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2 June 1999

 

General List No. 112

 
     

international Court of Justice

     
 

Legality of Use of Force

 
     

Yugoslavia

 

v. 

Spain

     
     
 

Order

 
     
     
     
 
BEFORE: President: Schwebel;
Vice-President: Weeramantry;
Judges: Oda, Bedjaoui, Guillaume,Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans;
Judges Ad Hoc: Kreca.
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1999.06.02_use_of_force3.htm
   
Citation: Legality of Use of Force (Yugo. v. Spain), 1999 I.C.J. 761 (Order of June 2)
   
Represented By: Yugoslavia: Mr. Rodoljub Etinski, Agent;
Mr. Ian Brownlie;
Mr. Paul J. I. M. de Waart;
Mr. Eric Suy;
Mr. Miodrag Mitic;
Mr. Olivier Corten;

Spain: Mr. Aurelio Perez Giralda, Agent.

 
     
 
 
     
 


[p.761]
The International Court of Justice,

Composed as above,

After deliberation.
Having regard to Articles 41 and 48 of the Statute of the Court and to Articles 73 and 74 of the Rules of Court,

Having regard to the Application by the Federal Republic of Yugoslavia (hereinafter "Yugoslavia") filed in the Registry of the Court on 29 April 1999. instituting proceedings against the Kingdom of Spain (hereinafter "Spain") "for violation of the obligation not to use force".[p 762]
Makes the following Order:

1. Whereas in that Application Yugoslavia defines the subject of the dispute as follows:

"The subject-matter of the dispute are acts of the Kingdom of Spain by which it has violated its international obligation banning the use of force against another State, the obligation not to intervene in the internal affairs of another State, the obligation not to violate the sovereignty of another State, the obligation to protect the civilian population and civilian objects in wartime, the obligation to protect the environment, the obligation relating to free navigation on international rivers, the obligation regarding fundamental human rights and freedoms, the obligation not to use prohibited weapons, the obligation not to deliberately inflict conditions of life calculated to cause the physical destruction of a national group";

2. Whereas in the said Application Yugoslavia refers, as a basis for the jurisdiction of the Court, to Article 36, paragraph 2, of the Statute of the Court and to Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations on 9 December 1948 (hereinafter the "Genocide Convention");

3. Whereas in its Application Yugoslavia states that the claims submitted by it to the Court are based upon the following facts:

"The Government of the Kingdom of Spain, together with the Governments of other Member States of NATO, took part in the acts of use of force against the Federal Republic of Yugoslavia by taking part in bombing targets in the Federal Republic of Yugoslavia. In bombing the Federal Republic of Yugoslavia military and civilian targets were attacked. Great number of people were killed, including a great many civilians. Residential houses came under attack. Numerous dwellings were destroyed. Enormous damage was caused to schools, hospitals, radio and television stations, cultural and health institutions and to places of worship. A large number of bridges, roads and railway lines were destroyed. Attacks on oil refineries and chemical plants have had serious environmental effects on cities, towns and villages in the Federal Republic of Yugoslavia. The use of weapons containing depleted uranium is having far-reaching consequences for human life. The above-mentioned acts are deliberately creating conditions calculated at the physical destruction of an ethnic group, in whole or in part. The Government of the Kingdom of Spain is taking part in the training, arming, financing, equipping and supplying the so-called 'Kosovo Liberation Army"'; [p 763]

and whereas it further states that the said claims are based on the following legal grounds:

"The above acts of the Government of the Kingdom of Spain represent a gross violation of the obligation not to use force against another State. By financing, arming, training and equipping the so-called 'Kosovo Liberation Army', support is given to terrorist groups and the secessionist movement in the territory of the Federal Republic of Yugoslavia in breach of the obligation not to intervene in the internal affairs of another State. In addition, the provisions of the Geneva Convention of 1949 and of the Additional Protocol No. 1 of 1977 on the protection of civilians and civilian objects in time of war have been violated. The obligation to protect the environment has also been breached. The destruction of bridges on the Danube is in contravention of the provisions of Article 1 of the 1948 Convention on free navigation on the Danube. The provisions of the International Covenant on Civil and Political Rights and of the International Covenant on Economic, Social and Cultural Rights of 1966 have also been breached. Furthermore, the obligation contained in the Convention on the Prevention and Punishment of the Crime of Genocide not to impose deliberately on a national group conditions of life calculated to bring about the physical destruction of the group has been breached. Furthermore, the activities in which the Kingdom of Spain is taking part are contrary to Article 53, paragraph 1, of the Charter of the United Nations";

4. Whereas the claims of Yugoslavia are formulated as follows in the Application:

"The Government of the Federal Republic of Yugoslavia requests the International Court of Justice to adjudge and declare:

— by taking part in the bombing of the territory of the Federal Republic of Yugoslavia, the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use force against another State;

— by taking part in the training, arming, financing, equipping and supplying terrorist groups, i.e. the so-called 'Kosovo Liberation Army', the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation not to intervene in the affairs of another State:

— by taking part in attacks on civilian targets, the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation to spare the civilian population, civilians and civilian objects; [p 764]

— by taking part in destroying or damaging monasteries, monuments of culture, the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation not to commit any act of hostility directed against historical monuments, works of art or places of worship which constitute cultural or spiritual heritage of people;
— by taking part in the use of cluster bombs, the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons, i.e. weapons calculated to cause unnecessary suffering;

— by taking part in the bombing of oil refineries and chemical plants, the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation not to cause considerable environmental damage;

— by taking part in the use of weapons containing depleted uranium, the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons and not to cause far-reaching health and environmental damage;

— by taking part in killing civilians, destroying enterprises, communications, health and cultural institutions, the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect the right to life, the right to work, the right to information, the right to health care as well as other basic human rights;

— by taking part in destroying bridges on international rivers, the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect freedom of navigation on international rivers;

— by taking part in activities listed above, and in particular by causing enormous environmental damage and by using depleted uranium, the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation not to deliberately inflict on a national group conditions of life calculated to bring about its physical destruction, in whole or in part;

— the Kingdom of Spain is responsible for the violation of the above international obligations;

— the Kingdom of Spain is obliged to stop immediately the violation of the above obligations vis-ΰ-vis the Federal Republic of Yugoslavia;

— the Kingdom of Spain is obliged to provide compensation for [p 765] the damage done to the Federal Republic of Yugoslavia and to its citizens and juridical persons";

and whereas, at the end of its Application, Yugoslavia reserves the right to amend and supplement it;

5. Whereas on 29 April 1999, immediately after filing its Application, Yugoslavia also submitted a request for the indication of provisional measures pursuant to Article 73 of the Rules of Court; and whereas that request was accompanied by a volume of photographic annexes produced as "evidence";

6. Whereas, in support of its request for the indication of provisional measures, Yugoslavia contends inter alia that, since the onset of the bombing of its territory, and as a result thereof, about 1,000 civilians, including 19 children, have been killed and more than 4,500 have sustained serious injuries; that the lives of three million children are endangered; that hundreds of thousands of citizens have been exposed to poisonous gases; that about one million citizens are short of water supply; that about 500,000 workers have become jobless; that two million citizens have no means of livelihood and are unable to ensure minimum means of sustenance; and that the road and railway network has suffered extensive destruction; whereas, in its request for the indication of provisional measures, Yugoslavia also lists the targets alleged to have come under attack in the air strikes and describes in detail the damage alleged to have been inflicted upon them (bridges, railway lines and stations, roads and means of transport, airports, industry and trade, refineries and warehouses storing liquid raw materials and chemicals, agriculture, hospitals and health care centres, schools, public buildings and housing facilities, infrastructure, telecommunications, cultural-historical monuments and religious shrines); and whereas Yugoslavia concludes from this that:

"The acts described above caused death, physical and mental harm to the population of the Federal Republic of Yugoslavia; huge devastation; heavy pollution of the environment, so that the Yugoslav population is deliberately imposed conditions of life calculated to bring about physical destruction of the group, in whole or in part";

7. Whereas, at the end of its request for the indication of provisional measures, Yugoslavia states that

"If the proposed measure were not to be adopted, there will be new losses of human life, further physical and mental harm inflicted on the population of the FR of Yugoslavia, further destruction of civilian targets, heavy environmental pollution and further physical destruction of the people of Yugoslavia"; [p 766]

and whereas, while reserving the right to amend and supplement its request, Yugoslavia requests the Court to indicate the following measure:

"The Kingdom of Spain shall cease immediately its acts of use of force and shall refrain from any act of threat or use of force against the Federal Republic of Yugoslavia";

8. Whereas the request for the indication of provisional measures was accompanied by a letter from the Agent of Yugoslavia, addressed to the President and Members of the Court, which read as follows:

"I have the honour to bring to the attention of the Court the latest bombing of the central area of the town of Surdulica on 27 April 1999 at noon resulting in losses of lives of civilians, most of whom were children and women, and to remind of killings of peoples in Kursumlija, Aleksinac and Cuprija, as well as bombing of a refugee convoy and the Radio and Television of Serbia, just to mention some of the well-known atrocities. Therefore, I would like to caution the Court that there is a highest probability of further civilian and military casualties.

Considering the power conferred upon the Court by Article 75. paragraph 1, of the Rules of Court and having in mind the greatest urgency caused by the circumstances described in the Requests for provisional measure of protection I kindly ask the Court to decide on the submitted Requests propria motu or to fix a date for a hearing at earliest possible time";

9. Whereas on 29 April 1999, the day on which the Application and the request for the indication of provisional measures were filed in the Registry, the Registrar sent to the Spanish Government signed copies of the Application and of the request, in accordance with Article 38, paragraph 4, and Article 73, paragraph 2, of the Rules of Court; and whereas he also sent to that Government copies of the documents accompanying the Application and the request for the indication of provisional measures;

10. Whereas on 29 April 1999 the Registrar informed the Parties that the Court had decided, pursuant to Article 74, paragraph 3, of the Rules of Court, to hold hearings on 10 and 11 May 1999, where they would be able to present their observations on the request for the indication of provisional measures;

11. Whereas, pending the notification under Article 40, paragraph 3, of the Statute and Article 42 of the Rules of Court, by transmittal of the printed bilingual text of the Application to the Members of the United Nations and other States entitled to appear before the Court, the Regis-trar on 29 April 1999 informed those States of the filing of the Application and of its subject-matter, and of the filing of the request for the indication of provisional measures; [p 767]

12. Whereas, since the Court includes upon the bench no judge of Yugoslav nationality, the Yugoslav Government has availed itself of the provisions of Article 31 of the Statute of the Court to choose Mr. Milenko Kreca to sit as judge ad hoc in the case; and whereas no objection to that choice was raised within the time-limit fixed for the purpose pursuant to Article 35, paragraph 3, of the Rules of Court; whereas, since the Court includes upon the bench no judge of Spanish nationality, the Spanish Government has availed itself of the provisions of Article 31 of the Statute of the Court to choose Mr. Santiago Torres Bernαrdez to sit as judge ad hoc in the case; whereas, within the time-limit fixed for the purpose pursuant to Article 35, paragraph 3, of the Rules of Court, Yugoslavia, referring to Article 31, paragraph 5, of the Statute, objected to that choice; and whereas the Court, after due deliberation, found that the nomination of a judge ad hoc by Spain was justified in the present phase of the case;

13. Whereas, at the public hearings held between 10 and 12 May 1999, oral observations on the request for the indication of provisional measures were presented by the following:

On behalf of Yugoslavia:

Mr. Rodoljub Etinski, Agent,
Mr. Ian Brownlie,
Mr. Paul J. I. M. de Waart,
Mr. Eric Suy,
Mr. Miodrag Mitic,
Mr. Olivier Corten;

On behalf of Spain:

Mr. Aurelio Perez Giralda, Agent;

14. Whereas, in this phase of the proceedings, the Parties presented the following submissions:

On behalf of Yugoslavia:

"[T]he Court [is asked] to indicate the following provisional measure:

[T]he Kingdom of Spain shall cease immediately the acts of use of force and shall refrain from any act of threat or use of force against the Federal Republic of Yugoslavia";

On behalf of Spain:

"The Kingdom of Spain respectfully requests the Court to:

1. Declare that it has no jurisdiction to adjudicate upon the Application filed by the Federal Republic of Yugoslavia;

2. Reject the request of the Government of the Federal Republic [p 768] of Yugoslavia with a view to the indication of provisional measures in relation to the Kingdom of Spain;

3. Decide to remove this case from the General List of the Court";

***

15. Whereas the Court is deeply concerned with the human tragedy, the loss of life, and the enormous suffering in Kosovo which form the background of the present dispute, and with the continuing loss of life and human suffering in all parts of Yugoslavia;

16. Whereas the Court is profoundly concerned with the use of force in Yugoslavia; whereas under the present circumstances such use raises very serious issues of international law;

17. Whereas the Court is mindful of the purposes and principles of the United Nations Charter and of its own responsibilities in the maintenance of peace and security under the Charter and the Statute of the Court;

18. Whereas the Court deems it necessary to emphasize that all parties appearing before it must act in conformity with their obligations under the United Nations Charter and other rules of international law, including humanitarian law;

***

19. Whereas the Court, under its Statute, does not automatically have jurisdiction over legal disputes between States parties to that Statute or between other States to whom access to the Court has been granted; whereas the Court has repeatedly stated "that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction" (East Timor (Portugal v. Australia), Judgment, LC.J. Reports 1995, p. 101, para. 26); and whereas the Court can therefore exercise jurisdiction only between States parties to a dispute who not only have access to the Court but also have accepted the jurisdiction of the Court, either in general form or for the individual dispute concerned;

20. Whereas on a request for provisional measures the Court need not, before deciding whether or not to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to indicate such measures unless the provisions invoked by the applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be established;

**

21. Whereas in its Application Yugoslavia claims, in the first place, to found the jurisdiction of the Court upon Article 36, paragraph 2, of the [p 769] Statute; whereas each of the two Parties has made a declaration recognizing the compulsory jurisdiction of the Court pursuant to that provision; whereas Yugoslavia's declaration was deposited with the Secretary-General of the United Nations on 26 April 1999, and that of Spain on 29 October 1990;

22. Whereas Yugoslavia's declaration is formulated as follows:

"I hereby declare that the Government of the Federal Republic of Yugoslavia recognizes, in accordance with Article 36, paragraph 2, of the Statute of the International Court of Justice, as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, that is on condition of reciprocity, the jurisdiction of the said Court in all disputes arising or which may arise after the signature of the present Declaration, with regard to the situations or facts subsequent to this signature, except in cases where the parties have agreed or shall agree to have recourse to another procedure or to another method of pacific settlement. The present Declaration does not apply to disputes relating to questions which, under international law, fall exclusively within the jurisdiction of the Federal Republic of Yugoslavia, as well as to territorial disputes.

