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[p.542]
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 the Netherlands
(hereinafter "the Netherlands") "for violation of the obligation not to use
force", [p 543]
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 the
Netherlands 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 the Netherlands, 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 the Netherlands is taking part in the
training, arming, financing, equipping and supplying the so-called 'Kosovo
Liberation Army'"; [p 544]
and whereas it further states that the said claims are based on the
following legal grounds:
"The above acts of the Netherlands Government 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 Cov-enant 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 the Netherlands 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 the Netherlands 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 the Netherlands 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 the
Netherlands has acted against the Federal Republic of Yugoslavia in breach
of its obligation to spare the civilian population, civilians and civilian
objects; [p 545]
by taking part in destroying or damaging monasteries, monuments of
culture, the Kingdom of the Netherlands 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 the Netherlands
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 the Netherlands 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 the Netherlands 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 the
Netherlands 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 the Netherlands 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
the Netherlands 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 the Netherlands is responsible for the violation of the
above international obligations;
the Kingdom of the Netherlands is obliged to stop immediately the
violation of the above obligations vis-ΰ-vis the Federal Republic of
Yugoslavia;
the Kingdom of the Netherlands is obliged to provide compensa-[p 546]tion
for 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 547]
and whereas, while reserving the right to amend and supplement its request,
Yugoslavia requests
the Court to indicate the following measure:
"The Kingdom of the Netherlands 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
proprio 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 Netherlands 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;
12. Whereas, since the Court includes upon the bench no judge of [p 548]
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;
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 Parties:
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 the Netherlands:
Mr. Johan Lammers, Agent,
14. Whereas, by letter of 12 May 1999, the Agent of Yugoslavia submitted to
the Court a "Supplement to the Application" of his Government, which read
as follows:
"Using the right reserved by the Application of the Federal Republic of
Yugoslavia against the Kingdom of the Netherlands for violation of the
obligation not to use force, filed to the International Court of Justice on
29 April 1999, I supplement its part related to the grounds of jurisdiction
of the Court, which should now read as follows:
'The Government of the Federal Republic of Yugoslavia invokes Article 36,
paragraph 2, of the Statute of the International Court of Justice as well as
Article IX of the Convention on the Prevention and Punishment of the Crime
of Genocide and Article 4 of the Treaty of Judicial Settlement, Arbitration
and Conciliation between the Kingdom of Yugoslavia and the Netherlands,
signed at The Hague on 11 March 1931 and in force since 2 April 1932'";
whereas, at the start of the afternoon session of the hearing of 12 May
1999, the Vice-President of the Court, acting President, made the following
statement:
"In the light of the new bases of jurisdiction invoked today by Yugoslavia
... the Court wishes to inform the Parties that it will give its
consideration to any observations of the Netherlands ... in regard to the
admissibility of the additional grounds invoked";
and whereas at the said afternoon session of 12 May 1999 the Netherlands
made various observations on the admissibility of the Yugoslav [p 549]
"Supplement to the Application", and on the new basis of jurisdiction
invoked therein;
15. 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 the Netherlands . . . 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 the Netherlands:
"The Netherlands [requests] the Court [to] deny the request for the
indication of a provisional measure made by the Federal Republic of
Yugoslavia";
***
16. 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;
17. 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;
18. 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;
19. 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;
***
20. 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, I.C.J. Reports 1995, p. 101, para. 26); and whereas
the Court can therefore exercise jurisdiction only between States [p 550]
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;
21. 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;
**
22. Whereas in its Application Yugoslavia claims, in the first place, to
found the jurisdiction of the Court upon Article 36, paragraph 2, of the
Statute; whereas each of the two Parties has made a declaration recognizing
the compulsory jurisdiction of the Court pursuant to that provision; and
whereas Yugoslavia's declaration was deposited with the Secretary-General of
the United Nations on 26 April 1999, and that of the Netherlands on 1 August
1956;
23. 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 the Netherlands reads as follows:
"I hereby declare that the Government of the Kingdom of the Netherlands
recognizes, in accordance with Article 36, paragraph 2, of the Statute of
the International Court of Justice, with effect from 6 August 1956, 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 5 August 1921, with [p 551] the exception of disputes
in respect of which the parties, excluding the jurisdiction of the
International Court of Justice, may have agreed to have recourse to some
other method of pacific settlement.
The aforesaid obligation is accepted for a period of five years and will be
renewed by tacit agreement for additional periods of five years, unless
notice is given, not less than six months before the expiry of any such
period, that the Government of the Kingdom of the Netherlands does not wish
to renew it.
The acceptance of the jurisdiction of the Court founded on the declaration
of 5 August 1946 is terminated with effect from 6 August 1956".
24. Whereas the Netherlands contends that the Court lacks jurisdiction in
the case on the basis of Article 36, paragraph 2, of the Statute of the
Court; whereas it points out that Yugoslavia's declaration limits ratione
temporis its acceptance of the compulsory jurisdiction of the Court 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"; and whereas the Netherlands maintains that the dispute between
Yugoslavia and the Netherlands clearly arose before the date of signature of
the Yugoslav declaration and therefore falls outside the scope of the
jurisdiction of the Court;
25. Whereas, according to Yugoslavia, "[fjhe issue before the Court is that
of interpreting a unilateral declaration of acceptance of its jurisdiction,
and thus of ascertaining the meaning of the declaration on the basis of the
intention of its author"; whereas Yugoslavia contends that the text of its
declaration "allows all disputes effectively arising after 25 April 1999 to
be taken into account"; whereas, referring to bombing attacks carried out by
NATO member States on 28 April, 1 May, 7 May and 8 May 1999, Yugoslavia
states that, "[i]n each of these cases, which are only examples, [it]
denounced the flagrant violations of international law of which it
considered itself to have been the victim", and the "NATO member States
denied having violated any obligation under international law"; whereas
Yugoslavia asserts that "each of these events therefore gave rise to 'a
disagreement on a point of law or fact', a disagreement. . . the terms of
which depend in each case on the specific features of the attack" in
question; whereas Yugoslavia accordingly concludes that, since these events
constitute "instantaneous wrongful acts", there exist "a number of separate
disputes which have arisen" between the Parties "since 25 April relating to
events subsequent to that date"; and whereas Yugoslavia argues from this
that "[fjhere is no reason to exclude prima facie the Court's jurisdiction
over disputes having effectively arisen after 25 April, as provided in the
text of the declaration"; and whereas Yugoslavia adds that to exclude such
disputes from the jurisdiction of the Court "would run entirely counter to
the manifest and clear intention of Yugoslavia" to entrust the Court with
the resolution of those disputes; [p 552]
26. Whereas Yugoslavia has accepted the Court's jurisdiction ratione
temporis in respect only, on the one hand, of disputes arising or which may
arise after the signature of its declaration and, on the other hand, of
those concerning situations or facts subsequent to that signature (cf. Right
of Passage over Indian Territory, Merits, Judgment, I.C.J. Reports 1960, p.
34); whereas, in order to determine whether the Court has jurisdiction in
the case, it is sufficient to decide whether, in terms of the text of the
declaration, the dispute brought before the Court "arose" before or after 25
April 1999, the date on which the declaration was signed;
27. Whereas Yugoslavia's Application is entitled "Application of the Federal
Republic of Yugoslavia against the Kingdom of the Netherlands for Violation
of the Obligation Not to Use Force"; whereas in the Application the
"subject of the dispute" (emphasis added) is described in general terms
(see paragraph 1 above); but whereas it can be seen both from the statement
of "facts upon which the claim is based" and from the manner in which the
"claims" themselves are formulated (see paragraphs 3 and 4 above) that the
Application is directed, in essence, against the "bombing of the territory
of the Federal Republic of Yugoslavia", to which the Court is asked to put
an end;
28. Whereas it is an established fact that the bombings in question began on
24 March 1999 and have been conducted continuously over a period extending
beyond 25 April 1999; and whereas the Court has no doubt, in the light,
inter alia, of the discussions at the Security Council meetings of 24 and 26
March 1999 (S/PV.3988 and 3989), that a "legal dispute" (East Timor
(Portugal v. Australia), I.C.J. Reports 1995, p. 100, para. 22) "arose"
between Yugoslavia and the Respondent, as it did also with the other NATO
member States, well before 25 April 1999 concerning the legality of those
bombings as such, taken as a whole;
29. Whereas the fact that the bombings have continued after 25 April 1999
and that the dispute concerning them has persisted since that date is not
such as to alter the date on which the dispute arose; whereas each
individual air attack could not have given rise to a separate subsequent
dispute; and whereas, at this stage of the proceedings, Yugoslavia has not
established that new disputes, distinct from the initial one, have arisen
between the Parties since 25 April 1999 in respect of subsequent situations
or facts attributable to the Netherlands;
30. Whereas, as the Court recalled in its Judgment of 4 December 1998 in the
case concerning Fisheries Jurisdiction (Spain v. Canada),
"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 A/B, No.
74, p. 23)" (I.C.J. Reports 1998, p. 453, para. 44);
and whereas, as the Permanent Court held in its Judgment of 14 June [p 553]
1938 in the Phosphates in Morocco case (Preliminary Objections), "it is
recognized that, as a consequence of the condition of reciprocity
stipulated in paragraph 2 of Article 36 of the Statute of the Court", any
limitation ratione temporis attached by one of the Parties to its
declaration of acceptance of the Court's jurisdiction "holds good as between
the Parties" (Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B,
No. 74, p. 10); whereas, moreover, as the present Court noted in its
Judgment of 11 June 1988 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, 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); and whereas it follows from the foregoing that the
declarations made by the Parties under Article 36, paragraph 2, of the
Statute do not constitute a basis on which the jurisdiction of the Court
could prima facie be founded in this case;
*
31. Whereas, referring to United Nations Security Council resolutions 757
(1992) of 30 May 1992 and 777 (1992) of 19 September 1992, and to United
Nations General Assembly resolutions 47/1 of 22 September 1992 and 48/88 of
20 December 1993, the Netherlands also contends that the Court has no
jurisdiction in the case, even prima facie, on the basis of Article 36,
paragraph 2, of the Statute, because Yugoslavia is neither a Member of the
United Nations nor a party to the Statute of the Court, and could not,
therefore, validly make the declaration provided for in Article 36,
paragraph 2; and whereas the Netherlands further contends that Yugoslavia
has not satisfied the conditions laid out in Security Council resolution 9
of 15 October 1946 for acceptance of the Court's jurisdiction by a State
that is not a party to the Statute;
32. 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";
33. Whereas, in view of its finding in paragraph 30 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 554]
34. 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";
and whereas in its Application Yugoslavia states that the subject of the
dispute concerns inter alia "acts of the Kingdom of the Netherlands by which
it has violated its international obligation . . . not to deliberately
inflict conditions of life calculated to cause the physical destruction of a
national group"; whereas, in describing the facts on which the Application
is based, Yugoslavia states: "The above-mentioned acts are deliberately
creating conditions calculated at the physical destruction of an ethnic
group, in whole or in part"; whereas, in its statement of the legal grounds
on which the Application is based, Yugoslavia contends that "the obligation
. . . not to impose deliberately on a national group conditions of life
calculated to bring about the physical destruction of the group has been
breached"; and whereas one of the claims on the merits set out in the
Application is formulated as follows:
"by taking part in activities listed above, and in particular by causing
enormous environmental damage and by using depleted uranium, the Kingdom of
the Netherlands 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";
35. Whereas Yugoslavia contends moreover that the sustained and intensive
bombing of the whole of its territory, including the most heavily populated
areas, constitutes "a serious violation of Article II of the Genocide
Convention"; whereas it argues that "the pollution of soil, air and water,
destroying the economy of the country, contaminating the environment with
depleted uranium, inflicts conditions of life on the Yugoslav nation
calculated to bring about its physical destruction"; whereas it asserts that
it is the Yugoslav nation as a whole and as such that is targeted; and
whereas it stresses that the use of certain weapons whose long-term hazards
to health and the environment are already known, and the destruction of the
largest part of the country's power supply system, with catastrophic
consequences of which the Respondent must be aware, "impl[y] the intent to
destroy, in whole or in part, the Yugoslav national group as such;
36. Whereas for its part the Netherlands contends that the Court [p 555]
could have prima facie jurisdiction on the basis of Article IX of the
Convention, if the party invoking such jurisdiction were in a position to
produce "at least some evidence that a question relating to the
interpretation, application or fulfilment of the 1948 Genocide Convention
has arisen"; whereas according to the Netherlands, Yugoslavia's Application
fails to refer to the conditions that form the core of the crime of genocide
under the Convention, namely the "intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such", and whereas, in the
view of the Netherlands, the Court accordingly lacks jurisdiction ratione
materiae on the basis of Article IX;
37. Whereas it is not disputed that both Yugoslavia and the Netherlands are
parties to the Genocide Convention without reservation; and whereas Article
IX of the Convention accordingly appears to constitute a basis on which the
jurisdiction of the Court might be founded to the extent that the
subject-matter of the dispute relates to "the interpretation, application or
fulfilment" of the Convention, including disputes "relating to the
responsibility of a state for genocide or for any of the other acts
enumerated in article III" of the said Convention;
38. Whereas, in order to determine, even prima facie, whether a dispute
within the meaning of Article IX of the Genocide Convention exists, the
Court cannot limit itself to noting that one of the Parties maintains that
the Convention applies, while the other denies it; and whereas in the
present case the Court must ascertain whether the breaches of the
Convention alleged by Yugoslavia are capable of falling within the
provisions of that instrument and whether, as a consequence, the dispute is
one which the Court has jurisdiction ratione materiae to entertain pursuant
to Article IX (cf. Oil Platforms (Islamic Republic of Iran v. United States
of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p.
