Introduction
On 5th April 2024, Colombia chose to intervene in the case of South Africa v. Israel and aid in the interpretation of the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 (“Genocide Convention”), filed a Declaration of Interference before the International Court of Justice (“ICJ” or “the Court”) under Article 63 of the Statute of the International Court of Justice (“the Statute”). Colombia’s decision to intervene may seem odd as they prima facie do not have a causal link to the dispute. This, therefore, begs an important question – did the country have a communitarian goal, or did it simply have a vested interest in the case?
Communitarianism promotes a world order wherein the actions of each State shape international relations and global governance. According to this approach, the international legal regime is formed and built upon the integration of all States. Article 1(3) of the United Nations Charter embodies the communitarian approach by stating that the purpose of the United Nations is “international cooperation in solving international problems of an economic, social, cultural, or humanitarian, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.”
Political realism is the antithesis of communitarianism. Accordingly, States employ a self-centric approach in their international relations. While they do contribute to global commons, their actions are motivated by vested interests.
This article leads a discussion on whether Article 63 of the Statute is grounded in communitarian ideals or political realism. It makes reference to past instances of intervention under Article 63 and the pattern of interest displayed by States that sought to intervene. In doing so, the article seeks to understand the rationale behind third-party intervention, and whether or not it does serve a communitarian goal to begin with.
Intervention by Third Parties
Both Articles 62 and 63 provide an avenue for States to intervene in proceedings before the Court. States have the option to intervene under Article 62 if it “has an interest of a legal nature which may be affected by the decision in the case. These interventions are rarer than Article 63; only three have succeeded before the Court.
Article 63 of the Statute of the ICJ allows third parties to intervene in proceedings when “…construction of a convention to which states other than those concerned in the case are parties in question”. It also stipulates that such a construction will be binding upon the intervening party should the Court accept the application to intervene. Article 63 is principally a tool that facilitates treaty interpretation in any dispute rather than giving rise to new claims. The provision in its entirety has been successfully invoked only four times. These instances have been detailed in the next section of the article.
Article 62, on a prima facie reading, is based on the philosophy of political realism. However, the same cannot be said with certainty about Article 63. It can be argued that intervention to aid in interpreting a Convention that ultimately binds States is in itself a vested interest; but have States pursued intervention with a communitarian goal and no self-interest -the authors pose two questions to further this discussion. First, do the travaux perparatoires of Article 63 support this premise? Second, what has been the pattern of reason for the States intervening under Article 63?
An Analysis of Article 63
Travaux Preparatoires
Very little jurisprudence surrounds Article 63 of the Statute. The concept of intervening in cases that involve the interpretation of multilateral treaties originated in the 1899 and 1907 Hague Regulations and Conventions for the Pacific Settlement of International Disputes. According to Kolb, Articles 62 and 63, as they stand today, have been substantially borrowed from Articles 62 and 63 of the Statute of the Permanent Court of International Justice (“PCIJ”). The latter provisions were drafted against the backdrop of arbitration proceedings, as the PCIJ acted in addition to the Permanent Court of Arbitration (“PCA”). Their inclusion in the Statute seems inconsistent because arbitration proceedings principally bind only the parties to the dispute. Therefore, procedural requirements for third-party intervention are more aptly suited to these provisions. However, since the ICJ functions as the judicial organ of the world community, third-party States are bound by its decisions de facto and should be allowed to intervene irrespective.
Let us observe the black letters of the provision – intervention under Article 63 automatically enlarges the scope of the dispute by making the intervening State a party to the dispute to the extent that any judgement rendered would be binding upon it. However, Article 62 is silent on such consequences. Furthermore, as we understand from the travaux preparatoires of the Statute, interventions by States are a right under Article 63. Therefore, the Court should ideally exercise no discretion to allow intervention if the criteria under the Article are met (unlike Article 62, where the Court can exercise its discretion to allow intervention).
The above discussion on the travaux preparatoires of Article 63 leads us to conclude that it is inconsequentially grounded in political realism. A State would only intervene under Article 63, knowing well that the construction rendered by the ICJ would be binding upon them if they had a vested interest in the proceedings.
There is proof, however, of the communitarian grounding of Article 63. The Advisory Committee to the PCIJ Statute noted that Article 63 acted as a mechanism aiding in the ‘general interpretation’ of multilateral treatise to be ‘obtained which harmonises with the character of the Convention’ to establish a consistent body of jurisprudence. With convergent ideas emanating from the travaux preparatoires, we turn to the pattern seen in State practice in invoking Article 63.