The aforesaid obligation is accepted until such time as notice may be given to terminate the acceptance";

and whereas the declaration of Spain reads as follows:

"1. On behalf of the Spanish Government, I have the honour to declare that the Kingdom of Spain accepts as compulsory ipso facto and without special agreement, the jurisdiction of the International Court of Justice, in conformity with Article 36, paragraph 2, of the Statute of the Court, in relation to any other State accepting the same obligation, on condition of reciprocity, in legal disputes not included among the following situations and exceptions:

(a) disputes in regard to which the Kingdom of Spain and the other party or parties have agreed or shall agree to have recourse to some other method of peaceful settlement of the dispute;

(b) disputes in regard to which the other party or parties have accepted the compulsory jurisdiction of the Court only in relation to or for the purposes of the dispute in question;

(c) disputes in regard to which the other party or parties have accepted the compulsory jurisdiction of the Court less than 12 months prior to the filing of the application bringing the dispute before the Court;

(d) disputes arising prior to the date on which this Declaration was deposited with the Secretary-General of the United Nations or [p 770]relating to events or situations which occurred prior to that date, even if such events or situations may continue to occur or to have effects thereafter.

2. The Kingdom of Spain may at any time, by means of a notification addressed to the Secretary-General of the United Nations, add to, amend or withdraw, in whole or in part, the foregoing reservations or any that may hereafter be added. These amendments shall become effective on the date of their receipt by the Secretary-General of the United Nations.

3. The present Declaration, which is deposited with the Secretary-General of the United Nations in conformity with Article 36, paragraph 4, of the Statute of the International Court of Justice, shall remain in force until such time as it has been withdrawn by the Spanish Government or superseded by another declaration by the latter.

The withdrawal of the Declaration shall become effective after a period of six months has elapsed from the date of receipt by the Secretary-General of the United Nations of the relevant notification by the Spanish Government. However, in respect of States which have established a period of less than six months between notification of the withdrawal of their Declaration and its becoming effective, the withdrawal of the Spanish Declaration shall become effective after such shorter period has elapsed";

23. Whereas Spain contends that the Court's jurisdiction cannot be founded upon Article 36, paragraph 2, of the Statute of the Court in this case, in view of the reservations contained in its declaration; whereas it observes in particular that, under the terms of paragraph 1 (c) of that declaration, it does not recognize the jurisdiction of the Court in respect of

"(c) disputes in regard to which the other party or parties have accepted the compulsory jurisdiction of the Court less than 12 months prior to the filing of the application bringing the dispute before the Court";

whereas Spain argues that "this limitation is both specific and unequivocal and should not be a matter for either interpretation or doubt" and that "the intention of Spain in formulating its declaration could not have been clearer"; and whereas it points out that 12 months have manifestly not elapsed between the date on which Yugoslavia accepted the jurisdiction of the Court and that on which it filed its Application;

24. Whereas Yugoslavia submitted no argument on this point;

25. Whereas, given that Yugoslavia deposited its declaration of acceptance of the compulsory jurisdiction of the Court with the Secretary-[p 771]General on 26 April 1999 and filed its Application instituting proceedings with the Court on 29 April 1999, there can be no doubt that the conditions for the exclusion of the Court's jurisdiction provided for in paragraph 1 (c) of Spain's declaration are satisfied in this case; whereas, as the Court recalled in its Judgment of 4 December 1998 in the Fisheries Jurisdiction (Spain v. Canada) case,

"It is for each State, in formulating its declaration, to decide upon the limits it places upon its acceptance of the jurisdiction of the Court: '[t]his jurisdiction only exists within the limits within which it has been accepted' (Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series AIB, No. 74, p. 23)" (I.C.J Reports 1998, p. 453, para. 44);

and whereas, as the Court noted in its Judgment of 11 June 1998 in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), "[a]s early as 1952, it held in the case concerning Anglo-Iranian Oil Co. that . . . 'jurisdiction is conferred on the Court only to the extent to which the [declarations made] coincide in conferring it' (I.C.J. Reports 1952, p. 103)" (I.C.J. Reports 1998, p. 298, para. 43); and whereas the declarations made by the Parties under Article 36, paragraph 2, of the Statute manifestly cannot constitute a basis of jurisdiction in the present case, even prima facie;

*

26. Whereas, referring to United Nations Security Council resolution 777 (1992) of 19 September 1992 and to United Nations General Assembly resolution 47/1 of 22 September 1992, Spain also contends that "the Federal Republic of Yugoslavia cannot be considered, as it claims, to be the continuator State of the former Socialist Federal Republic of Yugoslavia", and that, not having duly acceded to the Organization, it is not a Member thereof, is not a party to the Statute of the Court and cannot appear before the latter;

27. Whereas Yugoslavia, referring to the position of the Secretariat, as expressed in a letter dated 29 September 1992 from the Legal Counsel of the Organization (doc. A/47/485), and to the latter's subsequent practice, contends for its part that General Assembly resolution 47/1 "[neither] terminate^] nor suspended] Yugoslavia's membership in the Organization", and that the said resolution did not take away from Yugoslavia "[its] right to participate in the work of organs other than Assembly bodies";

28. Whereas, in view of its finding in paragraph 25 above, the Court need not consider this question for the purpose of deciding whether or not it can indicate provisional measures in the present case;

**[p 772]
29. Whereas in its Application Yugoslavia claims, in the second place, to found the jurisdiction of the Court on Article IX of the Genocide Convention, which provides:

"Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute";

whereas it is not disputed that both Yugoslavia and Spain are parties to the Genocide Convention; whereas, however, Spain's instrument of accession to the Convention, deposited with the Secretary-General on 13 September 1968, contains a reservation "in respect of the whole of Article IX";

30. Whereas Spain contends that, this reservation having given rise to no objection by Yugoslavia, Article IX of the Genocide Convention "is inapplicable to the mutual relations between Spain and . . . Yugoslavia", and that the said Article cannot accordingly found the jurisdiction of the Court in this case, even prima facie; and whereas Spain further contends that the dispute submitted to the Court by Yugoslavia "does not . . . come within the scope of the Convention";

31. Whereas Yugoslavia disputed Spain's interpretation of the Genocide Convention, but submitted no argument concerning Spain's reservation to Article IX of the Convention;

32. Whereas the Genocide Convention does not prohibit reservations; whereas Yugoslavia did not object to Spain's reservation to Article IX: and whereas the said reservation had the effect of excluding that Article from the provisions of the Convention in force between the Parties;

33. Whereas in consequence Article IX of the Genocide Convention cannot found the jurisdiction of the Court to entertain a dispute between Yugoslavia and Spain alleged to fall within its provisions; and whereas that Article manifestly does not constitute a basis of jurisdiction in the present case, even prima facie;

**

34. Whereas Spain further states that it "does not accept the jurisdiction of the Court under Article 38, paragraph 5, of the Rules of Court"; whereas that provision reads as follows:

"5. When the applicant State proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made, the application shall be transmitted to that State. It shall not however be entered in [p 773] the General List, nor any action be taken in the proceedings, unless and until the State against which such application is made consents to the Court's jurisdiction for the purposes of the case";

and whereas it is quite clear that, in the absence of consent by Spain, given pursuant to Article 38, paragraph 5, of the Rules, the Court cannot exercise jurisdiction in the present case, even prima facie;

**

35. Whereas it follows from what has been said above that the Court manifestly lacks jurisdiction to entertain Yugoslavia's Application; whereas it cannot therefore indicate any provisional measure whatsoever in order to protect the rights invoked therein; and whereas, within a system of consensual jurisdiction, to maintain on the General List a case upon which it appears certain that the Court will not be able to adjudicate on the merits would most assuredly not contribute to the sound administration of justice;

***

36. Whereas there is a fundamental distinction between the question of the acceptance by a State of the Court's jurisdiction and the compatibility of particular acts with international law; the former requires consent; the latter question can only be reached when the Court deals with the merits after having established its jurisdiction and having heard full legal arguments by both parties;

37. Whereas, whether or not States accept the jurisdiction of the Court, they remain in any event responsible for acts attributable to them that violate international law, including humanitarian law; whereas any disputes relating to the legality of such acts are required to be resolved by peaceful means, the choice of which, pursuant to Article 33 of the Charter, is left to the parties;

38. Whereas in this context the parties should take care not to aggravate or extend the dispute;

39. Whereas, when such a dispute gives rise to a threat to the peace, breach of the peace or act of aggression, the Security Council has special responsibilities under Chapter VII of the Charter;

***

40. For these reasons,

THE COURT,

(1) By fourteen votes to two, [p 774]

Rejects the request for the indication of provisional measures submitted by the Federal Republic of Yugoslavia on 29 April 1999;

IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans; Judges ad hoc Torres Bernαrdez, Kreca;

AGAINST: Judges Shi, Vereshchetin;

(2) By thirteen votes to three,

Orders that the case be removed from the List.

IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Higgins, Kooijmans; Judge ad hoc Torres Bernαrdez;

AGAINST: Judges Vereshchetin, Parra-Aranguren; Judge ad hoc Kreca.

Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this second day of June, one thousand nine hundred and ninety-nine, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Federal Republic of Yugoslavia and the Government of the Kingdom of Spain, respectively.

(Signed) Christopher G. Weeramantry,
Vice-President.

(Signed) Eduardo Valencia-Ospina,
Registrar.

Judges Shi, Koroma and Vereshchetin append declarations to the Order of the Court.
Judges Oda, Higgins, Parra-Aranguren and Kooijmans and Judge ad hoc Kreca append separate opinions to the Order of the Court.

(Initialled) C.G.W.

(Initialled) E.V.O. [p 775]


DECLARATION OF JUDGE SHI

I am in agreement with the majority of the Court that, in the present case, no basis of prima facie jurisdiction can be found for the indication of provisional measures requested by the Applicant.

Nevertheless I am of the opinion that, being confronted with the urgent situation of a human tragedy involving loss of life and suffering which arises from the use of force in and against Yugoslavia, the Court ought to have contributed to the maintenance of international peace and security in so far as its judicial functions permit.

The Court would have been fully justified in point of law if, immediately upon receipt of the request by the Applicant for the indication of provisional measures, and regardless of what might be its conclusion on prima facie jurisdiction pending the final decision, it had issued a general statement appealing to the Parties to act in compliance with their obligations under the Charter of the United Nations and all other rules of international law relevant to the situation, including international humanitarian law, and at least not to aggravate or extend their dispute. In my view, nothing in the Statute or the Rules of Court prohibits the Court from so acting. According to the Charter, the Court is after all the principal judicial organ of the United Nations, with its Statute as an integral part of the Charter; and by virtue of the purposes and principles of the Charter, including Chapter VI (Pacific Settlement of Disputes), the Court has been assigned a role within the general framework of the United Nations for the maintenance of international peace and security. There is no doubt that to issue such a general statement of appeal is within the implied powers of the Court in the exercise of its judicial functions. Now that the Court has made its final decision on the request by the Applicant, it has failed to take an opportunity to make its due contribution to the maintenance of international peace and security when that is most needed.

Moreover, in his letter addressed to the President and the Members of the Court, the Agent of Yugoslavia stated:

"Considering the power conferred upon the Court by Article 75, paragraph 1, of the Rules of Court and having in mind the greatest urgency caused by the circumstances described in the Requests for provisional measure of protection I kindly ask the Court to decide on the submitted Requests proprio motu or to fix a date for a hearing at earliest possible time." [p 776]

In the recent LaGrand case, the Court, at the request of the applicant State and despite the objection of the respondent State, decided to make use of its above-mentioned power under Article 75, paragraph 1, of the Rules of Court without hearing the respondent State in either written or oral form (LaGrand (Germany v. United States of America), Order of 3 March 1999, I.C.J. Reports 1999, pp. 13 and 14, paras. 12 and 21). By contrast, in the present case the Court failed to take any positive action in response to the similar request made by the Agent of Yugoslavia in a situation far more urgent even than that in the former case.

It is for these reasons that I felt compelled to vote against the operative paragraph 40 (1) of the present Order.

(Signed) SHI Jiuyong. [p 777]

 

DECLARATION OF JUDGE KOROMA

These are perhaps the most serious cases to come before the Court for injunctive relief. Under Article 41 of the Statute of the Court, a request for provisional measures should have as its purpose the preservation of the respective rights of either party to a dispute pending the Court's decision. Jurisprudentially, the granting of such relief is designed to prevent violence, the use of force, to safeguard the peace, as well as serving as an important part of the dispute settlement process under the Charter. Where the risk of irreparable harm is said to exist or further action might aggravate or extend a dispute, the granting of the relief becomes all the more necessary. It is thus one of the most important functions of the Court.

However, the indication of such relief by the Court can take place only in accordance with the Statute. In this regard prima facie jurisdiction has come to be regarded by the Court as the criteria for granting such relief, and where, in the Court's view, this is found not to exist, or other circumstances predominate, the Court according to its jurisprudence will not indicate the requested relief.

On the other hand, the conclusion reached by the Court that the dispute between Yugoslavia and some of the respondent States arose before 25 April 1999 and accordingly does not come within the scope of the compulsory jurisdiction of the Court as accepted by Yugoslavia under the terms of its declaration, does not appear to me to be correct, let alone legally tenable. The correct legal position, in my view, is as reflected in Draft Article 25 on State Responsibility of the Report of the International Law Commission. The Article states as follows:

"The breach of an international obligation, by an act of the State composed of a series of actions or omissions in respect of separate cases, occurs at the moment when that action or omission of the series is accomplished which establishes the existence of the composite act. Nevertheless, the time of commission of the breach extends over the entire period from the first of the actions or omissions constituting the composite act not in conformity with the international obligation and so long as such actions or omissions are repeated." (Yearbook of the International Law Commission, 1978. Vol. II, Part Two, Art. 25, p. 89.)

