2 June 1999

 

General List No. 106

 
     

international Court of Justice

     
 

Legality of Use of Force

 
     

Serbia and Montenegro

 

v. 

Canada

     
     
 

Order

 
     
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BEFORE: Vice-President: Weeramantry;
President: Schwebel;
Judges: Oda, Bedjaoui, Guillaume,Ranjeva, Herczegh,Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans;
Judges Ad Hoc: Lalonde, Kreca
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1999.06.02_use_of_force9.htm
   
Citation: Legality of Use of Force (Serbia and Montenegro v. Canada), 1999 I.C.J. 259 (Order of June 2 )
 
     
 
 
 
 
 

[p259]
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 Canada "for violation of the obligation not to use force", [p260]

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 Canada by which it has violated its international obligation banning the use of force against another State, the obligation not to intervene in the interna1 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 Canada, 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 Canada is taking part in the training, arming, financing, equipping and supplying the so-called 'Kosovo Liberation Amy'" ; [p261]

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

"The above acts of the Government of Canada 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 interna1 affairs of another State. In addition, the provisions of the Geneva Convention of 1949 and of the Additional Protocol No. 1 of 1977 on the protection of civilians and civilian objects in time of war have been violated. The obligation to protect the environment has also been breached. The destruction of bridges on the Danube is in contravention of the provisions of Article 1 of the 1948 Convention on free navigation on the Danube. The provisions of the International Covenant on Civil and Political Rights and of the International Covenant on Economic, Social and Cultural Rights of 1966 have also been breached. Furthermore, the obligation contained in the Convention on the Prevention and Punishment of the Crime of Genocide not to impose deliberately on a national group conditions of life calculated to bring about the physical destruction of the group has been breached. Furthermore, the activities in which Canada 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, Canada 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', Canada 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, Canada has acted against the Federal Republic of Yugoslavia in breach of its obligation to spare the civilian population, civilians and civilian objects;
by taking part in destroying or damaging monasteries, monuments of culture, Canada 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 heritagi of people; by taking part in the use of cluster bombs, Canada has acted against the Federal Republic of Yugoslavia in breach of its obliation 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, Canada 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, Canada 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, Canada 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, Canada has acted against the Federal Republic [p262] 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, Canada 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;

Canada is responsible for the violation of the above international obligations;

Canada is obliged to stop immediately the violation of the above obligations vis-à-vis the Federal Republic of Yugoslavia;

Canada is obliged to provide compensation 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, [p263] 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";
and whereas, while reserving the right to amend and supplement its request, Yugoslavia requests the Court to indicate the following measure:

"Canada 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"; [p264]

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, 1 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 1 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 Canadian 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 Registrar 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 Yugoslav nationality, the Yugoslav Government has availed itself of the provisions of Article 31 of the Statute of the Court to choose Mr. Milenko KreCa to sit as judge ad hoc in the case; and whereas no objection to that choice was raised within the time-limit fixed for the purpose pursuant to Article 35, paragraph 3, of the Rules of Court; whereas, since the Court includes upon the bench no judge of Canadian nationality, the Canadian Government has availed itself of the provisions of [p265] Article 31 of the Statute of the Court to choose Mr. Marc Lalonde to sit as judge ad hoc in the case; whereas, within the time-limit fixed for the purpose pursuant to Article 35, paragraph 3, of the Rules of Court, Yugoslavia, referring to Article 31, paragraph 5, of the Statute, objected to that choice; and whereas the Court, after due deliberation, found that the nomination of a judge ud hoc by Canada was justified in the present phase of the case;

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

Mr. Rodoljub Etinski, Agent, Mr. Ian Brownlie, Mr. Paul J. 1. M. de Waart, Mr. Eric Suy, Mr. Miodrag MitiC, Mr. Olivier Corten;
On behaif of Canada: Mr. Philippe Kirsch, Agent;

14. Whereas, in this phase of the proceedings, the Parties presented the following submissions :
On hrhulf of Yugosluvia:
"[Tlhe Court [is asked] to indicate the following provisional measure :
Canada . . . 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 behaif of Canada:
"Canada respectfully requests the Court to reject the request for provisional measures made by the Federal Republic of Yugoslavia on 29 April 1999" ;

15. Whereas the Court is deeply concerned with the human tragedy, the loss of life, and the enormous suffering in Kosovo which form the background of the present dispute, and with the continuing loss of life and human suffering in al1 parts of Yugoslavia;

16. Whereas the Court is profoundly concerned with the use of force in Yugoslavia; whereas under the present circumstances such use raises very serious issues of international law ; [p266]

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

18. Whereas the Court deems it necessary to emphasize that al1 parties appearing before it must act in conformity with their obligations under the United Nations Charter and other rules of international law, including humanitarian law;

19. Whereas the Court, under its Statute, does not automatically have jurisdiction over legal disputes between States parties to that Statute or between other States to whom access to the Court has been granted; whereas the Court has repeatedly stated "that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction" (East Timor (Portugal v. Australia), Judgment, 1.C.J. Reports 1995, p. 101, para. 26); and whereas the Court can therefore exercise iurisdiction onlv between States parties to a dispute who not only have access to the court but also have accepted the jurisdiction of the Court, either in general form or for the individual dispute concerned ;

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

21. Whereas in its Application Yugoslavia claims, in the first place, to found the jurisdiction of the Court upon Article 36, paragraph 2, of the Statute; whereas each of the two Parties has made a declaration recognizing the compulsory jurisdiction of the Court pursuant to that provision; whereas Yugoslavia's declaration was deposited with the SecretaryGeneral of the United Nations on 26 April 1999, and that of Canada on 10 May 1994;

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

"1 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, [p267] the jurisdiction of the said Court in al1 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 Canada reads as follows

"On behalf of the Government of Canada.

