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[p. 865]
The Court,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 29 April 1999 the Government of the Federal Republic of Yugoslavia
(with effect from 4 February 2003, "Serbia and Montenegro") filed in the
Registry of the Court an Application instituting proceedings against the
Italian Republic (hereinafter "Italy") in respect of a dispute concerning
acts allegedly committed by Italy
"by which it has violated its international obligation banning the use of
force against another State, the obligation not to intervene in the internal
affairs of another State, the obligation not to violate the sovereignty of
another State, the obligation to protect the civilian population and
civilian objects in wartime, the obligation to protect the environment, the
obligation relating to free navigation on international rivers, the
obligation regarding fundamental human rights and freedoms, the obligation
not to use prohibited weapons, the obligation not to deliberately inflict
conditions of life calculated to cause the physical destruction of a
national group".
The Application invoked as a basis of the Court's jurisdiction Article IX of
the Convention on the Prevention and Punishment of the Crime of Genocide,
adopted by the United Nations General Assembly on 9 December 1948 (hereinafter
"the Genocide Convention"), as well as Article 38, paragraph 5, of the Rules
of Court.
2. On 29 April 1999, immediately after filing its Application, the Federal
Republic of Yugoslavia also submitted a request for the indication of
provisional measures pursuant to Article 73 of the Rules of Court.
3. On the same day, the Federal Republic of Yugoslavia filed Applications
instituting proceedings and submitted requests for the indication of
provisional measures, in respect of other disputes arising out of the same
facts, against the [p 870] Kingdom of Belgium, Canada, the French Republic,
the Federal Republic of Germany, the Kingdom of the Netherlands, the
Portuguese Republic, the Kingdom of Spain, the United Kingdom of Great
Britain and Northern Ireland and the United States of America.
4. Pursuant to Article 38, paragraph 4, and Article 73, paragraph 2, of the
Rules of Court, on 29 April 1999 the Registrar transmitted signed copies of
the Application and the request to the Italian Government.
5. In accordance with Article 43 of the Rules of Court, the Registrar sent
the notification referred to in Article 63, paragraph 1, of the Statute of
the Court, to all States appearing on the list of parties to the Genocide
Convention held by the Secretary-General of the United Nations as
depositary; the Registrar also sent to the Secretary-General the
notifications respectively provided for in Article 34, paragraph 3, and
Article 40, paragraph 3, of the Statute of the
Court.
6. Since the Court included upon the Bench no judge of the nationality of
the Parties, each of them exercised its right under Article 31, paragraph 3,
of the Statute to choose a judge ad hoc to sit in the case: the Yugoslav
Government chose Mr. Milenko Kreca and the Italian Government chose Mr.
Giorgio Gaja. Referring to Article 31, paragraph 5, of the Statute, the
Yugoslav Government objected to the latter choice. The Court, after
deliberating, found that the nomination of a judge ad hoc by Italy was
justified in the provisional measures phase of the case.
7. By Order of 2 June 1999 the Court, after hearing the Parties, rejected
the request for the indication of provisional measures submitted in the
present case by the Federal Republic of Yugoslavia on 29 April 1999. By
Orders of the same date, the Court, after hearing the Parties, also rejected
the requests for the indication of provisional measures in the nine other
cases referred to in paragraph 3 and decided to remove from the List the
cases against Spain and the United States of America.
8. By Order of 30 June 1999 the Court fixed 5 January 2000 as the time-limit
for the filing of a Memorial by the Federal Republic of Yugoslavia and 5
July 2000 as the time-limit for the filing of a Counter-Memorial by Italy.
On 4 January 2000, within the prescribed time-limit, the Federal Republic
of Yugoslavia duly filed its Memorial, dated 5 January 2000, explaining that
it had prepared a single Memorial covering this case and the seven other
pending cases concerning Legality of Use of Force.
9. By letter of 17 April 2000 the Ambassador of Italy to the Netherlands
informed the Court that his Government confirmed its choice of Mr. Giorgio
Gaja to sit as judge ad hoc in the case. By letter of 15 May 2000 the Agent
of the Federal Republic of Yugoslavia, referring to Article 31, paragraph 5,
of the Statute, indicated that his Government objected to the presence on
the Bench of a judge ad hoc chosen by Italy. By letter of 15 June 2000 the
Agent of Italy informed the Court of his Government's views on the letter
from the Agent of the Federal Republic of Yugoslavia. By letter of 3 July
2000, the Agent of the Federal Republic of Yugoslavia transmitted to the
Court his Government's comments on the letter from the Agent of Italy of 15
June 2000.
10. On 4 July 2000, within the time-limit fixed for the filing of its
Counter-Memorial, Italy, referring to Article 79, paragraph 1, of the Rules,
submitted preliminary objections relating to the Court's jurisdiction to
entertain the case [p 871] and to the admissibility of the Application.
Accordingly, by Order of 8 September 2000, the Vice-President of the Court,
Acting President, noted that by virtue of Article 79, paragraph 3, of the
Rules, the proceedings on the merits were suspended, and fixed 5 April 2001
as the time-limit within which the Federal Republic of Yugoslavia might
present a written statement of its observations and submissions on the
preliminary objections made by Italy.
11. By letter of 18 January 2001 the Minister for Foreign Affairs of the
Federal Republic of Yugoslavia, referring inter alia to certain diplomatic
initiatives, requested the Court, for reasons stated in that letter, to
grant a stay of the proceedings or to extend by 12 months the time-limit for
the submission of observations by the Federal Republic of Yugoslavia on the
preliminary objections raised by Italy. By letter of 30 January 2001 the
Agent of Italy informed the Court that his Government was not opposed to the
request by the Federal Republic of Yugoslavia.
By Order of 21 February 2001 the Court extended to 5 April 2002 the
timelimit within which the Federal Republic of Yugoslavia might present a
written statement of its observations and submissions on the preliminary
objections made by Italy.
12. By letter of 8 February 2002 the Agent of the Federal Republic of
Yugoslavia, referring to "dramatic" and "ongoing" changes in Yugoslavia
which had "put the [case]...ina quite different perspective", as well as to
the decision to be taken by the Court in another case involving Yugoslavia,
requested the Court, for reasons stated in that letter, to stay the
proceedings or to extend for a further period of 12 months the time-limit
for the submission by the Federal Republic of Yugoslavia of its observations
on the preliminary objections raised by Italy. By letter of 25 February 2002
the Agent of Italy informed the Court that his Government was not opposed to
the request by the Federal Republic of Yugoslavia.
By Order of 20 March 2002 the Court extended to 7 April 2003 the time-limit
within which the Federal Republic of Yugoslavia might present a written
statement of its observations and submissions on the preliminary objections
made by Italy.
13. On 20 December 2002, within the time-limit as thus extended, the
Federal Republic of Yugoslavia filed a written statement of its
observations and submissions on the preliminary objections in the present
case (hereinafter referred to as its "Observations") and filed an identical
written statement in the seven other pending cases. By letter of 17 January
2003 the Agent of Italy presented the views of his Government on those
Observations.
14. By letter of 5 February 2003 the Ambassador of the Federal Republic of
Yugoslavia to the Netherlands informed the Court that, following the
adoption and promulgation of the Constitutional Charter of Serbia and
Montenegro by the Assembly of the Federal Republic of Yugoslavia on 4
February 2003, the name of the State of the Federal Republic of Yugoslavia
had been changed to "Serbia and Montenegro". By letter of 28 February 2003
the Agent of Serbia and Montenegro presented his Government's comments in
response to the above-mentioned letter from the Agent of Italy of 17 January
2003.
15. Pursuant to Article 24, paragraph 1, of the Statute, on 25 November 2003
Judge Simma informed the President that he considered that he should not
take part in the decision in the cases concerning Legality of Use of Force.
16. At a meeting held by the President of the Court on 12 December 2003 [p
872] with the representatives of the Parties in the cases concerning
Legality of Use of Force (Serbia and Montenegro v. Belgium) (Serbia and
Montenegro v. Canada) (Serbia and Montenegro v. France) (Serbia and
Montenegro v. Germany) (Serbia and Montenegro v. Italy) (Serbia and
Montenegro v. Netherlands) (Serbia and Montenegro v. Portugal) (Serbia and
Montenegro v. United Kingdom) in order to ascertain their views with regard
to questions of procedure, the representatives of the Parties were invited
to submit to the Court any observations which their Governments might wish
to make, in particular on the following questions: organization of the oral
proceedings; presence on the Bench of judges ad hoc during the preliminary
objections phase; possible joinder of the proceedings (General List Nos.
105, 106, 107, 108, 109, 110, 111 and 113). In reply to the questions put by
the President of the Court, the representative of Italy cited his
Government's need to produce new documents, in view of important
developments in the case since the filing of its preliminary objections. The
representative of Italy also reaffirmed his Government's intention to
exercise its right under Article 31, paragraph 3, of the Statute to choose a
judge ad hoc and stated that Italy was opposed to the proceedings being
joined. The Agent of Serbia and Montenegro responded that his Government
also considered that it needed to produce new documents. As regards the
nomination of judges ad hoc by those respondent States not having a judge of
their nationality upon the Bench, the Agent of Serbia and Montenegro
explained that his Government no longer maintained its objection; the Agent
further indicated that his Government was in favour of a joinder of all the
proceedings in accordance with Article 47 of the Rules of Court. By letter
of 18 December 2003 the Agent of Serbia and Montenegro confirmed the views
thus expressed at the meeting of 12 December 2003.
17. By letter of 23 December 2003 the Registrar informed all the Parties to
the cases concerning Legality of Use of Force of the Court's decisions on
the issues discussed at the meeting of 12 December 2003. The Agents were
informed that the Court had decided, pursuant to Article 31, paragraph 5, of
the Statute, that, taking into account the presence upon the Bench of judges
of British, Dutch and French nationality, the judges ad hoc chosen by the
respondent States should not sit during the current phase of the procedure
in these cases; it was made clear to the Agents that this decision by the
Court did not in any way prejudice the question whether, if the Court should
reject the preliminary objections of the Respondents, judges ad hoc might
sit in subsequent stages of the cases. The Agents were also informed that
the Court had decided that a joinder of the proceedings would not be
appropriate at that stage. Finally, the Agents were informed that the Court
had fixed 27 February 2004 as the time-limit for the filing of any new
documents, and that such documents, which should only relate to jurisdiction
and to admissibility, would be dealt with as provided for in Article 56 of
the Rules of Court.
18. By a joint letter of 27 February 2004 the Agents of the respondent
States in the cases concerning Legality of Use of Force indicated that their
Governments wished to produce new documents pursuant to Article 56 of the
Rules. In the absence of any objection by Serbia and Montenegro, to which
the documents had been communicated in accordance with paragraph 1 of that
Article, the Court decided that they would be added to the file of each
case.
19. Pursuant to Article 53, paragraph 2, of its Rules, the Court, having
con-[p 873]sulted the Parties, decided that copies of the pleadings and
documents annexed would be made accessible to the public on the opening of
the oral proceedings.
20. Public sittings were held between 19 and 23 April 2004, at which the
Court heard the oral arguments and replies of:
For Serbia and Montenegro: Mr. Tibor Varady,
Mr. Ian Brownlie,
Mr. Vladimir Djeric.
For Italy: Mr. Braguglia,
Mr. Leanza,
Mr. Daniele,
Mr. Sico.
*
21. In the Application, the claims of Serbia and Montenegro were formulated
as follows:
"The Government of the Federal Republic of Yugoslavia requests the
International Court of Justice to adjudge and declare:
— by taking part in the bombing of the territory of the Federal Republic of
Yugoslavia, the Republic of Italy has acted against the Federal Republic of
Yugoslavia in breach of its obligation not to use force against another
State;
— by taking part in the training, arming, financing, equipping and
supplying terrorist groups, i.e. the so-called 'Kosovo Liberation Army',
the Republic of Italy has acted against the Federal Republic of Yugoslavia
in breach of its obligation not to intervene in the affairs of another
State;
— by taking part in attacks on civilian targets, the Republic of Italy 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, the Republic of Italy has acted against the Federal Republic of
Yugoslavia in breach of its obligation not to commit any act of hostility
directed against historical monuments, works of art or places of worship
which constitute cultural or spiritual heritage of people;
— by taking part in the use of cluster bombs, the Republic of Italy has
acted against the Federal Republic of Yugoslavia in breach of its
obligation not to use prohibited weapons, i.e. weapons calculated to cause
unnecessary suffering;
— by taking part in the bombing of oil refineries and chemical plants, the
Republic of Italy has acted against the Federal Republic of Yugoslavia in
breach of its obligation not to cause considerable environmental damage ;
— by taking part in the use of weapons containing depleted uranium, the
Republic of Italy 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; [p 874]
— by taking part in killing civilians, destroying enterprises,
communications, health and cultural institutions, the Republic of Italy has
acted against the Federal Republic of Yugoslavia in breach of its obligation
to respect the right to life, the right to work, the right to information,
the right to health care as well as other basic human rights ;
— by taking part in destroying bridges on international rivers, the
Republic of Italy has acted against the Federal Republic of Yugoslavia in
breach of its obligation to respect freedom of navigation on international
rivers ;
— by taking part in activities listed above, and in particular by causing
enormous environmental damage and by using depleted uranium, the Republic of
Italy 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 destruc-tion, in whole or in
part;
— the Republic of Italy is responsible for the violation of the above
international obligations;
— the Republic of Italy is obliged to stop immediately the violation of the
above obligations vis-à-vis the Federal Republic of Yugoslavia;
— the Republic of Italy is obliged to provide compensation for the damage
done to the Federal Republic of Yugoslavia and to its citizens and juridical
persons.
The Federal Republic of Yugoslavia reserves the right to submit
subsequently accurate evaluation of the damage."
22. In the course of the written proceedings, the following submissions were
presented by the Parties:
On behalf of the Government of Serbia and Montenegro, in the Memorial:
"The Government of the Federal Republic of Yugoslavia requests the
International Court of Justice to adjudge and declare:
— by the bombing of the territory of the Federal Republic of Yugoslavia, the
Respondent has acted against the Federal Republic of Yugoslavia in breach of
its obligation not to use force against another State;
— by using force against the Yugoslav army and police during their actions
against terrorist groups, i.e. the so-called 'Kosovo Liberation Army', the
Respondent has acted against the Federal Republic of Yugoslavia in breach of
its obligation not to intervene in the affairs of another State;
— by attacks on civilian targets, and by inflicting damage, injuries and
losses to civilians and civilian objects, the Respondent has acted against
the Federal Republic of Yugoslavia in breach of its obligation to spare the
civilian population, civilians and civilian objects;
— by destroying or damaging monasteries, monuments of culture, the
Respondent has acted against the Federal Republic of Yugoslavia in [p 875]
breach of its obligation not to commit any act of hostility directed against
historical monuments, works of art or places of worship which constitute
cultural or spiritual heritage of people;
— by the use of cluster bombs, the Respondent has acted against the Federal
Republic of Yugoslavia in breach of its obligation not to use prohibited
weapons, i.e. weapons calculated to cause unnecessary suffering;
— by the bombing of oil refineries and chemical plants, the Respondent has
acted against the Federal Republic of Yugoslavia in breach of its obligation
not to cause considerable environmental damage;
— by the use of weapons containing depleted uranium, the Respondent 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 killing civilians, destroying enterprises, communications, health and
cultural institutions, the Respondent 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 destroying bridges on international rivers, the Respondent has acted
against the Federal Republic of Yugoslavia in breach of its obligation to
respect State sovereignty;
— by activities listed above, and in particular by causing enormous
environmental damage and by using depleted uranium, the Respondent 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 ;
— by failures to prevent killing, wounding and ethnic cleansing of Serbs and
other non-Albanian groups in Kosovo and Metohija, the Respondent has acted
against the Federal Republic of Yugoslavia in breach of its obligations to
ensure public safety and order in Kosovo and Metohija and to prevent
genocide and other acts enumerated in Article III of the Genocide
Convention;
— the Respondent is responsible for the violation of the above
international obligations ;
— the Respondent is obliged to stop immediately the violation of the above
obligations vis-à-vis the Federal Republic of Yugoslavia;
— the Respondent is obliged to provide compensation for the damages,
injuries and losses done to the Federal Republic of Yugoslavia and to its
citizens and juridical persons.
The Government of the Federal Republic of Yugoslavia requests the
International Court of Justice to settle the form and amount of the
reparation, failing agreement between the Parties and to reserve, for this
purpose, the subsequent procedure in this case." [p 876]
On behalf of the Italian Government,
in the Preliminary Objections:
"The Government of the Republic of Italy accordingly submits that it may
please the Court to adjudge and declare that:
I. The Application filed in the Registry of the Court on 29 April 1999 by
the Federal Republic of Yugoslavia against the Republic of Italy for
'violation of the obligation not to use force', as supplemented by the
Memorial filed on 5 January 2000, is inadmissible with respect to the
eleventh submission, mentioned for the first time in the Memorial, inasmuch
as Yugoslavia seeks thereby to introduce a dispute altogether different from
the original dispute deriving from the terms of the Application;
II. The Court lacks jurisdiction ratione personarum to decide the present
case, since Yugoslavia is not a party to the Statute;
III. The Court lacks jurisdiction ratione materiae to decide the present
case, since the dispute deriving from the terms of Yugoslavia's
Application, as supplemented by the Memorial, is not a dispute relating 'to
the interpretation, application or fulfilment' of the Genocide Convention
as provided in Article IX of that Convention;
IV. Yugoslavia's Application, as supplemented by the Memorial, is
inadmissible in its entirety, inasmuch as Yugoslavia seeks thereby to obtain
from the Court a decision regarding the legality of action undertaken by
subjects of international law not present at the proceedings, or not all so
present."
On behalf of the Government of Serbia and Montenegro,
in its written statement of 20 December 2002 containing its observations and
submissions on the Preliminary Objections presented by Italy:
"The Federal Republic of Yugoslavia requests the Court to decide on its
jurisdiction considering the pleadings formulated in these Written
Observations."
23. At the oral proceedings, the following submissions were presented by the
Parties:
On behalf of the Italian Government,
at the hearing of 22 April 2004:
"For the reasons set out in its Preliminary Objections and oral statements,
the Italian Government submits as follows:
May it please the Court to adjudge and declare,
Principally, that:
I. No decision is called for on the Application filed in the Registry of the
Court on 29 April 1999 by Serbia and Montenegro against the Italian Republic
for 'violation of the obligation not to use force', as supplemented by the
Memorial filed on 5 January 2000, inasmuch as there is no longer any dispute
between Serbia and Montenegro and the Italian Republic or as the
subject-matter of the dispute has disappeared. [p 877]
In the alternative, that:
II. The Court lacks jurisdiction ratione personarum to decide the present
case, since Serbia and Montenegro was not a party to the Statute when the
Application was filed and also does not consider itself a party to a 'treaty
in force' such as would confer jurisdiction on the Court, in accordance with
Article 35, paragraph 2, of the Statute;
III. The Court lacks jurisdiction ratione materiae to decide the present
case, since Serbia and Montenegro does not regard itself as bound by Article
IX of the Genocide Convention, to which it made a reservation upon giving
notice of accession in March 2001 and since, in any event, the dispute
arising from the terms of the Application instituting proceedings, as
supplemented by the Memorial, is not a dispute relating to 'the
interpretation, application or fulfilment' of the Genocide Convention, as
provided in Article IX;
IV. Serbia and Montenegro's Application, as supplemented by the Memorial,
is inadmissible in its entirety, inasmuch as Serbia and Montenegro seeks
thereby to obtain from the Court a decision regarding the legality of action
undertaken by subjects of international law not present in the proceedings
or not all so present;
V. Serbia and Montenegro's Application is inadmissible with respect to the
eleventh submission, mentioned for the first time in the Memorial, inasmuch
as Serbia and Montenegro seeks thereby to introduce a dispute altogether
different from the original dispute deriving from the Application."
On behalf of the Government of Serbia and Montenegro,
at the hearing of 23 April 2004:
"For the reasons given in its pleadings, and in particular in its Written
Observations, subsequent correspondence with the Court, and at the oral
hearing, Serbia and Montenegro requests the Court:
— to adjudge and declare on its jurisdiction ratione personae in the present
cases ; and
— to dismiss the remaining preliminary objections of the respondent States,
and to order proceedings on the merits if it finds it has jurisdiction
ratione personae."
***
24. The official title of the Applicant in these proceedings has changed
during the period of time relevant to the present proceedings. On 27 April
1992, the Assembly of the Socialist Federal Republic of Yugoslavia adopted
and promulgated the Constitution of "the Federal Republic of Yugoslavia".
The State so named claimed to be the continuation of the Socialist Federal
Republic of Yugoslavia, and as such to be entitled to continued membership
in the United Nations. Inasmuch as this latter claim was not recognized by,
inter alia, the Security Council and the [p 878]
General Assembly of the United Nations, these bodies initially referred to
the Federal Republic of Yugoslavia as "the Federal Republic of Yugoslavia
(Serbia and Montenegro)", and this term was also used in certain previous
decisions of the Court. On 1 November 2000 the Applicant was admitted to
membership in the United Nations under the name of "the Federal Republic of
Yugoslavia"; and on 4 February 2003, the Federal Republic of Yugoslavia
officially changed its name to "Serbia and Montenegro". In the present
judgment, the Applicant will be referred to so far as possible as "Serbia
and Montenegro", even when reference is made to a procedural step taken
before the change of name; in some instances, however, where the term in a
historical context might cause confusion, the title in use at the relevant
time will be employed.
25. The Court must first deal with a preliminary question that has been
raised in each of the cases, including the present one, brought before it by
Serbia and Montenegro concerning Legality of Use of force. It has been
argued by the Respondents in these cases that the Court could and should
reject the claims of Serbia and Montenegro in limine litis,by removing the
cases from the List; by a "pre-preliminary" or summary decision in each case
finding that there is no subsisting dispute or that the Court either has no
jurisdiction or is not called upon to give a decision on the claims ; or by
declining to exercise jurisdiction. Thus the contention for rejecting the
Application in limine litis has been presented in different forms by the
eight respondent States, and supported by various argu-ments, in order to
achieve the same conclusion that, as a result of the changed attitude of the
Applicant to the question of the Court's jurisdiction, expressed in its
Observations (see paragraph 28 below), the Court is no longer required to
adjudge and declare whether or not those objections to jurisdiction are
well founded, but can simply dismiss the case, without enquiring further
into matters of jurisdiction.
26. In addressing the question whether the case should be dismissed in
limine litis, the Court will consider the arguments put forward in this case
and any other legal issue which it deems relevant to consider with a view to
arriving at its conclusion on this point, including the issues raised in the
other cases referred to in paragraph 3 above.
27. In the original Applications instituting proceedings in this group of
cases, Serbia and Montenegro invoked as the title of jurisdiction of the
Court in each case Article IX of the Genocide Convention; in five cases it
invoked its own acceptance of the jurisdiction of the Court under the
optional clause of Article 36, paragraph 2, of the Statute, together with
that of the respondent State; and in two of the cases, it also invoked a
bilateral treaty between the respondent State concerned and the Kingdom of
Yugoslavia. The Applications of Serbia and Montenegro of [p 879]
29 April 1999 asserted, at least by implication, that the Court was then
open to Serbia and Montenegro, under Article 35, paragraph 1, of the Court's
Statute, on the basis that it was a Member of the United Nations and thus a
party to the Court's Statute, by virtue of Article 93, para-graph 1, of the
Charter. Subsequently, this was in fact expressly stated in the Memorial
filed by Serbia and Montenegro.
28. However, in its Observations on the preliminary objections of each of
the respondent States, filed on 20 December 2002, Serbia and Montenegro
claimed that "the acceptance of the Federal Republic of Yugoslavia as a new
member of the United Nations on 1 November 2000" constituted a "new fact";
and on this basis it stated as follows:
"As the Federal Republic of Yugoslavia became a new member of the United
Nations on 1 November 2000, it follows that it was not a member before that
date. Accordingly, it became an established fact that before 1 November
2000, the Federal Republic of Yugoslavia was not and could not have been a
party to the Statute of the Court by way of UN membership."
In addition, as regards the question of jurisdiction of the Court under the
Genocide Convention, Serbia and Montenegro in its Observations drew
attention to its own accession to that Convention in March 2001, and stated
that
"[t]he Federal Republic of Yugoslavia did not continue the personality and
treaty membership of the former Yugoslavia, and thus specifically, it was
not bound by the Genocide Convention until it acceded to that Convention
(with a reservation to Article IX) in March 2001".
In its submissions, however, Serbia and Montenegro did not ask the Court to
rule that it had no jurisdiction but only requested the Court "to decide on
its jurisdiction considering the pleadings in these Written Observations"
(emphasis added).
29. The question whether Serbia and Montenegro was or was not a party to the
Statute of the Court at the time of the institution of the present
proceedings is a fundamental one (see paragraph 45 below). However, at this
initial stage of its judgment, it is necessary for the Court to decide first
on a preliminary question raised by the Respondents, namely whether in the
light of the assertions by the Applicant quoted above coupled with the
contentions of each of the respondent States, the Court should take a
decision to dismiss the case in limine litis, without further entering into
the examination of the question whether the Court has jurisdiction under the
circumstances. [p 880]
30. A number of arguments have been advanced by different Respondents as
possible legal grounds that would lead the Court to take this course. One
argument advanced by some of the respondent States is that the position of
Serbia and Montenegro is to be treated as one that in effect results in a
discontinuance of the proceedings which it has instituted. Discontinuance
of proceedings by the Applicant is provided for in Article 89 of the Rules
of Court, which contemplates the situation in which "the applicant informs
the Court in writing that it is not going on with the proceedings...".
However, Serbia and Montenegro has expressly denied that its Observations
were a notice of discontinuance, and has emphasized that it did not state
that it was "not going on with the proceedings", but rather that it was
requesting the Court to decide on the issue of jurisdiction. It has
emphasized that it wants the Court to continue the case and to decide upon
its jurisdiction, even though the decision that it seeks may result in a
conclusion that there is no jurisdiction.
31. The role of the Court in a discontinuance procedure, whether by
agreement between the parties (Article 88 of the Rules of Court) or at the
initiative of the Applicant (Article 89) in the absence of any objection by
the Respondent, is "simply to record it and to remove the case from its
list" (Barcelona Traction, Light and Power Company, Limited, Preliminary
Objections, Judgment, I.C.J. Reports 1964, p. 20). It may be true that the
logical consequence of the contention of Serbia and Montenegro in its
Observations could be that the case would go no further; but this would be
the result of the Court's own finding and not the placing on record of a
withdrawal by Serbia and Montenegro of the dispute from the Court's purview.
The Court is therefore unable to treat the Observations of Serbia and
Montenegro as having the legal effect of a discontinuance of the
proceedings instituted by that State.
32. The question has been raised whether there is a procedure open to the
Court itself, whereby the Court has ex officio the power to put an end to a
case whenever it sees that this is necessary from the viewpoint of the
proper administration of justice. Although the Rules of Court do not provide
for such a procedure, there is no doubt that in certain circumstances the
Court may of its own motion put an end to proceedings in a case. Prior to
the adoption of Article 38, paragraph 5, of the Rules of Court, in a number
of cases in which the application disclosed no subsisting title of
jurisdiction, but merely an invitation to the State named as respondent to
accept jurisdiction for the purposes of the case, the Court removed the
cases from the List by order. By Orders of 2 June 1999, it removed from the
List two cases brought by Serbia and Montenegro concerning Legality of Use
of Force against Spain and the United States of America, on the ground that
the Court "manifestly lack[ed] jurisdiction" (I.C.J. Reports 1999 (II), pp.
773 and 925). The present case does not however fall into either of these
categories. [p 881]
33. Another argument for the removal of the case from the List which has
been advanced in interpretation of the position of Serbia and Montenegro is
that there is substantive agreement between the Parties on a "question of
jurisdiction that is determinative of the case", and that as a result the
dispute before the Court has disappeared. The Respondents have noted that
the Court is asked by Serbia and Montenegro to determine the question of
jurisdiction raised in the preliminary objections of the respondent States,
in its exercise of the competence de la competence reflected in Article 36,
paragraph 6, of the Statute. They have however claimed that, in accordance
with the well-established jurisprudence of the Court, "the Court is not
compelled in every case to exercise [its] jurisdiction" (Northern
Cameroons, Judgment, I.C.J. Reports 1963, p. 29); and that the Court has the
power to decide to dispose of the case in limine litis. After all, "[t]here
are inherent limitations on the exercise of the judicial function which the
Court, as a court of justice, can never ignore" (ibid.). It is emphasized in
particular that "the Court can exercise its jurisdiction in contentious
proceedings only when a dispute genuinely exists between the
parties"(Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports
1974, p. 271, para. 57; Nuclear Tests (New Zealand v. France), Judgment,
I.C.J. Reports 1974, p. 477, para. 60; emphasis added).
34. In this argument before the Court, attention has been drawn to the
specific terms of the provision in Article 36, paragraph 6, of the Statute,
whereby "[i]n the event of a dispute as to whether the Court has
jurisdiction, the matter shall be settled by decision of the Court"
(emphasis added). It has thus been argued that it is common ground between
the Parties that the Applicant was not a party to the Statute at the time of
institution of the proceedings, and that there is therefore now no "dispute
as to whether the Court has jurisdiction". On this basis, it has been
suggested that
“[f]or the Court to exercise jurisdiction on a basis which has been
abandoned by the Applicant and which was always denied by the Respondent,
would make a mockery of the principle that jurisdiction is founded on the
consent of the parties".
35. On this point, however, it is the view of the Court that a distinction
has to be made between a question of jurisdiction that relates to the
consent of a party and the question of the right of a party to appear before
the Court under the requirements of the Statute, which is not a matter of
consent. The question is whether as a matter of law Serbia and Montenegro
was entitled to seise the Court as a party to the Statute at the time when
it instituted proceedings in these cases. Since that question is independent
of the views or wishes of the Parties, even if they were now to have arrived
at a shared view on the point, the Court would not have to accept that view
as necessarily the correct one. The function of the Court to enquire into
the matter and reach its own conclusion is thus mandatory upon the Court
irrespective of the consent of the parties and [p 882] is in no way
incompatible with the principle that the jurisdiction of the Court depends
on consent.
36. As noted above (paragraph 28), Serbia and Montenegro, after explaining
why in its view it is questionable whether the Court has jurisdiction, has
asked the Court simply "to decide on its jurisdiction" considering the
pleadings formulated in its Observations. At the hearings, it insisted that
it "wants the Court to continue the case and to decide upon its jurisdiction
— and to decide on the merits as well, if it has jurisdiction". Serbia and
Montenegro contends that "the position of the FRY with regard to
international organizations and treaties has been a most intricate and
controversial matter", so that "[o]nly a decision of this Court could bring
clarity".
37. The function of a decision of the Court on its jurisdiction in a
particular case is solely to determine whether or not the Court may
entertain that case on the merits, and not to engage in a clarification of a
controverted issue of a general nature. A decision of the Court should
have, in the words of the Judgment in the Northern Cameroons case, "some
practical consequence in the sense that it can affect existing legal rights
or obligations of the parties, thus removing uncertainty from their legal
relations" (I.C.J. Reports 1963, p. 34; emphasis added); and that will be
the proper consequence of the Court's decision on its jurisdiction in the
present case.
38. It may be mentioned here briefly that some of the Respondents have
implied that the attitude of Serbia and Montenegro might be influenced by
the existence of a pending case concerning Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), hereinafter referred to as "the
Genocide Convention case". It is recalled that Serbia and Montenegro in
2002 sought a revision of a Judgment of 11 July 1996 on preliminary
objections in that case, basing itself on arguments similar to those which
are advanced in the present case concerning its status in relation to the
United Nations (Application for Revision of the Judgment of 11 July 1996 in
the Case concerning Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), hereinafter
referred to as "the Application for Revision case"). The Court, by its
Judgment of 3 February 2003, rejected this Application for revision of the
earlier Judgment, on the ground that the necessary conditions specified in
Article 61 of the Statute for revision of a judgment were not met in that
case. In one of the other cases concerning Legality of Use of Force, the
Respondent contends that there is no dispute between itself and the
Applicant on jurisdiction; that if there is any subsisting dispute to which
Serbia and Montenegro is party, it is the dispute with Bosnia and
Herzegovina; and that the current proceedings "cannot be used to procure a
favourable opinion [from the Court], for use in an entirely separate piece
of litigation". [p 883]
39. In the view of the Court, it cannot decline to entertain a case simply
because of a suggestion as to the motives of one of the parties or because
its judgment may have implications in another case.
40. Yet another argument advanced for reaching the conclusion that the Court
would be justified in summarily disposing of the case without a
jurisdictional decision relates to a proposition that the substantive
dispute under the Genocide Convention, rather than the dispute over
jurisdiction, has disappeared. It has been argued that Serbia and
Montenegro, by contending that it was not a party to the Genocide Convention
until March 2001, is bound to recognize that the rights which it was
asserting in its Application under that Convention had no legal basis, and
that therefore any legal dispute between itself and the respondent States
concerning these rights and obligations under the Convention has ceased to
exist. That dispute is the sole dispute in the cases concerning Legality of
Use of Force, including the present one, in which the only ground of
jurisdiction relied on is Article IX of the Genocide Convention, and thus,
in these cases, the whole dispute would have disappeared.
41. It has also been suggested that Serbia and Montenegro has, by its
conduct, either forfeited or renounced its right of action in the present
case and is in any event now estopped from pursuing the present action in so
far as that right of action is based on the Genocide Convention. More
broadly, it is suggested that, by inviting the Court to find that it has no
jurisdiction, the Applicant can no longer be regarded as pursuing the
settlement by the Court of the substantive dispute.
42. The Court is unable to uphold these various contentions. As regards the
argument that the dispute on jurisdiction has disappeared, Serbia and
Montenegro has not invited the Court to find that it has no jurisdiction;
while it is apparently in agreement with the arguments advanced by the
Respondents in that regard in their preliminary objections, it has
specifically asked in its submissions for a decision of the Court on the
jurisdictional question. This question, in the view of the Court as
explained above, is a legal question independent of the views of the parties
upon it. As to the argument concerning the disappearance of the substantive
dispute, it is clear that Serbia and Montenegro has by no means withdrawn
its claims as to the merits. Indeed, these claims were extensively argued
and developed in substance during the hearings on jurisdiction, in the
context of the question of the jurisdiction of the Court under Article IX of
the Genocide Convention. It is equally clear that these claims are being
vigorously denied by the Respondents. It could not even be said under these
circumstances that, while the essential dispute still subsists, Serbia and
Montenegro is no longer seeking to have its claim determined by the Court.
Serbia and Montenegro has not sought a discontinuance (see paragraph 31
above); and it has stated that it "wants the Court to continue the case and
to decide upon its jurisdiction — and [p 884] to decide on the merits as
well, if it has jurisdiction". In the present circumstances, the Court is
unable to find that Serbia and Montenegro has renounced any of its
substantive or procedural rights, or has taken the position that the dispute
between the Parties has ceased to exist. As for the argument based on the
doctrine of estoppel, the Court does not consider that Serbia and
Montenegro, by asking the Court "to decide on its jurisdiction" on the basis
of certain alleged "new facts" about its own legal status vis-a-vis the
United Nations, should be held to have forfeited or renounced its right of
action and to be estopped from continuing the present action before the
Court.
43. For all these reasons, the Court cannot remove the cases concerning
Legality of Use of Force from the List, or take any decision putting an end
to those cases in limine litis. In the present phase of the proceedings, it
must proceed to examine the titles of jurisdiction asserted by the Applicant
and the objections thereto advanced by the Respondents, and give its
decision with respect to jurisdiction.
***
44. The Court accordingly turns to the questions of jurisdiction arising in
the present case. The Application filed by Serbia and Montenegro on 29 April
1999 indicated that it was submitted "[o]n the basis of Article 40 of the
Statute of the International Court of Justice and Article 38 of the Rules of
Court". On the question of the legal grounds for jurisdiction of the Court,
the Application stated that "[t]he Government of the Federal Republic of
Yugoslavia invokes Article IX of the Convention on the Prevention and
Punishment of the Crime of Genocide as well as Article 38, paragraph 5, of
the Rules of Court". With regard to the second ground of jurisdiction thus
invoked by the Applicant, the Court recalls that at the provisional measures
stage, it found that "it is quite clear that, in the absence of consent by
Italy, given pursuant to Article 38, paragraph 5, of the Rules, the Court
cannot exercise jurisdiction... even prima facie" (I.C.J. Reports 1999 (I),
p. 492, para. 31). The Court notes that the Parties have not returned to
this matter.
45. The Court notes that in several cases it referred to "its freedom to
select the ground upon which it will base its judgment" (Application of the
Convention of 1902 Governing the Guardianship of Infants, Judgment, I.C.J.
Reports 1958,p.62; Application for Revision and Interpretation of the
Judgment of 24 February 1982 in the Case concerning the Continental Shelf
(Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya),
Judgment, I.C.J. Reports 1985, p. 207, para. 29; Oil Platforms (Islamic
Republic of Iran v. United States of America), Judgment, I.C.J. Reports
2003, p. 180, para. 37).
By the same token, the Court in the past pointed out that when its
jurisdiction is challenged on diverse grounds, it is free to base its
decision [p 885] on one or more grounds of its own choosing, in particular
"the ground which in its judgment is more direct and conclusive" (Certain
Norwegian Loans (France v. Norway), Judgment, I.C.J. Reports 1957,p.25; see
also Aerial Incident of 27 July 1955 (Israel v. Bulgaria), Judgment, I.C.J.
Reports 1959, p. 127; Aegean Sea Continental Shelf (Greece v. Turkey),
Judgment, I.C.J. Reports 1978, pp. 16-17, paras. 39-40, and Aerial Incident
of 10 August 1999 (Pakistan v. India), Jurisdiction, Judgment, I.C.J.
Reports 2000, p. 24, para. 26).
But in those instances, the parties to the cases before the Court were,
without doubt, parties to the Statute of the Court and the Court was thus
open to them under Article 35, paragraph 1, of the Statute. That is not the
case in the present proceedings in which an objection has been made
regarding the right of the Applicant to have access to the Court. And it is
this issue of access to the Court which distinguishes the present case from
all those referred to above.
As the Court observed earlier (see paragraph 29 above), the question whether
Serbia and Montenegro was or was not a party to the Statute of the Court at
the time of the institution of the present proceedings is fundamental; for
if it were not such a party, the Court would not be open to it under Article
35, paragraph 1, of the Statute. In that situation, subject to any
application of paragraph 2 of that Article, Serbia and Montenegro could not
have properly seised the Court, whatever title of jurisdiction it might have
invoked, for the simple reason that Serbia and Montenegro did not have the
right to appear before the Court.
The Court can exercise its judicial function only in respect of those States
which have access to it under Article 35 of the Statute. And only those
States which have access to the Court can confer jurisdiction upon it.
It is the view of the Court that it is incumbent upon it to examine first of
all the question whether the Applicant meets the conditions laid down in
Articles 34 and 35 of the Statute and whether the Court is thus open to it.
Only if the answer to that question is in the affirmative will the Court
have to deal with the issues relating to the conditions laid down in Article
36 of the Statute of the Court (see Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8
April 1993, I.C.J. Reports 1993, pp. 11 et seq., paras. 14 et seq.).
There is no doubt that Serbia and Montenegro is a State for the purpose of
Article 34, paragraph 1, of the Statute. However, the objection was raised
by certain Respondents (see paragraphs 48, 50, 92, 95 and 96 below) that
Serbia and Montenegro did not meet, at the time of the filing of its
Application on 29 April 1999, the conditions set down in Article 35 of the
Statute.
46. No specific assertion was made in the Application that the Court was
open to Serbia and Montenegro under Article 35, paragraph 1, of [p 886] the
Statute of the Court, but it was later made clear that the Applicant claimed
to be a Member of the United Nations and thus a party to the Statute of the
Court, by virtue of Article 93, paragraph 1, of the Charter, at the time of
filing of the Application. As indicated earlier (paragraph 27 above) this
position was expressly stated in the Memorial filed by Serbia and Montenegro
on 4 January 2000 (Memorial, Part III, paras. 3.1.17 and 3.1.18).
