Case concerning Legality of Use of Force (Serbia and Montenegro v.
United Kingdom)
Preliminary Objections
Summary of the Judgment of 15 December 2004
History of the proceedings
and submissions of the Parties (paras. 1?22)
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 United Kingdom of Great Britain and Northern Ireland (hereinafter
“the United Kingdom”) in respect of a dispute concerning acts allegedly
committed by the United Kingdom
“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 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, adopted
by the United Nations General Assembly on 9 December 1948
(hereinafter “the Genocide Convention”).
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.
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 Kingdom of Belgium, Canada, the French Republic, the Federal Republic
of Germany, the Italian Republic, the Kingdom of the Netherlands,
the Portuguese Republic, the Kingdom of Spain and the United States
of America.
Since the Court included
upon the Bench no judge of Yugoslav nationality, the Yugoslav Government
exercised its right under Article 31 of the Statute and chose
Mr. Milenko Kre?a to sit as judge ad hoc in
the case.
By ten Orders dated 2 June 1999
the Court, after hearing the Parties, rejected the request for the
indication of provisional measures in all of the cases, and further
decided to remove from the List the cases against Spain and the United
States of America.
On 4 July 2000,
within the time–limit fixed for the filing of its Counter?Memorial,
the United Kingdom, referring to Article 79, paragraph 1,
of the Rules, submitted preliminary objections relating to the Court’s
jurisdiction to entertain the case and to the admissibility of the
Application. Accordingly, the proceedings on the merits were suspended.
On 20 December 2002,
within the prescribed time?limit as twice extended by the Court
at the request of the Federal Republic of Yugoslavia, the latter filed
a written statement of its observations and submissions on those preliminary
objections (hereinafter referred to as its “Observations”), together
with identical written statements in the seven other pending cases.
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 any of the cases.
At a meeting held by the
President of the Court on 12 December 2003 with the representatives
of the Parties in the eight cases concerning Legality of Use of
Force, the questions of the presence on the Bench of judges ad
hoc during the preliminary objections phase and of a possible
joinder of the proceedings were discussed, among other issues. By
letter of 23 December 2003 the Registrar informed the Agents
of all the Parties 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. The
Agents were also informed that the Court had decided that a joinder
of the proceedings would not be appropriate at that stage.
Public sittings in all
the cases were held between 19 and 23 April 2004.
After setting out the
Parties’ claims in their written pleadings (which are not reproduced
here), the Judgment recalls that, at the oral proceedings, the following
final submissions were presented by the Parties:
On behalf of the Government of
the United Kingdom,
at the hearing of 22 April 2004:
“For the reasons given in
our written Preliminary Objections and at the oral hearing, the United
Kingdom requests the Court:
- to remove the case from its List, or in the alternative,
- to adjudge and declare that:
- it lacks jurisdiction over the claims brought against the United Kingdom
by Serbia and Montenegro,
and/or
- the claims brought against the United Kingdom by Serbia and Montenegro
are inadmissible.”
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.”
Before proceeding to its
reasoning, the Court includes a paragraph (para. 23) dealing
with the Applicant’s change of name on 4 February 2003 from
“Federal Republic of Yugoslavia” to “Serbia and Montenegro”. It explains
that, as far as possible, except where the term in a historical context
might cause confusion, it will use the name “Serbia and Montenegro”,
even where reference is made to a procedural step taken before the
change.
Dismissal of the
case in limine litis (paras. 24?42)
The Court begins by observing
that it must first deal with a preliminary question that has been
raised in each of the cases, namely the contention, presented in various
forms by the eight respondent States, that, as a result of the changed
attitude of the Applicant to the question of the Court’s jurisdiction
as expressed in its Observations, the Court is no longer required
to rule on those objections to jurisdiction, but can simply dismiss
the cases in limine litis and remove them from its
List, without enquiring further into matters of jurisdiction.
