Joint written observations of Austria, Czechia and Slovakia on the subject-matter of its intervention

JOINT WRITTEN OBSERVATIONS
BY THE REPUBLIC OF AUSTRIA, THE CZECH REPUBLIC AND
THE SLOVAK REPUBLIC
5 July 2023
To the Registrar, International Court of Justice, the undersigned, being duly authorized by the
Governments of the Republic of Austria ("Austria"), the Czech Republic ("Czechia") and the
Slovak Republic ("Slovakia"):
l. On behalf of the Governments of Austria, Czechia and Slovakia ("the intervening States"),
we have the honour to submit to the International Court of Justice ("the Court") the following
Joint Written Observations in the Case concerning Allegations of Genocide under the
Convention on ihe Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian
Federation) ("the Proceedings") in accordance with the Court's Order of 5 June 2023 on the
admissibility of the declarations of intervention ("the Order"). 1
I. Introduction
2. On 5 June 2023, the Court decided that the declarations of intervention under Article 63 of
the Statute of the Court ("the Statute") submitted by, among others, Austria, Czechia and
Slovakia in the Proceedings were admissible.2 The Court fixed 5 July 2023 as the time limit for
the filing of the Written Observations referred to in Article 86, paragraph 1, of the Rules of
Court ("the Rules").
3. The intervention by Austria, Czechia and Slovakia under Article 63 of the Statute involves
the exercise of a right by a State Party to a convention the construction of which is in question
before the Court. As determined by the Court in its Order, the construction of Article IX and of
other provisions of the Convention on the Prevention and Punishment of the Crime of Genocide
("Genocide Convention" or "Convention") concerning the Court's jurisdiction ratione
materiae is in question at the present stage of the Proceedings. In accordance with the Court's
Order, the Joint Written Observations will solely concern the construction of Article IX and
other provisions of the Genocide Convention that are relevant for the determination of the
Court's jurisdiction ratione materiae in the Proceedings. References to other rules and
principles of international law outside the Genocide Convention in the Joint Written
Observations will only concern the construction of the Genocide Convention's provisions, in
accordance with the customary rule of interpretation reflected in Article 31 of the 1969 Vienna
Convention on the Law of Treaties ("VCL T"). The intervening States will not address other
matters, such as the existence of a dispute between the Parties, the evidence, the facts or the
application of the Genocide Convention in the present case.
1 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Admissibility of the Declarations of Intervention, Order of 5 June 2023.
2 Order, para. 102.
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4. In its Order, the Court considered that there is nothing in the Statute or the Rules preventing
States from filing a joint declaration of intervention.3 In addition, the Registrar noted in his
letter of 6 June 2023 that the joint presentation of shared views can advance the good
administration of justice. 4 Moreover, in his communication of 23 June 2023 , the Registrar
reiterated that he "strongly encourages the intervening States to present joint written and oral
observations to the extent possible."5 Having in mind these concerns, Austria, Czechia and
Slovakia hereby submit their Joint Written Observations.
II. The Construction of Article IX of the Genocide Convention
5. Article IX of the Genocide Convention reads as follows:
"Disputes between the Contracting Parties relating to the interpretation, application or
fulfilment of the present Convention, including those relating to the responsibility of a
State for genocide or for any of the other acts enumerated in article III, shall be submitted
to the International Court of Justice at the request of any of the parties to the dispute."
6. Article IX of the Genocide Convention is a broad jurisdictional clause, allowing the Court to
adjudicate upon disputes between Contracting States relating to all aspects of interpretation,
application or fulfilment of a Party's obligations under the Genocide Convention. In particular,
Article IX vests the Court with the jurisdiction ratione materiae to adjudge and declare (a) the
absence of acts of genocide, i.e. a non-violation of the Genocide Convention, as well as (b) a
violation of the Genocide Convention through false or abusive allegations of genocide that
contradict the letter and spirit of the Convention and are used to justify acts that negate the
object and purpose of the Genocide Convention.
