Micheál Martin (Cork South Central, Fianna Fail)
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As noted by the Deputy in his question, in its Order of 5 June 2023 in the case Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) the International Court of Justice commented on the right of intervention by states at the different stages of Court proceedings. Specifically, the Court explained that states may intervene ‘at the preliminary objections stage of the proceedings in respect of provisions that have a bearing on the question of the jurisdiction of the Court.’

These comments clarify that intervention by states need not be limited to the merits stage of a case, but could also be concerned with questions of jurisdiction and admissibility which are dealt with in the preliminary objections stage. In the Ukraine v. Russia case, the declarations of intervention made by Ireland and thirty-two other states were filed after Ukraine, as the applicant state, had submitted its memorial. The declarations of intervention principally concerned the interpretation of Article IX of the Genocide Convention, which confers jurisdiction on the Court, a matter dealt with by the Court in the preliminary objections stage of proceedings.

As I stated in response to the Deputy in January, normally if a third state wishes to intervene in a contentious case before the International Court of Justice it does so only once the applicant state has filed its memorial.

The reason for awaiting the filing of the applicant state's memorial is to enable third states to make informed decisions on whether to intervene, based on as complete as possible an understanding of the matters in question before the Court. This allows a state considering intervention the time to undertake detailed and rigorous analysis of those matters in advance of intervention. In turn, this means that any intervention is more likely to be permitted by the Court, or be deemed admissible by it (depending on the intervention’s legal basis). It also means that interventions are more likely to be relevant, comprehensive and helpful to the Court in its consideration of the legal issues before it.

While the Court’s own Rules are silent on the question of how soon a state may seek to intervene in a case before it, no state has ever successfully sought to intervene in a case before the applicant state has filed its memorial.