INTERNATIONAL COURT OF JUSTICE
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 ADMISSIBILITY
OF THE DECLARATIONS OF INTERVENTION
24 March 2023
Table of Contents
I. Introduction ..................................................................................................... 1
II. The Declarations of Intervention Are Admissible .......................................... 1
A. The Object of the Declarations Is the Interpretation of the
Genocide Convention. ............................................................... 1
B. The Declarations of Intervention Are Compatible with the
Equality of the Parties and the Sound Administration of
Justice. ...................................................................................... 8
C. The Interventions Are Not Premature. ................................... 11
D. The United States’ Declaration Is Admissible. ....................... 17
E. The Joint Declaration Is Admissible. ...................................... 17
III. Submission.................................................................................................... 18
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I. Introduction
1. Thirty-three States have exercised their right to file declarations of intervention
under Article 63 of the Statute of the Court in the above-captioned case (the “Declarations” or
“Interventions”). Each of these States (together, the “Declarants”) is a Contracting Party to
the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide
Convention”), the construction of which is at issue in this proceeding. Ukraine and the
Russian Federation have submitted observations on each of these Declarations in submissions
to the Court dated 17 October 2022, 15 November 2022, 16 December 2022, and 30 January
2023. The Russian Federation objected to the admissibility of the Declarations, and pursuant
to the Court’s letter of 31 January 2023, the Declarants submitted observations on the
admissibility of their Declarations on 13 February 2023.
2. In accordance with the same letter, Ukraine submits its further observations on
the admissibility of the Declarations. For the reasons provided below, in the view of the
Government of Ukraine, Russia’s objections to admissibility should be rejected. Russia’s
objections are inconsistent with the limited nature of the admissibility inquiry where States
exercise a right to intervene under Article 63. Russia’s arguments further presuppose that
Russia is correct in its construction of the Convention, and that Ukraine and the Declarants
are wrong. Rather than showing that the Interventions are inadmissible, Russia’s arguments
merely confirm that the object of the Interventions is the construction of the Convention, and
thus are admissible.
II. The Declarations of Intervention Are Admissible
A. The Object of the Declarations Is the Interpretation of the Genocide
Convention.
3. Article 63 confers a “right to intervene in the proceedings” to a State notified of
a case involving the construction of a convention to which the State is a party. In assessing
whether a declaration is consistent with Article 63, this Court has previously observed that
“the only point which it is necessary to ascertain is whether the object of the intervention . . .
is in fact the interpretation of the [relevant] Convention in regard to the question” at issue in
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the dispute.1
4. The object of the Declarations is the interpretation of the Genocide Convention
— the convention at issue in this dispute — and thus this requirement under Article 63 is
satisfied.2 As Ukraine noted in its initial observations on the individual declarations, each
declaration also fulfils the procedural requirements of Article 82 of the Rules of the Court.3
There are no other preconditions to the admissibility of a declaration of intervention. As
1 Haya de la Torre Case (Colombia v. Peru), Intervention, Judgment of 13 June, I.C.J. Reports 1951,
p. 77. See also Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New
Zealand, Order of 6 February 2013, I.C.J. Reports 2013, pp. 5–6, paras. 7–8.
2 See Declaration of Intervention Under Article 63 of Australia, paras. 21–55; Declaration of
Intervention Under Article 63 of Austria, paras. 16–45; Declaration of Intervention Under Article 63 of
the Kingdom of Belgium, paras. 16–46; Declaration of Intervention Under Article 63 of Bulgaria, paras.
19–28; Joint Declaration of Intervention Under Article 63 of Canada and the Kingdom of the
Netherlands, paras. 18–41; Declaration of Intervention Under Article 63 of the Republic of Croatia,
paras. 17–31; Declaration of Intervention Under Article 63 of the Republic of Cyprus, paras. 14–33;
Declaration of Intervention Under Article 63 of the Czech Republic, paras. 21–31; Declaration of
Intervention Under Article 63 of Denmark, paras. 16–42; Declaration of Intervention Under Article 63
of Estonia, paras. 25–51; Declaration of Intervention Under Article 63 of Finland, paras. 17–33;
Declaration of Intervention Under Article 63 of the French Republic, paras. 14–47; Declaration of
Intervention Under Article 63 of the Federal Republic of Germany, paras. 22–52; Declaration of
Intervention Under Article 63 of the Hellenic Republic, paras. 23–41; Declaration of Intervention Under
Article 63 of Ireland, paras. 13–25; Declaration of Intervention Under Article 63 of Italy, paras. 20–53;
Declaration of Intervention Under Article 63 of the Republic of Latvia, paras. 25–55; Declaration of
Intervention Under Article 63 of the Principality of Liechtenstein, paras. 14–24; Declaration of
Intervention Under Article 63 of the Republic of Lithuania, paras. 19–25; Declaration of Intervention
Under Article 63 of Luxembourg, paras. 19–46; Declaration of Intervention Under Article 63 of the
Republic of Malta, paras. 17–31; Declaration of Intervention Under Article 63 of New Zealand, paras.