7. "Negative declarations" establishing the non-violation of international obligations are as
much part of the Court's competence as declaratory relief for the violation of obligations. For
instance, in the case concerning Rights of Nationals of the United States of America in Morocco,
the applicant requested the Court to declare that it had acted "in conformity with the treaty
provisions which are ... binding on France and the United States".6 The Court, which has to
verify its jurisdiction proprio motu,7 did not see any jurisdictional issues with France's request
for a negative declaration and went on to consider the merits of the claim. Likewise, in its
Lockerbie judgment, the Court confirmed its jurisdiction over the applicant's request for a
negative declaration establishing that it had not violated the Montreal Convention. 8
8. Consequently, the intervening States conclude from the Court's case law that the Court is
competent to grant declaratory relief concerning the non-violation of international obligations.
3 Order, para. 88.
4 Letters from the Registrar of the International Court of Justice n° 159463, 159481 and 159468, 6 June 2023 .
5 Letters from the Registrar of the International Court of Justice n° 159655, 159636 and 159642, 23 June 2023.
6 Rights of Nationals of the United States of America in Morocco (France v. United States of America),
Judgmentof27 August 1952, I.C.J. Reports 1952, p. 176, atp. 182.
1--Appeal Relating to the Jurisdiction of the !CAO Council (India-v:-Pakistan), Judgment of 18 August 1972,·
I.C.J. Reports 1972, p. 46, at p. 52, para. 13.
8 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident
at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment of27 February
1998, I.C.J. Reports 1998, p. 8, at p. 13, para. 12 and p. 18, at p. 23 , para. 38.
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1. The Rules of Interpretation applied to Article IX of the Convention
9. As a preliminary matter, the construction of Article IX of the Genocide Convention is
governed by the customary international law of treaty interpretation, as reflected in the VCLT.9
The general rule of interpretation, reflected in Article 31 of VCLT, provides that:
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to
be given to the tenns of the treaty in their context and in the light of its object and
purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition
to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in
connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the
conclusion of the treaty and accepted by the other parties as an instrument related to the
treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the
treaty or the application of its provisions;
(b) any subsequent practice in 'the application of the treaty which establishes the
agreement of the parties regarding its interpretation;
( c) any relevant rules of international law applicable in the relations between the parties.
4. [ . .. ]
2. Ordinary Meaning of the Terms of Article IX
10. The point of departure of the general rule of interpretation is an interpretation of the terms
of the treaty by their ordinary meaning. iO
11. According to the plain wording of Article IX of the Genocide Convention, the Court has
jurisdiction over "disputes" that relate to the interpretation, application or fulfilment of the
Convention. This notion of a dispute - "a disagreement on a point of law or fact, a conflict of
legal views or of interests" 1 i - takes centre stage in the construction of Article IX.
12. A dispute exists if the two Parties "hold clearly opposite views concerning the question of
the perfonnance or non-performance of certain international obligations." 12 In this connection,
"the positive opposition ... need not necessarily be stated expressis verbis", 13 or formally
declared, 14 as long as "the respondent was aware, or could not have been unaware, that its views
9 See, e.g., Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Jurisdiction of the Court, Judgment of 18
December 2020, I.C.J. Reports 2020, p. 455, at p. 475, para. 70.
10 E.g. Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment of3 February 1994, I.C.J. Reports 1994, p.
6, at p. 22, para. 41.
11 Mavrommatis Palestine Concessions (Greece v. United Kingdom), Preliminary Objections, Judgment of 30
August 1924, P.C.l.J. Series A, No. 2, at p. 11 .
12 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia),
Preliminary Objections;-Judgment of 17 March-20--1--6;-+-e. J. Reports 2016, p. 3, at p. 26, para. 50.
13 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections,
Judgment of 11 June 1998, I.C.J. Reports 1998, p. 275, at p. 315, para. 89.
14 Alleged Violations of Sovereign Rights and Maritime Space in the Caribbean Sea (Nicaragua v. Colombia),
Preliminary Objections, Judgment of 17 March 2016, I.CJ. Reports 2016, p.3, at p. 32, para. 72.
