Summary of the Order of 2 June 1999

Summaries of Judgments, Advisory Opinions and Orders of the Internationa
l Court of Justice
Not an official document

CASE CONCERNING LEGALITY OF USE 017 FORCE (YUGOSLAVIA v.
NETHERLANDS) (PROVISIONAL MEASUREX) .

Order of 2 June 1999

In an Order issued in the case concerning Legality of
Use of Force (Yugoslavia v. Netherlands), the Court Judge Koroma appended a declaration to the Court's
rejected by eleven votes to four the request for the Order. Judges Oda, Higgins, Parra-Aranguren and
Kooijmans appended separate opinions. Vice-President
indication of provisio~lalmeasures submittedby the Federal Weeramantry, Acting President, Judges Shi and
Republic of Yugoslavia(FRY).The Court also stated that it Vereshchetin, and Judge ad hoc Kreca appendeddissenting
remained seized of the case. It reserved the subsequent opinions.
procedurefor furtherdecisionby fourteenvotesto one.
The Court was composed as follows: Vice-President
Weeramantry,ActingPresident;PresidentSchwebel;Judges

Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,
Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-
Aranguren, Kooijnlans; Judge ad hoc Kreca; Registrar
Valencia-Ospina. On 29 April 1999 Yugoslavia filed an Application
instituting proceedings against the Netherlands "for
violation of the obligation not to use force", accusing that
State of bombing Yugoslav territory "together with other

The fill1text of the operative paragraph of the Order Member States of NATO". On the same day, it submitteda
reads asfollows: request for the indication of provisional measures, asking
the Court to order the Netherlandsto "cease immediatelyits
"51. For thesereasons. acts ofuse of force" andto "refrain from any act of threat or
THE COURT, use of force" againstthe FRY.
(,I)By elevenvotes to four,
As a basis for the jurisdiction of the Court, Yugoslavia
Rejects the request for the indication of provisionalinvoked thedeclarationsby which both States had accepted
measures submitted by the Federal Republic of the compulsoryjurisdiction of the Court in relation to any
Yugoslaviaon29 April 1999; other State accepting the same obligation (Article 36,
paragraph 2, of the Statute of the Court), and Article IX of
IN FAVOUR: President Schwebel; Judges Oda, the Convention on the Prevention and Punishment of the
Bedjaoui, Guillaume, Ranjeva, Herczegh, Fleischhauer,
Koroma,Higgins,Parra-Aranguren,Kooijmans; Crime of Genocide, adopted by the United Nations General
AGAINST: Vice-President Weeramantry, Acting Assemblyon 9December 1948.
President;Judges Shi, Vereshchetin;Judge adhoc Kreca; Article IX of the Genocide Convention provides that
disputes between the contracting parties relating to the
(2)By fourteenvotes to one, interpretation, application or fulfilment of the Convention
Reserves the subsequent procedure for further shall be submittedto the International Court of Justice. In a
decision.
supplement to its Application submitted to the Court on 12
IN FAVOUR: Vice-PresidentWeeramantry, Acting May 1999, Yugoslavia invoked, as an additional ground of
President; President Schwebel; Judges Bedjaoui, jurisdiction, Articleof the Treaty of Judicial Settlement,
Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Arbitration and Conciliation between the Netherlands and
Koroma, Vereshchetin, Higgins, Parra-Aranguren, the Kingdo~nof Yugoslavia, signed at The Hague on 11
Kooijmans;Judge ad hoc Kreca; March 1931.

AGAINST:Judge Oda."