810, para. 16);
39. Whereas the definition of genocide set out in Article II of the Genocide
Convention reads as follows:
"In the present Convention, genocide means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group";
40. Whereas it appears to the Court, from this definition, "that [the]
essential characteristic [of genocide] is the intended destruction of 'a
national, ethnical, racial or religious group'" (Application of the
Convention on the Prevention and Punishment of the Crime of Genocide,
Provi-[p 556]sional Measures, Order of 13 September 1993, I.C.J. Reports
1993, p. 345, para. 42); whereas the threat or use of force against a State
cannot in itself constitute an act of genocide within the meaning of
Article II of the Genocide Convention; and whereas, in the opinion of the
Court, it does not appear at the present stage of the proceedings that the
bombings which form the subject of the Yugoslav Application "indeed entail
the element of intent, towards a group as such, required by the provision
quoted above" (Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, I.C.J. Reports 1996 (I), p. 240, para. 26);
41. Whereas the Court is therefore not in a position to find, at this stage
of the proceedings, that the acts imputed by Yugoslavia to the Respondent
are capable of coming within the provisions of the Genocide Convention; and
whereas Article IX of the Convention, invoked by Yugoslavia, cannot
accordingly constitute a basis on which the jurisdiction of the Court could
prima facie be founded in this case;
**
42. Whereas after it had filed its Application Yugoslavia further invoked,
as basis for the Court's jurisdiction in this case, Article 4 of the Treaty
of Judicial Settlement, Arbitration and Conciliation between the Netherlands
and the Kingdom of Yugoslavia, signed in The Hague on 11 March 1931; whereas
Yugoslavia's "Supplement to the Application", in which it invoked this new
basis of jurisdiction, was presented to the Court in the second round of
oral argument (see paragraph 14 above); whereas Yugoslavia gave no
explanation of its reasons for filing this document at this stage of the
proceedings; and whereas Yugoslavia argues that, although the procedure
provided for in Article 4 of the 1931 Treaty has not been strictly followed,
"the Court, like its predecessor, the Permanent Court of International
Justice, has always had recourse to the principle according to which it
should not penalize a defect in a procedural act which the Applicant could
easily remedy";
43. Whereas the Netherlands objects to the late presentation by Yugoslavia
of this basis of jurisdiction; whereas the Netherlands argues that the
Treaty of Judicial Settlement, Arbitration and Conciliation of 11 March 1931
is no longer in force between the Netherlands and Yugo-slavia; whereas the
Netherlands observes that it is not a party to the 1978 Vienna Convention on
the Succession of States in respect of Treaties and that, in contrast with a
number of other bilateral treaties concluded with the former Socialist
Federal Republic of Yugoslavia, no provisional mutual agreement has been
reached on the continued validity of the 1931 Treaty; whereas the
Netherlands further argues that Yugoslavia has not complied with the
procedural requirements of Article 4 of the Treaty, in particular the period
of notice of one month;
44. Whereas the invocation by a party of a new basis of jurisdiction in the
second round of oral argument on a request for the indication of pro-[p
557]visional measures has never occurred in the Court's practice; whereas
such action at this late stage, when it is not accepted by the other party,
seriously jeopardizes the principle of procedural fairness and the sound
administration of justice; and whereas in consequence the Court cannot, for
the purpose of deciding whether it may or may not indicate provisional
measures in the present case, take into consideration the new title of
jurisdiction which Yugoslavia sought to invoke on 12 May 1999;
**
45. Whereas the Court has found above that it had no prima facie
jurisdiction to entertain Yugoslavia's Application, either on the basis of
Article 36, paragraph 2, of the Statute or of Article IX of the Genocide
Convention; and whereas it has taken the view that it cannot, at this stage
of the proceedings, take account of the additional basis of jurisdiction
invoked by Yugoslavia; and whereas it follows that the Court cannot
indicate any provisional measure whatsoever in order to protect the rights
claimed by Yugoslavia in its Application;
46. Whereas, however, the findings reached by the Court in the present
proceedings in no way prejudge the question of the jurisdiction of the Court
to deal with the merits of the case or any questions relating to the
admissibility of the Application, or relating to the merits themselves; and
whereas they leave unaffected the right of the Governments of Yugoslavia
and the Netherlands to submit arguments in respect of those questions;
***
47. 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;
48. 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;
49. Whereas in this context the parties should take care not to aggravate
or extend the dispute;
50. 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;
***[p 558]
51. For these reasons,
THE COURT,
(1) By eleven votes to four,
Rejects the request for the indication of provisional measures submitted by
the Federal Republic of Yugoslavia on 29 April 1999;
IN FAVOUR: President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva,
Herczegh, Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans;
AGAINST: Vice-President Weeramantry, Acting President; Judges Shi,
Veresh-chetin; Judge ad hoc Kreca;
(2) By fourteen votes to one,
Reserves the subsequent procedure for further decision.
IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel;
Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc Kreca;
AGAINST: Judge Oda.
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 the
Netherlands, respectively.
(Signed) Christopher G. Weeramantry,
Vice-President.
(Signed) Eduardo Valencia-Ospina,
Registrar.
Judge Koroma appends a declaration to the Order of the Court.
Judges Oda, Higgins, Parra-Aranguren and Kooijmans append separate opinions
to the Order of the Court.[p 559]
Vice-President Weeramantry, Acting President, Judges Shi and Vereshchetin,
and Judge ad hoc KRECA append dissenting opinions to the Order of the Court.
(Initialled) C.G.W.
(Initialled) E.V.O.
[p 560] 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
561] 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 562] SEPARATE OPINION OF JUDGE ODA
Table of contents
|
Paragraphs |
I.
Introduction |
1-2 |
|
|
II.
The Status of the Federal Republic 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 563]
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 564] 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
(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. 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
565]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 566]
(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 567]
(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 568]
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 569]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 570] 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 Court'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
"[disputes between the Contracting Parties relating to the interpret-[p
571]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
572] 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
573] 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 community 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
574]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 575] Punishment of the Crime of Genocide, Preliminary
Objections, Judgment, I.C.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 576]
Provisional measures which ought to be taken to preserve the respective
rights of either party may be indicated by the Court "if 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 577] 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
578] 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 579] 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 A/B, 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 the Netherlands contains no such limitation, but
it applies inter se to identify the scope ratione temporis of the [p 580]
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 A/B,
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 581]lished" (P.
C.I. J., Series A/B, 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 the 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 the Netherlands prior to
25 April to be subject to the Court's jurisdiction, nor any situations and
facts relating to such dispute. 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 Mavrommatis 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 582]
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
Internationale 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
583] an Order for interim measures has remained essentially unchanged over
the years. However, the jurisdictional prerequisites 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" (ibid, 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 13 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 v. Denmark), Provisional
Measures, Order of 29 July 1991, I.C.J. Reports [p 584] 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(1), 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 of 3 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 International Justice
into effect. The Court briefly recounted [p 585] 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 the Netherlands and
the interaction of the declarations of the Federal Republic of Yugoslavia
and the Netherlands. [p 586]
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 pre-liminary 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 the Netherlands or on its interplay with its own
reservation. It did not tell the Court the implications of the recipro-[p
587] city requirements in the Netherlands' declaration, when read together
with the clear terms of the Federal Republic's own reservation. Nor did the
Netherlands rely reciprocally on Yugoslavia's declaration, no doubt deeming
that to be inconsistent with the position it took alleging the declaration
to be invalid. 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 [p 588]
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
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 589] SEPARATE OPINION OF JUDGE PARRA-ARANGUREN
1. Notwithstanding my agreement with the operative part of the Order, I
consider it necessary to make the following observations.
2. Article IX of the Genocide Convention is in force between the Parties. It
prescribes:
"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."
3. Yugoslavia maintains that the Respondent has violated:
"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 . . ." (Application of Yugoslavia, p. 12).
Furthermore, during the public hearings Yugoslavia stated "in the
circumstances the intensive bombing of Yugoslav populated areas
constitutes a breach of Article II of the Genocide Convention" (CR 99/25,
p. 12, Brownlie).
4. The Respondent considers that it has not violated the Genocide
Convention, because no genocide crimes have been committed during or as a
result of the military intervention of the NATO countries in Yugoslavia.
5. In its Judgment of 11 July 1996 the Court admitted prima facie the
existence of a legal dispute between the Parties because of the existence
of:
"'a situation in which the two sides hold clearly opposite views concerning
the question of the performance or non-performance of certain treaty
obligations' (Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74)
and that, by reason of the rejection by Yugoslavia of the complaints
formulated against it by Bosnia and Herzegovina, 'there is a legal dispute'
between them (East Timor (Portugal v. Australia), I.C.J. Reports 1995, p.
100, para. 22)" (Application of the Convention on [p 590] the Prevention and
Punishment of the Crime of Genocide, Preliminary Objections, I.C.J. Reports
1996 (II), pp. 614-615, para. 29).
6. Consequently, taking into account the allegations of the Parties in these
incidental proceedings, there appears to exist, prima facie, a "legal
dispute" between them regarding the interpretation and application of the
Genocide Convention. For this reason, Article IX of the Genocide Convention
is applicable and, in my opinion, the Court has prima facie jurisdiction to
entertain the request for provisional measures presented by Yugoslavia.
7. Article IX of the Genocide Convention is the only prima facie basis for
jurisdiction of the Court in the present case. Therefore the only
provisional measures that it can indicate are those aiming to guarantee the
rights of the Applicant under the Genocide Convention.
8. Yugoslavia is requesting the Court to indicate that the Respondent "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" (CR
99/14, p. 63, Etinski). However, the threat or use of force against a State
cannot in itself constitute an act of genocide within the meaning of the
Genocide Convention. Consequently the provisional measures requested by
Yugoslavia do not aim to guarantee its rights under the Genocide Convention,
i.e., the right not to suffer acts which may be qualified as genocide crimes
by the Convention. Therefore, in my opinion, the measures requested by
Yugoslavia shall not be indicated.
(Signed) Gonzalo Parra-Aranguren.
[p 591] 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 does not constitute a basis of
jurisdiction, even prima facie.
Moreover, I share the Court's opinion that the additional ground for its
jurisdiction based upon the bilateral Treaty between the Kingdom of
Yugoslavia and the Kingdom of the Netherlands of 11 March 1931, which was
invoked by Yugoslavia only during the second round of the oral argument,
cannot be taken into consideration in the present stage of the proceedings.
(Order, para. 44.)
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 limitation ratione temporis contained in it.
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.
The Netherlands further argued that, even if the [p 592] declaration were to
be considered valid, it would not cover the present dispute because of the
temporal limitation contained in it.
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 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. [p 593]
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 [p 594] 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.
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 acts imputed by
Yugoslavia to the Respondent are not capable of coming into the provisions
of the Genocide Convention and that, consequently, Article IX of the
Convention cannot constitute a basis on which the jurisdiction of the Court
could prima facie be founded. (Order, para. 41.)
13. Thus, the 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 dispute between the Parties arose well before 25 April
1999, the date on which Yugoslavia accepted the compulsory jurisdiction of
the Court with the explicit proviso that it accepted that jurisdiction in
respect only of disputes arising or which may arise after the signature of
its declaration, with regard to situations or facts subsequent to that
signature. (Paras. 28 and 29.)
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: [p 595]
"[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 Parties
under Article 36, paragraph 2, of the Statute do not constitute a basis on
which the jurisdiction of the Court could prima facie be founded in this
case. (Order, para. 30.)
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 the limitation ratione temporis in the Applicant's 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 [p 596] and which incorporates no
reservations obviously excluding its juris-diction." (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.
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 I 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 [p 597] 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 "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 ratione 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: [p 598]
"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 jurisdiction,
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 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 599] DISSENTING OPINION OF VICE-PRESIDENT WEERAMANTRY
My opinion in this case is the same, mutatis mutandis, as that which I have
delivered in Yugoslavia v. Belgium.
I do not need to repeat the text of that opinion here and it will suffice to
observe that all that I have said there applies equally to this case, and
should be considered to be incorporated mutatis mutandis in this opinion.
In the result I dissent from the Court's Order dismissing the application
for provisional measures and hold that provisional measures should have been
issued for the reasons and in the manner indicated in my opinion in
Yugoslavia v. Belgium.
(Signed) Christopher G. Weeramantry.
[p 600] DISSENTING OPINION OF JUDGE SHI
To my regret, I am unable to concur with the findings of the Court that,
given the limitation ratione temporis contained in the declaration of
acceptance of compulsory jurisdiction made by the Federal Republic of
Yugoslavia (hereinafter Yugoslavia), the Court lacked prima facie
juris-diction under Article 36, paragraph 2, of the Statute, to which both
the Applicant and the Respondent are parties. This conclusion prevented the
Court from exercising its power under Article 41, paragraph 1, of the
Statute to indicate provisional measures to the Parties.
Yugoslavia signed the declaration of acceptance of the compulsory
jurisdiction of the Court on 25 April 1999. By that declaration, Yugoslavia
recognized compulsory jurisdiction "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 . . .".
This limitation ratione temporis of recognition of the Court's jurisdiction
belongs to the category of the so-called "double exclusion formula". In
cases where the Court is confronted with this "double exclusion formula",
it has to ascertain both the date of the dispute and the situations or facts
with regard to which the dispute has arisen.
Regarding the first aspect of the limitation ratione temporis in the present
case, that is to say, whether the date on which the dispute arose is before
or after the signature by Yugoslavia of the declaration of acceptance, the
Court has, in this connection, to consider what is the subject of the
dispute, as it did in a similar situation in the Right of Passage case,
where the Court stated:
"In order to form a judgment as to the Court's jurisdiction it is necessary
to consider what is the subject of the dispute." (Right of Passage over
Indian Territory, Merits, Judgment, I.C.J. Reports 1960, p. 33).
In the present case, the Application of Yugoslavia contains a section
bearing the title "Subject of the Dispute", which indicates the subject as
acts of the Respondent
"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 [p 601] 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".
As in the Right of Passage case, the legal dispute before the Court, as
shown above, consists of a number of constituent elements. Prior to the
coming into existence of all the constituent elements, the dispute cannot be
said to arise. None of the above elements existed before the critical date
of 25 April 1999. It is true that the aerial bombing of the territory of
Yugoslavia began some weeks before this critical date of signature of the
declaration. But aerial bombing and its effects are merely facts or
situations and as such do not constitute a legal dispute. The constituent
elements of the present dispute are not present before the critical date
and only exist at and from the date of Yugoslavia's Application on 29 April
1999. It is true that, prior to the critical date, Yugoslavia had accused
NATO (Security Council Meetings of 24 and 26 March 1999, S/PV.3988 and 3989)
of illegal use of force against it. However, this complaint constitutes at
the most one of the many constituent elements of the dispute. Besides, in no
way could NATO be identified with the Respondent, and NATO cannot be the
Respondent in the present case ratione personae. The legal dispute only
arose at the date of the Application, which is subsequent to the signature
of the declaration of acceptance. Therefore, the time condition in order for
the present dispute to be within the scope of acceptance of compulsory
jurisdiction ratione temporis, as contained in Yugoslavia's declaration, has
been satisfied.
With respect to the second aspect of Yugoslavia's double exclusion formula,
the situations or facts which the Court has to consider are those with
regard to which the dispute has arisen, i.e., those situations or facts
which are the source of the present legal dispute.
Article 25, paragraph 1, of the Draft Articles on State Responsibility,
adopted at first reading by the International Law Commission, provides:
"1. The breach of an international obligation by an act of the State having
a continuing character occurs at the moment when that act begins.
Nevertheless, the time of commission of the breach extends over the entire
period during which the act continues and remains not in conformity with the
international obligation." (ILC Yearbook, 1978, Vol. II, Part Two, p. 89.)
[p 602]
This concept of the duration of a "continuing" wrongful act is commonly
accepted by international tribunals and legal scholars.
In the present case, the dispute relates to the alleged breach of various
international obligations by acts of force, in the form of aerial bombing of
the territories of Yugoslavia, which are attributed by the Applicant to the
respondent State. It is obvious that the alleged breach of obligations by
such a "continuing" act first occurred at the moment when the act began,
weeks before the critical date of 25 April 1999. Given that the acts of
aerial bombing continued well beyond the critical date and still continue,
the time of commission of the breach extends over the whole period during
which the acts continue and ends only when the acts of the respondent State
cease or when the international obligations alleged to be breached by the
acts of that State cease to exist or are no longer in force for it.
The conclusion may be drawn from the above analysis that the limitation
ratione temporis in the double exclusion formula contained in Yugoslavia's
declaration of acceptance of the compulsory jurisdiction in no way
constitutes a bar to founding prima facie jurisdiction upon Article 36,
paragraph 2, of the Statute for the purpose of indication of provisional
measures in the present case.
It is regrettable that, as a result of its mistaken findings on this point,
the Court was not in a position to indicate provisional measures to the
Parties in the urgent situation of human tragedy with loss of life and human
suffering in the territories of Yugoslavia arising from the use of force in
and against that country.
