On 6 August 2024, the Worldwide Court docket of Justice issued a press launch referring to the pending Ukraine v. Russia case titled “Declarations of intervention beneath Article 63 of the Statute of the Court docket for the needs of the deserves stage of the proceedings”. The Court docket introduced that, of the 32 states which had beforehand intervened in Ukraine v. Russia, six indicated to the Registrar that “they need[ed] to keep up their declarations of intervention with out changes”, an additional eight states submitted “adjusted declarations of intervention”, and 9 states submitted new declarations of intervention. These “adjusted” and new declarations of intervention have additionally been uploaded to the Court docket’s web site.
We’ve got beforehand mentioned on this weblog and extra extensively elsewhere issues pertaining to the interventions in Ukraine v. Russia. Nevertheless, these current developments reply beforehand lingering questions whereas elevating some others.
No Longer Interventions in Limbo?
On 2 February 2024, the ICJ delivered its judgment on preliminary objections. The Court docket partially upheld Russia’s preliminary objections, notably concerning Ukraine’s submissions regarding Russia’s illegal use of drive. Nevertheless, it allowed Ukraine’s submission that “there isn’t a credible proof that Ukraine is liable for committing genocide in violation of the Genocide Conference within the Donetsk and Luhansk oblasts of Ukraine” to proceed to the deserves.
One query which arose following the judgment was whether or not the states which beforehand intervened within the case maintained their intervenor standing. Whereas there may be little indication that the proceedings concerning the admissibility of the interventions had been initially supposed to be confined to the preliminary objections stage, the operative paragraphs of the Court docket’s order solely seem to instantly resolve on admissibility for the needs of preliminary objections. Moreover, maybe the most important trace that they not maintained their intervenor standing was that in its orders within the case following the judgment, the Court docket omitted the phrases “32 States Intervening” from the case title.
The current developments all however affirm this. Because the abovementioned press launch indicated, in an e-mail dated 18 June 2024 to the 32 intervening states (reproduced in full right here), states which had beforehand sought to intervene at each the preliminary objections and deserves phases had been requested to tell the Registrar “whether or not they preserve their declaration”. Such states had been additionally notified that “[i]f deemed crucial, they might regulate … their declarations of intervention in gentle of the Judgment of two February 2024”. Moreover, states which had beforehand solely sought to intervene on the preliminary objections stage had been requested to submit new declarations of intervention, ought to they want to proceed intervening. In any occasion, the 32 states had been knowledgeable that Ukraine and Russia would have a possibility to touch upon the admissibility of the interventions; relying on any objections to admissibility an additional spherical of written observations would observe, pursuant to Article 84(2) of the Guidelines; and in the end the Court docket will resolve on their admissibility.
There appears to be little to forestall the Court docket from bifurcating proceedings on admissibility of declarations of intervention. Certainly, the very bifurcation of proceedings between preliminary objections and deserves phases was launched by the Everlasting Court docket of Worldwide Justice with out foundation within the Statute or Guidelines however is taken into account to have been a legitimate use of inherent powers. Nevertheless, the Court docket’s ambiguity on the problem is maybe regrettable. Certainly, it seems that till June 2024, the intervening states had been left in limbo as to their standing.
Moreover, the Court docket’s introduction of “adjusted declarations” is curious. When preliminary objections are partially upheld (current examples: Immunities and Legal Proceedings; Alleged Violations of Sovereign Rights) the applicant doesn’t get one other chew on the apple. Its memorial stays the identical and proceedings proceed as if elements of the memorial falling exterior the Court docket’s jurisdiction or inadmissible are excised therefrom. Adopting the same method in the direction of declarations of intervention would result in the conclusion that there shouldn’t be a chance of adjustment. Certainly, an excision method was lately adopted by the Court docket concerning the declarations of intervention in The Gambia v. Myanmar. Noting that the declarations of intervention addressed sure points falling exterior the confines of Article 63 of the Statute, the Court docket merely acknowledged that it might “not take into account such points and anticipate[ed] the intervenors to chorus from addressing them any additional”. Conversely, to the extent that the declarations of intervention solely addressed questions of jurisdiction, it’s not apparent why a state needs to be permitted to submit a brand new declaration of intervention regarding the deserves. In such circumstances, if something, such a declaration of intervention is much like observations on preliminary objections (see Article 79bis(3) of the Guidelines) which have little bearing on the deserves.