(1) 1 give notice that 1 hereby terminate the acceptance by Canada of the compulsory jurisdiction of the International Court of Justice hitherto effective by virtue of the declaration made on 10 September 1985 in conformity with paragraph 2 of Article 36 of the Statute of the Court.

(2) 1 declare that the Government of Canada accepts as compulsory ipsofacto and without special convention, on condition of reciprocity, the jurisdiction of the International Court of Justice, in conformity with paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to terminate the acceptance, over al1 disputes arising after the present declaration with regard to situations or facts subsequent to this declaration, other than:

a. disputes in regard to which the parties have agreed or shall agree to have recourse to some other method of peaceful settlement;

b. disputes with the Government of any other country which is a member of the Commonwealth, al1 of which disputes shall be settled in such manner as the parties have agreed or shall agree;

c. disputes with regard to questions which by international law fa11 exclusively within the jurisdiction of Canada; and

d. disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area, as defined in the Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978, and the enforcement of such measures.

(3) The Government of Canada also reserves the right at any time, by means of a notification addressed to the Secretary-General of the United Nations, and with effect as from the moment of such [p268] notification, either to add to, amend or withdraw any of the foregoing reservations, or any that may hereafter be added.

It is requested that this notification be communicated to the Governments of al1 the States that have accepted the Optional Clause and to the Registrar of the International Court of Justice";

23. Whereas Canada contends that the jurisdiction of the Court cannot be founded on Article 36, paragraph 2, of the Statute of the Court in this case; whereas it argues that the Yugoslav declaration accepting the jurisdiction of the Court "is inapplicable by its own terms to disputes in existence before 25 April [1999]"; whereas it points out in this connection that "[tlhere is nothing in the description of the subject-matter of the dispute in the Application against Canada of 29 April that relates specifically to events subsequent to 25 April, or to any change in the character of the dispute subsequent to that date"; and whereas Canada accordingly concludes that "[tlhe dispute referred to in the Applicant's own pleading, therefore, is not one arising or that may arise after 25 April 1999";

24. Whereas, according to Yugoslavia, "[tlhe 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 al1 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, "[iln 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 "[tlhere 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;

25. 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 [p269] (cf. Right of Passage over Indian Territory, Merits, Judgment, 1.C. J. Reports 1960, p. 34); whereas, in order to assess 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;

26. Whereas Yugoslavia's Application is entitled "Application of the Federal Republic of Yugoslavia against Canada 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;

27. 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 (SlPV.3988 and 3989), that a "legal dispute" (East Timor (Portugal v. Australia), 1. 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;

28. 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 Canada;

29. Whereas, as the Court recalled in its Judgment of 4 December 1998 in the case concerning Fislleries 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: '[tlhis jurisdiction only exists within the limits within which it has been accepted' (Phosphutes in Morocco, Judgment, 1938, P. C. I. J.. Series AIB, No. 74, p. 23)" (I.C.J. Reports 1998, p. 453, para. 44);
and whereas, as the Permanent Court held in its Judgment of 14 June 1938 in the Phosphates in Morocco case (Preliminary Objections), "it is recognized that, as a consequence of a 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" [p270]

(Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series AIB, No. 74, p. 10); whereas, moreover, as the present Court noted in its Judgment of 1 1 June 1998 in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), "[als 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)" (1.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;

30. Whereas Canada also contends that the jurisdiction of the Court cannot be founded prima facie on Article 36, paragraph 2, of the Statute, since the Yugoslav declaration accepting the jurisdiction of the Court "is a transparent nullity"; whereas Canada, referring to United Nations
Security Council resolution 777 (1992) dated 19 September 1992 and to United Nations General Assembly resolution 4711 dated 22 September 1992, argues that "the Federal Republic of Yugoslavia is not a Member of the United Nations as a successor State", and that, not having duly acceded to the Organization, it is not in consequence a party to the Statute of the Court;

31. 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/471485), and to the latter's subsequent practice, contends for its part that General Assembly resolution 4711 "[neither] terminate[d] nor suspend[ed] 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" ;

32. Whereas, in view of its finding in paragraph 29 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;

33. 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 [p271] 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 Canada 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, Canada 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";

34. 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 part7', the Yugoslav national group as such;

35. Whereas for its part Canada contends that "the facts alleged in the Application bear no genuine relation to the Genocide Convention which is invoked as a basis for jurisdiction"; whereas Canada, referring to the fact that Yugoslavia had invoked Article II (c) of the Convention, observes inter alia that "the essence of genocide is intention and destruction the destruction of entire populations"; that the Applicant "did not even attempt to address the question of intent"; and that

"this cheapens the concept of genocide and deprives it of its integrity as an autonomous principle to equate it with the use of force or even [p272] aggression, or with collateral damage suffered by civilians, or with issues related to the proportionality of the use of force";
and whereas Canada accordingly concludes that "[tlhe Genocide Convention cannot, therefore, provide prima facie jurisdiction for the meas ures sought";

36. Whereas it is not disputed that both Yugoslavia and Canada 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, inciuding disputes "relating to the responsibility of a state for genocide or for any of the other acts enumer ated in article III" of the said Convention;

37. 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 would have jurisdiction rutione materiae to entertain pursuant to Article 1X (cf. Oil Platforms (Islamic Republic of Iran v. United States of Americu), Preliminury Objection, Judgment, 1. C. J. Reports 1996 (II), p. 810, para. 16);