Moreover, I am of the opinion that, confronted with that urgent situation,
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 its 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
Rules of Court prohibits the Court from so acting. According to the Charter
of the United Nations, 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 [p 603] 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. It is deplorable that the
Court has failed to take an opportunity to make its due contribution to the
maintenance of international peace and security when that is most needed.
Furthermore, 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."
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 51 (1) of the present Order.
(Signed) Shi Jiuyong.
[p 604] DISSENTING OPINION 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
605]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.
***
Apart from the considerations set out in the preceding general statement, I
would like to clarify my position with regard to the Applications by
Yugoslavia instituted against Belgium, Canada, the Netherlands and Portugal.
I have no doubt that the prima facie jurisdiction under Article 36,
paragraph 2, of the Statute of the Court does exist in respect of these
States and, as far as Belgium and the Netherlands are concerned, the Court
also has prima facie jurisdiction under the Agreements signed between
Bel-gium and Yugoslavia on 25 March 1930 and between the Netherlands and
Yugoslavia on 11 March 1931.
The arguments to the contrary advanced by the respondent States and upheld
in the Orders of the Court rest upon two cornerstone propositions. The
first concerns all of the four States recognizing the compulsory
jurisdiction of the Court, the second relates only to Belgium and the
Netherlands. The first proposition is that the text of the Yugoslav
declaration accepting the jurisdiction of the Court, and in particular the
wording of the ratione temporis reservation contained therein, allegedly
does not grant prima facie jurisdiction to the Court. The second proposition
is that the timing of the presentation by Yugoslavia of the additional bases
for jurisdiction allegedly does not allow the Court to conclude that it has
prima facie jurisdiction in respect of the cases instituted against Belgium
and the Netherlands. I cannot give my support to either of the above basic
propositions, for the following reasons.
As concerns the interpretation of the Yugoslav declaration of acceptance of
the Court's jurisdiction, the reasoning of the Court centres upon the
time-limit in the reservation to the above declaration, which stipulates
that Yugoslavia recognizes the jurisdiction of the Court "in all dis-putes
arising or which may arise after the signature of the present Declaration,
with regard to the situations or facts subsequent to this signature". The
wording of this reservation is said to exclude even the prima facie
jurisdiction of the Court over the disputes submitted for the Court's
resolution, since the disputes in question, as well as the situations and
facts generating the disputes, arose at least one month before the filing of
the Applications. It is also suggested that the text of the Yugoslav
reservation deprives the Court of the plausible consensual element in the
declarations made by the Applicant and by the Respondents which is
indispensable for the indication of provisional measures. I cannot agree
with such an interpretation of the Yugoslav declaration, on a number of
grounds.
It has to be admitted that the wording of the Yugoslav declaration is [p
606] not without ambiguity and, strictly speaking, it excludes from the
Court's consideration disputes, situations and facts which occurred before
the so-called "critical date", i.e., 25 April 1999, when the declaration was
signed. On this basis one cannot, however, conclude that each and every
dispute presented for resolution by the Court in the separate Applications
of Yugoslavia must be viewed by the Court as a single dispute or disputes
which existed before 25 April 1999 or, for that matter, that the Court
cannot consider situations and facts relating to these disputes which arose
after that date.
After the beginning of the bombardment of Yugoslavia by the NATO military
alliance the dispute as a whole was treated and is being treated at various
political levels, including the United Nations Security Council, as a
dispute between Yugoslavia and NATO or as a dispute between Yugoslavia and
all the 19 member States of NATO. The resolution of this general political
dispute transcends the scope of the Court's competence. The Court is dealing
with the specific legal disputes of Yugoslavia with the individual
respondent States. Each of these separate disputes may have the same origin
but they became distinct bilateral legal disputes between individual States
only after they had been presented as "the claim of one party . . .
positively opposed by the other" (South West Africa, Preliminary
Objections, Judgment, I.C.J. Reports 1962, p. 328). In the cases under
consideration, it coincided with the filing of the Applications by
Yugoslavia against ten individual States. This individualization of the
disputes, which occurred after "the critical date", was recognized by the
Court when it affirmed the right of those respondent States whose nationals
were not permanently represented on the bench to appoint judges ad hoc.
From a different perspective, even after "the critical date" Yugoslavia has,
with good reason, complained of a number of new major breaches of
international law by the NATO States. Each of these alleged new major
breaches, whose existence was denied by the NATO States, may be seen as
constituting specific disputes between the Parties concerned, disputes which
clearly occurred after 25 April 1999.
The possibility of distinguishing between a "dispute of a general nature" on
the one hand, and "specific disputes" on the other, was admitted by the
Court in one of its recent cases (Questions of Interpretation and
Application of the ‘971 Montreal Convention arising from the Aerial Incident
at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary
Objections, Judgment, I.C.J. Reports 1998, p. 21, para. 29). Nothing in the
jurisprudence of the Court justifies the suggestion that a specific legal
dispute between the Parties may not be considered by the [p 607] Court
solely on the ground that it is linked with, or part of, a dispute excluded
from the Court's jurisdiction.
Another ground on which I disagree with the majority is their complete
disregard of the clear intention of Yugoslavia. Quite recently the Court had
occasion to reiterate its position on the necessity to take into account the
intention of a State making a declaration. In the Fisheries Jurisdiction
(Spain v. Canada) case the Court interpreted the relevant words of the
declaration in question "having due regard to the intention of the State
concerned at the time when it accepted the compulsory jurisdiction of the
Court" (Judgment, I.C.J. Reports 1998, p. 454, para. 49; see also Temple of
Preah Vihear, I.C.J. Reports 1961, p. 31).
In its Orders in the present cases, the Court, by refusing to take into
account the clear intention of Yugoslavia, has taken an approach to the
Yugoslav declaration which could lead to the absurd conclusion that
Yugoslavia intended by its declaration of acceptance of the Court's
jurisdiction to exclude the jurisdiction of the Court over its Applications
instituting proceedings against the Respondents.
In relation to Belgium and the Netherlands, apart from the jurisdiction
under Article 36, paragraph 2, of the Court's Statute, Yugoslavia invoked
additional grounds of jurisdiction, namely the Convention on Conciliation,
Judicial Settlement and Arbitration signed on 25 March 1930 by Yugoslavia
and Belgium and the Treaty of Judicial Settlement, Arbitration and
Conciliation signed on 11 March 1931 by Yugoslavia and the Netherlands.
Both instruments provide for the right of the parties, under certain
conditions, to apply unilaterally to the Permanent Court of International
Justice for the resolution of their disputes. Moreover, the Agreements
stipulate that if the question on which the parties differ arises out of
acts already committed or on the point of being committed, the Permanent
Court of International Justice "shall indicate within the shortest possible
time the provisional measures to be adopted" (Art. 30 of the Convention
between Belgium and Yugoslavia; Art. 20 of the Treaty between the
Netherlands and Yugoslavia). Also, significantly, the Agreements provide
that they "shall be applicable between the High Contracting Parties even
though a third power has an interest in the dispute" (Art. 35 and Art. 21
respectively). Finally, the Agreements contain a clause whereby disputes
relating to their interpretation shall be submitted to the Permanent Court
of International Justice (Art. 36 and Art. 22 respectively).
In the course of the hearings, a number of objections were raised by the
respondent States against reliance on these agreements by the Court in order
to establish its jurisdiction. I propose to deal only with the principal
objection finally upheld by the majority of the Court. It concerns the
timing of the invocation by Yugoslavia of the additional bases of
jurisdiction. [p 608]
It will be noted that, in filing its Applications, Yugoslavia reserved the
right to amend and supplement them. Such a reservation to an application
instituting proceedings is standard, and in relation to grounds of
jurisdiction has for a long time been interpreted by the Court as
permitting the addition of a basis of jurisdiction, provided that the
Applicant makes it clear that it intends to proceed upon that basis, and
also provided that the result is not to transform the dispute brought
before the Court by the Application into another dispute, different in
character. The above approach to the additional grounds of jurisdiction is
clearly expressed in the following pronouncements of the Court.
In the Judgment of 26 November 1984 in the Nicaragua case, the Court
observed that:
"The Court considers that the fact that the 1956 Treaty was not invoked in
the Application as a title of jurisdiction does not in itself constitute a
bar to reliance being placed upon it in the Memorial. Since the Court must
always be satisfied that it has jurisdiction before proceeding to examine
the merits of a case, it is certainly desirable that 'the legal grounds upon
which the jurisdiction of the Court is said to be based' should be indicated
at an early stage in the proceedings, and Article 38 of the Rules of Court
therefore provides for these to be specified 'as far as possible' in the
application. An additional ground of jurisdiction may however be brought to
the Court's attention later, and the Court may take it into account
provided the Applicant makes it clear that it intends to proceed upon that
basis (Certain Norwegian Loans, I.C.J. Reports 1957, p. 25), and provided
also that the result is not to transform the dispute brought before the
Court by the application into another dispute which is different in
character (Sociιtι Commerciale de Belgique, P.C.I.J., Series A/B, No. 78, p.
173)." (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Jurisdiction and Admissibility,
I.C.J. Reports 1984, pp. 426-427, para. 80.)
In its Order dated 13 September 1993 in the Genocide case, the Court pointed
out that:
"Whereas the Applicant cannot, simply by reserving 'the right to revise,
supplement or amend' its Application or requests for provisional measures,
confer on itself a right to invoke additional grounds of jurisdiction, not
referred to in the Application instituting proceedings; whereas it will be
for the Court, at an appropriate stage of the proceedings, to determine, if
necessary, the validity of such claims; whereas however, as the Court has
recognized, 'An additional ground of jurisdiction may ... be brought to the
Court's attention' after the filing of the Application,
'and the Court may take it into account provided the Applicant makes it
clear that it intends to proceed upon that basis . . . and [p 609] provided
also that the result is not to transform the dispute brought before the
Court by the application into another dispute which is different in
character . . .' (Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, Judgment, l.C.J. Reports 1984, p. 427, para. 80);
whereas the Court thus concludes that, for the purposes of a request for
indication of provisional measures, it should therefore not exclude a priori
such additional bases of jurisdiction from consideration, but that it should
consider whether the texts relied on may, in all the circumstances,
including the considerations stated in the decision quoted above, afford a
basis on which the jurisdiction of the Court to entertain the Application
might prima facie be established." (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide, I.C.J. Reports 1993, pp.
338-339, para. 28.)
In my view, the conditions set out by Article 38 of the Rules of Court and
in its jurisprudence are fully satisfied in the present cases. The
jurisprudence of the Court clearly shows that for the purposes of a request
for indication of provisional measures additional grounds of jurisdiction
may be brought to the Court's attention after filing of the Application. In
such a case, the Court should be primarily concerned with determining
objectively whether the additional grounds of jurisdiction "afford[s] a
basis on which the jurisdiction of the Court to entertain the Application
might prima facie be established".
The legitimate concern of the Court over the observance of "the principle
of procedural fairness and the sound administration of justice" cannot be
stretched to such an extent as to exclude a priori the additional basis of
jurisdiction from its consideration, solely because the respondent States
have not been given adequate time to prepare their counterarguments.
Admittedly, it cannot be considered normal for a new basis of jurisdiction
to be invoked in the second round of the hearings. However, the respondent
States were given the possibility of presenting their counter-arguments to
the Court, and they used this possibility to make various observations and
objections to the new basis of jurisdiction. If necessary, they could have
asked for the prolongation of the hearings. In turn, the Applicant may
reasonably claim that the belated invocation of the new titles of
jurisdiction was caused by the extraordinary situation in Yugoslavia, in
which the preparation of the Applications had been carried out under
conditions of daily aerial bombardment by the Respondents. It will also be
recalled that it is for the Court to determine the validity of the new basis
of jurisdiction, which at this stage of the proceedings may not and should
not be decided conclusively.
The refusal of the majority to take into consideration the new bases of
jurisdiction clearly goes contrary to Article 38 of the Rules of Court and
[p 610] its jurisprudence. The refusal to have due regard to the intention
of a State making a declaration of acceptance of the Court's jurisdiction is
also incompatible with the case-law of the Court and customary rules of
interpreting legal instruments. In my view, all the requirements for the
indication of provisional measures, flowing from Article 41 of the Court's
Statute and from its well-established jurisprudence, have been met, and the
Court should undoubtedly have indicated such measures so far as the above
four States are concerned.
(Signed) Vladlen S. Vereshchetin.
[p 611] DISSENTING OPINION OF JUDGE KRECA
Table of contents
|
Paragraphs |
I.
Composition of the Court in This Particular Case
|
1-4 |
|
|
II.
Humanitarian Concern in This Particular Case
|
5-7 |
|
|
III.
Jurisdictional Issues
|
8-14 |
|
|
Jurisdiction of the Court
ratione
personae |
8-10 |
Jurisdiction of the Court
ratione
materiae |
11-13 |
Jurisdiction of the Court
ratione
temporis |
14 |
|
|
IV.
Additional Ground of Jurisdiction
|
15-17 |
|
|
V.
Other
Relevant Issues
|
18-21 |
[p 612]
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 (b) 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 concreto, 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 A/B, 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. [p 613]
In the present case, the question of "the same conclusion" as the relevant
criterion for the existence of "the same interest" of the respondent 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. III, 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
concreto, 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 of ten 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 [p 614] have judges
of their nationality on the Bench. However, this circumstance surely cannot
be looked upon as something making the question irrelevant, or, even as the
tacit consent of the Federal Republic of Yugo-slavia 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 615] 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 A/B, 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. Humanitarian Concern in This Particular Case
5. Humanitarian concern, as a basis for the indication of provisional
measures, has assumed primary importance in the more recent practice of the
Court.
Humanitarian concern has been applied on two parallel tracks in the Court's
practice:
(a) In respect of the individual
In this regard the cases concerning LaGrand (Germany v. United States of
America) and the Vienna Convention on Consular Relations (Paraguay v. United
States of America) are characteristic.
In both cases the Court evinced the highest degree of sensibility for the
humanitarian aspect of the matter, which probably found its full expression
in the part of the Application submitted by Germany on 2 March 1999:
"The importance and sanctity of an individual human life are well
established in international law. As recognized by Article 6 of the
International Covenant on Civil and Political Rights, every human being has
the inherent right to life and this right shall be protected [p 616] by
law." (LaGrand (Germany v. United States of America), Provisional Measures,
Order of 3 March 1999, I.C.J. Reports 1999, p. 12, para. 8).
The following day, the Court already unanimously indicated provisional
measures because it found that in question was "a matter of the greatest
urgency" (ibid., p. 15, para. 26), which makes it incumbent upon the Court
to activate the mechanism of provisional measures in accordance with Article
41 of the Statute of the Court and Article 75, paragraph 1, of the Rules of
Court in order: "to ensure that Walter LaGrand is not executed pending the
final decision in these proceedings" (ibid., p. 16, para. 29).
Almost identical provisional measures were indicated by the Court in the
dispute between Paraguay and the United States of America which had arisen
on the basis of the Application submitted by Paraguay on 3 April 1998. On
the same day, Paraguay also submitted an "urgent request for the indication
of provisional measures in order to protect its rights" (Vienna Convention
on Consular Relations (Paraguay v. United States of America), Order of 9
April 1998, I.C.J. Reports 1998, p. 251, para. 6). As early as 9 April 1998
the Court unanimously indicated provisional measures so as to: "ensure that
Angel Francisco Breard is not executed pending the final decision in these
proceedings" (ibid., p. 258, para. 41).