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were 'positively opposed' by the applicant." 15 Likewise, the Court has emphasized that
a dispute under a specific treaty may exist despite the absence of
"a specific reference to the treaty or to its provisions in public statements by the parties,
provided that those statements refer to the subject-matter of the treaty with sufficient
clarity to enable the State against which a claim is made to identify that there is, or may
be, a dispute with regard to that subject-matter."16 -
13. Moreover, the existence of a dispute must be determined objectively. One Party's unilateral
denial that a dispute has arisen is not determinative of whether or not a dispute for the purposes
of Article IX of the Genocide Convention. 17
14. Evidence of a dispute derives from opposing positions attributable to the relevant States.
The States' positions may not only originate from the highest State organs but could also
emanate from other sources; it suffices that the conduct is attributable to the State and that it
reflects the position of the State. 18 Such conduct also includes statements of organs that enjoy
independence such as domestic courts or quasi-judicial organs. 19
15. Accordingly, acts by independent State entities20 are attributable to the State. Therefore, if
such entities make statements that are opposed to another State's legal position concerning the
interpretation, application or fulfilment of the Genocide Convention, such statements are
relevant to detennine whether a dispute exists.
16. The dispute must in principle exist on the date on which the application is submitted to the
Court.21 However, "[c]onduct subsequent to the application (or the application itself)" can also
be used "to confirm the existence of a dispute [or] to clarify its subject-matter". 22
17. Following this construction of the term "dispute", the ensuing paragraphs construe the
ordinary meaning of the remaining tem1s of Article IX of the Convention.
15 See, e.g., Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment of 5 October 2016,
I.C.J. Reports 2016, p. 833, at p. 850, para. 41 ; concerning the Court's observation that conduct of the Parties
may suffice to establish the existence of a dispute, "especially when there have been no diplomatic exchanges"
between the Parties or in the context of an ongoing armed conflict, see also ibid, paras. 40, 54.
16 Application of the Convention on the Prevention artd Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Judgrnent of22 July 2022, p. 27, para. 72, citing 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(1 ,), p. 85, para. 30
17 See, e.g., Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. United Kingdom) , Preliminary Objections, Judgment of 5 October 2016,
I.CJ. Reports 2016, pp. 849-851, paragraphs 39-43.
18 ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts with commentaries
(2001) p. 41, para. 4.
19 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment of3 February 2012,
I.CJ. Reports 2012, p. 99, at p. 118, para 44. ("The "facts or situations" which have given rise to the dispute
before the Court are constituted by Italian judicial decisions that denied Germany the jurisdictional immunity
which it claimed, and by measures of constraint applied to property belonging to Gennany.")
20 Which include committees established by the State for the investigation for the purpose of criminal
prosecution and deriving their authority from and answering to the Head of State.
21 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. United K-i.ngdom), Preliminary Objections, Judgment of 5 October 2016,
I.CJ. Reports 2016, p. 833, at p. 851, paras. 42-43 .
22 Obligations concerning Negotiations_ rdating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment of 5 October 2016,
I.CJ. Reports 2016, p. 833, atp. 851 , para. 43 .
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18. The ordinary meaning of the phrase "relating to the interpretation, application or fulfilment
of the Convention" may be divided into two parts. The first part "relating to" establishes a link
between the dispute and the Genocide Convention. The subject matter of the dispute thus must
concern the Genocide Convention itself. As for the second part "interpretation, application or
fulfilment", the wording is intentionally broad, "opening the seizing of the Court as largely as
possible".23 In particular, the inclusion of the word "fulfilment", in addition to "interpretation
and application" which are commonplace in compromissory clauses, manifests that the scope
of Article IX must be construed broadly. Where one State Party to the Genocide Convention
accuses another of genocidal acts, the "fulfilment" of the Genocide Convention is clearly at
stake. This also includes situations where the Court is asked to make "negative declarations"
after false or abusive allegations of violations of the Genocide Convention to justify unilateral
acts that negate.the object and purpose of the Genocide Convention.
19. This interpretation is confinned by the fact that the wording of Article IX expressly provides
that the Court has jurisdiction "at the request of any of the parties to the dispute". 24 This
language suggests that a State accused of committing genocide has the same rights to have the
dispute heard by the Court as the State making the accusation. Indeed, there is no reason why a
State facing what it considers to be an unfounded allegation of a breach of the Genocide
Convention cannot, on its own accord, bring the matter before the Court. Such a State may thus
bring a "non-violation" complaint and seek a "negative declaration" from the Court.