It does, nonetheless, bear recalling that the Court docket and the intervenors had been in uncharted territory. It was the primary occasion of mass intervention and the primary during which declarations of intervention had been dominated admissible previous to a judgment on preliminary objections. Extra typically, till Ukraine v. Russia, Article 63 had been invoked on only a few events. Maybe the Court docket was signalling to the intervenors to focus their declarations in gentle of the Court docket’s growing jurisprudence on the topic? Placing such explanations apart, the potential of adjusted interventions doesn’t appear conducive to streamlining the method of intervention general.
32 Turns into 23?
The Registrar requested that the beforehand intervening states submit adjusted or new declarations of intervention, or in any other case inform that they had been sustaining their prior declaration, by 2 August 2024. Not-so-coincidentally, 2 August 2024 was the deadline for Russia to submit its counter-memorial. This conforms to the Court docket’s current amendments to Article 82 of its Guidelines, which require submitting a declaration of intervention beneath Article 63 of the Statute “no later than the date mounted for the submitting of the Counter Memorial”. Beforehand, third states had till “the date mounted for the opening of the oral proceedings” to submit their declarations of intervention. 9 states which beforehand intervened had not indicated their want to proceed their participation by that date: Belgium, Croatia, Cyprus, Greece, Eire, Liechtenstein, Malta, Norway and Slovakia.
Apparently, on 30 July 2024, the President of the Court docket prolonged the deadline for the submission of Russia’s counter-memorial to 16 September 2024. Might these remaining 9 – and even different states, corresponding to the US, whose preliminary declaration of intervention was declared “inadmissible in as far as it considerations the preliminary objections stage of the proceedings” – thus nonetheless resolve to intervene based mostly on the brand new deadline for Russia’s submission? As certainly one of us has argued on this weblog, it seems the aim of the related modification was to handle the potential for disruption of the Court docket’s already tight schedule. Prolonging the time obtainable to submit adjusted or new declarations of intervention would seemingly run counter to that. Accordingly, past minimal digressions from submission deadlines, for which the Court docket is commonly tolerant, it appears unlikely the Court docket will settle for an adjusted or new declaration by these or different states.
Nevertheless, it stays to be seen if any of the talked about 9 states would nonetheless be serious about intervening. Within the meantime, the skin observer can solely speculate on the explanations for his or her absence. One possibility might be that the state has nothing additional to say on the deserves, or that their objective of providing political help has already been achieved. A change in authorities in Slovakia, bringing a extra dovish stance in the direction of Russia, would appear a secure wager for that state’s omission.
Substance of the Adjusted and New Declarations
The adjusted and new declarations reveal a number of issues. First, all intervening states once more come out in help of Ukraine. Second, intervening states overwhelmingly concentrate on Articles I and II of the Conference. But, whereas Ukraine is not going to have this chance throughout the deserves part, lots of the intervening states couldn’t resist taking one other chew from the fruit of due diligence. Certainly, fairly numerous declarations proceed to elaborate on the which means of the duty to forestall genocide, emphasising the due diligence normal. Lithuania, for instance, contends in its adjusted declaration that “the duty to behave with due diligence to forestall genocidal acts from occurring entails a due diligence obligation to gather such credible proof earlier than taking any additional motion in fulfilment of Article I. Article I is manifestly breached when a Contracting Social gathering fails to take action” (11). Or Latvia discovering that as a “results of Latvia’s development of Article IX of the Genocide Conference is that the place a State has accused one other State of genocide such {that a} dispute has arisen, the Court docket may have jurisdiction over any declare by the latter State searching for a declaration that the previous State’s accusations are with out authorized and factual basis” (44).
Nevertheless, contemplating the preliminary objections judgment, it’s questionable that the Court docket will entertain this line of argument throughout the deserves stage because it expressly rejected Ukraine’s argument. However, the submissions are comprehensible when thought of as authorized arguments backed by political help; it additionally places on file state interpretations of the Genocide Conference which can turn out to be related in future disputes.
Third, many interventions concern the burden of proof. Choose Tomka elaborated on this in his declaration within the preliminary objections judgment, stating that:
“I take no place presently on the query of how the burden of proof needs to be allotted within the current case regarding the query whether or not Ukraine is liable for committing genocide in violation of the Genocide Conference within the Donetsk and Luhansk oblasts. I might solely level out that it might be helpful for the Events to handle this elementary query because the case proceeds to the deserves.”