The Court then examines
a number of arguments advanced by different Respondents as possible
legal grounds that would lead the Court to take this course, including,
inter alia: (i) that the position of Serbia and Montenegro
is to be treated as one that in effect results in a discontinuance
of the proceedings or that the Court should ex officio put an end
to the case in the interests of the proper administration of justice;
(ii) that there is agreement between the Parties on a “question
of jurisdiction that is determinative of the case”, and that as a
result there is now no “dispute as to whether the Court has jurisdiction”;
(iii) that the substantive dispute under the Genocide Convention
has disappeared and thus the whole dispute has disappeared in those
cases in which the only ground of jurisdiction relied on is Article
IX of that Convention; (iv) that Serbia and Montenegro, by its
conduct, has forfeited or renounced its right of action in the present
case and is now estopped from pursuing the proceedings.
The Court finds itself
unable to uphold the various contentions of the Respondents. The
Court considers that it is unable to treat the Observations of Serbia
and Montenegro as having the legal effect of a discontinuance of the
proceedings under Article 88 or 89 of the Rules of Court and
finds that the case does not fall into the category of cases in which
it may of its own motion put an end to proceedings in a case. As regards
the argument advanced by certain Respondents that the dispute on jurisdiction
has disappeared since the Parties now agree that the Applicant was
not a party to the Statute at the relevant time, the Court points
out that 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, 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
and has stated 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”. The Court therefore finds itself unable to conclude
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?à?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.
For all these reasons,
the Court concludes that it 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 question of its
jurisdiction to entertain the case.
Serbia and Montenegro’s
access to the Court under Article 35, paragraph 1, of the
Statute (paras. 43?89)
The Court recalls that
the Application filed on 29 April 1999 stated that “[t]he Government
of the Federal Republic of Yugoslavia invokes Article 36, paragraph 2,
of the Statute of the International Court of Justice as well as Article IX
of the Convention on the Prevention and Punishment of the Crime of
Genocide”.
The Court notes that in
its jurisprudence it has referred to “its freedom to select the ground
upon which it will base its judgment”, and that, when its jurisdiction
is challenged on diverse grounds, it is free to base its decision
on one or more grounds of its own choosing, in particular “the ground
which in its judgment is more direct and conclusive”. However, 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.
The Court points out that this 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 those cited in the
jurisprudence concerned.
The Court observes that
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 it did not have the
right to appear before the Court. Hence, the Court must first examine
the question whether the Applicant meets the conditions laid down
in Articles 34 and 35 of the Statute for access to the Court.
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.
The Court notes in this
respect that there is no doubt that Serbia and Montenegro is a State
for the purpose of Article 34, paragraph 1, of the Statute.
However, certain Respondents objected that, at the time of the filing
of its Application on 29 April 1999, that State did not
meet the conditions set down in Article 35 of the Statute.
Thus the United Kingdom
argued that “the FRY is not qualified to bring these proceedings”
on the grounds, inter alia, that
“[t]he FRY is not a party to the Statute
of the Court, since it is neither a Member of the united Nations nor
a non?Member State that has become a party to the Statute under
Article 93 (2) of the Charter [of the United Nations]” (Preliminary
Objections of the United Kingdom, p. 25, para. 3.1).
The Court then recapitulates
the sequence of events relating to the legal position of the Applicant
vis?à?vis the United Nations over the period 1992?2000.
It refers, inter alia, to the following: the break?up
of the Socialist Federal Republic of Yugoslavia in 1991?1992;
a declaration of 27 April 1992 by the SFRY Assembly, the
National Assembly of the Republic of Serbia and the Assembly of the
Republic of Montenegro asserting the continuation of the international
legal and political personality of the SFRY by the Federal Republic
of Yugoslavia; a note of the same day from Yugoslavia to the United
Nations Secretary?General asserting the continuation by the
FRY of the membership of the SFRY in the Organization; Security Council
resolution 777 of 1992 considering that the FRY could not continue
automatically the SFRY’s membership; General Assembly resolution
47/1 of 1992 stating that the FRY shall not participate in the work
of the General Assembly; and a letter dated 29 September 1992
from the United Nations Legal Counsel regarding the “practical consequences”
of General Assembly resolution 47/1.