38. 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";

39. 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 und Punishment of the Crime of Genocide, Provisionul 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, [p273] 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 Tl~reator Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 240, para. 26);

40. 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;

41. Whereas, it follows from what has been said above that the Court lacks prima facie jurisdiction to entertain Yugoslavia's Application; and whereas it cannot therefore indicate any provisional measure whatsoever in order to protect the rights invoked therein;

42. 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 Canada to submit arguments in respect of those questions;

43. 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;

44. 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;

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

46. 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 VI1 of the Charter; [p274]

47. For these reasons,
(1) By twelve 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; Judge ad hoc Lalonde
AGAINST:Vice-President Weeramantry, Acting President; Judges Shi, Vereshchetin; Judge ad hoc Kreéa;
(2) By fifteen 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;Judges ad hoc Lalonde, Kreéa ;
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 Canada, 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 KOOIJMANSappend separate opinions to the Order of the Court. [p275]

Vice-President WEERAMANTRY, President, Judges SHI and Acting VERESHCHETIN, append dissenting opinions to and Judge ad hoc KRECA the Order of the Court.

(Initialled) C.G.W.
(Initiulled) E.V.O. [p276]



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 al1 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 [p277] 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'être 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 circumstances in this dispute, the Court has decided, rightly in my view, not to remain silent. 1have 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 al1 the citizens of Yugoslavia.

(Signed) Abdul G. KOROMA. [p278]


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

[p279]  


I. INTRODUCTION

1.1 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, 1 voted against subparagraph (2) of the operative paragraph in the other eight cases in which the Court ordered that it "[rleserves the subsequent procedure for further decision" because 1 believe that those eight cases should also be removed from the General List of the Court.

2.1 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 1 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. 1 very much regret that this lack of time has given me no choice but to cover al1 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 OF REPUBLIC YUGOSLAVIA-A PRELIMINARY ISSUE

3.1 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 4711 stating that

"the Federal Republic of Yugoslavia (Serbia and Montenegro) can not [p280] 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 UnderSecretary-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 "peaceloving 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 1 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, 1 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 betiveen 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 Yugoslavia [p281] 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, VI1 and VI11 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, 1 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, Puragraph 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, Germany, 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 prorogutum does not apply in these five cases. [p282]

(3) Article 36, Paragraph 2, of the Statute of rhe 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, 1 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 [p283] of acceptance of the compulsory jurisdiction of the Court under the "optional clause" in the Statute.

(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. AIRESI 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 AustraliaINew 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 [p284] 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 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 termination 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 1 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. Al1 of these facts indicate that some States accept the compulsory [p285] 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 lacking, 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. 1 feel that, even if a 12-month or similar exclusion clause is not included in a State's declaration, al1 States should have the right to refuse to be drawn into a case that is obviously not brought bona fide.

15. Generally speaking, 1also 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 interests, 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). 1 accordingly consider, in the light my finding in paragraph 9 above as to Yugoslavia7s 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 [p286] grounds of jurisdiction of the Court, respectively, Article 4 of the 1930 Convention of Conciliation, Judicial Settlement and Arbitration 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 instruments 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, 1 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 COURTíS JURISDICTION UNDER THE GENOCIDE CONVENTION

(1) Preliminary Observations

19. The Court's Statute provides in Article 36, paragraph 1, that "[tlhe jurisdiction of the Court comprises . . . al1 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 [p287]

"[dlisputes between the Contracting Parties relating to the interpretation, 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 al1 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.

1 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.
1 note that Portugal became a party to the Genocide Convention with effect from 10 May 1999. 1 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.

1 have previously stated my interpretation of the meaning of the words "a dispute concerning the interpretation, application or fulfilment of the [p288] Convention" in the declaration I appended to the Court's Judgment in the Genocide case and 1 repeat it here:

"If any dispute were to be unjlaterally 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 Contracting Party to fu@l the obligations ihposed by that treaty -a failure for which it is responsible and (ii) the infringement of the rights bestowed upon the former State by thar 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, Judgmen t, 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. 1 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. 1). 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), [p289] the Convention contains a specific provision which allows '[alny Contracting Party [to] cal1 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. 1). 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 al1 the other Contracting Parties to the Convention -or, even, with the international community as a whole -but are nof 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 humanitv.

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 interpr~tationor upplication of the treaties in question.

The construction of Article IX of the Genocide Convention is very uncertain as it incorporates specific references to '[dlisputes . . .relat-ing to . . . fulfilment of the Convention' and to 'disputes relating to the responsibility of a State for genocide or [genocidal acts]' references [p290] 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
(Ofjcial 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 (Ofjcial Records of the General Assembly, Third Sessiorz, Sixth Corninittee, Annexes, p. 28: AlC61258) 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 (Ofjcial Records of the General Assembly, Third Session, Sixth Committee, SR.104, p. 447). The travaux prépuratoires 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 1 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 [p291] Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I. C.J. Reports 1996 (II), declaration of Judge Oda, pp. 626628.)

(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.
1 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, 1 would like to make some comments on the institution of provisional measures. [p292]

Provisional measures which ought to be taken to preserve the respective rights of either party may be indicated by the Court "ifit 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 al1 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 ut 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 Seu Continental Shellcase, 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 Awurd 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-lranian Oil Co. case and the [p293] Interhundel case, the Court, after granting provisional measures, ultimately 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 al1 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 al1 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 al1 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 1 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 [p294] United Nations has no role to play, will be resolved peacefully and in a way that satisfies al1 humanitarian aspects raised by this case.