15–33; Declaration of Intervention Under Article 63 of the Kingdom of Norway, paras. 13–33;
Declaration of Intervention Under Article 63 of Poland, paras. 18–41; Declaration of Intervention Under
Article 63 of Portugal, paras. 17–41; Declaration of Intervention Under Article 63 of Romania, paras.
18–45; Declaration of Intervention Under Article 63 of the Slovak Republic, paras. 24–49; Declaration
of Intervention Under Article 63 of the Republic of Slovenia, paras. 17–30; Declaration of Intervention
Under Article 63 of Spain, paras. 17–30; Declaration of Intervention Under Article 63 of Sweden, paras.
20–54; Declaration of Intervention Under Article 63 of the United Kingdom of Great Britain and
Northern Ireland, paras. 18–45; Declaration of Intervention Under Article 63 of the United States of
America, paras. 15–31.
3 See Ukraine’s Observations on the Intervention Declarations filed on 17 October 2022, 15 November
2022, 16 December 2022, and 30 January 2023.
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intervention under Article 63 is an intervention as of right and the Declarations satisfy the
requirements of Article 63 and Article 82, the Court should accordingly admit all of the
Declarations.4
5. In its initial observations, the Russian Federation contends that the Court must
establish “whether the conditions of a genuine intervention are satisfied,” and argues that the
Declarations filed are not “genuine” because Declarants do not “submit their own views
regarding the construction or interpretation of the relevant provisions of the Genocide
Convention . . . but rather [] side with, advocate for, or pursue a joint case with Ukraine.”5
Nothing in the Court’s Statute, Rules, or jurisprudence, however, contemplates an inquiry into
the motivations of a State choosing to exercise its right under Article 63. The “object of the
intervention” can and should be ascertained by the text of the declaration of intervention itself.
But even if it were appropriate to further consider the “genuineness” of each intervention, the
interventions satisfy such a standard.
6. In order to determine whether the object of the intervention is the construction
of the treaty, the Court has limited itself to considering the declaration and pleadings of the
intervening State. In Haya de la Torre, the Court focused on the memorandum Cuba had
submitted to the Court (which the Court viewed as not concerned with construction of the
convention at issue because it focused on different legal matters), and then the pleadings of
Cuba during oral argument (based on which the Court accepted the representation of Cuba’s
agent as to what “the intervention was based on,” and which did concern the construction of
the convention at issue).6 Contrary to Russia’s suggestion, Haya de la Torre does not support
4 Statute of the Court, art. 63(2); see Haya de la Torre Case (Colombia v. Peru), Intervention, Judgment
of 13 June, I.C.J. Reports 1951, p. 76; Continental Shelf (Tunisia v. Libyan Arab Jamahiriya),
Application to Intervene, Judgment, I.C.J. Reports 1981, p. 13, para. 21; Territorial and Maritime
Dispute (Nicaragua v. Colombia), Application for Permission to Intervene, Judgment, I.C.J. Reports
2011, p. 433, para. 35.
5 Russia’s Observations of 17 October 2022, paras. 14–15 (emphasis added); Russia’s Observations of 15
November 2022, paras. 15–16; Russia’s Observations of 16 December 2022, paras. 15–16; Russia’s
Observations of 30 January 2023, paras. 14–15.
6 Haya de la Torre Case (Colombia v. Peru), Intervention, Judgment of 13 June, I.C.J. Reports 1951, p.
77.
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a free-standing inquiry into the subjective political motivations of States exercising their right
to intervene under Article 63.