The Court concludes that
the legal situation that obtained within the United Nations during
the period 1992?2000 concerning the status of the 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.
The Court notes that three
different positions were taken within the United Nations. In the
first place, there was the position taken by the two political organs
concerned. The Court refers in this respect to Security Council resolution 777 (1992)
of 19 September 1992 and to General Assembly resolution 47/1
of 22 September 1992, according to which “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 “should apply for membership in the United
Nations”. The Court points out that, while it is clear from the voting
figures 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.
The Court recalls that,
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, “including its membership in all international
organizations and participation in international treaties ratified
or acceded to by 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 Nations. It was sustained by the Applicant throughout
the period from 1992 to 2000.
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,
the Secretariat, as the administrative organ of the Organization,
simply continued to keep to the practice of the status quo ante
that had prevailed prior to the break?up of the Socialist Federal
Republic of Yugoslavia in 1992.
The Court points out that
it was against this background that the Court itself, in its 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) (hereinafter the “Application for
Revision case”), referred to the “sui generis position
which the FRY found itself in” during the relevant period; however,
in that case, 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 considers that
this situation came to an end with a new development in 2000. On
27 October of that year, the Federal Republic of Yugoslavia requested
admission to membership in the United Nations, and on 1 November,
by General Assembly resolution 55/12, it was so admitted. Serbia
and Montenegro thus has the status of membership in the Organization
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 SFRY broke up and disappeared. It
became clear that the sui generis position of the Applicant
could not have amounted to its membership in the Organization.
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.
The Court finds that from
the vantage point from which it now looks at the legal situation,
and in light of the legal consequences of the new development since
1 November 2000, it 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.
A further point the Court
considers is the relevance to the present case of the Judgment in
the Application for Revision case, of 3 February 2003.
The Court points out that, 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.
For all these reasons,
the Court concludes that, at the time when the present proceedings
were instituted, 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. The Applicant not having become a party to the Statute
on any other basis, it follows that the Court was not then open to
it under Article 35, paragraph 1, of the Statute.
Serbia and Montenegro’s
possible access to the Court on the basis of Article 35, paragraph 2,
of the Statute
(paras. 90?112)
The Court then considers
whether it might be open to Serbia and Montenegro under paragraph 2
of Article 35, which provides:
“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.”
In this regard, it quotes
from its Order of 8 April 1993 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 the “Genocide Convention case”), where it stated,
inter alia, that a “compromissory clause in a multilateral
convention, such as Article IX of the Genocide Convention relied
on by Bosnia and 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” (emphasis added).
The Court recalls that
a number of Respondents contended in their pleadings that the reference
to “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 Order of 8 April 1993 in the Genocide Convention
case, 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”.
The Court notes that the
passage from the 1993 Order in the Genocide Convention
case was addressed to the situation in which the proceedings were
instituted against a State whose membership in the United Nations
and status as a party to the Statute was unclear. It observes that
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, and concludes
that 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.
The Court thus proceeds
to the interpretation of Article 35, paragraph 2, of the
Statute, and does so in accordance with customary international law,
as reflected in Article 31 of the 1969 Vienna Convention
on the Law of Treaties. According to paragraph 1 of Article 31,
a treaty 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.
The Court points out that
the words “treaties in force” in Article 35, paragraph 2,
do not, in their natural and ordinary meaning, indicate at what date
the treaties contemplated are to be in force, and may thus lend themselves
to different interpretations. They may be interpreted as referring
either to treaties which were in force at the time that the Statute
itself came into force, or to those which were in force on the date
of the institution of proceedings in a case in which such treaties
are invoked.
The Court observes that
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. It would have been inconsistent with the
main thrust of the text to make it possible in the future for States
not parties to the Statute 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.