In other words, and as stated in the commentary on the Article, the time [p 778] of the Commission of this breach is not limited to the moment at which the act begins, but extends over the whole period during which the act takes place and continues contrary to the requirements of the international obligation. Therefore, the Court's finding that Yugoslavia had not established the existence of a specific dispute, distinct from the preceding one, which arose after 25 April 1999 does not appear to me tenable in law.

Nevertheless, the Court, as the principal judicial organ of the United Nations, whose primary raison d'etre remains the preservation of international peace and security, is under a positive obligation to contribute to the maintenance of international peace and security and to provide a judicial framework for the resolution of a legal dispute, especially one which not only threatens international peace and security but also involves enormous human suffering and continuing loss of life as well as the disintegration of normal society. Given the prevalence of these circum-stances in this dispute, the Court has decided, rightly in my view, not to remain silent. I have therefore joined with other Members of the Court in calling for the peaceful resolution of this conflict pursuant to Article 33 of the Charter, and in urging the Parties not to aggravate or extend the dispute and to respect international law, including humanitarian law and the human rights of all the citizens of Yugoslavia.

(Signed) Abdul G. Koroma. [p 779]

 

DECLARATION OF JUDGE VERESHCHETIN

The extraordinary circumstances in which Yugoslavia made its request for interim measures of protection imposed a need to react immediately. The Court should have promptly expressed its profound concern over the unfolding human misery, loss of life and serious violations of interna-tional law which by the time of the request were already a matter of public knowledge. It is unbecoming for the principal judicial organ of the United Nations, whose very raison d'etre is the peaceful resolution of international disputes, to maintain silence in such a situation. Even if ultimately the Court may come to the conclusion that, due to constraints in its Statute, it cannot indicate fully fledged provisional measures in accordance with Article 41 of the Statute in relation to one or another of the respondent States, the Court is inherently empowered, at the very least, immediately to call upon the Parties neither to aggravate nor to extend the conflict and to act in accordance with their obligations under the Charter of the United Nations. This power flows from its responsibility for the safeguarding of international law and from major consid-erations of public order. Such an authoritative appeal by the "World Court", which would also be consistent with Article 41 of its Statute and Article 74, paragraph 4, and Article 75, paragraph 1, of its Rules, could have a sobering effect on the Parties involved in the military conflict, un-precedented in European history since the end of the Second World War.

The Court was urged to uphold the rule of law in the context of large-scale gross violations of international law, including of the Charter of the United Nations. Instead of acting expeditiously and, if necessary, proprio motu, in its capacity as "the principal guardian of international law", the majority of the Court, more than one month after the requests were made, rejected them in a sweeping way in relation to all the cases brought before the Court, including those where, in my view, the prima facie jurisdiction of the Court could have been clearly established. Moreover, this decision has been taken in a situation in which deliberate intensification of bombardment of the most heavily populated areas is causing unabated loss of life amongst non-combatants and physical and mental harm to the population in all parts of Yugoslavia.

For the foregoing reasons, I cannot concur with the inaction of the Court in this matter, although I concede that in some of the cases insti-[p 780] tuted by the Applicant the basis of the Court's jurisdiction, at this stage of the proceedings, is open to doubt, and in relation to Spain and the United States is non-existent.

(Signed) Vladlen S. Vereshchetin. [p 781]

 

SEPARATE OPINION OF JUDGE ODA

Table of contents
 

 

Paragraphs

 

 

I. Introduction

1-2

 

 

II. The Status of the Federal Rhpublic of Yugoslavia — A Preli­minary Issue

3-4

 

 

III. Lack of the Court's Jurisdiction under Article 36, Para­graph 2, of the Statute and Article 38, Paragraph 5, of the Rules of Court

 

 

 

(1) No "legal dispute" within the meaning of Article 36, para­graph 2, of the Statute exists between the Federal Republic of Yugoslavia and the respondent State

5

 

 

(2) Article 38, paragraph 5, of the Rules of Court

6

 

 

(3) Article 36, paragraph 2, of the Statute of the Court

7-9

 

 

(4) The optional clause

10-16

 

 

IV. Lack of the Court's Jurisdiction under the 1930 Convention between Belgium and Yugoslavia and the 1931 Treaty between the Netherlands and Yugoslavia

17-18

 

 

V. Lack of the Court's Jurisdiction under the Genocide Convention

 

 

 

(1) Preliminary observations

19

 

 

(2) No disputes relating to the Genocide Convention exist between the Parties

20-21

 

 

(3) General character of the Genocide Convention

22

 

 

(4) Concluding observations

23

 

 

VI. In the Present Circumstances the Requests for the Indication of Provisional Measures are Inadmissible

24

 

 

VII. Removal of the Cases from the General List of the Court Due to the Lack of Jurisdiction

25-29

[p 782]
I. INTRODUCTION

1. I entirely support the decision of the Court in dismissing the requests for the indication of provisional measures submitted on 29 April 1999 by the Federal Republic of Yugoslavia against ten respondent States — Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal,
Spain, the United Kingdom and the United States.

While favouring subparagraph (2) of the operative paragraph in which the Court ordered that the case be removed from the General List of the Court in the cases of Spain and the United States, I voted against subparagraph (2) of the operative paragraph in the other eight cases in which the Court ordered that it '' [r]eserves the subsequent procedure for further decision" because I believe that those eight cases should also be removed from the General List of the Court.

2. I differ from the Court's reasoning on some aspects of the cases, not only on matters concerning the dismissal of the requests but also on some other matters relating to the Applications filed in the Registry of the Court by the Federal Republic of Yugoslavia on the same day, namely 29 April 1999. It is difficult, even impossible, for me to give a sufficient explanation of my position in the extremely limited time — if I may say so, an unreasonably short period of time, too short to do proper justice to the cases — that has been made available to the judges for preparing their opinions. I very much regret that this lack of time has given me no choice but to cover all ten cases in a single opinion. Certain parts of this opinion may thus not be relevant to a particular case.

II. The Status of the Federal Republic of Yugoslavia — A Preliminary Issue

3. I consider that the Federal Republic of Yugoslavia is not a Member of the United Nations and thus not a party to the Statute of the International Court of Justice.

Following the unrest in Yugoslavia in the early 1990s and the dissolution of the Socialist Federal Republic of Yugoslavia, some of its former Republics achieved independence and then applied for membership of the United Nations. On 22 May 1992, Bosnia and Herzegovina, Croatia and Slovenia became Members of the United Nations, followed on 8 April 1993 by the former Yugoslav Republic of Macedonia. However, the claim by the Federal Republic of Yugoslavia (Serbia and Montenegro) to continue automatically the membership in the United Nations of the former Socialist Federal Republic of Yugoslavia was not recognized.

On 22 September 1992 the General Assembly, pursuant to Security Council resolution 757 (1992) of 30 May 1992 and Security Council resolution 777 (1992) of 19 September 1992, adopted resolution 47/1 stating that

"the Federal Republic of Yugoslavia (Serbia and Montenegro) can-[p 783]not continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations"

and decided that it "should apply for membership in the United Nations". The letter addressed to the Permanent Representatives of Bosnia and Herzegovina and Croatia dated 29 September 1992 from the Under-Secretary-General, the Legal Counsel of the United Nations, stated that while the above-mentioned General Assembly resolution neither terminated nor suspended Yugoslavia's membership in the Organization,

"the General Assembly has stated unequivocally that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot automatically continue the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations".

In fact, there seems to have been an understanding that this rather exceptional situation would be resolved by the admission of the Federal Republic of Yugoslavia to the United Nations as a new Member. However, no further developments have occurred and the Federal Republic of Yugoslavia has not been admitted to the United Nations, as a "peace-loving State[s] which accept[s] the obligations contained in the [United Nations] Charter" (United Nations Charter, Art. 4).

4. The Court is open to the States parties to its Statute (Art. 35). Only States parties to the Statute are allowed to bring cases before the Court. It therefore follows, in my view, that the Federal Republic of Yugoslavia, not being a Member of the United Nations and thus not a State party to the Statute of the Court, has no standing before the Court as an applicant State. The Applications presented by the Federal Republic of Yugoslavia should therefore be declared inadmissible for this reason alone and should be removed from the General List of the Court.

However, if I am not correct on this, and assuming, for the sake of argument, that the Federal Republic of Yugoslavia does in fact have standing before the Court, I shall now go on to discuss whether the Federal Republic of Yugoslavia can bring the present Applications on the basis of certain provisions of the Statute and of the Rules of Court, of the 1930 and 1931 instruments in the cases of Belgium and the Netherlands, and of the 1948 Genocide Convention.

III. Lack of the Court's Jurisdiction under Article 36, Paragraph 2, of the Statute and Article 38, Paragraph 5, of the Rules of Court

(I) No "Legal Dispute" within the Meaning of Article 36, Paragraph 2, of the Statute Exists between the Federal Republic of Yugoslavia and the Respondent State

5. The Applications of the Federal Republic of Yugoslavia refer to the acts of the ten respondent States by which the Federal Republic of Yugo-[p 784]slavia alleges that they have violated certain obligations as listed in the section of each Application entitled "Subject of the Dispute". The acts which are listed in the section of each Application entitled "Claim" may have occurred, but the fact alone that a State allegedly committed these acts or actions as described in the section "Facts upon Which the Claim is Based" cannot constitute the existence of a "legal dispute" between two States within the meaning of Article 36, paragraph 2, of the Statute.

The question of whether certain acts of a State which may infringe upon the rights and interests of another State should be considered as justifiable under international law may well be a legitimate issue to be raised, but not as a "legal dispute" in which both sides are to present arguments concerning their respective rights and duties under international law in their relations with each other. Certainly such a "legal dispute" between Yugoslavia and the respondent States had not existed when the Federal Republic of Yugoslavia filed the Applications to institute the proceedings in these cases. What did exist on 29 April 1999 was simply the action of bombing or armed attacks conducted by the NATO armed forces in which the military powers of each of the respondent States were alleged to have participated. The issues — but not the "legal disputes" — concerning the bombing and armed attacks should properly be dealt with by the Security Council under Chapters V, VI, VII and VIII of the Charter or, in some cases, by the General Assembly under Chapter IV. For this reason alone, the Application should, on the basis of Article 36, paragraph 2, of the Statute be declared inadmissible.

However, for the sake of argument, I shall proceed on the assumption that there exists between the Parties a "legal dispute" within the meaning of Article 36, paragraph 2, of the Statute.

(2) Article 38, Paragraph 5, of the Rules of Court

6. In its Applications against France, Germany, Italy, Spain and the United States, the Federal Republic of Yugoslavia invokes Article 38, paragraph 5, of the Rules of Court, in the hope that consent to the jurisdiction of the Court might be given by those States. However, France, Ger-many, Italy, Spain and the United States have given no such consent to the Court's jurisdiction and it is clear from their arguments in the oral hearings that they will not give it. There is thus no room for the Court to entertain these five Applications on the basis of Article 38, paragraph 5, of the Rules of Court. The concept of forum prorogatum does not apply in these five cases. [p 785]

(3) Article 36, Paragraph 2, of the Statute of the Court

7. On 25 April 1999 the Federal Republic of Yugoslavia registered with the Secretariat of the United Nations its declaration recognizing the compulsory jurisdiction of the Court in accordance with Article 36, paragraph 2, of the Statute. The main point to be considered, even on the assumption that the registration of the declaration by the Federal Republic of Yugoslavia on 25 April 1999 was valid, is whether this declaration is valid in connection with the Applications of the Federal Republic of Yugoslavia against six respondent States (Belgium, Canada, the Netherlands, Portugal, Spain and the United Kingdom) which have accepted the Court's compulsory jurisdiction in their respective declarations under the same provision of the Statute.

8. The cases of Spain and the United Kingdom are different from the other four cases. In its declaration of 29 October 1990, Spain expressly excluded from the Court's jurisdiction "disputes in regard to which the other party or parties have accepted the compulsory jurisdiction of the Court less than 12 months prior to the filing of the application bringing the dispute before the Court" and the United Kingdom in its declaration of 1 January 1969 similarly excluded certain disputes from the Court's jurisdiction:

"where the acceptance of the Court's compulsory jurisdiction on behalf of any other Party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court".
It is crystal clear that the Court cannot exercise jurisdiction to entertain these two Applications, one against Spain and the other against the United Kingdom, on the basis of Article 36, paragraph 2, of the Statute.

9. Belgium, Canada, the Netherlands and Portugal have accepted the compulsory jurisdiction of the Court in their respective declarations, deposited by Belgium on 17 June 1958, by Canada on 10 May 1994, by the Netherlands on 1 August 1956 and by Portugal on 19 December 1955. As no reservation directly relevant to the present issues has been included in the declarations of the four States mentioned above, it might be argued that the exercise of the Court's jurisdiction is justified under Article 36, paragraph 2, of the Statute in the cases of the Applications addressed to those four States. Literally interpreted, the declaration of the Federal Republic of Yugoslavia (assuming that the Federal Republic of Yugoslavia is indeed a party to the Statute of the Court and that the Federal Republic of Yugoslavia's declaration was legitimately registered) may be claimed as being valid in relation to other States which have made a similar declaration. However, I hold the view that acceptance by the Federal Republic of Yugoslavia of the Court's jurisdiction only a matter of days before it filed its Applications with the Court in these cases is not an act done in good faith and is contrary to the proper concept of acceptance of the compulsory jurisdiction of the Court under the "optional clause" in the Statute. [p 786]

(4) The Optional Clause

10. Provisions equivalent to Article 36, paragraph 2, of the Statute of the International Court of Justice were first introduced in 1920 when the Permanent Court of International Justice was being planned. In the view of the Council of the League of Nations, which initiated the drafting of the Statute of the Permanent Court of International Justice in 1920, the time was not yet ripe for the international community to accept a general obligation to be bound by the judicial settlement of disputes. In fact, the consent of each State to accept such an obligation was deemed to be absolutely necessary. The arguments surrounding that problem during the preparation of the Statute of the Permanent Court of International Justice clearly reflected the still prevalent concept of national sovereignty as dominant in the international community. It was in that context that Article 36, paragraph 2, of the Statute was drafted as one of the cornerstones of the Permanent Court of International Justice. The International Court of Justice, operating under the United Nations system, inherited it as what is still Article 36, paragraph 2, now of the Statute of the present Court.

