03 Sep Canada and The Netherlands: New Intervention in The Gambia v Myanmar at the International Court of Justice
Yesterday, the Netherlands and Canada announced that they would be supporting The Gambia formally, in its application before the International Court of Justice. The full statement can be found here.
This does not come as a complete surprise. There have been discussions regarding the role that other states may play for sometime now, and this is a welcome development. The last state to announce that it would formally support the case is the Maldives – but since its announcement, there seems to have been very little indication of progress. Certainly, no official intimation at the ICJ that has been made public.
In this case, of particular significance in the joint Canadian Dutch statement:
“Canada and the Netherlands consider it our obligation to support these efforts which are of concern to all of humanity. As part of this intervention, Canada and the Kingdom of the Netherlands will assist with the complex legal issues that are expected to arise and will pay special attention to crimes related to sexual and gender based violence, including rape.”
The first point to highlight is the indication of the obligation to support efforts, invoking humanity and essentially, the erga omnes nature of the obligations as argued by The Gambia. The second is the reference to sexual and gender based crimes – a glaring omission in the arguments of Myanmar, and a near complete dismissal of the gravity of these allegations, including by the domestic processes within Myanmar, such as the International Commission of Enquiry – problematic for many other reasons as well, apart from this.
So what does this mean per the Statute and rules of the court? Does this impact proceedings? Is there a time limit? And what are the larger implications of this intervention?
The basic provisions that govern this as Articles 62, 63 of the Statute of the ICJ and Articles 81 – 86 of the Rules of the Court.
When Maldives indicated its intent to intervene at the beginning of the year, some of us had a discussion on twitter as to the mode of intervention – whether this would follow the route of Article 62, which I think is preferable, or that of Article 63. While there seems to be disagreement, this has actually not been indicated by Canada, the Netherlands, or indeed, Maldives. The difference essentially is this – under Article 62, the state indicates it has an “interest of a legal nature” in the case and asks the courts permission to intervene. Article 63 – used previously – relates to the construction of the convention to which states “other than those concerned in the case” are parties, the registrar is to notify states which if they intervene, will then be bound by the interpretation.
The latter – Article 63 – would seem to have a lower threshold, but I would argue that given the erga omnesnature of the convention, a state may well argue that the case gives rise to an interest of legal nature – however this is then subject to the court granting it permission to intervene. It is constructive to read Judge Abraham’s statement to the 6th Committee on this very distinction – and the four declarations of intervention under Article 63. Clearly, Article 62 has not been used – and would indeed be breaking new legal ground should it be the preferred route. While it will be the more difficult provision to get permission to intervene, I think it can be argued that these states – as indeed many other states now – “ha[ve] an interest of a legal nature which may be affected by the decision in the case”? (Continental Shelf case, Libyan Arab Jamahiriya/Malta) (quoting Judge Abraham’s statement referenced above). Here, it is not a right but an interest, and which would not have to be definitely affected by the outcome of the case – merely that it could be impacted. Much turns on the phrase “interest of legal nature” – this case revolves around the obligations and interpretation of the Genocide Convention, and in the erga omnes argument may lie the basis to use Article 62. This is an area to be explored further. This may well be the more risky route, given the higher threshold and previous dismissals by the court. Nonetheless, I think this is an option to consider seriously, in terms of strategy.
The other aspect of the interventions relates to time – and the extension of the proceedings before the ICJ – and greater coordination. Invariably, there will be additional hearings and submissions in relation to the intervention – but given the seriousness of the engagement of Canada and the Netherlands, it is hoped that the value of the legal arguments will compensate. More than the legal, this is also a powerful message to Myanmar, to the Rohingya as well as the rest of the international community – that this is not a forgotten issue, and there are still legal avenues and strategies to explore.
Many thanks Priya. It’s unclear to me that the Court, which has long been intervention-averse, would dilute the standard of unique interest that it’s required since the Art 62 case you cite. The locus standi to institute proceedings on the one hand, and the required basis for incidental proceedings on the other, are distinct in concept and practice. The specific motive noted in the Joint Statement similarly suggests that the Rule 81 “object” of intervention would stray quite a bit from the formulation that successful Art 62 applicants have used since El Salvador/Honduras. I also admire Judge Abraham’s views on intervention, specifically the dissent in Nicaragua v Colombia where he advances the interests/rights dichotomy you note. However, we should be careful not to use this to distinguish between the requirements of Arts 62 and 63, as both require an underlying substantive interest. The “right” which Art 63 concerns is procedural, and it’s statutorily conferred (not required). Is there some value which you believe these 2 States stand to gain from requesting non-party Art 62 intervention in this case (rather than declaring Art 63 intervention)? I can see that if intervening under Art 62 as full parties … but of course,… Read more »
There have been successful Article 62 interventions on three occasions, but never, as the post suggests, on the basis of an interest of a legal nature that stems from the erga omnes character of the obligations at issue. To Brian’s question about possible reasons that Article 62 intervention (if granted by the Court) could be preferable to Article 63 intervention, the scope of the intervening state’s participation is potentially broader under Article 62. Article 63 intervention is limited to the intervening state’s position on the construction of the convention in question (i.e., the Genocide Convention in this case), whereas Article 62 intervention might allow the intervening state to weigh in on other aspects of the case (such as, for example, how third-party evidence should be treated). That said, I think Article 63 intervention would provide considerable leeway in the context of this case. Whether Canada or the Netherlands could meet the Article 62 requirement is an interesting question. In a situation where a non-injured state like The Gambia has standing to sue (based on the erga omnes partes character of Myanmar’s obligations under the Genocide Convention), it is not obvious why every other party to the Genocide Convention would not… Read more »
Many thanks Mike for your reply, which was not visible to me until now. I generally agree on the relative scope of the 2 provisions but disagree as to the conclusion re: interests arising erga omnes partes. I submitted a post to OJ yesterday that hopefully will surface here soon, in which I more fully address these questions by applying the research from my forthcoming monograph on ICJ intervention to the CA/NL Joint Declaration. Would love to discuss any points further with you after it’s live.