Continued on next page

98 Reasoilirlg of'tke Court Yugoslavia are capable of falling within the provisions of
In its Order, tlie Court first emphasizesthat it is "deeply that instrument and whether, as a consequence, the dispute
is one over which the Court inight havejurisdiction rcrtioize
concerned with the human tragedy, the loss of life, and the materiae. In its Application, Yugoslavia conteilds that the
enormous suffering in Kosovo which formthe background" subject of the dispute concerns inter alia "acts of the
of the dispute and "with the continuing 1os.sof life and Kingdoill of the Netherlands by which it has violated its
huii~ansufferingin all parts of Yugoslavia". Itdeclaresitself
"profoundly coilcernedwith the use of force in Yugoslavia", international obligation ... not to deliberately inflict
which "under the present circumstances ... raises very conditions of life calculated to cause the physical
serious issues of international law". While baing "mindful destruction of a national group". It contends that the
sustained and intensive bombing of the whole of its
of the purposesand principlesof the UnitedNaitionsCharter territory, including the most heavily populated areas,
and of its own responsibilities in the maintenance of peace constitutes"a seriousviolation of ArticleI1of the Genocide
and security under the Charter and [its] Statute", the Court Convention", thatit is the Yugoslav nation as a whole and
"deems it necessaiy to emphasize that all pal-tiesbefore it as such that is targetedand that the use of certain weapons
must act in conforiiiity with their obligations imder the
United Nations Charter and other rules of internationallaw. whose long-teim hazards to health and the environmentare
includinghumanitarianlaw". already known, and the destructionof the largest part of the
country's power supply system, with catastrophic
'TheCourt then points out that it "does not automatically consequences of which the Respondent must be aware,
liave jurisdiction over legal disputes between States" and "impl[y] the intent to destroy, in whole or in part", the
that "one of the fundamentalprinciples of its Statute is that Yugoslav national group as such. According to the
it cannot decide a dispute between States without the Netherlands, Yugoslavia's Application"fails to refer to the
consent of those States to :itsjurisdiction". It cimnotindicate
provisional measures wit:hout its jurisdictiorl in the case conditionsthat form the core of the crime of genocide under
being establishedprima facie. the Convention,namely 'theintentto destroy, in whole or in
part, a national, ethnical,racial or religious group, as such"'
Concerning the first basis of jurisdction invoked, the and the Court accordingly lacks jurisdiction ratione
Couit observes that under the terms of it!; declaration, ii~nterineon the basis of Article IX. It appears to the Court
Yug;oslavialimits its acceptance of the Court's conipulsory that, according to the Convention, the essential
jurisdiction to "disputes arising or which may arise after the characteristic ofgenocide is the intended destruction of a
signature of the present Declaration, with regard to the national,ethnical,racial or religious group; the Court further
situationsor facts subsequentto this signature". It statesthat
states that "thelu-eator use of force against a State cannot
in order to assess whether it hasjurisdiction in the case, it is in itself constitutean act of genocide within the meaningof
sufficientto decide whethorthe dispute brouglr~tto the Court Article I1 of the Genocide Convention". It adds that in its
"arose" before or after 25 April 1999,the date on whichthe opinion, it does not appear at the present stage of the
declaration was signed. It finds that the bombings began on proceedingsthat the bombings which formthe subjectof the
24 March 1999and have been conducted continuouslyover Yugoslav Application "indeedentail the element of intent,
a period extending beyond 25 April 1999. The Court has towards a group as such, required by the provision"
thus no doubt tliat a "legal dispute ... 'arose' between
Yugoslavia and [the Netherlands], as it did also with the mentioned above. The Court considers therefore that it is
not in a positionto find, at this stage of theproceedings,that
other NATO iiieinber States, well before 25 April 1999". the acts imputed by Yugoslavia to the Netherlands are
The Court concludes tha!t the declarations made by the capable of coming within the provisions of the Genocide
Parties do not constitute a basis on whichthei~urisdictionof Convention; and Article IX cannot accordingly constitute a
the Court couldprima faciebe founded inthe case. basis on which the jurisdiction of the Court could prima
As to the argiunents of the Netherlands that Yugoslavia faciebe founded inthe case.
is not a member State of the United Nations in view of
As to Article 4 of the Treaty of Judicial Settlement,
United Nations Security Council resolutions 757 and 777 Arbitration and Conciliation between the Netherlands and
(1992) and United Natioi~sGeneral Asseinbly resolutions the Kingdom of Yugoslavia, the Court observes that "the
471.1(1992) and 48/88 (11)93),nor a party to the Statute of invocation by a party of a new basis of jurisdiction in the
the Court, so that Yugoslavia could not validly make the second round of oral argument on a request for the
declaratioil accepting tlie compulsory jurisdiction of tlie indication of provisional measures has never before
Court, tlie Court maintains that it need not consider this occurred in the Court's practice", that "such action at this
question.taking into accountits findingthat thedeclarations late stage, when not accepted by the other party, seriously
do riotconstitutea basis ofjurisdiction.
jeopardizes the principle of procedural fairness and the
Concerning Article IX of tlie Genocide Convention,the sound administrationofjustice" and thatin consequencethe
Court states that it is notisputed that both Yugoslavia and Court cannot take into consideration this new title of
the Netherlands are parties to that Convention, without jurisdiction.
rese:rvatioa, aiid that Article IX accordingly appears to The Court having found that it has "no prima facie
coilstitute a basis on which the jurisdiction of the Court jurisdiction to entertain Yugoslavia's Application, either on
might be founded. The Court however find:; that it must
the basis of Article 36, paragraph 2, of the Statute or of
ascertain whetherthe breaches of the Conventionallegedby Article IX of the Genocide Convention" andhaving "takenthe view that it cannot,at this stage of the proceedings,take Parties not to aggravate or extend the disputeand torespect

