Russia-Ukraine Dispute and Third-Party Intervention in ICJ: What to Expect?
Dr. Atul Alexander is an Assistant Professor of Law at the West Bengal National University of Juridical Sciences (WBNUJS), Kolkata, and Faculty Advisor of the International Law Student Association-WBNUJS Chapter. He was short-listed as a visiting research scholar at the Stockholm Center for International Law, U.S Naval War College, United States. Dr. Atul Alexander has written widely on International Law, and some of his works were cited by the New York Times and South China Morning Post.
Image by Frank van Beek available here.
Third-party intervention in the International Court of Justice (the “ICJ”) is increasingly gaining significance. Recently, six states, namely Latvia, Lithuania, United Kingdom, New Zealand, US and Germany, filed applications for intervention under Art. 63 of the ICJ Statute concerning the Russia-Ukraine conflict for which the ICJ is yet to reach a conclusion.
The author argues that Third Party intervention through Art. 63 remains unexplored because of the narrow interpretation of the ICJ; hence, the current case (Russia-Ukraine) presents a unique opportunity to shed light on this unexplored aspect.
Third-Party Intervention Under Article 63
Art. 63 of the ICJ Statute lays down the procedure for third-party intervention involving “…construction of a convention to which states other than those concerned in the case are parties in question”. Moreover, the construction will be equally binding upon the intervening states. In addition, Art. 82 Rules of the Court (1978) require the states intervening to file a declaration, which may be under exceptional circumstances at any stage in the case. Intervention ordinarily occurs in the merit phase rather than the jurisdictional phase, meaning the ICJ will only permit third-state intervention if it establishes jurisdiction. According to Rosenne, “the purpose of Art. 63 is not to protect the legal interest which may be affected by the decision in the case, but the interpretation of the treaty in question.” Although the provision provides broad discretion for states to intervene, it has been successfully invoked a mere four times.
Third-Party Intervention Under Article 63: Voices from PCIJ and ICJ
One of the earliest PCIJ cases on third-party intervention is the SS Wimbledon, where the PCIJ accepted the application of Poland. The PCIJ observed that “[t]he suit involved the interpretation of certain clauses of the Treaty of Versailles and the Polish Republic is one of the states which are parties to this treaty.” The first case in the ICJ is the Haya de la Torre, where Cuba made a declaration for intervention under the 1928 Havana Convention on Asylum. Peru argued that the application was time-barred and amounted to an appeal from the previous Asylum case. However, the court considered that the intervention of Cuba was related to the proceedings’ subject matter and hence outside the ambit of its earlier judgment. In the subsequent case of Nicaragua v. United States of America, Nicaragua approached the ICJ, alleging that the United States violated the principles of non-use of force and non-intervention under treaties and customary international law. El Salvador sought to intervene, contending that the ICJ lacked jurisdiction. In its application, it made procedural and substantive claims under Article 36(2) of the ICJ Statute and 51 UN Charter. The ICJ rejected the intervention, as it did not relate to the proceedings’ subject matter, and the substantive question relating to the convention’s interpretation and application was not admitted as ‘‘…it relate[d] to the proceedings’ current phase between Nicaragua and the United States.”
Art. 63 was not construed as an absolute right in the above-mentioned cases, and it squarely depends on the ICJ’s construction. El Salvador’s intervention was to contest the jurisdiction and further, “it explained that the Court couldn’t rule on Nicaragua’s application without considering the legality of any armed actions in which the United States had engaged in and accordingly the rights of the United States and El Salvador to engage in legitimate collective self-defense.” The ICJ considered the application premature because it related to the merits. However, the ICJ’s views are contrary to its travaux préparatoires, as the provision’s wording makes it clear that whenever the construction of the convention is involved, it applies to all the phases of the proceedings.
In the Nuclear Tests (Request for Examination) case, New Zealand filed an application on the proposed action announced by France, which will, if carried out, affect the basis of the Judgment rendered by the ICJ in the Nuclear Tests (New Zealand v. France) case, ie. “France would conduct a final series of eight nuclear weapons tests in the South Pacific starting in September 1995’; several Pacific Island states intervened under Art. 63. The intervention was premised on the 1986 Noumea Convention. The convention pertains to environmental protection in the South Pacific region. The ICJ did not hear the application because New Zealand’s declaration did not fall within the scope of the Judgment in the Nuclear Test Case. Further, in the Whaling case, in the context of New Zealand’s intervention, the ICJ observed that "the fact that intervention under Article 63 of the Statute is of right is not sufficient to confer ipso facto on the declarant state the status of intervener."