(Signed) Shigeru ODA. [p295]



SEPARATE OPINION OF JUDGE HIGGINS

Limitations ratione temporis to declarations made under Article 36, paragraph 2, of the Statute

-"Disputes" -"Situations or Facts" -Reciprocity
-"Continuing" events or violations of laul -Prima facie jurisdiction for purposes of Article 41 of the Statute -Matters to be decided at provisional measures phase and matters to be reserved for more thorough later consideration -Two alternative consequences of an absence of prima fucie jurisdictian -Judicial authority and creativity dependent on jurisdiction.

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

"nevertheless, as a consequence of the condition of reciprocity stipulated in paragraph 2 of Article 36 of the Statute of the Court, it is recognized that this limitation holds good as between the Parties"

(Phosphates in Morocco, Judgment, 1938, P. C.I.J., Series AIB, No. 74, p. 22).

2. The declaration accepting the Court's compulsory jurisdiction made by the Federal Republic of Yugoslavia on 25 April 1999 States in part that :
"1 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 al1 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 Canada contains no such limitation, but it [p296] applies inter se to identify the scope ratione temporis of the Court's jurisdiction, for the reason set out in paragraph 1 of this opinion.

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

5. It is not the Court alone which has had to formulate jurisprudence on the concept of "continuing events": so has the European Court of Human Rights (see Yagci and Sargin v. Turkey, European Human Righrs Reports, 1995, p. 505); and so also has the Human Rights Committee (see Guye et al. v. France, No. 19611985, 3 April 1989, 35th Session); and Siminek v. The Czech Republic (No. 51611992,31 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 AIB, 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 [p297] (ibid., p. 26) nor did they "alter the situation which had already been established" (op. cit., p. 27). Nor could they be separated from those that had arisen before the crucial date.

7. That this particular jurisdictional problem, as any other, requires close attention to be given to the intention of the State issuing its declaration with limitations or reservations was stated by the Permanent Court in the Phosphates in Morocco case and recently affirmed by this Court in case of Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment (1. 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 Canada 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 Muvrommatis 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. [p298]

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 Règlement 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 ut Chorzbiv, 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 Greenlund, P. C.1. J., Series AIB, No. 48; Polish Agrarian Reform and German Minority, P. C.1.J., Series AIB, 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.1.J., Series AIB, 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-lranian 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, 1.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 [p299] 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 case7', 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, 1. 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 Seu 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 Alvard of 31 July 1989, Provisional Measures, Order of 2 March 1990, Reports 1990, pp. 68-69; Passage through the Great Belt (Finland Denmark), Provisional Measures, Order of 29 July 1991, 1.C.J. Reports [p300] 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. 1 1, and Order of 13 September 1993, ibid., pp. 16-17; Land and Maritime Boundary between Cameroon and Nigeria, Provisional Measures, Order of 15 March 1996, I. C. J. Reports 1996 (I), p. 12; Vienna Convention on Consular Relations (Paraguaj~ 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" (Inter-handel, Interim Protection, Order of 24 October 1957, I. C.J. Reports 1957, p. 11 1). 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 (Austruliu 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 [p301] International Justice into effect. The Court briefly recounted the legal problems associated with each of these provisions and stated that it:

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

The Court satisfied itself with saying that "the two declarations do nevertheless appear to afford a basis on which the jurisdiction of the Court might be founded" (ibid.).

21. In the present case the Court has also not made any final determination upon the question of the Federal Republic of Yugoslavia's status or otherwise as a Member of the United Nations and thus as a party to the Statute having the right to make a declaration under Article 36, paragraph 2, thereof. This is clearly a matter of the greatest complexity and importance and was, understandably, not the subject of comprehensive and systematic submissions in the recent oral hearings on provisional measures.

22. Of course, just as with the question of Nicaragua's ratification of its adherence to the Statute of the Permanent Court in the Military and Paramilitary Activities in and against Nicaragua case, it might be thought that the status of the Federal Republic of Yugoslavia was a necessary "préalable" 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 Canada and the interaction of the declarations of the Federal Republic of Yugoslavia and Canada. [p302]

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" (1.C.J. Reports 1996 (I), p. 21, para. 31). The Nigerian request for a reconsideration of the rule in the Rights of Passage case, as it bore on the interpretation of its own declaration, clearly fell into that category of complex and weighty objections to jurisdiction that had to be deferred for proper consideration until the preliminary objections phase. In that particular light (and because the Rights of Passage principle was well established in the Court's case law), the declarations would in the meantime be treated as establishing prima facie jurisdiction.

25. The same guiding principles apply to treaties said to provide a basis for the Court's jurisdiction. Thus the several complicated arguments that had been advanced in connection with Article IX of the Genocide Convention were not addressed in the provisional measures phase of the Genocide case of 1993; and it was against that background that the Court said that Article IX of the Convention appeared to "afford a basis on which the jurisdiction of the Court might be founded" (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of8 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. 11 8-1 19). 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 al1 to the Court on either the optional clause declaration of Canada or on its interplay with its own reservation. It did not tell the Court the implications of the reciprocity [p303] requirements in Canada's declaration, when read together with the clear terms of the Federal Republic's own reservation. Nor did Canada 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." (1.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 reciprocity 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 lirpzine.