The Court moreover notes
that the interpretation of Article 35, paragraph 2, whereby
that paragraph is to be construed as referring 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;
the Court considers that the legislative history of Article 35,
paragraph 2, of the Statute of the Permanent Court of International
Justice (hereinafter 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 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 exist. 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 condition other than the existence of a
treaty, containing a clause conferring jurisdiction on the Court,
which might be concluded at any time subsequently to the entry into
force of the Statute. As previously observed, 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 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.
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. 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.
Unnecessary to consider
other preliminary objections (para. 113)
Having found 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, the Court states
that it is unnecessary for it to consider the other preliminary objections
filed by the Respondents to its jurisdiction.
*
The Court finally recalls
(para. 114) that, irrespective of whether 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”.
*
The text of the operative
paragraph reads as follows:
“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.”
___________
Annex to Summary 2004/10
Joint declaration of Vice?President Ranjeva
and Judges Guillaume, Higgins, Kooijmans, Al?Khasawneh, Buergenthal
and Elaraby
1. Vice?President
Ranjeva and Judges Guillaume, Higgins, Kooijmans, Al?Khasawneh,
Buergenthal and Elaraby voted in favour of the dispositif of
the Judgments because they agree that these cases cannot, as a matter
of law, proceed to the merits. They have added in their joint declaration
that they nevertheless profoundly disagree with the reasoning adopted
by the Court.
2. They note that when
the Court finds in a case that, on two or more grounds, its jurisdiction
is not well founded ratione personae, ratione materiae
or ratione temporis, it may choose the most appropriate
ground on which to base its decision of lack of competence. They
point out that this choice must be guided by three criteria: consistency
with the past case law; degree of certitude of the ground chosen;
possible implications for the other pending cases.
3. In the present instances,
according to the Judgments of the Court, Serbia and Montenegro was
not a Member of the United Nations in 1999 and, as a result, was not
then a party to the Statute of the Court. In the Judgments, the Court
concludes therefrom that it was not at that time open to the Applicant
under Article 35, paragraph 1, of the Statute. The Judgments
go on to state that paragraph 2 of that Article enables States
not parties to the Statute to appear before the Court only by virtue
of Security Council decisions or treaties concluded prior to the entry
into force of the Statute. It is observed in the Judgments that the
United Nations Genocide Convention only entered into force in 1951.
It is thus concluded that Article 35, paragraph 2, of the
Statute does not grant Serbia and Montenegro access to the Court either.
4. In the view of the
seven judges making the joint declaration, this solution is at odds
with a number of previous decisions of the Court, in particular the
Judgment rendered on 3 February 2003 in a case between Bosnia
and Herzegovina and Yugoslavia, in which it was found that Yugoslavia
could appear before the Court between 1992 and 2000 and that this
position had not been changed by its admission to the United Nations
in 2002. Further, the authors of the declaration note that in reality
it is far from self?evident that Yugoslavia was not a Member
of the United Nations at that time. Lastly, they regret that the
Judgment leaves some doubt as to whether Yugoslavia was a party, between
1992 and 2000, to the United Nations Genocide Convention and thus
could call into question the solutions adopted by the Court in the
case brought by Bosnia and Herzegovina against Serbia and Montenegro.
Thus, the Court’s Judgment does not meet any of the three criteria
set out in paragraph 2 above.
5. The seven judges finally
observe that the Court could easily have founded its Judgment that
it lacked jurisdiction on the grounds on which it relied in 1999 when
the requests for the indication of provisional measures were considered.
The Court then found that it lacked jurisdiction ratione temporis
in respect of the declaration accepting the compulsory jurisdiction
of the Court which Serbia and Montenegro had filed several weeks after
the start of military operations in Kosovo. It also found itself
to be without jurisdiction ratione materiae in respect of the
United Nations Genocide Convention, as no genocidal intention had
been established. These solutions could easily have been confirmed.