11. By 1974, the year of the appeal by the United Nations General Assembly for the revitalization of the Court (United Nations doc. A/RES/ 3232 (XXIX)), 45 out of 141 States parties to the Statute had accepted the compulsory jurisdiction of the Court under the "optional clause". Since then, the number of accepting States has not increased significantly, despite the increased number of States parties to the Statute. As of July 1998, the States parties to the Statute numbered 187. However, only 60 States out of that 187 have declared their acceptance of the compulsory jurisdiction of the Court. The number of States accepting the compulsory jurisdiction has never exceeded one-third of the total number of States that might have at any one time accepted the compulsory jurisdiction of the Court.

It is also a remarkable fact that, with the exception of the United Kingdom, no permanent member of the Security Council has, at the present time, accepted the compulsory jurisdiction of the Court. In fact, in October 1985, on the occasion of the loss of its case against Nicaragua (at the jurisdictional phase), the United States proceeded to withdraw the acceptance which it had maintained ever since the Court was set up in 1946. Earlier, France had withdrawn its acceptance, just after being brought before the Court by Australia/New Zealand in connection with its nuclear tests in the atmosphere in the South Pacific in 1973.

12. The making of a declaration is a unilateral act, which, far from being in the nature of a concession, is in fact to the State's advantage, in that it confers a right of action against States in a similar position. However, as the making of the declaration functions in the same way as an
[p 787] offer to conclude an agreement and depends on reciprocity, the practical effectiveness of the system depends on the number of States which are willing to participate in it and on the relative breadth of the obligations which they are prepared to accept thereunder. The acceptance is commonly hedged with reservations and exclusions.

The United Kingdom in its 1958 declaration (revised in 1963 and 1969) excluded disputes

"where the acceptance of the Court's compulsory jurisdiction on behalf of any other Party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court".

A similar 12-month exclusion clause is found in the following declarations: Hungary (1992), India (1974), Malta (1966), Mauritius (1968), New Zealand (1977), Philippines (1972), Poland (1996), Somalia (1963), Spain (1990). Cyprus has a six-month exclusion clause in its declaration (1988).

It is obvious that these States would, thanks to either a 12-month or a six-month exclusion clause, be in a position to withdraw their acceptance of the compulsory jurisdiction of the Court if faced with an application that they considered lacking in bona fides.

The United Kingdom's 1958 declaration also had a clause excluding "disputes in respect of which any other Party to the dispute has accepted the compulsory jurisdiction of the International Court of Justice only in relation to or for the purpose of the dispute". A similar clause is also now to be found in New Zealand's 1977 declaration.

13. The "optional clause" in effect plays a double role: one positive, in that it may on occasion enable a unilateral application to succeed, and the other negative, in that it may sometimes result in a respondent being brought to the Court against its will. Thus a State, by declaring its acceptance of the compulsory jurisdiction of the Court, may seek to acquire locus standi in a case in which the odds are in its favour, but on the other hand it may, where it feels placed at a disadvantage, try to release itself from the compulsory jurisdiction of the Court by the termi-nation or amendment of its declaration.

It has always been the desire of States, when faced with an application that in their view clearly lacks bona fides, to escape from their acceptance of the compulsory jurisdiction of the Court. The fact remains — and this is what I want to stress — that the judicial settlement of international disputes still remains in the hands of those States that are genuinely willing to defer to the International Court of Justice.

14. All of these facts indicate that some States accept the compulsory jurisdiction of the Court out of their good will but on the understanding that other States have the same good intentions. If this good faith is lack-[p 788]ing, the system of acceptance of the compulsory jurisdiction of the Court cannot work in the manner in which the drafters of the Statute intended.

Past practice reveals, in cases brought unilaterally in which preliminary objections made by the respondent States were overcome, that there have been only a few cases in which the judgments on the merits were properly complied with. This indicates the reality of judicial settlement in the world community. If States are brought to the Court against their will, then no real settlement of the dispute will follow. I feel that, even if a 12-month or similar exclusion clause is not included in a State's declaration, all States should have the right to refuse to be drawn into a case that is obviously not brought bona fide.

15. Generally speaking, I also believe that there should be some means of excluding from the Court's jurisdiction applications which may not have bona fide intentions or motives and that some provision should be made for such exclusion in the basic concept of the declaration of acceptance of the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute. It should be noted that, as a basic concept of international judiciary, the cornerstone of the granting by sovereign States of jurisdiction to the International Court of Justice in a dispute has always been the consent of those States.

16. In my view, it would be extremely odd to have a situation where the Court apparently has prima facie jurisdiction only for those States (Belgium, Canada, the Netherlands and Portugal) that have simply failed to include in their declarations an exclusion clause protecting their inter-ests, while Spain and the United Kingdom are, because of their exclusion clauses, released from the Court's jurisdiction in the present cases (which in fact cover exactly the same subject). I accordingly consider, in the light my finding in paragraph 9 above as to Yugoslavia's lack of good faith, that the Applications instituting proceedings against these four States also (namely, Belgium, Canada, the Netherlands and Portugal) should likewise be found inadmissible.

IV. Lack of the Court's Jurisdiction under the 1930 Convention between Belgium and Yugoslavia and the 1931 Treaty between the Netherlands and Yugoslavia

17. As late as the second round of oral hearings, which took place on 12 May 1999, the Federal Republic of Yugoslavia supplemented its Applications against Belgium and the Netherlands by invoking as additional grounds of jurisdiction of the Court, respectively, Article 4 of the 1930 Convention of Conciliation, Judicial Settlement and Arbitration [p 789] between Yugoslavia and Belgium, and Article 4 of the 1931 Treaty of Judicial Settlement, Arbitration and Conciliation between Yugoslavia and the Netherlands. Irrespective of the question of whether these instru-ments still remain valid in the present-day relations between the Federal Republic of Yugoslavia and the two respondent States, and whether the Federal Republic of Yugoslavia is entitled to invoke them as a basis of jurisdiction at such a late stage, I have to say that in my view the reliance on these instruments by the Federal Republic of Yugoslavia is totally unfounded.

18. These two instruments were among a number of treaties of a similar character concluded between a great number of States in the period after the establishment of the League of Nations; they were intended to bring together the various means of peaceful settlement of international disputes, namely judicial settlement, arbitration, conciliation, and other methods, into a systematized scheme of precedence among these various procedures. However, these treaties did not impose any new obligations on the States which became parties to them. Hence, the 1930 and 1931 instruments imposed no new obligations on the Contracting Parties in connection with the judicial settlement of disputes, over and above resort to the Permanent Court of International Justice provided for in its Statute, to which the Contracting Parties of the 1930 and 1931 instruments, respectively, were already signatories. (Belgium, the Netherlands, and Yugoslavia had, in their respective declarations, already accepted the compulsory jurisdiction of that Court.)

The provisions of Article 4 of these two instruments have never been interpreted as granting compulsory jurisdiction to the then existing Permanent Court of International Justice in addition to what had already been provided for in its Statute. It is also to be noted that, in both of these instruments, resort to any of the prescribed means of settlement of disputes could be had only after a dispute had failed to be settled through the normal diplomatic channels (cf. Article 1 of the respective instruments).

V. Lack of the Colirt's Jurisdiction under the Genocide Convention

(I) Preliminary Observations

19. The Court's Statute provides in Article 36. paragraph 1, that "[t]he jurisdiction of the Court comprises ... all matters specially provided for ... in treaties and conventions in force". The 1948 Genocide Convention is one of these "treaties and conventions in force" and its Article IX provides that

"[d]isputes between the Contracting Parties relating to the interpret-[p 790]tation, application or fulfilment of the present Convention . . . shall be submitted to the International Court of Justice at the request of any of the parties to the dispute".

In all ten of its Applications, the Federal Republic of Yugoslavia, referring to the alleged breach of the obligation contained in the Genocide Convention, invoked Article IX of that Convention as a legal ground for jurisdiction of the Court.

I will not deal here with the question of whether the Federal Republic of Yugoslavia is now a party to the Genocide Convention and whether a State which is not a State party to the Statute is entitled to locus standi by relying on Article 36, paragraph 1, as quoted at the beginning of this paragraph.

I note that Portugal became a party to the Genocide Convention with effect from 10 May 1999. I also note that Spain and the United States have properly made their respective reservations in respect of Article IX of the Genocide Convention. Thus the applications of the Federal Republic of Yugoslavia invoking that Convention should — from the outset — be dismissed in the cases of Portugal, Spain and the United States.

(2) No Disputes relating to the Genocide Convention Exist between the Parties

20. The Federal Republic of Yugoslavia, in spite of enumerating various claims, did not establish any violation of the Genocide Convention for which any one of the ten respondent States could be held responsible as a party to that Convention and indicated no element of genocide as defined in Article II of the Genocide Convention in the bombing or military attacks in Yugoslavia by the NATO armed forces. The question in general as to whether or not the bombing or the military attack in the territory of Yugoslavia by the NATO armed forces does in fact constitute a violation of international law may well be an issue but is irrelevant when dealing with the Genocide Convention.

21. Even if acts of genocide for which the respondent States may be deemed to be responsible under the Genocide Convention had taken place in Yugoslavia, that would not mean that there were disputes between the applicant State and the respondent States concerning the interpretation, application or fulfilment of the Convention. The Applicant did not indicate the existence of such a dispute which might be submitted obligatorily to the Court by application of the Genocide Convention.

I have previously stated my interpretation of the meaning of the words "a dispute concerning the interpretation, application or fulfilment of the [p 791] Convention" in the declaration I appended to the Court's Judgment in the Genocide case and I repeat it here:

"If any dispute were to be unilaterally submitted to the Court by one of the Contracting Parties to a treaty pursuant to the compromissory clause of that treaty, this would mean in essence that the dispute had arisen because of (i) the alleged failure of another Con-tracting Party to fulfil the obligations imposed by that treaty — a failure for which it is responsible — and (ii) the infringement of the rights bestowed upon the former State by that treaty due to that failure. The failure of the other State is itself a violation of the treaty but such a violation alone cannot be interpreted as constituting a dispute between the applicant State and the respondent State relating to that treaty unless it can be shown to have infringed such rights of the former State as are protected thereby." (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), pp. 625-626.)

(3) General Character of the Genocide Convention

22. The Genocide Convention cannot be regarded as an orthodox type of international treaty, as orthodox treaties provide for a right on the part of one State and a corresponding obligation on the part of another State. I once described the unique character of the Genocide Convention. It may be pertinent to quote my previous writing in this respect:

"4. The Genocide Convention is unique in having been adopted by the General Assembly in 1948 at a time when — due to the success of the Nuremburg Trials — the idea prevailed that an international criminal tribunal should be established for the punishment of criminal acts directed against human rights, including genocide; it is essentially directed not to the rights and obligations of States but to the protection of rights of individuals and groups of persons which have become recognized as universal.

To be sure, the Contracting Parties to the Convention defined genocide as 'a crime under international law' (Art. I). The Convention binds the Contracting Parties to punish persons responsible for those acts, whoever they may be, and is thus directed to the punishment of persons committing genocide and genocidal acts (Art. IV). The Contracting Parties undertake To enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention' (Art. V).

As persons committing genocide or genocidal acts may possibly be 'constitutionally responsible rulers [or] public officials' (Art. IV), [p 792] the Convention contains a specific provision which allows '[a]ny Contracting Party [to] call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of [those acts]' (Art. VIII) and contemplates the establishment of an international penal tribunal (Art. VI).

Genocide is defined as 'a crime under international law which [the Contracting Parties] undertake to prevent and punish' (Art. I). Even if this general clause (which was subjected to criticism at the Sixth Committee in 1948 when it was felt by some delegates that it should have been placed in the preamble, but not in the main text) is to be interpreted as meaning specifically that the Contracting Parties are obliged 'to prevent and to punish' genocide and genocidal acts, these legal obligations are borne in a general manner erga omnes by the Contracting Parties in their relations with all the other Contracting Parties to the Convention — or, even, with the international com-munity as a whole — but are not obligations in relation to any specific and particular signatory Contracting Party.

The failure of any Contracting Party 'to prevent and to punish' such a crime may only be rectified and remedied through (i) resort to a competent organ of the United Nations (Art. VIII) or (ii) resort to an international penal tribunal (Art. VI), but not by invoking the responsibility of States in inter-State relations before the International Court of Justice. This constitutes a unique character of the Convention which was produced in the post-war period in parallel with the emergence of the concept of the protection of human rights and humanity.

5. In this regard, some explanation of the dispute settlement provision of the Convention (Art. IX) may be pertinent. It reads as follows:

'Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute'
and is unique as compared with the compromissory clauses found in other multilateral treaties which provide for submission to the International Court of Justice of such disputes between the Contracting Parties as relate to the interpretation or application of the treaties in question.

The construction of Article IX of the Genocide Convention is very uncertain as it incorporates specific references to '[disputes. . . relating to . . . fulfilment of the Convention' and to 'disputes relating to the responsibility of a State for genocide or [genocidal acts]' — ref-[p 793]erences which can hardly be understood in any meaningful sense as a compromissory clause.

The original draft of the Genocide Convention was drawn up by an Ad Hoc Committee on Genocide in the ECOSOC in April-May 1948, and contained an orthodox type of compromissory clause ( Official Records of the Economic and Social Council, Third Year, Seventh Session, Supplement No. 6), which read:

'Disputes between the High Contracting Parties relating to the interpretation or application of this Convention shall be submitted to the International Court of Justice, provided that no dispute shall be submitted to the International Court of Justice involving an issue which has been referred to and is pending before or has been passed upon by a competent international criminal tribunal.' (Emphasis added.)

When this draft was taken up by the Sixth Committee of the General Assembly in its Third Session in October 1948, the addition of the two aforementioned references was proposed (Official Records of the General Assembly, Third Session. Sixth Committee, Annexes, p. 28: A/C6/258) without, in my view, the drafters having a clear picture of the new type of convention to be adopted. While some delegates understood that 'fulfilment' would not be different from 'application', a proposal to delete 'fulfilment' from the additions was rejected by 27 votes to 10, with 8 abstentions. However, another deletion of the words 'including [disputes] relating to the responsibility of a State for genocide or [genocidal acts]' was also rejected but only by 19 votes to 17, with 9 abstentions (Official Records of the General Assembly, Third Session, Sixth Committee, SR. 104, p. 447). The travaux prιparatoires of the Convention seem to confirm that there was some measure of confusion among the drafters, reflecting in particular the unique nature of their task in the prevailing spirit of the times.