7. Moreover, even if some language in a declaration extends beyond the
construction of the convention at issue, that does not render the declaration inadmissible. For
example, in Haya de la Torre, Cuba’s memorandum attached to its declaration was “almost
entirely” devoted to questions the Court did not consider relevant to the construction of the
convention at issue, but because Cuba’s agent clarified one respect in which Cuba was
concerned with construction of the convention, the Court determined that the intervention
was admissible.7 The Court’s approach in Haya de la Torre refutes the Russian Federation’s
myopic focus on specific language in the Declarations referring to the broader context of this
case in order to suggest that the object of the interventions as a whole is not the construction
of the Genocide Convention.8
8. It is not appropriate for the Russian Federation to object to interventions on
the basis of joint statements made outside of these proceedings, as well as individual
statements made by certain Declarants. Russia argues that these statements show that the
“real purpose” of the interventions is “not to submit their own views regarding the
construction or interpretation of the relevant provisions of the Genocide Convention” but to
“pursue a joint case with Ukraine.”9 The “object” of the Declarations is plain from the
7 Ibid.
8 Russia’s Observations of 17 October 2022, paras. 20–21; Russia’s Observations of 15 November 2022,
paras. 23–24; Russia’s Observations of 16 December 2022, paras. 23–24; Russia’s Observations of 30
January 2023, paras. 22–23.
9 Russia’s Observations of 17 October 2022, para. 15; Russia’s Observations of 15 November 2022, para.
16; Russia’s Observations of 16 December 2022, para. 16; Russia’s Observations of 30 January 2023,
para. 15.
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Declarations themselves and what the declaring State represents to this Court.10 As this Court
has recognized in other contexts, States may have varying political motivations for choosing
to exercise a right accorded to it by the Statute of the Court, which is simply not relevant to the
admissibility of a State’s decision to avail itself of such a right.11
9. In any event, even if the Court were to consider these statements, they do not
undermine the conclusion that the Declarations themselves are concerned with the
construction of the Genocide Convention and thus are admissible. For example, Russia quotes
language from a 13 July 2022 joint statement which notes that “[i]t is in the interest of all
States Parties to the Genocide Convention . . . that the Convention not be misused or abused.
That is why the signatories of the present declaration . . . intend to intervene.”12 That
expressed interest directly concerns the construction of the Genocide Convention: Russia
asserts that a misuse or abuse of the Convention is not governed by the provisions of the
Convention, whereas Ukraine argues that such a misuse and abuse constitutes a violation of
the Convention.13 It is entirely appropriate for Contracting Parties of the Genocide Convention
10 See Haya de la Torre Case (Colombia v. Peru), Intervention, Judgment of 13 June, I.C.J. Reports
1951, p. 77.
11 See United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1980, p. 20, para. 37 (noting 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”);
Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1988, p. 91, para. 52 (noting that “the Court is aware that political aspects may
be present in any legal dispute bought before it” and rejecting an objection to the admissibility of an
application because the objection was “based on an alleged political inspiration of the proceedings”).
12 Russia’s Observations of 17 October 2022, para. 16 (quoting European Commission, Joint Statement
on Supporting Ukraine in its Proceedings at the International Court of Justice (13 July 2022))
(emphasis added); see also Russia’s Observations of 15 November 2022, para. 17; Russia’s Observations
of 16 December 2022, para. 17; Russia’s Observations of 30 January 2023, para. 16.
13 See Ukraine’s Memorial, Chapter 3; Russia’s Preliminary Objections, Chapter IV, Section E;
Ukraine’s Written Statement, Chapter 3.
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to have an interest in the Court’s resolution of that question of interpretation, and Article 63
gives them a right to be heard on this question.14
10. Additionally, the Russian Federation’s argument that the Declarations address
issues like the existence of a dispute or principles of good faith, that “do not concern the
‘construction’ of the Convention,” is misplaced.15 To the extent the Declarations raise such
issues, it is in connection with the interpretation of the Genocide Convention. For example,
the United Kingdom describes the obligation to implement the undertaking in Article I in good
faith as a “construction of Article I.”16 Similarly, Germany refers to the existence of a dispute
in the context of discerning “the proper construction of the Genocide Convention’s
compromissory clause, i.e. its Article IX.”17 These topics are related to questions of
interpretation Ukraine raised in its Memorial, with which Russia disagrees in its Preliminary
Objections.18 The language in the Declarations to which Russia refers simply confirms there
are competing constructions of the Convention at issue, and the Declarants are properly
providing their views on these questions of construction.19
14 Further, the joint statement of 20 May 2022 stated the signatories intend “to explore all options to
support Ukraine in its efforts before the ICJ and to consider a possible intervention in these
proceedings.” Joint Statement on Ukraine’s Application Against Russia at the International Court of
Justice (20 May 2022) (emphasis added). Notably, the statement referred in the conjunctive to
“support[ing] Ukraine in its efforts before the ICJ,” and to “consider[ing] a possible intervention.”
Supporting Ukraine in its efforts before the ICJ could take various forms, such as the sharing of
evidence. Intervention was presented as a separate possibility.