20. Moreover, disputes under Article IX "includ[ e] those relating to the responsibility of a State
for genocide or for any of the acts enumerated in article III". The use of the word "include"
si6111ifies that such disputes "are comprised within a broader group of disputes relating to the
interpretation, application or fulfilment of the Convention".25 There is nothing in this clause
that limits the Court's jurisdiction to the determination of the responsibility of a respondent
State, as opposed to the responsibility of an applicant State.
21 . Further, as the Court has noted, this clause "does not exclude any form of State
responsibility". 26 Thus, the Court's jurisdiction under the Convention covers State
responsibility for a..."ly form of conduct, including false or abusive allegations of genocide to
justify unilateral acts that negate the object and purpose of the Convention. In the same vein,
the Court has confirmed that Article IX also pertains to disputes concerning obligations that are
"not expressly imposed by the actual terms of the Convention."27 Accordingly, the subject of
the dispute may concern Article IX itself, as well as the good faith performance of the
Convention read as a whole.28
23 R. Kolb, "The Compromissory Clause of the Convention", in: Paola Gaeta (ed.), The UN Genocide
Convention: A Commentary (OUP), p. 420.
24 Emphasis added.
25 Application of the Convention of the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment of26 February 2007, I.CJ. Reports 2007, p. 114, paragraph
169.
26 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections, Judgment of 11 July 1996, I.C.J. Reports 1996, p. 595, at
p. 616, para. 32.
27 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v.-S'erbia and Montenegro), Judgment of26 February 2007, I.CJ. Reports 2007, p.43 , at-p. 113,
para. 166.
28 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections, Judgment of 11 July 1996, I.C.J. Reports 1996, p. 595, at
p. 616, para. 33 ("[The Court] would moreover observe that it is sufficiently apparent from the very terms of
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22. The ordinary meaning of Article IX thus establishes that the Court has jurisdiction ratione
materiae to adjudge and declare the absence of genocide and the violation of the Genocide
Convention due to a failure to fulfil the Convention in good faith, resulting in an abuse oflaw.
3. Good Faith Interpretation of the Genocide Convention
23. The Court has observed that the principle of good faith, reflected in Article 31 of the VCLT,
"obliges the Parties to apply [ a treaty] in a reasonable way and in such a manner that its purpose
can be realized".29 Put differently, the obligation to interpret in good faith serves as a safeguard
against any misuse of the terms of the treaty. In this sense, the principle of good faith constitutes
the positive side of the prohibition of abuse of rights, so that a bad faith interpretation amounts
to an abusive interpretation.30
24. In light of the above, a State Party fails to interpret, apply or fulfil the Genocide Convention
in good faith if its accusations of genocide, and any ensuing actions with the stated purpose of
preventing and punishing such genocide, are not objectively supported by any factual and legal
foundation. •
25. A dispute as to whether a State Party has disregarded the principle of good faith and has
thereby engaged in an abusive interpretation and application of the Genocide Convention falls
under the punriew of Article IX.
4. Context of the Genocide Convention
26. Pursuant to Article 3 i, paragraph 3 (c) of the VCLT, Article IX of the Genocide Convention
has to be interpreted in the context of "any relevant rules of international law applicable in the
relations between the parties". The Charter of the United Nations ("UN Charter") constitutes
such international law that applies between the Contracting States of the Genocide
Convention.31 The Genocide Convention must thus be interpreted in the context of the Parties'
obligations under the UN Charter.
27. According to Article 1, paragraph 1, of the UN Charter, one of the purposes of the United
Nations is • •
"to bring about by peaceful means, and in confo1mity with the principles of justice and
international law, adjustment or settlement of international disputes or situations which
might lead to a breach of the peace".
28. Article 2, paragraph 3, of the UN Charter sets forth the principle according to which, in
pursuit of the purposes stated in Article 1, the Member States of the United Nations "shall settle
[Yugoslavia's preliminary] objection that the Parties not only differ with respect to the facts of the case, their
imputability and the applicability to them of the provisions of the Genocide Convention, but are moreover in
disagreement with respect to the meaning and legal scope of several of those provisions, including Article IX.")