It is evident that humanitarian concern represented an aspect which brought
about unanimity in the Court's deliberations. This is clearly shown not only
by the letter and spirit of both Orders in the above-mentioned cases, but
also by the respective declarations and the separate opinion appended to
those Orders. In the process, humanitarian considerations seem to have been
sufficiently forceful to put aside obstacles standing in the way of the
indication of provisional measures. In this respect, the reasoning of the
Court's senior judge, Judge Oda, and that of its President, Judge Schwebel,
are indicative.
In paragraph 7 of his declaration appended to the Order of 3 March 1999 in
the case concerning LaGrand (Germany v. United States of America), Judge Oda
convincingly put forward a series of reasons of a conceptual nature which
explained why he "formed the view that, given the fundamental nature of
provisional measures, those measures should not have been indicated upon
Germany's request". But, Judge Oda goes on to "reiterate and emphasize" that
he "voted in favour of the Order solely for humanitarian reasons" (I.C.J.
Reports 1999, p. 20).
President Schwebel, in his separate opinion, has not explicitly stated
humanitarian considerations as the reason that guided him in voting for the
Order; however, it is reasonable to assume that those were the only
considerations which prevailed in this particular case in view of his
"pro-found reservations about the procedures followed both by the Applicant
and the Court" (LaGrand (Germany v. United States of America), Provisional
Measures, Order of 3 March 1999, I.C.J. Reports 1999, p. 22). [p 617]
As far as the Applicant is concerned:
"Germany could have brought its Application years ago, months ago, weeks ago
or days ago. Had it done so, the Court could have proceeded as it has
proceeded since 1922 and held hearings on the request for provisional
measures. But Germany waited until the eve of execution and then brought its
Application and request for provisional measures, at the same time arguing
that no time remained to hear the United States and that the Court should
act proprio motu." (I.C.J. Reports 1999, p. 22.)
The Court, for its part, indicated provisional measures, as President
Schwebel put it, "on the basis only of Germany's Application".
(b) In respect of a group of individuals or the population as a
constitutive element of the State
The protection of the citizens emerged as an issue in the case concerning
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America):
"In its submission, Nicaragua emphasized the death and harm that the alleged
acts had caused to Nicaraguans and asked the Court to support, by
provisional measures, 'the rights of Nicaraguan citizens to life, liberty
and security'." (R. Higgins, "Interim Measures for the Protection of Human
Rights", in Politics, Values and Functions, International Law in the 21st
Century, 1997, Charney, Anton, O'Connell, eds., p. 96.)
In the Frontier Dispute (Burkina Faso/Republic of Mali) case, the Court
found the source for provisional measures in:
"incidents . . . which not merely are likely to extend or aggravate the
dispute but comprise a resort to force which is irreconcilable with the
principle of the peaceful settlement of international disputes" (Frontier
Dispute, Provisional Measures, Order of 10 January 1986, I.C.J. Reports
1986, p. 9, para. 19).
Humanitarian concern in this particular case was motivated by the risk of
irreparable damage:
"the facts that have given rise to the requests of both Parties for the
indication of provisional measures expose the persons and property in the
disputed area, as well as the interests of both States within that area, to
serious risk of irreparable damage" (ibid., p. 10, para. 21).
It can be said that in the cases referred to above, in particular those in
[p 618] which individuals were directly affected, the Court formed a high
standard of humanitarian concern in the proceedings for the indication of
interim measures, a standard which commanded sufficient inherent strength to
brush aside also some relevant, both procedural and material, rules
governing the institution of provisional measures. Thus, humanitarian
considerations, independently from the norms of international law regulating
human rights and liberties, have, in a way, gained autonomous legal
significance; they have transcended the moral and philanthropic sphere, and
entered the sphere of law.
6. In the case at hand, it seems that "humanitarian concern" has lost the
acquired autonomous legal position. This fact needs to be stressed in view
of the special circumstances of this case.
Unlike the cases referred to previously, "humanitarian concern" has as its
object the fate of an entire nation, in the literal sense. Such a
conclusion may be inferred from at least two elements:
primo, the Federal Republic of Yugoslavia and its national and ethnic
groups have been subjected for more than two months now to continued
attacks of a very strong, highly organized air armada of the most powerful
States of the world. The aim of the attack is horrifying, judging by the
words of the Commander-in-Chief, General Wesley Clark, and he ought to be
believed:
"We're going to systematically and progressively attack, disrupt, degrade,
devastate, and ultimately, unless President Milosevic complies with the
demands of the international community, we're going to completely destroy
his forces and their facilities and support." (BBC News,
http://news.bbc.co.uk/english/static.NATOgallery/air default.stm/14 May
1999.)
"Support" is interpreted, in broad terms, extensively; to the point which
raises the question of the true object of the air attacks. In an article
entitled "Belgrade People Must Suffer" Michael Gordon quotes the words of
General Short that he "hopes the distress of the public will, must undermine
support for the authorities in Belgrade" (International Herald Tribune, 16
May 1999, p. 6) and he continued:
"I think no power to your refrigerator, no gas to your stove, you can't get
to work because bridge is down the bridge on which you held your rock
concerts and you all stood with targets on your heads. That needs to
disappear at three o'clock in the morning." (Ibid.)
That these are not empty words is testified to by destroyed bridges, power
plants without which there is no electricity, water supply and production [p
619] of foodstuffs essential for life; destroyed roads and residential
blocks and family homes; hospitals without electricity and water and, above
all, human beings who are exposed to bombing raids and who, as is rightly
stressed in the Application in the LaGrand (Germany v. United States of
America) case, have the "inherent right to life" (International Covenant on
Civil and Political Rights, Art. 6), whose importance and sanctity are well
established in international law. In the inferno of violence, they are but
"collateral damage".
secundo, the arsenal used in the attacks on Yugoslavia contains also
weapons whose effects have no limitations either in space or in time. In the
oral proceedings before the Court, the Agent of the United States explicitly
stressed that depleted uranium is in standard use of the United States Army
(CR 99/24, p. 21).
The assessment of the effects of depleted uranium should be left to science.
The report by Marvin Resnikoff of Radioactive Management Associates on NMI
elaborated upon these effects:
"Once inhaled, fine uranium particles can lodge in the lung alveolar and
reside there for the remainder of one's life. The dose due to uranium
inhalation is cumulative. A percentage of inhaled particulates may be
coughed up, then swallowed and ingested. Smoking is an additional factor
that needs to be taken into account. Since smoking destroys the cilia,
particles caught in a smoker's bronchial passages cannot be expelled. Gofman
estimates that smoking increases the radiation risk by a factor of 10.
Uranium emits an alpha particle, similar to a helium nucleus, with two
electrons removed. Though this type of radiation is not very penetrating, it
causes tremendous tissue damage when internalized. When inhaled, uranium
increases the probability of lung cancer. When ingested, uranium
concentrates in the bone. Within the bone, it increases the probability of
bone cancer, or, in the bone marrow, leukemia. Uranium also resides in soft
tissue, including the gonads, increasing the probability of genetic health
effects, including birth defects and spontaneous abortions. The relationship
between uranium ingested and the resultant radiation doses to the bone
marrow and specific organs . . . are listed in numerous references.
The health effects are also age-specific. For the same dose, children have
a greater likelihood than adults of developing cancer." (Uranium
Battlefields Home & Abroad: Depleted Uranium Use by the U.S. Department of
Defense, Rural Alliance for Military Accountability et al, March 1993, pp.
47-48.)
A scientific analysis of the concrete effects of armed operations against [p
620] Yugoslavia has been presented by Umweltbundesamt (UBA). The essentials
of the expertise are as followsFN1:
---------------------------------------------------------------------------------------------------------------------FN1
"Je lδnger der Krieg in Jugoslawien dauert, desto grφsser wird die Gefahr
von lang-fristigen Schδdigungen der Umwelt. Diese drohen sich όber die
Landesgrenzen hinaus auszubreiten und kφnnen mφglicherweise nicht mehr
vollstδndig beseitigt werden. Zu dieser Einschδtzung kommt das
Umweltbundesamt (UBA) in einem internen Papier, das sich mit den
φkologischen Auswirkungen des Krieges in Jugoslawien befasst und fόr die
Vorbereitung des Treffens europδischer Umweltminister Anfang Mai in Weimar
erstellt wurde. Katastrophen 'wie Seveso und Sandoz' sind nach Ansicht des
Amtes 'ein durchaus wahrscheinliches Schadensszenario'.
Umweltgifte, die nach Zerstφrungen von Industrieanlagen austreten, kφnnten
sich weiter ausbreiten. 'Bei Sicherstellung sofortigen Handelns, das unter
Kriegsbedingungen aber unmφglich ist, bleibt die Wirkung dieser
Umweltschδdigungen lokal begrenzt. Lδngere Verzφgerungen fόhren zu einem
όbertritt der Schadstoffe in die Schutzgόter Boden, Grund- und
Oberflδchenwasser, erhφhen das Gefδhrdungspotential fόr den Menschen und den
Sanierungsaufwand betrδchtlich.'
Diese Folgen mόssen nicht auf Jugoslawien beschrδnkt sein. Schadstoffe aus
Grossbrδnden kφnnten grenzόberschreitend verteilt werden. Weiter heisst es
in dem Papier: 'Die Einleitung der Gefahrstoffe in Oberflδchenwasser kann
zur weitrδumigen Schδdigung der Φkosysteme fόhren. Die Deposition von
Gefahrstoffen in Bφden kann je nach Eigenschaft der Stoffe und Bφden zu
langanhaltenden Versuchungen mit weitgehenden Nutzungseinschrδnkungen
fόhren.'
Die Gefahr einer 'tiefgreifenden Zerstφrung wesentlicher Bestandteile von
Trink-wasserversorgungssystemen' sei fόr mittlere und grosse Stδdte sowie
Ballungsgebiete am grφssten. Schon geringe Mengen von Substanzen der
petrochemischen Industrie kφnnten 'grosse Grundwasservorrδte unbrauchbar
machen'.
Wie gefδhrlich die freigesetzten Stoffe insgesamt sind, lδsst sich nach
Ansicht der UBA-Experten nur schwer abschδtzen, 'weil durch die Zerstφrung
ganzer Industriekomplexe Mischkontaminationen verschiedenster Schadstoffe
gebildet werden', die noch wenig erforscht seien. Noch komplizierter sei die
Beurteilung von Umweltschδden durch Brδnde und Explosionen. 'Hier treten
bezogen auf Schadstoffinventar und Ausbreitung weit weniger kalkulierbare,
zum Teil grossflδchige Umweltschδdigungen ein.'
Die Verbrennungsprodukte seien 'zum Teil hoch toxisch und kanzerogen'. Je
nach klimatischen Bedingungen kφnne es 'zu einer grossflδchigen Verteilung
dieser Stoffe' kommen, 'die eine vollstδndige Beseitigung nahezu unmφglich
macht' . . .
Die Wechselwirkungen der Produkte mit den eingesetzten Waffen dόrften
'vφllig unbekannt' sein." (TAZ. Die Tageszeitung, Berlin, 20 May 1999.)
---------------------------------------------------------------------------------------------------------------------
[Translation by the Registry]
"The longer the war in Yugoslavia lasts, the greater the risk of long-term
damage to the environment. Such damage threatens to extend beyond national
frontiers, and it may no longer be possible fully to make it good. The
Federal Environmental Agency [Umwelt-bundesamt (UBA)] comes to this
conclusion in an internal paper examining the ecological consequences of the
war in Yugoslavia, prepared for the meeting of European Environment
Ministers at the beginning of May in Weimar. Catastrophes 'like Seveso and
Sandoz' are, in the opinion of the Agency, 'a perfectly probable damage
scenario'.
[p 621]
Environmental toxins released by the destruction of industrial plant could
spread further. 'If immediate action is taken, which is, however, impossible
under war conditions, the effect of this environmental damage will remain
restricted to local level. Longer delays will result in toxic substances
passing into the soil, groundwater and surface water, and substantially
increase the potential danger to man, and the cost of cleansing operations.'
These consequences are not necessarily limited to Yugoslavia. Harmful
substances deriving from major conflagrations can be diffused beyond
frontiers. The paper continues: 'Passage of harmful substances into surface
water can lead to extensive damage to ecosystems. The deposition of
hazardous substances in the soil can, depending on the nature of those
substances and of the soil, result in long-term contamination, imposing
far-reaching limitations upon utilization.'
The danger of 'extensive destruction of essential components of
drinking-water supply networks' is biggest with regard to middle-sized and
large cities and conurbations. Even small amounts of substances from the
petrochemical industry can render 'extensive groundwater reserves unusable'.
According to the Federal Environmental Agency experts, the overall risk
posed by the substances released is difficult to assess, 'because the
destruction of entire industrial complexes results in mixed contamination
by a wide variety of harmful substances' an area in which there has as yet
been little research. Even more problematic, in the experts' view, is the
assessment of environmental damage caused by fires and explosions. 'Here, in
terms of identification of the harmful substances involved and the
possibility of their diffusion, environmental damage is far harder to
predict, but will on occasion be extensive.'
The substances produced by the fires are described as 'in part highly toxic
and carcinogenic'. Depending on climatic conditions, 'widespread diffusion
of these substances' could occur, 'which would render full cleansing almost
impossible'.
The effects of the interaction of those substances with the weapons employed
were said to be 'completely unknown'." (TAZ, Die Tageszeitung, Berlin, 20
May 1999.)
Therefore, it is my profound conviction, that the Court is, in concreto,
confronted with an uncontestable case of "extreme urgency" and "irreparable
harm", which perfectly coincides, and significantly transcends the [p 622]
substance of humanitarian standards which the Court has accepted in previous
cases.
7. I must admit that I find entirely inexplicable the Court's reluctance to
enter into serious consideration of indicating provisional measures in a
situation such as this crying out with the need to make an attempt,
regardless of possible practical effects, to at least alleviate, if not
elimi-nate, an undeniable humanitarian catastrophe. I do not have in mind
provisional measures in concrete terms as proposed by the Federal Republic
of Yugoslavia, but provisional measures in general: be they provisional
measures proprio motu, different from those proposed by the Federal Republic
of Yugoslavia or, simply, an appeal by the President of the Court, as was
issued on so many occasions in the past, in less difficult situations, on
the basis of the spirit of Article 74, paragraph 4, of the Rules of Court.
One, unwillingly, acquires the impression that for the Court in this
particular case the indication of any provisional measures whatever has
been terra prohibita. Exempli causa, the Court, in paragraph 19 of the
Order, says that it:
"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",
or, in paragraph 49 of the Order, that the Parties: "should take care not to
aggravate or extend the dispute", and it is obvious that both the above
pronouncements of the Court have been designed within the model of general,
independent provisional measures.
III. Jurisdictional Issues
Jurisdiction of the Court Ratione Personae
8. The membership of Federal Republic of Yugoslavia in the United Nations is
in the present case one of the crucial issues within the jurisdiction of
the Court ratione personae.