account of the additional basis of jurisdiction invokedby international law, including humanitarian law and the
Yugoslavia", it follows that the Court "cannot indicate any human.rightsof all the citizens of Yugoslavia.
provisional measure whatsoever". However,the findings
reached by the Court "in no way prejudge the question of Separate opiilioiz ofJudge Oda
the jurisdiction of the Court to deal with the merits of the
case" and they "leave unaffected the right of the Judge Oda supports the decision of the Court in
dismissing the requests for the indication of provisional
Governments of Yugoslaviaand'the Netherlands to submit ineasuvesby the Federal Republicof Yugoslaviaagainstten
argunleiltsin respectof those questions".
The Court finally observes that "there is a fundamental respondent States.While favouringthe decisionofthe Court
distinctionbetweenthe questionof the acceptanceby a State to remove the casefromthe General List of the Courtin the
of the Court's jurisdictionandthe compatibilityofparticular cases of Spain and the United States, Judge Oda voted
against the decision in the other eight cases in which the
acts with internationallaw". "The former requires consent; Court ordered that it "[rleserves the subsequent procedure
the latter questioncan onlybe reached whenthe Court deals for fu~therdecision", because he believes that those eight
with the merits after having established its jurisdictionand cases should also be removedat this stagefrom the General
having heard full legal arguments by both parties". It
emphasizes that "whether or not States accept the Listof the Court.
jurisdiction of the Court, they remain in any event Judge Oda considers that the Federal Republic of
responsible for acts attributable to them that violate Yugoslavia is not a Memberof the United Nations and thus
not a party to the Statute of the International Court of
internationallaw, includinghumanitarianlaw" and that"any Justice. The Applicationspresentedby the Federal Republic
disputes relating to the legality of such acts are required to
be resolved by peacefill means, the choice of which, of Yugoslavia should therefore be declared inadmissiblefor
pursuant to Article 33 of the Charter, is left to the parties". this reason alone and should be removed from the General
In this context,"the parties shouldtake carenotto aggravate List of the Court.
or extend the dispute". The Courtreaffirmsthat "when such He neverthelessthen goes on to discuss whether, if the
a dispute gives rise to a threat to the peace, breach of the Federal Republic of Yugoslavia were to be considered a