15 Russia’s Observations of 17 October 2022, para. 21; Russia’s Observations of 15 November 2022, para.
24; Russia’s Observations of 16 December 2022, para. 24; Russia’s Observations of 30 January 2023,
para. 23.
16 Declaration of Intervention Under Article 63 of the United Kingdom of Great Britain and Northern
Ireland, paras. 54–55.
17 Declaration of Intervention Under Article 63 of the Federal Republic of Germany, paras. 23–24.
18 See Ukraine’s Memorial, Chapters 3 & 5; Russia’s Preliminary Objections, Chapters III & IV.
19 The Declarants answered Russia’s State-specific arguments in their observations filed with the
Court on 13 February 2023.
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11. Russia is also wrong to suggest that where a declarant agrees with one party’s
construction of the Convention, its intervention must not be “genuine.”20 To the contrary,
where two competing constructions of a treaty are put forward, and a State exercises its Article
63 right to put forward its own construction, it is natural to expect that its construction may
align with that of one party or the other. In light of the requirement that a State exercising its
right to intervene binds itself to “the construction given by the judgment,” it cannot be inferred
that an intervening State lacks sincerity in expressing its interpretation.21 Russia simply
disregards the obvious possibility that numerous Contracting Parties to the Genocide
Convention agree with Ukraine’s construction of that convention, and disagree with Russia’s
construction of it, because they believe Ukraine’s construction is correct.
12. Finally, Russia argues that statements by some of the Declarants “manifestly
contradict” what they said during the proceedings in the Legality of Use of Force cases.22
However, as noted by the United Kingdom, the Legality of Use of Force cases “concern[ed]
whether a use of force was a breach of the Genocide Convention” by constituting an act of
genocide within the meaning of Article II of the Convention, while in the present case, “[t]he
construction of Articles I and IX . . . is not related to whether a use of force, or any other
conduct, constitutes a breach of Article II of the Convention.”23 In any event, if Russia wishes
to argue that the construction of the Convention put forward by certain Declarants should be
20 Russia’s Observations of 17 October 2022, para. 24; Russia’s Observations of 15 November 2022,
para. 28; Russia’s Observations of 16 December 2022, para. 27; Russia’s Observations of 30 January
2023, para. 27.
21 Statute of the Court, art. 63(2).
22 Russia’s Observations of 17 October 2022, para. 25; Russia’s Observations of 15 November 2022,
para. 29; Russia’s Observations of 30 January 2023, para. 29.
23 Declaration of Intervention Under Article 63 of the United Kingdom of Great Britain and Northern
Ireland, para. 43.
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discounted because of a different position they have supposedly taken, Russia is free to make
that argument at a later stage. At present, Russia’s (incorrect) argument that certain
Declarants have contradicted their prior positions regarding the construction of the
Convention does not change the fact that the Declarants have put forward a construction of
the Convention, and that suffices to make their Declarations admissible.
B. The Declarations of Intervention Are Compatible with the Equality of the
Parties and the Sound Administration of Justice.
13. The Russian Federation argues that admitting the interventions would impair
the principle of equality before the Court and be contrary to good administration of justice.24
The Court has already rejected the same arguments as those now made by Russia in its
decision to admit the declaration of intervention submitted by New Zealand under Article 63
in Whaling in the Antarctic. There, the Court held that intervention under Article 63 “cannot
affect the equality of the Parties to the dispute.”25 The Court also rejected an argument that
Australia and New Zealand could be “parties of the same interest” under Article 31(5) of the
Court’s Statute — the same argument now raised by Russia — because an Article 63 intervener
is not a party to the proceedings.26
14. The question as to whether it is consistent with the good administration of
justice for States to intervene concerning the construction of a convention to which they are
party is answered by the Statute of the Court itself, which confers a “right” to such intervention.
An additional, case-specific inquiry into whether such an intervention is contrary to the good
administration of justice, even though the requirements of Article 63 of the Statute of the Court
and Article 82 of the Rules of the Court are satisfied, is not appropriate.
24 Russia’s Observations of 17 October 2022, Section II(B); Russia’s Observations of 15 November 2022,
Section II(B); Russia’s Observations of 16 December 2022, Section II(B); Russia’s Observations of 30
January 2023, Section II(B).
25 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order
of 6 February 2013, I.C.J. Reports 2013, p. 9, para. 18.