Many intervenors addressed this query, arguing that in instances the place the applicant state seeks a declaration that it’s not liable for committing genocide, the burden of proof is on the respondent state to determine any such duty. For instance, Denmark states that:
“it’s for the State Social gathering bringing a case in opposition to one other State Social gathering for a false allegation of genocide used as a foundation to justify preventive motion to offer prima facie proof that its motion didn’t fall beneath the definition of genocide as laid down in Article II. In flip, the respondent State asserting that its allegation was well-founded to justify its preventive motion should present conclusive proof in help since this tried justification entails expenses of remarkable gravity. After adversarial scrutiny, it might then be for the Court docket to judge all of the proof produced by the 2 Events in order to succeed in its personal conclusions.” (23).
Fourth, Poland, New Zealand and Bulgaria explicitly elaborate on the binding character of provisional measures pending a closing choice by the Court docket. They share their interpretation that “discovering the violation of an order indicating provisional measures is unbiased of the conclusion that different worldwide regulation obligations had been violated” (Poland, 55) and that “a failure by a celebration to abide by any order for provisional measures is accordingly a breach of that occasion’s worldwide obligations beneath Article IX of the Conference” (New Zealand, 30). Apparently in addition they share with the Court docket that they perceive the Court docket’s silence on the provisional measures within the preliminary objections to specific that the provisional measures will likely be maintained till the Court docket’s closing judgment within the deserves part.
Neither questions of burden of proof nor the binding character of provisional measures have something to do with the development of the Genocide Conference. As such, the Court docket might must rearticulate its place from The Gambia v. Myanmar that it’ll not take into account such points.
Some Additional Factors of Observe
There has additionally been a brand new twist within the case; along with its Article 63 declaration, Poland can also be requesting permission to intervene beneath Article 62 explicitly invoking the erga omnes standing of obligations beneath the Genocide Conference to determine its “authorized curiosity” within the matter. This improvement is especially noteworthy as a result of it means we might quickly see new jurisprudence on whether or not an erga omnes obligation offers a enough authorized curiosity to justify intervention beneath Article 62 of the ICJ’s statute, which might once more have an effect on that different case, South Africa v. Israel, the place Nicaragua has invoked the same authorized curiosity. Nevertheless, it’s unclear if this can meet the Court docket’s normal, which calls for a authorized curiosity that requires safety – a distinct situation from standing to say a breach of an erga omnes obligation.
We had beforehand famous an overlap in intervention declarations, even going so far as permitting for his or her grouping based mostly on substance. What stands out on this new wave of intervention declarations is that the three new teams (no changes, changes, and new declarations) are fully completely different from the groupings of interventions in our paper. Furthermore, the shape chosen doesn’t essentially appear to replicate the substance of the intervention. Certainly, the overwhelming majority in substance seem like adjusted interventions and never new interventions declarations. Following the Court docket’s pressing request for states to think about the administration of justice, Austria, Czechia, Finland, and Slovenia submitted a brand new joint-declaration. Whereas this can be a commendable effort, it additionally implies that the overwhelming majority of states have determined not to take action and as a substitute submitted particular person new or adjusted declarations though many indicated they’d be ready to take a standard method with different intervening states for the following phases of the proceedings (Canada and the Netherlands had already submitted collectively prior). One can also speculate whether or not coordinating joint declarations would have been extra simple for states had been they given earlier discover concerning the destiny of their intervenor standing and their prior declarations.
Conclusion
In conclusion, the proceedings in Ukraine v. Russia as soon as once more present that it’s essential to attract classes from previous interventions, particularly with this huge variety of intervenors, to enhance future processes. That is notably so contemplating that South Africa v. Israel and The Gambia v. Myanmar are additionally on the Court docket’s docket. One sensible suggestion might be to streamline the intervention course of by requiring states to submit a single, complete doc that addresses all factors of interpretation they want to elevate. This method is additional supported by the Court docket’s stance in The Gambia v. Myanmar order, the place it was clarified that intervenors are restricted to interpretation, however not strictly to the factors of interpretation which are in dispute between the events. By consolidating all interpretative arguments into one submission, even at an early stage, the method would turn out to be extra environment friendly, and would mirror the necessities imposed on candidates when submitting a memorial.