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 [p304] 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. [p305]


SEPARATE OPINION OF JUDGE PARRA-ARANGUREN

1. Notwithstanding my agreement with the operative part of the Order, 1 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 fulfillment 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" (CR99125, 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' (Interpretution of Peuce Treaties iilith Bulgaria, Hungury utid Romuiziu. First Phu.rc, 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 (Eust Titnor (Portugal v. Australiu), I. C.J. Reports 1995, p. 100, para. 22)" (Application of' the Convention on [p306] 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" (CR99114, 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. [p307]



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. 1 also agree with the Court's finding that Article IX of the Genocide Convention does not constitute a basis of jurisdiction, even prima facie.

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

It is my opinion that in this respect the Court's reasoning is flawed from a Iogical point of view and is, therefore, inconsistent. 1 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. Canada went on to Say that, even if the declaration were invalid, it is inapplicable by the terms of its own temporal restriction.

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 [p305] abide by al1 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,
.............................
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;

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 4711, 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.

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 no1 participate in the work of the General Assembly ; [p309]

2.Tukes 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 4711 ".

In this letter the Legal Counsel said that

"General Assembly resolution 4711 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 agreement 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 4711 ."

10. On 5 May 1993 the General Assembly in resolution 471229 decided that the Federal Republic of Yugoslavia would not participate in the work of the Economic and Social Council either. No follow-up was ever given to these resolutions of the appropriate organs.

11. The Court was already confronted with the question whether or not the Federal Republic of Yugoslavia is a Member of the United Nations and as such a party to the Statute when it dealt with the request for the indication of provisional measures in the case concerning the Application of the Convention on the Prevention and Punishment of' the Crime of Genocide. [p310]

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 47/11 . . . 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. 40.)

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. 27 and 28.)

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:
"[als early as 1952, it held in the case concerning Anglo-Zranian 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). [p311]

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. 29.)

16. With al1 due respect, 1 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 1 must confess that the reference to the Cumeroon 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 Boundury 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-à-vis Nigeria.

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

"The Court may properly act under the terms of Article 41 provided that there is in existence an instrument such as a Declaration of Acceptance of the Optional Clause, emanating from the Parties to the dispute, which prima facie confers jurisdiction upon the Court and which incorporates no reservations obviously excluding its jurisdiction." (1. C. J. Reports 1957, pp. 1 181 19;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 [p312] 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 1 contend that the Court already at the present stage of the proceedings should have taken a definitive stand on what 1 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 determine whether the doubts, raised by the decisions of the competent United Nations bodies with regard to the continued membership of the Federal Republic of Yugoslavia, are serious enough to bar the Court from assuming that it has prima facie jurisdiction to entertain the case brought by Yugoslavia on the basis of its declaration of acceptance.

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

Security Council resolution 777 (1992) and General Assembly resolution 4711 seem to establish a causal link between the requirement of an [p313] 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 4711".

During the debate in the General Assembly on the draft resolution which was finally adopted as resolution 4711 (22 September 1992) the then Prime Minister of the Federal Republic of Yugoslavia said: "1 here-with formally request membership in the United Nations on behalf of the new Yugoslavia, whose Government 1 represent." The United Nations, however, never received any written document as a follow-up to that statement.

25. Against this background 1 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-Zranian Oil Co. case (interim measures of protection) Judges Winiarski and Badawi Pasha stressed the importance of the consent of the Parties in the context of Article 41 of the Statute. They went on to Say:

"the Court ought not to indicate interim measures of protection unless its competence, in the event of this being challenged, appears to the Court nevertheless reasonably probable7' (emphasis added). [p314]
And they concluded : "if there exist weighty arguments in favor 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" (1.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 Irzterhandel 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 precondition 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.

Finally, let me state that 1 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. [p315]



DISSENTING OPINION OF VICE-PRESIDENT WEERAMANTRY

My opinion in this case is the same, mutatis mutandis, as that which 1 have delivered in Yugoslavia v. Belgium.

1 do not need to repeat the text of that opinion here and it will suffice to observe that al1 that 1 have said there applies equally to this case, and should be considered to be incorporated mutatis mutandis in this opinion.

In the result 1 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. [p316]



DISSENTING OPINION OF JUDGE SHI

To my regret, 1 am unable to concur with the findings of the Court that, given the limitation rutione temporis contained in the declaration of acceptance of compulsory jurisdiction made by the Federal Republic of Yugoslavia (hereinafter Yugoslavia), the Court lacked prima facie jurisdiction 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 al1 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 interna1 affairs of another State, the obligation not to violate the sovereignty of another State, the obligation to protect the civilian [p317] 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 al1 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, SlPV.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 Yeurbook. 1978, Vol. 11, Part Two, p. 89.) [p318]

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, 1 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 al1 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 al1 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 [p319]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 1 kindly ask the Court to decide on the submitted Requestsproprio 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, 1.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 1 felt compelled to vote against the operative paragraph 47 (1) of the present Order.

(Signed) SHI Jiuyong. [p320]




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 international 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'être 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 cal1 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 considerations 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, unprecedented 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 largescale 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 al1 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 al1 parts of Yugoslavia.

For the foregoing reasons, 1 cannot concur with the inaction of the Court in this matter, although 1 concede that in some of the cases instituted [p321] 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, 1 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 Belgium and Yugoslavia on 25 March 1930 and between the Netherlands and Yugoslavia on 1 1 March 193 1.

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 al1 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 vatione ternporis 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. 1 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 al1 disputes 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. 1 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 [p322] not without ambiguity and, strictly speaking, it excludes from the Court's consideration disputes, situations and facts which occurred before the socalled "critical date", Le., 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 al1 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 und Application of the 1971 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 [p323] 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 1 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, 1.C.J. Reports 1998, p. 454, para. 49; see also Temple of Preuh Vihear, I. C.J. Reports 1961, p. 3 1).