26 Ibid., para. 21.
9
15. The Court should reject Russia’s argument to the contrary here. Intervention
does not affect the equality of the parties before the Court, nor does it affect the sound
administration of justice. Rather, as noted by Judge Mbaye in his separate opinion in
Continental Shelf (Libya v. Malta):
[I]ntervention is, above all, a rule deriving from the sound
administration of justice. It is part of the policy of throwing
the maximum light on the circumstances surrounding a case
brought before the Court . . . . It enables the Court to have a
wider range of information pertinent to the problem submitted
to it, to reach its decision in the light of the fullest possible
information . . . .27
16. Russia improperly suggests that judges of the same nationality as the
Declarants may feel “pressure” due to the interventions and public statements such that
“conflicts of interests may also arise.”28 That judges of the Court share the same nationality as
interveners is not a basis for the Court to conclude an intervention is inadmissible, as
confirmed by the Court’s jurisprudence. For example, in Whaling in the Antarctic, the fact
that Judge Keith was a national of the intervening State did not affect the admissibility of the
27 Continental Shelf (Libyan Arab Jamahiriya v. Malta), Application to Intervene, Judgment, I.C.J.
Reports 1984, Separate Opinion of Judge Mbaye, p. 43. While Judge Mbaye was addressing an
application to intervene under Article 62, this particular discussion was on the role of intervention
generally. He goes on to discuss how the administration of justice differs from Articles 62 and 63:
However, it was required by the legislator that the information to be supplied by
the intervening State in this connection must be of a special kind. It must consist
of specifying an interest of a legal nature which is involved in the dispute. This
results from the wording of Article 62 of the Statute which in my view requires, not
for the submission of an intervention, but for it to be admitted, that the State
should demonstrate (subject to verification by the Court) that in the dispute in
progress, there is an ‘interest of a legal nature which may be affected’ . . . . Here
again we find a difference with Article 63, which presumes that the intervening
State possesses an interest.
Ibid.
28 Russia’s Observations of 17 October 2022, para. 48; Russia’s Observations of 15 November 2022,
para. 51; Russia’s Observations of 16 December 2022, para. 47; Russia’s Observations of 30 January
2023, para. 52.
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intervention in that case.29 This is also consistent with the procedure for States to present
their views in advisory proceedings, where judges of the same nationality as States presenting
their views are not considered to have a conflict of interest. Ukraine agrees with the
observation of several of the Declarants that the fact that some judges share the same
nationality as some of the Declarants is not relevant to the equality of the parties.30 Further,
Russia itself states that “[t]he Russian Federation believes that the Judges will uphold their
impartiality and neutrality in accordance with Article 20 of the Statute.”31
17. While Russia argues that admitting all of the interventions would impair the
administration of justice in this case, the significant number of interventions is instead a
reflection of the importance of the Genocide Convention, its erga omnes obligations, and the
potential ramifications of an interpretation of the Convention that would permit it to be
abused without consequence. Given these considerations, it is understandable that so many
Contracting Parties would wish to be heard on the construction of this Convention. Hearing
from all Contracting Parties concerned with this consequential question of construction of the
Genocide Convention advances, rather than undermines, the sound administration of justice.
29 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order
of 6 February 2013, I.C.J. Reports 2013, p.9, para. 21.
30 See, e.g., Written Observations of the French Republic on the Admissibility of its Declaration of
Intervention, paras. 42–45; Spain’s Written Observations on the Admissibility of Its Declaration of
Intervention, para. 20; Written Observations of the United Kingdom of Great Britain and Northern
Ireland on the Admissibility of its Declaration of Intervention Under Article 63, para. 27.
31 Russia’s Observations of 17 October 2022, para. 48; Russia’s Observations of 15 November 2022,
para. 51; Russia’s Observations of 16 December 2022, para. 47; Russia’s Observations of 30 January
2023, para. 52.
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C. The Interventions Are Not Premature.
18. The Russian Federation argues that the Court cannot admit interventions until
it first establishes its jurisdiction and the admissibility of Ukraine’s claims in order to confirm
that construction of a convention is at issue.32 This cannot be the case in situations where the
application and memorial submit to the Court an issue directly implicating the interpretation
of a convention’s provisions — including those argued by at least one party to be relevant to
jurisdiction. Indeed, the Russian Federation has filed preliminary objections in which it
expressly asks this Court to interpret provisions of the Convention in order to conclude that it
lacks jurisdiction.33 The Court’s Statute and Rules underscore the right of parties to a
convention to be heard on the construction of such a convention, and this includes the
construction of any provision that may be relevant to the Court’s jurisdiction. It cannot be the
case, as Russia’s approach entails, that at the preliminary objections phase the Court may
interpret the provisions of a multilateral treaty without States who are parties to that treaty
having an opportunity to exercise their right to be heard.