How can one then interpret this reference to the 'responsibility of a State'? As far as I know such a reference has never been employed in any other treaty thereafter. It seems to be quite natural to assume that that reference would not have had any meaningful sense or otherwise would not have added anything to the clause providing for the submission to the Court of disputes relating to the interpretation or application of the Convention, because, in general, any inter-State dispute covered by a treaty per se always relates to the responsibility of a State and the singling-out of a reference to the responsibility of a State does not have any sense with regard to a compromissory clause." (Application of the Convention on the Prevention and [p 794] Punishment of the Crime of Genocide, Preliminary Objections, Judgment, LC.J. Reports 1996 (II), declaration of Judge Oda, pp. 626-628.)

(4) Concluding Observations

23. In order to seise the Court of the present cases, excepting those concerning Portugal, Spain and the United States as referred to in paragraph 19 of this opinion, the Federal Republic of Yugoslavia would certainly have had to show that, applying the Genocide Convention to the situation in the territory of Federal Republic of Yugoslavia, the respondent States could indeed have been responsible for the failure of the fulfilment of the Convention in relation to the Federal Republic of Yugoslavia. But, more particularly, the Federal Republic of Yugoslavia would have to show that the respondent States have breached the rights of the Federal Republic of Yugoslavia as a Contracting Party (which by definition is a State) entitled to protection under that Convention. This, however, has not been established in the Applications and in fact the Genocide Convention is not intended to protect the rights of the Federal Republic of Yugoslavia as a State.

Even if, as alleged, the respondent States are responsible for certain results of the bombing or armed attacks by NATO armed forces in the territory of the Federal Republic of Yugoslavia, this fact alone does not mean that there is a "dispute relating to the interpretation, application or fulfilment of the Convention", as the respondent States did not violate the rights conferred upon the Federal Republic of Yugoslavia by the Convention. What is protected by the Convention is not the particular rights of any individual State (the Federal Republic of Yugoslavia in this case) but the status of human beings with human rights and the universal interest of the individual in general.

What the Federal Republic of Yugoslavia did in its Applications was to point to certain facts allegedly tantamount to genocide or genocidal acts and to submit claims alleged to have arisen out of these facts. This cannot be taken to indicate the existence of an inter-State dispute relating to the responsibility of a State which could have been made a basis for the Court's jurisdiction.

I accordingly conclude that the Applications citing the Genocide Convention as a basis of the Court's jurisdiction should be rejected.

VI. In the Present Circumstances the Requests for the Indication of Provisional Measures are Inadmissible

24. Having made observations on the Court's jurisdiction, I would like to make some comments on the institution of provisional measures. [p 795]

Provisional measures which ought to be taken to preserve the respective rights of either party may be indicated by the Court "//it considers that the circumstances so require" (Statute, Art. 41, emphasis added). It thus falls within the discretion of the Court to grant provisional measures upon the request of the applicant State.

The items concerning the subject-matter of the dispute, the claim and the legal grounds on which the claim is based, are virtually identical throughout the Applications filed by the Federal Republic of Yugoslavia against the ten respondent States. If provisional measures were to be granted, but only in relation to certain of the ten respondent States, for the reason that there existed a prima facie basis of jurisdiction, while in the case of other respondent States the requests were dismissed totally because of the lack of the Court's jurisdiction to entertain the Applications, this would lead to an unreasonable result. For this reason alone, the requests for the indication of provisional measures by the applicant State are inadmissible throughout the ten cases.

VII. Removal of the Cases from the General List of the Court Due to the Lack of Jurisdiction

25. The Court has reached its decision to dismiss the requests for the indication of provisional measures in all ten cases on the sole ground that it lacks a prima facie basis of jurisdiction in these cases. If, at the provisional measures stage, the Court finds that it has prima facie jurisdiction, then it remains free, irrespective of whether or not it grants provisional measures, to proceed to the next phase.

26. In the past the Court, even after having affirmed that there could exist a prima facie basis of jurisdiction, still dismissed the requests for provisional measures in some cases for various reasons. In the Interhandel case, the Passage through the Great Belt case and the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, the Court considered that the circumstances of these cases were not such as to require the exercise of its power to indicate provisional measures. In the Aegean Sea Continental Shelf case, the Court did not find such a risk of irreparable prejudice to rights in issue before it as might require the exercise of its power to indicate provisional measures. In the 1990 case concerning the Arbitral Award of 31 July 1989, the Court dismissed the request of the Republic of Guinea-Bissau on the ground that the alleged rights sought to be made the subject of provisional measures were not the subject of the proceedings before the Court on the merits of the case.

Where the Court finds that there is a prima facie basis of jurisdiction, this does not, of course, necessarily lead it to determine that it eventually has jurisdiction in the case. In the Anglo-Iranian Oil Co. case and the [p 796] Interhandel case, the Court, after granting provisional measures, ulti-mately found that it had no jurisdiction to be seised of these cases.

27. In its past jurisprudence the Court has always found, as in those cases mentioned above and in spite of its ultimately negative response to the request for provisional measures, that there existed a prima facie basis of jurisdiction. There has been no previous case in which the Court did not recognize even a prima facie basis of jurisdiction, and the present cases concerning Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal and the United Kingdom are the first in the Court's jurisprudence in which the Court has dismissed a request for the indication of provisional measures due to the lack of prima facie jurisdiction.

The Court's findings at this stage of the present cases that there is not even a prima facie basis of jurisdiction in all eight of the cases mentioned above should be interpreted as a ruling that it has no jurisdiction whatsoever to entertain the Applications, without leaving any room to retain these cases and to deal with the issue of jurisdiction in the future.

28. In its Orders in the cases of Spain and the United States, the Court finds that the cases against them should be removed from the General List, as the Court manifestly lacks jurisdiction to entertain these two Applications. The Court concludes, however, that it should remain seised of the other eight cases on the ground that its finding that it lacks jurisdiction prima facie to entertain the respective Applications instituting proceedings against Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal and the United Kingdom in no way prejudges the question of jurisdiction in those eight cases.

It is my firm belief that, for all the reasons given above concerning the Court's lack of jurisdiction under (i) Article 36, paragraph 2, of the Statute, (ii) the provisions of the instruments of 1930 and 1931 between Yugoslavia and Belgium and the Netherlands, respectively, and (iii) the provisions of the Genocide Convention, and due to my interpretation of the Court's finding concerning the lack of prima facie basis of jurisdiction in the eight cases, as stated in the last sentence of paragraph 27 of this opinion, the Applications in not only the two cases but in all ten cases should be removed from the General List.

It would be contrary to judicial propriety to make a distinction between two groups of States, in what is essentially one case dealing with the same subject throughout, solely because of the difference in attitudes taken by the States towards the relevant documents which give the Court jurisdiction.

29. In conclusion I would like to express my sincere hope that the present situation in the territory of Yugoslavia, in the settlement of which the International Court of Justice as the principal judicial organ of the [p 797] United Nations has no role to play, will be resolved peacefully and in a way that satisfies all humanitarian aspects raised by this case.

(Signed) Shigeru Oda. [p 798]


SEPARATE OPINION OF JUDGE HIGGINS

1. Where one State has accepted the jurisdiction of the Court under Article 36, paragraph 2, of the Statute with a limitation ratione temporis and the other State has accepted the jurisdiction without such a limitation,

"nevertheless, as a consequence of the condition of reciprocity stipulated in paragraph 2 of Article 36 of the Statute of the Court, it is recognized that this limitation holds good as between the Parties" (Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series AIB, No. 74, p. 22).

2. The declaration accepting the Court's compulsory jurisdiction made by the Federal Republic of Yugoslavia on 25 April 1999 states in part that:

"I hereby declare that the Government of the Federal Republic of Yugoslavia recognizes, in accordance with Article 36, paragraph 2, of the Statute of the International Court of Justice, as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, that is on condition of reciprocity, the jurisdiction of the said Court in all disputes arising or which may arise after the signature of the present Declaration, with regard to the situations or facts subsequent to this signature, except in cases where the parties have agreed or shall agree to have recourse to another procedure or to another method of pacific settlement . . ."

This follows, with a small variation, the well-known so-called "Belgian declaration" of 1925 by which any retrospective jurisdiction of the Court ratione temporis was precluded both as to disputes and as to situations and facts.

3. The declaration made by Spain contains no such limitation, but it applies inter se to identify the scope ratione temporis of the [p 799] Court's jurisdiction, for the reason set out in paragraph 1 of this opinion.

4. It may, of course, be the case that, while the dispute has clearly arisen subsequent to the critical date for jurisdiction, the situations or facts giving rise to the dispute appear to have occurred before that date. That was exactly the situation in the Phosphates in Morocco case, where the Permanent Court addressed the possibility that acts "accomplished after the crucial date", when "taken in conjunction with earlier acts to which they are closely linked, constitute as a whole a single, continuing and progressive illegal act which was not fully accomplished until after the crucial date" (Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series AIB, No. 74, p. 23). Equally, there exists the possibility that acts carried out prior to the crucial date "nevertheless gave rise to a permanent situation inconsistent with international law which has continued to exist after the said date" (ibid). This latter eventuality is indeed reflected in the International Law Commission's Draft Article 25 on State Responsibility (Yearbook of the International Law Commission, Vol. II, Part II, p. 80).

5. It is not the Court alone which has had to formulate jurisprudence on the concept of "continuing events": so has the European Court of Human Rights (see Yagci and Sargin v. Turkey, European Human Rights Reports, 1995, p. 505); and so also has the Human Rights Committee (see Guye et al. v. France, No. 196/1985, 3 April 1989, 35th Session); and Siminek v. The Czech Republic (No. 516/1992, 31 July 1995, 54th Session).

6. The Court gave its own answers to this issue in Phosphates in Morocco. It explained that the problem of whether there were "continuing events" that gave rise to a cause of action after the crucial date must be examined in the particular context of each case. But two factors always have to be borne in mind: the first is that

"it is necessary always to bear in mind the will of the State which only accepted the compulsory jurisdiction within specified limits, and consequently only intended to submit to that jurisdiction disputes having actually arisen from situations or facts subsequent to its acceptance" (Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 24).

And second, it was necessary to see if the facts were merely a necessary and logical consequence of earlier ones which were barred from scrutiny by the temporal reservation. On the particular facts of the Phosphates case, the Court found that the cited facts and situations could not be viewed as "a final step and crowning point" of the earlier events (ibid., p. 26) nor did they "alter the situation which had already been estab-[p 800] lished" (P.C.I. J., Series AIB, No. 74, p. 27). Nor could they be separated from those that had arisen before the crucial date.

7. That this particular jurisdictional problem, as any other, requires close attention to be given to the intention of the State issuing its declaration with limitations or reservations was stated by the Permanent Court in the Phosphates in Morocco case and recently affirmed by this Court in case of Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment (I.C.J. Reports 1998, p. 454, para. 49). It is striking that the Federal Republic of Yugoslavia did not advance arguments before the Court suggesting either continuing events or a continuing dispute (the latter not having been an issue in Phosphates in Morocco). It squarely based itself on a dispute it perceived as arising, and situations and facts that it perceived as occurring, after the crucial date of 25 April. It did not wish any dispute there may have been between itself and Spain prior to 25 April to be subject to the Court's jurisdiction, nor any situations and facts relating to such dispute; which element may be thought to have been covered by Article 1 (h) of Spain's own declaration. That was the intention of the Federal Republic of Yugoslavia and it was clear. But within that intent there was also a hope — the hope that there could be identified a dispute that arose only after 25 April. Certainly there were events, occurring after 25 April, that were the subject of the Federal Republic of Yugoslavia's complaint (though these were not specified by date or in any detail). But the Court has not been able to see a dispute arising only after 25 April. The claim that aerial bombing by NATO, and NATO States, was illegal, was made in the Security Council on 24 March and 26 March, and rebutted there. The conditions specified in the Mav-rommatis case (Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P. C.I. J., Series A, No. 2) for the existence of a dispute were thus met at that time.

8. No doubt the continuation of the bombing and the targets hit after 25 April has aggravated and intensified the dispute. But every aerial bombardment subsequent to 25 April does not constitute a new dispute. In short, there are situations and facts occurring subsequent to the crucial date, but there is not at the present time a dispute arising subsequent to that date. In effectively realizing the intention (which the Court must respect) of its declaration, the Federal Republic of Yugoslavia was not able also to realize its hope. Its declaration accordingly fails to invest the Court with jurisdiction. [p 801]

9. Of course, in the Phosphates in Morocco case the Court was addressing temporal limits at the phase of preliminary objections. But because the Court must be satisfied that it has jurisdiction, at least prima facie, before considering whether the conditions of Article 41 of the Statute are met for the indication of interim measures of protection, the question must be dealt with here at this stage, albeit on a provisional basis.

10. Complex issues arise for the Court in satisfying itself that it has a jurisdiction at least sufficient to consider indicating provisional measures under Article 41 of the Statute.

11. Minimal guidance is provided in the Statute and in the Rules of Court as to legal requirements relating to the indication of provisional measures. Article 41 of the Statute merely provides that the Court "shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party". This shows both the function of interim measures and the fact that the Court has a discretion as to their indication — but nothing else. The Rules of Procedure in their successive versions have provided little guidance on the application of Article 41 of the Statute, with those of 1936 and 1978 reflecting the most significant developments in the practice (for details, see Guyomar, Commentaire du Reglement de la Cour International de Justice, 2nd ed.). It has been through the case law of the Court that the many different legal elements relating to provisional measures have evolved (no interim judgment to be given: case concerning the Factory at Chorzow, P.C.I.J, Series A, No. 12; nexus between rights to be protected and the measures sought: Legal Status of the South-Eastern Territory of Greenland, P.C.I.J., Series A/B, No. 48; Polish Agrarian Reform and German Minority, P.C.I.J., Series A/B, No. 58; meaning of the protection of the rights of the parties; the question of extension and aggravation of the dispute: Electricity Company of Sofia and Bulgaria, P.C.I.J., Series A/B, No. 79.

12. It is equally through its case law that the Court has had to address the jurisdictional problems that arise when a request for the indication of provisional measures is made before the Court has definitively established its jurisdiction in a case.