47. In each of the cases concerning Legality of Use of Force, a request for
the indication of provisional measures of protection was submitted by Serbia
and Montenegro on the day of the filing of its Application, i.e. 29 April
1999 (see paragraphs 2 and 3 above). The Court, by Orders of 2 June 1999,
rejected these requests (see paragraph 7 above), on the ground that it had
no prima facie jurisdiction to entertain the Applications. In the instant
case, it found that it was
"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 [that] 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" (I.C.J. Reports 1999 (I), p. 491, para. 28).
48. In the course of the proceedings on these requests in other cases,
however, some of the Respondents raised the issue of whether the Applicant
was a party to the Statute of the Court, and contended, for example, that
"the Court's jurisdiction in this case cannot in any event be based, even
prima facie, on Article 36, paragraph 2, of the Statute, for under this
provision only 'States... parties to the... Statute' may subscribe to the
optional clause for compulsory jurisdiction contained therein" (Legality of
Use of Force (Yugoslavia v. Belgium), I.C.J. Reports 1999 (I), p. 135, para.
31).
Reference was made, inter alia, to United Nations General Assembly
resolution 47/1 of 22 September 1992, and it was contended that "'the
Federal Republic of Yugoslavia is not the continuator State of the former
Socialist Federal Republic of Yugoslavia' as regards membership of the
United Nations" and that "not having duly acceded to the Organization,
Yugoslavia is in consequence not a party to the Statute of the Court"
(ibid.).
49. Notwithstanding this contention by some of the Respondents, the Court
did not, in the Orders on provisional measures, carry out any examination of
it, confining itself to observing that in view of its findings on other
aspects, for example, relating to the lack of prima facie jurisdiction
ratione temporis under Article 36, paragraph 2, "the Court need not consider
this question for the purpose of deciding whether or [p 887] not it can
indicate provisional measures in the present case" (I.C.J. Reports 1999 (I),
p. 136, para. 33).
50. In the instant case, Italy argued as a preliminary objection to
jurisdiction that the Applicant does not have access to the Court. It
considered that the Applicant was not a Member of the United Nations and
concluded, inter alia, that
"[s]ince it is not a Member of the United Nations, by the same token
Yugoslavia is not a party to the Statute under Article 93, paragraph 1, of
the Charter [of the United Nations]" (Preliminary Objections of Italy, p.
27).
51. The Court notes that it is, and has always been, common ground between
the Parties that Serbia and Montenegro has not claimed to have become a
party to the Statute on any other basis than by membership in the United
Nations. Therefore the question raised in this preliminary objection is
simply whether or not the Applicant was a Member of the United Nations at
the time when it instituted proceedings in the present case.
52. In addressing the question whether Serbia and Montenegro had access to
the Court under Article 35, paragraph 1, of the Statute, the Court will
consider the arguments put forward in this case and any other legal issue
which it deems relevant to consider with a view to arriving at its
conclusion on this point, including the issues raised in the other cases
referred to in paragraph 3 above.
53. The Court will first recapitulate the sequence of events relating to the
legal position of Serbia and Montenegro vis-à-vis the United Nations —
events already examined, so far as was necessary to the Court, in the
context of another case (see Judgment in the case concerning Application for
Revision, I.C.J. Reports 2003, pp. 14-26, paras. 24-53).
54. In the early 1990s the Socialist Federal Republic of Yugoslavia, made up
of Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and
Slovenia, began to break up. On 25 June 1991 Croatia and Slovenia both
declared independence, followed by Macedonia on 17 Sep-tember 1991 and
Bosnia and Herzegovina on 6 March 1992. On 22 May 1992, Bosnia and
Herzegovina, Croatia and Slovenia were admitted as Members to the United
Nations; as was the former Yugoslav Republic of Macedonia on 8 April 1993.
55. On 27 April 1992 the "participants of the joint session of the SFRY
Assembly, the National Assembly of the Republic of Serbia and the Assembly
of the Republic of Montenegro" adopted a declaration, stating in pertinent
parts:
"The representatives of the people of the Republic of Serbia and the
Republic of Montenegro, [p 888]
Expressing the will of the citizens of their respective Republics to stay in
the common state of Yugoslavia,
………………………………………………………………………………………………
wish to state in this Declaration their views on the basic, immediate and
lasting objectives of the policy of their common state, and on its relations
with the former Yugoslav Republics.
1. The Federal Republic of Yugoslavia, continuing the state, international
legal and political personality of the Socialist Federal Republic of
Yugoslavia, shall strictly abide by all the commitments that the SFR of
Yugoslavia assumed internationally,
………………………………………………………………………………………………
Remaining bound by all obligations to international organizations and
institutions whose member it is..." (United Nations doc. A/46/915, Ann. II.)
56. An official Note of the same date from the Permanent Mission of
Yugoslavia to the United Nations, addressed to the Secretary-General of the
United Nations, stated inter alia that:
"The Assembly of the Socialist Federal Republic of Yugoslavia, at its
session held on 27 April 1992, promulgated the Constitution of the Federal
Republic of Yugoslavia. Under the Constitution, on the basis of the
continuing personality of Yugoslavia and the legitimate decisions by Serbia
and Montenegro to continue to live together in Yugoslavia, the Socialist
Federal Republic of Yugoslavia is transformed into the Federal Republic of
Yugoslavia, consisting of the Republic of Serbia and the Republic of
Montenegro.
Strictly respecting the continuity of the international personality of
Yugoslavia, the Federal Republic of Yugoslavia shall continue to fulfil all
the rights conferred to, and obligations assumed by, the Socialist Federal
Republic of Yugoslavia in international relations, including its membership
in all international organizations and participation in international
treaties ratified or acceded to by Yugoslavia." (United Nations doc.
A/46/915, Ann. I.)
57. On 30 May 1992, the Security Council adopted resolution 757 (1992), in
which, inter alia, it noted that "the claim by the Federal Republic of
Yugoslavia (Serbia and Montenegro) to continue automatically the membership
of the former Socialist Federal Republic of Yugoslavia in the United
Nations has not been generally accepted". [p 889]
58. On 19 September 1992, the Security Council adopted resolution 777 (1992)
which read as follows:
"The Security Council,
Reaffirming its resolution 713 (1991) of 25 September 1991 and all
subsequent relevant resolutions,
Considering that the state formerly known as the Socialist Federal Republic
of Yugoslavia has ceased to exist,
Recalling in particular resolution 757 (1992) which notes that 'the claim by
the Federal Republic of Yugoslavia (Serbia and Montenegro) to continue
automatically the membership of the former Socialist Federal Republic of
Yugoslavia in the United Nations has not been generally accepted',
1. Considers that the Federal Republic of Yugoslavia (Serbia and Montenegro)
cannot continue automatically the membership of the former Socialist Federal
Republic of Yugoslavia in the United Nations; and therefore recommends to
the General Assembly that it decide that the Federal Republic of Yugoslavia
(Serbia and Montenegro) should apply for membership in the United Nations
and that it shall not participate in the work of the General Assembly;
2. Decides to consider the matter again before the end of the main part of
the forty-seventh session of the General Assembly." (United Nations doc.
S/RES/777.)
The resolution was adopted by 12 votes in favour, none against, and 3
abstentions.
59. On 22 September 1992 the General Assembly adopted resolution 47/1,
according to which:
"The General Assembly,
Having received the recommendation of the Security Council of 19 September
1992 that the Federal Republic of Yugoslavia (Serbia and Montenegro) should
apply for membership in the United Nations and that it shall not participate
in the work of the General Assembly,
1. Considers that the Federal Republic of Yugoslavia (Serbia and Montenegro)
cannot continue automatically the membership of the former Socialist Federal
Republic of Yugoslavia in the United Nations; and therefore decides that the
Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for
membership in the United Nations and that it shall not participate in the
work of the General Assembly;
2. Takes note of the intention of the Security Council to consider the
matter again before the end of the main part of the [p 890] forty-seventh
session of the General Assembly." (United Nations doc. A/RES/47/1.)
The resolution was adopted by 127 votes to 6, with 26 abstentions.
60. On 25 September 1992, the Permanent Representatives of Bosnia and
Herzegovina and Croatia addressed a letter to the Secretary-General, in
which, with reference to Security Council resolution 777 (1992) and General
Assembly resolution 47/1, they stated their understanding as follows: "At
this moment, there is no doubt that the Socialist Federal Republic of
Yugoslavia is not a member of the United Nations any more. At the same time,
the Federal Republic of Yugoslavia is clearly not yet a member." They
concluded that "[t]he flag flying in front of the United Nations and the
name-plaque bearing the name 'Yugoslavia' do not represent anything or
anybody any more" and "kindly request[ed] that [the Secretary-General]
provide a legal explanatory statement concerning the questions raised"
(United Nations doc. A/47/474).
61. In response, 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 Croatia, in which he stated
that the "considered view of the United Nations Secretariat regarding the
practical consequences of the adoption by the General Assembly of resolution
47/1" was as follows:
"While 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 and that the Federal Republic of Yugoslavia (Serbia and
Montenegro) should apply for membership in the United Nations, 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. It is clear, therefore, that representatives
of the Federal Republic of Yugoslavia (Serbia and Montenegro) can no longer
participate in the work of the General Assembly, its subsidiary organs, nor
conferences and meetings convened by it.
On the other hand, 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 Mon-tenegro) cannot sit behind
the sign 'Yugoslavia'. Yugoslav missions 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 as it is the last flag of Yugoslavia used by the Secretariat. The
resolution does not take away the right of Yugoslavia to participate in the
[p 891] work of organs other than Assembly bodies. The admission to the
United Nations of a new Yugoslavia under Article 4 of the Charter will
terminate the situation created by resolution 47/1." (United Nations doc.
A/47/485; original emphasis.)
62. On 29 April 1993, the General Assembly, upon the recommendation
contained in Security Council resolution 821 (1993) (couched in terms
similar to those of Security Council resolution 777 (1992)), adopted
resolution 47/229 in which it decided that "the Federal Republic of
Yugoslavia (Serbia and Montenegro) shall not participate in the work of the
Economic and Social Council".
63. As is clear from the sequence of events summarized in the above
paragraphs (paragraphs 54-62), the legal position of the Federal Republic of
Yugoslavia within the United Nations and vis-à-vis that Organization
remained highly complex during the period 1992-2000. In fact, it is the view
of the Court that the legal situation that obtained within the United
Nations during that eight-year period concerning the status of the Federal
Republic of Yugoslavia, after the break-up of the Socialist Federal Republic
of Yugoslavia, remained ambiguous and open to different assessments. This
was due, inter alia, to the absence of an authoritative determination by the
competent organs of the United Nations defining clearly the legal status of
the Federal Republic of Yugoslavia vis-à-vis the United Nations.
64. Within the United Nations, three different positions were taken on the
issue of the legal status of the Federal Republic of Yugoslavia. In the
first place, there was the position taken by the two political organs
concerned. The Security Council, as an organ of the United Nations which
under the Charter is vested with powers and responsibilities as regards
membership, stated in its resolution 777 (1992) of 19 September 1992 that it
"consider[ed] that the state formerly known as the Socialist Federal
Republic of Yugoslavia has ceased to exist" and that it "[c]onsider[ed] that
the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue
automatically the membership of the Socialist Federal Republic of Yugoslavia
in the United Nations".
65. The other organ which under the Charter is vested with powers and
responsibilities as regards membership in the United Nations is the General
Assembly. In the wake of this Security Council resolution, and especially in
light of its recommendation to the General Assembly that "it decide that the
Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for
membership in the United Nations", the Assembly took the position in
resolution 47/1 of 22 September 1992 that it "[c]onsider[ed] that the
Federal Republic of Yugoslavia (Serbia and Monte-[p 892]negro) cannot
continue automatically the membership of the former Socialist Federal
Republic of Yugoslavia in the United Nations". On that basis, it "decide[d]
that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply
for membership in the United Nations".
66. While it is clear from the voting figures (see paragraphs 58 and 59
above) that these resolutions reflected a position endorsed by the vast
majority of the Members of the United Nations, they cannot be construed as
conveying an authoritative determination of the legal status of the Federal
Republic of Yugoslavia within, or vis-à-vis, the United Nations. The
uncertainty surrounding the question is evidenced, inter alia, by the
practice of the General Assembly in budgetary matters during the years
following the break-up of the Socialist Federal Republic of Yugoslavia.
67. The following were the arrangements made with regard to the assessment
of the Federal Republic of Yugoslavia for annual contributions to the
United Nations budget, during the period between 1992 and 2000. Prior to the
break-up of the Socialist Federal Republic of Yugoslavia, the rate of
assessment for that State for 1992, 1993 and 1994 had been established in
1991 as 0.42 per cent (General Assembly resolution 46/221 of 20 December
1991). On 23 December 1992, the General Assembly, on the recommendation of
the Fifth Committee, decided to adopt the recommendations of the Committee
on Contributions that, inter alia, for 1992, Bosnia and Herzegovina, Croatia
and Slovenia should pay seven-twelfths of their rates of assessment for 1993
and 1994, and that "their actual assessment should be deducted from that of
Yugoslavia for that year" (United Nations doc. A/47/11, para. 64). By
resolution 48/223 of 23 December 1993, the General Assembly determined that
the 1993 rate of assessment of the former Yugoslav Republic of Macedonia,
admitted to membership in the United Nations in 1993, should be deducted
from that of Yugoslavia. The General Assembly also decided that the rate of
assessment of the former Yugoslav Republic of Macedonia should be deducted
from that of Yugoslavia for 1994. Following this practice, the rate of
assessment for the contribution of Yugoslavia to the regular budget of the
United Nations for the years 1995, 1996 and 1997 was determined to be 0.11,
0.1025 and 0.10 per cent respectively (General Assembly resolution 49/19 B
of 23 December 1994), and for the next tri-ennial period, the rate of
assessment of Yugoslavia for the years 1998, 1999 and 2000 was determined to
be 0.060, 0.034 and 0.026 per cent respectively (General Assembly resolution
52/215 A of 20 January 1998). (See further I.C.J. Reports 2003, pp. 22-23,
paras. 45-47.)
68. Secondly, the Federal Republic of Yugoslavia, for its part, maintained
its claim that it continued the legal personality of the Socialist Federal
Republic of Yugoslavia. This claim had been clearly stated in the official
Note of 27 April 1992 from the Permanent Mission of Yugoslavia to the United
Nations addressed to the Secretary-General of the United [p 893] Nations
(see paragraph 56 above). It was sustained by the Applicant throughout the
period from 1992 to 2000 (see, for example, Memorial, Part III, paras. 3.1.3
and 3.1.17).
69. Thirdly, another organ that came to be involved in this problem was the
Secretariat of the United Nations. In the absence of any authoritative
determination on the legal status of the Federal Republic of Yugoslavia
within, or vis-à-vis, the United Nations, the Secretariat, as the
administrative organ of the Organization, simply continued to keep to the
practice of the status quo ante that had prevailed up to the break-up of the
Socialist Federal Republic of Yugoslavia in 1992, pending such a
determination. This is illustrated by the practice of the Secretariat in its
role in the preparation of the budget of the Organization for consideration
and approval by the General Assembly. The "considered view of the United
Nations Secretariat regarding the practical consequences of the adoption by
the General Assembly of resolution 47/1" (United Nations doc. A/47/485),
issued by the Under-Secretary-General and Legal Counsel on 29 September
1992 (see paragraph 61 above), should probably also be understood in the
context of this continuation of the status quo ante.
70. By the same token, the position of the Secretary-General as reflected in
the "Summary of Practice of the Secretary-General as Depositary of
Multilateral Treaties", prepared by the Treaty Section of the Office of
Legal Affairs and published at the beginning of 1996, was scrupulously to
maintain the approach of following the existing practice on the basis of the
status quo ante. As originally issued, that Summary contained a paragraph
(paragraph 297) on the practice of the Secretariat on the break-up of a
State party to a multilateral convention of which the Secretary-General was
the depositary. It was there stated, inter alia, that "[t]he independence of
the new successor State, which then exercises its sovereignty on its
territory, is of course without effect as concerns the treaty rights and
obligations of the predecessor State as concerns its own (remaining)
territory". The example was given of the Union of Soviet Socialist
Republics, and the text continued:
"The same applies to the Federal Republic of Yugoslavia (Serbia and
Montenegro), which remains as the predecessor State upon separation of parts
of the territory of the former Yugoslavia. General Assembly resolution 47/1
of 22 September 1992, to the effect that the Federal Republic of Yugoslavia
could not automatically continue the membership of the former Yugoslavia in
the United Nations...,was adopted within the framework of the United Nations
and the context of the Charter of the United Nations, and not as an
indication that the Federal Republic of Yugoslavia [p 894] was not to be
considered a predecessor State." (United Nations doc. ST/LEG/8; see also
I.C.J. Reports 2003, p. 19, para. 38.)
This passage could be read as lending support to the claims of the Federal
Republic of Yugoslavia. It was deleted by the Secretariat in response to the
objections raised by a number of States that the text was contrary to the
relevant Security Council and General Assembly resolutions and the
pertinent opinions of the Arbitration Commission of the International
Conference for Peace in Yugoslavia (see United Nations docs.
A/50/910-S/1996/231, A/51/95-S/1996/251, A/50/928-S/1996/263 and
A/50/930-S/1996/260).
71. A further example of the application of this approach is afforded by the
way in which the Secretariat treated the deposit of the declaration by the
Federal Republic of Yugoslavia recognizing the compulsory jurisdiction of
the International Court of Justice dated 25 April 1999. On 30 April 1999 the
Secretary-General issued a Depositary Notification informing Member States
of that deposit (C.N.311.1999.TREATIES-1). Although on 27 May 1999 the
Permanent Representatives of Bosnia and Herzegovina, Croatia, Slovenia and
the former Yugoslav Republic of Macedonia sent a letter to the
Secretary-General, questioning the validity of the deposit of the
declaration recognizing the compulsory jurisdiction of the International
Court of Justice by the Federal Republic of Yugoslavia (United Nations doc.
A/53/992), the Secretariat adhered to its past practice respecting the
status quo ante and simply left the matter there.
72. To sum up, all these events testify to the rather confused and complex
state of affairs that obtained within the United Nations surrounding the
issue of the legal status of the Federal Republic of Yugoslavia in the
Organization during this period. It is against this background that the
Court, in its Judgment of 3 February 2003, referred to the "sui generis
position which the FRY found itself in" during the period between 1992
and 2000.
73. It must be stated that this qualification of the position of the
Federal Republic of Yugoslavia as "sui generis", which the Court employed
to describe the situation during this period of 1992 to 2000, is not a
prescriptive term from which certain defined legal consequences accrue; it
is merely descriptive of the amorphous state of affairs in which the Federal
Republic of Yugoslavia found itself during this period. No final and
definitive conclusion was drawn by the Court from this descriptive term on
the amorphous status of the Federal Republic of Yugoslavia vis-à-vis or
within the United Nations during this period. The Court did not commit
itself to a definitive position on the issue of the legal status of the
Federal Republic of Yugoslavia in relation to the Charter and the Statute in
its pronouncements in incidental proceedings, in the cases involving [p 895]
this issue which came before the Court during this anomalous period. For
example, in certain of the Orders of 2 June 1999 in the present cases on the
request for the indication of provisional measures, the Court, after
examining the contention that the Applicant was not a party to the Statute,
stated that: "Whereas, in view of its finding... 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." (Legality of Use of
Force (Yugoslavia v. Belgium), I.C.J. Reports 1999 (I), p. 136, para. 33.)
74. This situation, however, came to an end with a new development in 2000.
On 24 September 2000, Mr. Kostunica was elected President of the Federal
Republic of Yugoslavia. In that capacity, on 27 October 2000 he sent a
letter to the Secretary-General requesting admission of the Federal Republic
of Yugoslavia to membership in the United Nations, in the following terms:
"In the wake of fundamental democratic changes that took place in the
Federal Republic of Yugoslavia, in the capacity of President, I have the
honour to request the admission of the Federal Republic of Yugoslavia to
membership in the United Nations in light of the implementation of Security
Council resolution 777 (1992)." (United Nations doc. A/55/528-S/2000/1043;
emphasis added.)
75. Acting upon this application by the Federal Republic of Yugoslavia for
membership in the United Nations, the Security Council on 31 October 2000
"recommend[ed] to the General Assembly that the Federal Republic of
Yugoslavia be admitted to membership in the United Nations" (United Nations
doc. S/RES/1326). On 1 November 2000, the General Assembly, by resolution
55/12, "[h]aving received the recommendation of the Security Council of 31
October 2000" and "[h]aving considered the application for membership of the
Federal Republic of Yugoslavia", decided to "admit the Federal Republic of
Yugoslavia to membership in the United Nations".
76. As the letter of the President of the Federal Republic of Yugoslavia
quoted above demonstrates, this action on the part of the Federal Republic
of Yugoslavia signified that it had finally decided to act on Security
Council resolution 777 (1992) by aligning itself with the position of the
Security Council as expressed in that resolution. Furthermore the Security
Council confirmed its own position by taking steps for the admission of the
Federal Republic of Yugoslavia as a new Member of the United Nations, which,
when followed by corresponding steps taken by the General Assembly,
completed the procedure for the admission of a new Member under Article 4 of
the Charter, rather than pursuing any course involving recognition of
continuing membership of the Federal Republic of Yugoslavia in the United
Nations. [p 896]
77. This new development effectively put an end to the sui generis position
of the Federal Republic of Yugoslavia within the United Nations, which, as
the Court has observed in earlier pronouncements, had been fraught with
"legal difficulties" throughout the period between 1992 and 2000 (cf.
Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)),
Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 14,
para. 18). The Applicant thus has the status of membership in the United
Nations as from 1 November 2000. However, its admission to the United
Nations did not have, and could not have had, the effect of dating back to
the time when the Socialist Federal Republic of Yugoslavia broke up and
disappeared; there was in 2000 no question of restoring the membership
rights of the Socialist Federal Republic of Yugoslavia for the benefit of
the Federal Republic of Yugoslavia. At the same time, it became clear that
the sui generis position of the Applicant could not have amounted to its
membership in the Organization.
78. In the view of the Court, the significance of this new development in
2000 is that it has clarified the thus far amorphous legal situation
concerning the status of the Federal Republic of Yugoslavia vis-à-vis the
United Nations. It is in that sense that the situation that the Court now
faces in relation to Serbia and Montenegro is manifestly different from that
which it faced in 1999. If, at that time, the Court had had to determine
definitively the status of the Applicant vis-à-vis the United Nations, its
task of giving such a determination would have been complicated by the legal
situation, which was shrouded in uncertainties relating to that status.
However, from the vantage point from which the Court now looks at the legal
situation, and in light of the legal consequences of the new development
since 1 November 2000, the Court is led to the conclusion that Serbia and
Montenegro was not a Member of the United Nations, and in that capacity a
State party to the Statute of the International Court of Justice, at the
time of filing its Application to institute the present proceedings before
the Court on 29 April 1999.
79. A further point to consider is the relevance to the present case of the
Judgment in the Application for Revision case, of 3 February 2003. There is
no question of that Judgment possessing any force of res judicata in
relation to the present case. Nevertheless, the relevance of that judgment
to the present case has to be examined, inasmuch as Serbia and Montenegro
raised, in connection with its Application for revision, the same issue of
its access to the Court under Article 35, paragraph 1, of the Statute, and
the judgment of the Court was given in 2003 at a time when the new
development described above had come to be known to the Court.
80. On 20 March 1993, the Government of the Republic of Bosnia and
Herzegovina filed in the Registry of the Court an Application instituting [p
897] proceedings against the Government of the Federal Republic of
Yugoslavia in respect of a dispute concerning alleged violations of the
Convention on the Prevention and Punishment of the Crime of Genocide. The
Application invoked Article IX of the Genocide Convention as the basis of
the jurisdiction of the Court.
81. On 30 June 1995, the Federal Republic of Yugoslavia, referring to
Article 79, paragraph 1, of the Rules of Court, raised preliminary
objections concerning the admissibility of the Application and the
jurisdiction of the Court to entertain the case. The Court, in its Judgment
on Preliminary Objections of 11 July 1996, rejected the preliminary
objections raised by the Federal Republic of Yugoslavia, and found inter
alia that "on the basis of Article IX of the Convention on the Prevention
and Punishment of the Crime of Genocide, it has jurisdiction to adjudicate
upon the dispute" (I.C.J. Reports 1996 (II), p. 623). The question of the
status of the Federal Republic of Yugoslavia in relation to Article 35 of
the Statute was not raised and the Court saw no reason to examine it.
82. However, in the wake of the new development in the legal status of the
Federal Republic of Yugoslavia in 2000 mentioned above (paragraphs 74-76),
the Federal Republic of Yugoslavia filed a new Application dated 23 April
2001 instituting proceedings, whereby, referring to Article 61 of the
Statute of the Court, it requested the Court to revise the above-mentioned
Judgment of 11 July 1996. In its Application the Federal Republic of
Yugoslavia contended the following:
"The admission of the FRY to the United Nations as a new Member on 1
November 2000 is certainly a new fact. It can also be demonstrated, and the
Applicant submits, that this new fact is of such a nature as to be a
decisive factor regarding the question of jurisdiction ratione personae over
the FRY.
After the FRY was admitted as new Member on 1 November 2000, dilemmas
concerning its standing have been resolved, and it has become an unequivocal
fact that the FRY did not continue the personality of the SFRY, was not a
Member of the United Nations before 1 November 2000, was not a State party
to the Statute, and was not a State party to the Genocide Convention . . .
The admission of the FRY to the United Nations as a new Member clears
ambiguities and sheds a different light on the issue of the membership of
the FRY in the United Nations, in the Statute and in the Genocide
Convention." (Judgment of 3 February 2003, I.C.J. Reports 2003, p. 12, para.
18.)
83. In its oral argument however, the Federal Republic of Yugoslavia
explained that it did not invoke its admission to the United Nations in
November 2000 as a decisive "new fact", within the meaning of Article 61 of
the Statute, capable of founding its request for revision of the 1996
Judgment. In this context, the Federal Republic of Yugoslavia [p 898]
referred to that admission and a letter of 8 December 2000 from the
Under-Secretary-General and Legal Counsel of the United Nations to the
Minister for Foreign Affairs of the Federal Republic of Yugoslavia,
expressing the view that in respect of multilateral treaties deposited with
the Secretary-General, "the Federal Republic of Yugoslavia should now
undertake treaty actions, as appropriate,...if its intention is to assume
the relevant legal rights and obligations as a successor State". The Federal
Republic of Yugoslavia contended that its admission to the United Nations
"as a new Member" as well as the Legal Counsel's letter of 8 December 2000
were
"events which . . . revealed the following two decisive facts:
(1) the FRY was not a party to the Statute at the time of the Judgment; and
(2) the FRY did not remain bound by Article IX of the Genocide Convention
continuing the personality of the former Yugoslavia".
84. In the proceedings on that Application instituted under Article 61 of
the Statute, it was for the Federal Republic of Yugoslavia to show, inter
alia, the existence of a fact which was, "when the judgment was given" on
the preliminary objections of the Federal Republic of Yugoslavia, i.e. on
11 July 1996, "unknown to the Court and also to the party claiming
revision", this being one of the conditions laid down by Article 61 of the
Statute for the admissibility of an application for revision. The Court was
at this stage concerned simply to establish whether the Federal Republic of
Yugoslavia's Application for revision was admissible in conformity with the
provisions of Article 61 of the Statute. If it had found that it was
admissible, it would have given a judgment "expressly recording the
existence of the new fact" in accordance with Article 61, paragraph 2, of
the Statute, and further proceedings would have been held, in accordance
with Article 99 of the Rules of Court, "on the merits of the application".
85. In the Judgment in the Application for Revision case, the Court found
the Application for revision inadmissible. It is to be noted that the Court
observed specifically that:
"In advancing this argument, the FRY does not rely on facts that existed in
1996. In reality, it bases its Application for revision on the legal
consequences which it seeks to draw from facts subsequent to the Judgment
which it is asking to have revised. Those consequences, even supposing them
to be established, cannot be regarded as facts within the meaning of Article
61. The FRY's argument cannot accordingly be upheld." (I.C.J. Reports 2003,
pp. 30-31, para. 69; emphasis added)
86. Thus the Court did not regard the alleged "decisive facts" specified by
Serbia and Montenegro as "facts that existed in 1996" for the purpose [p
899] of Article 61. The Court therefore did not have to rule on the question
whether "the legal consequences" could indeed legitimately be deduced from
the later facts; in other words, it did not have to say whether it was
correct that Serbia and Montenegro had not been a party to the Statute or to
the Genocide Convention in 1996. It is for this reason that the Court
included in its Judgment the words now italicized in the above quotation.
87. In its Judgment the Court went on to state that:
"Resolution 47/1 did not inter alia affect the FRY's right to appear before
the Court or to be a party to a dispute before the Court under the
conditions laid down by the Statute...To 'terminate the situation created
by resolution 47/1', the FRY had to submit a request for admission to the
United Nations as had been done by the other Republics composing the SFRY.
All these elements were known to the Court and to the FRY at the time when
the Judgment was given. Nevertheless, what remained unknown in July 1996 was
if and when the FRY would apply for membership in the United Nations and if
and when that application would be accepted, thus terminating the situation
created by General Assembly resolution 47/1." (I.C.J. Reports 2003, p. 31,
para. 70.)
On the critical question of the Federal Republic of Yugoslavia's admission
to the United Nations as a new Member, the Court emphasized that
"General Assembly resolution 55/12 of 1 November 2000 cannot have changed
retroactively the sui generis position which the FRY found itself in
vis-à-vis the United Nations over the period 1992 to 2000, or its position
in relation to the Statute of the Court and the Genocide Convention" (ibid.,
para. 71).
These statements cannot however be read as findings on the status of Serbia
and Montenegro in relation to the United Nations and the Genocide
Convention; the Court had already implied that it was not called upon to
rule on those matters, and that it was not doing so.
88. In the immediately following paragraph of the Judgment, the Court
stated:
"It follows from the foregoing that it has not been established that the
request of the FRY is based upon the discovery of 'some fact' which was
'when the judgment was given, unknown to the Court and also to the party
claiming revision'. The Court therefore con-cludes that one of the
conditions for the admissibility of an application for revision prescribed
by paragraph 1 of Article 61 of the Statute has not been satisfied." (Ibid.,
para. 72.) [p 900]
The Court thus made its position clear that there could have been no
retroactive modification of the situation in 2000, which would amount to a
new fact, and that therefore the conditions of Article 61 were not
satisfied. This, however, did not entail any finding by the Court, in the
revision proceedings, as to what that situation actually was.
89. Given the specific characteristics of the procedure under Article 61 of
the Statute, in which the conditions for granting an application for
revision of a judgment are strictly circumscribed, there is no reason to
treat the Judgment in the Application for Revision case as having
pronounced upon the issue of the legal status of Serbia and Montenegro
vis-à-vis the United Nations. Nor does the Judgment pronounce upon the
status of Serbia and Montenegro in relation to the Statute of the Court.
90. For all these reasons, the Court concludes that, at the time of filing
of its Application to institute the present proceedings before the Court on
29 April 1999, the Applicant in the present case, Serbia and Montenegro, was
not a Member of the United Nations, and, consequently, was not, on that
basis, a State party to the Statute of the International Court of Justice.
It follows that the Court was not open to Serbia and Montenegro under
Article 35, paragraph 1, of the Statute.
***
91. The Court will now consider whether it might be open to Serbia and
Montenegro under paragraph 2 of Article 35, which provides that:
"The conditions under which the Court shall be open to other States [i.e.
States not parties to the Statute] shall, subject to the special provisions
contained in treaties in force, be laid down by the Security Council, but in
no case shall such conditions place the parties in a position of inequality
before the Court."
The conditions of access provided for in this text were laid down by the
Security Council in resolution 9 (1946); but Serbia and Montenegro has not
invoked that resolution, nor brought itself within the terms laid down
therein.
92. The Court notes that the Applicant, in the present case, has not in fact
claimed that the Court is open to it under paragraph 2 of Article 35, but
has based its right of access to the Court solely on paragraph 1 of the
Article. However, in some of the cases concerning Legality of Use of Force,
including the present one, the Respondent has in its preliminary objections,
or in oral argument, raised the question of the possible application of
paragraph 2, in order to contend that Serbia and Montenegro may not rely
upon that text. In this context, reference has been made to an Order of the
Court in another case, in which the provisional view was expressed that
Article IX of the Genocide Convention could be [p 901] considered as a
special provision contained in a treaty in force. The Court is therefore of
the view that in the circumstances of this case it is appropriate for it to
examine the possible application of paragraph 2 of Article 35.
93. In its Order of 8 April 1993 in the Genocide Convention case, the Court,
after quoting paragraph 2 of Article 35, stated that
"the Court therefore considers that proceedings may validly be instituted
by a State against a State which is a party to such a special provision in a
treaty in force, but is not party to the Statute, and independently of the
conditions laid down by the Security Council in its resolution 9 of 1946
(cf. S.S. "Wimbledon", 1923, P.C.I.J., Series A, No. 1, p. 6); whereas a
compromissory clause in a multilateral convention, such as Article IX of
the Genocide Convention relied on by Bosnia-Herzegovina in the present case,
could, in the view of the Court, be regarded prima facie as a special
provision contained in a treaty in force; whereas accordingly if
Bosnia-Herzegovina and Yugoslavia are both parties to the Genocide
Convention, disputes to which Article IX applies are in any event prima
facie within the jurisdiction ratione personae of the Court" (I.C.J. Reports
1993, p. 14, para. 19; emphasis added).
In the further proceedings in that case, however, this point was not
pursued; the Court rejected the preliminary objections raised by the
Respondent in that case, one of them being that the Republic of Bosnia and
Herzegovina had not become a party to the Genocide Convention. The
Respondent however did not raise any objection on the ground that it was
itself not a party to the Genocide Convention, nor to the Statute of the
Court since, on the international plane, it had been maintaining its claim
to continue the legal personality, and the membership in international
organizations including the United Nations, of the Socialist Federal
Republic of Yugoslavia, and its participation in international treaties. The
Court, having observed that it had not been contested that Yugoslavia was
party to the Genocide Convention (I.C.J. Reports 1996 (II), p. 610, para.
17) found that it had jurisdiction on the basis of Article IX of that
Convention.
94. As in respect of the questions of dismissal of the case in limine litis
and access under paragraph 1 of Article 35 (see paragraphs 26 and 52 above),
the Court will consider the arguments put forward in this case and any other
legal issue which it deems relevant to consider, including the issues raised
in the other cases referred to in paragraph 3, with a view to arriving at
its conclusion regarding the possible access to the Court by Serbia and
Montenegro under Article 35, paragraph 2, of the Statute. [p 902]
95. A number of Respondents contended in their pleadings that the reference
to the "treaties in force" in Article 35, paragraph 2, of the Statute
relates only to treaties in force when the Statute of the Court entered into
force, i.e. on 24 October 1945. In respect of the observation made by the
Court in its Order of 8 April 1993, quoted in paragraph 93 above, the
Respondents pointed out that that was a provisional assessment, not
conclusive of the matter, and considered that "there [were] persuasive
reasons why the Court should revisit the provisional approach it adopted to
the interpretation of this clause in the Genocide Convention case"
(Preliminary Objections of Belgium, p. 73, para. 222). In particular they
referred to the "evident focus of the clause in question on the peace
treaties concluded after the First World War", and argued that to construe
the phrase of Article 35, paragraph 2, of the Statute, "the special
provisions contained in treaties in force", as meaning "jurisdictional
clauses contained in treaties in force" (i.e., any treaties whatever) would
"fundamentally undermine the scheme of the Statute and the distinction
between access to the Court and the jurisdiction of the Court in particular
cases". Such interpretation would, according to Belgium, "place States not
party to the Statute in a privileged position as they would have access to
the Court without any assumption of the obligations...required of States to
which the Court is open" (Preliminary Objections of Belgium, p. 73, para.
223), or according to the United Kingdom "would... place them in a
privileged position by giving them access to the Court without requiring
them to meet the conditions normally imposed as a prerequisite to access to
the Court" (Preliminary Objections of the United Kingdom, p. 40, para.
3.32).
96. During the oral proceedings these arguments were maintained and
reiterated by certain Respondents. Belgium argued that "[t]he Application
instituting proceedings...fell comprehensively outside the jurisdictional
framework of the Court under Articles 35, 36 and 37 of the Statute at the
point at which the proceedings were instituted". It elaborated further that
"[i]n the Genocide Convention case, the controlling consideration is that
the FRY did not contest jurisdiction on the ground that it was not a Member
of the United Nations" and continued that Serbia and Montenegro "cannot rely
on its acquiescence as respondent in one case in order to found jurisdiction
as Applicant in this case". Belgium concluded that it "relie[d] on both the
letter and the spirit of Article 35 of the Statute" and "[did] not acquiesce
to the bringing of a claim against it by an applicant for whom the Court was
not open at the relevant time" (emphasis added).
Italy observed that
"the question is still whether the Court could...regard itself as having
jurisdiction ratione personarum pursuant to Article 35, para-[p 903] graph
2, because Serbia and Montenegro was allegedly a party to a 'treaty in
force' laying down the jurisdiction of the Court".
Italy recalled the arguments on this issue in its second preliminary
objection, and emphasized that,
"[i]n particular, Italy maintained that the mere presence of a clause
conferring jurisdiction in a treaty in force between two States, one of
which, the Applicant, is not at the same time a party to the Statute, could
not give that State the right to appear before the Court, unless it met the
conditions laid down by the Security Council in its resolution No. 9 of 15
October 1946. This Serbia and Montenegro has not done and does not claim
ever to have done."
97. The Court notes that the passage quoted above (paragraph 93) from the
1993 Order in the Genocide Convention case was addressed to the situation in
which the proceedings were instituted against a State the membership of
which in the United Nations and status of a party to the Statute was
unclear. Bosnia and Herzegovina in its Application in that case maintained
that "the Federal Republic of Yugoslavia (Serbia and Montenegro)" was a
Member of the United Nations and a party to the Statute and at the same time
indicated in the Application that the "continuity" of Yugoslavia with the
former Socialist Federal Republic of Yugoslavia, a Member of the United
Nations, "has been vigorously contested by the entire international
community,... including by the United Nations Security Council...as well as
by the General Assembly" (I.C.J. Reports 1993, p. 12, para. 15). The Order
of 8 April 1993 was made in a different case; but as the Court observed in a
previous case in which questions of res judicata and Article 59 of the
Statute were raised, "[t]he real question is whether, in this case, there is
cause not to follow the reasoning and conclusions of earlier cases" (Land
and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria),
Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 292, para. 28).
98. The Order of 8 April 1993 was made on the basis of an examination of
the relevant law and facts in the context of incidental proceedings on a
request for the indication of provisional measures. It would therefore now
be appropriate for the Court to make a definitive finding on the question
whether Article 35, paragraph 2, affords access to the Court in the present
case, and for that purpose, to examine further the question of its
applicability and interpretation.
99. The Court will thus proceed to the interpretation of Article 35,
paragraph 2, of the Statute, and will do so in accordance with customary
international law, reflected in Article 31 of the 1969 Vienna Convention on
the Law of Treaties. According to paragraph 1 of Article 31, a treaty [p
904] must be interpreted in good faith in accordance with the ordinary
meaning to be given to its terms in their context and in the light of the
treaty's object and purpose. Interpretation must be based above all upon the
text of the treaty. As a supplementary measure recourse may be had to means
of interpretation such as the preparatory work of the treaty and the
circumstances of its conclusion.