29 Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment of25 September 1997, I.C.l Reports 1997, p.
7, at p. 79, para. 142.
30 WTO,-United States~Import Prohibition-of Certain Shrimp and Shrimp Products, WT/IJS581-AB/R, Report of
the Appellate Body of 12 October 1998, para. 158.
31 Relevant obligations constitute customary international law as confirmed in Case concerning Military and
Paramilitary Activities in and against Nicaragua, Nicaragua v. United States of America, Judgment of 27 June
1986, para. 290. •
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their international disputes by peaceful means in such a manner that international peace and
security, and justice, are not ~ndangered''. This principle is further specified in Article 33 of the
UN Charter, ·which provides that •
"parties to any dispute, the continuance of which is likely to endanger the maintenance
of international peace and security, shall, first of all, seek a solution by negotiation,
enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional
agencies or anangements, or other peaceful means of their own choice."
29. Article IX of the Genocide Convention reflects and specifies the principle of peaceful
settlement of disputes, enshrined m the UN Charter, for the purposes of the Genocide
Convention.
30. The Court has held that the obligation to seek the peaceful settlement of disputes must be
implemented in good faith in accordance with Article 2, paragraph 2, of the UN Charter.32 The
principle of peaceful dispute settlement is "complementary to the . . . principle prohibiting
recourse -to the threat or use of force in international relations or the principle of nonintervention".
33
31 . The principle that international disputes shall be settled peacefuily is binding upon all
Member States of the United Nations. Consequently, a contextual interpretation confinns that
Article IX of the Genocide Convention vests the Court with the jurisdiction to determine
whether a Party violated the Genocide Convention by failing to interpret, apply or fulfil the
Convention in accordance with its obligations under the UN Charter.
32. In addition, the context of the phrase "relating to the interpretation, application or fulfilment
of the Convention, including those relating to the responsibility of a State for genocide or for
any of the other acts enumerated in article III" reinforces this reading. In particular, the unusual
feature of the word "including" in the intertnediate sentence of Article IX indicates an allencompassing
nature of Article IX. The provision expressly indicates that disputes "relating to
the responsibility of a State for genocide or for any of the other acts enumerated in article III"
are "included" in the wider phrase of disputes "relating to the interpretation, application and
fulfilment" of the Genocide Convention and they may thus be refened to the Court. There is
nothing in this text which limits the Court's jurisdiction to the determination of the
re~ponsibility of a respondent State, as opposed to the responsibility of an applicant State.
5. Object and Purpose of the Genocide .Convention
33. Article 31 of the VCLT requires a treaty to be interpreted in the light of its object and
purpose, which may be reflected in its preamble. 34 The preamble of the Genocide Convention
indicates the object and purpose to further "the spirit and aims of the United Nations". This
object and purpose entails that in their efforts to interpret, apply and fulfil the Convention,
Contracting States may not act in a manner that contradicts the spirit and aims of the UN
32 Case Concerning the Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court,
Judgment of 21 June 2000, at p. 25, para. 53 .
33 Case concerning Military and Paramilita,y Activities in and against Nicaragua-;-Nicaragua-v:-United States of
America, Judgment of27 June 1986, para. 290.
34 E.g. Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 2.00
Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17
March 2016, I.CJ. Reports 2016, p. 100, at p. 118, para. 39.
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Charter. In the sani.e vein, the Court has already affirmed that "it is clear that every State may
only act within the limits permitted by international law".35
34. The Court has emphasized in its 1951 Advisory Opinion that:
"The objects of such a convention must also be considered. The Convention was
manifestly adopted for a purely humanitarian and civilizing purpose. It is indeed
difficult to imagine a convention that might have this dual character to a greater degree,
since its object on the one hand is to safeguard the very existence of certain human
groups and on the other to confinn and endorse the most elementary principles of
morality. In such a convention the contracting States do not have any interests of their
own; they merely have, one and all, a common interest, namely, the accomplishment of
those high purposes which are the raison d'etre of the convention. Conseguently, in a
convention of this type one cannot speak of individual advantages or disadvantages to
States, or of the maintenance of a perfect contractual balance between rights and duties.