19. Nothing in the text of the Court’s Statute or Rules precludes intervention under
Article 63 in a case where preliminary objections to jurisdiction are submitted. On the
contrary, Article 63 of the Statue reads:
1. Whenever the construction of a convention to which states
other than those concerned in the case are parties is in question,
the Registrar shall notify all such states forthwith.
2. Every state so notified has the right to intervene in the
proceedings; but if it uses this right, the construction given by
the judgment will be equally binding upon it.
Nothing in the text of the article restricts intervention to certain stages of the proceedings. In
fact, it indicates that the Registrar shall notify the appropriate States “whenever” construction
of a convention is in question. The provision also confirms that the “right” to intervene exists
32 Russia’s Observations of 17 October 2022, paras. 64–65; Russia’s Observations of 15 November 2022,
paras. 67–68; Russia’s Observations of 16 December 2022, paras. 63–64; Russia’s Observations of 30
January 2023, paras. 68–69.
33 See Russia’s Preliminary Objections, para. 163.
12
“whenever” the State is notified, such that exercising this right cannot be premature.
Consistent with Article 63, in the present case, the Court invited “any State that intends to
avail itself of the right of intervention conferred on it by Article 63 [to] file its declaration not
later than Thursday 15 December 2022,” which was during the preliminary phase of
proceedings.34 By filing within the time-frame invited by the Court, the Declarations cannot
be premature.
20. Similarly, nothing in the text of Article 82 of the Rules limits intervention under
Article 63 to any particular phase of proceedings. To the contrary, Article 82(1) provides that
intervention declarations should be filed “as soon as possible” but in any event before “the
opening of oral proceedings.” The text of the Rule contradicts the Russian Federation’s
argument that interventions should be deferred until after the Court has decided on
jurisdiction.
21. Russia’s argument that intervention is not appropriate at the jurisdictional
stage also risks nullifying the right afforded under Article 63.35 The scope of the Court’s
jurisdiction under the Genocide Convention depends on the Court’s interpretation of Article
IX, which raises a question of construction of the Convention.36 Further, in addition to the
need to interpret Article IX, the Russian Federation in its Preliminary Objections urges the
Court “to carry out, at this stage, a proper interpretation of the provisions invoked by Ukraine
34 Letter from the Registrar of the International Court of Justice, dated 31 October 2022.
35 See Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, pp. 125–126, paras. 133–134 (rejecting an interpretation because “a key phrase of this provision
would become devoid of any effect” and would render the phrases “meaningless and no legal
consequences would be drawn from them contrary to the principle that words should be given
appropriate effect whenever possible”); Application of the Interim Accord of 13 September 1995 (The
Former Yugoslav Republic of Macedonia v. Greece), Judgment of 5 December, I.C.J. Reports 2011, p.
673, para. 92 (rejecting an interpretation because it would render a phrase “without legal effect”).
36 See Ukraine’s Written Statement, Chapter 3, Section A.
13
(Articles I and IV of the Convention) to determine the obligations contained therein and the
scope of the Court’s jurisdiction ratione materiae.”37 If the Court were to accept Russia’s
proposal to treat the Declarations as premature and thus inadmissible, and then accept
Russia’s proposal to interpret Articles I and IV of the Genocide Convention at the preliminary
objections stage, the Court will have interpreted provisions of the Convention without the
Contracting Parties having the ability to exercise their right to provide their views on the
construction of the Convention. That is directly contrary to the existence of such a right in
Article 63 of the Statute of the Court. To be clear, Ukraine maintains that Articles I and IV
should be interpreted at the merits stage, and this is an issue on which the parties disagree.38
But as long as Russia insists on the interpretation of a provision of the Convention at the
preliminary objections stage, it cannot properly object to Contracting Parties wishing to
provide their views on the construction of that provision from exercising their right to do so.
22. The Court does not have a “long-standing practice” against admitting
declarations prior to the resolution of preliminary objections, as Russia claims.39 Russia is
incorrect that the Court did not admit El Salvador’s intervention in Military and Paramilitary
Activities because it first needed “to consider the United States’ preliminary objections against
Nicaragua’s” claim.40 Rather, unlike in this case, the Court had ordered a separate phase of
proceedings at the outset of the case and limited the parties’ initial pleadings only to questions
37 Russia’s Preliminary Objections, para. 163.
38 See Ukraine’s Written Statement, Chapter 3, Section B.
39 Russia’s Observations of 17 October 2022, paras. 50–53; Russia’s Observations of 15 November 2022,
paras. 53–56; Russia’s Observations of 16 December 2022, paras. 49–52; Russia’s Observations of 30
January 2023, paras. 54–57.