100. Article 35, paragraph 2, refers to "the special provisions contained
in treaties in force", in the context of the question of access to the
Court. Taking the natural and ordinary meaning of the words "special
provisions", the reference must in the view of the Court be to treaties that
make "special provision" in relation to the Court, and this can hardly be
anything other than provision for the settlement of disputes between the
parties to the treaty by reference of the matter to the Court. As for the
words "treaties in force", in their natural and ordinary meaning they do not
indicate at what date the treaties contemplated are to be in force, and thus
they may lend themselves to different interpretations. One can construe
those words as referring to treaties which were in force at the time that
the Statute itself came into force, as was contended by certain Respondents;
or to those which were in force on the date of the institution of
proceedings in a case in which such treaties are invoked. In favour of this
latter interpretation, it may be observed that the similar expression
"treaties and conventions in force" is found in Article 36, paragraph 1, of
the Statute, and the Court has interpreted it in this sense (for example,
Questions of Interpretation and 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.
16, para. 19). The expression "treaty or convention in force" in Article 37
of the Statute has also been read as meaning in force at the date
proceedings were instituted (Barcelona Traction, Light and Power Company,
Limited, Preliminary Objections, Judgment, I.C.J. Reports 1964, p. 27).
101. The object and purpose of Article 35 of the Statute is to define the
conditions of access to the Court. While paragraph 1 of that Article opens
it to the States parties to the Statute, paragraph 2 is intended to regulate
access to the Court by States which are not parties to the Statute. The
conditions of access of such States are, "subject to the special provisions
contained in treaties in force", to be determined by the Security Council,
with the proviso that in no case shall such conditions place the parties in
a position of inequality before the Court. The Court considers that it was
natural to reserve the position in relation to any relevant treaty
provisions that might then exist; moreover, it would have been inconsistent
with the main thrust of the text to make it possible in the future for
States to obtain access to the Court simply by the conclusion between
themselves of a special treaty, multilateral or bilateral, containing a
provision to that effect.
102. The first interpretation, according to which Article 35, para-[p
905]graph 2, refers to treaties in force at the time that the Statute came
into force, is in fact reinforced by an examination of the travaux
préparatoires of the text. Since the Statute of the Permanent Court of
International Justice contained substantially the same provision, which was
used as a model when the Statute of the present Court was drafted, it will
be necessary to examine the drafting history of both Statutes. The text
proposed by the 1920 Committee of Jurists (as Article 32 of its draft) was
as follows:
"The Court shall be open of right to the States mentioned in the Annex to
the Covenant, and to such others as shall subsequently enter the League of
Nations.
Other States may have access to it.
The conditions under which the Court shall be open of right or accessible to
States which are not Members of the League of Nations shall be determined by
the Council, in accordance with Article 17 of the Covenant." (League of
Nations, Permanent Court of International Justice, Documents concerning the
action taken by the Council of the League of Nations under Article 14 of the
Covenant and the adoption by the Assembly of the Statute of the Permanent
Court, p. 78.)
103. During the consideration of this text by the Sub-Committee of the
Third-Committee of the First Assembly Meeting of the League of Nations it
was pointed out "that under the Treaties of Peace the Central Powers would
often be Parties before the Court" and that "[t]he text of the draft does
not take sufficient account of this fact" and it was proposed suppressing
the first two paragraphs of the Article (ibid., p. 141).
A question was raised "whether the Council might place conditions on the
admission of Germany before the Court, for example in the case mentioned in
Article 380 of the Treaty of Versailles" to which a negative response was
given. Then the Chairman proposed to entrust a small committee with the
task of drafting a new formula for Article 32 which
"should act upon the three following principles, upon which the
Sub-Committee was agreed:
1. The Council shall have the power of determining conditions for the
admission before the Court of States which are not Members of the League of
Nations.
2. The rights of the Parties before the Court are equal.
3. Account shall be taken of Parties who may present themselves before the
Court by virtue of the Treaties of Peace." (Ibid., p. 141; emphasis added.)
104. The Sub-Committee received from the three delegates entrusted with this
task a proposal for a new text of Article 32 as follows: [p 906]
"Article 32
1st paragraph: No change.
The conditions under which the Court shall be open to other States shall,
subject to special provisions contained in treaties in force, be laid down
by the Council.
When a State which is not a Member of the League of Nations is a party to a
dispute, the Court will fix the amount which that party shall contribute
towards the expenses of the Court."
105. The Court notes that it is here, that for the first time in the
legislative history of what later became Article 35, paragraph 2, the phrase
"subject to the special provisions contained in treaties in force" appeared.
It may safely be assumed that this phrase was inserted into the text as a
response to principle 3 referred to above.
106. When the text was presented to the Sub-Committee, the Chairman
recalled the proposal made at the previous meeting, to add to Article 32 a
provision stating that, as far as party rights are concerned, all States are
equal before the Court. In order to meet this objection of the Chairman and
of the author of that proposal, one of the three coauthors of the proposed
text of Article 32 suggested making the following addition to the second
paragraph of Article 32:
"The conditions under which the Court shall be open to other States shall,
subject to the special provisions contained in treaties in force, be laid
down by the Council, but in no case shall such provision place the parties
in a position of inequality before the Court." (League of Nations, op. cit.,
p. 144.)
The second paragraph thus amended was adopted without any further
discussion.
107. In the report presented to the Assembly by the Third Committee, it was
stated that:
"The wording of this Article [i.e. the original draft Article 32] seemed
lacking in clearness, and the Sub-Committee has re-cast it in an effort to
express clearly [that]
………………………………………………………………………………………………
The access of other States to the Court will depend either on the special
provisions of the Treaties in force (for example the provisions of the
Treaty of Peace concerning the right of minorities, labour, etc.) or else on
a resolution of the Council." (Ibid., p. 210.)
108. Before the Permanent Court of International Justice, the issue arose on
two occasions. In the S.S. "Wimbledon" case (1923, P.C.I.J., Series A, No.
1, p. 6) the jurisdiction of the Court was founded on Article 386 of the
Treaty of Versailles of 28 June 1919. When the proceedings were instituted
in that case against Germany, that State was not a Member of the League of
Nations nor was it mentioned in the [p 907] Annex to the Covenant. A
declaration by Germany accepting the jurisdiction of the Court was not
considered as necessary, in light of the reservation contained in Article
35, paragraph 2, of the Statute which was intended, as shown above
(paragraphs 103-105), to cover special provisions in the Peace Treaties.
In the case concerning Certain German Interests in Polish Upper Silesia
(1925, P.C.I.J., Series A, No. 6), the proceedings were instituted by
Germany, before its admission to the League of Nations, against Poland on
the basis of Article 23 of the Convention relating to Upper Silesia of 15
May 1922 and brought into force on 3 June 1922. The Court noted that Poland
"[did] not dispute the fact that the suit has been duly submitted to the
Court in accordance with Articles 35 and 40 of the Statute" (ibid., p. 11).
The Court, before rendering its judgment, considered the issue and
"was of the opinion that the relevant instruments when correctly
interpreted (more especially in the light of a report made by M. Hagerup at
the First Assembly of the League of Nations) authorized it in accepting the
German Government's application without requiring the special declaration
provided for in the Council Resolution" (Annual Report of the Permanent
Court of International Justice (1 January 1922-15 June 1925), P.C.I.J.,
Series E, No. 1, p. 261).
Further, it is to be noted that when the Court was discussing amendments of
its Rules of Court a year later, two judges expressed the view that the
exception in Article 35 "could only be intended to cover situations provided
for by the treaties of peace" (Acts and Documents (1926), P.C.I.J., Series
D, No. 2, Add., p. 106). One of them explained that, in the case concerning
Certain German Interests in Polish Upper Silesia,
"the question then related to a treaty — the Upper Silesian Convention —
drawn up under the auspices of the League of Nations which was to be
considered as supplementary to the Treaty of Versailles. It was therefore
possible to include the case in regard to which the Court had then to decide
in the general expression 'subject to treaties in force', whilst construing
that expression as referring to the peace treaties . . ." (Ibid., p. 105.)
No other interpretation of the phrase at issue was advanced by any Member of
the Court when in 1926 it discussed the amendment of its Rules.
109. When the Charter of the United Nations and the Statute of the Court
were under preparation, the issue was first discussed by the United Nations
Committee of Jurists. In the debate, some confusion apparently arose
regarding the difference between a non-Member State which may become party
to the Statute and one which may become party to a case before the Court.
Some delegates did not make a clear distinction between adherence to the
Statute and access to the Court. The debate mostly con–[p 908]centrated on
the respective roles of the General Assembly and the Security Council in
that context: there was some criticism that the Assembly was excluded from
action under paragraph 2 of Article 35 (Documents of the United Nations
Conference on International Organization, Vol. XIV, pp. 141-145). A proposal
was made to adopt paragraph 2 as it stood, but some delegates continued to
argue for a role of the Assembly to be recognized in that paragraph. The
United Kingdom suggested that there might be inserted in paragraph 2, after
the words "Security Council", the phrase "in accordance with any principles
which may have been laid down by the General Assembly".
A proposal was then again made to adopt the Article as contained in the
draft. Thereupon the delegate of France observed that "it lay within the
power of the Council to determine conditions in particular cases but the
actual practice had not given cause for criticism". He then continued:
"The Council could not restrict access to the Court when the Assembly
permitted it, but the Council could be more liberal in particular cases.
The decision of the Assembly was actually the more important, and the
Council could not go against it. The Council furthermore would have to take
into account any existing treaties, and it could not prevent access to the
Court when a State had a treaty providing for compulsory jurisdiction."
(Ibid., p. 144.)
He then proposed that Article 35 be adopted as it stood; no further
substantive discussion followed, and Article 35 was adopted.
110. The report on the draft of the Statute of an International Court of
Justice submitted by the United Nations Committee of Jurists to the United
Nations Conference on International Organization at San Francisco noted in
respect of Article 35 merely that:
"Aside from the purely formal changes necessitated by references to The
United Nations Organization instead of to the Covenant of the League of
Nations, Article 35 is amended only in that, in the English text of
paragraph 2, the word 'conditions' is substituted for the word 'provisions'
and in paragraph 3, the word 'case' is substituted for the word 'dispute'
which will assure better agreement with the French text." (Ibid., p. 839.)
Since the draft Statute of this Court was based on the Statute of the
Permanent Court of International Justice, the report did not indicate any
change in respect of the scope of the applicability of Article 35, paragraph
2.
111. At the San Francisco Conference, the question here examined was not
touched upon; the discussion of draft Article 35 focused mainly on a
proposal by Egypt to insert a new paragraph 2 stating "[t]he conditions
under which states not members may become parties to the Statute of the
Court shall be determined in each case by the General Assembly [p 909] upon
recommendation of the Security Council" (Documents of the United Nations
Conference on International Organization, Vol. XIII, p. 484). In the debate
in Committee IV/1 of the Conference,
"[i]t was pointed out that the question as to what states are to be parties
to the Statute should be decided in the Charter, while the question as to
what states may appear before the Court in the case, once the Court is
established, should be determined by the Statute" (ibid., p. 283).
The Egyptian proposal was not pursued but the essence of it was reflected in
Article 93, paragraph 2, of the Charter.
112. The Court considers that the legislative history of Article 35,
paragraph 2, of the Statute of the Permanent Court demonstrates that it was
intended as an exception to the principle stated in paragraph 1, in order to
cover cases contemplated in agreements concluded in the aftermath of the
First World War before the Statute entered into force. However, the travaux
préparatoires of the Statute of the present Court are less illuminating. The
discussion of Article 35 was provisional and somewhat cursory; it took place
at a stage in the planning of the future international organization when it
was not yet settled whether the Permanent Court would be preserved or
replaced by a new court. Indeed, the records quoted in paragraphs 109 to 111
above do not include any discussion which would suggest that Article 35,
paragraph 2, of the Statute should be given a different meaning from the
corresponding provision in the Statute of the Permanent Court. It would
rather seem that the text was reproduced from the Statute of the Permanent
Court; there is no indication that any extension of access to the Court was
intended.
Accordingly Article 35, paragraph 2, must be interpreted, mutatis mutandis,
in the same way as the equivalent text in the Statute of the Permanent
Court, namely as intended to refer to treaties in force at the date of the
entry into force of the new Statute, and providing for the jurisdiction of
the new Court. In fact, no such prior treaties, referring to the
jurisdiction of the present Court, have been brought to the attention of the
Court, and it may be that none existed. In the view of the Court, however,
neither this circumstance, nor any consideration of the object and purpose
of the text, nor the travaux préparatoires, offer support to the alternative
interpretation that the provision was intended as granting access to the
Court to States not parties to the Statute without any condi-tion other than
the existence of a treaty, containing a clause conferring jurisdiction on
the Court, which might be concluded any time subsequently to the entry into
force of the Statute. As noted above (paragraph 101), this interpretation
would lead to a result quite incompatible with the object and purpose of
Article 35, paragraph 2, namely the regulation of access to the Court by
States non-parties to the Statute. In the view of the Court therefore, the
reference in Article 35, paragraph 2, of [p 910] the Statute to "the special
provisions contained in treaties in force" applies only to treaties in force
at the date of the entry into force of the Statute, and not to any treaties
concluded since that date.
113. The Court thus concludes that, even assuming that Serbia and Montenegro
was a party to the Genocide Convention at the relevant date, Article 35,
paragraph 2, of the Statute does not provide it with a basis to have access
to the Court, under Article IX of that Convention, since the Convention only
entered into force on 12 January 1951, after the entry into force of the
Statute (see paragraph 112 above). The Court does not therefore consider it
necessary to decide whether Serbia and Montenegro was or was not a party to
the Genocide Convention on 29 April 1999 when the current proceedings were
instituted.
***
114. The conclusion which the Court has reached, that Serbia and Montenegro
did not, at the time of the institution of the present proceedings, have
access to the Court under either paragraph 1 or paragraph 2 of Article 35 of
the Statute, makes it unnecessary for the Court to consider the other
preliminary objections filed by the Respondents to the jurisdiction of the
Court (see paragraph 45 above).
***
115. Finally, the Court would recall, as it has done in other cases and in
the Order on the request for the indication of provisional measures in the
present case, the fundamental distinction between the existence of the
Court's jurisdiction over a dispute, and the compatibility with
international law of the particular acts which are the subject of the
dispute (see Legality of Use of Force (Yugoslavia v. Italy), Provisional
Measures, Order of2 June 1999, I.C.J. Reports 1999 (I), p. 492, para. 35).
Whether or not the Court finds that it has jurisdiction over a dispute, the
parties "remain in all cases responsible for acts attributable to them that
violate the rights of other States" (see Fisheries Jurisdiction (Spain v.
Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 456,
paras. 5556; Aerial Incident of 10 August 1999 (Pakistan v. India),
Jurisdiction, Judgment, I.C.J. Reports2000, p. 33, para. 51). When, however,
as in the present case, the Court comes to the conclusion that it is without
jurisdiction to entertain the claims made in the Application, it can make
no finding, nor any observation whatever, on the question whether any such
violation has been committed or any international responsibility incurred.
***[p 911]
116. For these reasons,
The Court,
Unanimously,
Finds that it has no jurisdiction to entertain the claims made in the
Application filed by Serbia and Montenegro on 29 April 1999.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this fifteenth day of December, two thousand and
four, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of Serbia and Montenegro
and the Government of the Italian Republic, respectively.
(Signed) Shi Jiuyong,
President
(Signed) Philippe Couvreur,
Registrar
Vice-President Ranjeva and Judges Guillaume, Higgins, Kooijmans,
Al-Khasawneh, Buergenthal and Elaraby append a joint declaration to the
Judgment of the Court; Judge Koroma appends a declaration to the Judgment of
the Court; Judges Higgins, Kooijmans and Elaraby and Judge ad hoc Kreca
append separate opinions to the Judgment of the Court.
(Initialled) J.Y.S.
(Initialled) Ph.C.
[p 912]
JOINT DECLARATION OF VICE-PRESIDENT RANJEVA, JUDGES GUILLAUME, HIGGINS,
KOOIJMANS, AL-KHASAWNEH, BUERGENTHAL AND ELARABY
[English Original Text]
Various objections to the jurisdiction of the Court — Freedom of choice of
the Court — Guiding criteria: consistency; certitude; implications for the
other pending cases — Judgment of the Court inappropriately based on its
lack of jurisdiction ratione personae — Judgment incompatible with previous
decisions of the Court.
1. We have voted in favour of the dispositif of the Judgment because, at the
end of the day, we each agree that this case cannot, as a matter of law,
proceed to the merits. Nevertheless, we profoundly disagree with the
reasoning upon which the Judgment rests, in particular the ground upon which
the Court has found it has no jurisdiction.
2. It is not unusual that, in a case, the Court has the possibility of
determining its jurisdiction on more than one ground (Right of Passage over
Indian Territory, Preliminary Objections, Judgment, I.C.J Reports 1957, pp.
129-134; Aerial Incident of 27 July 1955 (Israel v. Bulgaria), Judgment,
I.C.J. Reports 1959, pp. 132-134; Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections,
Judgment, I.C.J Reports 1998, pp. 284-289; Aerial Incident of 10 August 1999
(Pakistan v. India), Jurisdiction, Judgment, I.C.J. Reports 2000, pp.
19-24). Submissions may have been made to the Court that it lacks
jurisdiction by reference to more than one of the common bases of
jurisdiction (that is to say, ratione personae, ratione materiae, ratione
temporis). If the Court finds that, on two or more grounds, its jurisdiction
is not well founded, it may choose the most appropriate ground on which to
base its decision of lack of competence. The Court does not necessarily
first have to dispose of the conditions laid down in Article 35 of the
Statute, dealing only later with the conditions laid down in Articles 36 and
37.
3. The choice of the Court has to be exercised in a manner that reflects its
judicial function. That being so, there are three criteria that must guide
the Court in selecting between possible options. First, in exercising its
choice, it must ensure consistency with its own past case law in order to
provide predictability. Consistency is the essence of judicial reasoning.
This is especially true in different phases of the same case or with regard
to closely related cases. Second, the principle of certitude will lead the
Court to choose the ground which is most secure in law and to avoid a ground
which is less safe and, indeed, perhaps doubtful. Third, as the principal
judicial organ of the United Nations, the Court will, in making [p 913] its
selection among possible grounds, be mindful of the possible implications
and consequences for the other pending cases.
4. In the earlier phase of the present case — as in other cases relating to
events after the break-up of the Socialist Federal Republic of Yugoslavia —
the Court had chosen to base itself on jurisdictional considerations
ratione temporis and ratione materiae.
5. In this respect it should first be recalled that when the Court gave an
Order of 2 June 1999, in response to a request by the Federal Republic of
Yugoslavia for the indication of provisional measures, in which it found
that it lacked prima facie jurisdiction to rule on Yugoslavia's
Application, it did so on quite different grounds from the one on which the
Court has based itself in the present decision.
6. In the Orders concerning Belgium, Canada, Netherlands, Portugal and the
United Kingdom, the Court observed that Yugoslavia's declaration accepting
the compulsory jurisdiction of the Court under Article 36, paragraph 2, of
the Statute, had been filed with the United Nations Secretary-General on 26
April 1999 (three days before the institution of proceedings). In that
declaration, Yugoslavia recognized, on condition of reciprocity, "the
jurisdiction of the said Court in all disputes arising or which may arise
after the signature of the present Declaration, with regard to the
situations or facts subsequent to this signature".
The Court found that the Application was directed, in essence, against the
bombing of Yugoslav territory by several members of NATO. It observed that
the bombings began on 24 March 1999. Accordingly, it considered that the
disputes before it had arisen some time prior to 25 April 1999. The Court
further recalled its established jurisprudence whereby 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"
and concluded from this that the declaration of Yugoslavia, taken in
conjunction with those made by the Parties which had also accepted the
Court's jurisdiction under Article 36, paragraph 2, of the Statute, did not
constitute a basis on which its jurisdiction could prima facie be founded
(see, for example, case concerning Legality of Use of Force (Yugoslavia v.
Belgium), Order of 2 June 1999, I.C.J. Reports 1999 (I), p. 135, para. 30).
The Court, thus lacking prima facie jurisdiction ratione temporis,
concluded that it did not need to examine whether Yugoslavia was or was not
a Member of the United Nations and a party to the Statute in 1999, or
whether on such basis it had jurisdiction ratione personae.
7. In all the Orders, the Court next noted that Yugoslavia and certain of
the respondent States were parties to the United Nations Genocide Convention
without reservation. It recalled the definition of genocide as stated in the
Convention and observed that, according to that definition, [p 914]
"[the] essential characteristic [of genocide] is the intended destruction of
'a national, ethnical, racial or religious group'" (I.C.J. Reports 1999 (I),
p. 138, para. 40). In the Court's view, it did 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'" (ibid., p. 138, para. 40).
8. Based on different reasoning, the Court has now confirmed that it lacks
jurisdiction to entertain the claims presented by Serbia and Montenegro. It
began by finding that Serbia and Montenegro, on 29 April 1999, was not a
Member of the United Nations and not a party to the Statute. It concluded
therefrom that the Court was not open to Serbia and Montenegro under Article
35, paragraph 1, of the Statute.
Moreover, the Court considered that Article 35, paragraph 2, of the Statute
enabled States not parties to the Statute to appear before the Court only by
virtue of treaties concluded prior to the entry into force of the Statute.
It observed that the Genocide Convention entered into force at a later date,
on 12 January 1951. It thus concluded that Article 35, paragraph 2, did not
grant Serbia and Montenegro access to the Court under Article IX of the
Convention. Accordingly, the Court was not called upon to decide "whether
Serbia and Montenegro was or was not a party to the Genocide Convention"
when the Applications were filed. In any event, the Court was, once again,
not open to Serbia and Montenegro.
In sum, and contrary to its position in 1999, the Court has thus preferred
to rule on its jurisdiction ratione personae, without even examining the
questions of jurisdiction ratione temporis and ratione materiae on which it
had previously pronounced prima facie.
9. This change of position is all the more surprising as the reasoning now
adopted by the Court is at odds with judgments or orders previously rendered
by the Court.
10. We would first observe that the question whether Yugoslavia was a Member
of the United Nations and as such a party to the Statute between 1992 and
2000, remained a subject of debate during that period. The Court declined to
settle the issue, both in 1993 (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, I.C.J.
Reports 1993, p. 14, para. 18) and in 1999 when issuing its Order on
provisional measures (Legality of Use of Force (Yugoslavia v. Belgium),
Order of 2 June 1999, I.C.J. Reports 1999 (I), p. 136, para. 33). It then
confined itself to stating that the solution adopted in this respect by
Security Council resolution 757 (1992) and General Assembly resolution 47/1
was "not free from legal difficulties" (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia (Serbia and [p 915] Montenegro)), Provisional Measures, I.C.J.
Reports 1993,p.14, para. 18).
Subsequent to the admission of Serbia and Montenegro to the United Nations
on 1 November 2000, the Court had to consider the question whether that
admission clarified the previous position. The Court then found, in its
Judgment of 3 February 2003, that
"resolution 47/1 did not inter alia affect the Federal Republic of
Yugoslavia's right to appear before the Court or to be a party to a dispute
before the Court under the conditions laid down by the Statute"
(Application for Revision of the Judgment of 11 July 1996 in the Case
concerning Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
Objections (Yugoslavia v. Bosnia and Herzegovina), I.C.J. Reports 2003, p.
31, para. 70).
The Court added that
"General Assembly resolution 55/12 of 1 November 2000 cannot have changed
retroactively the sui generis position which the Federal Republic of
Yugoslavia found itself in vis-à-vis the United Nations over the period 1992
to 2000, or its position in relation to the Statute of the Court" (ibid.,
para. 71).
The Court thus previously found in 2003 that the Federal Republic of
Yugoslavia could appear before the Court between 1992 and 2000 and that
this position was not changed by its admission to the United Nations in
2002.
11. Further, the interpretation given in the present Judgment of Article 35,
paragraph 2, of the Statute also appears to us to be at odds with the
position previously adopted by the Court in its Order of 8 April 1993, where
it considered that
"proceedings may validly be instituted by a State against a State which is a
party to such a special provision in a treaty in force, but is not party to
the Statute, and independently of the conditions laid down by the Security
Council in its resolution 9 of 1946" (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8
April 1993, I.C.J. Reports 1993, p. 14, para. 19).
It is moreover astonishing that the Court found it necessary to rule on the
scope of Article 35, paragraph 2, whereas the Applicant did not invoke this
text.
12. Turning to the second criterion that the Court should apply in selecting
between alternative grounds for its decision — that of certitude — we also
find this not to be reflected in the ground chosen by the Court today.
Nothing has occurred, in the series of cases concerning Kosovo, since the
Court's last judgment in 2003, to suggest that the [p 916] grounds
previously chosen have now lost legal credibility. Further, the grounds
today selected by the Court are less certain than others open to it. The
Court has determined that the admission of the Applicant to the United
Nations in November 2000 "did not have, and could not have had, the effect
of dating back to the time when the Socialist Federal Republic of Yugoslavia
broke up and disappeared" (para. 77). The Court has also stated that "the
significance of this new development in 2000 is that it has clarified the
thus far amorphous legal situation concerning the status of the Federal
Republic of Yugoslavia vis-à-vis the United Nations" (para. 78). Without
specifying whether this "clarification" refers to the period 1992-2000, the
Court asserts that it has now become "clear that the sui generis position of
the Applicant could not have amounted to its membership in the
Organization". We find this proposition far from self-evident and we cannot
trace the steps of the reasoning. Such grounds seem to us to be less legally
compelling and therefore less certain, and more open to different points of
view, than the grounds relied upon by the Court thus far and which are now
set aside by the Court.
13. We have referred also to the care that the Court must have, in selecting
one among several possible grounds for a decision on jurisdiction, for the
implications and possible consequences for other cases. In that sense, we
believe that paragraph 39 of the Judgment does not adequately reflect the
proper role of the Court as a judicial institution. The Judgment thus goes
back on decisions previously adopted by the Court, whereas it was free to
choose the ground upon which to base them and was under no obligation to
rule in the present case on its jurisdiction ratione personae. Moreover,
this approach appears to leave some doubt as to whether Yugoslavia was a
party, between 1992 and 2000, to the United Nations Genocide Convention.
Such an approach could call into question the solutions adopted by the Court
with respect to its jurisdiction in the case brought by Bosnia and
Herzegovina against Serbia and Montenegro for the application of the
Genocide Convention. We regret that the Court has decided to take such a
direction.
(Signed) Raymond Ranjeva.
(Signed) Gilbert Guillaume.
(Signed) Rosalyn Higgins.
(Signed) Pieter Kooijmans.
(Signed) Awn Shawkat Al-Khasawneh.
(Signed) Thomas Buergenthal.
(Signed) Nabil Elaraby.
[p 917]
DECLARATION OF JUDGE KOROMA
While I concur with the Court's findings in the operative paragraph of the
Judgment, I nevertheless consider it important to stress the following.
What the Court was asked to determine and has, in fact, ruled on during this
phase of the proceedings is the issue of jurisdiction.
The Applicant, the Government of Serbia and Montenegro, requested the Court,
inter alia, to adjudge and declare in respect of its jurisdiction ratione
personae.
The Italian Government requested the Court to adjudge and declare, inter
alia, that the Court lacked jurisdiction ratione personarum to decide the
present case, since Serbia and Montenegro was not a party to the Statute
when the Application was filed and also did not consider itself a party to a
"treaty in force" such as would confer jurisdiction on the Court, in
accordance with Article 35, paragraph 2, of the Statute.
Thus, neither Party called upon the Court to uphold its jurisdiction or
asserted that it was entitled to enter into the merits of the case, but
rather requested it to decide on its jurisdiction and to determine whether,
as a matter of law, the Applicant was entitled to bring a claim before the
Court. This Judgment is the response to the question about jurisdiction. As
the Court has stated (para. 37), the function of a decision of the Court on
its jurisdiction in a particular case is solely to determine whether or not
it may entertain the case on the merits and not to make any determination
on substantive issues. The Court is obliged to discharge this function
before entering into the merits of a case. Moreover, this function to decide
on its jurisdiction is both primary and imperative. It is at one and the
same time both determined and limited by the Charter of the United Nations
and the Statute of the Court. The Court cannot emancipate itself from this
statutory requirement. It is therefore not only in conformity with the
Statute of the Court but also by the force of logic that the point of
departure for the Court in responding to that question would have to be the
determination of its jurisdiction ratione personae.
It is within this paradigm that the Judgment should be understood: as a
decision by the Court on its jurisdiction, without any position being taken
on the merits of the dispute.
(Signed) Abdul G. Koroma.
[p 918]
SEPARATE OPINION OF JUDGE HIGGINS
1. The Court in its Judgment finds that the Observations of Serbia and
Montenegro have not had the legal effect of discontinuance of proceedings
under the Rules (para. 31). I agree. It is clear that the Applicant has
declined to "discontinue", and that "discontinuance" as envisaged in the
Rules is dependent on the consent of the Parties.
2. The Court further observes that:
"Prior to the adoption of Article 38, paragraph 5, of the Rules of Court, in
a number of cases in which the application disclosed no subsisting title of
jurisdiction, but merely an invitation to the State named as respondent to
accept jurisdiction for the purposes of the case, the Court removed the
cases from the List by order. By Orders of 2 June 1999, it removed from the
List two cases brought by Serbia and Montenegro concerning Legality of the
Use of Force against Spain and the United States of America, on the ground
that the Court 'manifestly lack[ed] jurisdiction' (I.C.J. Reports 1999, pp.
773 and 925)." (Judgment, para. 32.)
3. The Court then observes that "[t]he present case does not however fall
into either of these categories". The Court thus appears to regard these as
a closed list of categories for the removal of cases from the List (other
than where discontinuance has occurred), and to suggest that no removal from
the List was open to the Court in the present case as the facts do not fall
within the existing two examples.
4. A case may be discontinued by the applicant alone and an order issued to
remove it from the List (Denunciation of the Treaty of 2 November 1865
between China and Belgium, Order of 25 May 1929, P.C.I.J., Series A, No. 18;
Legal Status of the South-Eastern Territory of Greenland, Order of 11 May
1933, P.C.I.J., Series A/B, No. 55, p. 157; Protection of French Nationals
and Protected Persons in Egypt, Order of 29 March 1950, I.C.J. Reports
1950,p.59; Electricite de Beyrouth Com-pany, Order of 29 July 1954, I.C.J.
Reports 1954, p. 107; Aerial Incident of 27 July 1955 (United Kingdom v.
Bulgaria), Order of 3 August 1959, [p 919] I.C.J. Reports 1959, p. 264;
Aerial Incident of 27 July 1955 (United States of America v. Bulgaria),
Order of 30 May 1960, I.C.J. Reports 1960, p. 146; Barcelona Traction, Light
and Power Company, Limited, Order of 10 April 1961, I.C.J. Reports 1961,p.9;
Trial of Pakistani Prisoners of War, Order of 15 December 1973, I.C.J.
Reports 1973, p. 347; Border and Transborder Armed Actions (Nicaragua v.
Costa Rica), Order of 19 August 1987, I.C.J. Reports 1987, p. 182; Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Order of 26 September 1991, I.C.J. Reports 1991,p.47;
Border and Transborder Armed Actions (Nicaragua v. Honduras), Order of 27
May 1992, I.C.J. Reports 1992, p. 222; Passage through the Great
Belt (Finland v. Denmark), Order of10 September 1992, I.C.J. Reports 1992,
p. 348; Maritime Delimitation between Guinea-Bissau and Senegal, Order of 8
November 1995, I.C.J. Reports 1995, p. 423; Vienna Convention on Consular
Relations (Paraguay v. United States of America), Order of 10 November 1998,
I.C.J. Reports 1998, p. 426; Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Burundi), Order of 30 January 2001,
I.C.J. Reports 2001,p.3; Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Rwanda), Order of30 January 2001,
I.C.J. Reports 2001,p. 6).
5. There is a comparable, and analogous, practice relating to
discontinuance upon the agreement of the parties, removal from the List
being effected by order. Among the many examples are Delimitation of the
Territorial Waters between the Island of Castellorizo and the Coasts of
Ana-tolia, Order of 26 January 1933, P.C.I.J., Series A/B, No. 51,p.4;
Compagnie du Port, des Quais et des Entrepôts de Beyrouth and Société
Radio-Orient, Order of 31 August 1960, I.C.J. Reports 1960, p. 186; Certain
Phosphate Lands in Nauru (Nauru v. Australia), Order of13 September 1993,
I.C.J. Reports 1993, p. 322; Questions of Interpretation and Application of
the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom), Order of 10 September 2003,
I.C.J. Reports 2003, p. 149; Questions of Interpretation and Application of
the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United States of America), Order of10 September
2003, I.C.J. Reports 2003,p. 152.
6. The Court has also declined to proceed with cases in circumstances other
than discontinuance under the Rules. The Permanent Court terminated interim
measures proceedings in the Prince von Pless Administration case, on the
grounds that the request made by Germany in its Application had ceased to
have any object (Order of11 May 1933, P.C.I.J., Series A/B, No. 54, p. 150).
And in the Northern Cameroons case, the Court declined to proceed further
with a case for what it saw as reasons of judicial propriety (Preliminary
Objections, Judgment, I.C.J. Reports 1963, p. 29). In the Nuclear Tests
cases, the Court did not regard itself as constrained by the fact that
Australia and New Zealand [p 920] had not, after the French announcement of
the conclusion of its testing, discontinued the proceedings under Article 74
of the 1972 Rules. The Court stated that "this does not prevent the Court
from making its own independent finding" (Nuclear Tests (Australia v.
France), Judgment, I.C.J. Reports 1974, p. 270, para. 54; Nuclear Tests (New
Zealand v. France), Judgment, I.C.J. Reports 1974, p. 476, para. 57) and it
determined that "the object of the claim has been achieved by other means"—
i.e., means other than litigation (Nuclear Tests (Australia v. France),
Judgment, I.C.J. Reports 1974, p. 271, para. 55; Nuclear Tests (New Zealand
v. France), Judgment, I.C.J. Reports 1974, p. 476, para. 58).
7. In a pertinent dictum the Court stated that it saw:
"no reason to allow the continuance of proceedings which it knows are bound
to be fruitless. While judicial settlement may provide a path to
international harmony in circumstances of conflict, it is none the less true
that the needless continuance of litigation is an obstacle to such harmony."
(Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 271,
para. 58; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports
1974, p. 477, para. 61.)
In both the Northern Cameroons and Nuclear Tests cases, the Court decided
not to adjudicate further and did not issue a formal order.
8. In its Orders of 2 June 1999 (Legality of Use of Force (Yugoslavia v.
United States of America), Provisional Measures, Order of 2 June 1999,
I.C.J. Reports 1999, p. 916; Legality of Use of Force (Yugoslavia v. Spain),
Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 761) the
Court had removed the cases from the List after hearings on provisional
measures, on the grounds that the Court manifestly lacked jurisdiction. And,
as was recognized in the Judgment at paragraph 32, prior to the formulation
of Article 38, paragraph 5, of the Rules of Court, there were cases removed
from the List because the application was merely an invitation to the
respondent.
9. These were actions by the Court in the exercise of its inherent powers.
The precedents on removal from the List cited by the Court — where from the
outset no subsisting title of jurisdiction has been disclosed, or where the
Court manifestly lacked jurisdiction — do not constitute two exclusive
categories within which the Court has to fall if it wishes to exercise its
inherent powers in the absence of discontinuance. There is nothing in the
case law that so suggests. Indeed, it is hard to know what might be the
legal source of a right to remove cases from the List provided only that
this would be limited to these two examples.
10. The Court's inherent jurisdiction derives from its judicial character
and the need for powers to regulate matters connected with the adminis-[p
921]tration of justice, not every aspect of which may have been foreseen in
the Rules. It was on such a basis that the Permanent Court had admitted the
filing of preliminary objections to jurisdiction even before this
possibility was regulated by the Rules of Court. The Court stated that it
was "at liberty to adopt the principle which it considers best calculated to
ensure the administration of justice" (Mavrommatis Palestine Concessions,
Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 16). The power of the
Court to identify remedies for any breach of a treaty, in a case where
jurisdiction was based solely upon the treaty concerned, has been regarded
as within the Court's inherent powers in the Corfu Channel case (Assessment
of Amount of Compensation, Judgment, I.C.J. Reports 1949, p. 244) and in the
LaGrand (Germany v. United States of America) case (Memorial of the Federal
Republic of Germany, Vol. I, 16 September 1999, para. 3.60).
11. The very occasional need to exercise inherent powers may arise as a
matter in limine litis, or as a decision by the Court not to exercise a
jurisdiction it has, or in connection with the conduct or the merits of a
case. The judges who jointly dissented in the Nuclear Tests cases did not
challenge the existence of such inherent powers. They asserted that their
use "must be considered as highly exceptional and a step to be taken only
when the most cogent considerations of judicial propriety so require"
(Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 322,
para. 22, joint dissenting opinion). Understandably, these judges were
particularly concerned that the exercise of the power to decide proprio motu
should not be exercised without affording an applicant the opportunity to
submit counter arguments, as this was not consonant with the due
administration of justice. In the present instance, the issue of whether the
case should be removed from the List was fully canvassed before the Court.
12. Thus the real question is not whether the Applicant has or has not
"discontinued" the case, nor whether the present circumstances are exactly
identical to the few examples where the Court itself has removed a case from
the List (examples which will, in their turn, have been "new" at the
relevant time and not falling into any previously established category). The
question is whether the circumstances are such that it is reasonable,
necessary and appropriate for the Court to strike the case off the List as
an exercise of inherent power to protect the integrity of the judicial
process.
I believe the answer is in the affirmative.
13. The starting point for discontinuance is Article 38, paragraph 2, of the
Rules of Court, whereby the applicant "shall specify as far as possible the
legal grounds upon which the jurisdiction of the Court is said to be based".
The Court may, in certain circumstances, allow these grounds of jurisdiction
to be enlarged, and it may also occur that an applicant later prefers to
proceed on the basis of one specified ground rather than another.
Nonetheless, for all the flexibility built in to Article 38, para-[p
922]graph 2, of the Rules, the obligation contained in it is a continuing
one. An applicant which on Monday specifies two bases of jurisdiction for
the case it wishes the Court to decide, and on Thursday informs the Court
that these are not, after all, grounds on which it relies, cannot be said on
Saturday to be in conformity with Article 38, paragraph 2. It has put itself
out of conformity with Article 38, paragraph 2, and the fact that it at the
same time declines to "discontinue" the case under Article 88 or 89 of the
Rules is irrelevant to that fact.
14. No more is the position of the Applicant who resiled from specified
heads of jurisdiction without proffering others rendered in compliance with
the Rules by virtue of asking the Court "to decide on its jurisdiction" in
the light of these changes of position (Judgment, para. 28). Such a request
is totally outside of the contemplation of the Rules. Yet this is what has
occurred in this case. On 24 April 1999 the then Federal Republic of
Yugoslavia filed its Application instituting proceedings against various
States, invoking as the basis of the Court's jurisdiction Article 36,
paragraph 2, of the Statute of the Court, as well as Article IX of the
Convention on the Prevention and Punishment of the Crime of Genocide. On 20
December 2002, Serbia and Montenegro formally stipulated that it was not a
party to the Statute of the Court before 1 November 2000 — and that at the
time of its initial Application, it was not bound by the Genocide
Convention.
15. Having thus put itself in a position incompatible with Article 38,
paragraph 2, of the Rules, Serbia and Montenegro did not inform the Court it
was discontinuing the case under Article 89 of the Rules, but rather "asked
the Court to decide on its jurisdiction". It was in fact in no position to
make such a request of the Court, and these events alone are sufficient, in
my view, for the Court to have used its inherent powers to ensure orderly
conduct of its judicial function, and to have removed the cases from the
List.