History of Intervention
Due to the ambiguous jurisprudence of Article 63, the ICJ has relied upon a reactionary mechanism to clarify the legal basis of the provision. Consequently, questions regarding the reason and intent for why interventions in the Court were required in the first place come up. More importantly, what incentivises a third party to intervene, especially if they choose to do so under Article 63? Can an intervening third party have a vested interest in the dispute in question, and can intervention act as a means to secure that interest?
Interventions under Article 63 in the ICJ began with the Haya de la Torre Case (Pg 8-9), where the ICJ first laid down boundaries concerning third-party intervention. It allowed the declaration of intervention filed by Cuba as it related to the interpretation of the 1928 Havana Convention. Cuba had a vested interest in the dispute as it was granting diplomatic asylum to members of the APRA Party, of which Haya de la Torre was a leader.
The second case of intervention before the ICJ was the Nicaragua case, where Nicaragua alleged violations of the principles of non-intervention and non-use of force under treaties and customary obligations by the USA. El Salvador sought to intervene in the matter to contend the jurisdiction of the ICJ. By Order dated October 4, 1984, the ICJ rejected El Salvador’s application (Pg 4-5) as it did not relate to any interpretation of the Convention or treaty. Here again, El Salvador sought to dispute the ICJ’s jurisdiction due to Nicaragua’s acts of facilitating arms flow to El Salvadorian insurgents and opposition.
In the Nuclear Tests (Request for Examination) case (Pg 6), New Zealand raised concerns about France’s proposed nuclear tests, which could impact the previous ICJ judgement in Nuclear Tests (New Zealand v. France). Several Pacific Island nations intervened under Article 63, based on the 1986 Noumea Convention. However, the ICJ chose against entertaining the applications because it fell outside the scope of the previous Nuclear Test Case judgement. Vested interest, in this case, is fairly apparent – the repercussion of a nuclear test conducted in the Pacific would devastate small island nations. Considering their technological backwardness and struggling economy, these nations would not be able to keep up with such disastrous consequences.
In the Whaling case (Pg 10), the ICJ noted that having the right to intervene under Article 63 does not automatically grant the declaring state the status of an intervener, allowing intervention by New Zealand. The Court allowed New Zealand’s application to intervene as it fell within the qualifications of Article 63 – limiting it to submit constructions on the interpretation of the International Convention for the Regulation of Whaling. The reason for New Zealand’s intervention can be viewed through a two-fold lens – on the one hand, New Zealand is committed to marine conservation and protection, and on the other hand, the Antarctic region is strategically important to New Zealand due to the Ross Dependency.
Finally, in the Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), thirty-two intervention applications saw unilateral, united interest in supporting Ukraine. For the first time, it seemed that intervention under Article 63 had humanitarian motives. However, no one can ignore the facade of deep-rooted political motives. The overlapping nature of the submissions in all these declarations – including the common interpretations of the Genocide Convention that each State offered in their applications – all point towards a joint effort to askew the proceedings’ merits and leverage the global political order by portraying the Russian Federation as a perpetrator of genocide. It is unclear whether the intervening States saw it in their collective interest to join hands as a “common counsel for Ukraine” or rather in the simple interest of the Ukrainian people.
Self evidently, the authors cannot point to a vested interest for Colombia to intervene in the dispute. The authors, therefore, believe that Colombia is guided by a strong communitarian goal to end the humanitarian catastrophe in Gaza. It remains to be seen, however, the way these considerations of communitarianism and sovereign interests are dealt with – keeping in mind that twelve nations have expressed interest in joining Colombia by intervening in the South Africa v. Israel case.
Conclusion
In conclusion, the discussion on intervention before the International Court of Justice presents a nuanced examination of competing ideologies within the realm of international law. The analysis of Article 63 reveals a complex interplay between these ideologies. The travaux préparatoires of the Statute suggest that while the provision ostensibly grants States a right to intervene, the binding nature of the Court’s decisions on interveners may create a vested interest in the outcome of the proceedings. Historically speaking, it is evident that interventions are not strictly founded on humanitarian grounds. Instead, they are driven by a combination of humanitarian concerns, geopolitical considerations, and strategic alliances. Ultimately, while Article 63 may reflect communitarian ideals in international law, its practical application cannot help but seep into the realm of political realism. As States navigate international law and turbulent geopolitical interactions, the need for a nuanced understanding of States’ motivations and the intricate dynamics shaping international legal norms cannot be overstated.
Calvert Nazareth and Akshith Sainarayan are undergraduate law students at the School of Law, Christ (Deemed to be University).
Picture Credit: Remko De Waal/Agence France-Presse — Getty Images
Jindal Forum for International and Economic Laws 