to the merits or presupposing that the Court
has jurisdiction makes it inadmissible at the jurisdictional phase of
proceedings.”135
65. When the United Kingdom filed its Declaration on 1 August 2022, the Russian
Federation had not yet filed preliminary objections.136 On that basis, the United
Kingdom included in its Declaration matters of construction relevant, respectively, to
132 Written Observations, para. 82.
133 Written Observations, paras. 69–80.
134 Written Observations, para. 81.
135 Written Observations, para. 76.
136 The Court has indicated that the Russian Federation filed preliminary objections on 3 October 2022:
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Order, 7 October 2022, at p. 2.
37
the Court’s jurisdiction and to the merits of Ukraine’s claims. It made explicit that, if
there were to be a discrete preliminary objections phase in the proceeding, it would not
raise any arguments regarding the merits at that stage. Specifically, it stated in Section
4 of its Declaration (which identified the provisions of the Genocide Convention which
the United Kingdom considers to be in question) the following:
“This part of the Declaration of intervention is therefore divided into two
sections: section A on provisions of the Convention the construction of which
is relevant to jurisdictional issues; and section B on provisions of the
Convention the construction of which is relevant to the merits. If the Court
proceeds to examine questions of jurisdiction together with questions of the
merits, the United Kingdom will accordingly make observations in relation to
the matters addressed in sections A and B together. If there were to be a
separate phase of the proceedings dedicated to the Court’s jurisdiction, the
United Kingdom would in that phase make observations only in relation to
those matters addressed in section A. In a subsequent phase concerning the
merits, the United Kingdom would make observations in relation to those
matters addressed in section B.”137
66. The Declaration similarly distinguished jurisdictional from merits issues in Section 5
(which set out the construction of the relevant provisions for which the United Kingdom
contends) and specified that, in any distinct jurisdictional phase, arguments relating to
the merits would not be raised.138
67. In structuring its Declaration in this way, the United Kingdom expressly did not
presuppose the Court’s jurisdiction or the admissibility of Ukraine’s Application. It
clearly identified matters of construction pertaining to jurisdiction and separated them
from matters going to the merits. The Declaration made clear that the United Kingdom
will not address arguments pertaining to the merits unless and until the Court
determines that it has jurisdiction over the claim and that the claim is admissible.
68. In the face of this clear delineation and articulation of issues, the Russian Federation
seeks to liken the United Kingdom’s Declaration to that of El Salvador in Military and
Paramilitary Activities, which it describes as a “hybrid declaration of intervention
(concerning both jurisdiction and merits)” which was automatically inadmissible at the
jurisdictional phase because of its inclusion of merits issues.139 However, for reasons
137 Declaration, para. 16.
138 Declaration, para. 30.
139 Written Observations, para. 76.
38
already explained in relation to the Russian Federation’s third objection,140 the
comparison is inapposite. The reason that El Salvador’s intervention was deemed
inadmissible during the jurisdictional phase was that the intervention was addressed to
the merits of the case.141 Although El Salvador had purported also to address issues
relevant to jurisdiction, the reality was that it had not identified specific treaty
provisions the construction of which it considered to be in issue, and nor had it
advanced any contentions as to the correct construction of any such provisions.142 The
United Kingdom’s Declaration, in contrast, fulfils both these requirements. Further, it
was considered “inevitabl[e]” that, if the intervention were permitted, El Salvador
would present merits issues at the jurisdictional phase.143 Again, the United Kingdom’s
position is distinguishable because it has undertaken not to make submissions on any
questions of construction pertaining to the merits at the preliminary objections phase.
69. Thus, the Court’s treatment of El Salvador’s declaration of intervention does not
support the generalised proposition advanced by the Russian Federation144 that any
declaration of intervention which encompasses merits issues is automatically
inadmissible in its entirety if there is a preliminary objections phase. In the specific
circumstances of the United Kingdom’s Declaration, it is entirely possible, and indeed
foreseen in the Declaration, for it to be declared admissible on the basis that the matters
of construction pertaining to the Court’s jurisdiction that it specifically identifies as
such would be addressed during the preliminary objections phase, whereas the
remaining matters would be addressed only if, when and to the extent that the Court
finds that it has jurisdiction and that Ukraine’s claims are admissible.
70. The Russian Federation also repeats its reference to Fiji’s attempted intervention in the
Nuclear Tests cases.145 However, it acknowledges that, unlike the United Kingdom, Fiji
140 See paras. 40–42 above.
141 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration of Intervention, Order of 4 October 1984, ICJ Reports 1984, p. 215, at p. 216, para. 2.
142 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration of Intervention, Order of 4 October 1984, ICJ Reports 1984, p. 215, Separate Opinion of Judges
Ruda, Mosler, Ago, Sir Robert Jennings and de Lacharrière, at p. 219, para. 3, Separate Opinion of Judge Oda,
at p. 220, para. 2.
143 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Declaration of Intervention, Order of 4 October 1984, ICJ Reports 1984, p. 215, Separate Opinion of Judge
Nagendra Singh, at p. 218.