16. In the event, the disorderly nature of the course now being followed by
Serbia and Montenegro was compounded. In response to its initial claims on
the merits against the various respondent States, in the eight cases allowed
to proceed by the Court beyond the initial hearings on provisional measures,
preliminary objections were lodged. For the ensuing three years no response
was made to these objections — and indeed, when extremely brief Written
Observations were eventually made, they did not even attempt to counter or
otherwise respond to the substantive arguments contained in the preliminary
objections of the Respondents. Instead, the Applicant resiled from its
previously stated grounds of jurisdiction and simply suggested that "the
Court decide". This incoherent manner of proceeding is not, in my view,
compatible with sound judicial procedures, which are designed to be fair to
all parties concerned, and it provided further grounds for which the
appropriate response of the Court would have been to remove the cases from
the List. [p 923]
17. The regrettable history of events in this case falls within the
circumstances described by the Court in the Northern Cameroons (Cameroon v.
United Kingdom) case:
"There are inherent limitations on the exercise of the judicial function
which the Court, as a court of justice, can never ignore. There may thus be
an incompatibility between the desires of an applicant, or, indeed, of both
parties to a case, on the one hand, and on the other hand the duty of the
Court to maintain its judicial character. The Court itself, and not the
parties, must be the guardian of the Court's judicial integrity."
(Preliminary Objections, Judgment, I.C.J. Reports 1963, p. 29.)
***
18. In paragraph 39 of the Judgment, the Court states that it "cannot
decline to entertain a case simply because of a suggestion as to the motives
of one of the parties or because its judgment may have implications in
another case". Some observations in response to this statement have been
made in paragraph 12 of the joint declaration of seven judges. In that
context it is also necessary to make some observations on the remarkable
attention given by the Court to Article 35, paragraph 2, of the Statute.
This provision had, of course, never been invoked by the Applicant during
the period when it relied on its original grounds of jurisdiction. The
Applicant's irregular request of 20 December 2002 to the Court was "to
decide on its jurisdiction considering the pleadings formulated in these
Written Observations". These Written Observations contained no invocation of
Article 35, paragraph 2, as an alternative ground of jurisdiction — yet,
going beyond what the Applicant requested in the present case, the Court has
devoted some 23 paragraphs to laying the grounds for a finding that Article
35, paragraph 2, of the Statute could not have been an alternative basis for
allowing access to the Court in respect of the Genocide Convention so far as
Serbia and Montenegro is concerned. This exercise was clearly unnecessary
for the present case. Its relevance can lie, and only lie, in another
pending case. I believe the Court should not have entered at all upon this
ground in the present case.
***
19. Because I am of the firm view that grounds ratione personae should not
have been chosen for the disposition of this case (for reasons elaborated in
the joint declaration of seven judges), it is not my intention here to offer
my own views as to the arguments that the Court advances to support its
findings on this ground. It suffices to say that, while General Assembly
resolution 55/12 of 1 November 2000, admitting the [p 924] Federal Republic
of Yugoslavia as a new State, necessarily clarifies the legal situation
thereafter, it remains debatable whether "from the vantage point from which
the Court now looks at the legal situation", the "new development in
2000...has clarified the thus far amorphous legal situation concerning the
status of the Federal Republic of Yugoslavia vis-à-vis the United Nations"
at the relevant time (Judgment, para. 78).
20. It was said by Judge Lachs in 1992 that, while the various major organs
of the United Nations do each have their various roles to play in a
situation or dispute, they should act
"in harmony — though not, of course, in concert — and that each should
perform its functions with respect to a situation or dispute, different
aspects of which appear on the agenda of each, without prejudicing the
exercise of the other's powers" (Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial Incident
at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional
Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 27, separate
opinion of Judge Lachs).
The Court, in purporting to find an ex post facto clarification of the
situation as it was in 1992-2000, notwithstanding that the General Assembly
and Security Council had in all deliberation felt the objectives of the
United Nations were best met by legal ambiguity, seems to have ignored that
wise dictum.
(Signed) Rosalyn Higgins.
[p 925]
SEPARATE OPINION OF JUDGE KOOIJMANS
1. With full conviction, I have subscribed to the joint declaration of seven
members of the Court. I strongly feel that the Court, in the present
Judgment, has failed to meet the criteria for a sound judicial policy, as
spelled out in paragraph 3 of the joint declaration, by basing itself on the
argument that Serbia and Montenegro has no access to the Court, and that the
Court consequently lacks jurisdiction ratione personae.
2. My present point of view may seem slightly surprising to those who
remember the separate opinion I appended to the Court's Orders of 2 June
1999 on provisional measures in the same cases. There, I said that the
Court's reasoning in basing itself on prima facie lack of jurisdiction
ratione temporis was flawed from a logical point of view (Legality of Use of
Force (Yugoslavia v. Belgium), Provisional Measures, I.C.J. Reports 1999
(I), p. 173, para. 2).
I was of the view that the decisions taken in 1992 by the competent organs
of the United Nations, with regard to the continued membership of the
Federal Republic of Yugoslavia and the events which had taken place
thereafter, had raised serious doubts as to whether the Federal Republic of
Yugoslavia was capable of accepting the compulsory jurisdiction of the
Court as a party to the Statute, and that such doubts as a matter of logic
take precedence over other controversies with regard to the Court's
jurisdiction. I therefore felt that, in respect of its finding that it had
no prima facie jurisdiction, the Court should have based itself on the
argument that the Applicant had doubtful locus standi, and thus that there
was a lack of jurisdiction ratione personae, rather than on the ground of
lack of jurisdiction ratione temporis. (I agreed with the Court's finding
that with regard to the Genocide Convention it had no prima [p 926] facie
jurisdiction ratione materiae.)
3. The Court took an approach different to the one I had suggested. It opted
for an approach that, in my view, was defensible and legally sound, even if
I preferred another approach from a logical point of view (paragraph 30 of
my opinion). The approach taken by the Court in 1999 has now been abandoned
in favour of the one suggested by me at the time (see Judgment, para. 45).
Far from being elated by this change of approach, however, I feel concerned
for a number of reasons, which are mentioned in the joint declaration and
elaborated upon in the following paragraphs.
4. First, in 1999, I certainly did not assume that the issue of the Court's
jurisdiction ratione personae was an open and shut case. I explicitly
stated: "[n]ot for a moment do I contend that the Court already at the
present stage of the proceedings should have taken a definitive stand on
what I called earlier a thorny question" (Legality of Use of Force
(Yugoslavia v. Belgium), Provisional Measures, I.C.J. Reports 1999 (I), p.
178, para. 21). I went on to refer to the dossier on the Federal Republic
of Yugoslavia's continued membership of the United Nations as being full of
legal complications, and was of the opinion that a thorough analysis and
careful evaluation of the Federal Republic of Yugoslavia's status was
required at a later stage of the proceedings (ibid, p. 178, paras. 21 and
22). I am, however, not persuaded by the Court's conclusion in the present
Judgment that this analysis and evaluation have convincingly demonstrated
that the events of 2000 have "clarified the thus far amorphous legal
situation concerning the status of the Federal Republic of Yugoslavia
vis-à-vis the United Nations" (para. 78). Although this finding is
undoubtedly correct as far as the situation after the admission of the
Federal Republic of Yugoslavia to the United Nations is concerned (this
admission did indeed bring to an end its sui generis position vis-à-vis the
United Nations), the Judgment does not make clear what the legal effects of
this "amorphous" situation were in the period 1992-2000. The reader is left
with the statement — in itself not uncontroversial — that the sui generis
position of the Federal Republic of Yugoslavia cannot have amounted to its
membership in the Organization (para. 77).
5. The Court's finding does not seem to be based on a thorough analysis and
careful evaluation of, inter alia, the legal effects of the statements made
and positions taken by the Federal Republic of Yugoslavia before 2000, in
particular its note of 27 April 1992 to the United Nations, in which it —
admittedly on the presumption of the continuity of the "international
personality of Yugoslavia" — unilaterally committed itself to [p 927] fulfil
all the rights conferred on, and obligations assumed by, the Socialist
Federal Republic of Yugoslavia in its international relations, including its
membership in all international organizations and participation in
international treaties ratified or acceded to by Yugoslavia. Have these
commitments become meaningless (at least partially), merely as a result of
its admission to the United Nations as a new Member and the negation of the
presumption of continuity implicit therein; and if so, on what grounds? Have
the "thick clouds which have packed around Yugoslavia's membership in the
United Nations" (an expression I used in my 1999 opinion, para. 27) been
fully dissipated by the Federal Republic of Yugoslavia's belated decision to
act as a successor State to the Socialist Federal Republic of Yugoslavia,
leaving it in a legal vacuum for the period 1992-2000 as far as its
relationship vis-à-vis the United Nations and thus its participation in
certain treaties — in particular the Genocide Convention — is concerned? In
this respect, the Judgment does not give the reader much by way of
clarification.
6. Second, as regards the potential impact of the 1999 Orders on other cases
before the Court, in particular the 1993 case concerning the Application of
the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro) ,it deserves mention that
in 1999 both the Applicant and the Respondents (with the possible exception
of Portugal) considered themselves to be party to the Genocide Convention,
which had been found by the Court in 1996 to be the only basis of
jurisdiction in the Genocide Convention case. An impact of the orders on
provisional measures in the instant cases on the Genocide Convention case
was therefore not foreseeable and — to say the least — not very probable.
7. All this changed, however, when in 2000 a new Government came into power
in Belgrade. This Government no longer considered the Federal Republic of
Yugoslavia to be the continuation of the former Socialist Federal Republic
of Yugoslavia, and it decided to apply for membership of the United Nations
as a successor State. Moreover, it was of the view that the Federal Republic
of Yugoslavia, at the time of its inception in 1992, had not been a party to
the Genocide Convention, but only became a party after its accession to the
Convention on 6 March 2001.
8. These new perceptions in Belgrade led the Government to submit an
Application to the Court containing a Request for Revision of the 1996
Judgment on preliminary objections in the Genocide Convention [p 928] case
on the basis of the "newly discovered facts" mentioned in the previous
paragraph.
The Court gave its decision rejecting the Federal Republic of Yugoslavia's
Application for Revision in a Judgment dated 3 February 2003, in which I did
not participate. As recalled in paragraph 10 of the joint declaration, the
Court found that "resolution 47/1 did not inter alia affect the Federal
Republic of Yugoslavia's right to appear before the Court... under the
conditions laid down by the Statute", and that the Federal Republic of
Yugoslavia's sui generis position vis-à-vis the United Nations during the
period 1992-2000 cannot have been changed retroactively by its admission to
the United Nations in 2000 (Application for Revision of the Judgment of 11
July 1996 in the Case concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and
Herzegovina), I.C.J. Reports 2003, p. 31, paras. 70 and 71).
9. The arguments made by Serbia and Montenegro in the Application for
Revision case and in the present cases are virtually identical, and thus
establish a close link between the Genocide Convention case and the present
cases. Such a link did not exist in previous phases of the proceedings in
these cases. It is, therefore, all the more remarkable that, in spite of the
fact that this link is now undeniable, the Court, in its present Judgment,
has chosen an approach which is not in line with the approach taken in 1999
and 2003 and which inevitably has implications for the Genocide Convention
case.
The Court's statement that it "cannot decline to entertain a case
simply...because its judgment may have implications in another case"
(Judgment, para. 39) may be correct in general terms, but must be deemed to
lack the prudence and care which are called for in situations where a
variety of options exists.
10. Third, the decisions taken by the Court in the 1999 Orders on
provisional measures and in the 2003 Judgment in the Application for
Revision case and its reasoning therein are part of the Court's case law.
As we say in the joint declaration: "[consistency is the essence of legal
reasoning". In my view, this consistency in reasoning in the Court's case
law is of paramount importance and dwarfs any misgivings I personally may
have or may have had with regard to each and every argument used, as long as
I do not consider them legally untenable.
11. Although I do not consider the Court's reasoning in the instant cases
legally untenable, I have, in some respects, serious doubts as to its
correctness; moreover, I find it judicially unsound for the reasons given in
the joint declaration and in the preceding paragraphs. What seemed to me to
be a logical ground for determining lack of prima facie jurisdiction [p 929]
does not automatically qualify as a proper ground for the definitive
determination of the issue of jurisdiction.
***
12. The views expressed in my separate opinion appended to the 1999 Orders
on provisional measures and my perception of them in the light of today's
circumstances are, however, not the only reason why I deemed it necessary to
add a separate opinion to the joint declaration. I also wish to indicate
which of the options open to the Court and referred to in paragraph 2 of the
joint declaration would, in my view, have been the better one.
13. These options were three in number. The first is the one chosen by the
Court in its Judgment and is based on its jurisdictional considerations
ratione personae. The second is the approach followed by the Court in 1999,
which was founded on a lack of prima facie jurisdiction ratione temporis and
ratione materiae.
The third option would have been dismissal of the case in limine litis. This
option is explicitly rejected in the Judgment, but it would have been my
preference. I therefore find it useful to set out my views; they are not
necessarily shared by other colleagues who have signed the joint declaration
and who might have chosen the second option, which is also plausible and
conceivable for good reasons but with regard to which the Court has not
explicitly expressed itself.
14. The option of dismissal in limine litis logically precedes the other two
and it is therefore with good reason that the Court has dealt with it first.
Similarly, the relevant question has correctly been defined as
"whether in the light of the assertions by the Applicant... coupled with the
contentions of each of the respondent States, the Court should take a
decision to dismiss the case in limine litis, without further entering into
the examination of the question whether the Court has jurisdiction under the
circumstances" (Judgment, para. 29).
15. I do not intend to deal with all the arguments given by the Court in the
relevant part of the Judgment (paras. 27-43), which contain mainly a reply
to the contentions of the Respondents. In a number of respects, I agree with
what is said by the Court; that is true particularly when it states: "in
certain circumstances the Court may of its own motion put an end to
proceedings in a case" (para. 32). I am, however, of the view that the Court
has refrained from exercising this proprio motu competence in a
well-considered way, and regrettably has confined itself first and foremost
to responding to the arguments of the Parties in order to ultimately [p 930]
conclude that "[f]or all these reasons, [it] cannot remove the cases... from
the [General] List, or take any decision putting an end to those cases in
limine litis" (para. 43). Though the Court explicitly stated that, apart
from the arguments of the Parties, it would also consider "any other legal
issue which it deems relevant" (para. 26), there is hardly any evidence that
it has done so. In the following, I will try to demonstrate that such an
approach would nevertheless have been the most appropriate one.
16. In its final submissions, Serbia and Montenegro asked the Court to
"adjudge and declare on its jurisdiction ratione personae in the present
cases" (CR 2004/23, p. 38). Such a request is highly unusual. Normally, the
applicant asks the Court to find that it has jurisdiction, not whether it
has jurisdiction.
17. The first time that Serbia and Montenegro asked the Court to decide on
its jurisdiction was when it submitted its Written Observations on the
preliminary objections of the Respondents on 20 December 2002. In its
Observations, Serbia and Montenegro summarily stated that, at the time of
the filing of its Applications in 1999, it had neither been a party to the
Statute nor to the Genocide Convention, thereby implying that the Court
could not base its jurisdiction on either Article 36, paragraph 2, of the
Statute or Article IX of the Genocide Convention, which were the bases of
jurisdiction it had invoked in its 1999 Applications.
18. Serbia and Montenegro explicitly stated in a letter to the Court, dated
28 February 2003, that its Written Observations did not represent a notice
of discontinuance, and reiterated its request to decide on the Court's
jurisdiction "considering the pleadings formulated in the Written
Observations". What is striking — although perhaps not surprising in view of
the litigation tactics of Serbia and Montenegro with regard to the various
cases before the Court in which it is a party, as either applicant or
respondent — is that these Observations did not in any way refer to an
alternative basis of jurisdiction replacing the ones presented in 1999 but
no longer maintained by the Applicant.
19. It was only during the oral pleadings that the Applicant raised the "key
question" whether the sui generis position vis-à-vis the United Nations
(mentioned by the Court in the Judgment in the Application for Revision case
of 3 February 2003 and thus three weeks before the sending of the letter to
the Court) could have provided the link between the new State and
international treaties, in particular the Statute of the Court and the
Genocide Convention. In this respect, it is noteworthy that the Agent for
Serbia and Montenegro did not give any suggestion as to how this could have
happened. He merely stated that the question required a definitive answer
and that only a decision of the Court could bring clarity. "A judgment on
jurisdiction based on the elucidation of the position of the Federal
Republic of Yugoslavia between 1992 and 2000 could create an anchor point of
orientation." (CR 2004/14, pp. 26-27, [p 931] paras. 63-64; emphasis added.)
20. Article 38, paragraph 2, of the Rules of Court states, inter alia, that
"[t]he application shall specify as far as possible the legal grounds upon
which the jurisdiction of the Court is said to be based" (emphasis added).
The Applications of 29 April 1999 met this requirement by explicitly
mentioning Article 36, paragraph 2, of the Statute and Article IX of the
Genocide Convention (supplemented in the cases against Belgium and the
Netherlands by letter of 12 May 1999, referring to compromissory clauses in
two bilateral conventions of 1930 and 1931 respectively).
In its Written Observations, filed on 20 December 2002, the Applicant
abandoned these jurisdictional grounds as being pertinent at the date the
Applications were filed without replacing them by another basis for the
Court's jurisdiction (the Observations were silent as regards the two
bilateral treaties).
21. Therefore, Serbia and Montenegro's Applications, as supplemented by its
Written Observations of 20 December 2002, no longer meet the first
requirement of Article 38, paragraph 2, of the Rules of Court. That fact in
itself, however, does not provide the Court with a ground to remove the
cases from the List. The provision that the Application shall specify the
legal grounds of jurisdiction was included in 1936; in order to distinguish
the requirements of paragraph 2 from those of paragraph 1, which were
prescribed by the Statute itself, the words "as far as possible" were used
(see G. Guyomar, Commentaire du Reglement de la Cour internationale de
Justice, 1983, pp. 234 et seq.). In contrast to the requirements of
paragraph 1, non-compliance with those of paragraph 2 does not lead eo ipso
to non-admissibility. These requirements "were imposed on the Parties by the
Court simply because they were helpful to it, but represented a mere
recommendation" (ibid. ,p.235 [translation by the Registry]). Likewise,
Rosenne is of the view that "an application will not be rejected in limine
only because such specification [of the jurisdictional grounds] is omitted"
(The Law and Practice of the International Court 1920-1996, 1997, p. 705).
22. Serbia and Montenegro's contention that only discontinuance in
conformity with Articles 88 and 89 of the Rules of Court may yield a removal
of a case from the List without a judgment on jurisdiction or on the merits
(CR 2004/14, p. 18, para. 29) is, however, not correct. The fact that the
Rules only speak of removing a case from the List by unilateral action of
the applicant (Art. 89) or joint action by the parties (Art. 88) cannot
deprive the Court of its inherent power, as master of its own procedure, to
strike proprio motu a case from the List. This is also recognized by
Rosenne who, in this respect, refers to the general powers of the Court
under Articles 36 and 48 of the Statute (op. cit., p. 1478). This [p 932]
power is not related to the intention of the parties but to the judicial
task of the Court. This is borne out by the Court's reasoning in the Orders
in the cases brought by the Federal Republic of Yugoslavia against Spain and
the United States of America, where it said that
"within a system of consensual jurisdiction, to maintain on the General List
a case upon which it appears certain that the Court will not be able to
adjudicate on the merits would most assuredly not contribute to the sound
administration of justice"(Legality of Use of Force (Yugoslavia v. Spain),
Provisional Measures, I.C.J. Reports 1999 (II), p. 773, para. 35; emphasis
added).
Such power has to be used sparingly and only as an instrument of judicial
policy to safeguard the integrity of the Court's procedure. The present
cases, however, are without precedent and can truly be called exceptional.
23. The Court was, in my opinion, perfectly entitled to issue such an order
in the instant cases on the basis of the fact that the Applicant has not
provided the Court with any plausible information as to the basis of its
jurisdiction. It is not for the Court to ascertain in the preliminary phase
of a case whether it has jurisdiction if the applicant fails to
substantiate in any persuasive manner what the basis for that jurisdiction
could be, and after it has explicitly admitted that the initial grounds it
invoked are no longer valid. Nor is it the Court's task to provide a party,
which asks for the elucidation of an observation made by the Court in a
judgment in another case to which it was also a party, with "an anchor point
of orientation", as this would be tantamount to rendering an advisory
opinion or giving an interpretation of a judgment in circumstances and under
conditions not warranted by the Statute.
24. It is incompatible with the respect due to the Court for a party not to
provide it with any substantive argument for the speculation that it might
have jurisdiction while explicitly withdrawing the previously adduced
jurisdictional grounds. It is not in conformity with judicial propriety and
a sound judicial policy to render a fully reasoned judgment on jurisdiction
when the Applicant bases its request to do so on grounds which can only be
called inadequate. The Applicant can, therefore, be held to its statement
that there are no recognized or generally accepted grounds of jurisdiction.
25. In the second round of the oral pleadings, the Agent for France stated
that
"the party against whom the application is brought is not required to prove
that there is no basis for jurisdiction, which would require it — and it
would be absurd to ask this of it — as a matter of course to examine all
possible bases" (CR 2004/21, p. 13, para. 22). [p 933]
What is true for the Respondent is also true for the Court and even more so.
The fact that the Court has the duty under certain circumstances to
ascertain proprio motu that it has jurisdiction cannot, by a contrario
reasoning, be turned into an obligation to explore grounds for its
jurisdiction which have not been invoked by the Applicant. As Rosenne
states:
"There can be no doubt that the choice of a title of jurisdiction is as much
a political act as a decision to institute proceedings, and the Court is
following its usual attitude when faced with political questions of that
character not to substitute itself for the party concerned. It is for this
reason that a principle such as curia jura novit cannot appropriately be
applied by the Court proprio motu to substitute a title of jurisdiction
which has not been invoked for another..."(0p. cit., p. 956.)
Neither does the Court have to rule on a title of jurisdiction which has not
been claimed.
26. In view of the fact that the Applicant has failed to demonstrate, and
has not even made an effort to demonstrate, that the Court has
jurisdiction, I am of the opinion that the Court should have decided in
limine litis to remove the eight cases from the General List.
(Signed) Pieter H. Kooijmans.
[p 934]
SEPARATE OPINION OF JUDGE ELARABY
I. Introductory Remarks
In addition to the joint declaration, which reflects my disagreement with
the grounds which led the Court to conclude that it had no jurisdiction in
the instant case, I deem it necessary to elaborate further on some aspects.
At the outset, I would like to emphasize that regardless of the conclusion
that the Court reaches on the issue of jurisdiction, and notwithstanding
the fact that the Judgment is confined to deciding on jurisdiction, the
Court, as the principal judicial organ of the united Nations, is always
called upon to uphold the law of the Charter. The Court, however, confined
its conclusion in the instant case to noting, in paragraph 115 of the
Judgment, that:
"When, however, as in the present case, the Court comes to the conclusion
that it is without jurisdiction to entertain the claims made in the
Application, it can make no finding, nor any observation whatever, on the
question whether any such violation has been committed or any international
responsibility incurred."
on this point I am inclined to favour the balance reached by the Court in
the Fisheries Jurisdiction case, where it held that:
"55. There is a fundamental distinction between 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 argument by both parties.
56. Whether or not States accept the jurisdiction of the Court, they remain
in all cases responsible for acts attributable to them that violate the
rights of other States." (Fisheries Jurisdiction (Spain v. Canada),
Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 456.) [p 935]
II. Access to the Court under Article 35, Paragraph 1
1. The Court finds that it has no jurisdiction in this case because the
Federal Republic of Yugoslavia (FRY)FN1 did not have access to the Court at
the time it filed its Application. The first ground upon which the Court
makes this finding is Article 35, paragraph 1, of the Statute of the Court.
---------------------------------------------------------------------------------------------------------------------
FN1 On
4 February 2003, the Federal Republic of Yugoslavia officially changed its
name to "Serbia and Montenegro" (FRY-SM).
---------------------------------------------------------------------------------------------------------------------
2. Article 35, paragraph 1, provides that "[t]he Court shall be open to the
States parties to the present Statute". Under Article 93, paragraph 1, of
the United Nations Charter, all "Members of the United Nations are ipso
facto [States] parties". The Court holds that the FRY was not a State party
to the Statute because the FRY was not a Member of the United Nations at the
time it filed its Application in the instant case, and therefore, in the
view of the Court, the Court was not "open" to the FRY. Because, in my view,
the FRY was a Member of the United Nations when it filed its Application, I
disagree.
3. Prior to its fragmentation, the Socialist Federal Republic of Yugoslavia
(SFRY) consisted of six republics: Serbia, Croatia, Bosnia and Herzegovina,
Macedonia, Slovenia, and Montenegro. On 25 June 1991, Croatia and Slovenia
both declared independence, followed by Macedonia on 17 September 1991, and
Bosnia and Herzegovina on 6 March 1992. on 22 May 1992, Croatia, Slovenia
and Bosnia and Herzegovina were admitted as Members of the United Nations.
The "Former Yugoslav Republic of Macedonia" was admitted to membership in
the United Nations on 8 April 1993.
4. The FRY came into being on 27 April 1992. On that date, a joint session
of the National Assembly of the Republic of Serbia and the Assembly of the
Republic of Montenegro proclaimed a new constitution of the "Federal
Republic of Yugoslavia", and also adopted a Declaration. The preamble of
the Declaration claimed to reflect the common will of the citizens of Serbia
and Montenegro "to stay in the common State of Yugoslavia", and also
provided that:
"The Federal Republic of Yugoslavia, continuing the state, international,
legal and political personality of the [Socialist Federal Republic] of
Yugoslavia, shall strictly abide by all the commitments that the Socialist
Federal Republic of Yugoslavia assumed internationally.
………………………………………………………………………………………………
Remaining bound by all obligations to international organizations [p 936]
and institutions whose member it is, the Federal Republic of Yugoslavia
shall not obstruct the newly formed states to join these organisations and
institutions, particularly the United Nations and its specialised
agencies."FN2
------------------------------------------------------------------------------------------------------------
FN2
Declaration of the Joint Session of the SFRY, Republic of Serbia and
Republic of Montenegro Assemblies, 27 April 1992, United Nations doc.
S/23877, Annex, p. 2.
------------------------------------------------------------------------------------------------------------
5. The Declaration was brought to the attention of the United Nations by a
Note of the same date informing the Secretary-General that
"[s]trictly respecting the continuity of the international personality of
Yugoslavia, the Federal Republic of Yugoslavia shall continue to fulfil all
the rights conferred to, and obligations assumed by, the Socialist Federal
Republic of Yugoslavia in international relations, including its membership
in all international organizations and participation in international
treaties ratified or acceded to by Yugoslavia"FN3.
------------------------------------------------------------------------------------------------------------
FN3
United Nations doc. A/46/915, Ann. I, p. 2.
------------------------------------------------------------------------------------------------------------
At that time, April 1992, no resolution purporting to oppose or undermine
the FRY's assertion was adopted by any competent United Nations organ and
the FRY's membership was not challenged. This fact suggests that the FRY was
at the time considered to be a United Nations Member.
6. In September 1992, the Security Council and the General Assembly each
adopted a resolution declaring "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"FN4.
These resolutions did not suspend the membership of the FRY in the United
Nations in accordance with Article 5 of the Charter. Nor did either
resolution have the effect of expelling the FRY from the United Nations in
accordance with Article 6 of the Charter. Earlier, the Council, on 30 May
1992, had adopted a resolutionFN5 imposing economic and other sanctions on
the FRY — meaning that the conditions for invoking the provisions of Article
6 existed — yet the FRY was not expelled.
---------------------------------------------------------------------------------------------------------------------
FN4
United Nations docs. S/RES/777 and A/RES/47/1.
FN5 United Nations doc. S/RES/757.
---------------------------------------------------------------------------------------------------------------------
7. This fact was recognized by the United Nations Legal Counsel, who on 29
September 1992, addressed a letter to the Permanent Representatives of
Croatia and Bosnia and Herzegovina, in which the "considered [p 937] view of
the United Nations Secretariat regarding the practical conse-quences of the
adoption by the General Assembly of resolution 47/1" was stated to be as
follows:
"While 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 and that the Federal Republic of Yugoslavia (Serbia and
Montenegro) should apply for membership in the United Nations, 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. It is clear, therefore, that representatives
of the Federal Republic of Yugoslavia (Serbia and Montenegro) can no longer
participate in the work of the General Assembly, its subsidiary organs, nor
conferences and meetings convened by it.
On the other hand, the resolution neither terminates nor suspends
Yugoslavia's membership in the Organization...The resolution does not take
away the right of Yugoslavia to participate in the work of organs other than
Assembly bodies."FN6
------------------------------------------------------------------------------------------------------------
FN6
United Nations doc. A/47/485, Annex, pp. 2-3; original emphasis.
------------------------------------------------------------------------------------------------------------
8. In addition, the United Nations Secretariat continued to list
"Yugoslavia" as a Member of the United Nations after September 1992.
"Yugoslavia" also maintained other attributes of membership in the
Organization including its flag, seat and nameplate in the General Assembly.
The FRY was allowed to maintain the Yugoslav Permanent Mission to the United
Nations and to circulate and receive documents. And "Yugoslavia" continued
to be listed in the annual "Scale of Assessments" approved by the General
Assembly for the contributions of Member States to the United Nations
budgetFN7.
-------------------------------------------------------------------------------------------------------------------
FN7
In a series of resolutions, the General Assembly fixed a new rate of
assessment for "Yugoslavia" of 0.11, 0.1025 and 0.10 per cent for the years
1995, 1996 and 1997 respectively (United Nations doc. A/RES/49/19B) and
0.060, 0.034 and 0.026 per cent for the years 1998, 1999 and 2000
respectively (United Nations doc. A/RES/52/215A).
---------------------------------------------------------------------------------------------------------------------
9. Thus, the only practical consequence of the relevant resolutions was that
the FRY was unable to participate in the work of the General Assembly and
its subsidiary organs, conferences and meetings. They left untouched its
relationship with the Security Council and with this Court. As the Court
found in the 2003 Application for Revision case,
"Resolution 47/1 did not inter alia affect the FRY's right to [p 938] appear
before the Court or to be a party to a dispute before the Court under the
conditions laid down by the Statute." (Application for Revision of the
Judgment of 11 July 1996 in the Case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia
and Herzegovina), Judgment, I.C.J. Reports 2003, p. 31, para. 70.)
Indeed, the FRY actively participated in proceedings before this Court: it
responded to claims with counter-claims; it submitted preliminary
objections, and it appointed an ad hoc judge to participate in the Court's
deliberations. All these actions confirmed that the FRY was considered a
Member of the United Nations and a party to the Statute.
10. The International Criminal Tribunal for the former Yugoslavia (ICTY),
when it also considered the question whether the FRY was a member of the
United Nations during this period, reached the same conclusion. It held
that:
"Resolution 47/1 did not deprive the FRY of all the attributes of United
Nations membership: the only practical consequence was its inability to
participate in the work of the General Assembly, its subsidiary organs,
conferences or meetings convened by it. Apart from that, it continued to
function as a member of the United Nations in many areas of the work of the
United Nations...Thus, while the FRY's membership was lost for certain
purposes, it was retained for others...The proper approach to the issue of
the FRY membership of the United Nations in the period between 1992 and 2000
is not one that proceeds on a[n] a priori, doctrinaire assumption that its
exclusion from participation in the work of the General Assembly necessarily
meant that it was no longer a member of the United Nations. As the FRY
membership was neither terminated nor suspended by General Assembly
resolution 47/1, it is more appropriate to make a determination of its
United Nations membership in that period on an empirical, functional and
case-by-case basis."FN8
------------------------------------------------------------------------------------------------------------
FN8
Prosecutor v. Milan Milutinovic, Case No. IT-99-37-PT, Decision on Motion
Challenging Jurisdiction, 6 May 2003, paras. 37-38, appeal dismissed, Case
No. IT-99-37-AR72.2, Decision of 12 May 2004 (internal citations omitted).
------------------------------------------------------------------------------------------------------------
Applying this "functional" approach, the Trial Chamber concluded that "the
FRY was in fact a member of the United Nations both at the time of the
adoption of the [ICTY] Statute in 1993 and at the time of the commission of
the alleged offences in 1999"FN9.
---------------------------------------------------------------------------------------------------------------------
FN9
Ibid., para. 39.
---------------------------------------------------------------------------------------------------------------------
11. The FRY's formal admission to the United Nations on 1 Novem-[p 939]ber
2000FN10, as was found in the 2003 Application for Revision case,
---------------------------------------------------------------------------------------------------------------------
FN10
On 27 October 2000, the President of the FRY addressed a letter to the
Secretary-General requesting admission of the FRY to membership, stating that
"[i]n the wake of fundamental democratic changes that took place in the
Federal Republic of Yugoslavia, in the capacity of President, I have the
honour to request the admission of the Federal Republic of Yugoslavia to
membership in the United Nations in light of the implementation of Security
Council resolution 777 (1992)" (United Nations doc. A/55/528-S/2000/1043,
Annex).
As a result, on 1 November 2000, the General Assembly adopted resolution
55/12, stating that "[h]aving received the recommendation of the Security
Council of 31 October 2000 that the Federal Republic of Yugoslavia should be
admitted to membership in the United Nations" and "[h]aving considered the
application for membership of the Federal Republic of Yugoslavia", it
"[d]ecides to admit the Federal Republic of Yugoslavia to membership in the
United Nations".
---------------------------------------------------------------------------------------------------------------------
"cannot have changed retroactively the sui generis position which the FRY
found itself in vis-à-vis the United Nations over the period 1992 to 2000,
or its position in relation to the Statute of the Court" (Application for
Revision of the Judgment of 11 July 1996 in the Case concerning Application
of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia
v. Bosnia and Herzegovina), Judgment, I.C.J. Reports 2003, p. 31, para. 71;
emphasis added).
12. Again the ICTY Chamber reached the same conclusion when it held that:
"the formal admission of the FRY to membership in 2000 in no way invalidates
[the] finding that the FRY retained sufficient indicia of membership during
that period to be amenable to the regime of the Security Council resolutions
adopted under the United Nations Charter for the maintenance of
international peace and security"FN11.
------------------------------------------------------------------------------------------------------------
FN11 Prosecutor v. Milan Milutinovic, Case No. IT-99-37-PT, Decision on
Motion Challenging Jurisdiction, 6 May 2003, para. 44, appeal dismissed, Case No.
IT-99-37-AR72.2, Decision of 12 May 2004.
------------------------------------------------------------------------------------------------------------
13. The Court has now characterized the FRY's sui generis position as one
that "could not have amounted to its membership in the Organization"
(Judgment, para. 77) and held that the FRY's admission to the United Nations
in 2000 "did not have and could not have had, the effect of dating back to
the time when the Socialist Federal Republic of Yugoslavia broke up and
disappeared" (ibid.). This, in my view, lacks a solid legal basis. Whereas
the Security Council and General Assembly were acting in a political
capacity when the relevant resolutions were adopted, the Court, throughout
the various phases of the cases related to the former Yugoslavia, should
have consistently stated and applied the appli-[p 940]cable law. This
approach would have yielded an outcome consistent with the law of the
Charter and the established practice of the United Nations and, I believe,
would have led the Court to find that the FRY was a member of the United
Nations when, in 1999, it filed its application in the instant case.
Therefore, the Court should have concluded that it was open to the FRY under
Article 35, paragraph 1.
III. Access to the Court under Article 35, Paragraph 2
1. The FRY did not invoke Article 35, paragraph 2, of the Court's Statute as
a basis for the Court's jurisdiction. The Court decided proprio motu to
address itFN12, holding that the FRY, as a non-party to the Statute, could
not invoke a treaty which entered into force after the entry into force of
the Statute as a basis for access to the Court under Article 35, paragraph
2. I have explained the reasons for my disagreement with the Court's
conclusion that the FRY was not a Member of the United Nations in 1999.
However, assuming that it was a non-Member, I also cannot agree that it
would not have access to the Court under the provisions of Article 35,
paragraph 2.
---------------------------------------------------------------------------------------------------------------------
FN12
Although the Court is free to decide the issues submitted to it by the
Parties for reasons other than those advanced by the Parties, it is
undesirable as a matter of judicial policy for the Court to raise proprio
motu a legal argument that is not determinative of one of the Applicant's
submissions, unless there are "compelling considerations of international
justice and of development of international law which favour a full measure
of exhaustiveness" on the matter. Compare Oil Platforms (Islamic Republic of
Iran v. United States of America), I.C.J. Reports 2003, p. 232, para. 27,
separate opinion of Judge Higgins ("it is unlikely to be 'desirable' to deal
with important and difficult matters, which are gratuitous to the
determination of a point of law put by the Applicant in its submissions")
with Lauterpacht, The Development of International Law by the International
Court, 1982, p. 37.
---------------------------------------------------------------------------------------------------------------------
2. Article 35, paragraph 2, of the Court's Statute provides that:
"The conditions under which the Court shall be open to other States shall,
subject to the special provisions contained in treaties in force, be laid
down by the Security Council, but in no case shall such conditions place the
parties in a position of inequality before the Court."
3. There are two questions relevant to an Article 35, paragraph 2,
examination: first, whether a "treaty in force" may provide a basis for the
Court's jurisdiction instead of, rather than in combination with,
compliance with the requirements laid down by the Security Council in its
resolution 9 of 1946; and second, whether the Genocide Convention can be
considered a "treaty in force". [p 941]
4. In respect of the first question, I agree with the Court's previous
finding that
"proceedings may validly be instituted by a State against a State which is a
party to such a special provision in a treaty in force, but is not party to
the Statute, and independently of the conditions laid down by the Security
Council in its resolution 9 of 1946" (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. 19; emphasis
added)FN13.
------------------------------------------------------------------------------------------------------------
FN13
See also League of Nations, Records of the First Assembly, Meetings of the
Committees, Third Committee, Annex 7, Report Submitted to the Third
Committee by M. Hagerup on behalf of the Sub-Committee, p. 532:
"The access of other [non-members of the League of Nations] States to the
Court will depend either on the special provisions of the Treaties in force
(for example the provisions of the Treaties of Peace concerning the rights
of minorities, labour, etc.) or else on a resolution of the Council."
(Emphasis added.)
------------------------------------------------------------------------------------------------------------
5. In regard to the second question, I agree with the Court's previous
finding that "Article IX of the Genocide Convention... could...be regarded
prima facie as a special provision contained in a treaty in force [so as to
come] prima facie within the jurisdiction ratione personae of the Court"
(ibid.). The Court now holds, however, that "treaty in force" means a
"treaty in force at the time that the Court's Statute came into force", and
therefore concludes that the Genocide Convention, having come into force
after the Court's Statute, does not give the FRY access to the Court under
Article 35, paragraph 2.
6. The Court begins its analysis of Article 35, paragraph 2, by noting that
"[a]s for the words 'treaties in force', in their natural and ordinary
meaning they do not indicate at what date the treaties contemplated are to
be in force, and thus they may lend themselves to different interpretations.
One can construe those words as referring to treaties which were in force at
the time that the Statute itself came into force, as was contended by
certain Respondents; or to those which were in force on the date of the
institution of proceedings in a case in which such treaties are invoked. In
favour of this latter interpretation, it may be observed that the similar
expression 'treaties and conventions in force' is found in Article 36,
paragraph 1, of the Statute, and the Court has interpreted it in this
sense...The expression 'treaty or convention in force' in Article 37 of the
Statute has also been read as meaning in force at the date proceedings were
instituted." (Judgment, para. 100; internal citations omitted.) [p 942]
7. Even assuming — without decidingFN14 — that the Court is correct in
holding that the term "treaties in force" should be given a more
restrictive interpretation than the interpretation it is given when it
appears in Articles 36 and 37, in my view the interpretation adopted by the
Court — limiting "treaties in force" to treaties in force at the time the
Court's Statute came into force — is unduly restrictive.
---------------------------------------------------------------------------------------------------------------------
FN14
The Court's interpretation conflicts with the prior jurisprudence of the
Permanent Court in the Certain German Interests in Polish Upper Silesia
case, in which the Permanent Court impliedly construed the expression "treaties in force" as meaning
any treaty in
force at the time when the case was brought before the Court (P.C.I.J.,
Series A, No. 6).