40 Russia’s Observations of 17 October 2022, para. 50(a); Russia’s Observations of 15 November 2022,
para. 53(a); Russia’s Observations of 16 December 2022, para. 49(a); Russia’s Observations of 30
January 2023, para. 54(a).
14
of jurisdiction and admissibility.41 Thus, when El Salvador submitted an intervention that
largely discussed issues on the merits and did not clearly set forward its interpretation of any
relevant convention provisions, the Court found it was not appropriate to admit such an
intervention at that time.42 Fiji’s Article 62 declaration was deferred in the Nuclear Tests cases
for the same reason – the Court had ordered the parties to file a memorial and countermemorial
limited to questions of jurisdiction and admissibility and Fiji’s declaration focused
on merits issues.43 Similarly, in Nuclear Tests (Request for Examination), the Court received
aides-mémoires from the parties and heard argument on specific jurisdictional questions at
the outset of the case.44 None of the cases cited by Russia involved the filing of preliminary
objections before the decision on intervention was reached. Russia’s reference to three cases
where there was no preliminary objections phase is not relevant to the question of whether
intervention is permitted when preliminary objections are filed.45
41 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Declaration of Intervention, Order of 4 October 1984, I.C.J. Reports 1984, p. 216, para. 1.
42 Ibid., para. 3; see also ibid., Separate Opinion of Judges Ruda, Mosler, Ago, Sir Robert Jennings
and de Lacharrière, p. 219, para. 3:
We have voted with the majority of the Court in deciding that El Salvador’s
declaration of intervention is inadmissible in the present phase of the proceedings,
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.
43 Nuclear Tests (New Zealand v. France), Application to Intervene, Order of 12 July 1973, I.C.J.
Reports 1973, p. 325, para. 3.
44 See Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s
Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, I.C.J. Reports 1995,
pp. 293–296, paras. 15–27.
45 Russia’s Observations of 17 October 2022, para. 51; Russia’s Observations of 15 November 2022, para.
54; Russia’s Observations of 16 December 2022, para. 50; Russia’s Observations of 30 January 2023,
para. 55.
15
23. On the contrary, leading commentators — including those cited by the Russian
Federation — support the view that such interventions are permissible. For example, Hugh
Thirlway disagrees with the precise argument Russia advances:
If for example a case is brought on the basis of the
compromissory clause in a multilateral convention, the
interpretation of that clause may be of interest to all the other
States parties (or at least those of them who have not made a
reservation to the clause). It would therefore seem that there is
no reason why intervention under Article 63 should not be
possible to argue a question of jurisdiction or admissibility, if
that question involves the interpretation of a multilateral
treaty.46
24. Shabtai Rosenne notes this was precisely what was considered in the drafting
of the Rules:
If the dispute over jurisdiction relates to the interpretation of a
multilateral treaty which contains a compromissory clause or
any other provision including another instrument intrinsically
linked to that treaty, it is not self-evident why any other party to
that treaty cannot intervene under Article 63 in any phase of the
proceedings: close examination of the legislative history of that
provision in 1920 and of the initial Rules of Court of 1922
strongly indicates that this was precisely the intention behind
that provision.47
25. Additionally, a leading commentary on the Statute of this Court emphasizes
that intervention at the jurisdictional phase of the case under Article 63 accords with the basic
purpose underlying Article 63: “Article 63 does not differentiate between types of treaty
provisions, or types of treaty. The purpose of Article 63 is to allow parties to a multilateral
46 Hugh Thirlway, THE LAW AND PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE: FIFTY YEARS OF
JURISPRUDENCE, Vol. I (Oxford University Press 2013), p. 1031 (internal citations omitted).
47 ROSENNE’S LAW AND PRACTICE OF THE INTERNATIONAL COURT: 1920–2017, VOLUME III PROCEDURE
(Malcolm N. Shaw QC ed., 5th ed. 2016), p. 1533 (internal citation omitted). See also Jerzy Sztucki,
Intervention Under Article 63 of the ICJ Statute in the Phase of Preliminary Proceedings: The
‘Salvadoran Incident,’ 79 AM. J. INT’L L. 1005, 1017 (1985) (“intervention under Article 63 in the phase
of preliminary objections is fully consistent with—indeed, inherent in—the text of the article”).
