The Pandora’s Box of Article 63 Interventions in the Ukraine v. Russia Dispute at the ICJ: The Need for Joint Interventions to Strike a Balance

[Mohit Khubchandani is a trainee lawyer working at Gaillard Banifatemi Shelbaya Disputes, Paris. He previously worked at the International Court of Justice, other UN bodies, law firms and with the Indian government. He holds an LL.M. in International Environmental Law from Stanford Law School. All views are strictly personal.]

Introduction: The Opening of the Pandora’ Box

Recently, several nations, particularly from the European Union (“EU”), have filed interventions in the ongoing Ukraine v. Russia case at the International Court of Justice (“ICJ”). This case concerns the application of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”). These states, being parties to the Genocide Convention, find it befitting to provide their views on the application and interpretation of the convention (as third parties to the dispute), as ensuring the correct application of convention is an obligation erga omnes partes (towards everyone – that is, to these states, being parties to the convention). The existence of this obligation, specifically in the context of the Genocide Convention, was reaffirmed recently in July 2022 by the Court (whilst accepting its jurisdiction) in The Gambia v. Myanmar preliminary objections decision (whilst also relying upon the past jurisprudence of the Court at ¶ 107 in the context of the convention). Several countries have also publicly indicated their interest in filing interventions in this case as it proceeds towards its merits.

With this backdrop, the objective of this piece is short, simple, and straightforward – it is to try and enquire the extent to which such a multiplicity of interventions is useful and whether joint interventions are better suited to address the situation (and if they are permissible under the current reading of the ICJ Statute), in particularly a time-sensitive case like Ukraine v. Russia, concerning a precarious war-time situation.

The Background and Language of Article 63 of the ICJ Statute

The Court allows for interventions under Articles 62 and 63 of the Statute. The difference between both the interventions is that, whilst in the former, states have to indicate a “legal interest” in the ongoing dispute, in the latter, they as unaffected third parties to the dispute can question “the construction of a convention” (for the purposes of this piece, I shall only focus on the latter). After a 2005 amendment to the Rules of the Court, in accordance with Rule 43, any “public international organisation” may also question such a construction of a convention (since the EU has been argued as an international organisation with legal personality of its own, it could have, had it been a party to the Genocide Convention, filed an intervention – thus, that is moot.)   

For the unversed, this Article has stood the test of time. The last updated (2018) Handbook of the ICJ (at p. 67) discusses the utility and exercise of this article, right from the Permanent Court of International Justice (“PCIJ”)’s 1923 S.S. Wimbledon’s case to date. For the purposes of this piece, it is not necessary to peruse through the cases decided when this article was exercised – as none have concerned joint interventions. Once again, the purpose of this piece is only to augment the object and purpose of this article, in exceptional situations like the one faced in the Ukraine v. Russia dispute. It is to see whether mutually and diplomatically negotiated joint interventions can be made to the ICJ (the purpose is also not to discuss the suitability of such interventions at a particular phase of a case, i.e., preliminary objections in this dispute, which has come under scrutiny).

For this purpose, let us first consider the phraseology of Article 63. It reads as follows:

Article 63

1. Whenever the construction of a convention to which states other than those concerned in the case are parties is in question, the Registrar shall notify all such states forthwith.

2. Every state so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it. (emphasis added)

When looked at carefully, it can be seen that Article 63(2) is framed in ‘singularity’ – alluding to the fact that joint interventions may perhaps not be possible (but they should/could be – specifically assuming the hypothetical situation wherein the interests expressed by the stakeholders may be the exact same).

However, there does not also seem to be an express understanding that may preclude joint interventions by the concerned states. Negotiation of such interventions may specifically be possible when they belong to a structured union of states like the EU and representing the same regional concern on the construction of a convention.  