See also statement of Registrar Ake Hammarskjold:
"The Council's Resolution of May 17th, 1922, would have no bearing on cases
submitted to the Court under a general treaty; for any State which was a
party to a general treaty might then, without making any special declaration
[as required by the Security Council resolution], be a party before the
Court. The only case, therefore, in which the Council's resolution applied
was that in which a suit was brought before the Court by special agreement."
(1926, P.C.I.J., Series D, No. 2, Add., Revision of the Rules of the Court,
p. 76.)
---------------------------------------------------------------------------------------------------------------------
8. The Court's interpretation of "treaties in force" is primarily based on
statements in the travaux préparatoires of the Statute of the Permanent
Court of International Justice (PCIJ), which contained the original, and
substantially identical, provision. These statements suggest to the Court
that when considering the term "treaties in force" in Article 35, paragraph
2, the provision's drafters had in mind the peace treaties with former First
World War enemy States (who were not Members of the League of Nations and
would otherwise not have access to the Court) concluded before the entry
into force of the Court's Statute.
9. However, there is evidence from the discussion of the Statute's drafters
that such a narrow interpretation is not warranted. The peace treaties were
considered to encompass all "Treaties of Peace dealing with the rights of
minorities, labour, etc."FN15 including any "Treaties other than the German
Treaty [that] form[ed] part of the general peace settlement"FN16 and
provided for judicial dispute settlement. This interpretation was confirmed
in 1926 when the Court was considering amendments to the Court's Rules. At
this juncture it was stated that Article 35 related to "situations provided
for by the treaties of peace" (1926, P.C.I.J., Series D, No. 2, Add., Acts
and Documents, p. 106; emphasis added). And "it was decided...not to lay
down, once and for all, in what cases" such treaties [p 943] might provide
non-League Members access to the CourtFN17.
---------------------------------------------------------------------------------------------------------------------
FN15
League of Nations, Records of the First Assembly, Plenary Meetings,
Twentieth
Plenary Meeting, Annex A, Reports on the Permanent Court of [International]
Justice
Presented by the Third Committee to the Assembly, 1920, p. 463.
FN16 Secretariat of the League of Nations, Memorandum on the Different
Questions
Arising in Connection with the Establishment of the Permanent Court of
International
Justice, reprinted in PCIJ, Advisory Committee of Jurists, Documents
Presented to the
Committee Relating to Existing Plans for the Establishment of a Permanent
Court
of International Justice, 1920, p. 17.
FN17 Report of the Registrar of the Court, reprinted in 1936, P.C.I.J.,
Series D, No. 2,
3rd Add., p. 818: "It was decided...not to lay down, once and for all, in
what cases
declarations were required (question of the Peace Treaties)."
---------------------------------------------------------------------------------------------------------------------
10. Indeed, there were numerous treaties and conventions connected with the
Peace Settlement of 1919, including labour treaties adopted by the
International Labour Conference, treaties regarding the various mandates
approved by the Council of the League of Nations, and treaties concerning
the protection of minoritiesFN18.
---------------------------------------------------------------------------------------------------------------------
FN18
See M. Hudson, The Permanent Court of International Justice 1920-1942, 1972,
pp. 439-444 (giving examples).
---------------------------------------------------------------------------------------------------------------------
11. By analogy, in the context of the Statute of the International Court of
Justice drafted in the aftermath of the Second World War, the Genocide
Convention can be considered a treaty connected with the peace settlement.
Barely a year after the end of the war, there was already a General Assembly
resolutionFN19 mandating the Economic and Social Council to prepare a draft
convention prohibiting genocide as a crime against international law. The
Convention was the first post-war treaty in the area of human rights and was
considered to be the United Nations' first concrete legal response to the
Holocaust. The philosophy, object and purpose of the Convention as a whole
are a direct outcome of the tragic events of the Second World War. Thus,
when the Convention was drafted, it was stressed that
---------------------------------------------------------------------------------------------------------------------
FN19
United Nations doc. A/96 (I) (11 December 1946).
---------------------------------------------------------------------------------------------------------------------
"Having regard to the troubled state of the world, it was essential that the
convention should be adopted as soon as possible, before the memory of the
barbarous crimes which had been committed faded from the minds of men."FN20
------------------------------------------------------------------------------------------------------------
FN20 United Nations, Official Records of the General Assembly, Committees,
Third Session, Part I, Sept.-Dec. 1948, Vol. 4, Report of the Economic and Social
Council,
Sixth Committee, Legal Questions, Sixty-third Meeting (1948), p. 5.
------------------------------------------------------------------------------------------------------------
12. The fact that the Genocide Convention came into force after the Statute
of the Court does not change this conclusion. The PCIJ drafters clearly
contemplated that the treaties "in force" under Article 35 included not only
those that were already in force, but also treaties granting non-League
Members access to the Court which were still in draft form and under
negotiationFN21.
---------------------------------------------------------------------------------------------------------------------
FN21
Secretariat of the League of Nations, Memorandum on the Different Questions
Arising in Connection with the Establishment of the Permanent Court of
International
Justice, op. cit., p. 17.
---------------------------------------------------------------------------------------------------------------------
13. This is confirmed in the Permanent Court's jurisprudence in the Certain
German Interests in Polish Upper Silesia case (P.C.I.J., Series A, No. 6).
In this case, Germany, a non-League Member, was the applicant [p 944] and
the PCIJ's jurisdiction was derived from the German-Polish Conven-tion
relating to Upper Silesia, which was concluded after the adoption of the
PCIJ Statute. Poland did not dispute the fact that the suit had been duly
submitted to the Court under Article 35, and the Court found itself, on the
basis of the treaty alone — (Germany had not complied with the conditions
laid down by the Council of the League of Nations) — able to exercise
jurisdiction over the parties to the case.
14. When the PCIJ considered the revision of its Rules in 1926, Judge
Anzilotti explained that the German Interests case
"related to a treaty — the Upper Silesian Convention — drawn up under the
auspices of the League of Nations which was to be considered as
supplementary to [a First World War Peace Treaty,] the Treaty of Versailles.
It was therefore possible to include the case in regard to which the Court
had then to decide in the general expression 'subject to treaties in
force', whilst construing that expression as referring to the peace
treaties."FN22
------------------------------------------------------------------------------------------------------------
FN22
Minutes of Meeting of the PCIJ on 21 July 1926 on amending its Rules of
Court, at
1926, P.C.I.J., Series D, No. 2, Add., Acts and Documents, p. 105; emphasis
added.
------------------------------------------------------------------------------------------------------------
Similarly, being the first major human rights convention drawn up under the
auspices of the United Nations, the Genocide Convention can be considered
supplementary to the Second World War peace treaties and consequently comes
within the definition of Article 35's "treaties in force" even though it
entered into force after the Statute of the Court.
15. As an additional argument, I believe that even if one adopts the Court's
interpretation of "treaties in force" as encompassing only those treaties
which, like the Peace Treaties, were in force before the Statute of the
Court came into forceFN23, a special, broader interpretation of the
expression is appropriate in a case which, like the present case, involves a
multilateral treaty of a universal character which is intended to remedy
violations of jus cogens. On this point, I subscribe to the view of
Professor Sienho Yee, that in cases involving jus cogens, there is a
special need
---------------------------------------------------------------------------------------------------------------------
FN23
The Court notes in paragraph 112 that, in the context of the present Court,
there
were no such treaties in force prior to the Statute.
---------------------------------------------------------------------------------------------------------------------
"to... resolv[e] disputes...as soon as possible. As treaties may not
override jus cogensFN24, they should not hinder efforts to remedy
violations of jus cogens. Accordingly, the phrase 'treaties in force'
should be given the broadest scope so as to facilitate any consenting [p
945] sovereign State to utilise the Court to resolve any disputes involving
jus cogens."FN25
------------------------------------------------------------------------------------------------------------
FN24
Vienna Convention on the Law of Treaties, Art. 53. See also Ian Brownlie,
Principles of Public International Law, 4th ed., 1990, pp. 512-515.
FN25 S. Yee, "The Interpretation of 'Treaties in Force' in Article 35 (2) of
the Statute of the ICJ", 47 ICLQ 884, 903 (1998).
------------------------------------------------------------------------------------------------------------
16. Thus, even if the PCIJ drafters primarily had in mind the special
category of existing peace treaties, to the exclusion of all others, their
original intent should give way, in the context of the ICJ Statute, to a
broader interpretation of "treaties in force" that includes multilateral
treaties addressing jus cogens violations which have largely emerged in the
post-Second World War era.
17. Because of the overriding importance of such treaties to the
progressive development of international law and the maintenance of peace,
they are, and should be, subject to a special interpretation. Cf. Article
60, paragraph 5, of the Vienna Convention on the Law of Treaties
(non-applicability of treaty termination rules to "provisions relating to
the protection of the human person contained in treaties of a humanitarian
character"); the Court's Advisory Opinion on Reservations to the Genocide
Convention (limiting ability of States to enter reservations to the Genocide
Convention) (Reservations to the Convention on the Prevention and Punishment
of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 24), and
Order on counter-claims in the Application of the Genocide Convention case
(limiting applicability of reciprocity rules in context of Genocide
Convention) (Application of the Convention on the Prevention and Punishment
of the Crime of Genocide, Counter-Claims, Order of 17 December 1997, I.C.J.
Reports 1997, p. 258, para. 35).
18. In sum, the Genocide Convention and other treaties that either relate to
the peace settlement following the Second World War or are aimed at
redressing violations of jus cogens should be interpreted as "treaties in
force" under Article 35, paragraph 2, as long as they are in force at the
time an application is instituted before the Court.
IV. Jurisdiction under the Genocide Convention
1. The Court found that the FRY did not have access to the Court and the
Court did not therefore consider it necessary to decide whether the FRY was
or was not a party to the Genocide Convention at the time it filed its
Application. In my view, the FRY did have access to the Court under the
provisions of Article 35 and I shall proceed to [p 946] examine the Genocide
Convention as a basis for the Court's jurisdictionFN26.
---------------------------------------------------------------------------------------------------------------------
FN26
The FRY argued in relation to all eight Respondents that the Court had
jurisdiction
ratione personae under the Genocide Convention. Because I find that the
Court did not
have jurisdiction ratione materiae, I will not proceed to consider the
alternative grounds
raised by the FRY in relation to particular respondent parties.
---------------------------------------------------------------------------------------------------------------------
2. During the period 1992-2000, the treaty obligations of the SFRY extended
to each of the successor States. This is true regardless of whether or not
the FRY was a member of the United Nations during this period. As the Court
notes in paragraph 70, the United Nations Office of Legal Affairs in its
"Summary of Practice of the Secretary-General as Depositary of Multilateral
Treaties" published in 1996, concluded that the legal effects of General
Assembly resolution 47/1 were limited to the framework of the United Nations
and did not affect the rules of treaty succession:
"[A]fter the separation of parts of the territory of the Union of Soviet
Socialist Republics (which became independent States), the Union of Soviet
Socialist Republics (as the Russian Federation) continued to exist as a
predecessor State, and all its treaty rights and obligations continued in
force in respect of its territory. The same applies to the Federal Republic
of Yugoslavia (Serbia and Montenegro), which remains as the predecessor
State upon separation of parts of the territory of the former Yugoslavia.
General Assembly resolution 47/1 of 22 September 1992, to the effect that
the Federal Republic of Yugoslavia could not automatically continue the
membership of the former Yugoslavia in the United Nations... was adopted
within the framework of the United Nations and the context of the Charter
of the United Nations, and not as an indication that the Federal Republic of
Yugoslavia was not to be considered a predecessor State."FN27
------------------------------------------------------------------------------------------------------------
FN27 United Nations doc. ST/LEG/8. The passage was later
"deleted by the Secretariat in response to the objections raised by a number
of States that the text was contrary to the relevant Security Council and
General Assembly resolutions and the pertinent opinions of the Arbitration
Commission of the Inter-national Conference for Peace in Yugoslavia"
(Judgment, para. 70, citing United Nations docs. A/50/910-S/1996/231,
A/51/95-S/1996/251, A/50/928-S/1996/263 and A/50/930-S/1996/260).
------------------------------------------------------------------------------------------------------------
3. Indeed, during this period, the FRY continued to claim that it was a
successor State to the SFRY and that, as such, it was bound by all the
treaty obligations of the predecessor State. On 27 April 1992, the FRY
submitted a note to the Secretary-General in which it declared explicitly [p
947] that it would respect the obligations assumed by the SFRY:
"Strictly respecting the continuity of the international personality of
Yugoslavia, the Federal Republic of Yugoslavia shall continue to fulfil all
the rights conferred to, and obligations assumed by, the Socialist Federal
Republic of Yugoslavia in international relations, including its membership
in all international organizations and participation in international
treaties ratified or acceded to by Yugoslavia."FN28
------------------------------------------------------------------------------------------------------------
FN28
United Nations doc. A/46/915, Ann. I, p. 2.
------------------------------------------------------------------------------------------------------------
4. Under applicable rules of international law, the FRY would have succeeded
to these treaties even in the absence of such a declaration because a
successor State that separates from a predecessor State is not entitled,
upon separation, to disavow the treaty obligations of the predecessor State.
The entitlement to pick and choose treaty obligations applies only to newly
independent States in conformity with Article 17, paragraph 1, of the Vienna
Convention on Succession of States in respect of Treaties. Article 17,
paragraph 1, provides that
"a newly independent State may, by a notification of succession, establish
its status as a party to any multilateral treaty which at the date of the
succession of States was in force in respect of the territory to which the
succession of States relates".
Article 34 of the Vienna Convention, on the other hand, provides that
"[w]hen a part or parts of the territory of a State separate to form one or
more States, whether or not the predecessor State continues to exist:
(a) any treaty in force at the date of the succession of States in respect
of the entire territory of the predecessor State continues in force in
respect of each successor State so formed[, and]
(b) any treaty in force at the date of the succession of States in respect
only of that part of the territory of the predecessor State which has become
a successor State continues in force in respect of that successor State
alone"FN29.
------------------------------------------------------------------------------------------------------------
FN29
Vienna Convention on Succession of States in respect of Treaties, Art. 34,
para. 1.
------------------------------------------------------------------------------------------------------------
5. Thus, there is a difference in international law between a newly
independent State and a successor State. A newly independent State is
required upon independence to clarify its legal position regarding treaties
in conformity with the "clean slate" doctrine codified in Article 17 of the
Vienna Convention. In the case of the separation of States, on the other
hand, the successor State automatically assumes the treaty obligations of
the predecessor.
6. This rule of succession to treaties applies to new States and is [p 948]
entirely independent of the issue of a State's membership in the United
Nations. By way of example, when Switzerland was admitted to the United
Nations, it was considered a new Member, though not a newly independent
State. It did not therefore have to clarify its legal position with respect
to treaties. Conversely in the FRY's case, it succeeded to the SFRY's treaty
obligations in 1992 regardless of the status of its membership in the
United Nations at that time. The existence of the FRY dates back to 1992,
not to 2000, and this is a point on which, in my view, the Court should have
made the distinction. Oscar Schachter underlined this distinction when he
stated that:
"a separated state which was not a colony is presumed to succeed to the
treaty obligations and rights of the predecessor state unless this result
would be incompatible with the object of the treaty. The experience thus far
with respect to the cases of the former Soviet Union and the former
Yugoslavia supports a general presumption of continuity. That presumption
would not, however, apply to membership in the United Nations or other
general international organizations that provide for the election of new
members."FN30
------------------------------------------------------------------------------------------------------------
FN30
O. Schachter, "State Succession: The Once and Future Law", 33 Va. J. Int'l
Law 257 (1992-1993).
------------------------------------------------------------------------------------------------------------
7. Article 34 of the Vienna Convention should be considered reflective of
customary law on succession to treaties. It is indisputable that certain
provisions in the Vienna Conventions on treaties "are declaratory of
customary [international] law" (Gabcikovo-Nagymaros Project (Hungary/
Slovakia), Judgment, I.C.J. Reports 1997, p. 62, para. 99)FN31 and recent
State practice, for instance in respect of the successors of Czechoslovakia
and the SFRY, lends support to this proposition in respect of the rules of
succession. This is all the more true in cases involving succession to human
rights treaties. In the words of my learned colleague Judge Weeramantry,
---------------------------------------------------------------------------------------------------------------------
FN31See
also Digest of United States Practice in International Law, 1980, p. 1041 n.
43
(United States State Department Legal Adviser expressing opinion that the
rules of the
Vienna Convention on Succession of States in respect of Treaties were
"generally regarded
as declarative of existing customary law".
---------------------------------------------------------------------------------------------------------------------
"[it]... seems to me to be a principle of contemporary international law
that there is automatic State succession to so vital a human rights
convention as the Genocide Convention . . . [The] reasons [for applying the
principle of automatic succession] apply with special force to treaties such
as the Genocide Convention... leaving no room for doubt regarding automatic
succession to such treaties." (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia), [p 949] Preliminary Objections, Judgment, I.C.J. Reports
1996 (II), pp. 654, 645, separate opinion of Judge Weeramantry; see also
ibid., pp. 634-637, separate opinion of Judge Shahabuddeen (recognizing
that allowing a suspension of the operation of the Genocide Convention would
be incompatible with the object and purpose of the treaty, and others which,
like it, exist to safeguard the fundamental rights and freedoms of the
individual and endorse the most elementary principles of morality).)
8. When the FRY was formally admitted as a Member of the United Nations in
2000, this did not affect its legal status as successor to the SFRY's treaty
obligations. It was admitted as a new Member of the United Nations, but in
my view, not as a newly independent State, because its separation from the
SFRY and its assumption of the legal obligations as a successor State took
place on 27 April 1992.
9. As a result, the letter of 8 December 2000 from the United Nations Legal
Counsel to the FRY, in which he stated that, in his view,
"the Federal Republic of Yugoslavia should now undertake treaty actions, as
appropriate, in relation to the treaties concerned, if its intention is to
assume the relevant legal rights and obligations as a successor State"
(Application for Revision of the Judgment of 11 July 1996 in the Case
concerning Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment, I.C.J. Reports
2003, p. 24, para. 51 (citing Application of Yugoslavia, Ann. 27; emphasis
added)
must be read in context : it was a routine letter which the United Nations
Secretariat addresses to all new Members regardless of the particular
circumstances of their admission. The FRY was a State in existence since
1992 and not a newly independent State. The appropriate characterization
would have been that the FRY was a successor State, as repeatedly
acknowledged by the FRY when it declared that it succeeded to the SFRY's
legal obligations on 27 February 1992.
10. The Court acknowledged this in the 2003 Application for Revision case,
when it emphasized
"that General Assembly resolution 55/12 of 1 November 2000 [admitting the
FRY as a Member] cannot have changed retroactively the sui generis position
which the FRY found itself in vis-à-vis the United Nations over the period
1992 to 2000, or its position in relation to the Statute of the Court and
the Genocide Convention. Furthermore, the letter of the Legal Counsel of the
United Nations [p 950] dated 8 December 2000 cannot have affected the FRY's
position in relation to treaties.
The Court also observes that, in any event, the said letter did not contain
an invitation to the FRY to accede to the relevant conventions, but rather
to 'undertake treaty actions, as appropriate,...as a successor State'."
(I.C.J. Reports 2003, p. 31, para. 71.)
11. In its 1996 Judgment on preliminary objections in Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), the Court left open the question
whether it accepted the automatic succession argument, and confined its
Judgment to noting that:
"Without prejudice as to whether or not the principle of 'automatic
succession' applies in the case of certain types of international treaties
or conventions, the Court does not consider it necessary, in order to decide
on its jurisdiction in this case, to make a determination on the legal
issues concerning State succession in respect to treaties which have been
raised by the Parties." (I.C.J. Reports 1996 (II), p. 612, para. 23.)
The time has come for the Court to answer this question and, in my view, the
answer should have been that:
(a) the FRY succeeded to the Genocide Convention on 27 April 1992, and
(b) the FRY was not a newly independent State required to establish its
status vis-à-vis multilateral treaties. Thus, it is bound by Article IX of
the Convention.
12. Because, in my view, the FRY succeeded to the Genocide Convention in
1992, the FRY's purported accession — and reservation — to the Convention in
March 2001 must be declared void ab initio. The Court, should, in my view,
have concluded that the FRY has been bound since 1992 to assume all the
legal obligations of the SFRY, including those flowing from the Genocide
Convention. Such a conclusion would have been consistent with:
— The FRY's declaration of succession in 1992;
— Article 34 of the Vienna Convention on Succession of States in respect of
Treaties;
— the position taken by the FRY prior to 1 November 2000; and
— the Court's prior jurisprudence. (Ibid., pp. 617, 621, paras. 34, 41.)
13. Thus the Court should have followed the rationale that it adopted in
1996 in respect to Bosnia, that
"[s]ince the Court has concluded that Bosnia and Herzegovina could become a
party to the Genocide Convention as a result of a succes-[p 951]sion, the
question of the application of Articles XI and XIII of the Convention does
not arise" (I.C.J. Reports 1996 (II), p. 612, para. 24; emphasis added)
and made the same finding in respect of the FRY. The FRY became a party to
the Genocide Convention "as a result of a succession" and as a result the
Convention provides a basis for the Court's jurisdiction ratione personne.
14. When considering its jurisdiction ratione materiae, the Court must
ascertain whether the breaches of the Genocide Convention alleged by the
FRY-SM are capable of falling within the provisions of that Convention (Oil
Platforms (Islamic Republic of Iran v. United States of America),
Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 803). Article
IX of the Convention provides the Court with jurisdiction over disputes
"relating to the interpretation, application or fulfilment" of the
Convention, including disputes "relating to the responsibility of a state
for genocide". Genocide, in turn, is defined in Article II of the
Convention as the "intent to destroy, in whole or in part, a national,
ethnical, racial or religious group" through certain acts, including the use
of force.
15. Aside from the question of whether the acts of NATO are imputable to
each respondent State, the facts alleged by the FRY-SM, even if
substantiated on the merits, do not satisfy the element of specific intent
necessary to constitute genocide. Genocide, as defined in the Convention,
requires evidence that force was used with "an intent to destroy" a certain
defined group, and the Court should not accept the FRY-SM's invitation to
lower the mens rea bar set by the Convention by holding that the requirement
of genocidal intent is satisfied as long as genocidal consequences were
"readily foreseeable". As a result, the Court, in my view, lacks
jurisdiction ratione materiae.
V. Conclusion
The FRY had every right to claim the continuity of the legal personality of
its predecessor with respect of the territory of Serbia and Montenegro. In
the FRY's case, however, the competent united Nations organs opted to
disregard the law of the Charter. The legal consequences of the FRY's "sui
generis" status vis-à-vis the United Nations — it was excluded from
participating in certain activities of specified organs but was never
expelled — were not, in my view, properly addressed by the Court. As the
principal judicial organ of the United Nations, the Court's function under
Article 38 of its Statute is to decide disputes in accordance with
international law. It has been in a position more than once in the last
decade to set the record straight regarding the legal status of the FRY's
membership in accordance with the Charter of the United Nations. [p 952] Yet
the Court, in holding that it "is led to the conclusion that Serbia and
Montenegro was not a Member of the United Nations...at the time of filing
its Application" did not address in a comprehensive manner "the legal
situation [regarding the FRY's membership status], which was shrouded in
uncertainties" (Judgment, para. 78).
For this and other reasons set out in my opinion, I disagree with the
findings of the Court regarding the interpretation of Article 35, paragraph
1, which the joint declaration correctly describes as being "at odds" with
the Court's previous judgments and orders. I also do not agree with the
grounds chosen by the Court to reach its decision that it lacks jurisdiction
or its substantive conclusions on the scope of Article 35, paragraph 2.
Moreover I find that the approach adopted by the Court casts an unnecessary
shadow of doubt on the Genocide Convention case which has been on the
docket of the Court since 1993.
However, because I consider that the Court does not have jurisdiction
ratione materiae, I find myself in agreement with the dispositif contained
in paragraph 116 of the Judgment, which states that the Court "[f]inds that
it has no jurisdiction to entertain the claims made in the Application filed
by Serbia and Montenegro on 29 April 1999". I was therefore able to vote in
favour of the Judgment.
(Signed) Nabil Elaraby.
[p 953]
SEPARATE OPINION OF JUDGE KRECA
Table of contents
|
|
Paragraphs |
|
I.
Locus
standi in judicio
of
Serbia and Montenegro |
|
|
|
|
|
1.
Locus standi
and its
relationship to jurisdiction
ratione personae
|
1-2 |
|
|
|
|
2. Issue of United Nations
membership and
locus standi
of Serbia and Montenegro
|
3-6 |
|
|
|
|
(a)
Findings of the Court
based on "avoiding position"
|
7-9 |
|
|
|
|
(b)
Judicial presumptions
|
10-15 |
|
|
|
|
(c)
Effective and valid seisin
|
16 |
|
|
|
|
(d) Obiter dictum
containing elements
or indications of substantive approach
|
17-23 |
|
|
|
|
3. The legal consequences
of the admission of the FRY to the United Nations
|
24-31 |
|
|
|
|
II.
The
Grounds Invoked by the Respondents for Rejecting the Application
in
limine litis |
|
|
|
|
|
1. Implicit discontinuance
as a
contradictio in adiecto
|
32-36 |
|
|
|
|
2. The congruence of the
statements of facts by the Parties and the duty of the Court to
examine its jurisdiction ex officio |
37-39 |
|
|
|
|
(a)
Aspect of the legal logic
x |
40 |
|
|
|
|
(b)
Normative aspect
|
41-44 |
|
|
|
|
(c)
Principle
compétence
de la
compétence
|
45-51 |
|
|
|
|
3. The effect on the
dispute of the congruence of views between the Parties as to
jurisdiction |
52 |
|
|
|
|
(a)
The existence of a dispute
as to jurisdiction as a preliminary condition for the continuation
ofthe proceedings on preliminary objections |
53-55 |
|
|
|
|
(b)
The congruence of views
between the Parties as to jurisdiction and the alleged
disappearance of the dispute on the merits |
56-63 |
|
|
|
|
4. Legal interest of the
Applicant in the proceedings |
64-66 |
|
|
|
|
III.
The
Issue of the Composition of the Court
|
67-75 |
[p 954]
Although I agree with the above Judgment as a whole, I wish to make my
position clear in regard not only to certain points with which I fully agree
but also to some reservations which I have as to the reasoning and the
ultimate findings.
Due, on the one hand, to the substantial similarity and, in more than one
issue, identical nature of the arguments forwarded by the respondent States
and, on the other, to the lack of time to do proper justice to the cases,
the text of my opinion is designed to cover mutatis mutandis all eight
cases.
***
I. Locus standi in judicio of Serbia and Montenegro
1. Locus standi and Its Relationship to Jurisdiction ratione personae
1. In its original meaningFN1, the expression "locus standi in judicio"
implies the right of a person to appear or to be heard in such-and-such
proceedings (Jowitt's Dictionary of English Law, 2nd ed., Vol. 2, p. 1115),
or, as regards the present Court, the right of a person lato sensu to appear
or to be heard in proceedings before the Court.
---------------------------------------------------------------------------------------------------------------------
FN1
Even in the jurisprudence of the Court the expression is sometimes used as a
descriptive one. Exempli causa, in the case concerning Barcelona Traction,
Light and Power Company, Limited, the Court used it to denote right of "a
government to protect the interests of shareholders as such" which was in
effect the matter of legal interest independent of the right of Belgium to
appear before the Court (Preliminary Objections, Judgment, I.C.J. Reports
1964, p. 45). On the contrary, in the South West Africa cases the Court has
drawn a clear distinction between "standing before the Court itself", i.e.,
locus standi, and "standing in the . . . phase of . . . proceedings (south
West Africa, second Phase, I.C.J. Reports 1966, p. 18, para. 4).
---------------------------------------------------------------------------------------------------------------------
The right to appear before the International Court of Justice, due to the
fact that it is not a fully open court of law, is a limited right. The
limitations exist in two respects. Primo, the right is reserved for States
(Statute, Art. 34, para. 1). Consequently, it does not belong to other
juridical persons or physical persons. secundo, as far as States are
concerned, only States parties to the Statute of the Court possess the
right referred to, being as Members of the United Nations ipso facto parties
to the Statute of the Court or by accepting conditions pursuant to Article
35, paragraph 2, of the Statute. States non-parties to the Statute can
acquire this right on condition that they accept the general jurisdiction of
the Court in conformity with Security Council resolution 9 (1946).
From the substantive point of view, this right is a personal privilege
(privilegia favorabile) of the State which, by accepting the Statute of the
Court, has recognized the Court as a judicial body equipped with jus dicere.
It is the consequence of the burden — or privilegia odiosa — consisting in
fulfilment of the conditions prescribed. [p 955]
Locus standi before the Court cannot, however, be taken as synonymous to
the jurisdiction of the Court. It is, by its nature, a preliminary condition
or presumption for the jurisdiction of the Court or its competence. In this
sense it is appropriate to speak about general jurisdiction and special
jurisdiction or competence of the Court. By possessing locus standi a State
automatically recognizes general jurisdiction of the Court.
In order to be able to speak about special jurisdiction or competence in
casu, however, it is necessary that, besides the right to appear before the
Court, there should exist a specific basis of jurisdiction. And it is on
these grounds that States submit a concrete dispute or type of disputes to
the Court for solution.
In other words, having in mind the fact that the Court is not only a court
of law whose jurisdiction is of an optional nature, but, at the same time, a
partly open court, it can be said that double consent of States is necessary
in order for the Court to establish its competence in casu:
(i) consent that the Court is "an organ instituted for the purpose of jus
dicere" (dissenting opinion by Dr. Daxner, Corfu Channel, I.C.J. Reports
1948, p. 39). This consent is expressed indirectly, by joining the
membership of the United Nations, or directly, by a non-Member of the United
Nations either by adhering to the Statute of the Court or by accepting the
general jurisdiction of the Court in conformity with Security Council
resolution 9 (1946) as a preliminary condition, and
(ii) consent that the Court is competent to deal with the particular dispute
or type of disputes, which is made through relevant jurisdictional bases
within Article 36 of the Statute as a substantive but qualified
conditionFN2.
-------------------------------------------------------------------------------------------------------------------
FN2
As stated by the Court "under the system of the Statute the seising of the
Court by means of an Application is not ipso facto open to all States
parties to the Statute, it is only open to the extent defined in the
applicable Declarations" (Nottebohm, Preliminary Objection, Judgment, I.C.J.
Reports 1953, p. 122). It should be noted also that the Court in the
Legality of the Use of Force case found
"[w]hereas 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 can therefore exercise jurisdiction only between States
parties to a dispute who not only have access to the Court but also have
accepted the jurisdiction of the Court, either in general form or for the
individual dispute concerned" (Provisional Measures, I.C.J. Reports 1999
(I), p. 488, para. 19; emphasis added).
---------------------------------------------------------------------------------------------------------------------
2. The notions locus standi in judicio and jurisdiction ratione personae
cannot, despite certain extrinsic similarities, be taken as synonymous.
The element shared in common by these two notions is that they represent
processual conditions on whose existence is dependent the validity [p 956]
of the actual proceedings before the Court; both with respect to incidental
proceedings and the merits, and with respect to the bringing of the dispute
to the Court's decisions in the proceedings. And there the common ground
between the two notions essentially ends and room for differences emerges.
The difference between the two is, first of all, of a conceptual nature.
Locus standi is a condition which has to do with parties, whereas
jurisdiction ratione personae — as an element of the jurisdiction of the
Court — is a condition which has to do with the Court itself. Also, the
question of locus standi as of antecedent nature is a pre-preliminary
question which "should be taken in advance of any question of competence"
(Northern Cameroons, I.C.J. Reports 1963, p. 105, separate opinion of Sir
Gerald Fitzmaurice; emphasis in the original), whereas jurisdiction ratione
personae is a question of competence, or special jurisdiction of the Court
stricto sensu. Furthermore, a lack of locus standi cannot, as a rule, be
overcome in the proceedings while a lack of jurisdiction ratione personae is
surmountable since the parties may confer jurisdiction upon the Court in the
course of the proceedings or perfect it (for instance, by expressing
agreement or by forum prorogatum). The difference derives from the fact that
jurisdiction is governed by the law in force between the parties, while
locus standi is governed by objective rules of the Statute having a
constitutional nature.
The seemingly identical nature of these two notions is, apparently, mostly
due to a tacit equalization of the processual contact between the Court and
the parties to the dispute — and of the litigious relationship. As there are
no separate, preliminary proceedings for establishing the existence of
processual conditions for the validity of the proceedings (except the
administrative action of the Registry in the case of applications submitted
by non-State subjects), the existence of processual conditions is
established during the actual proceedings whose validity depends on the
existence of these conditions. This takes place more often than not during
the proceedings on preliminary objections which is why the rare cases of
locus standi are subsumed under jurisdiction ratione personae.
2. Issue of United Nations Membership and locus standi of Serbia and
Montenegro
3. The locus standi of Serbia and Montenegro in the present proceedings
before the Court is closely, and, I would say, organically, linked with its
membership in the United Nations, due to the fact that Serbia and Montenegro
could not be considered as being party to the Statute apart from being a
Member State of the United Nations as well as the fact that its locus standi
cannot be based on conditions set forth in Article 35, paragraph 2, of the
Statute of the Court.
4. In normal circumstances, the legal consequences of admission of a [p 957]
State to membership in the United Nations are clear and do not require
special elaboration. At the moment of its admission to membership a State
becomes a bearer of the rights and obligations stipulated in the United
Nations Charter, among which of particular relevance in the matter at hand
is the status of a party to the Statute of the Court. However, the
circumstances surrounding the case at hand could hardly be termed normal.
More precisely, the Applicant, Serbia and Montenegro, was admitted to
membership in the Organization on the basis of the proper procedure. But
this was done without its status in the Organization being previously
established in explicit terms either by the political organs of the United
Nations or by the Court.
5. United Nations General Assembly resolution 47/1 is unclear in substance
and contradictory per se. Assessing its substance in the case concerning
Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (hereinafter
referred to as "Genocide Convention"), the Court found that "the solution
adopted is not free from legal difficulties" (Provisional Measures, Order
of 8 April 1993, I.C.J. Reports 1993,p.14, para. 18). The situation was
additionally complicated by the subsequent practice of the United Nations
organs "characterized by pragmatism and flexibility rather than a strict
adherence to the procedures" prescribed by the Charter (Contributor
(Christian Tams) on Article 6 (margin note 25) in B. Simma (ed.), The
Charter of the United Nations, A Commentary, 2nd ed., Vol. I, 2002, pp.
213-214). In 1993 Professor Rosalyn Higgins wrote that "[t]he outcome has
been anomalous in the extreme" (R. Higgins, "The New United Nations and
Former Yugoslavia", International Affairs, Vol. 69, No. 3 (July 1993), p.
479). It can, therefore, be concluded that, until the admission of Serbia
and Montenegro to membership in the Organization on 1 November 2000, the
political organs of the United Nations had not determined the status of
Serbia and Montenegro in the United Nations in a clear and unequivocal
manner.
6. From 1993 onwards the Court was faced with the question of Serbia and
Montenegro's membership in the United Nations a number of times. The
relevant findings of the Court relating to this particular question can,
generally, be divided into: primo, findings of the Court which, by their
formal, extrinsic characteristics, could be qualified as "avoiding
positions" and, secundo, the obiter dicta of the Court which contain
certain elements or indications of a substantive approach to the matter at
hand.
(a) Findings of the Court based on "avoiding position"
7. In its Order of 2 June 1999 the Court stated that it "need not consider
this question for the purpose of deciding whether or not it can indicate
provisional measures in the present case" (I.C.J. Reports 1999 (I), p. 136,
para. 33). What we have here is a slightly modified formulation [p 958]
expressing "avoiding position" of the Court with regard to the question of
"whether or not Yugoslavia is a Member of the United Nations, and as such a
party to the Statute of the Court" (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8
April 1993, I.C.J. Reports 1993, p. 14, para. 18) which the Court used
several times in the disputes to which Serbia and Montenegro is a party in
the proceedings before the Court. The correctly inter-preted formulation,
regardless of modification in the specific cases, suggests the conclusion
that the Court reserved the right to state its definitive position on the
relevant question in the later phases of the proceedings.
It is easy to conclude that such a finding of the Court represents a delay
of the answer to the question "whether or not Yugoslavia is a Member of the
United Nations, and as such a party to the Statute of the Court" (ibid.).
However, the question appears which are, in the circumstances of the case,
the intrinsic meanings of the delay.
8. On the basis of the Application of the Federal Republic of Yugoslavia
(hereinafter referred to as the "FRY") filed in the Registry of the Court on
29 April 1999, the Court was seised and on the basis of a request for the
indication of provisional measures the Court instituted the proper
proceedings. Was the Court, in the light of the relevant provisions of the
Statute, in a position to be seised? Furthermore, was it in a position to
institute proceedings for the indication of provisional measures, if the
Federal Republic of Yugoslavia had not been a Member of the United Nations
in the relevant period? Nor indeed had the FRY accepted the general
jurisdiction of the Court in conformity with Security Council resolution 9
(1946) pursuant to Article 35, paragraph 2, of the Statute of the Court.
The answer to this question is obviously in the negative, having in mind
that, in the optic of a court of law with limited access, it is essential to
fulfil the relevant preliminary condition — to acquire locus standi — as a
prerequisite for taking litigious actions before the Court.
9. The Court was thus faced with a choice among possible solutions in view
of the fact that there existed at least a doubt regarding the legal
position of Yugoslavia diagnosed already in 1993 (Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional
Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 14, para. 18):
(i) to ask for an authentic interpretation of resolution 47/1 from the
General Assembly as the competent organ of the United Nations;
(ii) to make its own interim determination of the matter either by
directing, on the basis of paragraph 2 of Article 38 of the Rules of Court,
that the first pleading should be addressed to the [p 959] matterFN3 or by
instituting pre-judicatory proceedings on the basis of Article 48 of the
Statute; and
---------------------------------------------------------------------------------------------------------------------
FN3
In the Order of 30 June 1999 the Court noted Belgium requested
"that the question of the jurisdiction of the Court and of the admissibility
of the Application in this case should be separately determined before any
proceedings on the merits" (Legality of Use of Force (Yugoslavia v.
Belgium), Order of 30 June 1999, I.C.J. Reports 1999 (II), p. 989).
For,
"the fact that the various provisions regulating the incidental jurisdiction
are included in the Statute . . . serves to supply a general consensual
basis, through a State's being a party to the Charter and Statute, which are
always part of the title of jurisdiction and always confer rights and impose
obligations on its parties in relation to the Court and it's activities. But
if it is obvious that the Court lacks all jurisdiction to deal with the case
on the merits, then it automatically follows that it will lack all
incidental jurisdiction whatsoever." (Shabtai Rosenne, The Law and Practice
of the International Court 1920-1996, Vol. II, 1997, pp. 598-599; emphasis
added.)
---------------------------------------------------------------------------------------------------------------------
(iii) to resort to the judicial presumption of the right of Yugoslavia to
appear before the Court.
And the Court made the choice to rely on the presumption that Yugoslavia
was a Member of the United Nations and as such entitled to appear before the
Court (see dissenting opinion of Judge Vereshchetin appended to the Judgment
of 3 February 2003 in the case concerning Application for Revision of the
Judgment of 11 July 1996 in the Case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia
and Herzegovina), Judgment, I.C.J. Reports 2003, p. 41, para. 4 (hereinafter
referred to as the "Application for Revision"); separate opinion of Judge
Koroma, ibid., p. 36, para. 9).
(b) Judicial presumptions
10. Judicial presumption, along with legal presumptionFN4, is one of the [p
960] main sorts of presumption in international law. It means that a certain
fact or state of affairs, even though it has not been proved, is taken by an
international tribunal as truthful. As such it does not necessarily coincide
with, or is not equivalent to, the fact or the state of affairs.
