Ori Pomson Profile picture
Sep 9 14 tweets 7 min read
#US declaration of intervention in #Ukraine v #Russia, under art 63 of the #ICJ Statute, is now available on the Court's website: icj-cij.org/public/files/c…
Some observations. 🪡 1/14
In its opening remarks, the #US follows the trend of other states by invoking its right of intervention under art 63, but also underlining the erga omnes partes nature of the Genocide Convention obligations. 2/ Image
For its personal touch, US underlines its involvement in developing the Convention and pointing to its past invocation of art VIII regarding Darfur (recourse to UN organs) and its support [yes, I know] for tribunals prosecuting genocide and other crimes. 3/ ImageImage
Wasting no time, the US makes clear at the outset perhaps what will be one of the most controversial aspects of its intervention: its construction of the compromissory clause (art IX). Note that the US entered a reservation regarding that very provision. 4/ Image
The US addresses its reservation in a footnote to a different paragraph (where it confirms its party status to the Convention). The US adopts a very literal interpretation of art 63 and the Wimbledon judgment. 5/ Image
Critics would likely point to art 21(1) #VCLT, in that for the US's intents and purposes, the Genocide Convention to which it is party does not include an art IX as such, but rather as it has modified through its reservation. 6/ Image
Moving on. In declaring the provisions it seeks to give a construction, the US cites arts I, II, Ill, IV, VIII, IX. The US also refers to arts 31-32 of the VCLT as the customary rules of interpretation relevant for its constructions. 7/ Image
The US proceeds in analysing the cited provisions of the Genocide Convention. It recalls the ICJ's jurisprudence on the due diligence obligation to prevent genocide through means permitted by international law and also analyses the meaning of "genocide" under the Convention. 8/ ImageImage
Interestingly, the US seems to concede the discrepancy between its interpretative declaration upon ratification and the ICJ's jurisprudence on destruction "in part" of a protected group, but without conceding its position. 9/
The US then proceeds to make the (straightforward) point, on the basis of a survey of its provisions, that the Genocide Convention does not authorise aggression in the prevention of genocide. 10/ ImageImageImageImage
US then proceeds to make the argument that jurisdiction extends to adjudicating non-violations (albeit not with that heading). It emphasises the broad wording of art IX while also citing statement in travaux by #India representative to support that understanding. 11/ ImageImage
In conclusion, the US declaration makes quite straightforward interpretations of the Convention. Yet (at least for me) the elephant in the room is the US reservation to art IX. 12/
It should be emphasised that the reservation would not seemingly get in the way of the US's constructions of the substantive obligations under the Convention; particularly, its defining genocide and arguing the lack of authorisation to engage in aggression. 13/
Yet, the tricky part will be reconciling the US's constructions relating to jurisdiction for non-violations and its reservations to the compromissory clause. 14/14
And with that, Shabbat Shalom!

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More from @OriPomson

Sep 6
#Germany's declaration of intervention in #Ukraine v #Russia, pursuant to article 63 of the #ICJ Statute, is now available on the Court's website: icj-cij.org/public/files/c…
Some observations. 1/13 🪡
Perhaps the most conspicuous part of Germany's declaration is that it seeks solely to give its construction on article IX of the Genocide Convention (the compromissory clause), unlike 🇱🇻🇱🇹🇳🇿🇬🇧 which offered interpretations for several provisions and relating to the merits. 2/
Now, by reserving "right to submit further arguments as to the scope ratione materiae" if declaration deemed admissible, Germany would presumably address the interpretation of the Convention's substantive provisions. However, this doesn't really feature in present declaration. 3/
Read 13 tweets
Aug 8
Text of the #UK's declaration of intervention in #Ukraine v #Russia, pursuant to article 63 of the #ICJ Statute, now available on the Court's website: icj-cij.org/public/files/c…
Some observations.🪡 1/20 (it's the longest declaration yet...)
As preliminary matter, UK is first intervener to refer to ICJ's recent The Gambia v Myanmar judgment, such as in underlining its erga omnes partes legal interest (though tbf, 🇱🇻 submitted its declaration the day before judgment and 🇱🇹 on the day). 2/
UK summarily addresses issue of capacity to intervene on jurisdictional matters, but is seemingly first intervener to consider different scenarios on how case may procedurally progress: either one-stage-case where it will address both issues of jurisdiction and merits... 3/
Read 21 tweets
Jul 25
A few observations on #Latvia's and #Lithuania's respective declarations of intervention in the #ICJ's #Ukraine v #Russia case, under article 63 of the ICJ Statute and on the basis of them being parties to the Genocide Convention. 1/15🪡
While art 63 of the Statute enshrines the right to intervene, art 82 of the ICJ's Rules stipulates the form and content of a declaration to intervene. Art 83 thus compelled the two states to address important issues of procedure and substance which arise in the case. 2/
While the declarations of the two neighbouring states were submitted just a day apart and are supportive of Ukraine's case, they are quite different in their form, place emphasis on different issues and at times make different arguments (though not really contradictory). 3/
Read 15 tweets
Feb 27
Interesting analysis from Marko Milanovic, but I’m afraid I’m less optimistic than he is regarding #Ukraine’s prospects against #Russia for receiving some kind of (legal) relief at the #ICJ in the form of provisional measures. 1/9
There are essentially three tests which must be met to receive provisional measures: prima facie jurisdiction; plausibility of rights and link between them and measures requested; and risk of irreparable prejudice and urgency (most recently: icj-cij.org/public/files/c…). 2/
As many have pointed out, the #GenocideConvention compromissory clause provides the consent of the parties to the #ICJ’s jurisdiction, the two states no longer having reservations thereto. However, prima facie jurisdiction must also relate to the alleged rights claimed. 3/
Read 9 tweets

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