13. In the Anglo-Iranian Oil Co. case, the Court stated that, because "it cannot be accepted a priori" that the claim "falls completely outside the scope of international jurisdiction" the Court could entertain the request for interim measures of protection (Interim Protection, Order of 5 July 1951, I.C.J. Reports 1951, p. 93). At the same time, the Court noted that the indication of such measures "in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case and leaves unaffected the right of the Respondent to submit arguments against such jurisdiction" (ibid.).

14. This latter statement of the consequences for subsequent phases of [p 802] an Order for interim measures has remained essentially unchanged over the years. However, the jurisdictional pre-requisites for the issuance of interim measures of protection have undergone important developments in the jurisprudence. Indeed, the debate had already been heavily engaged within the Anglo-Iranian Oil Co. case itself. In their dissenting opinions, Judges Winiarski and Badawi Pasha viewed the Court as finding that it was competent to indicate interim measures of protection "if prima facie the total lack of jurisdiction of the Court is not patent, that is . . . there is a possibility, however remote, that the Court may be competent" (I.C.J. Reports 1951, p. 97). But observing that interim measures of protection were in international law even more exceptional than in municipal law, as they were "a scarcely tolerable interference in the affairs of a sovereign State", they ought not to be indicated unless the Court's jurisdiction was "reasonably probable".

15. In Fisheries Jurisdiction (United Kingdom v. Iceland), the Court refined the formula, stating that when considering a request for the indication of provisional measures, it had no need "finally to satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to act under Article 41 of the Statute if the absence of jurisdiction on the merits is manifest" (Interim Protection, Order of 17 August 1972, I.C.J. Reports 1972, p. 15).

16. In the Nuclear Tests case (1973), France insisted that the Court was "manifestly not competent in the case". The Court, departing in part from the formula it had used the year before in the Fisheries Jurisdiction case, stated that it "need not . . . finally satisfy itself that it has jurisdiction on the merits of the case", but that it ought not to indicate provisional measures "unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded" (Nuclear Tests (Australia v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 101). In none of the next three provisional measures cases (Trial of Pakistani Prisoners of War, Order of ‘3 July 1973, I.C.J. Reports 1993, p. 328; Aegean Sea Continental Shelf, Order of 11 September 1976, I.C.J. Reports 1976, p. 3; United States Diplomatic and Consular Staff in Tehran, Order of 17 December 1979, I.C.J. Reports 1979, p. 7) was the question of jurisdiction the main basis for the order.

17. In Military and Paramilitary Activities in and against Nicaragua, Provisional Measures (Order of 10 May 1984, I.C.J. Reports 1984, p. 179) the Court came back to the issue, repeating the exact formula of the Nuclear Tests case. That formula is now firmly established (Arbitral Award of 31 July 1989, Provisional Measures, Order of 2 March 1990, I.C.J. Reports 1990, pp. 68-69; Passage through the Great Belt (Finland [p 803] v. Denmark), Provisional Measures, Order of 29 July 1991, I. C.J. Reports 1991, p. 17; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 11, and Order of 13 September 1993, ibid, pp. 16-17; Land and Maritime Boundary between Cameroon and Nigeria, Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (I), p. 12; Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures, Order of 9 April 1998, I.C.J. Reports 1998, p. 255, para. 23; and LaGrand, Provisional Measures, Order of3 March 1999, I.C.J. Reports 1999, p. 13, para. 13).

18. Thus a party seeking the indication of provisional measures must show a prima facie basis upon which the Court's jurisdiction in the case might be founded. That being said, several questions (which have a particular relevance in the present case) remain. What is sufficient to show the required "prima facie" basis for jurisdiction? And what jurisdictional matters will the Court look at, as necessary for this purpose, at the provisional measures stage, and what will it reserve for any further hearings on jurisdiction?

19. It is the practice of the Court that weighty and complex arguments relating to its jurisdiction will not usually be addressed at the provisional measures phase but rather will be regarded as appropriate for resolution only at the preliminary objections phase. The Co-Agent of the Swiss Government in the Interhandel case suggested that the Court would not wish, at the interim measures phase, to adjudicate "upon so complex and delicate a question as the validity of the American reservation" (Interhandel, Interim Protection, Order of 24 October 1957, I.C.J. Reports 1957, p. 111). The Court, there being able to base its refusal to indicate provisional measures on other grounds, gave no answer to this question. In the Nuclear Tests case of 1973, Australia advanced detailed arguments alleging the continued validity and applicability of the General Act of 1928 as a separate basis for jurisdiction. Without distinguishing the General Act from Article 36 of the Statute, the Court satisfied itself with saying that "the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded" (Nuclear Tests (Australia v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 102).

20. In the Military and Paramilitary Activities in and against Nicaragua case (1984), the Court was faced, at the provisional measures stage, with very complicated arguments relating both to the legal effect of the United States declaration of 6 April 1984 and to the apparent failure of Nicaragua to have deposited an instrument of ratification of the protocol to bring its adherence to the Statute of the Permanent Court of Interna-[p 804]tional Justice into effect. The Court briefly recounted the legal problems associated with each of these provisions and stated that it:

"will not now make any final determination of the question of the present validity or invalidity of the declaration of 24 September 1929, and the question whether or not Nicaragua accordingly was or was not, for the purpose of Article 36, paragraph 2, of the Statute of the Court a 'State accepting the same obligation' as the United States of America at the date of filing of the Application, so as to be able to rely on the United States declaration of 26 August 1946, nor of the question whether, as a result of the declaration of 6 April 1984, the present Application is excluded from the scope of the acceptance by the United States of the compulsory jurisdiction of the Court . . ." (Order of 10 May 1984, I.C.J. Reports 1984, p. 180).

The Court satisfied itself with saying that "the two declarations do nevertheless appear to afford a basis on which the jurisdiction of the Court might be founded" (ibid.).
21. In the present case the Court has also not made any final determination upon the question of the Federal Republic of Yugoslavia's status or otherwise as a Member of the United Nations and thus as a party to the Statute having the right to make a declaration under Article 36, paragraph 2, thereof. This is clearly a matter of the greatest complexity and importance and was, understandably, not the subject of comprehensive and systematic submissions in the recent oral hearings on provisional measures.

22. Of course, just as with the question of Nicaragua's ratification of its adherence to the Statute of the Permanent Court in the Military and Paramilitary Activities in and against Nicaragua case, it might be thought that the status of the Federal Republic of Yugoslavia was a necessary "prιalable" to everything else. But when dealing with provisional measures the Court is faced with unavoidable tensions between the demands of logic and the inability to determine with finality when operating under urgency in response to a request for provisional measures. The operational principle is that matters of deep complexity will if possible be left to one side in determining the prima facie jurisdiction of the Court for purposes of Article 41.

23. In the Nuclear Tests cases and in the Military and Paramilitary Activities case, the Court equally held over certain arguments relating to declarations under the Statute. By contrast, the Court in this case has addressed, for purposes of provisional measures, both the terms of the declarations of the Federal Republic of Yugoslavia and Spain and the interaction of the declarations of the Federal Republic of Yugoslavia and Spain. [p 805]

24. The prima facie test of jurisdiction does not make it sufficient merely to note the very existence of two declarations at this stage. This is not to be deduced from the statement of the Court in the Cameroon v. Nigeria provisional measures case that "the declarations made by the Parties in accordance with Article 36, paragraph 2, of the Statute constitute a prima facie basis upon which its jurisdiction in the present case might be founded" (I.C.J. Reports 1996 (I), p. 21, para. 31). The Nigerian request for a reconsideration of the rule in the Rights of Passage case, as it bore on the interpretation of its own declaration, clearly fell into that category of complex and weighty objections to jurisdiction that had to be deferred for proper consideration until the preliminary objections phase. In that particular light (and because the Rights of Passage principle was well established in the Court's case law), the declarations would in the meantime be treated as establishing prima facie jurisdiction.

25. The same guiding principles apply to treaties said to provide a basis for the Court's jurisdiction. Thus the several complicated arguments that had been advanced in connection with Article IX of the Genocide Convention were not addressed in the provisional measures phase of the Genocide case of 1993; and it was against that background that the Court said that Article IX of the Convention appeared to "afford a basis on which the jurisdiction of the Court might be founded" (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 16; and Order of 13 September 1993, I.C.J. Reports 1993, p. 342).

26. But it should not be thought that mere invocation of a jurisdictional clause, with nothing more, suffices to establish a prima facie basis of the Court's jurisdiction. It cannot be otherwise, because the jurisdiction of the Court — even if one might regret this state of affairs as we approach the twenty-first century — is based on consent. And consent to jurisdiction cannot be established, even prima facie, when it is clear from the terms of the declarations themselves that the necessary consent is not prima facie present, or simply is not present, simpliciter. As Sir Hersch Lauterpacht put it in his separate opinion in the Interhandel case, the test of jurisdiction of the Court prima facie is met if, in the relevant instruments, there are "no reservations obviously excluding its jurisdiction" (I.C.J. Reports 1957, pp. 118-119). Reservations relevant for this purpose are both those in a State's own declaration and those that it may rely on reciprocally.

27. Yugoslavia made no submission at all to the Court on either the Optional Clause declaration of Spain or on its interplay with its own reservation. It did not explain why the provisions of Article 1 (e) of the dec-[p 806]laration of Spain did not exclude the jurisdiction of the Court on the particular facts of this case. But the Court cannot fail to consider these matters, and none of them is so obscure and complicated that it could not be dealt with at this stage; and nor was that suggested by Yugoslavia.

28. As the Court stated in the Norwegian Loans case: "since two unilateral declarations are involved [reciprocal] jurisdiction is conferred upon the Court only to the extent to which the Declarations coincide in conferring it" (Judgment, I.C.J. Reports 1957, p. 23). And the Court clearly stated in Fisheries Jurisdiction (Spain v. Canada) that:

"Conditions or reservations thus do not by their terms derogate from a wider acceptance already given. Rather, they operate to define the parameters of the State's acceptance of the compulsory jurisdiction of the Court." (I.C.J. Reports 1998, p. 453, para. 44.)

Each of these dicta appears in the judgments on jurisdiction, these not having been provisional measures cases. But a State seeking the introduction of provisional measures must show that jurisdiction prima facie exists, notwithstanding conditions, reservations and the operation of reci-procity between declarations.

29. The restraint upon the liberty of action of a State that necessarily follows from the indication of provisional measures will not be countenanced unless, prima facie, there is jurisdiction. But an absence of prima facie jurisdiction at this stage and for this purpose does not necessarily mean that jurisdiction may not, in the event, later be established. However, if in considering whether there is jurisdiction prima facie for purposes of Article 41 of the Statute, it is clear beyond doubt that no jurisdiction exists in a particular case, good administration of justice requires that the case be immediately struck off the List in limine.

***

30. Finally, it should not be thought that the Court, because it has had to address the question of its prima facie jurisdiction in the case brought by the Federal Republic of Yugoslavia, is indifferent to the great suffering in Kosovo and Yugoslavia. Indeed, the preambular paragraphs to its Order show otherwise. Nor does it seek to avoid making its contribution to an elucidation of the heavily contested issues of law. But the Court can take on its responsibilities within the United Nations system and use its [p 807] judicial authority and creativity only when it has jurisdiction. In this case, the Court's jurisdiction has yet to be established even prima facie.

(Signed) Rosalyn Higgins. [p 808]

 

SEPARATE OPINION OF JUDGE PARRA-ARANGUREN

1. Notwithstanding my vote for the operative part of the Order, with the exception of paragraph 2, I consider it necessary to make the following observations.

2. Preliminary objections are regulated by Subsection 2 of Section D within Part III of the Rules of Court. Article 79, paragraph 1, provides as follows:

"Any objection by the respondent to the jurisdiction of the Court or to the admissibility of the application, or other objection the decision upon which is requested before any further proceedings on the merits, shall be made in writing within the time-limit fixed for the delivery of the Counter-Memorial."

3. Paragraph 7 of the same Article 79 adds:

"After hearing the parties, the Court shall give its decision in the form of a judgment, by which it shall either uphold the objection, reject it, or declare that the objection does not possess in the circumstances of the case, an exclusively preliminary character. If the Court rejects the objection or declares that it does not possess an exclusively preliminary character, it shall fix time-limits for the further proceedings."

4. The Court has no discretionary powers to depart from the Rules established by Article 79. The present proceedings have not yet reached the stage of preliminary objections. Therefore, when deciding upon a request for provisional measures, in my opinion the Court can neither make its final determination on jurisdiction nor order the removal of the case from the Court's List.

(Signed) Gonzalo Parra-Aranguren. [p 809]

 

SEPARATE OPINION OF JUDGE KOOIJMANS

1. I have voted in favour of the Court's decision that the request for the indication of provisional measures submitted by the Federal Republic of Yugoslavia must be rejected. I also agree with the Court's finding that Article IX of the Genocide Convention can not constitute a basis of juris-diction, even prima facie.

2. I do not agree, however, with the Court's view that Yugoslavia's declaration of acceptance of the compulsory jurisdiction of the Court of 25 April 1999 cannot provide a basis of jurisdiction in the present case, even prima facie, because of the reservation incorporated in the declaration of Spain.

It is my opinion that in this respect the Court's reasoning is flawed from a logical point of view and is, therefore, inconsistent. I therefore feel compelled to set out my arguments which are based on the following factual and legal considerations.

3. In its Application the Government of the Federal Republic of Yugoslavia invoked Article 36, paragraph 2, of the Statute as a legal ground for the Court's jurisdiction. It may be recalled that on 25 April 1999 Yugoslavia recognized the compulsory jurisdiction of the Court by depositing a declaration of acceptance with the Secretary-General of the United Nations. This declaration contains a limitation ratione temporis; the jurisdiction of the Court is only recognized with regard to disputes "arising or which may arise after the signature of the present Declaration, with regard to the situations or facts subsequent to this signature".

4. During the oral hearings the Respondent, which also has accepted the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute, contended that the Court lacks prima facie jurisdiction and that, consequently, the conditions for the indication of interim measures of protection are not met. With regard to the declaration of acceptance of 25 April 1999 the Respondent maintained that it is invalid since Yugoslavia is not a Member of the United Nations and therefore not a party to the Statute, whereas Article 36, paragraph 2, explicitly states that declarations under that provision can only be made by States which are party to the Statute. Spain further invoked a reservation in its own declaration of acceptance as preventing the Court from having jurisdiction.