peace or act of aggression, the Security Council has special party to the Statute, it could have brought the present
responsibilitiesunder Chapter VII of the Charter". Applicationson the basis of certain legal instruments.After
having examined the meaning of (i) the optional clause of
Declaratioiz of Judge Koroma the Court's Statute, (ii) the background to the 1930and
1931 instruments with Belgium and the Netherlands,
In his declaration Judge Koroma observed that these respectively, and (iii) the 1948 Genocide Convention, he
were perhaps the most serious cases that have ever come reaches the conclusion that noneof these instruments grant
before the Court for provisional measures. He stated that
jurisprudentially such measures were designed to prevent the Courtjurisdictionin any of the ten Applications.
Judge Oda agrees with the Court that,as it has no basis
violence, the use of force, to safeguard international peace ofjurisdiction, it must reject the requests for the indication
and security as well as serving as an important part of the of provisional measures in all ten cases. However, he
dispute settlement process under the Charter of theUnited considers that, the Court having decided that it has no
Nations. In his view the indication of such measures
therefore represents one of themost important functionsof jurisdiction to entertain the cases, neven prima facie,that
the Court. this can only mean that it has nojurisdiction whatsoeverin
any of the cases. It follows, in Judge Oda's view, that not
But the granting of such a relief,he stressed, could only only in the cases of Spain and the United States, in which
be done in accordancewith the Statuteof the Court. In this the Co-urtstates that it manifestly lacks jurisdiction, but in
regard, and in the light of the jurisprudence of the Court, all the other cases, the Applications shouldbe dismissed at
where prima facie jurisdiction is absent or other this stage, given that the Court has found that there is not
circumstances predominate, the Court will not grant the
request for provisionalmeasures. even a primafaciebasisofjurisdiction.
Judge Oda also points out that,while the Court makes a
Nevertheless, he considered the Court, being the distinction between theApplications, even though they deal
principal judicial organ of the United Nations, whose virtually with the same subject matter, this distinction,
priinary raison d'Ctre remains the preservation of which came about simply because of the different positions
international peace and security, to be under a positive
obligation to contribute to the maintenance of international which individual States happened to take towards the
various instruments that are to be applied concerning the
peace and security and to provide a judicial framework for Court's jurisdiction, willleadto differing results concerning
the resolution of a legal conflict, especially one whichnot the future proceedings in each of the cases. In Judge Oda's
only threatens international peace and security but also view this is an illogical situation, which supports his
involves enormoushuman suffering and continuing loss of contention that all ten cases should be dismissedin their
life. He had thereforejoined with the other Membersof the entiretyat this stage.
Court in calling for the peaceful resolutionof this conflict

pursuant to Article 33 of the Charter, and in urging the Separate opinio,llof .Judge Higgins He does not agree with the Court's view that
Yugoslavia's declaration of acceptance of the compulsory
Judge Higgins in her separate opinions addresses two jurisdictioii of the Court of 25 April 1999cannot provide a
issues that arise in relation to those cases where theFederal basis of jurisdiction in the present case, even prima facie,
Republic of Yugoslavia claims jurisdiction on the basis of
Article 36. paragraph 2, of the Statute. The first issue because of the reservations incorporated in the declarations
concellis temporal limitations to so-called "optional of Spain and the United Kingdom, cq. because of the
clauses", andin particular the question of when a dispute temporal limitation contained in Yugoslavia's declaration
(cases against Belgium, Canada, the Netherlands and
arises and when the relevant events have occurred. These Portugal). He is of the view that the Court lacksprima facie
concepts are analysed in con.nectionwith Yugoslavia's own jurisdiction because of the controversial validity of
declaration. The second issue addresses the question of Yugoslavia's declaration. This validity issue constitutes a
exact1.ywhat has to be show:nfor the Court to be:satisfied it
has prima facie jurisdiction when it is considering the preliminary issue and should, therefore. have been dealt
indicationof provisionalmeasures. It is suggestedthat some with by the Courtas a thresholdquestion.
jurisdictional issues are so complex that they cannot be Sincethis issue is of no relevance in the fourother cases
(against France, Germany, Italy and the United States) as
addressed at all at this phase; their holdingver for a later these States themselves do not recognize the conlpulsory
phase does not stand in the way of the Court determining
whether or not it has prima facie jurisdiction for the jurisdiction of the Court. there is no need for a separate
purpo:;esof Article 41. opinioninthose cases.
2. Article 36, paragraph 2, of the Statute explicitly
states that only States which are party to the Statute can
Separate opiizion of .Judge Pal-ra-Ai.ailg.ureil recognize the compulsory jurisdiction of the Court by
Judge Parra-Arangurenrecalls that Yugoslaviamaintains depositing a declaration of acceptance with the Secretary-

