Third-State Intervention in the Rohingya Genocide Case: How, When, and Why? [Part I]

[Brian McGarry is Assistant Professor of Public International Law at Leiden University.]

On 2 September, Canada and the Netherlands issued a Joint Statement indicating their intention to intervene in the ongoing ICJ proceedings instituted by The Gambia against Myanmar. The Joint Statement is ambiguous in regards to certain details which are key to understanding the intervention’s likelihood of success. While it remains to be seen whether the two States will take further action—the Maldives has yet to file an intervention following its own statement in February—this provides a timely opportunity to address broader institutional questions in this case, and to raise practical considerations for these States.

This post analyzes the requirements to intervene in ICJ cases in light of the specific facts of The Gambia v. Myanmar, while Part II will query the timing and relative value of intervention in this case.

Intervention in ICJ Cases

Article 62 of the ICJ Statute provides that a State may request to intervene in a contentious case if it “consider[s] that it has an interest of a legal nature which may be affected by the decision in the case”. Article 63 appears to confer a more definitive “right to intervene” for multilateral treaty parties, whenever that treaty’s “construction […] is in question”. These two provisions were modelled closely on the corresponding Articles of the PCIJ Statute.

By inviting States to inform the interpretation of treaties to which they are parties, Article 63 is rooted in the consent-based origins of international arbitration. It is thus unsurprising to find clear antecedents for Article 63 in an 1875 Resolution of the Institut de Droit International, the 1899 and 1907 conventions establishing the Permanent Court of Arbitration, and the 1907 draft convention and 1910 draft protocol of the International Prize Court.

Article 62 of the PCIJ Statute, however, was largely an innovation of the 1920 Hague Committee of Jurists—and one produced under the presumption that the Statute would be an instrument of compulsory jurisdiction. Orphaned from this rationale, Article 62 would become what the earliest commentary on World Court intervention envisioned as “un monstre presque indéfinissable” (“an almost indefinable monster”).

Some of this fluidity arises from the overlap between Articles 62 and 63. According to its travaux préparatoires, the Hague Committee foresaw that an interest in treaty interpretation is also an “interest of a legal nature”. This overlap has manifested in practice since the first PCIJ case—where Poland’s Article 63 intervention in S.S. Wimbledon was initially filed under Article 62—and is also evident when interventions are filed under both provisions.

The ICJ has further perplexed intervention by construing Article 62 as itself providing two distinct channels of participation. A State may intervene by meeting the express requirements of Article 62, but if it does so with a jurisdictional link to the parties—encompassing the subject-matter of the case—it can intervene as a full party in its own right.

This latter channel has been formally (and unsuccessfully) attempted only by Honduras in Territorial and Maritime Dispute. Every State which has actually intervened in a case before the Court has therefore done so in the capacity of a non-party to the case—i.e., as a guest making written and oral submissions on a circumscribed set of issues.

Requirements for Intervention in The Gambia v. Myanmar

As the simpler pathway for analyzing the prospects of intervention by Canada and the Netherlands, Article 63 in principle requires only that the Court is tasked with interpreting a convention to which these States are treaty parties. Yet the “right to intervene” in Article 63 does not prevent the Court from dismissing a declaration of intervention as inadmissible. In Nicaragua v. U.S., the Court deferred consideration of El Salvador’s Article 63 intervention without a hearing, and dismissed it upon deciding to apply customary international law (rather than the conventions raised in the application instituting proceedings).

While jurisdiction in that case derived from the parties’ declarations pursuant to the Optional Clause of the ICJ Statute, jurisdiction in The Gambia v. Myanmar rests solely on the compromissory clause in Article IX of the Genocide Convention. Therefore, if the Court asserts jurisdiction in the present case, it necessarily engages the “right to intervene” under Article 63.

Should Canada and the Netherlands instead (or additionally) request to intervene under Article 62, they must persuade the Court that its decision in the case may affect each State’s “interest of a legal nature”. The Court has imbued this vague phrase with some limitations which are relevant to the present case.