Although the ICJ had several opportunities to clarify the scope of Art. 63, it missed the bus because of its narrow interpretation. The Russia-Ukraine conflict is a rare instance of mass intervention, thus providing a unique opportunity for the ICJ to clarify the legal uncertainties.
Third-Party Intervention in Russia-Ukraine
The ICJ receives applications for intervention in advisory opinions, but mass participation in contentious cases is rare. In the case of Russia-Ukraine, the ICJ’s provisional measures pertain to disputes concerning the interpretation, application, and fulfilment of the Genocide Convention 1948. Ukraine contended that the Russian Federation carried out special operations in Luhansk and Donetsk oblasts under the false pretext of prevention and punishment of Genocide. Further, Ukraine argued that no act of Genocide as defined under the Genocide Convention (Article III) is committed in the disputed regions. The ICJ observed that “[t]he Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine.” Subsequently, the European Union (the “EU”) issued a joint statement to support Ukraine. Six states (Latvia, Lithuania, UK, New Zealand, US, and Germany) then filed applications to intervene by invoking specific provisions of the Genocide Convention.
The intervention broadly covers both jurisdiction and merits. According to the declarations, nothing prevents the ICJ from deciding on the jurisdictional issue in the context of third-party intervention. Correspondingly, for constructing the jurisdiction, Latvia relies on Art. 1 and IX of the Genocide Convention regarding the non-violation complaint. Latvia’s contention is for a broad interpretation of Article IX. Latvia states, “[t]he jurisdiction granted to the Court by Article IX includes disputes in which a state alleges that another state has committed genocide.” Additionally, Art. 1 of the Genocide Convention’s interpretation is not to be abused; hence the obligation under Art. 1 of the Genocide Convention requires good faith performance in accordance with the provisions of the Genocide Convention. In the merit aspect, the use of force cannot justify the obligation to punish and prevent genocide. Instead, the obligation to punish and prevent Genocide should operate within the confines of international law. The UK maintains that there is nothing in Art. IX of the Genocide Convention to preclude the jurisdiction of the ICJ, as the term “dispute” has a wide meaning. Also, the broad interpretation of the Genocide Convention is built into the convention. The UK argued that “[t]he scope of conduct that Article I allows or requires is a matter concerning ‘the interpretation, application or fulfillment’ of this provision and is therefore within the scope of the jurisdiction conferred by Article IX of the Convention.” Concerning the merits, the interpretation of Art. II of the Genocide Convention ought to be in terms of genocidal intent and action, properly characterized as dolus specialis. The interpretation of Art. 1 of the Genocide Convention, is to be done with due diligence, based on all the available information. According to Germany, the intervention of the convention is not limited to the jurisdictional phase but all the phases of a given case, as the dispute involves the “fulfillment” of the convention’s obligation.
What to expect?
The ICJ is reluctant to allow states to intervene while the question of jurisdiction and admissibility is pending. It is precisely this that would have dissuaded the Maldives, Canada, and Netherlands from intervening when the preliminary objection was pending in The Gambia v Myanmar. Since Russia has not participated in the proceedings, as Brian Mc Garry argues, “the Court has not bifurcated the proceedings into separate phases on jurisdiction and the merits. This is potentially problematic for the intervention’s prospect if questions of jurisdiction or admissibility remain pending until the Court renders its sole Judgment in the case, then hewing to its practice would effectively foreclose intervention.” One of the ways to overcome this conundrum could be to formulate (Art. 63 Declaration) as exclusively confined to the question of jurisdiction, this can be inferred from the EU’s Joint statement, which reads: “We strongly believe that this is a matter rightfully brought to the ICJ.” This can be alternative means to overcome ICJ’s reasoning for deferring intervention. The present declarations are filed on the question of jurisdiction and merits. Hence it would be interesting to witness the ICJ’s standpoint on this matter. However, nothing in the requirement limits the question to jurisdiction or merits. The preceding cases on Art. 63 don’t clarify this issue much. Nevertheless, the proliferation of multilateral treaties might lead to greater recourse through Art. 63. The Ukraine conflict provides ample prospects for the ICJ to shed light on Art. 63’s scope. However, the intervention of the six states in the jurisdictional phase is akin to the Nicaragua jurisprudence, where intervention under Art. 63 should mean that the ICJ has to possess jurisdiction on which it is yet to decide, but this runs contrary to Art. 82 of the Rules of Court, which applies to all phases.