---------------------------------------------------------------------------------------------------------------------
FN4
Better known than judicial presumptions, legal presumptions (praesumptio
juris) are widely applied in international law. International tribunals are
used to resort to proof by inferences of fact (présomption de fait) or
circumstantial evidence (Corfu Channel, Merits, Judgment, I.C.J. Reports
1949, p. 18). For legal presumption in the practice of the Inter-American
Court of Human Rights, see T. Buergenthal, R. Norris and D. Shelton,
Protecting Human Rights in the Americas, Selected Problems, 2nd ed., 1986,
pp. 130-132 and pp. 139-144. The practice of international courts abounds in
presumptions based on general principles of international law, whether
positive as presumption of good faith (exempli causa, Mavrommatis Jerusalem
Concessions, Judgment No. 5, 1925, P.C.I.J., Series A, No. 5, p. 43) or
negative as presumption of abuse of right (Certain German Interests in
Polish Upper Silesia, Merits, Judgment No. 7, 1926, P.C.I.J., Series A, No.
7, p. 30; Free Zones of Upper Savoy and the District of Gex, Second Phase,
1930, P.C.I.J., Series A, No. 24,p.12;Corfu Channel, Merits, Judgment, 1949,
I.C.J. Reports 1949, p. 119, dissenting opinion of Judge Ecer). The special
weight they possess in the interpretation of treaties since the function of
interpretation of treaties is to discover "what was, or what may reasonably
be presumed to have been, the intention of the parties to a treaty when they
concluded it" (Harvard Law School, Research in International Law, Part III,
Law of Treaties, Art. 19, p. 940; emphasis added).
---------------------------------------------------------------------------------------------------------------------
As far as the reasoning of the existence of judicial presumption is
concerned, considerations of a practical nature are prevalent.
Judicial presumption is a weapon to avoid waiting to get to know precisely
the facts and situation on which is dependent the existence, content or
cessation of the right that would have adverse consequences for interested
subjects or that would render difficult due course of legal proceedings.
The law, however much it tends to establish the truth and to be truthful,
actually pays more attention to finding useful and suitable solutions for
the given situations rather than allowing, in an attempt to establish truth
as such, the rights and obligations that exist to fall through or to be
harmed.
11. As a sort of presumption, the judicial presumption bears some specific
features differing it from legal presumption (praesumptio juris).
Two principal features of judicial presumption should be mentioned in that
regard.
Primo, judicial presumption is, as a rule, a natural, factual presumption
(praesumptio facti vel homine) having no basis in the particular rules that
constitute the law of the international tribunal or the law it is applying.
It is an inherent element of the legal reasoning of the international
tribunal in the interpretation and application of the rules of law.
Secundo, in contrast to legal presumption which can be irrefutable
(praesumptio juris et de jure), the judicial presumption as a natural or
factual one is, by definition, of refutable nature. Their refutable nature
is, however, a specific one.
Bearing in mind that it is a part of the reasoning of the international
tribunal, it cannot be refutable in the sense in which that is the case of
legal presumption. Judicial presumption, as such, is in fact capable of
being abandoned or replaced by the international tribunal.
In its legal reasoning the international tribunal abandons it, or replaces
it, by other presumption. In the strict sense, only those findings or
decisions of the international tribunal that are based on judicial
presumptions are refutable. However, they lose the ratio of their existence
when the international tribunal identifies the controversial matter which
constitutes the subject of judicial presumption. Then they drop by
themselves because they are deprived of their subject. But even then, it is
the duty of the international tribunal to refute, in the proper proceedings,
its own finding or decision based on a presumption.
12. So-called "prima facie jurisdiction" is, in fact, a good illustration [p
961] of judicial presumptions. The expression "prima facie jurisdiction" is
a somewhat artificial combination of the modal-prima facie and of the
object-jurisdiction. The modal is, in the particular context, also the
qualitative, having in mind that "prima facie" in the legal reasoning of
the Court implies "not conclusive", "not definitively". In its grammatical
meaning the expression "prima facie jurisdiction" suggests the existence of
a distinct jurisdiction, that is, as reflecting a division of the
jurisdiction of the Court. Understood in this sense, the division of
jurisdiction has no foundation in the Statute or Rules of Court, or in the
legal logic, for that matter. The expression "prima facie ascertainment of
jurisdiction" seems to be more appropriate. Basically, it means a prima
facie case, a case established by prima facie evidence. On that basis the
Court assumed jurisdiction reserving the subsequent procedure for further,
including the conclusive, decision.
13. In the substantive meaning, the so-called avoiding position of the Court
in the light of the relevant circumstances of the case is something more
than, and different from, simply delay. The avoiding position of the Court
could not be reduced to delay considering, first of all, the fact that the
question of the FRY's status vis-à-vis the United Nations and the Statute of
the Court concerns its very ability to appear before the Court. It is hard
to imagine that the Court, as the guardian of its Statute, in responding to
this crucial question, could have been content with simply delay. The
avoiding position of the Court has two aspects: the intrinsic or substantive
one, reflected in the presumption regarding the FRY's membership in the
United Nations, and the extrinsic, formal one which boils down to a delay.
14. The presumption of membership of Yugoslavia in the United Nations in the
circumstances that existed prior to 1 November 2000 provided the only
possible basis for seisin of the Court.
The right of a party to appear before the Court is the prerequisite of a
valid seisin. Seisin of the Court is not, nor can it be, an automatic
consequence of the act of a State taken with the objective of its seisure
(such an act would be more appropriate to term "seising"; see Sir Gerald
Fitzmaurice, The Law and Procedure of the International Court of Justice,
Vol. II, 1986, p. 440, footnote 2). If, arguendo, one would accept the
opposite view, it is unclear why the Court would not be seised also in the
case of acts taken by other persons — physical or juridical — who, pursuant
to the Statute, are not entitled to appear before the Court.
An effective seisin of the Court is the condition short of which the Court
can hardly exercise the powers conferred upon it by the Statute. These
powers the Court must exercise
"whenever it has been regularly seised and whenever it has not been shown,
on some other ground, that it lacks jurisdiction or that the [p 962] claim
is inadmissible" (Nottebohm, Preliminary Objection, Judgment, I.C.J.
Reports 1953, p. 122; emphasis added).
The Court, in fact, would not be able to deal with the claim if it were not
regularly seised. As the Court stated:
"When an Application is filed at a time when the law in force between the
parties entails the compulsory jurisdiction of the Court ... the filing of
the Application is merely the condition required to enable the clause of
compulsory jurisdiction to produce its effects in respect of the claim
advanced in the Application. Once this condition has been satisfied, the
Court must deal with the claim; it has jurisdiction to deal with all its
aspects, whether they relate to jurisdiction, to admissibility or to the
merits." (Nottebohm, Preliminary Objection, Judgment, I.C.J. Reports 1953,
p. 123; emphasis added.)
15. Judicial presumptions, being refutable per definitionem, are subject to
verification. In principle, such presumptions as to locus standi of the
parties are verified by the Court ex officio or upon objection of the party.
In this (these) particular case(s) it should be pointed out that the
preliminary objections of all the respondent States regarding the
jurisdiction of the Court ratione personae are of a specific nature.
Although mainly named as objections to the jurisdiction ratione personae,
they in fact challenged the validity of the seisin of the Court. Moreover,
four of the respondent States (namely, Portugal, Germany, the Netherlands
and Italy) requested, in similar terms, the Court in their final submissions
to adjudge and declare that Yugoslavia "has no locus standi before the
Court" or that "the FRY is not entitled to appear before the Court". In
other words, they called in question the very existence of the "case" before
the Court.
(c) Effective and valid seisin
16. It appears that a distinction has to be made between an "effective
seisin" and a "valid seisin" of the Court.
Effective seisin of the Court is, as a rule, based on prima facie
appreciation of the right of the party or parties to appear before the
Court.
The prima facie appreciation of the right of the party or parties to appear
before the Court, in contrast to the appreciation of the basis of
jurisdiction, seems to be relaxed due primarily to the fact that today
almost all States are Members of the United Nations. Accordingly, it appears
that in the practice of the Court it is assumed that the fulfilment of the
conditions specified in Article 38, paragraphs 1, 2 and 3, and Article 39,
paragraphs 1 and 2, of the Rules of Court enables effective seisin of the
Court.
The effective seisin is, in the absence of separate proceedings designed to
deal with conditions for the validity of the proceedings, including the
question of locus standi, before the very institution of a proceeding, a [p
963] necessary procedural step enabling the Court to deal, inter alia, with
the validity of its seisin.
In contrast, valid seisin in regard to the question of locus standi means
that it is conclusively established by the Court that parties to a dispute
have fulfilled the necessary precondition to be entitled to appear before
the Court, i.e., that they have recognized in the proper way — by being a
party to the Statute of the Court or by the declaration pursuant to
resolution 9 (1946) of the Security Council — the general jurisdiction of
the Court. It is that relevant point in time in which parties to a dispute
become parties to the dispute before the Court.
In that regard, the relationship between effective seisin and valid seisin
could be compared with the relationship between the so-called prima facie
jurisdiction and jurisdiction considered as conclusively established.
Accordingly, if the expression "effective seisin" or "regular seisin" is
used to denote validity of the seisin of the Court, it should be understood
as relating to the formal aspect of its validity only, not to the
substantive one.
(d) Obiter dictum containing elements or indications of substantive approach
17. In the Application for Revision case the Court, considering General
Assembly resolution 55/12 of 1 November 2000, points out, inter alia, that
it
"cannot have changed retroactively the sui generis position which the FRY
found itself in vis-à-vis the United Nations over the period 1992 to 2000,
or its position in relation to the Statute of the Court and the Genocide
Convention. Furthermore, the letter of the Legal Counsel of the United
Nations dated 8 December 2000 cannot have affected the FRY's position in
relation to treaties." (Judgment, I.C.J. Reports 2003, p. 31, para. 71.)
It is easy to go along with the findings that, as a rule, General Assembly
resolutions, including the resolution in question, do not have retroactive
effect. But this finding of the Court can hardly be said to be very useful.
Because of the object of the exclusion of retroactive effect of General
Assembly resolution 55/12 in the aforementioned obiter — i.e. a "sui generis
position which the FRY found itself in vis-à-vis the United Nations over the
period 1992 to 2000..."—which is obviously unclear and vague. In the quoted
formulation the phrase "sui generis" is linked to the substantive "position"
which, in this particular context, has a highly unclear and technical
meaning. Has it been used as a synonym or a substitute for the word
"membership" or the term "membership rights and obligations" or, to express,
for that matter, the factual relationship between the Applicant and the
Organization? If it has the meaning of "sui generis" membership, it is
difficult to fathom which elements of [p 964] membership from the abstract
point of view, or which concrete elements of presumed membership of the
Federal Republic of Yugoslavia, would provide the basis of the qualification
that what is involved here is "sui generis" membership? Namely, it is worth
noting that the United Nations Charter makes no mention of "sui generis"
membership, obviously a kind of amalgamation of "membership" and
"non-membership". So, the terms such as this one represent rather an attempt
of sorts to conceptualize something that is non-existent as a notion, and
not an appropriate expression of positive legal substance — the more so, if
one has in mind the absence of a limine or exempli causa elements of
"membership" or non-membership" in the world Organization.
It is true, however, that in paragraph 70 of the Judgment of 3 February 2003
in the Application for Revision case it is stated that
"Resolution 47/1 did not inter alia affect the FRY's right to appear before
the Court... under the conditions laid down by the Statute. Nor did it
affect the position of the FRY in relation to the Genocide Convention."
(Judgment, I.C.J. Reports 2003,p.31, para. 70.)
This particular dictum seems to be an assertion rather than a proper legal
reasoning. More specifically, it is unclear what is actually the legal
basis, in the light of the controversy regarding the status of the Applicant
in the United Nations, for "the FRY's right to appear before the Court"
(ibid.). Is it based on its being a United Nations Member State which is
ipso facto a party to the Statute of the Court, or under the conditions
specified in Article 35, paragraph 2, of the Statute of the Court and
Security Council resolution 9 (1946)?
18. It is unclear how the obiter about the "sui generis position" of the FRY
vis-à-vis the United Nations came to find a place in the Court's Judgment in
the Application for Revision case. In that case the Court was faced with the
issue whether the admission of the FRY to the United Nations as such is a
"new fact" in the sense of Article 61 of the Statute. The Court itself
stressed that:
"In reality, [the FRY] bases its Application for revision on the legal
consequences which it seeks to draw from facts subsequent to the Judgment
which it is asked to have revised. Those consequences, even supposing them
to be established, cannot be regarded as facts within the meaning of Article
61. The FRY's argument cannot accordingly be upheld." (Application for
Revision of the Judgment of 11 July 1996 in the Case concerning Application
of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia
v. Bosnia and Herzegovina), Judgment, I.C.J. Reports 2003, p. 30, para. 69;
emphasis added.) [p 965]
What is striking is that the Court formulated its obiter after almost ten
years of the "avoiding position" approach to the issue, although the issue
of membership of the FRY in the United Nations was ab initio of fundamental
importance for the jurisdiction of the Court in all disputes in which the
FRY is involved as a party before the Court. Having that in mind, it could
hardly be objected to by the Court that, throughout that period, it found it
necessary, in any of the proceedings unfolding before it successively, to
make interim determination upon the issue in explicit terms for the purposes
of the pending proceedings. However, the Court failed to do so until the
admission of the FRY to the United Nations, when the matter was resolved
definitely. That comes as a surprise in
itself.
19. The objective meaning of the insistence on the sui generis position of
Serbia and Montenegro vis-à-vis the United Nations in the period from 1992
to 2000, as considered in paragraph 70 of the Judgment in the Application
for Revision case, amounts in the existing circumstances to an attempt to
revise the decision taken by the main political organs of the United
Nations. Or in terms of legal notions, it amounts to the creation of a
fictio leges.
20. The qualifications of the status of the Applicant in the United Nations
as "sui generis membership", "de facto working status", etc., are deprived
of legal substance in terms of the Charter. The Charter of the United
Nations does not recognize such forms of "membership" or "non-membership" or
a mixture thereof. These syntagmas constitute rather an attempt — based on
analogy with membership in terms of the Charter — of a notional
conceptualization of observer status of a non-Member based on Article 2,
paragraph 6, and Article 35, paragraph 2, of the Charter, or of the status
of non-State entities, such as national liberation movements, or of observer
status of regional organizations and groups of States pursuant to Article
52, paragraph 1, of the Charter of the United Nations. In the qualitative
sense, the meaning of the syntagmas such as " sui generis membership" or "de
facto working status" would mean, in fact, reduced membership rights or the
privileged position of some non-Members.
Such a meaning can hardly be brought in accordance either with the
provisions of the Charter of the United Nations which regulate membership
rights and obligations, or with the fundamental principle of sovereign
equality of States enshrined in Article 2, paragraph 1, of the Charter of
the United Nations.
The provisions of the Charter, as far as the relationship of the
Organization vis-à-vis States is concerned, have been formulated in terms
of the dichotomy Member States/non-Member States. Tertium quid simply does
not exist. Chapter II of the United Nations Charter ("Membership") points
out only the division into the original Members of the United [p 966]
Nations and the subsequently admitted Members of the Organization, a
division which has no substantive meaning in terms of membership rights and
duties, but only that of historical record.
Article 2 of the Charter of the United Nations, setting out the principles
on which the Organization and its Members are based and shall act, provides
in paragraph 1 that "[t]he Organization is based on the principle of the
sovereign equality of all its Members".
The principle contained in Article 2, paragraph 1, of the Charter
constitutes ratione materiae a narrow application of the "basic legal
concept of State sovereignty in customary international law" (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, I.C.J. Reports 1986, p. 111, para.
212; hereinafter referred to as "Nicaragua"), with legal force equal to that
of the principle expressed in paragraph 2 of the same Article determined by
the Court as being "not only a principle of customary international law but
also a fundamental or cardinal principle of such law" (ibid., p. 100, para.
190).
The principle of the sovereign equality of States as a universal principle
belonging to corpus juris cogentis operates with the United Nations Charter
on two levels:
(i) in the relationship between the Member States, with the exception of the
permanent members of the Security Council, as the principle of equal
membership rights and obligations, and
(ii) in the relationship between non-Member States and the Organization, as
the principle of equal rights and obligations non-Members before the
appropriate organs of the Organization as stipulated by Article 35,
paragraph 2, of the Charter.
In other words, the peremptory nature of the principle of sovereign equality
of States would not suffer a reduction in the corpus of rights and
obligations of an individual Member in relation to the corpus of rights and
obligations of a Member State as such on the basis of the Charter; nor
indeed would it entail enlarged rights and obligations of an individual
non-Member State over and above the extent of the rights and obligations of
non-Member States envisaged by the Charter.
The fact that the exercise of certain membership rights by a Member State
may be suspended on the basis of Article 5 of the Charter is another matter.
The suspension of membership rights and privileges on the basis of Article 5
does not encroach upon the principle of equal membership rights and
privileges in view of the fact that it leaves unaffected both the legal
basis, and the membership rights and privileges, restricting only the
exercise of the membership rights and privileges until the removal of
suspension. However, the suspension of membership rights may, in special
circumstances, lead to a violation of the fundamental principle of equality
of Member States in the proceedings before the Court (for instance, if a
suspended Member is precluded from taking part in the work of organs of the
Organization, or in the procedures established, whose findings or [p 967]
statements serve as evidence in the proceedings before the Court).
The disappearance of a Member State as a subject of international law leads
ipso facto to the cessation of membership in the Organization of the United
Nations. Since membership rights and obligations are a substantive effect
of membership in the Organization, there exists an equal sign between the
disappearance of a State and the cessation of all its membership rights and
obligations. (An exception to this are the rights and obligations embodied
in the Charter which have an erga omnes or a peremptory character and
which, from the legal aspect, are not membership rights and obligations.)
21. The proper judicial presumption has been applied by the Court in the
proceedings for the indication of provisional measures.
Namely, the finding of the Court that "the declarations made by the Parties
under Article 36, paragraph 2, of the Statute do not constitute a basis on
which the jurisdiction" was grounded in the limitation ratione temporis
contained in Yugoslavia's declaration recognizing the compulsory
jurisdiction of the Court (Legality of Use of Force (Yugoslavia v. Belgium),
Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (I), p. 135,
para. 30). Consequently, the Court did not call in question the validity of
Yugoslavia's declaration recognizing the compulsory jurisdiction of the
Court pursuant to Article 36, paragraph 2, of the Statute, as such, but the
temporal modality of its application in the light of the reciprocity
condition.
It appears that Judge Kooijmans was right in noting that:
"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 con-clusion 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." (Legality of Use of Force
(Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J.
Reports 1999 (I), p. 177, para. 16, separate opinion of Judge Kooijmans;
emphasis added.)
Reciprocity has nothing to do with the validity of a declaration as a
jurisdictional instrument, having in mind that it is limited in its effect
to the temporal scope of the obligation covered by the declaration. It is
capable of producing effect only limiting jurisdiction to the common ground
[p 968] accepted by both parties, as stated by the Court in the Interhandel
case:
"Reciprocity enables the State which has made the wider acceptance of the
jurisdiction of the Court to rely upon the reservations to the acceptance
laid down by the other Party. There the effect of reciprocity ends."
(Preliminary Objections, Judgment, I.C.J. Reports 1959, p. 23; emphasis
added.)
Having in mind the provisions of Article 36, paragraph 2, of the Statute of
the Court, and considering that Yugoslavia did not accept the jurisdiction
of the Court on the basis of Security Council resolution 9 (1946), it
transpires that the presumption of the validity of Yugoslavia's declaration
only ratione materiae is a narrowed presumption of the membership of
Yugoslavia in the United Nations.
22. The Court furthermore resorted to the presumption of the legal identity
and continuity of the FRY when referring to the Genocide Convention, and
found that it lacks jurisdiction due to the fact that genocidal intent on
the part of the respondent States has not been proved.
In other words, the Court found that, in casu, there exists, at least, prima
facie jurisdiction ratione personae — on the basis of the contractual nexus
between the Applicant and the Respondent in the framework of the Genocide
Convention — and the lack of jurisdiction ratione materiae on the basis of
the Convention was ascribed by the Court to the fact that genocidal intent,
as an element of the crime of genocide, has not been made probable.
It is obvious that the finding of the Court regarding the FRY as a party to
the Genocide Convention was based in the formal declaration of the FRY of 22
April 1992, confirmed in an official Note of 27 April 1992 from the
Permanent Mission of Yugoslavia to the United Nations addressed to the
Secretary-General to the effect that:
"The Federal Republic of Yugoslavia, continuing the State, international
legal and political personality of the Socialist Federal Republic of
Yugoslavia, shall strictly abide by all the commitments that the Socialist
Federal Republic of Yugoslavia assumed internationally." (Application of
the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment,
I.C.J. Reports 1996 (II), p. 610, para. 17.)
The rules of interpretation of unilateral acts of States, accurately and
clearly set out in the Fisheries Jurisdiction (Spain v. Canada) case as
"declarations...are to be read as a whole" and "interpreted as a unity"
(Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 454, para. 47;
p. 453, para. 44), indicate that unilateral acts "must be interpreted as
[they stand], having regard to the words actually used" (Anglo-Iranian [p
969] Oil Co., Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 105),
with "certain emphasis on the intention of the... State" (Fisheries
Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J.
Reports 1998, p. 454, para. 48).
It is difficult, on the basis of these rules of interpretation of unilateral
acts of States, or even on the basis of any of them taken individually, to
draw a conclusion that the intention of Yugoslavia was to "strictly abide by
all the commitments that the Socialist Federal Republic of Yugoslavia
assumed internationally" (Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p.
6l0, para. 17) without reliance on, or on some other basis, except the legal
identity and continuity with the Socialist Federal Republic of Yugoslavia
(hereinafter referred to as the "SFRY"). (It is also disputable whether the
declaration of 27 April 1992 could be taken as a unilateral act creating
legal obligations at all. As the Court clearly stated in the Nuclear Tests
cases "[w]hen it is the intention of the State making the declaration that
it should become bound according to its terms, that intention confers on the
declaration the character of a legal undertaking" (Nuclear Tests (Australia
v. France), Judgment, I.C.J. Reports 1974, p. 267, para. 43; Nuclear Tests
(New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 472, para. 46).
Thus all depends on the intention of the State and it is up to the Court to
"form its own view of the meaning and scope intended by the author of a
unilateral declaration which may create a legal obligation" (Nuclear Tests
(Australia v. France), Judgment, I.C.J. Reports 1974, p. 269, para. 48;
Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p.
474, para. 50). It seems crystal clear from the text of the declaration that
the intention of Yugoslavia was not that it should become bound by
obligations of the former SFRY but to remain bound by "all obligations to
international organizations and institutions whose member it is".)
Having in mind that, after the adoption of the Constitution of 27 April
1992, Yugoslavia did not express its consent to be bound by the Genocide
Convention in the way stipulated by Article XI of the Convention and nor did
it issue the notification of succession, it is obvious that the only basis
for Yugoslavia to be considered a party to the Genocide Convention before
12 March 2001 is the legal identity and continuity of the SFRY in the domain
of multilateral treaties.
23. It seems clear that the aforementioned Court's presumptions were not, in
the circumstances surrounding the overall status of the FRY, of a violent
nature (violentia praesumptio). A contrario, the finding that the solution
adopted by General Assembly resolution 47/1 "is not free from legal
difficulties" (Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugo-[p
970]slavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April
1993, I.C.J. Reports 1993, p. 14, para. 18) would be devoid of substance.
Having in mind the relevant circumstances that existed until the admission
of Yugoslavia to membership in the United Nations, expressing relative
balance in terms pro et contra, it might be said that those presumptions
lie between light presumptions (praesumptiones facti vel hominis leves) and
probable presumptions (praesumptiones facti vel hominis graves).
3. The Legal Consequences of the Admission of the FRY to the United Nations
24. The FRY claimed legal identity and continuity with the SFRY until the
year 2000. Although, in my view, the FRY, in the light of the relevant rules
of international law — rules which are not quite clear and crystallized,
true — possessed the right to legal identity and continuity with the SFRY,
the continuity claim of the FRY, considered on the basis of eminently
political reasons, has not been accepted. This fact, when speaking about the
status of the FRY in the United Nations, is reflected in the status which
might be, very approximately, qualified as a kind of irregular de facto
suspension of membership rights on the model of "vacant seat". A model
which, in relation to the FRY, was originally applied in the Organization
for Security and Co-operation in Europe (OSCE).
25. At the end of the year 2000 the FRY, in the relevant context, did two
things:
(i) renounced the continuity claim and accepted the status of the successor
State of the former SFRY; and
(ii) proceeding from a qualitatively new legal basis — as the successor
State — submitted the application for admission to membership in the United
Nations.
26. The State, as a notion of international law, comprises two elements,
i.e., possesses two faces:
(i) statehood in the sense of the relevant attributes such as a defined
territory, stable population and sovereign power;
(ii) legal personality, i.e., the status of a subject of international law
equipped with a corpus of rights and obligations. The legal personality of
the FRY, in the light of the relevant circumstances surrounding it, can be
either of an inferential, derivative nature — based on the legal identity
and continuity with the SFRY — or of an inherent, original nature — based on
the status of a new State.
27. By submitting the application for admission to membership in the United
Nations, Yugoslavia not only renounced the claim to legal iden-[p 971]tity
and continuity but claimed at the same time to be accepted as a new State in
the sense of some other, different legal personality — a successor State
versus partial continuation of the former SFRY — from the one claimed until
the year 2000. In fact, it accepted the claim qualified as the claim of the
international community made at the moment of the formal proclamation of the
FRY in April 1992. A claim which, however, the rele-vant international
organizations as well as States, acting in corpore as members of the
organizations or individually, did not implement in either the formal or the
substantive sense. Instead, they opted for solutions based on pragmatic
political considerations rather than on considerations based on
international law. Hence, a legal "Rashomon" about the legal character of
Yugoslavia was created — it is a new State or the old State? — and about its
status in the United Nations — is it a Member of the United Nations or not?
28. The admission of Yugoslavia to membership of the United Nations from 1
November 2000 also meant the acceptance of the claim of Yugoslavia to be
accepted as a new State in the sense of a new international personality
different from its hybrid and controversial personality in the period
1992-2000. The claim was accepted by way of a series of collateral
agreements in a simplified form, or a general collateral agreement in a
simplified form, between the FRY, on the one hand, and the Member States of
the United Nations and the world Organization itself, on the other, embodied
tacitly in the letter and spirit of General Assembly resolution 55/12 and
subsequent consistent practice of the Organization (exempli causa, the
letter of the Under-Secretary-General and Legal Counsel of the United
Nations of 8 December 2000FN5 and the list of Member States with dates of
their admission to the United Nations (United Nations Press Release ORG/1317
updated 18 December 2000). The subject of the series of collateral
agreements, or of the general collateral agreement, is in fact recognition
of the FRY as a new personality, a personality of the successor State of
the former SFRY, and, in that capacity, [p 972] its admission to the world
Organization as a Member. Thus, Yugoslavia, although being the "old State"
in the sense of statehood, was universally recognized as a "new State" in
the sense of its international legal personality. In view of the fact that
recognition of a State has ex definitione retroactive effect, it necessarily
follows that all pronouncements and decisions taken relate to the FRY
claiming continuity with the SFRY. And, as far as the FRY after the year
2000 is concerned, its legal existence as a new international legal
personality started in November 2000 by its admission to membership of the
United Nations.
---------------------------------------------------------------------------------------------------------------------
FN5
The letter of the Under-Secretary-General and Legal Counsel of the United
Nations of 8 December 2000 relating to one of the relevant legal
consequences of the admission of the FRY in the United Nations in the
capacity of a successor State is basically of the administrative nature. In
that regard, it should be stressed that in its 1996 Judgment dealing with
the question of Bosnia and Herzegovina's participation in the Genocide
Convention, the Court noted that
"Bosnia and Herzegovina became a Member of the United Nations following the
decisions adopted on 22 May 1992 by the Security Council and the General
Assembly, bodies competent under the Charter. Article XI of the Genocide
Convention opens it to "any Member of the United Nations'; from the time of
its admission to the Organization, Bosnia and Herzegovina could thus become
a party to the Convention." (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II),
p. 611, para. 19; emphasis added.)
---------------------------------------------------------------------------------------------------------------------
29. General Assembly resolution 55/12 is not an ordinary resolution.
Resolutions on the admission of a State to the United Nations, as distinct
from recommendation, have a character of decision. Namely,
"the functions and powers conferred by the Charter on the General Assembly
are not confined to discussion, consideration, the initiation of studies
and the making of recommendations; they are not merely hortatory. Article 18
[of the Charter] deals with 'decisions' of the General Assembly 'on
important questions'. These 'decisions' do indeed include certain
recommendations, but others have dispositive force and effect. Among these
latter decisions, Article 18FN6 includes suspension of rights and privileges
of membership, expulsion of Members...In connection with the suspension of
rights and privileges of membership and expulsion from membership [Articles
5 and 6], it is the Security Council which has only the power to recommend
and it is the General Assembly which decides and whose decision determines
status."(Certain Expenses of the United Nations (Article 17, Paragraph 2, of
the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 163; emphasis
added.)
------------------------------------------------------------------------------------------------------------
FN6
Article 18 of the Charter enumerates, inter alia, "the admission of new
Members to the United Nations".
------------------------------------------------------------------------------------------------------------
Consequently, "[t]he decisions of the General Assembly would not be reversed
by the judgment of the Court" (Northern Cameroons, Preliminary Objections,
Judgment, I.C.J. Reports 1963, p. 33), for in the structure of the United
Nations the Court does not possess "the ultimate authority to interpret the
Charter" (Certain Expenses of the United Nations (Article 17, Paragraph 2,
of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 168). [p 973]
The determination made by the competent organs of the United Nations entails
the legal consequences. The admission of the FRY to the United Nations as a
Member from 1 November 2000 has two principal consequences in the
circumstances of the cases at hand:
(i) with respect to the admission of Yugoslavia as a Member as from 1
November 2000, it can be said, though somewhat descriptively, that what is
involved here is the admission "as a new Member". This expression indicates
its temporal status in relation to the Members admitted on an earlier date;
(ii) the admission of Yugoslavia as a Member as from 1 November 2000
qualified per se its status vis-à-vis the United Nations before that date.
It seems clear that, in the light of the decisions taken by the competent
organs of the United Nations, this status could not be a membership status.
A contrario, Yugoslavia could not have been admitted as a Member as from 1
November 2000. Just as it is impossible for things to be black and white at
the same time, Yugoslavia could not have been either a Member and a
non-Member in the period 1992-2000.
30. In the case at hand the Court was faced with several preliminary
objections of the Respondent, concerning both the special jurisdiction of
the Court in all three aspects (ratione personae, ratione materiae, ratione
temporis), the admissibility of the Applicant's claims and the general
jurisdiction of the Court (locus standi of Serbia and Montenegro).
Having found that there is a lack of jurisdiction, the Court based its
decision, essentially, on the absence of locus standi of Serbia and
Montenegro. It appears that it has chosen the right path.
In the choice of the ground on which the Court is basing its lack of
jurisdiction, the Court enjoys a certain discretion — discretio legalis —
whose limits are determined by common sense and overriding legal
considerations emanating from the very nature of the judicial function. In
that regard, the Court has produced a general formula in the Certain
Norwegian Loans case, stating that "the Court is free to base its decision
on the ground which in its judgment is more direct and conclusive"
(Judgment, I.C.J. Reports 1957, p. 25).
The Court puts the formula in concrete terms depending on the circumstances
of each particular case in order to determine the ground which, objectively,
has priority, both in terms of commonsense and in the sense of legal
considerations, in relation to the other grounds raised.
In concreto, it appears that locus standi of Serbia and Montenegro deserves
absolute priority in relation to the other grounds raised.
The priority emanates from the very nature of locus standi as the pre-[p
974] condition, in contrast to the other grounds raised representing the
conditions of the special jurisdiction of the Court in all the three
aspects raised, on which to base the jurisdiction of the Court in casu. As
such it alone is sufficient and capable, independently of other grounds
raised, of producing direct and conclusive effect on the jurisdiction of
the Court. None of the relevant aspects of the special jurisdiction of the
Court (ratione personae, ratione materiae, ratione temporis), as well as
special jurisdiction itself, possesses this capability. For, if Serbia and
Montenegro does not have locus standi, then any discourse about them is
devoid of any substance. It seems to be a proper application of the legal
principle, being also a principle of common sense, a majori ad minus.
Furthermore, it should not be taken as irrelevant that the choice made by
the Court corresponds to the purpose that the Respondent, as well as the
Applicant, attached to the issue of locus standi of Serbia and Montenegro in
their pleadings before the Court and final submissions respectively.
31. In the light of these considerations, especially under sections 1 and 3
of this part, I am of the opinion that the formulation of the dispositif
explicitly linked to the absence of locus standi of Serbia and Montenegro
would be more appropriate considering the circumstances of the cases. The
same effect could be produced by simply adding the adjective "general" to
the word "jurisdiction". Not only because the question of locus standi was
sedes materiae of these proceedings, but because such a formulation would
naturally derive what the Court said dealing with particular basis of
jurisdiction invoked (exempli causa, Judgment, paras. 45, 78 and 90). In the
formulation accepted it appears that the dispositif and reasoning of the
Court are not, at least, sufficiently coherent.
II. The Grounds Invoked by the Respondents for Rejecting the Application in
limine litis
1. Implicit Discontinuance as a contradictio in adiecto
32. The arguments of the Respondents, specifically elaborated by France,
tended to move in the direction of termination of the proceedings on the
basis of something that might be termed "implicit discontinuance".
Namely, it was contended that "the Federal Government of Yugoslavia
could... have made the choice — the simple, reasonable choice — to
discontinue the proceedings. This was not the case, at least not
explicitly." (CR2004/12, p. 6, paras. 3 and 4; emphasis added.) Commenting
on the Written Observations of the Federal Republic of Yugoslavia, counsel
for France finds that "[t]his looks very much like a discontinuance that
will not speak its name" (ibid., p. 8, para. 9 [translation by the
Registry]). [p 975]
Discontinuance, as designed by Articles 88 and 89 of the Rules of Court, is
comprised of two constitutive elements taken cumulatively: the will of the
parties and the proper process.
The will of the parties represents normative substance of discontinuance as
designed in Articles 88 and 89 of the Rules, serving as the legal basis on
which the discontinuance may be effected. By way of "the will of the
parties" discontinuance reflects the structural principle of consensual
jurisdiction in contentious cases according to which the Court cannot
discontinue or withdraw a case on behalf of the parties, if the parties do
not wish so. Viewed in that sense, the will of the parties is an overriding
condition for discontinuance within the meaning of Articles 88 and 89 of the
Rules.
The modalities of expression of the will differ. In accordance with Article
88 of the Rules, agreement of the parties is required and, in the light of
Article 89, paragraph 2, the absence of the objection of the respondent
which, in fact, constitutes the presumption of acquiescence, is of
relevance.
The proper process aimed at discontinuance implies the actions of the party
(or parties), as well as an order of the Court. The discontinuance process,
in terms of Articles 88 and 89 of the Rules, bears a dual characteristic:
primo, in view of substantial meaning of the will of the parties the order
of the Court represents a neutral act of the Court, an act whose "main
object...is to provide a procedural facility, or rather...to reduce the
process of discontinuance to order" (Barcelona Traction, Light and Power
Company, Limited, Preliminary Objections, Judgment, I.C.J. Reports 1964, p.
19); secundo, Article 88, paragraph 1, of the Rules provides that "the
parties, either jointly or separately, notify the Court in writing"
(emphasis added), while Article 89, paragraph 1, stipulates that "the
applicant informs the Court in writing" (emphasis added). The Court
effectuated it through an order with reference to Article 48 of the Statute
and Article 88 or 89 of the Rules respectively.
33. In concreto, the eventual discontinuance would, in the light of the
relevant circumstances of the case, have to be based on the provision of
Article 89, paragraph 2, of the Rules of Court which provides as follows:
"If, at the time when the notice of discontinuance is received, the
respondent has already taken some step in the proceedings, the Court shall
fix a time-limit within which the respondent may state whether it opposes
the discontinuance of the proceedings. If no objection is made to the
discontinuance before the expiration of the time-limit, acquiescence will be
presumed and the Court shall make an order officially recording the
discontinuance of the proceedings and directing the removal of the case from
the list. If objection is made, the proceedings shall continue."[p 976]
However, none of the elements of discontinuance, both those concerning the
will of the parties and those concerning the proper process, embodied in
that provision are met.
Serbia and Montenegro, as the Applicant, clearly and unambiguously expressed
the will not to discontinue the proceedings. In his concluding remarks
during the oral hearing, the Agent of Serbia and Montenegro repeatedly
pointed out that the Applicant "did not discontinue the proceedings"
(CR2004/23, p. 16, para. 21; p. 18, para. 27; p. 20, para. 34). As such, it
is obvious that Serbia and Montenegro could not have submitted notice of
discontinuance to the Court as provided for by Article 89, paragraph 2, of
the Rules. Some respondent States (the United Kingdom, the Netherlands and
France), true, saw notice of discontinuance in the Written Observations of
Serbia and Montenegro of 18 December 2002. The Applicant, in its reply to
those contentions contained in a letter dated 28 February 2003 from the
Agent of Serbia and Montenegro, stresses that "the Written Observations of
18 December 2002 do not represent such a notice of discontinuance". As the
will of the Applicant to discontinue the proceedings in concreto simply does
not exist, there are no elements for forming the will of the parties as the
basis of discontinuance. The statement of the Respondent regarding the
discontinuance of the proceedings is, in this case, irrelevant and could be
qualified as an invitation or a proposal to the Applicant to proceed to the
discontinuance process provided for in Article 89, paragraph 2, of the Rules
of Court.
34. The provisions of Articles 88 and 89 of the Rules, as a part of the
procedural law of the Court, are binding rules both upon the parties and
upon the Court itself. Although created by the Court, the relevant
procedural rules, as legal rules, possess an objective existence, imposing
the restraints that the Court itself must observe. The Court has no power to
modify the operation of Article 89 of the Rules ad casum. Such a
conclusion, it seems to me, clearly derives both from the nature of the
procedural rules, as legal rules, and from the legislative history of the
Rules of Court. The proposals that it should assume such a power were
rejected with the explanation that "the parties were entitled to have a
reliable guarantee of the stability of the rules of procedure" (Sixth
Meeting of 19 May 1934, P.C.I.J., Series D, No. 2 (3rd add.), p. 38).
It is true that, in contrast to Articles 93 to 97 of Part III of the Rules,
the provisions of Article 89 can be modified or supplemented by the parties
inter se in accordance with Article 101 of the Rules of Court, which
provides:
"The parties to a case may jointly propose particular modifications or
additions to the rules contained in the present Part (with the exception of
Articles 93 to 97 inclusive), which may be applied by the Court or by a
Chamber if the Court or the Chamber considers them appropriate in the
circumstances of the case." [p 977]
But the Parties to the present dispute have not had recourse to the
possibility offered by the provisions of Article 101.
35. In the light of the provisions of Article 89 of the Rules of Court
"implicit discontinuance" would be contradictio in adiecto. "Implicit
discontinuance" is in irreconcilable collision both with the explicit
intention of the Applicant to continue the proceedings and with the formal
nature of the discontinuance process. It would, in the circumstances of the
case at hand, imply that the Court renounce the ministerial function which
basically belongs to it in the construction of discontinuance on the basis
of Article 89. Accordingly, the order on discontinuance, too, which,
pursuant to Article 89 of the Rules, is of a declaratory nature (Article 89
determines the function of the order on discontinuance as "officially
recording the discontinuance of the proceedings"; in that sense, a
per-fectly coherent jurisprudence of the Court has also been formedFN7)
would assume the features of a constitutive act.