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 l l 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. 1 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. [p324]

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 Norivegian 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 (Société Commerciale de Belgique, P. C.I.J., Series AIB, 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 . . . [p325] 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 . . .' (Military and Paramilitary Activities in und against Nicaraguu (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I. 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 al1 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 Preilention anri 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 ofa 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 counter-arguments. 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 refusa1 of the majority to take into consideration the new bases of jurisdiction clearly goes contrary to Article 38 of the Rules of Court and [p326] 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, al1 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. [p327]



Dissenting OPINION OF JUDGE KRECA

TABLE OF CONTENTS

 

 

 

Paragraph

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

Other Relevant Issues

 

[p328]


1. In the context of the conceptual difference between the international magistrature and the interna1 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. III, pp. 1 124-1 125).

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 Custo~ns Régime between Germany and Austria, the Permanent Court of International Justice established that:

"al1 governments which, in the proceedings before the Court, come to the same conclusion, must be held to be in the same interest for the purposes of the present case" (P.C.I.J., Series AIB, No. 41, p. 88).
The question of qualification of the "same interest", in the practice of the Court, has almost uniformly been based on a forma1 criterion, the criterion of "the same conclusion" to which the parties have come in the proceedings before the Court. [p329]

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 al1 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 al1 the respondent States are in concreto 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 Pructice of the International Court, 1920-1996, Vol. III, pp. 1124-1 125). 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 implji the right of the Applicant to choose us many judges ad hoc to sit on the Bench us is necessary to equalize the position of the Applicant and that of those respondent States which have judges of their nationality on the Bench und which share the same interest. In concreto, the inherent right tu equalization in the composition of the Bench, as un expression of fundamental rule of equality of parties, means that the Federal Republic of a should lzuve the right to choose jive 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 Benrk.

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 [p330] 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 Yugoslavia to such an outright departure from the letter and spirit of Article 31, paragraph 2, of the Statute.

The Court has, namely, the obligation to take account ex officio of the question of such a fundamental importance, which directly derives from, and vice versa, may directly and substantially affect, the equality of the parties. The Court is the guardian of legality for the parties to the case, for which presumptio juris et de jure alone is valid -to know the law (jura novit curia). As pointed out by Judges Bedjaoui, Guillaume and Ranjeva in their joint declaration in the Lockerbie case: "that is for the Court -not the parties -to take the necessary decision" (Questions of Interpretation and Application of the 1971 Montreal Convention arising jirom the AeriaE 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 js 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 [p331] 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 Régime between Germany and Austria, 193/, P. C. 1.J., Series AIB, No. 41, p. 88). This perfectly coherent jurisprudence of the Court applied to this particular case means that none of the respondent States ivere 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 farreaching 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 [p332] 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 abovementioned 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" (1. 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 "profound 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). [p333]

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." (1.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 rr group of individuals or the population as a consti-tutive 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, 1.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 which individuals were directly affected, the Court formed a high standard [p334] 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 ethnie 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/l4 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 Heruld Tribune, 16 May 1999, p. 6) and he continued:
"1 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 al1 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 [p335] 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 branchial 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 BattleJields 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 [p336] Yugoslavia has been presented by Umweltbundesamt (UBA). The essentials of the expertise are as follows' :

(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 interna1 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'. [FN1]

-------------------------------------------------------------------------------------------------------------------------------
[FN1] "Je langer der Krieg in Jugoslawien dauert, desto grosser wird die Gefahr von langfristigen Schadigungen der Umwelt. Diese drohen sich über die Landesgrenzen hinaus auszubreiten und konnen moglicherweise nicht mehr vollstandig beseitigt werden. Zu dieser Einschatzung kommt das Umweltbundesamt (UBA) in einem internen Papier, das sich mit den okologischen Auswirkungen des Krieges in Jugoslawien befasst und für die Vorbereitung des Treffens europaischer Umweltminister Anfang Mai in Weimar erstellt wurde. Katastrophen 'wie Seveso und Sandoz' sind nach Ansicht des Amtes 'ein durchaus wahrscheinliches Schadensszenario'.

Umweltgifte, die nach Zerstorungen von Industrieanlagen austreten, konnten sich weiter ausbreiten. 'Bei Sicherstellung sofortigen Handelns, das unter Kriegsbedingungen aber unmoglich ist. bleibt die Wirkung dieser Umweltschadigungen lokal begrenzt. Langere Verzogerungen führen zu einem übertritt der Schadstoffe in die Schutzgüter Boden, Grundund Oberflachenwasser, erhohen das Gefahrdungspotential für den Menschen und den Sanierungsaufwand betrachtlich.'

Diese Folgen müssen nicht auf Jugoslawien beschrankt sein. Schadstoffe aus Grossbranden konnten grenzüberschreitend verteilt werden. Weiter heisst es in dem Papier: 'Die Einleitung der Gefahrstoffe in Oberflachenwasser kann zur weitraumigen Schadigung der Okosysteme führen. Die Deposition von Gefahrstoffen in Boden kann je nach Eigenschaft der Stoffe und Boden zu langanhaltenden Versuchungen mit weitgehenden Nutzungseinschrankungen führen.'

Die Gefahr einer 'tiefgreifenden Zerstorung wesentlicher Bestandteile von Trinkwasserversorgungssystemen' sei für mittlere und grosse Stadte sowie Ballungsgebiete am grossten. Schon geringe Mengen von Substanzen der petrochemischen Industrie konnten 'grosse Grundwasseworrate unbrauchbar machen'.