Christian Tomuschat et. al., in the commentary to Article 63 the ICJ Statute also remain silent on joint interventions. As a historical backdrop, the general notion of intervention appeared in one of the first projects by the Institut de Droit Internationalin 1875. Later, the Advisory Committee to the PCIJ Statute acknowledged that the proposed article was borrowed from Dutch jurist TMC Asser’s proposal and Article 84 of the 1907 Hague Convention for the Pacific Settlement of International Disputes. Albeit the reality to face is that the PCIJ Statute was adopted in 1920, which was almost entirely adopted again 26 years as the ICJ Statute in 1946 without many amendments. Since then, there have been many developments nationally (as general principles) and internationally, that can make a case for joint interventions. There may thus be a need for a clarification/expansion of Article 63 by the Court.

Municipal & International Jurisprudence/Practice to Make a Case for Joint Interventions

Municipal

Joint interventions can find support from the practice of both common and civil law systems. By way of example, A 2016 piece (discussing UK jurisprudence) by an international law firm, Freshfields Bruckhaus Deringer, titled “To Assist the Court: Third Party Interventions in the Public Interest” outlays the benefits of joint interventions (at p. 30) as follows:

“(a) the expertise and experience of different organisations will be combined into a single submission, reducing the burden of multiple interventions on the court;

(b) bringing together different types of expertise into a single intervention may strengthen its contribution to a case;

(c) working together can reduce the burden on each organisation intervening; and

(d) a joint intervention can carry a particular weight when a broad-based coalition of different organisations support a single submission.”

These are precisely the considerations that should give traction to this proposition and may be transposable in the international context as well.

International

Joint statements by groups (organised – such as the BRICS, QUAD, G4, G7, G20, G77 et. al. or even unorganised) are also not unknown in the international context as well – whether it is at the United Nations General Assembly, or the United Nations Security Council. This is particularly true for regional groups with similar interests such as the EU, CARICOM, or ASEAN. One need not even conduct a generic enquiry into this. More specifically, in the context of Russia’s (purported) violation of the ICJ’s provisional measures decision of 16 March 2022, the recent 24 August 2022 EU Statement – UN Security Council: Briefing on Ukraine is telling. It in its relevant part states as follows:

“We also deplore Russia’s failure to comply with the legally binding order of the International Court of Justice to immediately cease its use of force against Ukraine. And we call upon the Russian Federation to comply with its obligations under international law, including the UN Charter, international humanitarian law and human rights law.” (emphasis added)

The reference to international humanitarian law sufficiently alludes to the EU Member States’ position and construction of the Genocide Convention (even though the EU itself may not be a party to the convention) in the context of this case.

Not only this, the EU has also “furnished the Court with relevant information” to the ICJ under Article 34(2) of the ICJ Statute, read with Rules 69(2) of the Rules of the Court.

Conclusion

The EU Member states are integrated through the framework of the EU. Taking assistance from that platform, at least a few of them could have (or in the future should be able to) file(d) such joint interventions (specifically, in light of the fact that the EU has anyway already furnished information to the Court). In any event, the EU is just an incidental illustration here; other countries too may be interested in filing such joint interventions. This may be a catch-22, as some countries may be of the view that that the Statute currently does not permit joint interventions. However, it seems that the Statute is silent. It may/may not be permissible to file joint interventions. Until the Court may issue a clarification upon this, perhaps a hit and trial attempt of filing such a joint intervention may trigger a much-needed clarity on the subject-matter. More principally, joint interventions should be made possible (if not already possible within the construction of the Statute). It must be underscored, that this has become imperative in the current scenario, as we await a similar flurry of interventions in the upcoming The Gambia v. Myanmar case.

The Ukraine v. Russia dispute is a specific, peculiar and an unfortunate one in time, unlike the previous interventions in the past. The magnanimity of the war also makes every moment even more crucial. I am certain, that the objective of the interventions is to effectively assist the Court, rather than making it a counter-productive exercise of burdening the judges with more pages to read and the Court’s registry for more pleadings to accommodate. Joint interventions (as illustrated above) may significantly assist the Court. I am also certain that more academic enquiry may be required for this proposition but given the nature and limitations of a blog entry, I hope that it at least provides a food for thought. Ultimately, every life lost echoes the notion “justice delayed is justice denied” and neither the parties, nor the Court, as the principal judicial organ of the United Nations would want that eventuality.