The respondent State, when referring to the United Nations resolution 777
(1992) of 19 September 1992 and to the United Nations General Assembly
resolution 47/1 of 22 September 1992, also contends that "the Federal
Republic of Yugoslavia cannot be considered, as it claims, to be the
continuator State of the former Socialist Federative 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 Court. [p 623]
It is worth noting that the respondent State did not invoke this argument
with respect to the Genocide Convention as another basis of jurisdiction
invoked by the Applicant, although the connection between the legal identity
and continuity of the Federal Republic of Yugoslavia with the status of the
Contracting Party of the Genocide Convention is obvious (see para. 12,
below). One can guess the reasons for the State to take such a position.
Sedes materiae the question of the Federal Republic of Yugoslavia's
membership in the United Nations can be reduced to a couple of
qualifications:
8.1. General Assembly resolution 4711 was adopted for pragmatic, political
purposes
The adoption of that resolution cannot, in my opinion, be divorced from the
main political stream taking place in international institutions during the
armed conflict in the former Yugoslavia. It appears that as a political body
the General Assembly of the United Nations, as well as the Security Council
which recommended that the Assembly adopt resolution 47/1, perceived such a
resolution as one of political means to achieve the desirable solution to
the relevant issues in the crisis unfolding in the former Yugoslavia.
Such a conclusion relies on the fact that in adopting resolution 47/1, the
General Assembly basically followed the opinions of the so-called Badinter
Commission engaged as an advisory body in the work of the Conference on
Yugoslavia with the aim of finding a peaceful solution to the relevant
issues. In its Opinions No. 1 and No. 8, the Commission elaborates the point
on territorial changes in the former Yugoslavia which has, in its opinion,
resulted in the emergence of six equal, independent State entities
corresponding in territory to the Republics as the constituent parts of the
Yugoslav Federation. In its Opinion No. 9 the Commission proceeds from the
point of finalization of the "process of break up of SFRY" and elaborates on
the effects of the alleged break up from the standpoint of succession of
States. In that context, it, inter alia, established
"the need to terminate SFRY's membership status in international
organizations in keeping with their statutes and that not a single
successor state may claim for itself the rights enjoyed until then by the
former SFRY as its member state" (The Peace Conference on Yugoslavia,
Arbitration Commission, Opinion No. 9, para. 4).
Introducing draft resolution 47/L. 1, Sir David Hannay (United Kingdom)
said, inter alia,
"the fact that the Council is ready to consider the matter again [p 624]
within the next three months is significant. The tragic situation in the
former Yugoslavia is a matter of the highest concern to all members of the
international community. The International Conference on the Former
Yugoslavia, which opened in London on 26 August and which now meets in
Geneva, brings together the efforts of the United Nations and the European
Community. We must do everything in our power to encourage the parties,
with the assistance of the Conference Co-Chairman, to settle their
differences at the negotiating table, not on the battlefield. That the
Council has decided to consider the matter again before the end of the year
will, we trust, be helpful incentive to all the parties concerned, as an
effective means of supporting the Co-Chairman of the Conference on
Yugoslavia in their heavy task." (United Nations doc. A/47/Pv.7, p. 161;
emphasis added).
8.2. From a legal aspect, resolution 4711 is inconsistent and contradictory
The operative part of resolution 47/1 reads as follows:
"The General Assembly,
1. Considers 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; and, therefore, decides that
the Federal Republic of Yugoslavia should apply for membership in the
United Nations and shall not participate in the work of the General
Assembly."
The main elements of the solution in General Assembly resolution 47/1 are
the following:
The opinion that the Federal Republic of Yugoslavia cannot automatically
continue the membership of the SFRY in the United Nations. The stand of the
main political bodies of the United Nations (the Security Council and the
General Assembly) was formulated in terms of an "opinion" ; namely, such a
conclusion clearly stems from the fact that the relevant part of General
Assembly resolution 47/1 begins with the words "considers". It is
significant to note that the General Assembly's opinion does not conform
fully with the meaning of the Opinions Nos. 1, 8 and 9 of the so-called
Badinter Arbitration Commission. Namely, in its Opinions 1 and 8 the
Commission elaborates the point on the break up of SFRY which has, in its
opinion, resulted in the emergence of six equal, independent State entities
corresponding in territory to the Republics as the constituent parts of the
Yugoslav Federation. Resolution 47/1 proceeds from a more moderate starting
point. It apparently does not terminate the Federal Republic of
Yugoslavia's membership in the Organi-[p 625]zation. It simply establishes
that "the Federal Republic of Yugoslavia cannot automatically continue the
membership ... in the United Nations Organization" (emphasis added). A
contrario, this means that the Federal Republic of Yugoslavia's membership
in the Organization can be continued but not automatically. True, the
resolution does not elaborate how that can be achieved but, if we interpret
it systematically and together with Security Council resolutions 757 and
777, we will come to the conclusion that the Federal Republic of
Yugoslavia's membership in the Organization can be continued in case such a
request is "generally accepted". That the legal meaning of the resolution
does not imply the termination of the Federal Republic of Yugoslavia's
membership in the Organization is also clear from the letter of the
Under-Secretary-General and Legal Counsel of the United Nations addressed on
29 September 1992 to the Permanent Representatives to the United Nations of
Bosnia and Herzegovina and Croatia in which he stated, inter alia,
"the resolution does not terminate nor suspends Yugoslavia's membership in
the Organization. Consequently, the seat and the name-plate remain as before
. . . Yugoslav mission at United Nations Headquarters and offices may
continue to function and may receive and circulate documents. At
Headquarters, the Secretariat will continue to fly the flag of the old
Yugoslavia."
8.3. A ban on participation in the Organization's work
That the relevant part of the resolution refers to a ban is borne out by the
use of the imperative wording ("shall not participate"). This ban is,
ratione materiae, limited along two different lines:
(a) it refers to the direct participation in the General Assembly. Indirect
participation in the work of the General Assembly is not excluded. Elements
of indirect participation are implied given that the Mission of the Federal
Republic of Yugoslavia to the United Nations continues to operate and, in
particular, "may receive and circulate documents". It follows from the
Under-Secretary-General's interpretation that the term "General Assembly"
has been used in the resolution in its generic sense, considering that it
also includes the auxiliary bodies of the General Assembly and conferences
and meetings convened by the Assembly;
(b) the ban does not apply to participation in the deliberations of other
bodies in the United Nations Organization. [p 626]
8.4. The decision that the Federal Republic of Yugoslavia should apply for
membership
This part of resolution 47/1 is legally ambiguous and contradictory both in
form and in substance.
From the formal point of view, the "decision" that the Federal Republic of
Yugoslavia should apply for membership in the Organization proceeds from
the irrefutable assumption that the Federal Republic of Yugoslavia wishes to
have the status of a member even if it may not con-tinue the membership in
the Organization. Such an assumption is illogical, although it may prove
correct in fact. Membership in the Organization is voluntary and therefore
no State is under obligation to seek admission. The relevant wording in the
resolution has not been correctly drafted from a legal and technical point
of view for it has a connotation of such an irrefutable assumption. A
correct wording would have to state a reservation which would make such a
decision conditional upon Yugoslavia's explicitly expressed wish to become
a member in case it is irrevocably disallowed from continuing its
membership in the Organization.
From the actual point of view, it is unclear why the Federal Republic of
Yugoslavia should submit an application for membership if "the resolution
does not terminate . . . Yugoslavia's membership in the Organization". An
application for admission to membership is, ex definitions made if a
non-member State wishes to join the Organization. What could in terms of
concrete relations be the outcome of a procedure initiated by Yugoslavia by
way of application for membership? If the outcome of the procedure were
admission to membership, such a decision by the General Assembly would be
superfluous from the point of view of logic, given that resolution 47/1 has
not terminated Yugoslavia's membership in the Organization. Presumably, the
authors of resolution 47/1 have another outcome in mind. Maybe to confirm or
to strengthen Yugoslavia's membership in the Organization by such a
procedure. This could be guessed from the wording in the resolution which
says that "the Federal Republic of Yugoslavia cannot automatically continue
the membership". This term or phrase literally means that the idea behind
the procedure would be to re-assert or strengthen the Federal Republic of
Yugoslavia's membership in the Organization but, confirmation of membership
could hardly have any legal meaning in this particular case for a State is
either a member or not. It appears that the meaning of such an act could be
only non-legal; namely, political. Finally, the resolution advises the
Federal Republic of Yugoslavia to apply for admission to membership. The
logical question arises: why would a State whose membership in the
Organization has, in that very same Organization's view, not been
terminated, submit a request for the establishment of something that is in
the nature of an indisputable fact? [p 627]
Finally, due regard should be paid to the concluding paragraph of resolution
47/1 which says that the General Assembly takes note "of the Security
Council's intention to review the matter before the end of the main part of
the 47th Session of the General Assembly". A statement like this is
unnecessary if it was the intention of the authors of the resolution to
bring, by its adoption, to an end the debate on the continuity of the
Federal Republic of Yugoslavia's membership in the Organization. It seems to
suggest that the idea behind resolution 47/1 was to maintain the pace of
updating the Organization's political approach to the Yugoslav crisis in the
framework of which even the question of the Federal Republic of
Yugoslavia's membership in the Organization carries, in the latter's
opinion, a certain specific weight. The question of the Federal Republic of
Yugoslavia's membership in the United Nations Organization is a formal one
and was opened by Security Council resolution 757 of 30 May 1992, which in
its operative part has set into motion the mechanism of measures stipulated
in Chapter VII of the United Nations Charter relying on the assessment that
"the situation in Bosnia-Herzegovina and in other parts of the former
Socialist Federal Republic of Yugoslavia poses a threat to peace and
security".
It is not difficult to agree with Professor Higgins (as she then was) that,
judged from the legal point of view, the consequence arising out of
resolution 47/1 "is abnormal to absurdity" (Rosalyn Higgins, "The United
Nations and the Former Yugoslavia", International Affairs, Vol. 69, p. 479).
8.5 The practice of the Organization relating to the issues raised by the
content of resolution 4711
A couple of relevant facts regarding the practice of the Organization
concerning membership of the Federal Republic of Yugoslavia raise the
question of whether the Organization acted contra factum proprium if:
(a) resolution 47/1 was adopted at the 47th Session of the General Assembly.
The delegation of the Federal Republic of Yugoslavia took an active part as
a full member in the proceedings of the 46th Session, and the Credentials
Committee unanimously recommended approval of the credentials of the Federal
Republic of Yugoslavia (United Nations doc. A/46/563, dated 11 October
1991). In the light of the fact that Croatia and Slovenia had seceded from
Yugoslavia on the eve of that Session, the Organization's attitude to the
Federal Republic of Yugoslavia's participation in the 46th Session means
that the Organization accepted the Federal Republic of Yugoslavia as a
territorially diminished predecessor State according to [p 628]
"criteria laid down in the wake in the partitioning of India in 1947 and
consistently applied ever since criteria that by and large have served the
United Nations and the international community well over the past decades"
(Yehuda Z. Blum, "UN Membership of the 'New' Yugoslavia: Continuity or
Break?", American Journal of International Law (1992), Vol. 86, p. 833);
(b) the delegation of the Federal Republic of Yugoslavia also took part in
the 47th Session of the General Assembly which adopted the resolution
contesting the right of Federal Republic of Yugoslavia to continue
automatically membership in the Organization. Not one delegation made any
objection to the delegation of Federal Republic of Yugoslavia taking the
seat of SFRY in the General Assembly. It follows from that that the
delegations had "at least tacitly accepted the right of the 'Belgrade
authorities' to request Yugoslavia's seat the seat of one of the founding
members of the United Nations" (ibid., p. 830);
(c) during all the time since the General Assembly passed resolution 47/1,
the Federal Republic of Yugoslavia has continued to pay its financial
contributions to the Organization (see Annexes to CR99/ 25). Yugoslavia is
mentioned as a Member State in the document entitled "Status of
contributions to the United Nations regular budget as at 30 November 1998"
published by the United Nations Secretariat in its document ST/ADM/SER.B/533
of 8 December 1998. In the letter addressed to Vladislav Jovanovic, Charge
d'Affaires of the Permanent Mission of the Federal Republic of Yugoslavia to
the United Nations, the competent authorities of the Organization cited
Article 19 of the United Nations Charter and accompanied the citation with
the formulation:
"in order for your Government not to fall under the provisions of Article 19
of the Charter during any meetings of the General Assembly to be held in
1998, it would be necessary that a minimum payment of SI 1,776,400 be
received by the Organization to bring such arrears to an amount below that
specified under the terms of Article 19" (ibid.);
(d) in the practice of the United Nations Secretary-General as the
depositary of multilateral treaties, Yugoslavia figures as a party to the
multilateral treaties deposited with the Secretary-General as an original
party. The date when the SFRY expressed its consent to be bound is mentioned
as a day on which Yugoslavia is bound by that specific instrument. Exampli
causa in the "multilateral treaties deposited with the Secretary-General"
for 1992, and in the list of "participants" of the Convention on the
Prevention and Punishment of the Crime of Genocide, Yugoslavia is included
and 29 August 1950 is [p 629] mentioned as the date of the acceptance of the
obligation the date on which SFRY ratified that Convention. Such a model
is applied, mutatis mutandis, to other multilateral conventions deposited
with the Secretary-General of the United Nations.
On the basis of existing practice, the "Summary of practice of the
Secretary-General as depositary of multilateral treaties" concludes:
"[t]he independence of the new successor State, which then exercises its
sovereignty on its territory, is of course without effect as concerns the
treaty rights and obligations of the predecessor State as concerns its own
(remaining) territory. Thus, after the separation of parts of the territory
of the Union of Soviet Socialist Republics (which became independent
States), the Union of Soviet Socialist Republics (as the Russian Federation)
continued to exist as a predecessor State, and all its treaty rights and
obligations continued in force in respect of its territory. The same applies
to the Federal Republic of Yugoslavia (Serbia and Montenegro), which remains
as the predecessor State upon separation of parts of the territory of the
former Yugoslavia. General Assembly resolution 47/1 of 22 September 1992, to
the effect that the Federal Republic of Yugoslavia could not automatically
continue the membership of the former Yugoslavia in the United Nations . . .
was adopted within the framework of the United Nations and the context of
the Charter of the United Nations, and not as an indication that the Federal
Republic of Yugoslavia was not to be considered a predecessor State."
(ST/LEG.8, p. 89, para. 297.)
On 9 April 1996, on the basis of protest raised by a few Members of the
United Nations, the Legal Counsel of the United Nations issued under
"Errata" (doc. LLA41TR/220) which, inter alia, deleted the qualification of
the Federal Republic of Yugoslavia as a predecessor State contained in
paragraph 297 of the "Summary". In my view, such a deletion is devoid of any
legal relevance since a "Summary" by itself does not have the value of an
autonomous document, a document which determines or constitutes something.
It is just the condensed expression, the external lapidary assertion of a
fact which exists outside it and independently from it. In that sense, the
Introduction to the "Summary of the practice of the Secretary-General as the
depositary of multilateral treaties" says, inter alia, that "the purpose of
the present summary is to highlight the main features of the practice
followed by the Secretary-General in this field" (p. 1, emphasis added) but
not to constitute the practice itself.
9. As regards the membership of the Federal Republic of Yugoslavia of the
United Nations, the Court takes the position that [p 630]
"Whereas, in view of its finding in paragraph 30 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" (Order, para. 33).