Declaration of Judge Koroma
In his declaration Judge
Koroma stated that, while concurring in the Judgment, he considered
it necessary to stress the following. The question which the Court
was requested to rule on and which it in fact did decide in this phase
of the case was the issue of jurisdiction, namely, whether the Court
could entertain the merits of the case. The jurisdictional function
is intended to establish whether the Court is entitled to enter into
and adjudicate on the substantive issues in a case. This function,
in his view, cannot be dispensed with as it is both required by law
and stipulated in the Statute of the Court. It is this function that
the Court has carried out in this Judgment and it is within this paradigm
that the Judgment must be understood. The Judgment cannot be interpreted
as the Court taking a position on any of the matters of substance
before the Court.
Separate opinion of Judge Higgins
Judge Higgins agrees that
Serbia and Montenegro have not discontinued the case. However, she
disagrees with the apparent finding of the Court that a case may only
be removed from the List where there is a discontinuance by the applicant
or the parties, or where an applicant disclosed no subsisting title
of jurisdiction, or where the Court manifestly lacked jurisdiction
(see paragraph 31 of the Judgment). In her view, the right of
the Court exceptionally to remove a case from the List rests on its
inherent powers, which are not limited to a priori categories.
Judge Higgins is of the
opinion that the present case should have been removed from the List,
as the Applicant has by its own conduct put itself in a position incompatible
with Article 38, paragraph 2, of the Rules of Court. The
manner in which it has dealt with preliminary objections would further
warrant the case not being proceeded with.
Finally, Judge Higgins
greatly regrets the attention the Court has afforded to Article 35,
paragraph 2, of the Statute, believing its relevance lies only
in another pending case.
Separate opinion of Judge Kooijmans
Judge Kooijmans has
added a separate opinion to the Judgment and the joint declaration
of seven Members of the Court, which he co?signed, for two reasons.
First he wishes to explain
why in his view the Court should not have decided the issue of jurisdiction
on the ground of Serbia and Montenegro’s lack of access to the Court,
although in 1999, when the Court rejected Yugoslavia’s request for
interim measures of protection, he was in favour of this approach.
In his view, the Court has not in a convincing and transparent way
elucidated the status of the Federal Republic of Yugoslavia vis?à?vis
the United Nations before its admission to the Organization in 2000.
Further, the Court’s Judgment has undeniable implications for other
pending cases, in particular the Genocide Convention case (Bosnia
Herzegovina v. Serbia and Montenegro), which could
easily have been avoided by choosing another approach. Finally, the
Judgment is at odds with previous decisions of the Court, thus endangering
the principle of consistency of reasoning. This consistency with
earlier case law should prevail over present or earlier misgivings
of individual judges if an approach in conformity with that consistency
does not lead to legally untenable results.
In the second place Judge Kooijmans
sets out why in his view the Court would have done better to dismiss
the cases in limine litis. In 1999 the Applicant invoked two
grounds of jurisdiction which it explicitly abandoned in its Written
Observations of 20 December 2002 without replacing them
by other grounds. Nevertheless it did not discontinue the case but
asked the Court to decide whether it had jurisdiction. Thus
the Applications did no longer meet the requirement of Article 38,
paragraph 2, of the Rules of Court, which states that the application
shall specify as far as possible the legal grounds upon which the
jurisdiction of the Court is said to be based. Since the Court has
the inherent power to strike a case from the General List in order
to safeguard the integrity of the procedure, it should have done so
in view of the fact that the Applicant has failed to demonstrate and
even did not make an effort to demonstrate that a valid ground of
jurisdiction existed.
Separate opinion of Judge Elaraby
Judge Elaraby voted in
favour of the dispositif, but disagreed both with the grounds
on which the Court decided to base its Judgment - Article 35, paragraph 1 and Article 35,
paragraph 2 of the Court’s Statute - and with the conclusions
which the Court reached on each of these grounds. The joint declaration,
to which Judge Elaraby is a signatory, explains why he believes that
the Court should have chosen alternative grounds to reach its decision.
His separate opinion explains why he disagrees with its substantive
findings.
