Towards clarity: the ‘may be affected’ requirement and non-party intervention at the International Court of Justice

Abstract

Abstract Intervention at the International Court of Justice (the Court) has re-emerged as a trending topic amid the Application of the Genocide Convention (The Gambia v Myanmar) and Allegations of Genocide under the Genocide Convention (Ukraine v Russian Federation). This article advances an approach to straightening the indeterminacy regarding the threshold of proof of the ‘which may be affected by the decision in the case’ expression under Article 62 of the Court’s Statute for non-party intervention. The Court deems the wording a second and substantive condition of the provision, the assessment of which remains controversial. Notwithstanding the permissiveness of the latest Order, Jurisdictional Immunities of the State(Germany v Italy), the complication lingers. The said Order did not refer to the requirement. It fell outside the purview of maritime boundary, to which all previous and inconsistent orders of the Court on non-party intervention relate.