---------------------------------------------------------------------------------------------------------------------
FN7
Cases concerning Factory at Chorzow, Order of 25 May 1929, P.C.I.J., Series
A, No. 19,p.13; Delimitation of the Territorial Waters between the Island of
Castellorizo and the Coasts of Anatolia, Order of 26 January 1933, P.C.I.J.,
Series A/B, No. 51,p.6; Losinger, Order of 14 December 1936, P.C.I.J.,
Series A/B, No. 69, p. 101; Borchgrave, Order of 30 April 1938, P.C.I.J.,
Series A/B, No. 73,p.5; Appeals from Certain Judgments of the
Hungaro/Czechoslovak Mixed Arbitral Tribunal, Order of 12 May 1933,
P.C.I.J., Series A/B, No. 56, p. 164; Legal Status of the South-Eastern
Territory of Greenland, Order of 11 May 1933, P.C.I.J., Series A/B, No. 55,
p. 159 (in this case the Court took note that Norway and Denmark had
withdrawn their respective applications); Prince von Pless Administration,
Order of 2 December 1933, P.C.I.J., Series A/B, No. 59, pp. 195-196; Polish
Agrarian Reform and German Minority, Order of 2 December 1933, P.C.I.J.,
Series A/B, No. 60, pp. 202-203; Aerial Incident of 27 July 1955 (United
States of America v. Bulgaria), Order of 30 May 1960, I.C.J. Reports 1960,
pp. 146-148; Barcelona Traction, Light and Power Company, Limited, Order
of10 April 1961, I.C.J Reports 1961, pp. 9-10; Trial of Pakistani Prisoners
of War, Order of 15 December 1973, I.C.J. Reports 1973, pp. 347-348; Border
and Transborder Armed Actions (Nicaragua v. Costa Rica), Order of19 August
1987, I.C.J. Reports 1987, pp. 182-183; Passage through the Great Belt
(Finland v. Denmark), Order of 10 September 1992, I.C.J. Reports 1992, pp.
348-349; Vienna Convention on Consular Relations (Paraguay v. United States
of America), Order of 10 November 1998, I.C.J. Reports 1998, p. 427.
The acquiescence of respondent State has been presumed in the case
concerning Protection of French Nationals and Protected Persons in Egypt,
Order of 29 March 1950, I.C.J.Reports 1950,p.60.
On the basis of a unilateral act of the applicant, discontinuance has been
effectuated in the cases concerning Denunciation of the Treaty of2 November
1865 between China and Belgium, Order of 25 May 1929, P.C.I.J., Series A,
No. 18,p.7; Trial of Pakistani Prisoners of War, Order of 15 December 1973,
I.C.J. Reports 1973, p. 348.
---------------------------------------------------------------------------------------------------------------------
36. The respondent States, in formulating the thesis of "implicit
discontinuance", seem to have been inspired by the reasoning of the Court
in the cases concerning Nuclear Tests (Australia v. France) and Nuclear
Tests (New Zealand v. France). However, the relevant facts of the Nuclear
Tests cases do not offer ground for any analogy whatsoever with this
particular case.
The Nuclear Tests cases have not been discontinued on the basis of [p 978]
Articles 88 and 89 of the Rules. The Court, in fact, terminated the
proceedings in those cases due to the lack of object of the Application,
following its reasoning in the Northern Cameroons case (Preliminary
Objections, Judgment, I.C.J. Reports 1963, p. 38). The Court found, inter
alia, that "[t]he object of the claim having clearly disappeared, there is
nothing on which to give judgment" (Nuclear Tests (Australia v. France),
Judgment, I.C.J. Reports 1974, p. 272, para. 59) and that
"[t]he conclusion at which the Court has arrived... does not mean that it is
itself effecting a compromise of the claim; the Court is merely ascertaining
the object of the claim and the effect of the Respondent's action" (ibid.,
p. 270, para. 54; emphasis added).
It is obvious in this particular case that the object of the Application
stands as defined at the moment of instituting the proceedings, causing the
real dispute before the Court, whereas the respondent State did not take any
action nor assumed any commitment whereby the objective of the Applicant
would have been accomplished. (See the objective of the Applicant, Judgment,
para. 21.)
2. The Congruence of the Statements of Facts by the Parties and the Duty of
the Court to Examine its Jurisdiction ex officio
37. In their preliminary objections all the Respondents have found, inter
alia, that the Applicant was neither a Member of the United Nations nor
party to the Statute of the Court, and accordingly did not have access to
the Court at the time of submission of its Application, as sine qua non
condition of the Court's jurisdiction.
The Applicant for its part, contended that it was admitted to the United
Nations on 1 November 2000 as a new Member and furthermore that it was not
bound by the Statute pursuant to Article 93, paragraph 2, of the United
Nations Charter; nor did it issue a declaration as contemplated in Article
35, paragraph 2, of the Statute of the Court.
38. The Respondent contended that, due to the fundamental change of its
position regarding membership in the United Nations and its status as a
party to the Genocide Convention respectively, Serbia and Montenegro should
be estopped from continuing the proceedings on the preliminary objections.
The contention seems to be dubious for the following reasons. Primo, the
doctrine of estoppel is basically founded on the maxim allegans contraria
non est audiendus. It could not be taken, however, that, by claiming
continuity of the membership in the United Nations, the Applicant has made
a representation on the faith of which the Respondent has changed its own
position suffering some prejudice. As a matter of fact, by changing its
position regarding membership in the United Nations and its status as a
party to the Genocide Convention, the Applicant has acted against the case
it instituted before the Court. Of key importance is the [p 979] question
whether the change has taken place on a basis of caprice or a litigation
opportunity or, indeed, as an expression of accommodation to the real state
of affairs created without the Applicant's active participation, which it
could not resist. Secundo, estoppel, even supposing it to be established in
casu, cannot operate against the question of locus standi as a
constitutional requirement of the Statute establishing the objective limit
of exercise of the judicial function of the Court. Tertio, it appears that
the Respondent influenced, or could have influenced, the Applicant's
position in relation to the two relevant jurisdictional facts: membership of
the Applicant of the United Nations and its status as a party to the
Genocide Convention. Acting as a Member State of the United Nations, the
Respondent voted for the legally contradictory General Assembly resolution
47/1. It must have been aware of the strong elements of political
instrumentality contained in the resolution. Besides, the Respondent has not
dissociated itself from the subsequent practice of the United Nations
organs. The Respondent's position — that the Applicant is one of five equal
successors of the SFRY — is, in the circumstances of this particular case,
in conflict with the treatment of the Applicant as a party to the Genocide
Convention. It is a matter of public knowledge that, until 12 March 2001,
the Applicant had not expressed its consent to be bound by the Convention in
accordance with Article XI of the Convention, nor did it, for that matter,
issue notification of succession. In the absence of any rules of positive
international law on automatic succession, the only basis to consider the
Applicant as a party to the Genocide Convention is in its legal identity and
continuity with the SFRY.
39. It is indisputable that the statements of facts by the Parties relating
to the status of the Applicant in the United Nations as well as to the
Statute of the Court coincide at this phase of the proceedings. (It would be
difficult to claim in concreto that this amounts to the acceptance or
recognition by the Applicant of the Respondent's statement of facts.
Recognition or acceptance is a volitional act, the expression of the
intention of one party to bow to the allegations of the other party.
Rather, what is involved here is a concurrence of the statements of facts by
the parties, having in mind that the Applicant formulated its own statement
of facts concerning the relevant matter, practically with an identical
content, already at the time of the "Initiative to the Court to reconsider
ex officio jurisdiction over Yugoslavia" (4 May 2001) and in the case
concerning Application for Revision.)
It could not be taken for granted, however, that the concurrence or even the
recognition of the statement of facts as presented by the Respondent, on
the part of the Applicant, is determinative of the case and that it removes
per se the need to examine the jurisdiction of the Court. [p 980]
(a) Aspect of the legal logic
40. Concurrence or recognition, direct or indirect, of the statement of
facts of one party to the proceedings only determines the content of
praemisae minor of the Court's syllogism whose conclusio is the ruling on
the justification of the preliminary objection. Understood in this sense,
concurrence or recognition of the statement of facts does not determine, or
at least does not determine in full, the law that the Court should apply —
praemisae major.
If the concurrence of the statement of facts of the parties had an
automatic effect on the jurisdiction of the Court, then the parties, and
not the Court, would be deciding, in the substantive sense, the relevant law
that regulates the jurisdiction of the Court. And such an outcome would mean
a departure from the principle, deriving from the very essence of the
judicial function, i.e., that the Court is the sole judge of its
jurisdiction.
(b) Normative aspect
41. In view of the fact that "the establishment or otherwise of
jurisdiction is not a matter for the parties but for the Court itself”
(Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court,
Judgment, I.C.J. Reports 1998, p. 450, para. 37; also, individual opinion of
President McNair in the jurisdiction phase of the case concerning
Anglo-Iranian Oil Co. in which he stated that "[a]n international tribunal
cannot regard a question of jurisdiction solely as a question inter partes"
(Preliminary Objection, Judgment, I.C.J. Reports 1952, pp. 116-117)), the
dispute of the parties regarding the jurisdiction in the preliminary
objection phase is not a necessary condition for the Court to address the
issue of jurisdiction.
Preliminary objections raised by a party are only a tool, a procedurally
designed weapon for the establishment of the jurisdiction of the Court, suo
nomine et suo vigore, for it is under an obligation to do so ex officio. The
legal meaning of the proceedings on preliminary objection has been defined
by the Court in the case concerning Rights of Minorities in Upper Silesia
(Minority Schools) (hereinafter referred to as "Minority Schools"), as
follows:
"the raising of an objection by one Party merely draws the attention of the
Court to an objection to the jurisdiction which it must ex officio
consider"(Rights of Minorities in Upper Silesia (Minority Schools), Judgment
No. 12, 1928, P.C.I.J., Series A, No. 15,p.23; emphasis added).
Or, as stated by the Court in the Genocide Convention case:
"[t]he Court must, in each case submitted to it, verify whether it has
jurisdiction to deal with the case... [S]uch objections as are raised [p
981]by the Respondent may be useful to clarify the legal situation."
(Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 622, para.
46; emphasis added.)
Accordingly, the establishment of the jurisdiction by the Court in casu is
not necessarily linked with the dispute as to jurisdiction. If the duty of
the Court to verify its jurisdiction in each particular case exists
regardless of the preliminary objection as such, then the pleadings of the
parties in the proceedings are not a fortiori of decisive importance in that
sense. If as Shabtai Rosenne, commenting on the case concerning Monetary
Gold Removed from Rome in 1943 (hereinafter referred to as "Monetary Gold"),
says:
"[t]he fact that an objection is made does not mean — in the eyes of the
Court — that the Court is being asked not to determine the merits of the
claim under any circumstances" (Shabtai Rosenne, The Law and Practice of the
International Court, 1920-1996, Vol. II (Jurisdiction), p. 863),
then the contrary is equally valid, i.e., that the Court is being asked not
to determine the merits of the claim if an objection to the preliminary
objection is not made. In that sense, an extensive practice of the Court has
been established.
The dictum of the Court in the case concerning the Appeal Relating to the
Jurisdiction of the ICAO Council (hereinafter referred to as "ICAO Council")
could represent a synthesis of that practice: "[t]he Court must however
always be satisfied that it has jurisdiction, and must if necessary go into
that matter proprio motu"(Judgment, I.C.J. Reports 1972, p. 52, para. 13).
This is also reflected in the opinions of judges. (In the case concerning
Mavrommatis Palestine Concessions, Judge Moore in his dissenting opinion
stated "even though the parties be silent, the tribunal, if it finds that
competence is lacking, is bound of its own motion to dismiss the case"
(Judgment No. 2, 1924, P.C.I.J., Series A, No. 2,p.58); in the Minority
Schools case, Judge Huber in his dissenting opinion found that the Court
"must ex officio ascertain on what legal foundation it is to base its
judgment upon the claims of the Parties" (Judgment No. 12, 1928, P.C.I.J.,
Series A, No. 15, p. 54); and in the case concerning the Free Zones of Upper
Savoy and the District of Gex, Judge Kellogg pointed out in his observations
attached to the Order of 6 December 1930 that it was not necessary that the
question of jurisdiction be raised by one of the parties, since "[i]t may
and should be raised by the Court on its own initiative, as was done in the
Eastern Carelia case" (Order of 6 December 1930, P.C.I.J., Series A, No. 24,
p. 43).)
42. The question of the jurisdiction of the Court bears two dominant
features: (a) the question of jurisdiction of the Court is a questio juris;
and (b) the question of jurisdiction of the Court is a matter of
international public order. [p 982]
(a) As a questio jurisFN8 the jurisdiction of the Court is within the scope
of the principle jura novit curia. In the case concerning Territorial
Jurisdiction of the International Commission of the River Oder (hereinafter
referred to as "River Oder") the Polish Government did not contend that the
Barcelona Convention had not been ratified by Poland until the oral
proceedings. The six respondents asked the Court to reject the Polish
contention a limine, for having been submitted at such an advanced stage of
the proceedings. The Court dismissed the objection as untenable for "[t]he
fact that Poland has not ratified the Barcelona Convention not being
contested, it is evident that the matter is purely one of law such as the
Court... should examine ex officio" (Judgment No. 16, 1929, P.C.I.J., Series
A, No. 23, p. 19).
---------------------------------------------------------------------------------------------------------------------
FN8
"The existence of jurisdiction of the Court in a given case is . . . not a
question of fact, but a question of law to be resolved in the light of the
relevant facts." (Border and Transborder Armed Actions (Nicaragua v.
Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988,
p. 76, para. 16.)
The question of the Court's jurisdiction is
"necessarily an antecedent and independent one — an objective question of
law — which cannot be governed by preclusive considerations capable of being
so expressed as to tell against either Party — or both Parties" (Appeal
Relating to the Jurisdiction of the ICAO Council, Judgment, I.C.J. Reports
1972, p. 54, para. 16 (c)).
---------------------------------------------------------------------------------------------------------------------
Being bound by law, the Court is not bound by the arguments of the parties.
This follows clearly from the principle jura novit curia addressed by the
Court in its Judgments in the cases concerning Fisheries Jurisdiction
(United Kingdom v. Iceland) and Fisheries Jurisdiction (Federal Republic of
Germany v. Iceland):
"The Court...as an international judicial organ, is deemed to take judicial
notice of international law, and is therefore required in a case falling
under Article 53 of the Statute, as in any other case, to consider on its
own initiative all rules of international law which may be relevant to the
settlement of the dispute...for the law lies within the judicial knowledge
of the Court." (Merits, Judgment, I.C.J. Reports 1974, p. 9, para. 17;
ibid., p. 181, para. 18; emphasis added.)
The principle has also been confirmed in the Nicaragua case by a dictum that
"[f]or the purpose of deciding whether the claim is well founded in law, the
principle jura novit curia signifies that the Court is not solely dependent
on the argument of the parties before it with respect to the applicable law"
(Merits, Judgment, I.C.J. Reports 1986,p.24, para. 29; cf. "Lotus", Judgment
No. 9, 1927, P.C.I.J., Series A, No. 10, p. 31);
consequently, the rule according to which a party seeking to assert a fact
[p 983] must bear the burden of proving it "has no relevance for the
establishment of the Court's jurisdiction" (Fisheries Jurisdiction (Spain
v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p.
450, para. 37).
(b) The disposition of the parties, although being the dominant principle
in the proceedings before the Court, suffers limitations.
These limitations derive from the objective rules of the Statute and the
Rules of Court defining the nature and limits of the Court's judicial
action. As constitutional norms (R. Monaco, "Observations sur la hierarchie
des sources du droit international", Festschrift fur Hermann Mos-ler, 1983,
pp. 607-608) or as règles préceptives (intervention of Judge M. Yovanovitch,
Preliminary Session of the Court, P.C.I.J., Series D, No. 2, p. 59), these
rules transcend the disposition of the parties and pertain to the
international public order.
As a matter of international public order superior to the will of the
parties the question of jurisdiction need not necessarily be raised by the
parties themselves but the Court can and should examine it ex officio. (Cf.
Territorial Jurisdiction of the International Commission of the River Oder,
Judgment No. 16, 1929, P.C.I.J., Series A, No. 23, pp. 18-19; Fisheries
Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court,
Judgment, I.C.J. Reports 1973, p. 7, para. 12; p. 54, para. 13; Prince von
Pless Administration, Order of 4 February 1933, P.C.I.J., Series A/B, No.
52,p.15; Factory at Chorzôw, Jurisdiction, Judgment No. 8, 1927, P.C.I.J.,
Series A, No. 9, p. 32.)
43. In the practice of the Court the expressions ex officio and proprio motu
are used as interchangeable, although there exist differences in the meaning
of these two expressions. The expression "proprio motu" implies the
discretionary authority of the Court to take action on its own initiative.
The action taken by the Court "ex officio" is an expression of the duty of
the Court by virtue of its judicial function. The exclusion of the
discretion of the Court relates to the action itself and does not touch upon
the freedom of the Court in respect of the ruling.
The linking element of these two expressions is of a negative nature and is
reflected in the fact that it is about the actions which the Court takes or
may take irrespective of the will and the processual actions of the parties.
The genuine difference in the meaning of these two expressions is overcome
in some dicta of the Court by adding the qualification "must" to the
expression "proprio motu" as in, for example, the Court's Judgment in the
ICAO Council case (Judgment, I.C.J. Reports 1972, p. 52, para. 13). Thus, in
fact, the Court's own motion is qualified as the obligation and the action
proprio motu deprives it of discretion and turns it into action ex officio.
44. As questio juris pertaining to the public order, jurisdiction is
determined by the decision of the Court, formal or informal, on the basis
of the principle of compétence de la compétence. In the context of the case
at [p 984] hand, it is necessary to distinguish between the general
principle of compétence de la compétence and its narrow normative
projection expressed in Article 36, paragraph 6, of the Statute. Namely,
some of the Respondents have asserted that specific terms in Article 36,
paragraph 6, of the Statute provide that "in the event of a dispute as to
whether the Court has jurisdiction, the matter shall be settled by the
decision of the Court" (counsel for the United Kingdom, CR2004/10, p. 10;
emphasis in the original; counsel for France, CR2004/12, p. 12).
(c) Principle compétence de la compétence
45. The general principle of compétence de la compétence represents a basic
structural and functional principle inherent to any adjudicatory body,
whether a regular court or any other body possessing adjudicatory powers.
The principle is, as pointed out by United States Commissioner Gore in the
Betsey case (1797), "indispensably necessary to the discharge of any...
duties" for any adjudicatory body (J. B. Moore (ed.), International
Adjudications, Ancient and Modern, History and Documents, Modern Series,
Vol. IV, p. 183).
As such the principle is confirmed in the Court's jurisprudence. In the
Nottebohm case, the Court stated inter alia:
"Paragraph 6 of Article 36 merely adopted, in respect of the Court, a rule
consistently accepted by general international law in the matter of
international arbitration. Since the Alabama case, it has been generally
recognized, following the earlier precedents, that, in the absence of any
agreement to the contrary, an international tribunal has the right to decide
as to its own jurisdiction and has the power to interpret for this purpose
the instruments which govern that jurisdiction . . .
…………………………………………………………………………………………….
Consequently, the Court has not hesitated to adjudicate on the question of
its own jurisdiction in cases in which the dispute which had arisen in this
respect went beyond the interpretation and application of paragraph 2 of
Article 36. In the Corfu Channel case (Judgment of April 9th, 1949, I.C.J.
Reports 1949, pp. 23-26 and 36), the Court adjudicated on a dispute as to
whether it had jurisdiction to assess the amount of compensation, a dispute
which related to the interpretation of a Special Agreement; in the
Ambatielos case (Judgment of July 1st, 1952, I.C.J. Reports 1952, p. 28),
the Court adjudicated upon a dispute as to its jurisdiction which related to
the interpretation of a jurisdictional clause embodied in a treaty; in both
cases the dispute as to the Court's jurisdiction related to paragraph 1 and
not to paragraph 2 of Article 36.
Article 36, paragraph 6, suffices to invest the Court with power to
adjudicate on its jurisdiction in the present case. But even if this were [p
985] not the case, the Court, 'whose function is to decide in accordance
with international law such disputes as are submitted to it' (Article 38,
paragraph 1, of the Statute), should follow in this connection what is laid
down by general international law. The judicial character of the Court and
the rule of general international law referred to above are sufficient to
establish that the Court is competent to adjudicate on its own jurisdiction
in the present case." (Preliminary Objection, Judgment, I.C.J. Reports 1953,
p. 119-120; emphasis added.)
Being one of the relevant features establishing its judicial nature, the
power of the Court to determine whether it has jurisdiction, emanating from
the general principle compétence de la compétence, is an inherent right and
duty of the Court knowing no limitations (cf. Electricity Com-pany of Sofia
and Bulgaria, Judgment, 1939, P.C.I.J., Series A/B, No. 77, pp. 102-103,
dissenting opinion of Judge Urrutia). The Court exercises its inherent power
from the institution of the proceedings until its end with a view to
establishing whether it possesses jurisdiction or not in the particular
case. (In reality, the Court proceeds to exercise its inherent power in two
ways: (a) by ascertaining the existence of processual requirements for
jurisdiction through prima facie assessment, being substantively a judicial
presumption of jurisdiction or (b) by adopting a formal decision on the
jurisdiction. In that sense, the power of the Court to determine whether it
has jurisdiction in a given case seems absolute, considering that the Court,
even when declaring that it has no jurisdiction in casu, exercises that
inherent power.)
46. Apart from its expression in Article 36, paragraph 6, the general
principle of compétence de la compétence, has found its expression in
several provisions of the Statute. Article 53, paragraph 2, of the Statute
provides that "[t]he Court must... satisfy itself, not only that it has
jurisdiction...but also that the claim is well founded in fact and law". In
the Fisheries Jurisdiction cases, the Court stated, inter alia, that
"Article 53 of the Statute both entitles the Court and, in the present
proceedings, requires it to pronounce upon the question of its
jurisdiction" (Jurisdiction of the Court, Judgment, I.C.J. Reports
1973,p.22, para. 45, and p. 66, para. 45; emphasis added).
The application of the general principle of compétence de la compétence can
be seen also in part of the provisions of Article 41 of the Statute
authorizing the Court to indicate provisional measures proprio motu.
The rules of the law of the Court deriving from the general principle of
compétence de la compétence are also rules in Article 32, paragraph 2, of
the Rules of Court, as well as Article 38, paragraph 5. The fact that in
both cases the relevant role is played by the Registry of the Court does not
affect the nature of the rules.
In its application the principle is not restricted to the contentious pro-[p
986]cedure. It is equally relevant also in the advisory procedure. As the
Court stated in the case concerning Legality of the Use by a State of
Nuclear Weapons in Armed Conflict, "it is incumbent on the Court to satisfy
itself that the conditions governing its own competence to give the opinion
requested are met"(Advisory Opinion, I.C.J. Reports 1996 (I),p.83, para. 29;
emphasis added). The substantive analogy between the contentious and the
advisory procedures (in the Status of Eastern Carelia case the Court stated
that it was the right and obligation of the Court to examine its own
jurisdiction in advisory as well as in contentious cases (Report by the
Registrar (June 1933), P.C.I.J., Series D, No. 2 (3rd add.), p. 837) in this
particular matter has its foundation in the provision of Article 68 of the
Statute. The Court must in every request for an advisory opinion assure
itself of its jurisdiction. It is not absolved from doing so by assuming
that a request for an opinion is determinative of the Court's power to give
opinion on the particular question. (Cf. Shabtai Rosenne, "The Advisory
Competence of the International Court of Justice", Revue de droit
international, de sciences diplomatiques et politiques (A. Sottile, Geneva),
January-March 1952, No. 1, p. 33; Georg Schwarzenberger, "Trends in the
Practice of the World Court", Current Legal Problems, Vol. 4, 1951, p. 27.)
47. The power of the Court to determine whether it has jurisdiction in casu,
emanating from the general principle of compétence de la compétence, should
be distinguished from the corresponding power of the Court to determine the
extent of its jurisdiction.
The extent of jurisdiction of the Court is not a matter to be decided on the
basis of the principle of compétence de la compétence solely as a
functional norm, but on the basis of substantive norms of the Statute
defining the scope of exercise of the judicial function of the Court. In
that regard, the basic norm of the consensual nature of the Court's
jurisdiction, some sort of a constitutional norm of the law of the Court and
international tribunals as well, is of relevance.
Already in its Judgment No. 2, the Permanent Court of International Justice
clearly established the limits of its jurisdiction by stating that "the
Court, bearing in mind the fact that its jurisdiction is limited, that it is
invariably based on...consent...and only exists in so far as this consent
has been given" (Mavrommatis Palestine Concessions, 1924, P.C.I.J., Series
A, No. 2, p. 16).
48. Article 36, paragraph 6, of the Statute is a narrow, restrictive
expression of the general principle of compétence de la compétence. The
application of the principle of compétence de la compétence expressed in
Article 36, paragraph 6, presupposes a dispute as to whether the Court has
jurisdiction. Hence the Court, acting on the basis of Article 36, paragraph
6, of the Statute, both logically and from the normative aspect, is not in a
position to raise a question of its jurisdiction ex officio. Basically, the
Court then, exercising its judicial function, only adjudicates the disputes
as to its jurisdiction ex officio. It is here that, strictissimo sensu, lies
[p 987] the normative meaning of the principle of compétence de la
compétence as expressed in Article 36, paragraph 6, of the Statute.
In practice there were cases where the Court, in the jurisdictional phase of
the proceedings, proprio motu, raised the question not raised by parties.
For instance, in the Interhandel case the Court applied proprio motu the
objection to its jurisdiction ratione temporis to the alternative claim
(Preliminary Objections, Judgment, I.C.J. Reports 1959, p. 22). Such an
approach of the Court could be qualified as the overlapping of the general
and the particular, i.e., of the general principle of compétence de la
compétence and its narrower expression embodied in Article 36, paragraph 6,
of the Statute.
49. It is doubtful whether the application of Article 36, paragraph 6, of
the Statute is excluded, as the respondent States asserted, in the present
case, in toto. It seems obvious that it depends on whether the statements of
parties concerning the facts coincide entirely.
That is not the case. Namely, the statements of the Parties coincide only
partially, relating mainly to the jurisdiction of the Court ratione
personae, or, to be more precise, to the status of the Applicant in relation
to the Statute of the Court.
If the statements of the Parties appear to be founded in this matter, the
conclusion affects only the jurisdiction of the Court according to Article
36, paragraph 2, of the Statute, but does not necessarily — without knowing
the finding of the Court on the meaning of the expression "the special
provisions contained in treaties in force" in Article 35, paragraph 2, of
the Statute — affect the jurisdiction of the Court as set forth in Article
IX of the Genocide Convention.
Regarding the Genocide Convention as a "treaty in force" at the time of
submission of the Application, there is, however, a real — though latent —
hidden dispute between the Parties. The Applicant contended that it became
a party to the Genocide Convention by accession on 12 March 2001, while the
Respondents implicitly allowed that the Applicant was a party at the time of
submission of the Application.
Finally, the positions of the Parties were directly and completely opposed
regarding the jurisdiction of the Court ratione materiae and ratione
temporis.
50. The principle compétence de la compétence in its integral form —
comprising both the general principle and its expression in Article 36,
paragraph 6, of the Statute — is a judicial weapon which achieves a double
objective:
Primo, it allows the Court to establish its jurisdiction as the application
of the basis or constitutional norm of the consensual nature in casu either
ex officio or upon objection to its jurisdiction. At the same time, it gives
the Court a legal basis to check, in the development of the proceedings, its
judicial presumptions on its jurisdiction, until a conclusive, definitive [p
988] finding on its jurisdiction. Acting in that way, in the conditions of
nonexistence of multi-tier judiciary in the international community, the
Court de facto acts as a sui generis appellate court in the question of
jurisdiction.
Secundo, in a litigation as tripartite processual relation, it is a judicial
weapon by which the Court not only solves the dispute on jurisdiction, but
the challenge to its own decision on the jurisdiction taken in the
preliminary objection phase either ex officio or at the request of a party
in the revision procedure.
Therefore, it could be said that the principle of competence de la
competence in its integral expression enables the Court to ascertain in
every phase of the proceedings, according to the circumstances and degree of
knowledge, its jurisdiction as the basis and framework of the proper
administration of justice.
51. The Court, when using its right and performing its duties on the basis
of the principle of competence de la competence, acts, basically, in three
ways:
(i) it decides ex officio in the proceedings of preliminary objections in
the dispute between the parties as to jurisdiction;
(ii) it raises proprio motu the question of jurisdiction (or, as it is
sometimes said, imprecisely, "raises an objection to jurisdiction", for it
cannot object to jurisdiction as the determination of the matter is in its
exclusive domain), requesting the parties to act pursuant to Article 79,
paragraph 6, of the Rules or, acting itself in accordance with Article 38,
paragraph 5, of the Rules. The proprio motu action of the Court is the
technical realization of the right and duty of the Court to ascertain ex
officio its competence; and
(iii) the ex officio examination of the jurisdiction as an autonomous
judicial action which does not rely on the actions of the parties. The very
examination of jurisdiction, apart from the decision of the Court on
jurisdiction, being some sort of organic judicial action, inherent element
of the legal reasoning of the Court, must not be exercised in a due form,
but in a manner the Court finds appropriate.
3. The Effect on the Dispute of the Congruence of Views between the Parties
as to Jurisdiction
52. In this regard, the assertions made by the Respondents have two meanings
(cf. CR2004/6, pp. 15-17; CR2004/7, pp. 10-12; CR2004/10, p. 7; CR2004/12,
p. 12):
— that just as the existence of a dispute is a preliminary condition for the
continuation of the proceedings on the merits phase, so is the [p 989]
dispute as to jurisdiction a condition for the continuation of the
proceedings on preliminary objections; and — that agreement between the
parties as to a question of jurisdiction is determinative of the case, and
that, as a result, the dispute before the Court has disappeared.
(a) The existence of a dispute as to jurisdiction as a preliminary
condition for the continuation of the proceedings on preliminary
objections
53. The equalization between the proceedings on the merits and the
proceedings on preliminary objection would be highly doubtful. Namely, it
ignores the specific features of judicial activity of the Court in the
jurisdictional phase of the proceedings, features which derive from the
nature of the question of jurisdiction. ("The Court finds that Italy's
acceptance of jurisdiction is one thing, while her raising of a legal issue
on jurisdiction is quite another." (Monetary Gold Removed from Rome in
1943, Preliminary Question, Judgment, I.C.J. Reports 1954, p. 29.) The
practical outcome of such equalization would consist of the treatment of
the question of jurisdiction as quaestio facti and as a matter inter partes
which is in sharp contradiction with its true nature (see paragraphs 40-44
of this opinion).
54. It is based on the idea of the transplantation of the rule regarding
"the existence of a dispute [as] the primary condition for the Court to
exercise its judicial function" (Nuclear Tests (New Zealand v. France),
Judgment, I.C.J. Reports 1974, p. 476, para. 58) in the merits phase of a
case into the incidental proceedings of the preliminary objections. This
transplantation is however impossible taking into consideration the very
nature of the question of jurisdiction. It is directly aimed against the
inherent right and duty of the Court to determine its jurisdiction. In that
regard, the formulation of the relevant provisions of the Rules of Court
concerning preliminary objections is indicative. Paragraph 2 of Article 79
of the Rules provides in imperative (wording) formulation that "the
preliminary objection shall set out the facts and the law on which the
objection is based" (emphasis added) whereas paragraph 3 of Article 79
provides, inter alia, that "the other party may present a written statement
of its observations and submissions" (emphasis added). The asymmetrical
relations between the provisions of Article 79 of the Rules — obligations
stricti juris of the Respondent on the one hand, and a right of the
Applicant on the other — represent an indirect expression of a different
nature of the proceedings on the merits and that of the incidental
pro-ceedings on preliminary objection (Article 49 of the Rules establishes
the duties of the parties regarding the Memorial and Counter-Memorial
symmetrically).
55. There is a substantive symmetry in the relevant elements of the case in
hand and the Monetary Gold case. In the latter case, Great [p 990] Britain,
in its final Submission No. 1 (b) contended that, by raising the preliminary
objection, the
"Application . . .
………………………………………………………………………………………………
(b) has been in effect withdrawn or cancelled by Italy" (Preliminary
Question, Judgment, I.C.J. Reports 1954, p. 25; see also ibid., p. 30).
However, the Court found that "[t]he raising of the Preliminary Question by
Italy cannot be regarded as equivalent to a discontinuance" (ibid., p. 30).
As to the Submission contending that the Italian Application should be held
to be "invalid and void" (ibid.), the Court found that
"it is enough to state that the Application, if not invalid at the time it
was filed, cannot subsequently have become invalid by reason of the
preliminary question which Italy raised with regard to the Court's
jurisdiction in this case" (ibid.).
(b) The congruence of views between the Parties as to jurisdiction and the
alleged disappearance of the dispute on the merits
56. The contention that there exists a substantive nexus between the dispute
as to jurisdiction and the dispute on the merits is, in the light of the
uniform jurisprudence of the Court on the issue of a legal dispute, even
more surprising. The relevant constituent elements of the legal dispute
seem to be clearly presented in the case at hand.
The contents of the Application, the Memorial, the Preliminary Objections
and other relevant materials, create a clear picture of the situation in
which "two sides hold clearly opposite views concerning the question of the
performance or non-performance of certain treaty obligations"
(Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First
Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74; hereinafter referred to
as "Interpretation of Peace Treaties") as well as the performance of
obligations under general international law embodied in the United Nations
Charter (Memorial of 5 January 2000, pp. 301-346). The Applicant charges the
Respondents that by "bombing of Yugoslav territory" (Memorial, p. 301,
para. 2.1.1.) they violated a number of its international obligations
including not only in the international treaties in force, but also in the
Charter of the United Nations. The Respondents denied the charge.
57. By denying the charges, the Respondents, within the limits and the range
determined by the stage of the procedure, elaborate diametrically opposite
legal concepts according to which the bombing of the territory of the
Federal Republic of Yugoslavia was carried out lege artis, in con-[p
991]formity with the concept of the so-called humanitarian intervention, as
well as by obeying the rules of humanitarian law. This constitutes the
second qualifying condition for the existence of the legal dispute — "that
the claim of one party is positively opposed by the other" (South West
Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328;
emphasis added). Acting in the above-mentioned manner, the Respondents have
gone out of the reach of a simple denial of the Applicant's charges and set
the matter on the level of a conflict of legal views, the conflict of which
is in concreto total and absolute.
58. The issue of the existence of a dispute on the merits possesses its
temporal dimension. As the Court stated in the case concerning Nuclear Tests
(Australia v. France) "[t]he dispute brought before [the Court] must
therefore continue to exist at the time when the Court makes its decision"
(Judgment, I.C.J. Reports 1974, p. 271, para. 55).
A dispute in existence in the proceedings before the Court may, in general,
disappear in two ways:
(a) by withdrawing the Application; and
(b) if the object of the claim has been achieved by other means, as exempli
causa, when "a State has entered into a commitment concerning its future
conduct" which made the dispute disappear (Nuclear Tests (Australia v.
France), Judgment, I.C.J. Reports 1974, p. 272, para. 60).
None of the above-mentioned has happened in the cases at hand.
It is true that the Respondent's contention was not that the Application
has been withdrawn, but that the Applicant abandoned the basis of
jurisdiction making "a mockery of the principle that jurisdiction is founded
on the consent of the parties" (CR2004/10, p. 11); some "kind of forum
prorogatum" in the negative sense (CR 2004/12, p. 12).
Apart from the nature of the question of jurisdiction (see paragraphs 40-44
of this opinion), it should be noted that as far as abandonment itself is
concerned the Court cannot infer from the arguments of the parties that a
claim was abandoned. As stated in the case concerning Certain Norwegian
Loans, "[a]bandonment cannot be presumed or inferred; it must be declared
expressly" (Judgment, I.C.J. Reports 1957, p. 26).
59. The real question one is faced with concerns the relationship between
the Application and the arguments of the Parties.
In the process of determination of the legal disputes, the Court bases
itself on the Application and final Submissions, as well as other pertinent
evidence as emphasized in the cases concerning Nuclear Tests (Australia v.
France) (Judgment, I.C.J. Reports 1974, pp. 262-263) and Fisheries
Jurisdiction (Spain v. Canada), Jurisdiction of the Court (Judgment, I.C.J.
Reports 1998, p. 449, para. 31).
The expression "other pertinent evidence" is a collective term for various
forms of expressing intention of the parties relevant for the determination
of the dispute submitted to the Court. In the existing [p 992]
circumstances, taking into consideration claims and arguments of the
Respondents, various written and oral pleadings placed before the Court in
the proceedings on the preliminary objections are of particular interest.
The crucial question which seems to be imposing itself in casu is the
relationship between the Application and the submission, on the one hand,
and the arguments of the Parties, on the other. This question should
especially be considered in the context whether the Application and
submissions can be either derogated, completely or partially, by the
arguments of the Applicant, or in fact be substituted by them.
I believe that the answer to the question is rather negative for several
reasons:
(i) The Application as a whole, including especially the submissions,
represents a basic parameter for the determination of the dispute. The Court
resorts to "other pertinent evidence" (Fisheries Jurisdiction (Spain v.
Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 449,
para. 31), which in the present case is the written and oral pleadings
placed before the Court, in case of "uncertainties or disagreements...with
regard to the real subject of the dispute with which the Court has been
seised, or to the exact nature of the claims submitted to it." (ibid., p.
448, para. 29.)
(ii) Therefore, written and oral pleadings as such are an accessory means
rather than a subsidiary basic parameter for the determination of the
dispute, which the Court resorts to in case of an unclear or imprecise
nature of the Application as a whole. Furthermore,
"when the claim is not properly formulated because the submissions of the
parties are inadequate, the Court has no power to 'substitute itself for
them and formulate new submissions simply on the basis of arguments and
facts advanced' (P.C.I.J., Series A, No. 7, p. 35)" (Nuclear Tests (New
Zealand v. France), Judgment, I.C.J. Reports 1974, p. 466, para. 30).
(iii) The written pleadings and oral pleadings as such, excluding the
submissions, are basically arguments of the parties. Arguments of the
parties together with their contentions as reasons or statements made for or
against the matter are of highly relative value in jurisdictional phases of
the proceedings before the Court, taking into consideration that the Court
is not bound by them and that it, in fact, possesses "the power to exclude"
them (cf. Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the
Court, Judgment, I.C.J. Reports 1998, p. 449, para. 32). The value of the
arguments and contentions of the parties is framed in terms of "indications
of what the party was asking the Court to decide" (cf. ibid.; emphasis
added).
(iv) The arguments and contentions of the parties do not appertain to [p
993] the submission of the party. The difference in meaning of the French
word "conclusion" and the English word "submission" reflected in the
circumstances that the latter "can extend to the arguments advanced and the
grounds invoked, and not merely to the precise demand made of the Court" has
been resolved in a manner that "the Court has developed a consistent pattern
of case-law on this aspect, basing itself on the narrower meaning" (Shabtai
Rosenne, The Law and Practice of the International Court, 1920-1996, Vol.
III (Procedure), p. 1266).
60. Due to the autonomous standing of the notion of "dispute" in
international obligation, its determination possesses certain specific
characteristics. Basically, they derive from the fact that "dispute between
States" is not automatically "dispute before the Court" even in the case
where the States followed the rules of the law of the Court regarding the
institution of proceedings.
Regarding the determination of a "dispute before the Court", in the
proceedings instituted by Application, roles are assigned to the Applicant
and the Court itself. The role of the Applicant is referred to as the
"presentation" or "formulation of the dispute" (see Fisheries Jurisdiction
(Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998,
pp. 447-448, paras. 29 and 30) by acts which are designed by the Statute and
the Rules of Court as duties of the Applicant (Statute, Art. 40, para. 1;
Rules of Court, Art. 38, paras. 1 and 2). As far as the Court is concerned,
by executing its judicial function it is its role to determine the dispute
dividing the parties as well as to identify the object of the claim.