5. In this respect it is relevant to recall that at the time of the proclamation of the Federal Republic of Yugoslavia a declaration was adopted by its parliamentary organs in which it is stated that the "Federal Republic of Yugoslavia, continuing the State, international, legal and political [p 810] personality of the Socialist Federal Republic of Yugoslavia, shall strictly abide by all the commitments that the Socialist Federal Republic of Yugoslavia assumed internationally".

6. After a note, containing a virtually identical statement, had been submitted by the Yugoslav Permanent Mission in New York to the Secretary-General of the United Nations and had been circulated to the member States, the Security Council decided that a presidential statement be issued in which it was noted that the Council members were of the opinion that the Yugoslav communication did not prejudge decisions that might be taken by appropriate United Nations bodies.

7. Such decisions were taken five months later. On 19 September 1992 the Security Council adopted resolution 777 (1992); the relevant parts read as follows:

"The Security Council,
………………………………………………………………………………………………
Considering that the State formerly known as the Socialist Federal Republic of Yugoslavia has ceased to exist,
………………………………………………………………………………………………
1. Considers that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations; and therefore recommends to the General Assembly that it decide that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly;

2. Decides to consider the matter again before the end of the main part of the forty-seventh session of the General Assembly."

8. Three days later, on 22 September 1992, the General Assembly adopted resolution 47/1, which reads as follows:

"The General Assembly,

Having received the recommendation of the Security Council of 19 September 1992 that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly.

1. Considers that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations; and therefore decides that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly;

2. Takes note of the intention of the Security Council to consider the matter again before the end of the main part of the forty-seventh session of the General Assembly."

It may be observed that the resolution of the General Assembly does not reiterate the Security Council's consideration that "the State formerly known as the Socialist Federal Republic of Yugoslavia has ceased to exist".

9. On 29 September 1992 the Under-Secretary-General and Legal Counsel of the United Nations addressed a letter to the Permanent Representatives of Bosnia and Herzegovina and of Croatia in which he expressed "the considered view of the United Nations Secretariat regarding the practical consequences of the adoption by the General Assembly of resolution 47/1".

In this letter the Legal Counsel said that

"General Assembly resolution 47/1 deals with a membership issue which is not foreseen in the Charter of the United Nations, namely, the consequences for purposes of membership in the United Nations of the disintegration of a Member State on which there is no agree-ment among the immediate successors of that State or among the membership of the Organization at large".

He gave as his view that "the only practical consequence that the resolution draws is that the Federal Republic of Yugoslavia (Serbia and Montenegro) shall not participate in the work of the General Assembly".

He added that

"the resolution neither terminates nor suspends Yugoslavia's membership in the Organization. Consequently, the seat and nameplate remain as before, but in Assembly bodies representatives of the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot sit behind the sign 'Yugoslavia' . . . The resolution does not take away the right of Yugoslavia to participate in the work of organs other than Assembly bodies. The admission to the United Nations of a new Yugoslavia under Article 4 of the Charter will terminate the situation created by resolution 47/1."

10. On 5 May 1993 the General Assembly in resolution 47/229 decided that the Federal Republic of Yugoslavia would not participate in the work of the Economic and Social Council either. No follow-up was ever given to these resolutions of the appropriate organs.

11. The Court was already confronted with the question whether or not the Federal Republic of Yugoslavia is a Member of the United Nations and as such a party to the Statute when it dealt with the request for the indication of provisional measures in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide. [p 812]

The Court, however, was of the opinion that at that stage of the proceedings there was no need to determine definitively Yugoslavia's status. In what certainly must be called an understatement the Court called "the solution adopted [by the General Assembly in resolution 47/1] . . . not free from legal difficulties" (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 14, para. 18).

12. In the Genocide case the Court's view that it was not necessary to deal with the issue of Yugoslavia's membership of the United Nations was understandable and even logical since the Court had in any event prima facie jurisdiction under Article IX of the Genocide Convention.

In the present case, however, the Court has found that the reservation which Spain has made with regard to Article IX of the Convention prevents it from assuming that it has jurisdiction, even prima facie. (Order, paras. 32 and 33.)

13. The other and only remaining title for the Court's jurisdiction, invoked by Yugoslavia, is that of the mutual acceptance of the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute. One would expect, therefore, that the Court would no longer be able to avoid the rather thorny question of Yugoslavia's membership of the United Nations and, therefore, of that of the legal validity of its declaration of acceptance.

14. In its present Order, however, the Court again — like in 1993 — takes the position that it need not consider this question for the purpose of deciding whether or not it can indicate provisional measures in view of its finding that the conditions for the exclusion of the Court's jurisdiction provided for in paragraph 1 (c) of the Respondent's declaration are satisfied (para. 25); the Spanish reservation excludes from the jurisdiction of the Court disputes in regard to which the other party or parties have accepted the compulsory jurisdiction of the Court less than 12 months prior to the filing of the application bringing this dispute before the Court.

15. In this respect the Court relies upon what it said in its Judgment of 11 June 1998 in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria:

"[a]s early as 1952, it held in the case concerning Anglo-Iranian Oil Co. that, when declarations are made on condition of reciprocity, 'jurisdiction is conferred on the Court only to the extent to which the two Declarations coincide in conferring it' (I.C.J. Reports 1952, p. 103)" (I.C.J. Reports 1998, p. 298, para. 43; emphasis added).

And the Court concludes by saying that the declarations made by the [p 813] Parties under Article 36, paragraph 2, of the Statute manifestly cannot constitute a basis in the present case, even prima facie. (Order, para. 25.)

16. With all due respect, I find this reasoning puzzling if not illogical and inconsistent. How can the Court say that there is no need to consider the question of the validity of Yugoslavia's declaration whereas at the same time it concludes that this declaration, taken together with that of the Respondent, cannot constitute a basis of jurisdiction? This conclusion surely is based on the presumption of the validity of Yugoslavia's declaration, at least for the present stage of the proceedings. If such a presumption does not exist, the Court should at least have said that it accepts that validity purely arguendo since, even if it had been valid, it would not have had the capability to confer jurisdiction on the Court in view of Spain's reservation to its own declaration.

17. In this respect I must confess that the reference to the Cameroon v. Nigeria case (although correctly made in the context as framed by the Court) does not seem to be particularly well chosen, for in that case — as in most other cases which have come before the Court under Article 36, paragraph 2, of the Statute — it was not the validity of the Applicant's declaration which was in issue but the question whether it could be invoked against the Respondent. It is for that reason that the Court two years earlier in its Order indicating provisional measures could find "that the declarations made by the Parties in accordance with Article 36, paragraph 2, of the Statute constitute a prima facie basis upon which its jurisdiction in the present case might be founded" (Land and Maritime Boundary between Cameroon and Nigeria, Order of 15 March 1996, I.C.J. Reports 1996 (I), p. 21, para. 31), in spite of the fact that Nigeria had contended that Cameroon could not rely upon its own declaration (the validity of which was not contested) vis-ΰ-vis Nigeria.

18. In his separate opinion joined to the Court's Order on interim measures of protection in the Interhandel case, Judge Hersch Lauterpacht said the following:

"The Court may properly act under the terms of Article 41 provided that there is in existence an instrument such as a Declaration of Acceptance of the Optional Clause, emanating from the Parties to the dispute, which prima facie confers jurisdiction upon the Court and which incorporates no reservations obviously excluding its jurisdiction." (I.C.J. Reports 1957, pp. 118-119; emphasis added.)

19. This quotation indicates the correct order in which decisions must be taken. The Court first has to establish the existence of an instrument which prima facie is capable of conferring jurisdiction upon the Court; it is only after this has been established that the question becomes relevant whether such instruments, emanating from the parties to the dispute, contain reservations which manifestly exclude the Court's jurisdiction. [p 814]

20. I am, therefore, of the opinion that the Court should not have avoided the question of Yugoslavia's membership of the United Nations and the ensuing validity or invalidity of its declaration of acceptance, but should have dealt with it as a preliminary issue. Only after having established that this declaration is capable of providing the Court with a prima facie basis for its jurisdiction could the Court have considered in a meaningful way whether reservations made in either of the declarations obviously exclude its jurisdiction. For if the Court would have concluded that the Yugoslav declaration is not capable of conferring this prima facie jurisdiction, the latter question becomes irrelevant.

21. Not for a moment do 1 contend that the Court already at the present stage of the proceedings should have taken a definitive stand on what I called earlier a thorny question. The dossier on the controversy with regard to the Federal Republic of Yugoslavia's continuation of the international personality of the Socialist Federal Republic of Yugoslavia is full of legal snags. The decisions taken by the appropriate United Nations bodies are without precedent and raise a number of as yet unsolved questions. Neither should it be forgotten, however, that these decisions have been taken by the organs which according to the Charter have the exclusive authority in questions of membership. Their decisions therefore, cannot easily be overlooked or ignored, even if the interpretations given to them by the member States which have participated in the decision-making process are widely divergent.

22. The factual and legal background of this question necessitates a thorough analysis and a careful evaluation by the Court when it deals with its jurisdiction on the merits at a later stage. What the Court should have done, however, in the present stage of the proceedings, is to deter-mine whether the doubts, raised by the decisions of the competent United Nations bodies with regard to the continued membership of the Federal Republic of Yugoslavia, are serious enough to bar the Court from assuming that it has prima facie jurisdiction to entertain the case brought by Yugoslavia on the basis of its declaration of acceptance.

23. In this respect it is, in my opinion, of primordial importance that both the Security Council and the General Assembly expressed the view that the Federal Republic of Yugoslavia cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia and therefore (emphasis added) that the Federal Republic of Yugoslavia should apply for membership.

Security Council resolution 777 (1992) and General Assembly resolution 47/1 seem to establish a causal link between the requirement of an application of membership and the issue of the continuation of the membership of the former Socialist Federal Republic of Yugoslavia. This
[p 815] "causal link" seems to be a breeding-ground of inconsistencies, both legally and otherwise. Nevertheless it cannot be fully ignored.

24. In this respect it is worthwhile to quote once more from the letter of 29 September 1992 of the United Nations Legal Counsel, referred to in paragraph 9 above. The Legal Counsel wrote that "the admission to the United Nations of a new Yugoslavia under Article 4 of the Charter will terminate the situation created by resolution 47/1" .

During the debate in the General Assembly on the draft resolution which was finally adopted as resolution 47/1 (22 September 1992) the then Prime Minister of the Federal Republic of Yugoslavia said: "I herewith formally request membership in the United Nations on behalf of the new Yugoslavia, whose Government I represent". The United Nations, however, never received any written document as a follow-up to that statement.

25. Against this background I come to the conclusion that there are strong reasons for doubt as to whether the Federal Republic of Yugoslavia is a full-fledged, fully qualified Member of the United Nations and as such capable of accepting the compulsory jurisdiction of the Court as a party to the Statute.

That means that there is a probability, which is far from negligible, that the Court after a thorough analysis of the legal issues involved will find that is without jurisdiction because of the invalidity of Yugoslavia's declaration of acceptance.

26. The disputed validity of that declaration touches the very basis of the Court's jurisdiction and, therefore, takes precedence over other issues, like, for example, limitations rutione temporis, ratione materiae and ratione personae. In view of the doubts and the controversies with regard to this question the Court would have found itself on safe ground if it had concluded that the uncertainties about the validity of Yugoslavia's declaration prevent it from assuming that it has jurisdiction, even prima facie.

27. In their dissenting opinion in the Anglo-Iranian Oil Co. case (interim measures of protection) Judges Winiarski and Badawi Pasha stressed the importance of the consent of the Parties in the context of Article 41 of the Statute. They went on to say:
"the Court ought not to indicate interim measures of protection unless its competence, in the event of this being challenged, appears to the Court nevertheless reasonably probable" (emphasis added).

And they concluded:

"if there exist weighty arguments in favour of the challenged juris-[p 816] diction, the Court may indicate interim measures of protection; if there exist serious doubts or weighty arguments against this jurisdiction such measures cannot be indicated" (I.C.J. Reports 1951, p. 97).

It is my considered view that because of the thick clouds which have packed around Yugoslavia's membership of the United Nations, the ensuing uncertainty of the validity of its declaration does not pass the test of "reasonable probability".

28. There have been earlier occasions when the Court shied away from thorny questions and chose to decide a case on other grounds which were judicially preferable albeit not logically defensible. The most famous example is the Interhandel case where the Court first rejected three of four preliminary objections regarding the Court's jurisdiction, then upheld a preliminary objection on admissibility and ultimately decided that there was no need to consider the fourth objection on jurisdiction. This order of dealing with preliminary objections has been criticized and for good reasons but it is at least comprehensible as the various objections were completely different in character.

29. The present case, however, is different. The issue of the declaration's validity is preconditional for that of the applicability of the reservations and time limitations. The latter issue is completely dependent upon the former. In particular with regard to the limitation ratione temporis in Yugoslavia's own declaration this becomes relevant. If the majority of the Court in the relevant cases (Belgium, Canada, the Netherlands and Portugal) would have found that this limitation did not act as a bar to the Court's prima facie jurisdiction, the Court could no longer have avoided to take up the question of the declaration's validity. This shows that that finding would have been wholly conditioned by this threshold question.

30. Finally, let me state that I find the Court's view that the temporal limitation contained in Yugoslavia's declaration prevents the Court from assuming that it has prima facie jurisdiction persuasive, although it does not fully satisfy me. In my view, however, that finding would have been superfluous if the Court had based its negative conclusion on the question of the validity of Yugoslavia's declaration.

(Signed) Pieter H. Kooijmans. [p 817]

 


SEPARATE OPINION OF JUDGE KRECA

Table of contents

 

 

Paragraphs

 

 

I. Composition of the Court in This Particular Case

1-4

 

 

II. Appraisal of the Spanish Reservation to Article IX of the Genocide Convention

5

 

 

III. Other Relevant Isslies

6-9

[p 818]


I. Composition of the Court in This Particular Case

1. In the context of the conceptual difference between the international magistrature and the internal judicial system within a State, the institution of judge ad hoc has two basic functions:

'(a) to equalize the situation when the Bench already includes a Member of the Court having the nationality of one of the parties; and (h) to create a nominal equality between two litigating States when there is no Member of the Court having the nationality of either party" (S. Rosenne, The Law and Practice of the International Court, 1920-1996, Vol. Ill, pp. 1124-1125).

