Critical Analysis of Third-Party Intervention before the International Court of Justice

• Author: Atul Alexander & Shouvik Kumar Guha
• Position: The WB National University of Juridical Sciences
• Pages: 441-463

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2021 e Institute for Migrant Rights Press

CritiCal analysis of third-

Party intErvEntion BEforE thE

intErnational Court of JustiCE

Atul Alexander & Shouvik Kumar Guha

e WB National University of Juridical Sciences

E-mail: atulalexander100@nujs.edu

ird-Party intervention in the International Court of Justice (ICJ) has become

increasingly signicant in contemporary international law. In September 2020,

Canada and the Netherlands issued a joint statement suggesting their intention

to intervene in an ongoing contentious case at the ICJ. is was a case on the

Application of the Convention on the Prevention and Punishment of the Crime

of Genocide (e Gambia v. Myanmar). As reected in their joint statement,

the intervention was to support eorts that concerned all of humanity. e right

of a third party to intervene accrues, if interest is of a legal nature, that may be

aected by the decision of the ICJ (Article 62) or construction of a Convention to

which States other than those concerned parties is in question (Article 63). e

ICJ has strictly interpreted applications by third states. To put it into perspective,

it has merely entertained 20 and 29 percent of applications and declarations

under Article 62 and Article 63, respectively.

In this paper, the authors provide a detailed analysis of the right of

third-party intervention in the ICJ for breaches of erga omnes obligations. e

authors critically analyze the ICJ cases on third-party intervention and argue

that the Court has adopted a strict interpretation of third-party intervention

considering the judicial economy under which it operates. It is also concluded

that where the international community of States shares the rights, i.e., erga

omnes obligations, the ICJ should adopt an expanded interpretation favoring

intervention.

Keywords: ird-Party Intervention-ICJ-Contentious Case-Erga Omnes Obligations.

VIII Indonesian Journal of International & Comparative Law 441-63 (October 2021)

442

Alexander

INTRODUCTION

e ICJ is the principal judicial organ of the United Nations (UN). e

role of the ICJ is to settle disputes between States and render advisory

opinions on the legal questions referred to it by the UN organs and

specialized agencies.1 e ICJ’s jurisdiction follows from the State’s

consent. It thus establishes it as a special agreement, compulsory

jurisdiction, and incidental jurisdiction. It is the ICJ that determines

any question about its jurisdiction.2 One of the incidental procedures

involves the State’s competence to request an intervention before the ICJ

as a third party under Articles 62 and 63 of the ICJ statute and Articles

81-85 of the Court’s 1978 Rules. e procedure for intervention under

Article 62 diers from that of an intervention under Article 63. e

former strictly results from the ‘legal interest,’ which the intervening

State has to prove,3 whereas the latter is triggered when the Court

interprets International Conventions. States that are parties to the

Convention have the right to intervene in the proceedings instituted by

other parties. e judgment thus delivered binds the intervening third

parties.4

To briey trace the history of third-party intervention, it is relevant

to note that the 1907 project of arbitral justice does not mention Article

62 of the ICJ Statute but does Article 63 of the ICJ Statute, which

evolved in the backdrop of international arbitration.5 e evolution of

Article 63 chiey resulted from the dra plans for a new international

court proposal. e advisory committee of jurists, instrumental in

draing the ICJ Statute, introduced Article 62 while discussing what

is now Article 63. One of the major issues remaining unresolved in

1. Jurisdiction, https://www.icj-cij.org/en/jurisdiction.

2. Basis of the Court’s Jurisdiction, https://www.icj-cij.org/en/basis-of-jurisdiction.

3. Beatrice I. Bonafe, Interests of a Legal Nature Justifying Intervention before the

ICJ, 25 L J. I’ L. 739 (2012).

4. C C  A Z, A : T S 

I C  J: A C (2012).

5. Brian McGarry, ird-State Intervention in the Rohingya Genocide Case: How,

When, and Why? (Sep. 11 2020) OpinioJuris. http://opiniojuris.org/2020/09/11/

third-state-intervention-in-the-rohingya-genocide-case-how-when-and-

why-part-i/