Wie gefahrlich die freigesetzten Stoffe insgesamt sind, Iasst sich nach Ansicht der UBA-Experten nur schwer abschatzen, 'weil durch die Zerstorung ganzer Industriekomplexe Mischkontaminationen verschiedenster Schadstoffe gebildet werden', die noch wenig erforscht seien. Noch komplizierter sei die Beurteilung von Umwelt-schaden durch Brande und Explosionen. 'Hier treten bezogen auf Schadstoffinventar und Ausbreitung weit weniger kalkulierbare. zum Teil grossflachige Umweltschadigungen ein.'

Die Verbrennungsprodukte seien 'zum Teil hoch toxisch und kanzerogen'. Je nach klimatischen Bedingungen konne es 'zu einer grossflachigen Verteilung dieser Stoffe' kommen, 'die eine vollstandige Beseitigung nahezu unmoglich macht' ...
Die Wechselwirkungen der Produkte mit den eingesetzten Waffen dürften 'vollig unbekannt' sein." (TAZ, Die Tagcsieitung, Berlin, 20 May 1999.)
-------------------------------------------------------------------------------------------------------------------------------
[p337]

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 middlesized 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 overal1 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 problernatic, 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, Dic Tcrgrszritutzg, 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 [p338] substance of humanitarian standards which the Court has accepted in previous cases.

7. I must admit that 1 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 eliminate, an undeniable humanitarian catastrophe. 1 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 18 of the Order, says that it :

"deems it necessary to emphasize that al1 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 45 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 mode1 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 4711 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. [p339]

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 materiue 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 ,vas 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 4711, 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 4711, 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 ulia, 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 47lL. 1, Sir David Hannay (United Kingdom) said, inter dia,

"the fact that the Council is ready to consider the matter again [p340] within the next three months is significant. The tragic situation in the former Yugoslavia is a matter of the highest concern to al1 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 poiuer to encourage the parties, wirh the assistance of the Conference Co-Chairman, to settle their differences at the negotiating table, no? on the battlefield. That the Council has decided to consider the matter again before the end of the year ~ill, we trust, be helpful incentive to al1 the parties concerned, as an effective means of supporting the Co-Chairman of the Conference on Yugoslavia in their heavy task." (United Nations doc. Al47IPv.7, p. 161 ;emphasis added).

8.2. From a legal aspect, resolution 4711 is inconsistent and contradictory

The operative part of resolution 4711 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 4711 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 4711 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 4711 proceeds from a more moderate starting point. It apparently does not terminate the Federal Republic of Yugoslavia's membership in the Organization. [p341] 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, inrer aliu,

"the resolution does not terminate nor suspends Yugoslavia's mem-bership in the Organization. Consequently, the seat and the nameplate 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 participution 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 Re~ublic 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 inter-pretation 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.[p342]

8.4. The decision that the Federal Republic of Yugoslavia should apply for membership

This part of resolution 4711 is legally ambiguous and contradictory both in form and in substance.

From the forma1 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 continue 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 ivish 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 definitione, 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 4711 has not terminated Yugoslavia's membership in the Organization. Presumably, the authors of resolution 4711 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 memership 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? [p343]

Finally, due regard should be paid to the concluding paragraph of resolution 4711 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 4711 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 VI1 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 4711 "is abnormal to absurdity" (Rosalyn Higgins, "The United Nations and the Former Yugoslavia", International Affairh Vol. 69, p. 479).

8.5 The practice of the Organization rrlating 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 4711 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. Al461563, 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 [p344]

"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 al1 the time since the General Assembly passed resolution 4711, the Federal Republic of Yugoslavia has continued to pay its financial contributions to the Organization (see Annexes to CR 991 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 STIADMISER.BI533 of 8 December 1998. In the letter addressed to Vladislav JovanoviE, Chargé 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 fa11 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 mini-mum payment of $1 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 [p345] Crime of Genocide, Yugoslavia is included and 29 August 1950 is mentioned as the date of the acceptance of the obligation -the date on which SFRY ratified that Convention. Such a mode1 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:

"[tlhe 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 al1 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 4711 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." (STILEG.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. LLA41TRl220) 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 pracrice ,folloit,ed by the Secretary-General in this field" (p. 1, emphasis added) but not to constitute the practice itself. [p346]

9. As regards the membership of the Federal Republic of Yugoslavia of the United Nations, the Court takes the position that

"Whereas, in view of its finding in paragraph 29 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. 32).

The Court retained the position of an ingenious but, for the purposes of the present proceedings, unproductive elegantiae juris processualis. The Court's jurisdiction rutione personae is directly dependent on the answer to the question whether the Federal Republic of Yugoslavia can be considered to be a member State of the United Nations, both vis-à-vis the optional clause and vis-à-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 4711 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 4711 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 4711 rutione materiue. 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 con-trario there would, exempli causa, be no need for a General Assembly recommendation by resolution 471229 concerning the participation of the Federal Republic of Yugoslavia in the work of the Economic and Social Council. In other words, resolution 4711 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 4711 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 al1 issues of the Yearbook of the International Court of Justice since 1992.

1 am equally convinced that, both the content of the resolution, which represents contrudictio 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. [p347]

10. The position of the Court with respect to the Federal Republic of Yugoslavia membership of the United Nations can be said to have 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 und Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, 1. 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-à-vis the Charter and Statute" (M. C. R. Craven, "The Genocide Case, the Law of Treaties and State Succession", British Year Book of Internutional 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 Con~lention on the Prevention und Punishment of the Crime of Cenocide, Order of 13 Septenzber 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 never the less 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 uliu, 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 Partv to the Genocide Convention was condztio sine aua non for the Court to proclaim its jurisdiction in the case concerning Application of the Convention on the Prevention und Punishment of the Crime of Genocide.