144 Written Observations, paras. 76–77.
145 Written Observations, paras. 75–76.
39
filed a declaration “devoted exclusively to the merits of the case”.146 As set out
above,147 the grounds for deferring consideration of Fiji’s intervention simply do not
arise in this case, where the United Kingdom has identified provisions of the Genocide
Convention the construction of which it considers will be in issue at the jurisdictional
phase and has set out the construction of each such provision for which it contends.148
71. Accordingly, the United Kingdom’s inclusion of separable sections of its Declaration
which focused on points of construction relevant to the merits of the case does not
render the entirety of its intervention inadmissible.
B. The alleged presupposition of a dispute, the Court’s jurisdiction, and the
admissibility of Ukraine’s Application
72. The closely related second aspect of the Russian Federation’s fourth preliminary
objection is that, if the Court were to admit the Declaration, this would “essentially
prejudge the preliminary objections” raised by the Russian Federation.149
73. Paragraphs 64–69 above provide a complete answer to this argument. They make clear
that, at the preliminary objections phase, the United Kingdom will not advance any
argument regarding the merits of the case. Admitting the Declaration on this basis
creates no risk of prejudgment of the merits.
74. The Russian Federation seeks to bolster its argument with reference to the United
Kingdom’s contention that “Article IX of the Genocide Convention does grant the
Court jurisdiction to make a declaration of an applicant State’s compliance with its
obligations under the [Genocide] Convention, provided that this is a matter in dispute
between the parties to the case”.150 This is the only part of the Declaration said by the
Russian Federation to impermissibly prejudge the preliminary objections raised in this
case. The Russian Federation claims that this passage “effectively presuppose[s] that
there is a dispute between the Parties under the Genocide Convention and that the Court
146 Written Observations, para. 75.
147 See paras. 43–44 above.
148 Declaration, paras. 17–20, 31–47.
149 Written Observations, para. 82.
150 Written Observations, para. 81(e), citing Declaration, para. 32.
40
has jurisdiction to entertain the dispute and/or that the Application of Ukraine is
admissible”.151 That is not an available reading of the passage in question:
(a) This passage does not refer to the parties to this case, Ukraine and the Russian
Federation, at all. It is strictly framed as a matter of construction without
reference to the facts of the present case.
(b) It also, on its plain terms, does not presuppose the existence of a dispute,
whether between these parties or any other States. To the contrary, it is
expressly premised on the Court reaching a separate determination as to the
existence of a dispute (“provided that this is a matter in dispute between the
parties to the case”). The United Kingdom’s contention is that in a case in which
the Court determines that a dispute exists as to whether one State has complied
with its obligations under the Genocide Convention, then as a matter of
construction Article IX confers on the Court jurisdiction over a claim
commenced by a State seeking a declaration that it has complied with the
Genocide Convention. Whether or not there is in fact such a dispute is not a
matter on which the United Kingdom could or does as an intervener express a
view.
(c) Further, the quoted passage does not “presuppose … that the Court has
jurisdiction”.152 All that it contends is that, if the Court were to find that there
is a dispute concerning one State’s compliance with the Genocide Convention,
it would not (as a matter of construction of Article IX) be precluded from
exercising jurisdiction over that dispute only on the basis that the State accused
of breaching its obligations is the applicant State.153
(d) There is no conceivable basis for alleging that this passage presupposes that
Ukraine’s Application is admissible, and the Russian Federation has not
identified any.
151 Written Observations, para. 81.
152 Contrary to Written Observations, para. 81.
153 Declaration, paras. 32–34.
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75. Accordingly, with its fourth objection, Russia has again failed to establish that the
Declaration is inadmissible.
V. THE RUSSIAN FEDERATION’S FIFTH OBJECTION: ISSUES ALLEGEDLY UNRELATED
TO THE CONSTRUCTION OF THE GENOCIDE CONVENTION
76. The Russian Federation’s final objection is that the Declaration refers to “issues that
are unrelated to the construction of the provisions of the [Genocide] Convention” and
thus must be declared inadmissible.154
77. As a matter of principle, the United Kingdom agrees with the Russian Federation that
an intervention under Article 63 will be admissible only to the extent that it deals with
matters of construction of the relevant convention (in this case, the Genocide
Convention), and will be inadmissible to the extent that it trespasses beyond issues of
construction. However, it is simply incorrect that the Declaration deals with anything
other than issues of construction of the Genocide Convention — let alone that it “almost
exclusively” deals with issues other than construction.155
78. The Russian Federation asserts that the Declaration deals with four issues that are not
matters of construction of the Genocide Convention. Every one of them is a
mischaracterisation.