Under Article 81(2)(b) of the ICJ Rules of Court, an application to intervene under Article 62 of the Statute must set out “the precise object of the intervention”. In the first instance of a successful Article 62 application, El Salvador/Honduras, Nicaragua’s stated object of intervention was to “inform the Court of the nature of the legal rights of Nicaragua which are in issue in the dispute”. This uniquely held interest is easy to see in disputes of a spatial character, such as in Cameroon v. Nigeria, where Equatorial Guinea successfully proffered a similarly phrased object of intervention. Even in Jurisdictional Immunities (the most recent instance of intervention admitted under Article 62), Greece possessed a unique legal interest in the proceedings, stemming from the central role of its judiciary in the case.

This repeated formulation of the “object of intervention”, and the particularization of the “interest of a legal nature” to the third State’s uniquely held rights and obligations, is no accident. In its first Judgment dismissing an Article 62 application, Libya/Tunisia, the Court rejected Malta’s stated objective to simply “submit its views to the Court on the issues raised in the pending case”.

The Article 62 intervener thus does not serve to inform the Court of legal areas to which it has no unique connection—a task reserved to the Court, as implied by the principle of jura novit curia. Nor does it serve to inform the Court of factual considerations, as the amicus curiae is an actor with no role in the Court’s contentious cases. Indeed, in rejecting Italy’s intervention in Libya/Malta, the Court indicated that its analysis under Article 62 does not consider whether the participation of the third State might be useful “or even necessary” to the Court.

If Canada and the Netherlands formulate an Article 62 application according to the laudable aims of their Joint Statement—to “assist with the complex legal issues that are expected to arise”, and to “pay special attention to crimes related to sexual and gender based violence, including rape”—they would thus ask the Court to step boldly away from the highly particularized expressions of legal interest in its third-party practice.

In finding prima facie jurisdiction in the present case, the Court’s unanimous January 2020 Order on provisional measures followed a longstanding trajectory away from South West Africa’s characterization of actio popularis. Its acceptance of locus standi on the basis of obligations erga omnes partes advances a natural evolution of case developments from Barcelona Traction to Belgium v. Senegal.

It is possible that the Court might characterize the same interest as sufficiently connected to Canada and the Netherlands to admit intervention under Article 62, despite the absence of any parallel liberalization in the Court’s intervention case law.  Judge Cançado Trindade has indeed encouraged intervention to “contribute to the progressive development of international law […] when matters of collective or common interest and collective guarantee are at stake”.

Moreover, in his course at the Hague Academy on the protection of general interests in the international community, Judge Gaja observed that “[w]hatever ‘interest of a legal nature’ is required in Article 62 […], it cannot be higher than the one that justifies bringing a claim before the Court”. He highlighted in this regard a 2005 resolution of the Institut de Droit International produced under his rapporteurship, which advocates that the ICJ “should give a State to which an obligation erga omnes is owed the possibility to participate in proceedings pending” before it.

Yet as Judge Gaja noted, intervention on the basis of obligations erga omnes amounts to a “new form of participation”, implying that no such possibility yet exists before the Court. The standing to institute new proceedings, and the statutory requirements for incidental proceedings, remain juridically distinct concepts with very different practical consequences.

The ICJ’s apparent reluctance towards intervention—it has admitted 20% of Article 62 applications, and roughly 29% of Article 63 declarations—may indeed suggest concerns that the terms of one intervention might ‘open the floodgates’ of mass participation in contentious cases. To admit erga omnes partes intervention under Article 62 by Canada, the Netherlands, the Maldives, or any other party to the Genocide Convention is to envision the loss of judicial economy in disputes with dozens of participating States, a potential loss of cases submitted to the Court by compromis (due to a perceived erosion of party autonomy in this forum), and a potential increase in respondent non-appearance in cases instituted under multilateral treaties.

The other legal interest potentially implied in the Joint Statement arises from the two States’ “obligation to support” the institution of proceedings under the Genocide Convention, “which are of concern to all of humanity”. Placed in historical context, however, it would be manifestly absurd to interpret a 1948 convention as obligating its 152 parties to intervene in an ICJ case—and more so in the absence of interventions in two closely watched cases instituted under the same treaty, Bosnia and Herzegovina v. Serbia and Montenegro and Croatia v. Serbia.

Although the ICJ routinely receives submissions from many States during its advisory proceedings, this kind of mass participation would be alien to the Court’s treatment of its judicial function in contentious cases. Because such proceedings concern live disputes between sovereigns, derive from consensual jurisdiction, and bind the parties with res judicata force, they are conducted with greater respect to principles such as party autonomy, and the free choice of means embodied in Article 33 of the UN Charter.