A Hot Potato: The ICJ’s Order on the Admissibility of 32 Declarations of Intervention in Ukraine v. Russia

On Friday 9 June 2023, the ICJ uploaded to its website a hotly anticipated order regarding the admissibility of the mass Article 63 interventions in the Ukraine v. Russia Genocide Convention case. This came at the end of a week of dramatic oral hearings in the other ongoing case between the two States regarding Russia’s alleged financing of separatist groups in eastern Ukraine and discriminatory policies in Crimea. In this post, we address some of the key issues arising from the Order.

Summary of the Order

In brief, all 32 interventions from 33 States were admitted based on Article 63 of the ICJ Statute, bar one – the United States (more on that soon). Russia opposed the interventions on seven, somewhat overlapping, grounds. It also made specific objections to the joint declaration of Canada and the Netherlands, and the declaration of the United States.

Reminiscent of arguments often made by respondents as preliminary objections, Russia contended that the declarations of intervention are not “genuine” since the real object of the interventions is the pursuit by the declarant States of a joint case with Ukraine, and that the interventions therefore constituted an abuse of process. However, the Court held that “its task is not to look into the motivation or intention of the declarant State”, also noting that it cannot limit the number of intervening States. Nevertheless, the Court acknowledged that it will be necessary to “organize the proceedings in a manner which ensures the equality of the parties”, and that both parties must be given “a fair opportunity and the necessary time to respond to the observations of the intervening States”. The Court appears to be walking a careful line between balancing the rights of the interveners against the rights of the parties.

Vice-President Gevorgian and Judge Xue draw further attention to this in their individual opinions, with Gevorgian voicing “serious concerns regarding how the tool of intervention is being utilized in the present case, and how it may affect the equality of the Parties in the subsequent proceedings”. He emphasised that the assessment of the admission of declarations warrants a more substantive analysis that includes the potential impact of interventions on the sound administration of justice. Judge Xue considers the declarations to be premature at this stage of the proceedings.

Russia also raised an (expected) objection to the admissibility of the interventions at this stage of proceedings, when the Court’s jurisdiction is in dispute. In response, the Court has now made clear that El Salvador’s experience in the Nicaragua case does not establish, as a general rule, that interventions are inadmissible during the preliminary objections phase. On the contrary, the Court ruled that “a State can intervene at the preliminary objections stage of the proceedings in respect of provisions that have a bearing on the question of the jurisdiction of the Court”. This brings some much-needed clarification to the Court’s Article 63 jurisprudence.

Finally, the Court rejected Russia’s objection to the joint declaration of Canada and the Netherlands, hinting that in fact, the “joint presentation of shared views can advance the good administration of justice”. Future mass interveners may wish to take note.

What Happened to the United States?

The Court held that the US declaration was inadmissible at the preliminary objections phase, due to its reservation to Article IX of the Genocide Convention. Drawing from Article 62 of the Statute, which requires that an intervening state has “an interest of a legal nature which may be affected by the decision in the case”, the Court considered that Article 63 establishes a right of intervention due to a presumed legal interest in the subject matter of a dispute by virtue of being bound by the treaty. Accordingly, the Court held “the legal interest that the United States is presumed to have in the construction of the Genocide Convention… does not exist in respect of Article IX”, while also alluding to the fact that the US reservation would escape a significant consequence provided in Article 63 – that “the construction given by the judgment will be equally binding upon it”. It established, as a general rule, that a State cannot intervene in respect of the construction of a treaty provision that it is not bound by. However, the US may be permitted to intervene at the merits phase – whether they will have to issue a new declaration for that phase is not entirely clear.

The Court’s rejection of the US intervention seems correct, but part of its reasoning is questionable. The Court’s emphasis on a presumed legal interest to intervene under Article 63 is reflected in scholarship. Yet, elevating this theory to an implied condition in Article 63 blurs the boundaries between Articles 62 and 63 – only the former requiring a legal interest. Indeed, the ICJ has recognised that an abstract legal interest in the development of the law does not suffice to intervene under Article 62; however, under the Court’s reasoning this is precisely what suffices for intervention under Article 63. Conversely, the Court’s reliance on the flipside of the right to intervene – the bindingness of the construction – is sound, as the language of Article 63 conditions one on the other, though as Judge Abraham observes it is not entirely clear what such bindingness entails.

Other Points of Interest

The order indicates a high degree of agreement between the judges, with one of the three operative paragraphs being unanimous and the two others with a 14/1 vote (Judge Xue voting against). Moreover, Judges Gevorgian, Abraham and Bhandari appended declarations and Judge Xue issued a dissenting opinion. This echoes the level of agreement seen in the provisional measures stage of the case.

Nevertheless, the mass nature of the intervention also had an impact on the manner in which the Judges felt it to be appropriate to manage the proceedings relating to the admissibility of the declarations. President Donoghue (US nationality) considered it inappropriate to exercise the functions of the presidency in these proceedings as a national of one of the States seeking to intervene (although the Court in its order did not grant the US permission to intervene). This means that ordinarily, according to the Rules of the Court, the Vice-President would exercise these duties. However, Vice-President Gevorgian (Russian nationality) was not able to preside over any phase of the case as a national of one of the parties. Next in line of seniority were Judges Tomka (Slovakian nationality) and Abraham (French nationality), who also both declined on the ground that they are nationals of a State seeking to intervene. The honour of presiding therefore fell to Judge Bennouna (Moroccan nationality), as fifth in line and not a national of any of the 35 States involved. Such “hot potato” presidency has never before occurred, which itself points to the unprecedented nature of the intervention declarations and the Court’s utmost care in dealing with the case amid the ongoing conflict in Ukraine.

The form of the proceedings, and the speed with which the Court has proceeded, are likewise of interest. To begin, the Court proceeded by way of a purely written procedure which is permissible for interlocutory matters, but rare. Also, while the Court’s Order recognises that both parties must be given “the necessary time” to respond to the interventions, in respect of the admissibility question the parties were given very short timelines in which to respond to the declarations – as little as a month in some instances. While the corresponding nature of the declarations arguably made rapid responses feasible, the Court has demonstrated a particular sense of administrative urgency in relation to the interventions. Judge Bhandari observes in his declaration that if States could continue to submit intervention declarations in different stages of the proceedings, this “could place great strain on the Court’s time and resources, not to mention the procedure in a case”. Finally, the Order provides the interveners a month to submit written observations on the pleadings in the case, to which they have not been privy – almost a quarter of the time provided to New Zealand in the Whaling case. With the Court’s composition set to change in February 2024, following triennial elections later this year, are the short time-limits a reflection of the Court’s desire to render its judgment on preliminary objections before the turnover? Time will tell.

Conclusion

This Order brings some much-needed clarity to the Court’s limited Article 63 jurisprudence. It also reveals that the Court is taking this case – and the fact that an unprecedented number of States wish to intervene in it – very seriously. This is illustrated by the concerns voiced by Judges in their individual opinions, whether they focus on equality of the parties, good administration of justice, or the possible strain on the Court’s time and resources. The Court may need to continue to demonstrate its capacity for procedural creativity as the preliminary objections proceedings advance.