Beginning with the issue
of access to the Court under Article 35, paragraph 1, Judge Elaraby
explained why, in his view, the Federal Republic of Yugoslavia was
a Member of the United Nations at the time it filed its Application
in the case. He emphasized that, although the FRY was excluded from
participation in the work of the General Assembly and its subsidiary
organs, it remained, as the Court had previously found, a sui generis
Member between 1992 and 2000. Thus Judge Elaraby pointed out
that during this period it continued to exhibit many attributes of
United Nations membership and was neither suspended nor expelled from
the Organization under the relevant provisions of the United Nations
Charter. On this basis, Judge Elaraby concluded that the FRY
was a Member of the United Nations when it filed its Application in
1999 and, as a result, he disagreed with the Court’s finding that
it was not “open” to the FRY under Article 35, paragraph 1,
of the Court’s Statute.
He also disagreed with
the Court’s finding that, assuming the FRY was a non?Member
of the United Nations, it would not have had access to the Court under
Article 35, paragraph 2. For Judge Elaraby, the Court’s
interpretation of the term “treaties in force” in Article 35,
paragraph 2, as meaning “treaties in force at the time the Statute
of the Court entered into force” was unduly restrictive. Like the
Court, Judge Elaraby analysed the relevant travaux préparatoires,
but, unlike the Court, he found that the expression “treaties in force”
should be read to include any treaties connected with the peace settlement
following the Second World War, whether they entered into force before
or after the Statute of the Court. This would include, according
to Judge Elaraby, the Genocide Convention, a treaty drafted under
the auspices of the United Nations in direct response to the tragic
events of the Second World War. In the alternative, Judge Elaraby
stated that, even if the Court’s reading of “treaties in force” were
adopted as a general rule, there should be an exception for treaties
intended to remedy violations of jus cogens. These, he wrote,
should be subject to a broader interpretation so that any State seeking
access to the Court on the basis of a treaty that addresses a jus
cogens violation could do so as long as the treaty was in force
when the Application was filed.
Because Judge Elaraby
concluded that the Court was open to the FRY under Article 35
when it filed its Application in 1999, he went on to assess whether
the Court has jurisdiction ratione personae under Article IX
of the Genocide Convention. He concluded that it does, because the
FRY succeeded to the treaty obligations of the former Socialist Federal
Republic of Yugoslavia, including the Genocide Convention. In reaching
this conclusion he explained that, in cases involving the separation
of parts of the territory of a State to form one or more new States,
Article 34 of the Vienna Convention on Succession of States in
respect of Treaties embodied a customary rule of automatic succession
by the new State to the treaties in force on the territory of its
predecessor. He pointed out that it was all the more important for
the Court to recognize and apply this rule in the case of a fundamental
human rights treaty such as the Genocide Convention. Judge Elaraby
thus concluded that the FRY was a party to the Genocide Convention
on the basis of succession - not its subsequent
purported accession and reservation - and therefore that the Court
had jurisdiction ratione personae. He found, however, that
the Court did not have jurisdiction ratione materiae under
the Convention, so in the final analysis agreed with the Court that
there was no jurisdiction to examine the merits of the FRY’s case.
Separate opinion of Judge Kre?a
Judge Kre?a noted
that the Respondent, as well as the Applicant, attached crucial importance
to the issue of locus standi of Serbia and Montenegro before
the Court.
In the case at hand, it
is closely, and even organically, linked with the membership of Serbia
and Montenegro in the United Nations, due to the fact that it could
not be considered as being party to the Statute of the Court 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.
In that regard he finds
that at the end of the year 2000 the Applicant 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.
The admission of the FRY
to the United Nations as a Member as from 1 November 2000
has two principal consequences in the circumstances of the case at
hand:
(i) with respect to the admission
of Yugoslavia as a Member as from 1 November 2000, it can
be said that what is involved is the admission as a new Member; and
(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.
He is also 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 case as well
as the reasoning of the Court.
| 