The Court retained the position of an ingenious but, for the purposes of the
present proceedings, unproductive elegantiae juris processualis. The Court's
jurisdiction ratione personae is directly dependent on the answer to the
question whether the Federal Republic of Yugoslavia can be con-sidered to be
a member State of the United Nations, both vis-ΰ-vis the optional clause and
vis-ΰ-vis the Genocide Convention.
It would of course be unreasonable to expect the Court to decide on whether
or not the Federal Republic of Yugoslavia is a Member of the United Nations.
Such an expectation would not be in accord with the nature of the judicial
function and would mean entering the province of the main political organs
of the world Organization the Security Council and the General Assembly.
But it is my profound conviction that the Court should have answered the
question whether the Federal Republic of Yugoslavia can or cannot, in the
light of the content of General Assembly resolution 47/1 and of the practice
of the world Organization, be considered to be a Member of the United
Nations and especially party to the Statute of the Court; namely, the text
of resolution 47/1 makes no mention of the status of the Federal Republic of
Yugoslavia as a party to the Statute of the International Court of Justice.
That is the import of resolution 47/1 ratione materiae. And nothing beyond
that. In that respect the position of the Court is identical to the position
of other organs of the United Nations. A contrario there would, exempli
causa, be no need for a General Assembly recommendation by resolution 47/229
concerning the participation of the Federal Republic of Yugoslavia in the
work of the Economic and Social Council. In other words, resolution 47/1
makes no mention, explicitly or tacitly, of the International Court of
Justice; the same is true of the other documents adopted on the basis of the
above-mentioned resolution. It follows from this that General Assembly
resolution 47/1 has produced no effect on the status of the Federal Republic
of Yugoslavia as a party to the Statute and this is confirmed, inter alia,
by all issues of the Yearbook of the International Court of Justice since
1992.
I am equally convinced that, both the content of the resolution, which
represents contradictio in adiecto, and the particular practice of the world
Organization after its adoption over a period of nearly seven years, offered
ample arguments for it to pronounce itself on this matter.
10. The position of the Court with respect to the Federal Republic of
Yugoslavia membership of the United Nations can be said to have [p 631]
remained within the framework of the position taken in the Order on the
indication of provisional measures in the Genocide case of 8 April 1993.
Paragraph 18 of that Order states:
"Whereas, while the solution adopted is not free from legal difficulties,
the question whether or not Yugoslavia is a Member of the United Nations and
as such a party to the Statute of the Court is one which the Court does not
need to determine definitively at the present stage of the proceedings"
(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).
The objection may be raised that the wording of paragraph 18 is of a
technical nature, that it is not a relevant answer to the question of
Federal Republic of Yugoslavia membership of the United Nations; however,
it is incontestable that it has served its practical purpose because, it
seems,
"the Court was determined to establish its jurisdiction in this case
[Application of the Convention on the Prevention and Punishment of the Crime
of Genocide] whilst at the same time avoiding some of the more delicate, and
indeed profound, concerns about the position of the respondent State
vis-ΰ-vis the Charter and Statute" (M. C. R. Craven, "The Genocide Case, the
Law of Treaties and State Succession", British Year Book of International
Law, 1997, p. 137).
The Court tacitly persisted in maintaining this position also in the further
requests for the indication of provisional measures (Application of the
Convention on the Prevention and Punishment of the Crime of Genocide, Order
of 13 September 1993), as well as in the Judgment on preliminary objections
of 11 July 1996.
Even if such a position can be considered to be understandable in the second
proceedings for the indication of provisional measures, it nevertheless
gives rise to some complicated questions in the proceedings conducted in
the wake of the preliminary objections raised by Yugoslavia.
In these proceedings, the Court was confronted, inter alia, also with the
question as to whether Yugoslavia is a party to the Genocide Convention. It
is hardly necessary to mention that the status of a Contracting Party to the
Genocide Convention was conditio sine qua non for the Court to proclaim its
jurisdiction in the case concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide.
The Court found that it has jurisdiction ratione personae, supporting this
position, in my opinion, with a shaky, unconvincing explanation (see
dissenting opinion of Judge Kreca, I.C.J. Reports 1996, pp. 755-760, paras.
91-95). For the purposes of this case, of particular interest is the
position of the Court "that it has not been contested that Yugoslavia was [p
632] party to the Genocide Convention" (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide, Preliminary Objections,
Judgment, I.C.J. Reports 1996 (II), p. 610, para. 17). The absence of
contest was the decisive argument for the Court to state that "Yugoslavia
was bound by the provisions of the Convention on the date of the filing of
the Application in the present case" (ibid.).
The Court has, deliberately, I presume, failed to state who did not contest
that Yugoslavia is a party to the Genocide Convention. If it had in mind the
Applicant (Bosnia and Herzegovina), it is hardly necessary to note that the
State which is initiating proceedings before the Court would not deny the
existence of the title of jurisdiction; and, in the case in question, the
Genocide Convention was the only possible ground of the Court's
jurisdiction. If, however, the Court had third States in mind, then things
do not stand as described by the Court, stating that "it has not been
contested". By refusing to recognize the Federal Republic of Yugoslavia and
its automatic continuation of membership of the United Nations, the member
States of the world Organization contested eo ipso that the Federal Republic
of Yugoslavia is automatically a party to multilateral treaties concluded
under the aegis of the United Nations and, consequently, also a party to the
Genocide Convention. The Federal Republic of Yugoslavia can be considered to
be a party to the Genocide Convention only on the grounds of legal identity
and continuity with the Socialist Federal Republic of Yugoslavia because,
otherwise, it constitutes a new State, and it did not express its consent
to be bound by the Genocide Convention in the manner prescribed by Article
XI of the Convention, nor did it send to the Secretary-General of the
United Nations the notification of succession. A tertium quid is simply
non-existent, in particular from the standpoint of the Judgment of 11 July
1996 in the Genocide case, in which the Court did not declare its position
on the so-called automatic succession in relation to certain multilateral
treaties (Application of the Convention on the Prevention and Punishment of
the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996
(II), p. 612, para. 23).
All in all, the Court in the present Order remained consistent with its
"avoidance" position, persisting in its statement that it "need not
consider this question for the purpose of deciding whether or not it can
indicate provisional measures in the present case".
Such is the Court's restraint with respect to this highly relevant issue and
its reluctance to make its position known may well create the impression
quite differently from that expressed by Craven in regard to the Application
of the Convention on the Prevention and Punishment of the Crime of Genocide
case that "the Court was determined to establish its jurisdiction [over
the] case whilst at the same time avoiding some of more delicate, and indeed
profound, concerns about the position" of Yugosla-[p 633]via vis-ΰ-vis the
Charter and the Statute and its inevitable legal consequences upon
proceedings pending before the Court.
Jurisdiction of the Court Ratione Materiae
11. I am of the opinion that in the matter in hand the Court's position is
strongly open to criticism. The Court finds:
"whereas the threat or use of force against a State cannot in itself
constitute an act of genocide within the meaning of Article II of the
Genocide Convention; and whereas, in the opinion of the Court, it does not
appear at the present stage of the proceedings that the bombings which form
the subject of the Yugoslav Application 'indeed entail the element of
intent, towards a group as such, required by the provision quoted above'
(Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J.
Reports 1996 (I), p. 240, para. 26)" (Order, para. 40).
The intent is, without doubt, the subjective element of the being of the
crime of genocide as, indeed, of any other crime. But, this question is not
and cannot, by its nature, be the object of decision-making in the
incidental proceedings of the indication of provisional measures.
In this respect, a reliable proof should be sought in the dispute which, by
its salient features, is essentially identical to the dispute under
consideration the case concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide.
In its Order on the indication of provisional measures of 8 April 1993, in
support of the assertion of the Respondent that, inter alia, "it does not
support or abet in any way the commission of crimes cited in the
Application . . . and that the claims presented in the Application are
without foundation" (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. 21, para. 42), the Court stated:
"Whereas the Court, in the context of the present proceedings on a request
for provisional measures, has in accordance with Article 41 of the Statute
to consider the circumstances drawn to its attention as requiring the
indication of provisional measures, but cannot make definitive findings of
fact or of imputability, and the right of each Party to dispute the facts
alleged against it, to challenge the attribution to it of responsibility
for those facts, and to submit arguments in respect of the merits, must
remain unaffected by the Court's decision" (ibid., p. 22, para. 44)
and
"Whereas the Court is not called upon, for the purpose of its deci-[p
634]sion on the present request for the indication of provisional measures,
now to establish the existence of breaches of the Genocide Convention"
(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. 22, para. 46).
The rationale of provisional measures is, consequently, limited to the
preservation of the respective rights of the parties pendente lite which are
the object of the dispute, rights which may subsequently be adjudged by the
Court. As the Court stated in the Land and Maritime Boundary between
Cameroon and Nigeria case:
"Whereas the Court, in the context of the proceedings concerning the
indication of provisional measures, cannot make definitive findings of fact
or of imputability, and the right of each Party to dispute the facts alleged
against it, to challenge the attribution to it of responsibility for those
facts, and to submit arguments, if appropriate, in respect of the merits,
must remain unaffected by the Court's decision" (Land and Maritime Boundary
between Cameroon and Nigeria, Provisional Measures, Order of 15 March 1996,
I.C.J. Reports 1996 (I), p. 23, para. 43).
12. Fundamental questions arise regarding the position of the Court on this
particular matter.
The relationship between the use of armed force and genocide can be looked
upon in two ways:
(a) is the use of force per se an act of genocide or not? and,
(b) is the use of force conducive to genocide and, if the answer is in the
affirmative, what is it then, in the legal sense?
It is incontrovertible that the use of force per se et definitione does not
constitute an act of genocide. It is a matter that needs no particular
proving. However, it could not be inferred from this that the use of force
is unrelated and cannot have any relationship with the commission of the
crime of genocide. Such a conclusion would be contrary to elementary logic.
Article II of the Convention on the Prevention and Punishment of the Crime
of Genocide defines the acts of genocide as
"any of the following acts committed with intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group."[p 635]
Any of these acts can be committed also by the use of force. The use of
force is, consequently, one of the possible means of committing acts of
genocide. And, it should be pointed out, one of the most efficient means,
due to the immanent characteristics of armed force.
Extensive use of armed force, in particular if it is used against objects
and means constituting conditions of normal life, can be conducive to
"inflicting on the group conditions of life" bringing about "its physical
destruction".
Of course, it can be argued that such acts are in the function of degrading
the military capacity of the Federal Republic of Yugoslavia. But such an
explanation can hardly be regarded as a serious argument. For, the spiral of
such a line of thinking may easily come to a point when, having in mind that
military power is after all comprised of people, even mass killing of
civilians can be claimed to constitute some sort of a precautionary measure
that should prevent the maintenance or, in case of mobilization, the
increase of military power of the State.
Of course, to be able to speak about genocide it is necessary that there is
an intent, namely, of "deliberately inflicting on the group conditions of
life" bringing about "its physical destruction in whole or in part".
In the incidental proceedings the Court cannot and should not concern itself
with the definitive qualification of the intent to impose upon the group
conditions in which the survival of the group is threatened. Having in mind
the purpose of provisional measures, it can be said that at this stage of
the proceedings it is sufficient to establish that, in the conditions of
intensive bombing, there is an objective risk of bringing about conditions
in which the survival of the group is threatened.
The Court took just such a position in the Order of 8 April 1993 on the
indication of provisional measures in the Application of the Convention on
the Prevention and Punishment of the Crime of Genocide case.
Paragraph 44 of that Order stated:
"Whereas the Court, in the context of the present proceedings on a request
for provisional measures, has in accordance with Article 41 of the Statute
to consider the circumstances drawn to its attention as requiring the
indication of provisional measures, but cannot make definitive findings of
fact or of imputability, and the right of each Party to dispute the facts
alleged against it, to challenge the attribution to it of responsibility
for those facts, and to submit arguments in respect of the merits, must
remain unaffected by the Court's decision" (I.C.J. Reports 1993, p. 22).
The question of "intent" is a highly complicated one. Although the intent is
a subjective matter, a psychological category, in contemporary criminal
legislation it is established also on the basis of objective circumstances.
Inferences of intent to commit an act are widely incorporated in [p 636]
legal systems. Exempli causa, permissive inferences as opposed to a
mandatory presumption in the jurisprudence of the United States of America
may be drawn even in a criminal case.
In any event, there appears to be a clear dispute between the Parties
regarding "intent" as the constitutive element of the crime of genocide.
The Applicant asserts that "intent" can be presumed and, on the other hand,
the Respondent maintains that "intent", as an element of the crime of
genocide, should be clearly established as dolus specialis. Such a
confrontation of views of the Parties concerned leads to a dispute related
to "the interpretation, application or fulfilment of the Convention",
including disputes relating to the responsibility of a State for genocide
or for any of the other acts enumerated in Article III of the Convention.
13. At the same time, one should have in mind that whether "in certain
cases, particularly that by the infliction of inhuman conditions of life,
the crime may be perpetrated by omission" (Stanislas Plawski, Etude des
principes fondamentaux du droit international penal, 1972, p. 115. Cited in
United Nations doc. E/CN.4/Sub.2/415 of 4 July 1978).
Since,
"Experience provides that a state of war or a military operations regime
gives authorities a convenient pretext not to provide a population or a
group with what they need to subsist food, medicines, clothing, housing
... It will be argued that this is inflicting on the group conditions of
life calculated to bring about its physical destruction in whole or in
part." (J. Y. Dautricourt, "La prevention du genocide et ses fondements
juridiques", Etudes Internationales de psychosociologie criminelle, Nos.
14-15, 1969, pp. 22-23. Cited in United Nations doc. E/CN.4/Sub.2/415 of 4
July 1978, p. 27.)
Of the utmost importance is the fact that, in the incidental proceedings,
the Court cannot and should not concern itself with the definitive
qualification of the intent to impose upon the group conditions in which
the survival of the group is threatened. Having in mind the purpose of
pro-visional measures, it can be said that at this stage of the proceedings
it is sufficient to establish that, in the conditions of intensive bombing,
there is an objective risk of bring about conditions in which the survival
of the group is threatened.
Jurisdiction of the Court Ratione Temporis
14. The ratione temporis element of jurisdiction is considered by the Court
to be the linchpin of its position regarding the absence of jurisdiction in
this particular case. In its Order the Court states, inter alia: [p 637]
"Whereas it is an established fact that the bombings in question began on 24
March 1999 and have been conducted continuously over a period extending
beyond 25 April 1999; and whereas the Court has no doubt, in the light,
inter alia, of the discussions at the Security Council meetings of 24 and 26
March 1999 (S/PV.3988 and 3989), that a 'legal dispute' (East Timor
(Portugal v. Australia), I.C.J. Reports 1995, p. 100, para. 22) 'arose'
between Yugoslavia and the Respondent, as it did also with the other NATO
member States, well before 25 April 1999 concerning the legality of those
bombings as such, taken as a whole;
Whereas the fact that the bombings have continued after 25 April 1999 and
that the dispute concerning them has persisted since that date is not such
as to alter the date on which the dispute arose; whereas each individual air
attack could not have given rise to a separate subsequent dispute; and
whereas, at this stage of the proceedings, Yugoslavia has not established
that new disputes, distinct from the initial one, have arisen between the
Parties since 25 April 1999 in respect of subsequent situations or facts
attributable to the Netherlands" (Order, paras. 28 and 29).