What is in concreto the intrinsic legal meaning of the word
"determination"?
In a substantive sense, determination of a dispute is to a certain extent
expressed as verification of a dispute as presented or formulated by the
applicant. The only case when the determination of the matter by the Court
is autonomous in toto, deprived of any substantive connection to the
application, is the situation when the Court considers that the real dispute
between the parties does not exist. Verification in the sense of
authentication or confirmation of the dispute as presented by the applicant
may occur as either total or partial — in which case it is possible to make
a difference between a "real dispute" and a "dispute as presented or
formulated". Such a substantive determination of the term "determination of
the real dispute" is based on the fact that the application — together with
the final submissions and other pertinent evidence — represents a basic
parameter for the determination of a real dispute. The expression
"irrespective of the nature and subject of the dispute laid before the Court
in the present case" (South West Africa, Preliminary Objections, Judgment,
I.C.J. Reports 1962, p. 328) is not used in the meaning outside the
application but irrespective of arguments of the parties regarding the
nature and subject of the dispute. The very essence [p 994] of the
determination process lies in its objectivity as to whether there exists an
international dispute (Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p.
74).
Even though objectivity is not a personal but a qualitative characteristic,
it includes in concreto an assessment of the constitutive elements of the
legal disputes rather than a construction or a negation of legal disputes.
Constitutive elements of the dispute are, in fact, criteria that ought to be
tested in order to "be shown that the claim of one party is positively
opposed by the other" (South West Africa, Preliminary Objections, Judgment,
I.C.J. Reports 1962, p. 328).
61. If an organic link between the controversy on the jurisdictional issue
and the existence of a dispute in a case indeed existed, then the Court, for
instance, could not entertain a case in the event of a respondent's
non-appearance in the proceedings. The fact remains that the position of the
Applicant in the proceedings is an unusual one, but not unprecedented. It
can be compared precisely with the position of Italy in the Monetary Gold
case where Italy, as the applicant State, raised the preliminary objection
to the jurisdiction of the Court. The Court, assessing such a position of
Italy, said:
"The Court finds that Italy's acceptance of jurisdiction is one thing, while
her raising of a legal issue on jurisdiction is quite another. It cannot be
inferred from the making of the Preliminary Objection that Italy's
acceptance of jurisdiction has become less complete or less positive than
was contemplated in the Washington Statement." (Preliminary Question,
Judgment, I.C.J. Reports 1954, p. 29.)
Moreover, the Court came to this conclusion in the reply to the submission
of the United Kingdom, which, by its content, precisely corresponds with
Italy's submission in the present case. Namely, the Court finds that, "[n]or
can the Court accept the contention in the final Submission No. 1 (b) of the
United Kingdom that the Application has been in effect withdrawn and
cancelled by Italy" (ibid., p. 30).
62. That the absence of a specific dispute on jurisdiction does not deprive
the Court's decision of its judicial character is also confirmed by the
jurisprudence of the Court. In the Monetary Gold case, Italy, as the
Applicant, submitted to the Court what it termed a "Preliminary Question"
in substantially identical terms as the first request of Serbia and
Montenegro. At the time Italy requested the Court to "adjudicate on the
preliminary question of its jurisdiction to deal with the merits of the
claim set forth under No. 1 of the Submissions of the Application"
(Judgment, I.C.J. Reports 1954, p. 23). The first request in the final
submissions of Serbia and Montenegro, as Applicant, has been formulated in
the following terms, where it requests the Court "to adjudge and declare [p
995] on its jurisdiction ratione personae the present cases" (CR 2004/23, p.
38, para. 34). Consequently, in both cases the applicant States asked the
Court not to declare that it has jurisdiction, but only to rule on its
jurisdiction.
63. The request of the Applicant to the Court to rule on its jurisdiction
ratione personae possesses specific justification in the circumstances of
the present cases. These circumstances make relative the qualification of
the Applicant's request regarding the jurisdiction of the Court ratione
personae as an abstract one. They present it in a different light, i.e., as
a request incorporated in the reality of the Court's jurisprudence on the
matter, some sort of reminder to the Court to act in accordance with its own
findings. Namely, faced with the question — whether or not Yugoslavia is a
Member of the United Nations and as such a party to the Statute of the
Court — the Court found, in the provisional measures phase of the
proceedings, that it "need not consider this question for the purpose of
deciding whether or not it can indicate provisional measures in the present
case" (Legality of Use of Force (Yugoslavia v. Belgium), Order of 2 June
1999, I.C.J. Reports 1999 (I), p. 136, para. 33; see also CR 2004/23, p. 38,
para. 34). The finding, being only a slight modification of the formulation
used in the Order of 8 April 1993 in the Genocide Convention case, implies
the right, and obligation at the same time, of the Court to pronounce upon
it in a later phase of the proceedings and, it is easy to agree, it seems to
me, that there is no more proper phase in which to do so than the
preliminary objection phase.
4. Legal Interest of the Applicant in the Proceedings
64. Some of the respondent States (exempli causa, Portugal (CR 2004/9, p.
9)) argued that by requesting the Court to decide that it has no
jurisdiction to adjudicate on the merits, Serbia and Montenegro showed that
it has no legal interest in settling the dispute before the Court.
Grosso modo, legal interest of the Applicant can be defined as specific
interest to demand judicial intervention, considering that otherwise the
Applicant would suffer some unjust prejudice and (or) would not be able to
protect its violated rights on the basis of international law.
In order to be qualified as a relevant legal interest, the interest of the
Applicant needs to fulfil several conditions:
(a) To be of legal nature. Economic, political or other non-legal interest
as such is not enough considering the fact that the jurisdiction of the
Court is reserved for legal disputes.
(b) To be concrete. This condition implies that the intervention of the
Court, either positively or negatively, reflects on the corpus of rights and
duties of the parties, real or presumed, prescribed by international law.
[p 996]
(c) To be of personal nature. This concerns the personal dimension of the
previous condition to be concrete. In fact, the interest needs to be related
to the subjective right of the applicant whereas the advisory opinion of
the Court given on the concrete legal question may be abstract, deprived of
a personal dimension. Personal dimension of the legal interest serves as
differentia specifica between a general interest which lies behind an actio
popularis and a specific interest.
These elements form the essence of the concept of the legal interest based
upon which is legitimatio ad processum(qualite pour agir), which is
independent of the ability of a State to appear before the Court: it is an
expression of a concrete legal relation between the applicant and the
subject-matter of the dispute.
Legal interest of the applicant should be objectively determined
particularly considering the fact that by instituting the proceedings
before the Court, the applicant demonstrates a subjective perception of its
legal interest in the matter.
Determination of the legal interest of the applicant is ex rerum natura
closely connected and intertwined with the determination of legal dispute,
taking into consideration that the dispute is in fact based on the opposing
attitudes of the parties in relation to a certain conflict of interests.
Therefore, what was emphasized regarding the determination of the legal
disputes applies mutatis mutandis to the basic parameters for the
determination of the legal interest of the applicant.
The party entitled to the subjective right, claiming the violation of a
concrete right to which the other party is positively opposed, is in
possession eo ipso of a legal interest. In that case the presumption of
legal interest is applied. Legal interest is, in fact, incorporated into the
very essence of the concept of subjective right.
65. The Applicant, as well as the Respondent, is a State party to a number
of multilateral treaties in force, non-observance of which is being
attributed by the Applicant to the Respondent. Considering the fact that the
parties acquire mutual subjective rights and obligations by the
international treaty, the party whose subjective right has been violated is
entitled to claim the protection of its right (cf. Barcelona Traction, Light
and Power Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, p.
45, para. 80; p. 46, para. 86). The existence of the subjective right would
no longer have its ratio in case the entitled party did not possess legal
interest for its protection. The presumption of legal interest of the State
entitled to the subjective right is strongly supported by another reason
deriving from the very nature of the modern international community. Due to
the general prohibition on self-redress, the State whose rights have been
violated does not have at its disposal an efficient and legal means for the
protection of its subjective rights. Therefore, it would in fact be
convenient to assume the existence of the legal interest in every particular
case of accusation of the violation of the [p 997] rules of international
law, either conventional or customary, as a sort of actio condemnatoria in
the proceedings before the Court
The position of multilateral and bilateral treaties containing compromissory
clauses is rather specific. The compromissory clause per se et a priori
proves the existence of the legal interest of the party and therefore need
not be either presumed or proved (action attitrée). Considered stricti
juris, the right to legal protection in the case of a compromissory clause
is not deduced from the legal interest of the applicant, but derives
directly from the compromissory clause as a treaty provision.
***
66. Summary removal as such might constitute an administrative action of the
Court, either proprio motu or at the request of the Respondent to reject
the Application in limine litis. In either case the validity of summary
removal is, to say the least, of a dubious nature.
Summary removal as an action of the Court proprio motu has lost the ratio of
its existence by the introduction of Article 38, paragraph 5, of the Rules
of Court. Until then, it had been applied as a kind of extorted action of
the Court in circumstances in which one State sues another without any
existing title of jurisdiction and, in fact, called upon that State to
accept the jurisdiction of the Court ad hocFN9. Cessante ratione, cessat
ipsa lex.
---------------------------------------------------------------------------------------------------------------------
FN9
Thus, the Court found itself in the situation of having to make a choice
between Scilla and Haribda — or to allow the "case" to figure on the General
List as a pending case for an indefinite period of time or to resort to the
removal of the "case" from the General List as was done in a number of
cases: Treatment in Hungary of Aircraft and Crew of United States of America
(United States of America v. Hungary), Order of 12 July 1954, I.C.J. Reports
1954, pp. 99-101, and Treatment in Hungary of Aircraft and Crew of United
States of America (United States of America v. Union of Soviet Socialist
Republics), Order of 12 July 1954, I.C.J. Reports 1954, pp. 103-105; Aerial
Incident of 10 March 1953, Order of 14 March 1956, I.C.J. Reports 1956, pp.
6-8; Aerial Incident of 4 September 1954, Order of 9 December 1958, I.C.J.
Reports 1958, pp. 158-161; Aerial Incident of 7 November 1954, Order of 7
October 1959, I.C.J. Reports 1959, p. 276-278; Antarctica (United Kingdom v.
Argentina), Order of 16 March 1956, I.C.J. Reports 1956, pp. 12-14, and
Antarctica (United Kingdom v. Chile), Order of 16 March 1956, I.C.J. Reports
1956, pp. 15-17.
In the light of Article 38, paragraph 5, what the Court might do proprio
motu, in specific circumstances and before effective seisin, is to take the
initiative in removing a case from the General List which, in fact, is done
in accordance with Article 88 or 89 of the Rules of Court. As a point of
illustration, mention can be made of the case concerning Maritime
Delimitation between Guinea-Bissau and Senegal, Order of8 November 1995,
I.C.J. Reports 1995, p. 423.
---------------------------------------------------------------------------------------------------------------------
In the circumstances of effective seisin of the Court, summary removal at
the request of the Respondent to the Court to reject the Application in
limine litis is unacceptable. As such, summary removal would be in sharp
contradiction with the duty of the Court to examine ex officio the ques-[p
998]tion of its jurisdiction in casu on the basis of the general principle
of competence de la competence. Having in mind the nature of the duty of
the Court to examine ex officio its jurisdiction in the case at hand, it
might even be said that summary removal in such circumstances would have the
meaning of a kind of denial of justice.
Consequently, by the adoption of Article 38, paragraph 5, of the Rules of
Court, "removal" acquires its appropriate meaning as simple removal as an
accessory effect of declining jurisdiction by the Court's judicial
decisionFN10.
---------------------------------------------------------------------------------------------------------------------
FN10
It might be mentioned in passing that the practice for the "removal clause"
to be included at all into the dispositif of a judgment of the Court is open
to question; not only because of the fact that, as a rule, a case which has
been completed is removed automatically from the General List of pending
cases, but also because of the nature of the judicial decision of the Court
which concerns the parties to the dispute rather than a matter that,
basically, concerns the internal functioning of the Court.
---------------------------------------------------------------------------------------------------------------------
III. The Issue of the Composition of the Court
67. The fundamental difference between the composition of the Court in the
provisional measures phase of the proceedings, on the one hand, and its
make-up in the preliminary objections phase of the proceedings, on the
other, is noticeable. It calls for comments as a matter of principle.
During the provisional measures phase of the proceedings nine out of a total
of ten respondent States had judges sitting on the Bench of the Court,
irrespective of whether these were national judges (France, Germany, the
Netherlands, the United Kingdom and the United States of America) or judges
ad hoc (Belgium, Canada, Italy and Spain). Among the respondent states
having no judge of their nationality on the Bench, only Portugal has not
designated its judge ad hoc. The Applicant, for its part, had one judge ad
hoc on the Bench.
In the preliminary objections phase, the Bench underwent a significant
change. At the opening of the public sitting held on 19 April 2004, the
President of the Court stated, inter alia, that
"[b]y letters dated 23 December 2003, the Registrar informed the Parties
that the Court had decided...that the judges ad hoc chosen by the respondent
States should not sit during the current phase of the procedure in these
cases" (CR2004/6, p. 6).
He also noted that "Judge Simma had previously considered that he should not
take part in the decision of these cases and had so informed [the President]
in accordance with Article 24 of the Statute" (ibid. ,p.7).
Thus, during the preliminary objections phase the Bench included three
national judges on the side of the respondent States and one ad hoc judge on
the side of the Applicant.
It is interesting to note that the Court, in adopting relevant decisions, [p
999] failed to provide an explanation in more detail, both with respect to
particular decisions concerning the composition of the Court in the
proceedings on preliminary objections and with respect to the substantial
change in the two successive phases of the proceedings.
In the provisional measures phase the Court, acting on the objections raised
by the Applicant relating to the nominations of judges ad hoc by four
respondent States, settled for a succinct formulation that the nominations
were "justified in the present phase of the case"FN11. The Court was
somewhat more specific in the relevant decision relating to its own make-up
in the preliminary objections phase. Even though, in contrast to the
provisional measures phase, the Applicant raised no objections regarding
the participation of judges ad hoc chosen by the respondent States. In
deciding that "the judges ad hoc chosen by the respondent States should not
sit during the current phase of the procedure" (CR 2004/6, p. 6), the Court
invoked the fact of "the presence on the Bench of judges of British, Dutch
and French nationality" (CR 2004/6, p. 6).
-------------------------------------------------------------------------------------------------------------------
FN11
Legality of Use of Force (Yugoslavia v. Belgium), Order of 2 June 1999,
I.C.J. Reports 1999 (I), p. 130, para. 12; Legality of Use of Force
(Yugoslavia v. Canada), Order of 2 June 1999, I.C.J. Reports 1999 (I),p.
265, para. 12; Legality of Use of Force (Yugoslavia v. Italy), Order of 2
June 1999, I.C.J. Reports 1999 (I), p. 487, para. 12; Legality of Use of
Force (Yugoslavia v. Spain), Order of 2 June 1999, I.C.J. Reports
1999 (II), p. 767, para. 12.
---------------------------------------------------------------------------------------------------------------------
68. From the terse formulation relating to the acceptance of the
nominations of judges ad hoc by four respondent States in the provisional
measures phase one could infer that the Court, in adopting the decision that
their nominations were justified, relied on the grammatical interpretation
of the provision of Article 31, paragraph 3, of the Statute. Namely, Article
31, paragraph 3, provides that "[i]f the Court includes upon the Bench no
judge of the nationality of the parties, each of these parties may proceed
to choose a judge". In other words, the Court followed the logic that the
independent and inherent right of a party to choose a judge ad hoc on the
basis of Article 31, paragraph 3, of the Statute, was not subject to any
particular restrictions in this particular case. The Applicant founded its
objection to the nomination of the judges ad hoc by four respondent States
on the contention that they are parties in the same interest and that,
consequently, paragraph 5 of Article 31 of the Statute should have been
applied. The Court, in its decision does not deal spe-cifically with this
contention of the Applicant, although the decision itself implies that the
Court rejected it.
69. The absence of an explanation leaves room for assumptions. One of them,
it seems to me, that merits attention rests on the interpretation of the
expression "several parties in the same interest" (Statute, Art. 31, para.
5). It has been said that
"Article 31, which uses a form of wording in the singular, 'applies
separately to each case on the Court's List'. 'In the presence of two [p
1000] separate cases between two sets of parties (even if one party is
common to both cases), Article 31, paragraph 5, has no application'." (H.
Thirlway, "The Law and Procedure of the International Court of Justice,
1960-1989 (Part Eleven)", The British Year Book of International Law, 2000,
p. 167, emphasis added, citing joint declaration of Judges Bedjaoui,
Guillaume and Ranjeva in Questions of Interpretation and 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. 40.)
It appears that the interpretation is far too narrow and, in the light of
the meaning and in particular of the application of Article 31, paragraph 5,
of the Statute, arbitrary because it implies an indissoluble organic link
between "parties in the same interest" and formal joinder, which is
obviously not the case. The Court may find that the parties are in the same
interest without having recourse to joinder. Moreover, it is said that "the
'same interest' provisions apply" only "in the case of the choice of judges
ad hoc" (G. Guillaume, "La 'cause commune' devant la Cour internationale de
Justice", Liber Amicorum — Mohammed Bedjaoui (Emile Yakpo and Tahar
Boumedra, eds.), 1999, p. 330 [translation by the Registry]). The
jurisprudence of the Court was also formed in this senseFN12.
---------------------------------------------------------------------------------------------------------------------
FN12
Exempli causa,
"in the Fisheries Jurisdiction cases, the Court did not join the cases, and
rendered two distinct series of judgments, both on jurisdiction and on the
merits. However, that did not prevent it from regarding the United Kingdom
and Germany as being 'in the same interest' during the initial phase of the
procedure." (G. Guillaume, "La 'cause commune' devant la Cour internationale
de Justice", Liber Amicorum — Mohammed Bedjaoui, 1999, pp. 330, 334-335
[translation by the Registry]).
---------------------------------------------------------------------------------------------------------------------
Consequently, the provision of Article 31, paragraph 5, of the Statute
according to which the parties in the same interest shall be reckoned as one
party only, cannot be understood as being tantamount to joinder. Although
the same interest of the parties constitutes an element of the notion of
joinder, taken per se it neither constitutes formal joinder nor can be
considered identical to it. Joinder implies that the parties in the same
interest are reckoned as one party in the totality of their procedural
position which, in addition to the appointment of a single judge ad hoc
includes also one set of pleadings and a single judgment.
The parties in the same interest, in the sense of Article 31, paragraph 5,
of the Statute, are reckoned as one party in a restricted, functional sense
versus the process position of parties in its totality in the event of the
issue of joinder, and that is the choice of judges ad hoc. The formulation
according to which "several parties in the same interest... shall...be
reckoned as one party only" (Statute, Art. 31, para. 5) is made not for the
[p 1001] purpose of a joinder but "for the purpose of the preceding
provisions" (Statute, Art. 31, para. 5) of Article 31 regulating
equalization of the parties before the Court.
If we continue for a moment to use the terminology of joinder, we could
possibly qualify the parties in the same interest, in the sense of Article
31, paragraph 5, of the Statute, as a kind of small or procedural joinder
substantively and functionally linked with the choice of judges ad hoc on
the basis of the provisions of Article 31 of the Statute of the Court.
70. The fundamental difference in the composition of the Court in the
provisional measures phase as against the preliminary objections phase could
be defended with the argument that in the provisional measures phase the
Court was not in a position to ascertain the positions of the respondent
States vis-à-vis the demands of the Applicant. The argument bears a certain
weight but it should not be overestimated in this particular case for two
reasons at least. Primo, the question of the composition of the Court is a
matter of public order (in the Advisory Opinion case concerning Legal
Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970)
(hereinafter referred to as "Namibia"), Vice-President Ammoun pointed out in
his separate opinion that it relates to "the rule of... very equality which
the Statute seeks to safeguard through the institution of judges ad
hoc"(I.C.J. Reports 1971, p. 68)) possessing "absolute logical priority"
(ibid., p. 25, para. 36; see also Western Sahara, Order of 22 May 1975,
I.C.J. Reports 1975, pp. 7-8; Western Sahara, Advisory Opinion, I.C.J.
Reports 1975,p.17-18, para. 13). Secundo, the indication for consideration
of the same interest of the respondent States was provided in the
Application itself which related to all the ten respondent States with
identical statements of facts and law. The Application itself offered the
basis for a prima facie appreciation of the facts and law for the treatment
of "the appointment of a judge ad hoc ...as a preliminary matter" (Legal
Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970),
Advisory Opinion, I.C.J. Reports 1971, p. 25, para. 36). Tertio, the urgency
of the proceedings for interim measures could hardly be deemed to have been
an obstacle to such proceedings in this particular case, because the
proceedings for interim measures themselves lasted over 30 days, counting
from the date of submission of the request to the date of the rendering of
the order.
71. The decision regarding the composition of the Court in both phases, the
provisional measures phase and the preliminary objections phase, was adopted
informally, being intimated to the Parties by the Registrar. (The Court has
thus departed from the practice established in the South West Africa cases
(cf. Order of 18 March 1965, I.C.J. Reports 1965,p.3)in which the decision
about the composition of the Court was adopted in the [p 1002] form of an
order.) This practice possessed certain inherent advantages, both formal and
those of a substantive nature. As far as the formal advantages are
concerned, it is difficult to understand that the issue of composition of
the Court is regulated informally, at least when more delicate and
controversial cases are in question, whereas issues, such as the appointment
of experts of the Court (cf. Corfu Channel, Order of 19 November 1949,
I.C.J. Reports 1949, p. 237; Delimitation of the Maritime Boundary in the
Gulf of Maine Area, Appointment of Expert, Order of 30 March 1984, I.C.J.
Reports 1984, p. 165), the appointment of experts to assist the parties to
implement a judgment (cf. Frontier Dispute, Nomination of Experts, Order of
9 April 1987, I.C.J. Reports 1987, p. 7), or decisions on a request for an
inspection in loco (cf. South West Africa, Order of 29 November 1965, I.C.J.
Reports 1965,p.9; Gabéíkovo-Nagymaros Project (Hungary/Slovakia), Order of
5February 1997, I.C.J. Reports 1997, p. 3) are dealt with through a formal
order. Although there is no difference in the legal effect of decisions
adopted informally or in the legal effect of those adopted in a formal
manner, the manner in which a decision of the Court is embodied bears the
meaning of an implicit evaluation of the issues being the object of the
decision. This practice is all the more surprising having in mind that the
question of the composition of the Court is not a purely procedural matter,
but, in cases such as the case in hand, a matter of public order that
indirectly concerns the principle of equality of States as one of the
fundamental principles of international law which falls within corpus juris
cogentis.
Also indisputable, it seems to me, are the substantive advantages of making
decisions on the composition of the Court in a formal manner. They emanate
from the very structure of the order, in particular from the special
considerations that the Court had in mind making the order and reasons
justifying a particular decision on the composition of the Court. Thus, an
easier and more reliable interpretation of the decision of the Court is
enabled and, equally important, a consolidation of jurisprudence of the
Court on the matter.
72. The decision of the Court by which three respondent States (Belgium,
Canada and Italy) have been denied the extension of the appointments of
their judges ad hoc in the preliminary objections phase, and denying
Portugal the right to appoint a judge ad hoc, is based on Article 31,
paragraph 5, of the Statute which provides that "[s]hould there be several
parties in the same interest, they shall, for the purpose of the preceding
provisions, be reckoned as one party only. Any doubt upon this point shall
be settled by the decision of the Court."
(a) As regards Belgium, Canada and Italy, the Court adopted the relevant
decision "pursuant to Article 31, paragraph 5, of the Statute, taking into
account the presence on the Bench of judges of British, Dutch and French
nationality" (CR 2004/6, pp. 6-7; emphasis added). The interpretation of
this explanation of the Court's decision inevitably leads to the conclusion
that the Court considered not only Belgium, Canada and Italy [p 1003] as
parties in the same interest, but also France, the Netherlands and the
United Kingdom.
The effect of Article 31, paragraph 5, of the Statute obviously could not
have been the deprivation of Belgium, Canada and Italy's right, "reckoned as
one party only", to have upon the Bench a single judge ad hoc, but of the
extension of the appointments of judges ad hoc which they had appointed
individually in the provisional measures phase. The deprivation was legally
founded only if the Court had found that these three respondent States,
together with France, the Netherlands and the United Kingdom, were in the
position of "parties in the same interest". The argument of the Court is
suggestive of this but not explicit, because it only referred to the
"presence on the Bench of judges of British, Dutch and French nationality"
(CR 2004/6, p. 6) as ratio of exclusion of the right of Belgium, Canada and
Italy to choose a single judge ad hoc without saying that all of them were
parties in the same interest. A direct nexus between these two matters — on
the one hand, the deprivation of the three respondent States, having no
judge of their nationality on the Bench, of their right to choose a single
judge ad hoc, and, on the other hand, the presence on the Bench of judges of
the nationality of the three other respondent States, having judges of their
nationality on the Bench — is only possible to establish on the basis of the
same interest position of all these respondent States.
(b) As far as Germany is concerned, as Judge Simma had considered that he
should not take part in the decision in this case, Germany, on the basis of
Article 37, paragraph 1, of the Rules of Court became "entitled to choose a
judge ad hoc within a time-limit to be fixed by the Court, or by the
President". The Court, however, decided that the entitlement under Article
37 is non-existent in casu "pursuant to Article 31, paragraph 5, of the
Statute" (CR 2004/6, p. 7). In other words, the Court subsumed the position
of Germany in this particular matter under Article 37, paragraph 2, of the
Rules of Court which provides that "[p]arties in the same interest shall be
deemed not to have a judge of one of their nationalities ...if the Member
of the Court...is or becomes unable to sit" (emphasis added).
Consequently, the Court, proceeding from the "same interest" provision
embodied in Article 31, paragraph 1, of the Statute and elaborated in
Article 37, paragraphs 1 and 2, of the Rules of Court, by its decision
notified to the Parties by letters of the Registrar dated 23 December 2003,
took the position that all eight respondent States are parties in the same
interest.
73. The decision of the Court produced equalization effects in the
composition of the Bench between the Applicant, on the one hand, and the
Respondents, on the other.
The equalization effects are expressed on two levels:
(i) on the level of the relation between the applicant State and those [p
1004] respondent States having no national judge upon the Bench. Unlike the
provisional measures phase, full equalization was realized in the
preliminary objections phase in accordance with the perfectly coherent
jurisprudence of the Court, thanks to the decision of the Court. (Cf. joint
declaration of Judges Bedjaoui, Guillaume and Ranjeva, Questions of
Interpretation and 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, pp. 34-39);
(ii) on the level of the relation between the applicant State and those
respondent States having Members of their nationality upon the Bench. On
this level partial equalization has been realized given the fact that Judge
Simma had decided not to take part in the decision in the case, and the
Court's decision that Germany, pursuant to Article 31, paragraph 5, of the
Statute was not entitled to choose a judge ad hoc.
Thus the relation between the applicant State and the respondent States
having Members of their nationality upon the Bench suffered a change in the
concrete matter in comparison with the composition of the Court in the
procedure on provisional measures — three respondent States (France, the
Netherlands and the United Kingdom) have their national judges upon the
Bench and the applicant State has a judge ad hoc on the Bench.
Can such a solution be considered tenable in law and justice? The answer to
this question, it seems to me, is in the negative rather than in the
positive.
In the construction of Article 31, paragraphs 1 to 5, of the Statute, the
arithmetical equality of the numbers of judges upon the Bench having the
nationality of the parties, in the relevant variants of the relation between
the number of national judges (Art. 31, para. 1), national judges and judges
ad hoc (Art. 31, para. 2) or judges ad hoc mutually (Art. 31, para. 3),
figures as an expression of equality of the parties. Although equality of
the parties is not exhausted in the arithmetical equality, it seems
incontestable that, in the relations among States as sovereign political
units, the arithmetical equality is an important constitutive element of
equality: a contrario, the provisions of Article 31, paragraphs 1 to 5, of
the Statute as such would be devoid of substance.
It is obvious that in concreto this arithmetical equality is non-existent
despite the fact that the respondent States are parties in the same
interest. What is involved, in fact, is but one example of inequality of the
parties, inequality that comes about due to grammatical interpretation of
Article 31, paragraph 4, of the Statute.
For as Judge Guillaume notes, referring to Article 31, paragraph 4, of the
Statute,
"This provision guaranteed equality between the parties where [p 1005]
neither had a national on the Bench. Thus in such cases, whether there is a
plurality of applicants, or of respondents, or of both, only one judge ad
hoc is chosen to sit on each side.
The system worked equally well where the Court included a judge of the
nationality of one of the parties and the latter objected to a plurality of
applicants or respondents acting in the same interest and not having a judge
of their own nationality present on the Bench. Here again, equality was
effectively guaranteed.
On the other hand, the system was more open to criticism where on one side
there were several States with judges of their nationality on the Bench,
whereas on the other there was only one judge, or even merely a judge ad
hoc." (G. Guillaume, "La 'cause commune' devant la Cour internationale de
Justice", Liber Amicorum — Mohammed Bedjaoui (Emile Yakpo and Tahar
Boumedra, eds.), 1999, pp. 328-329; emphasis added.)
It follows, consequently, that in the event of conflict between the
principle of permanence of the Court and equality of parties "the authors
of the Statute and Rules accorded priority to the principle of the
permanence of the Court", having restricted the application of the
principle of equality of parties "in regard to choice of judges ad hoc to
situations where the 'common interest' provisions apply" (ibid. ,p.330
[translation by the Registry]).
Such a state of affairs is hardly tenable. The deficiencies of the
solutions enshrined in the Statute and in the Rules of Court cannot
constitute a basis for a derogation of the fundamental principle of equality
of parties. The principle of equality of parties is but one ingredient, a
constitutive element of a broader principle of sovereign equality of
States. Although the Statute and the Rules of Court are, by their nature,
jus specialis designed to regulate the work of the Court, it cannot be
accepted that they authorize, as such, the Court to disregard the relevant
norms of general international law. And, as the Statute itself determines,
the Court's function "is to decide in accordance with international law"
(Statute, Art. 38, para. 1). Especially as concerns contemporary
international law which, unlike international law that was in effect at the
time of drawing up of the Statute of the Permanent Court of International
Justice, recognizes jus cogens the rules of overriding importance that, by
definition, brook no competition of incongruous rules. And the principle of
sovereign equality of States is undoubtedly a rule that belongs to corpus
juris cogentis.
74. The issue of the realization of the overriding rule of equality of
States in regard to the composition of the Bench is, basically, an issue of
a technical, derivative nature. There are two ways that seem to be appro-[p
1006]priate, independently or in combination, depending on the
circumstances of a particular case. One of them boils down to the exemption
of a Member or Members of the Court in the event that there exists
inequality between the litigant parties in multiple cases in which one party
is comprised of two or several States whose judges sit in the Court.
Whereas the other party is composed of a State (or States) that do not have
national judges or have a smaller number of national judges as compared to
the other side. In such a case a solution could be found within the
co-ordinates of the proposal submitted at the time of the revision of the
Rules of Court in 1926, according to which:
"Where one of the parties is represented by two or more States having judges
present on the Bench, only one of those judges, to be chosen by the States
in question, may take part in the proceedings and judgment in the case."
(Statut et Réglement de la Cour permanente de Justice internationale —
Elements d'interprétation, Carl Heymanns Verlag, Berlin, 1934, p. 189, cited
in G. Guillaume, "La 'cause commune' devant la Cour internationale de
Justice", Liber Amicorum — Mohammed Bedjaoui (Emile Yakpo and Tahar
Boumedra, eds.), 1999, p. 329. [Translation by the Registry.])
Two objections could be raised with respect to this way of solving the
issue. The first is that it implies revision of Article 31, paragraph 1, of
the Statute. The objection is justified, but only partially, having in mind
that, by the application of Article 24, paragraph 2, of the Statute, it is
possible to achieve equalization even without a formal revision of the
Statute. The circumstances that two or more States whose judges sit in the
Court — States that are parties in the same interest — can be regarded by
the President of the Court as a "special reason" for having recourse to the
authority being at their disposal on the basis of Article 24, paragraph 2,
of the Statute. It is difficult, however, to imagine that a broader
application of this provision of the Statute is feasible, not only because
of the principle of permanence of the function of a Member of the Court, but
also because of the requirement relating to the minimal number of judges
constituting the Court (Statute, Art. 25, para. 2). Still, the possibilities
offered by this provision of the Statute should not be underestimated,
especially if the principle of permanence is interpreted systematically,
without the ingredients of a fetish. In that sense, the principle of
permanence of the Court is of a relative nature, not only because of the
provision of the Statute stipulating that a third of judges shall be
elected every third year (Statute, Art. 13), but also because of the fact
that a judge or judges may be prevented from sitting on the Bench for
factual or legal reasons (Statute, Art. 23, para. 3, and Art. 24, para. 1).
The other manner would consist in giving the right to a party having no
judge of its nationality on the Bench to nominate more than one judge ad hoc
if equalization cannot be achieved in some other way. There exist no
substantive obstacles in the Statute to this manner of equalization. The
fact that Article 31, paragraph 2, of the Statute refers to the right of [p
1007] "any other party" (i.e., a party other than the party which has a
judge of its nationality) to "choose a person to sit as judge" in the
singular, cannot be regarded as a ban on "any other party" to choose more
than one judge ad hoc. Article 31, paragraph 2, of the Statute is, both by
diction and by the terms used, designed individualistically, i.e., one party
(having a judge of its nationality on the Bench)/other party (party other
than the party having a judge of its nationality on the Bench). When
multiple cases, such as the cases at hand, are involved, the said provision
should be interpreted teleologically.
A contrario, it remains unclear how equalization, as an expression and
manner of ensuring the fundamental principle of equality of States, could be
achieved. For it should be borne in mind that it is not only about nominal
equality between parties, considering that even a quick look at the voting
practice in the Court shows that differences between national judges and
judges ad hoc in the cases in which States of their nationalities were
involved are not so significant as usually presumed.
75. The schedule of public hearings in the eight cases concerning the
Legality of Use of Force held from 19 April 2004 to 23 April 2004, taken per
se and in particular in connection with the decision of the Court relating
to the composition of the Court in these cases, represents a specific and
unusual approach of the Court.
Prima facie, the schedule of public hearings reflects the idea of
consolidation of separate proceedings in the sense of a logical order of
the hearings. More precisely, during the first round of pleadings on the
preliminary objections held on 19 and 20 April, all eight respondent States
submitted their pleadings, whereas the Applicant did so on 21 April 2004.
The schedule was basically applied to the second round of pleadings, so that
22 April 2004 was reserved for the eight respondent States and 23 April 2004
for the Applicant. However, a couple of things contradict a simple
equalization of this schedule of public hearings with the consolidation of
separate proceedings. Primo, the schedule departs from the logical and
normal practice that after the pleading of one respondent State, who raised
preliminary objections, there follows the pleading of the Applicant, bearing
in mind that a separate pleading is in question. It is possible to argue
that eight respondent States were in question, so that the schedule of
public hearings in the form in which it is designed was meant to avoid
possible duplication in the arguments of the Parties, in particular that of
the Applicant. Leaving aside the fact that such reasoning implies also
substantive similarity or identity of pleadings of the respondent States, it
is clear already from a quick reading of the official records of pleadings
that, as designed, the schedule of public hearings did not exclude
duplication of arguments. Secundo, the order of pleadings of the respondent
States does not correspond to their order in the List of pending cases.
Moreover, it is in contrast also with the order of pleadings of the
respondent States in the provisional measures phase of the cases. [p 1008]
The Court decided at the time that after Yugoslavia, as the applicant State,
the respondent States should make their presentations in English
alphabetical order (International Court of Justice, Press Release 99/19 of 7
May 1999), which is also the order of the cases in the official name of the
cases on the Court's List of pending cases. This would not merit too much
attention by itself. It could simply be a matter of convenience — if it were
not followed also by grouping of the respondent States in the schedule of
public hearings. Thus, within the framework of the first round of oral
pleadings, the morning session of the Court on 19 April 2004 was reserved
for Belgium and the Netherlands. Also, the morning session of the following
day was reserved for Germany, France and Italy. Although the Court offered
no explanation for the reasons for such a grouping, which cannot be taken as
unusual, it is reasonable to assume that the Court relied, among other
things, also on different jurisdictional claims pointed out by the applicant
State. (Namely, with respect to Belgium and the Netherlands, the Applicant
presented also additional titles of jurisdiction, i.e., Article 4 of the
Convention of Conciliation, Judicial Settlement and Arbitration between
Belgium and the Kingdom of Yugoslavia dated 25 March 1930, and Article 4 of
the Treaty of Judicial Settlement, Arbitration and Conciliation between the
Netherlands and the Kingdom of Yugoslavia dated 11 March 1931.) On the other
hand, the process position of Germany, France and Italy is characterized by
the fact that these three respondent States have not made a declaration of
acceptance of the compulsory jurisdiction of the Court under Article 36,
paragraph 2, of the Statute. Tertio, there has appeared an intriguing
coincidence of the said grouping of the respondent States in the schedule of
public hearings and of the composition of the Court derived from it, a
composition that would completely fit in with the principle of equality of
parties. If, ex hypothesi, joinder has been established for groups of cases
in accordance with the schedule of public hearings held on 19 and 20 April
2004 (joinder for Belgium and the Netherlands, a second for Germany, France
and Italy, and a third for the United Kingdom, Portugal and Canada), then
the relation between the Applicant and the groups of respondent States
included in the said joinders would be brought to the point of full equality
of the Parties as far as the composition of the Court is concerned.
***
76. The question of locus standi of Serbia and Montenegro before the Court,
or its jurisdiction, is one thing, and the question of the legality of use
of force is another.
Due to the inherent features of the jurisdiction of the Court — the
consensual nature coupled with limited access — the Court was not in a
position to make a pronouncement with regard to the legality of use of force
in these particular cases. [p 1009]
This fact testifies by itself to the delicate position in which the Court,
as the world Court, may find itself.
The Court, whose function is "to decide in accordance with international
law" (Statute, Art. 38, para. 1) disputes as are submitted to it is, in
these particular cases, hindered in a way in carrying out its function in
regard to the issue that certainly cannot be regarded as an ordinary one.
The question of the use of force in relations between States in an
ontological issue of the international order. It is a watershed of the
primitive de facto order that is governed by the elements of constellation
of powers and opportunism, and of the de jure international order embodied
in the rule of law.
On this occasion it seems appropriate to observe that we are witnessing a
cacophony of voices, coming as a rule from the circle of powerful and
influential States, to the effect that the sovereignty of States is just
history. As far as international law and the Court, as its organ, are
concerned, it is painful and surprising to realize that, among the
advocates of limited sovereignty, there can hardly be found those supporting
a limitation of sovereignty in, probably, the only aspect where limitation
of sovereignty — irrespective of the will of the States — corresponds with
the idea of a legally organized international community. Namely, that
disputes between States should be solved before the Court and not on the
battlefield.
The ratio of existence of international law rests in its implementation,
especially when it comes to rules that have an overriding character. Hence,
one can understand the calls, or perhaps entreaties, addressed to the Court
that
"Yugoslavia was at least entitled to deliberation on the merits of its
claim... rather than being brushed off on a jurisdictional technicality"
(Anthony D'Amato in "Review of the ICJ Order of June 2, 1999 on the
Illegality [sic] of Use of Force Case", as found in "Kosovo & Yugoslavia:
Law in Crisis", a presentation of Jurist (source:
http://jurist.law.pitt.edu/amato1.htm at 22 November 2004)).
It remains for the Court, fettered by the strong rules of its jurisdiction,
to appeal, if at all, to the Parties, somewhat quixotically, to be aware of
their responsibilities under international law, following the practice in
some previous cases (exempli causa, Fisheries Jurisdiction (Spain v.
Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 456,
para. 56) or to address the matter even in a more qualified manner.
(Signed) Milenko Kreca. |
|