that ''thebombing of Yugoslav populated areas constitute a General of the United Nations. Member States of that
breach of Article I1 of the Genocide Convention", a organization are eo @so party to the Statute. All six
conterrtiondenied by the Respondent; that a legal dispute Respondents contended. that since the Federal Republic of
exists between the Parties because of the existence of "a Yugoslavia is not a Metnber of the United Nations, its
situation in which the two sides hold clearly oppositeviews declarationof acceptancehas not beenvalidly made.
concerning the question of the performance or non-
performance of certain treaty obligations", as the Court 3. On 22 September 1992the GeneralAssembly,on the
recommendation of the Security Council, decided that the
stated in its decision of 11 July 1996 (Application of the Federal Republic of Yugoslavia cannot continue
Conventionon the Preventiclnand Punislliilentqf the Crime automatically the membership of the former Socialist
of Genocide (Bosniaand Herzegovina v. ficgosbzvia),I.C.J. Federal Republic of Yugoslavia and therefore that it should
Reports 1996(II),pp. 614-615,para. 29); and that according apply for membership inthe United Nations.Until that time
to Article IX of the Genocide Convention, "disputes it shall not participate in the work of the General Assembly
between the ContractingParties relating to the interpretation
or fi11:filmentf the present ,Conventionwshall be submitted (res. 4711). The Federal Republic of Yugoslavia never
appliedfor membership.
to the International Court of Justice. Therefore, in his 4. In its present Orders the Court avoids the question of
opinion the Court has prima facie jurisdiction to decide the contested validity of Yugoslavia's declaration. It takes
upon the provisionalmeasuri:srequestedby Yugoslavia. the position that it need not consider this issue since the
Yugoslavia requested the Court to indicate that the declaration cannot provide the Court with a basis for prima
Respondent"shall cease immediatelythe acts of useof force
faciejurisdiction on othergrounds.
and shall refrain from any act of threat or use of force 5. Judge Kooijtnans is of the view that the Court's
against the Federal Republic of Yugoslavia". However, the reasoning in this respect is inconsistent.Such other grounds
threat or use of force against a State cannot in itself only becomerelevant if the validity of the declaration- at
constitute an act of genocide within the meaning of the least for the present stage of the proceedin-s is accepted.
Genocide Convention. C:onsequently, Yugoslavia is
requestingthe indicationof provisionalmeasurer;that do not The Court's reasoningis based on a presumption of validity
aim to guarantee its rightsunder the Genocide Convention, and the Court should have said so and have given its
argumentsfor it.
i.e., tlie right not to suffer acts which may be characterized 6. According to Judge Kooijmans there certainly was
as genocide crimes by the Convention. Therefore, in the no need for the Court to take a definitive stand on
opinion of Judge Parra-Ara-nguren,the measures requested
by Yugoslaviashouldnot beindicated. Yugoslavia'smembershipof the UnitedNations. He is fully
aware that resolution 4711 is unprecedented and raises a
number of highly complex legal questions, which require a
Separate opii~ioizofJudge Kooijmaizs thorough analysis and careful evaluationby the Court at a
1. Judge Kooijmans joined a separate opinion to the laterstageof the proceedings.
Order of the Court in the cases of Yugos1:lviaversus
Difficult though the question may be, the relevant
Belgium, Canada, the Netherlands, Portugal, Spain and the decisions have been taken by the organs of the United
United Kingdom,respectively. Nations which have exclusive authority in matters ofmembership (Security Council and General Assembly) and constituent elements of the dispute. Besides, NATO cannot
they cannotbe overlookedor ignored. be identified with, nor be the Respondent in the present