It appears that such a stance of the Court is highly questionable for two
basic reasons:
firstly, for reasons of a general nature to do with jurisprudence of the
Court in this particular matter, on the one hand, and with the nature of the
proceedings for the indication of provisional measures, on the other; and,
secondly, for reasons of a specific nature deriving from the
circumstances of the case in hand.
14.1. As far as the jurisdiction of the Court is concerned, it seems
incontestable that a liberal attitude towards the temporal element of the
Court's jurisdiction in the indication of provisional measures has become
apparent. The ground of such an attitude is the fact stressed by the Court
almost regularly, so that:
"it cannot be accepted a priori that a claim based on such a complaint
falls completely outside the scope of international jurisdiction;
the[se] considerations . . . suffice to empower the Court to entertain the
Request for interim measures of protection;
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" (Anglo-Iranian Oil Co., Order of 5 July 1951, I.C.J. Reports
1951, p. 93),[p 638]
and
"on a request for provisional measures the Court need not, before indicating
them, finally satisfy itself that it has jurisdiction on the merits of the
case ... it ought not to act under Article 41 of the Statute if the absence
of jurisdiction on the merits is manifest" (Fisheries Jurisdiction ( United
Kingdom v. Iceland), Interim Protection, Order of 17 August 1972, I.C.J.
Reports 1972, p. 15, para. 15; and, Fisheries Jurisdiction (Federal Republic
of Germany v. Iceland), Interim Protection, Order of 17 August 1972, I.C.J.
Reports 1972, p. 33, para. 16).
It is hardly necessary to note that the formulation "need not. . . finally
satisfy itself that it has jurisdiction on the merits of the case" relates
to jurisdiction in toto and that, consequently, it includes also
jurisdiction ratione temporis. The application of the above general attitude
of the Court towards jurisdiction ratione temporis may be illustrated by two
characteristic cases:
(a) In the disputes concerning Lockerbie, the Court established, inter alia
that:
"in the course of the oral proceedings the United States contended that the
requested provisional measures should not be indicated because Libya had not
presented a prima facie case that the provisions of the Montreal Convention
provide a possible basis for jurisdiction inasmuch as the six-month period
prescribed by Article 14, paragraph 1, of the Convention had not yet
expired when Libya's Application was filed; and that Libya had not
established that the United States had refused to arbitrate" (Questions of
Interpretation and Application of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of
America), Provisional Measures, Order of ‘4 April 1992, I.C.J. Reports 1992,
p. 122, para. 25),
and that,
"in the context of the [proceedings in the Lockerbie case] on a request for
provisional measures, [the Court] has, in accordance with Article 41 of the
Statute, to consider the circumstances drawn to its attention as requiring
the indication of such measures, but cannot make definitive findings either
of fact or of law on the issues relating to the merits, and the right of the
Parties to contest such issues at the stage of the merits must remain
unaffected by the Court's decision" (ibid., p. 126, para. 41).
(b) The question of jurisdiction of the Court ratione temporis in the
proceedings for the indication of provisional measures also arose in [p 639]
the case concerning the Application of the Convention on the Prevention and
Punishment of the Crime of Genocide. In its Order on the request for the
indication of provisional measures of 8 April 1993, the Court stated, inter
alia:
"Whereas the Court observes that the Secretary-General has treated
Bosnia-Herzegovina, not as acceding, but as succeeding to the Genocide
Convention, and if this be so the question of the application of Articles XI
and XIII of the Convention would not arise; whereas however the Court notes
that even if Bosnia-Herzegovina were to be treated as having acceded to the
Genocide Convention, with the result that the Application might be said to
be premature when filed, 'this circumstance would now be covered' by the
fact that the 90-day period elapsed between the filing of the Application
and the oral proceedings on the request (cf. Mavrommatis Palestine
Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 34);
whereas the Court, in deciding whether to indicate provisional measures, is
concerned not so much with the past as with the present and with the future;
whereas, accordingly even if its jurisdiction suffers from the temporal
limitation asserted by Yugoslavia which it does not now have to decide
this is not necessarily a bar to the exercise of its powers under Article 41
of the Statute" (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, para. 25).
As far as the nature of the proceedings for the indication of provisional
measures is concerned, they are surely not designed for the purpose of the
final and definitive establishment of the jurisdiction of the Court. That is
why in the practice of the Court "prima facie jurisdiction" is almost
uniformly referred to when the indication of provisional measures is
involved. Although the explicit definition of "prima facie jurisdiction" is
of course hard to find in the Court's jurisprudence, its constitutive
elements are relatively easy to determine. The determinant "prima facie"
itself implies that what is involved is not a definitely established
jurisdiction, but a jurisdiction deriving or supposed to be normally
deriving from a relevant legal fact which is defined in concreto as the
"title of jurisdiction". Is reference to the "title of jurisdiction"
sufficient per se for prima facie jurisdiction to be constituted? It is
obvious that the answer to this question must be in the negative.
But, it could be said that the "title of jurisdiction" is sufficient per se
to constitute prima facie jurisdiction except in case "the absence of
jurisdiction on the merits is manifest" (Fisheries Jurisdiction ( United
Kingdom v. Iceland), Interim Protection, Order of 17 August 1972, I.C.J.
Reports 1972, p. 15, para. 15; Fisheries Jurisdiction (Federal Republic of
Ger-[p 640]many v. Iceland), Interim Protection, Order of 17 August 1972,
I.C.J. Reports 1972, p. 33, para. 16).
In other words, in question is the case when absence of jurisdiction is
obvious and manifest stricto sensu, i.e., when States try to use the Court
in situations when there is no ground for jurisdiction whatsoever.
Well-established jurisprudence of the Court clearly shows that the absence
of temporal element of jurisdiction of the Court, even if manifest, does
not exclude jurisdiction of the Court if the temporal defect can be easily
remedied.
In its Judgment on preliminary objections raised by Yugoslavia in the case
concerning Application of the Convention on the Prevention and Punishment of
the Crime of Genocide of 11 July 1996, the Court stated inter alia:
"It is the case that the jurisdiction of the Court must normally be assessed
on the date of the filing of the act instituting proceedings. However, the
Court, like its predecessor, the Permanent Court of International Justice,
has always had recourse to the principle accord-ing to which it should not
penalize a defect in a procedural act which the applicant could easily
remedy. Hence, in the case concerning the Mavrommatis Palestine Concessions,
the Permanent Court said:
'Even if the grounds on which the institution of proceedings was based were
defective for the reason stated, this would not be an adequate reason for
the dismissal of the applicant's suit. The Court, whose jurisdiction is
international, is not bound to attach to matters of form the same degree of
importance which they might possess in municipal law. Even, therefore, if
the application were premature because the Treaty of Lausanne had not yet
been ratified, this circumstance would now be covered by the subsequent
deposit of the necessary ratifications.' (P. C.I. J., Series A, No. 2, p.
34.)
The same principle lies at the root of the following dictum of the
Permanent Court of International Justice in the case concerning Certain
German Interests in Polish Upper Silesia:
'Even if, under Article 23, the existence of a definite dispute were
necessary, this condition could at any time be fulfilled by means of
unilateral action on the part of the applicant Party. And the Court cannot
allow itself to be hampered by a mere defect of form, the removal of which
depends solely on the Party concerned.' (P.C.I.J, Series A, No. 6, p. 14.)
The present Court applied this principle in the case concerning the Northern
Cameroons (I. C.J. Reports 1963, p. 28), as well as Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America) when it stated: 'It would make no sense to require Nicaragua now
to institute fresh proceedings based [p 641] on the Treaty, which it would
be fully entitled to do.' (I. C.J. Reports 1984, pp. 428-429, para. 83.)
In the present case, even if it were established that the Parties, each of
which was bound by the Convention when the Application was filed, had only
been bound as between themselves with effect from 14 December 1995, the
Court could not set aside its jurisdic-tion on this basis, inasmuch as
Bosnia and Herzegovina might at any time file a new application, identical
to the present one, which would be unassailable in this respect."
(Application of the Convention on the Prevention and Punishment of the Crime
of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996 (II),
pp. 613-614, para. 26.)
The definitive and final establishment of the temporal element of
jurisdiction in the proceedings for the indication of provisional measures
is resisted, in addition to the nature of the proceedings as such, also by
the nature of ratione temporis jurisdiction of the Court. Namely,
"jurisdiction ratione temporis does not exist as an independent concept of
the law governing international adjudication, and more specifically of the
law governing the jurisdiction and competence of the Court. It is a
dependent concept, giving rise to a particular problem of determining the
nature and effect of that dependency on the per-sonal or the material
jurisdiction of the Court, as the case may be." (Shabtai Rosenne, The Law
and Practice of the International Court, 1920-1996, Vol. II, p. 583.)
14.2. Is it possible to argue that in the case in hand the reserve ratione
temporis in the Yugoslav declaration of acceptance of compulsory
jurisdiction of the Court is of such a nature that one could say that the
"absence of jurisdiction on the merits" is manifest?
There is no doubt that there exists a fundamental difference between the
Parties concerning the qualification of the nature of the armed attack on
the Federal Republic of Yugoslavia. The Respondent finds that two months of
bombing and other acts aimed against the Federal Republic of Yugoslavia
represent "a continued situation", an inextricable organic unity of a
variety of acts, while Yugoslavia maintains that in question is a
"breach of an international obligation . . . composed of a series of actions
or omissions in respect of separate cases, [that] occurs at the moment when
that action or omission of the series is accomplished which establishes the
existence of the composite act" (The Interna-tional Law Commission's Draft
Articles on State Responsibility, Part 1, Articles 1-35, Art. 25 (2), p.
272).
In this respect, the Application has invoked Article 25 (2) of the Draft [p
642] Articles on State Responsibility, prepared by the International Law
Commission, which stipulates, inter alia, that:
"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" (The International Law Commission's Draft Articles
on State Responsibility, Part 1, Articles 1-35, Art. 25 (2), p. 272).
This fundamental difference in the outlook on the armed attack on the
Federal Republic of Yugoslavia, represents, legally speaking, "a
disagreement over a point of law ... a conflict of legal views or of
interests between two persons" as defined in the Mavrommatis Palestine
Concessions (Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11).
Consequently, in question is a dispute between the Parties, which is not,
per se, a matter of jurisdiction, in particular not a matter of prima facie
jurisdiction; however, the Court's decision on this dispute may have an
effect on its jurisdiction ratione temporis.
The Court, faced by a dispute of this kind, theoretically had two options at
its disposal:
(a) to resolve it lege artis. This possibility is, from the aspect of the
Court's well-settled jurisprudence, only theoretical. Because we are dealing
here with a matter which, as a rule, is not solved in the proceedings for
the indication of provisional measures but in the procedure dealing with
the merits of the case;
(b) to establish, as it has become customary for the Court, that there is a
disagreement over a point of law, but that it
"cannot make definitive findings either of fact or of law on the issues
relating to the merits, and the right of the Parties to contest such issues
at the stage of the merits must remain unaffected by the Court's decision"
(Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.
United States of America), Provisional Measures, Order of 14 April 1992,
I.C.J. Reports 1992, p. 126, para. 41).
However, the Court has chosen a third, and, in my opinion, the least
acceptable solution. The Court did not enter into the resolution of the case
in hand; moreover, it has not even determined its basic features, nor
established that the dispute, by its nature, is not appropriate for being
dealt with in the proceedings the main purpose of which is to preserve the
rights of either Party, rights to be confronted at the merits stage of the
case. But, it has simply accepted one of the conflicting legal views and
thus made an interesting turnaround by entering the sphere of interim
judgment, without a formal judgment. [p 643]
IV. Additional Ground of Jurisdiction
15. During the second day of the oral proceedings before the Court, the
Applicant presented, vis-ΰ-vis the Netherlands as the respondent State, an
additional, new basis of jurisdiction; namely, Article 4 of the Treaty of
Judicial Settlement, Arbitration and Conciliation between the Netherlands
and the Kingdom of Yugoslavia, 1931, which reads:
"If, in the case of one of the disputes referred to in Article 2, the two
Parties have not had recourse to the Permanent Conciliation Commission, or
if that Commission has not succeeded in bringing about a settlement between
them, the dispute shall be submitted jointly under a special agreement,
either to the Permanent Court of International Justice, which shall deal
with the dispute subject to the conditions and in accordance with the
procedure laid down in its Statute, or to an arbitral tribunal which shall
deal with it subject to the conditions and in accordance with the procedure
laid down by the Hague Convention of October 18, 1907, for the Pacific
Settlement of International Disputes.
If the Parties fail to agree as to the choice of a Court, the terms of the
special agreement, or in the case of arbitral procedure, the appointment of
arbitrators, either Party shall be at liberty, after giving one month's
notice, to bring the dispute, by an application, direct before the Permanent
Court of International Justice."
In his presentation counsel of the Netherlands explained, systematically
and in detail, both formal and substantive, reasons against establishing
jurisdiction of the Court on the basis of Article 4 of the said Treaty.
The formal reason is associated with the time of the Applicant's invoking
of the above Treaty as a basis of jurisdiction. The Netherlands, as the
respondent State, finds that it has been submitted at a late stage in the
proceedings "shortly before the close of the hearings" (CR 99/26, p. 3), and
that, therefore, it is inadmissible.
The Court finds:
"Whereas the invocation by a party of a new basis of jurisdiction in the
second round of oral argument on a request for the indication of provisional
measures has never before occurred in the Court's practice; whereas such
action at this late stage, when it is not accepted by the other party,
seriously jeopardizes the principle of procedural fairness and the sound
administration of justice; and whereas in consequence the Court cannot, for
the purpose of deciding whether it may or may not indicate provisional
measures in the present case, take into consideration the new title of
jurisdiction which Yugoslavia sought to invoke on 12 May 1999." (Order,
para. 44.) [p 644]
Such a position of the Court is far from being tenable.
The position of the Court with respect to additional grounds seems well
settled in the Court's jurisprudence. In its Judgment of 26 November 1984 in
the Nicaragua case, the Court stated that:
"The Court considers that the fact that the 1956 Treaty was not invoked in
the Application as a title of jurisdiction does not in itself constitute a
bar to reliance being placed upon it in the Memorial. Since the Court must
always be satisfied that it has jurisdiction before proceeding to examine
the merits of a case, it is certainly desirable that 'the legal grounds upon
which the jurisdiction of the Court is said to be based' should be indicated
at an early stage in the proceedings, and Article 38 of the Rules of Court
therefore provides for these to be specified 'as far as possible' in the
application. An additional ground of jurisdiction may however be brought to
the Court's attention later, and the Court may take it into account
provided the Applicant makes it clear that it intends to proceed upon that
basis (Certain Norwegian Loans, I.C.J. Reports 1957, p. 25), and provided
also that the result is not to transform the dispute brought before the
Court by the application into another dispute which is different in
character (Sociιtι Commerciale de Belgique, P.C.I.J., Series A/B, No. 78, p.
173)." (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), I.C.J. Reports 1984, pp. 426-427,
para. 80.)
The question of admissibility of additional grounds was considered by the
Court also in the second 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.