In this particular case room is open for posing the question as to whether either of these two basic functions of the institution of judge ad hoc has been fulfilled at all.

It is possible to draw the line between two things.

The first is associated with equalization of the Parties in the part concerning the relations between the Applicant and the respondent States which have a national judge on the Bench. In conereto, of special interest is the specific position of the respondent States. They appear in a dual capacity in these proceedings:

primo, they appear individually in the proceedings considering that each one of them is in dispute with the Federal Republic of Yugoslavia: and,

secondo, they are at the same time member States of NATO under whose institutional umbrella they have undertaken the armed attack on the Federal Republic of Yugoslavia. Within the framework of NATO, these respondent States are acting in corpore, as integral parts of an organizational whole. The corpus of wills of NATO member States, when the undertaking of military operations is in question, is constituted into a collective will which is, formally, the will of NATO.

2. The question may be raised whether the respondent States can qualify as parties in the same interest.

In its Order of 20 July 1931 in the case concerning the Customs Regime between Germany and Austria, the Permanent Court of International Justice established that:

"all governments which, in the proceedings before the Court, come to the same conclusion, must be held to be in the same interest for the purposes of the present case" (P.C.I.J., Series AIB, No. 41, p. 88).

The question of qualification of the "same interest", in the practice of the Court, has almost uniformly been based on a formal criterion, the criterion of "the same conclusion" to which the parties have come in the proceedings before the Court.
In the present case, the question of "the same conclusion" as the relevant criterion for the existence of "the same interest" of the respondent [p 819] States is, in my opinion, unquestionable. The same conclusion was, in a way, inevitable in the present case in view of the identical Application which the Federal Republic of Yugoslavia has submitted against ten NATO member States, and was formally consecrated by the outcome of the proceedings before the Court held on 10, 11 and 12 May 1999, in which all the respondent States came to the identical conclusion resting on the foundation of practically identical argumentation which differed only in the fashion and style of presentation.

Hence, the inevitable conclusion follows, it appears to me, that all the respondent States are in concrete) parties in the same interest.

3. What are the implications of this fact for the composition of the Court in the present case? Article 31, paragraph 2, of the Statute says: "If the Court includes upon the Bench a judge of the nationality of one of the parties, any other party may choose a person to sit as judge."

The Statute, accordingly, refers to the right of "any other party", namely, a party other than the party which has a judge of its nationality, in the singular. But, it would be erroneous to draw the conclusion from the above that "any other party", other than the party which has a judge of its nationality, cannot, under certain circumstances, choose several judges ad hoc. Such an interpretation would clearly be in sharp contradiction with ratio legis of the institution of judge ad hoc, which, in this particular case, consists of the function "to equalize the situation when the Bench already includes a Member of the Court having the nationality of one of the parties" (S. Rosenne, The Law and Practice of the International Court, 1920-1996, Vol. Ill, pp. 1124-1125). The singular used in Article 31, paragraph 2, of the Statute with reference to the institution of judges ad hoc is, consequently, but individualization of the general, inherent right to equalization in the composition of the Bench in the relations between litigating parties, one of which has a judge of its nationality on the Bench, while the other has not. The practical meaning of this principle applied in casum would imply the right of the Applicant to choose as many judges ad hoc to sit on the Bench as is necessary to equalize the position of the Applicant and that of those respondent States which have judges of their nationality on the Bench and which share the same interest. In concrete the inherent right to equalization in the composition of the Bench, as an expression of fundamental rule of equality of parties, means that the Federal Republic of Yugoslavia should have the right to choose five judges ad hoc, since even five out often respondent States (the United States of America, the United Kingdom, France, Germany and the Netherlands) have their national judges sitting on the Bench.

Regarding the notion of equalization which concerns the relation between the party entitled to choose its judge ad hoc and the parties which have their national judges on the Bench, the fact is that the Federal Republic of Yugoslavia, as can be seen from the Order, did not raise any objections to the circumstance that as many as five respondent States have judges of their nationality on the Bench. However, this circumstance surely cannot be looked upon as something making the question [p 820] irrelevant, or, even as the tacit consent of the Federal Republic of Yugoslavia to such an outright departure from the letter and spirit of Article 31, paragraph 2, of the Statute.
The Court has, namely, the obligation to take account ex officio of the question of such a fundamental importance, which directly derives from, and vice versa, may directly and substantially affect, the equality of the parties. The Court is the guardian of legality for the parties to the case, for which presumptio juris et de jure alone is valid — to know the law (jura novit curia). As pointed out by Judges Bedjaoui, Guillaume and Ranjeva in their joint declaration in the Lockerbie case: "that is for the Court — not the parties — to take the necessary decision" (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), I.C.J. Reports 1998, p. 36, para. 11).

A contrario, the Court would risk, in a matter which is ratio legis proper of the Court's existence, bringing itself into the position of a passive observer, who only takes cognizance of the arguments of the parties and, then, proceeds to the passing of a decision.

4. The other function is associated with equalization in the part which is concerned with the relations between the Applicant and those respondent States which have no national judges on the Bench.

The respondent States having no judge of their nationality on the Bench have chosen, in the usual procedure, their judges ad hoc (Belgium, Canada, Italy and Spain). Only Portugal has not designated its judge ad hoc. The Applicant successively raised objections to the appointment of the respondent States'judges ad hoc invoking Article 31, paragraph 5, of the Statute of the Court. The responses of the Court with respect to this question invariably contained the standard phrase "that the Court . . . found that the choice of a judge ad hoc by the Respondent is justified in the present phase of the case".

Needless to say, the above formulation is laconic and does not offer sufficient ground for the analysis of the Court's legal reasoning. The only element which is subject to the possibility of teleological interpretation is the qualification that the choice of a judge ad hoc is "justified in the present phase of the case". A contrario, it is, consequently, possible that such an appointment of a judge ad hoc would "not be justified" in some other phases of the case. The qualification referred to above could be interpreted as the Court's reserve with respect to the choice of judges ad hoc by the respondent States, a reserve which could be justifiable on account of the impossibility for the Court to perceive the nature of their interest — whether it is the "same" or "separate" — before the parties set out their positions on the case.

The meanings of equalization as a ratio legis institution of judges ad hoc, in the case concerning the Applicant and respondent States which [p 821] are parties in the same interest, and which do not have a judge ad hoc of their nationality on the Bench, have been dealt with in the practice of the Court, in a clear and unambiguous manner.

In the South West Africa case (1961) it was established that, if neither of the parties in the same interest has a judge of its nationality among the Members of the Court, those parties, acting in concert, will be entitled to appoint a single judge ad hoc (South West Africa, I.C.J. Reports 1961, p. 3).
If, on the other hand, among the Members of the Court there is a judge having the nationality of even one of those parties, then no judge ad hoc will be appointed (Territorial Jurisdiction of the International Commission of the River Oder, P.C.I.J., Series C, No. 17-11, p. 8; Customs Regime between Germany and Austria, 1931, P.C.I.J., Series AIB, No. 41, p. 88).

This perfectly coherent jurisprudence of the Court applied to this particular case, means that none of the respondent States were entitled to appoint a judge ad hoc.

Consequently, it may be said that in the present case neither of the two basic functions of the institution of judge ad hoc has been applied in the composition of the Court in a satisfactory way. In my opinion, it is a question of the utmost specific weight in view of the fact that, obviously, its meaning is not restricted to the procedure, but that it may have a far-reaching concrete meaning.

II. Appraisal of the Spanish Reservation to Article IX of the Genocide Convention

5. In the particular case of Spain, relevant conditions for the jurisdiction of the International Court of Justice have not concurred.

However, it should be pointed out that a reservation such as the one made by Spain with respect to Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide surely does not contribute to the implementation of the concept of an organized, de jure, international community.

As the Court set out in its Opinion of 28 May 1951, "the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation" (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23) and

"In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d'etre of the convention." (Ibid.)

States do not express verbally their belief in international law by [p 822] making declaratory vows but by taking effective measures aimed at the implementation of human rights and fundamental freedoms.

In an eminently political commonwealth, such as the international community, judicial protection of those rights and liberties is almost the only way of realization of Grotius' dream of the international community as a true genus humanum.

III. Other Relevant Issues

6. In paragraph 15 of the Order the Court states:

"Whereas the Court is deeply concerned with the human tragedy, the loss of life, and the enormous suffering in Kosovo which form the background of the present dispute, and with the continuing loss of life and human suffering in all parts of Yugoslavia."

The phrasing of the statement seems to me unacceptable for a number of reasons. First, the formulation introduces dual humanitarian concern. The Court is, it is stated, "deeply concerned", while at the same time the Court states "the loss of life". So, it turns out that in the case of "all parts of Yugoslavia" the Court technically states "the loss of life" as a fact which does not cause "deep concern". Furthermore, the wording of the formulation may also be construed as meaning that Kosovo is not a part of Yugoslavia. Namely, after emphasizing the situation in Kosovo and Metohija, the Court uses the phrase "in all parts of Yugoslavia". Having in mind the factual and legal state of affairs, the appropriate wording would be "in all other parts of Yugoslavia". Also, particular reference to "Kosovo" and "all parts of Yugoslavia", in the present circumstances, has not only no legal, but has no factual basis either. Yugoslavia, as a whole, is the object of attack. Human suffering and loss of life are, unfortunately, a fact, generally applicable to the country as a whole; so, the Court, even if it had at its disposal the accurate data on the number of victims and the scale of suffering of the people of Yugoslavia, it would still have no moral right to discriminate between them. Further, the qualification that "human tragedy and the enormous suffering in Kosovo . . . form the background of the present dispute" not only is political, by its nature, but has, or may have, an overtone of justification of the armed attack on Yugoslavia. Suffice it to recall the fact that the respondent State refers to its armed action as humanitarian intervention.

It is up to the Court to establish, at a later stage of the proceedings, the real legal state of affairs, namely, the relevant facts. At the present stage, the question of the underlying reasons for the armed attack on the Fed-[p 823]eral Republic of Yugoslavia is the object of political allegations. While the Respondent argues that what is involved is a humanitarian intervention provoked by the "human tragedy and the enormous suffering", the Applicant finds that sedes materiae the underlying reasons are to be sought elsewhere — in the support to the terrorist organization in Kosovo and in the political aim of secession of Kosovo and Metohija from Yugoslavia.

Consequently, we are dealing here with opposed political qualifications in which the Court should not, and, in my view, must not, enter except in the regular court proceedings.

7. The formulation of paragraph 39 of the Order leaves the impression that the Court is elegantly attempting to drop the ball in the Security Council's court. Essentially, it is superfluous because, as it stands now, it only paraphrases a basic fact that "the Security Council has special responsibilities under Chapter VII of the Charter". It can be interpreted, it is true, also as an appeal to the United Nations organ, specifically entrusted with the duty and designed to take measures in case of threat to the peace, breach of the peace or act of aggression; but, in that case the Court would need to stress also another basic fact — that a legal dispute should be referred to the International Court of Justice on the basis of Article 36, paragraph 3, of the United Nations Charter.

8. The Court, by using the term "Kosovo" instead of the official name of "Kosovo and Metohija", continued to follow the practice of the political organs of the United Nations, which, by the way, was also strictly followed by the respondent States.

It is hard to find a justifiable reason for such a practice. Except of course if we assume political opportuneness and involved practical, political interests to be a justified reason for this practice. This is eloquently shown also by the practice of the designation of the Federal Republic of Yugoslavia. After the succession of the former Yugoslav federal units, the organs of the United Nations, and the respondent States themselves, have used the term Yugoslavia (Serbia and Montenegro). However, since 22 November 1995, the Security Council uses in its resolutions 1021 and 1022 the term "Federal Republic of Yugoslavia" instead of the former "Federal Republic of Yugoslavia (Serbia and Montenegro)" without any express decision and in a legally unchanged situation in relation to the one in which it, like other organs of the United Nations, employed the term "Federal Republic of Yugoslavia (Serbia and Montenegro)". The fact that this change in the practice of the Security Council appeared on the day following the initialling of the Peace Agreement in Dayton gives a strong basis for the conclusion that the concrete practice is not based on objective, legal criteria but rather on political criteria.

By using the word "Kosovo"instead of the name "Kosovo and Metohija", the Court, in fact, is doing two things: [p 824]

(a) it gives in to the colloquial use of the names of territorial units of an independent State; and

(b) it ignores the official name of Serbia's southern province, a name embodied both in the constitutional and legal acts of Serbia and of the Federal Republic of Yugoslavia. Furthermore, it runs contrary to the established practice in appropriate international organizations. Exempli causa, the official designation of the southern Serbian province "Kosovo and Metohija" has been used in the Agreement concluded by the Federal Republic of Yugoslavia and the Organisation for Security and Co-operation in Europe (International Legal Materials, 1999, Vol. 38. p. 24).

Even if such a practice — which, in my opinion, is completely inappropriate not only in terms of the law but also in terms of proper usage — could be understood when resorted to by entities placing interest and expediency above the law, it is inexplicable in the case of a judicial organ.

9. A certain confusion is also created by the term "humanitarian law" referred to in paragraphs 18 and 37 of the Order. The reasons for the confusion are dual: on the one hand, the Court has not shown great consistency in using this term. In the Genocide case the Court qualified the Genocide Convention as a part of humanitarian law, although it is obvious that, by its nature, the Genocide Convention falls within the field of international criminal law (see dissenting opinion of Judge Kreca in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, I.C.J. Reports 1996 (II), para. 108, p. 774-775).

On the other hand, it seems that in this Order the term "humanitarian law" has been used with a different meaning, more appropriate to the generally accepted terminology. The relevant passage in the Order should be mentioned precisely because of the wording of its paragraphs 18 and 37. The singling out of humanitarian law from the rules of international law which the Parties are bound to respect may imply low-key and timid overtones of vindication or at least of diminishment of the legal implications of the armed attack on the Federal Republic of Yugoslavia.

Humanitarian law, in its legal, original meaning implies the rules of jus in hello. If, by stressing the need to respect the rules of humanitarian law, which I do not doubt, the Court was guided by humanitarian considerations, then it should have stressed expressis verbis also the fundamental importance of the rule contained in Article 2, paragraph 4, of the Charter, which constitutes a dividing line between non-legal, primitive international society and an organized, de jure, international community.

(Signed) Milenko Kreca.

 
     

 

 






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