79. First, it contends that the Declaration addresses “the existence or otherwise of a dispute
between the Russian Federation and Ukraine concerning the [Genocide]
Convention”.156 However, the relevant paragraphs of the Declaration do not even refer
to Ukraine or the Russian Federation. Instead, they set out how the term “dispute” in
Article IX of the Genocide Convention should be construed, which the United Kingdom
contends should be in accordance with “the wide meaning given to that term generally
in international law” and “objectively”, rather than based on one State’s unilateral
denial that a dispute exists.157 Contrary to the Russian Federation’s suggestion, the
United Kingdom has confined itself to this point of construction and has not trespassed
154 Written Observations, paras. 85, 93.
155 As contended at Written Observations, para. 85(j).
156 Written Observations, para. 85(j), citing Declaration, paras. 44–47.
157 Declaration, paras. 46–47.
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into any “evidentiary question … which is relevant only for the parties between which
a dispute may (or may not) exist”.158
80. Secondly, the Russian Federation wrongly suggests that the Declaration concerns
“whether there is evidence that genocide has occurred or may occur in Ukraine”.159 It
goes so far as to suggest that the Declaration intrudes into a “fact-intensive assessment”
of this question.160 Again, this suggestion is simply incorrect. The relevant paragraphs
of the Declaration cited by Russia do not refer to the situation in Ukraine or the Russian
Federation or any conduct by either State. Instead, they set out contentions as to matters
of construction of Articles I and II of the Genocide Convention.
81. Thirdly, the Russian Federation complains that the Declaration addresses “the doctrine
of abuse of rights”,161 which it claims could only constitute a general principle of law
under Article 38(1)(c) of the Statute and thus “does not concern the construction of the
[Genocide] Convention”.162 However, the Declaration does not address any doctrine of
“abuse of rights”. Instead, it makes the observation that “[i]t is inconsistent with the
principle of good faith for a Contracting Party to carry out an assessment of the
occurrence or risk of genocide abusively” and proceeds to give examples of conduct
that would qualify as abusive under the Genocide Convention.163 These submissions
concern matters of construction of the Genocide Convention, relevant to the obligation
to perform the Convention in good faith.164
82. Fourth, the Russian Federation claims that the Declaration concerns “the legality of the
use of force, war crimes, [and] crimes against humanity”,165 which it claims amounts
to 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 other
sources”.166 However, the paragraphs of the Declaration to which it refers are devoted
exclusively to the construction of the “undertak[ing] to prevent” genocide under Article
158 Written Observations, para. 86.
159 Written Observations, para. 85(j), citing Declaration, paras. 48–58.
160 Written Observations, para. 87.
161 Written Observations, para. 85(j), citing Declaration, paras. 53–58.
162 Written Observations, para. 88.
163 Declaration, para. 54.
164 1969 Vienna Convention on the Law of Treaties, Article 26, cited in Declaration, para. 54.
165 Written Observations, para. 85(j), citing Declaration, paras. 59–62.
166 Written Observations, para. 89.
43
I of the Genocide Convention, and specifically the contention that this provision
“cannot be construed as being capable of countenancing aggression, violations of
international humanitarian law or crimes against humanity” in light of a substantial list
of textual and contextual indicators within the Convention.167 Again, it is a
mischaracterisation to suggest that the Declaration ventures beyond matters of
construction of the Genocide Convention.
83. There is also no substance to the Russian Federation’s contention that admitting the
Declaration “would effectively be prejudging the central question of the scope of [the
Court’s] jurisdiction ratione materiae in this case by accepting that those other rules
are somehow relevant to the ‘construction’ of the Convention for purposes of Article
63 of the Statute”.168 To the extent that the United Kingdom addresses issues of
construction of the Genocide Convention to which aggression, violations of
international humanitarian law and crimes against humanity may be relevant, it is only
in the part of its Declaration explicitly dedicated to “merits” issues,169 which the United
Kingdom has specified will be addressed only (if at all) after the conclusion of the
preliminary objections phase.170
84. Accordingly, the Russian Federation’s claim that the Declaration is inadmissible as it
extends to matters beyond the construction of the Genocide Convention should be
rejected. Equally, its alternative contention that the Declaration should be declared
inadmissible at the jurisdictional phase, or its consideration postponed until the Court
has resolved the scope of its jurisdiction ratione materiae, should be dismissed. As set
out above, the United Kingdom has clearly identified the parts of its Declaration which
relate to matters of construction going, respectively, to jurisdictional issues and to the
merits of the case, and will address only the former at the preliminary objections phase.
VI. SUBMISSIONS
85. In light of the foregoing and for the reasons given in its Declaration of intervention, the
United Kingdom respectfully requests that the Court recognise the admissibility of the
United Kingdom’s Declaration of intervention and that the United Kingdom is availing
167 Declaration, para. 60.
168 Written Observations, para. 92.
169 Declaration, paras. 59–62.
170 Declaration, paras. 16, 30.
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itself of its right under Article 63, paragraph 2, of the Statute of the Court to intervene
in these proceedings, on the basis that during the preliminary objections phase of the
case the United Kingdom shall address only those matters identified at paragraphs 17–
20 and 31–47 of its Declaration, being those matters of construction of the Genocide
Convention concerning the jurisdiction of the Court.