By a second request filed in the Registry on 27 July 1993, Bosnia and
Herzegovina requested that the Court indicate additional provisional
measures. By letters dated 6 August, 10 August and 13 August 1993, the Agent
of Bosnia and Herzegovina submitted that the Court's jurisdiction was
grounded not only on the jurisdictional bases previously put forward but
also on additional grounds.
In its Order of 13 September 1993, in paragraph 28, the Court concluded
that:
"for the purposes of a request for indication of provisional measures, it
should therefore not exclude a priori such additional bases of jurisdiction
from consideration, but that it should consider whether the texts relied on
may, in all the circumstances, including the considerations stated in the
decision quoted above, afford a basis on which the jurisdiction of the Court
to entertain the Application might prima facie be established" (Application
of the Convention on the Prevention and Punishment of the Crime of Genocide,
Provi-[p 645]sional Measures, Order of 13 September 1993, I.C.J. Reports
1993, p. 339).
16. Consequently, it follows that, from the standpoint of the Court's
jurisprudence, three conditions are essential for additional grounds to
qualify as admissible:
(a) that the Applicant makes it clear that it intends to proceed upon that
basis;
(b) that the result of invoking additional grounds is not to transform the
dispute brought before the Court by the application into another dispute
which is different in character; and
(c) that additional grounds afford a basis on which the jurisdiction of the
Court to entertain the application might be prima facie established.
It is difficult to deny that all the three relevant conditions have
concurred in the case in hand for additional grounds to be admissible.
The very fact that the Applicant invoked Article 4 of the Treaty of 1931,
with reliance on the reserve regarding the right to amend the Application,
offers per se sufficient ground for the conclusion that it intends to
proceed upon that basis. Furthermore, in the request the Applicant clearly
stated that in question is a Supplement to the Application against the
Netherlands "for violation of the obligation not to use force", which
implies that additional ground does not transform the dispute brought before
the Court into another dispute which is different in character. (As an
example of additional grounds objectively leading to the transformation of
the dispute before the Court into another dispute which is different in
character, one may mention grounds presented by Bosnia and Herzegovina in a
second request for the indication of provisional measures filed with the
Registry of the Court on 27 July 1993: namely, that it is difficult to prove
that the 1919 Treaty concluded between the Allied and Associated Powers and
the Kingdom of the Serbs, Croats and Slovenes on the Protection of
Minorities or the
"Customary and Conventional International Laws of War and International
Humanitarian Law, including but not limited to the four Geneva Conventions
of 1949, their First Additional Protocol of 1977, the Hague Regulations on
Land Warfare of 1907" (Applica-tion of the Convention on the Prevention and
Punishment of the Crime of Genocide, Provisional Measures, Order of 13
September 1993, I.C.J. Reports 1993, p. 341, para. 33)
are directly linked with the object of the dispute in the case concerning
Application of the Convention on the Prevention and Punishment of the Crime
of Genocide and do not transform the dispute brought before the Court into
another one.) And finally it seems to me to be indisputable that the 1931
Treaty was [p 646] concluded and designed for the purpose of dealing with
disputes which may arise between the Contracting Parties through
"conciliation, judicial settlement and arbitration" per definitionem affords
a basis on which the jurisdiction of the Court to entertain the Application
may be established. Article 4 (1) stipulated that "the dispute shall be
submitted jointly under a special agreement" and, as that obviously is not
the case, only para-graph 2 of the said Article may be the appropriate basis
of jurisdiction of the Court pro futuro.
Accordingly, it remains to be established whether the Applicant invoked
additional grounds in extremis at a late stage of the proceedings.
Article 38, paragraph 2, of the Rules of Court provides that "[t]he
Application shall specify as far as possible the legal grounds upon which
the jurisdiction of the Court is said to be based" (emphasis added). The
phrase "as far as possible" clearly indicates that the Application need not
necessarily specify all the legal grounds upon which the jurisdiction of the
Court is "said to be based". The jurisprudence of the Court, as may be seen
from the cases referred to above, has been established in accordance with
this, I would say, the only possible interpretation of Article 38,
paragraph 2, of the Rules of Court.
Neither the Statute nor the Rules of Court contain provisions which,
directly or indirectly, define what is an "early" or a "late" stage of the
proceedings.
It is certain that the standpoints of litigating parties cannot per se be
taken as a reliable and convincing criterion. Their perception of "the early
or timely" and "late" is, quite understandably, burdened with subjectivism.
Hence, it seems necessary to resort to some, at least basically, objective
criterion for the assessment of what is a "late stage of the proceedings".
From the aspect of the Rules of Court it may be contended that the "late or
latest" stage of the proceedings coincides with the formal closure, at least
when the proceedings for the indication of provisional measures are
involved. Such an interpretation seems suggested by Article 74, para-graph
3, of the Rules of Court which, inter alia, provides that "[t]he Court shall
receive and take into account any observations that may be presented to it
before the closure of the oral proceedings" (emphasis added.) The broad,
general formulation "any observations" implies that "observations" may be
presented either orally or in written form.
Such a broadly conceived right of the parties in the proceedings for the
indication of provisional measures, in particular when grounds for
jurisdiction are in question, must be brought into correspondence with the
essential need for the Court to find, within a short time-limit
commensurate with the urgency of the proceedings, a satisfactory solution
both with respect to prima facie jurisdiction and with respect to other
relevant facts. [p 647]
The imperative wording of the relevant provision does not allow departure.
However, it is up to the Court to find a practical solution in each
particular case, without derogating from the substance of this provision, a
solution in which, in keeping with the fundamental equality of the parties,
would make it possible for the other party to state its position with
respect to the relevant matter in this particular case with respect to
additional grounds of jurisdiction.
In the case in hand the Court proceeded in this way, affording an
opportunity for the party within the appropriate time-limit which
corresponded to the time-limit in which the parties in the second round of
hearing had to respond to the allegations of the parties submitted in the
first round.
The argument used by the Court, inter alia, to vindicate the qualification
that additional ground of jurisdiction, as contained in Article 4 of the
Treaty of 1930, is inadmissible is nothing more than just a formal
justification of convenience.
If one follows the logic that an action in a litigation is inadmissible just
because the Court is confronted with it for the first time, then one might
well presume that the Court, after being constituted in 1946, would have
found itself commencing its function in an exceptionally difficult
situation without previously having had the opportunity to familiarize
itself with the course of the litigation and with the actions of the
parties.
17. In addition to the formal question, questions of a substantive nature
arise. The basic question of a substantive nature is whether the Federal
Republic of Yugoslavia is a Contracting Party to the 1931 Treaty. The matter
this time boils down to the qualification of the territorial changes which
have occurred in the former Socialist Federal Republic of Yugoslavia and
their consequences for the status of the Federal Republic of Yugoslavia.
In concreto, the matter may be viewed on several levels:
(a) if the Court has found that the Federal Republic of Yugoslavia is a
Member of the United Nations irrespective of the basis and modalities of
its position whether from the standpoint of the proceedings before the
Court or in general then ipso facto it may be inferred that the Federal
Republic of Yugoslavia is a Contracting Party to the Treaty of 1931, with
reliance on the rule embodied in Article 35 of the Convention on the
Succession of States with respect to international treaties which
establishes that:
"When, after separation of any part of the territory of a State, the
predecessor State continues to exist, any treaty which at the date of
succession of States was in force in respect of the predecessor State
continues in force in respect of its remaining territory unless:
(a) the States concerned otherwise agree;
(b) it is established that the treaty related only to the territory which
has separated from the predecessor State; or [p 648]
(c) it appears from the treaty or is otherwise established that the
application of the treaty in respect of the predecessor State would be
incompatible with the object and purpose of the treaty or would radically
change the conditions for its operation." (Vienna Convention on Succession
of States in Respect of Treaties, Art. 35, United Nations Conference on
Succession of States in Respect of Treaties, Official Records, Vol. III, p.
194.)
(b) if the Court has found that the Federal Republic of Yugoslavia cannot
automatically continue the membership of the Socialist Federal Republic of
Yugoslavia in the United Nations on the basis of General Assembly
resolution 47/1, such a position of the Court need not necessarily lead to a
conclusion that the Federal Republic of Yugoslavia is not a Contracting
Party to the Treaty of 1931. The notions of "continuity of membership in the
United Nations" and "legal identity and continuity" are not identical.
The automatic continuation of membership in the United Nations is,
undoubtedly, one of the forms in which the legal continuity of a State
affected by territorial changes is expressed. However, it does not
automatically follow from the above that the continuity of membership in
the United Nations covers fully the notion of legal continuity of a State;
namely, although it may be a very important component of legal continuity
of a State, especially for political reasons, the membership in the United
Nations taken per se can neither constitute that continuity nor nullify it.
A State's membership in international organizations gives constitutional
effect to the notion of continuity but only in company with other relevant
elements to which it is organically linked. This refers in the first place
to diplomatic relations and the status of a party to treaties in force.
By its conduct after the secession of the former Yugoslav federal units the
Netherlands recognized, at least de facto, the legal identity and
continuity of the Federal Republic of Yugoslavia. Namely, the Netherlands
ranks among the group of countries which have in continuo and without any
interruption in time at all continued to maintain diplomatic relations with
the Federal Republic of Yugoslavia, relations which it had previously
established and maintained in various periods of time with the former
Socialist Federal Republic of Yugoslavia. Even when it recognized the
seceded Yugoslav federal units as sovereign and independent States, and
established diplomatic relations with them, the Netherlands did not, in the
form of an instrument appropriate to inter-State relations, express an
official, legally relevant, position to the effect that it considers the
Federal Republic of Yugoslavia a new State and that it is bringing
diplomatic relations in line in accordance with that fact. [p 649]
The Netherlands makes no bones of the fact that it was in negotiations with
the Federal Republic of Yugoslavia; that preliminary agreement was reached
for a certain number of bilateral treaties concluded with the Socialist
Federal Republic of Yugoslavia to continue in force, but that the Treaty of
1931 was not in that group of treaties, and that the agreement arrived at
was not formally confirmed.
Leaving aside the question whether the continuation in force of the Treaty
of 1931 was addressed or not, a number of facts are indisputable:
(a) that, on the basis of the agreement reached, but not confirmed formally,
the Netherlands agreed that a certain number of bilateral treaties concluded
with the Socialist Federal Republic of Yugoslavia continue in force also
with the Federal Republic of Yugoslavia. Thus, the Netherlands,
volens-nolens, tacitly recognized the legal identity of the Federal Republic
of Yugoslavia and the continuity between the Socialist Federal Republic of
Yugoslavia and the Federal Republic of Yugoslavia;
(b) the agreement reached on the continuation in effect of a certain number
of bilateral treaties, although without formal confirmation, is not without
legal effects. It could be said to fall within the category of oral,
informal treaties which the Convention on the Law of Treaties recognizes as
being of binding character. In the commentary on Article 2, "Use of Terms",
of the Convention it is stated, inter alia:
"[t]he restriction of the use of the term 'treaty' in the draft articles to
international agreements expressed in writing is not intended to deny the
legal force of oral agreements under international law" (Yearbook of the
International Law Commission, 1996, Vol. II, p. 189).
Finally, it is hard to presume that, in the preparations for negotiations on
the continuation in force of bilateral treaties concluded with the Socialist
Federal Republic of Yugoslavia, a highly organized State such as the
Netherlands did not look into the state of its treaty relations with the
Federal Republic of Yugoslavia. In particular, the fact should be borne in
mind that the federal Yugoslavia that emerged from the Second World War was
also formally recognized by the international community as continuator of
the Kingdom of Yugoslavia, and such a recognition implied, inter alia, that
federal Yugoslavia is bound by all rights and obligations under the treaties
concluded by the Kingdom of Yugoslavia before the Second World War.
The fact that the Netherlands is not a Contracting Party to the Convention
on Succession is not relevant in terms of the rule embodied in Article 35 of
the Convention.
The rule is associated with the existing, customary law and is binding on
States over and above, and independently of, the Convention. The [p 650]
Convention on Succession is a sui generis mixture of elements of
codification and progressive development. The rule contained in Article 35
of the Convention, as an expression of the codification of the existing,
customary law, has only a declarative meaning.
Hence there follows the inevitable conclusion that the Netherlands knew or
was obliged to know that the Treaty of 1931 is in force and that,
consequently, it is binding on it. It is hard to believe that a State, as a
professionally and intellectually highly organized international legal
subject, is not aware of its rights and obligations.
Generally speaking, two assumptions are possible:
(a) that the Netherlands was not aware that the Treaty of 1931 is in force.
If this assumption is correct, the Netherlands was mistaken with respect to
its rights (error in jus). According to the general legal principle
ignorantia legis nocet also embodied in the Law of Treaties (1969), such a
mistake is irrelevant;
(b) the Netherlands was aware of the fact that the Treaty of 1931 was in
force but, for some reasons, it did not disclose it in the proceedings
before the Court. For practical purposes of the proceedings before the
Court, the difference between assumptions under (a) and (b) is here
"immaterial".
The position of the Court expressed in paragraph 44 of the Order is far from
being acceptable.
By the clear and unambiguous indication in that regard of the wording of
Article 74, paragraph 3, of the Rules of Court, the Court was under the
obligation to receive and take into account observations of the Federal
Republic of Yugoslavia which relates to the Treaty of 1931 as addi-tional
grounds of jurisdiction. Article 4 of the Treaty is a prima facie basis of
the jurisdiction of the Court in the proceedings for the indication of
provisional measures requested by the Applicant. The Court, pursuing the
logic which it implemented in the Genocide case, need not have entered into
the matter of succession of States. In the second proceedings for the
indication of provisional measures in the Genocide case, in connection with
the contentions of Bosnia and Herzegovina as to the 1919 Treaty as a basis
of jurisdiction, the Court concluded:
"the Court will not have to pronounce on the question whether Articles 11
and 16 of the 1919 Treaty are still in force, nor on their interpretation;
whereas the 1919 Treaty on the face of its text imposes an obligation on the
Kingdom of the Serbs, Croats and Slovenes to protect minorities within its
own territory; whereas accordingly, if, and in so far as, Yugoslavia is now
bound by the 1919 Treaty as successor of that Kingdom, its obligations under
it [p 651] would appear to be limited to the present territory of
Yugoslavia" (Application of the Convention on the Prevention and Punishment
of the Crime of Genocide, Provisional Measures, Order of 13 September 1993,
I.C.J. Reports 1993, p. 340, para. 31).
In addition to the reasons associated with the consistency of the Court's
jurisprudence in essentially identical situations, analogy in the present
case derives also from the fact that the Treaty of 1931 may be considered as
a treaty implementation of the general cogent obligation to settle disputes
between the Contracting Parties in a peaceful way.
Even if the document in which the Applicant pointed to the Treaty of 1931 as
additional grounds of jurisdiction were declared "inadmissible", the Court
could not have ignored the fact that the Treaty exists. In that case, the
Court could have differentiated between the document as such and the Treaty
of 1931, per se, as a basis of jurisdiction.
V. Other Relevant Issues
18. In paragraph 16 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 [p 652]. . . 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
Federal 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.
19. The formulation of paragraph 50 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.
20. 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 [p
653]
"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:
(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.
21. A certain confusion is also created by the term "humanitarian law"
referred to in paragraphs 19 and 48 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), pp. 774-775, para. 108).
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 19 and 48. 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 [p 654] 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
bello. 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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