The ICJ Changes the Rules for Intervention

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On 28 February 2024, the International Court of Justice announced some changes to its Rules of Court. These amendments – to Articles 81, 82, and 86 – may have a profound impact on the future of the recent phenomenon of mass intervention. This post offers a summary of the changes and reflects on some of the potential results.

Context

Readers will not have failed to notice the emergence of a trend towards third party States intervening in contentious cases. A record-breaking 32 States intervened pursuant to Article 63 of the Court’s Statute in Ukraine v. Russia and 7 States in The Gambia v. Myanmar, while Nicaragua has applied for permission to intervene pursuant to Article 62 in South Africa v. Israel (and there are rumours of more to come). The Court’s Rules Committee has apparently decided that the time is nigh to reign in this trend, at least a little bit. While so far we have witnessed only one set of oral proceedings (the preliminary objections phase of Ukraine v. Russia) it seems that when it comes to hearing essentially the same submission dozens of times across ten- or fifteen-minute increments, once was enough.

What Has Changed

Beginning with Article 81, the new text reads:

  1. An application for permission to intervene under the terms of Article 62 of the Statute, signed in the manner provided for in Article 38, paragraph 3, of these Rules, shall be filed as soon as possible, and not later than the date fixed for the filing of the Counter-Memorial.

  2. If the Court has authorized further written pleadings either under Article 45, paragraph 2, or under Article 46, paragraph 2, or if a counter-claim has been made in accordance with Article 80, paragraph 2, of these Rules, an application for permission to intervene shall be filed as soon as possible, and not later than the date fixed for the filing of the last written pleading.

  3. If and to the extent that an application for permission to intervene concerns preliminary objections, it shall be filed as soon as possible, and not later than the date fixed for the filing of the written statement of observations and submissions on the preliminary objections.

The first thing to note is the change in the time-limit. Article 62 interventions were previously due by the ‘closure of the written proceedings’. This change is in keeping with the Court’s general attempts to limit the written phase to a single round. It also removes uncertainty regarding the meaning of ‘closure of the written proceedings’. In order to retain flexibility, however, the Court has allowed for adjustments to this presumed timetable in paragraph 2.

Paragraph 3 is also new, however, I will come back to that below as it reflects practical issues which arose out of the Article 63 interventions in Ukraine v. Russia. Paragraphs 4-6 are unchanged from the previous iteration of the Rules.

Article 82 reflects the new regime for Article 63 interventions. It reads:

  1. A State which desires to avail itself of the right of intervention conferred upon it by Article 63 of the Statute shall file a declaration to that effect, signed in the manner provided for in Article 38, paragraph 3, of these Rules. Such a declaration shall be filed as soon as possible, and no later than the date fixed for the filing of the Counter-Memorial.

  2. If the Court has authorized further written pleadings either under Article 45, paragraph 2, or under Article 46, paragraph 2, or if a counter-claim has been made in accordance with Article 80, paragraph 2, of these Rules, a declaration of intervention shall be filed as soon as possible, and not later than the date fixed for the filing of the last written pleading.

  3. If and to the extent that a declaration of intervention concerns preliminary objections, it shall be filed as soon as possible, and not later than the date fixed for the filing of the written statement of observations and submissions on the preliminary objections.

Again, we have a change to the time limit, but this time it is a very significant change. Article 63 interventions must now be filed before the deadline for the Counter-Memorial (making it the same as for Article 62 intervention, above). It used to be ‘the date fixed for the opening of the oral proceedings’. Yes, you read that correctly. A State previously could have submitted a declaration of intervention the day before oral proceedings were to be commenced and as a result of the wording of Article 63, would have had the right to appear and make submissions before the Court. The potential for this to significantly disrupt the Court’s already very tight schedule is obvious.

This amendment reflects the change in usage of Article 63 that we’ve seen in recent years. The previous timeline (which was implemented in 1978) was appropriate where such interventions were intended to be relatively brief commentaries on a point of treaty interpretation. Today, Article 63 interventions are being used as a form of ‘co-operative condemnation’ – lengthy submissions in favour of one party to the case.

Then we have a special rule about preliminary objections in paragraph 3. This formally and forever puts to to bed any debate about whether it is permissible to intervene at the preliminary objections phase (a question that was resolved in the Ukraine proceedings) and makes it clear when such interventions need to be filed. In Ukraine v. Russia, the Court was forced to set an ad hoc time limit for the filing of declarations of intervention due to the unprecedented number involved. 

Paragraphs 2 and 3 likewise reflect the new procedure for Article 62. Thus the two forms of intervention are becoming less and less distinguishable, except for the ‘legal interest‘ test required by Article 62. Paragraphs 4-6 are unchanged from the previous iteration of the Rules.

Finally, Article 86. The new text reads:

  1. If an intervention under Article 63 of the Statute is admitted, the intervening State shall be furnished with copies of the pleadings and documents annexed, and shall be entitled, within a time-limit to be fixed by the Court, or by the President if the Court is not sitting, to submit its written observations on the subject-matter of the intervention.

  2. These observations shall be communicated to the Parties and to any other State admitted to intervene. The intervening State may also submit its observations with respect to the subject-matter of the intervention in the course of the oral proceedings, unless the Court decides otherwise.

This new text is a small but mighty change. Article 86 was formerly written in mandatory terms: ‘[t]he intervening State shall be entitled, in the course of the oral proceedings, to submit its observations … to the Court’. Now the intervening State may appear during the oral phase and the Court has the power to prevent them from doing so (presumably where the Court feels it has enough material on the papers). This is clearly a change intended to save the Court from another iteration of Ukraine v. Russia.

The End of Mass Intervention?

It is the changes to Article 86 that will have the most significant impact on mass intervention going forward. On the one hand, such a change is eminently sensible. It restores the Court’s position as master of its own procedure. It allows for flexibility to account for the different circumstances of different cases. The changes also reflect the Court’s evolutionary rule-making power; the Rules are intended to be adjusted as the Court learns from experience.

But do these new Rules, rather than making it easier, in fact sound the death-knell for mass intervention? It is possible. The rationale for States rallying behind a cause is political rather than strictly legal. And part of the strength of that political act lies in standing visibly shoulder-to-shoulder during the oral proceedings. The Court’s oral proceedings are a performance that serves to generate important symbolic capital for use both domestically and internationally. If intervening States are denied the right to appear on the stage, and thus denied the political advantages that arise from it, they may decide that the cost of being bound to the Court’s interpretation of the underlying treaty outweighs the benefit of intervention.

Procedural changes, while on the surface technical or simply practical, can embed particular value choices or have flow-on effects that are not always clear. Even the seemingly mundane amendment of a handful of Rules should be seen as an opportunity for ongoing discourse about the functions and limits of the Court.

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