16
convention to put their construction of the convention to the Court in proceedings to which
they are not parties.”48
26. Russia also argues that the Declarations “presuppose” or “prejudge” questions
of jurisdiction.49 For the reasons outlined above, the question is not whether the Declarations
address questions of the merits or jurisdiction, but whether they address the construction of
the provisions of the Convention, and they do so. Further, it is Russia’s objection to the
interventions that presupposes that Russia’s interpretation of the Convention is correct. For
example, Russia complains that many of the Declarations refer to what Russia describes as
“the doctrine of abuse of rights,” which in Russia’s view does not “concern the ‘construction’
of the Convention.”50 Ukraine argues, however, that questions of good faith and abuse are
relevant to the proper interpretation of Articles I and IV of the Convention.51 Similarly, Russia
asserts that the Declarations address “the use of force” as a matter that is irrelevant to the
construction of the Genocide Convention, whereas under Ukraine’s interpretation of Article I,
a State may act to prevent and punish genocide only within the limits of international law.52
Russia’s view — that none of these issues concerns the construction of the Genocide
Convention — presupposes that Russia’s interpretation will be adopted and Ukraine’s
48 Alina Miron & Christine Chinkin, Article 63, in THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE:
A COMMENTARY (Zimmerman et al. eds., 3rd ed. 2019), p. 1763 (internal citation omitted).
49 Russia’s Observations of 17 October 2022, Section II(D)–(E); Russia’s Observations of 15 November
2022, Section II(D), (F); Russia’s Observations of 16 December 2022, Section II(D), (F); Russia’s
Observations of 30 January 2023, Section II(D), (F).
50 Russia’s Observations of 17 October 2022, para. 88; Russia’s Observations of 15 November 2022,
para. 109; Russia’s Observations of 16 December 2022, para. 102; Russia’s Observations of 30 January
2023, para. 107.
51 Ukraine’s Memorial, Chapter 3; Ukraine’s Written Statement, Chapter 3, Section C.
52 Russia’s Observations of 17 October 2022, para. 89; Russia’s Observations of 15 November 2022,
para. 110; Russia’s Observations of 16 December 2022, para. 103; Russia’s Observations of 30 January
2023, para 108. See Ukraine’s Memorial, Chapter 3, Section A(3); Ukraine’s Written Statement,
Chapter 3, Section C(3).
17
interpretation rejected. This dispute over construction of the Convention is precisely what the
Declarants have a right to address pursuant to Article 63.
D. The United States’ Declaration Is Admissible.
27. The United States’ maintenance of a reservation to Article IX of the Genocide
Convention has no bearing on its right to intervene under Article 63.53 As noted by the United
States in its Written Observations, Article 63 does not impose requirements of “special
interest,” “reciprocity,” or a “jurisdictional link” in order to intervene.54 The United States’
reservation provides that its specific consent must be obtained before a dispute under the
Convention is brought to the Court, but it does not change the fact that the United States is a
party to the Genocide Convention with an interest in its interpretation by this Court. For
example, there is no question that Article I of the Convention is in force as to the United States,
and the interpretation of Article I is at issue in this case. Article 63 gives the United States a
right to put forward its construction of Article I, provided it agrees — as the United States has
— to be bound by the Court’s construction.
E. The Joint Declaration Is Admissible.
28. Russia’s argument against the admissibility of a joint declaration is also
incorrect.55 As noted by Canada and the Netherlands, nothing in the Court’s Statute or Rules
prevents intervening States from filing a joint declaration of intervention.56 Rather, because
these States have the same view on the construction of the Convention, a joint filing serves
judicial economy. The joint submission of Canada and the Netherlands satisfies Article 63 of
the Statute and Article 82 of the Rules, and is thus admissible.
53 Russia’s Observations of 17 October 2022, Section II(F).
54 Observations on the Admissibility of the U.S. Declaration of Intervention Under Article 63 of the
Statute of the International Court of Justice (dated 13 February 2023), Section III.
55 Russia’s Observations of 30 January 2023, Section II(G).
56 Written Observations of the Governments of Canada and the Kingdom of the Netherlands on the
Admissibility of their Joint Declaration of Intervention, Section D.
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III. Submission
29. For the reasons discussed above and in Ukraine’s initial observations on the
individual declarations of intervention, Ukraine respectfully requests that the Court reject the
objections of the Russian Federation and admit the thirty-two Declarations of Intervention
under Article 63.
19
24 March 2023
Mr. Anton Korynevych
Agent of Ukraine
Ms. Oksana Zolotaryova
Co-Agent of Ukraine
Written Observations of Ukraine on the admissibility of the Declarations of Intervention