The high ideals which inspired the Convention provide, by virtue of the common _will
of the parties, the foundation and measure of all its provisions."36
35. Since Article IX of the Convention provides a mandatory dispute settlement procedure -
which aligns with the spirit and aims of the UN Charter - it corroborates the object and purpose
of the Convention to ensure the peaceful settlement of disputes concerning the Genocide
Convention. In this connection, this Court held:
"The Court thus finds that it has jurisdiction in this case to give effect to the Genocide
Convention .. . This finding is, moreover, in accordance with the object and purpose of
the Convention as defined by the Court in [its Advisory Opinion ofJ 1951. "37
36. It follows that denying a Party its right to dispute settlement under Article IX of the
Convention would run counter to the object and purpose of the Convention, in particular since
the State would have no other judicial instrument avaiiable to protect itself against any false or
abusive allegation of genocide. The result would be to deny legal recourse to Contracting States
that wish to be exonerated for allegations of violations of the Genocide Convention fabricated
by another Contracting State. Such interpretation of Article IX could lead to serious abuses of
the Genocide Convention.
37. Further, the Court recently held that
"[ c ]ertain acts may fall within the ambit of more than one instrument and a dispute
relating to those acts may relate to the "interpretation or application" of more than one
treaty or other instrument. "38
38. In other words, the fact that a Party's claims may simultaneously relate to other legal or
political questions in addition to the "interpretation, application or fulfilment" of the Genocide
Convention does in no way abrogate Article IX. Even if the larger dispute gives rise to questions
35 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, I.C.J. Reports 2007, p.43, at p. 221 ,
para. 430.
36 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion of 28 May 1951 , I.CJ. Reports 1951 , page 23.
37 Application of the Convention on the Prevention and Ainishment of th e-Erime-ofGenocide, Prelimznary
Objections, Preliminary Objections, 1. C. J. Reports 1996, p. 595, para. 34.
38 Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of
Iran v. United States of America), Preliminary Objections, Judgment of3 February 2021 , I.CJ. Reports 2021 , p.
9, at p. 27, para. 56.
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under the UN Charter or customary international law in parallel to questions under the
Genocide Convention, the Court "cannot infer the subject-matter of a dispute from the political
context" but must "bas[ e] itself on what the applicant has requested of it"39 under the Genocide
Convention.
39. A State cannot escape its obligations under the Genocide Convention by picking and
choosing whether it applies the definitions and obligations under the Convention or customary
international law in a given situation. Rather, obiigations under a treaty take precedence over
customary international law in accordance with the interpretive maxim of !ex specialis.40 If the
reverse was the case - i.e. if respondent States could vitiate the application of a treaty's
compromissory clause by claiming that the UN Charter or customary international law
simultaneously apply to the conduct in question - the inclusion of compromissory clauses
would be devoid of any practical value for the peaceful settlement of treaty disputes. In turn,
this would negate the object and purpose of the Genocide Convention, which encompasses the
peaceful dispute settlement as enshrined in Article IX.
40. In conclusion, the object and purpose of the Convention -strongly militates in favour of an
interpretation of Article IX according to which disputes relating to the interpretation,
application or fulfilment include disputes about false or abusive allegations of genocide
contradicting the letter and spirit of the Convention.
III. Conclusion
41. For the reasons given in these Joint Written Observations, the intervening States submit
that the proper construction of Article IX of the Genocide Convention vests the Court with the
jurisdiction to adjudge and declare (a) an applicant State's non-violation of the Convention
and (b) a violation of the Convention due to the failure to interpret, apply or fulfil the
Convention in good faith.
39 Ibid, para. 59-:-
40 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Judgment of27 June 1986, I.CJ. Reports 1986, p. 14, at p. 137, para. 274 ("In general, treaty rules being !ex
specialis, it would not be appropriate that a State should bring a claim based on a customary-law rule if it has by
treaty already provided means for settlement of a such a claim.")
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For the Republic of Austria
Ambassador Konrad Buhler, Co-Agent
For the Czech Republic
Director Emil Ruffer, Agent
For the Slovak Republic
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