The Court found that it has jurisdiction ratione personue, supporting this position, in my opinion, with a shaky, unconvincing explanation (see dissenting opinion of Judge Kreka, I.C.J. Rc.ports 1996, pp. 755-760, paras. 91-95). [p348] For the purposes of this case, of particular interest is the position of the Court "that it has not been contested that Yugoslavia was 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 (JI),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, 1 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 socalled 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, J. C. J. Reports 1996 (II), p. 61 2, para. 23).

Al1 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 [p349] jurisdiction [over the] case whilst at the same time avoiding some of more delicate, and indeed profound, concerns about the position" of Yugoslavia vis-à-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' (Legulity of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 240, para. 26)" (Order, para. 39).

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 und 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) [p350]

and

"Whereas the Court is not called upon, for the purpose of its decision on the present request for the indication of provisional meases, now to establish the existence of breaches of the Genocide Convention" (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,

(6) 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 dejinitione 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." [p351]

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 al1 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 tlze 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" (1.C.J. Rrports 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 [p352] 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 pénal, 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 régime 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 prévention du génocide 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 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 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: [p353]

"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 aliu, of the discussions at the Security Council meetings of 24 and 26 March 1999 (SlPV.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 Canada" (Order, paras. 27 and 28).

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), [p354]

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" (Fish-eries Jurisdiction (United Kingdom v. Iceland), Interim Protection, Order of 17 August 1972, 1. C. J. Reports 1972, p. 15, para. 15 ;and, Fisheries Jurisdiction (Federal Republic of Germany v. Icelaizd), Interim Protection, Order of 17 August 1972, I. C.J. Reports 19 72, 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 ut Lockerbie (Libyan Arab Jamahiriya v. United States of America), Provisional Measures, Order of 14 April 1992, 1. 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 [p355] 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 uliu:

"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 XII1 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. Mav-rommutis 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 tlze Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Meusures, 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". 1s 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 ofjurisdiction" 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 of1 7 August 1972, I. C.J. Reports [p356] 1972, p. 15, para. 15; Fisheries Jurisdiction (Federal Republic of Germuny 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 aliu:

"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 according 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 con-cerned.' (P.C.I.J., Series A, No. 6, p. 14.)

The present Court applied this principle in the case concerning the Northern Cameroons (1. C. J. Reports 1963, p. 28), as well as Military and Paramilitary Activities in and against Nicaragua (Nicaragua [p357] v. United States of America) when it stated: 'It would make no sense to require Nicaragua now to institute fresh proceedings based 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 jurisdiction 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 Cenocide, Preliminary Objections, Judgment, I. C. J. Reports 1996 (II), pp. 6 13-61 4, 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 personal 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 International Law Commission's Draft Articles on State Responsibility, Part 1, Articles 1-35, Art. 25 (2), p. 272). [p358]

In this respect, the Application has invoked Article 25 (2) of the Draft 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" (op. cit., 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;

(6) 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 lnterpretation and Application of the 1971 Montreal Convention urising from the Aerial Incident ut 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. [p359]

IV. OTHER RELEVANT ISSUES

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

"Whereas the Court is deeply concerned with the human tragedy, the loss of life, and the enormous suffering in Kosovo which form the background of the present dispute, and with the continuing loss of life and human suffering in al1 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 "al1 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 al1 parts of Yugoslavia". Having in mind the factual and legal state of affairs, the appropriate wording would be "in al1 other parts of Yugoslavia". Also, particular reference to "Kosovo" and "al1 parts of Yugoslavia", in the present circumstances, has not only no legal, but has no factual basis either. Yugoslavia, as a whole, is the object of attack. Human suffering and loss of life are, unfortunately, a fact, generally applicable to the country as a whole; so, the Court, even if it had at its disposal the accurate data on the number of victims and the scale of suffering of the people of Yugoslavia, it would still have no moral right to discriminate between them. Further, the qualification that "human tragedy and the enormous suffering in Kosovo . . . form the background of the present dispute" not only is political, by its nature, but has, or may have, an overtone of justification of the armed attack on Yugoslavia. Suffice it to recall the fact that the respondent State refers to its armed action as humanitarian intervention.

It is up to the Court to establish, at a later stage of the proceedings, the real legal state of affairs, namely, the relevant facts. At the present stage, the question of the underlying reasons for the armed attack on the 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 muteriue 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 [p360] in which the Court should not, and, in my view, must not, enter except in the regular court proceedings.

16. The formulation of paragraph 46 of the Order leaves the impression that the Court is elegantly attempting to drop the bal1 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 VI1 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.

17. The Court, by using the term "Kosovo" instead of the officia1 name of "Kosovo and Metohija", continued to follow the practice of the political organs of the United Nations, which, by the way, was also strictly followed by the respondent States.

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


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

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

(6) 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. [p361] 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 (Interna-tional Legal Muterials, 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.

18. A certain confusion is also created by the term "humanitarian law" referred to in paragraphs 18 and 44 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 Kreka in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objrctions, 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 18 and 44.

The singling out of humanitarian law from the rules of international law which the Parties are bound to respect may imply low-key and timid overtones of vindication or at least of diminishment of the legal implications of the armed attack on the Federal Republic of Yugoslavia.

Humanitarian law, in its legal, original meaning implies the rules of jus in bello. If, by stressing the need to respect the rules of humanitarian law, which 1 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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