7. According to Judge Kooijmans the doubts, raised by cases rationepeisoilae. The dispute only arose at the date
the decisions of the competent United Nations bodies with subsequentto the signatureof the declaration.
regard to Yugoslavia'smembership andthe ensuingvalidity Regarding the second aspect of the time condition, the
of its declaration, are, however, so serious that the Court dispute relates to the alleged breach of various international
sllould have concluded that this declaration cannot provide obligationsby acts of force, in theorm of aerialbombingof
it with a basis forprima faciejurisdiction. The Court should the territories of Yugoslavia, which are attributed by the

not indicate provisional measures unless its competence to AppIlicantto the respondent State. It is obvious that the
entertain the dispute appears to berer~sonab(vprobabIeand allegedbreach of obligatioilsby such a "continuing" act first
this test of reasonable probability cannot be passed because occurred at the moment when the act began, weeks before
of the doubtfulvalidity of the declaration. the critical date. Given that the acts of aerial bombing
8. If that is the case, issues like reservations and continued well beyond the critical date and still continue,
temporal limitationson which thecases were decidedby the the time of comnission of the breach extends over the
whole period during which the acts continue and ends only
Court, become irrelevant since they are wholly conditioned when the acts of the respondent Statecease.
by the preliminaryquestionof the declaration's validity.
The conclusionmay be drawn that the limitationratione
Dissenting opinion of Vice-President Weercjnzantry temporis contained in Yugoslavia's declarationin no way
constitutes a bar to founding prima facie jurisdiction upon
Judge Weeramantryhas filed a dissentingopinion in this Article 36, paragraph 2, of the Statute for the purpose of
case on the samegrounds as in Yugoslaviav. Belgium. indicatingprovisionalmeasuresin the presentcase.

Moreover, for reasons similar to those expressed in the
Dissenting opinion ofJudge Shi declarationsrelating to the other six cases, Judge Shiregrets
In the four cases of Yugoslavia against Belgium, that the Court, being confronted with a situation of great
Canada, the Netherlands and Portugal, Judge Shi disagrees urgency, failed to make a general statementappealingto the
Parties to act in compliancewith their obligationsunder the
with the Court's findings that, given the limitationI-atione United Nations Charter and all the rules of internationallaw
teiipor~is contained in Yugoslavia's declaration of relevant to the situation, and at least not to aggravate or
acceptance of compulsory jurisdiction, the Court lacked
prima faciejurisdiction under Article 36, paragraph2, of the extend their disputes immediately upon receipt of
Statute for the indication of provisional measures requested Yugoslavia's request and regardless of what might be the
by Yugoslavia. Court's conclusionon prima facie jurisdiction pending its
final decision. The Court also failed to make use of Article
By that declaration, signed on 25 April 1999, 75, paragraph 1,of the Rules of Court to decide the requests
Yugoslavia recognized compulsory jurisdiction "in all propiio motu,despiteYugoslaviahaving so asked.
disputes arisingor which mayarise afier the signatureof the
present Declaration, with regard to the situations or facts For these reasons, Judge Shi felt compelled to vote
subsequentto this signature ..."In cases where the Court is agairistoperativeparagraph (1) of the four Orders.
confrontedwith such a "double exclusionformula", it has to
ascertain both the date of the dispute and the situations or Dissenting opinion of Judge Vereshchetin
facts with regardto whichthe disputehas arisen.
Judge Vereshchetin begins his dissenting opinion with a
As tothe first aspect of the time condition,the Courthas general statement, attached to all the Orders of the Court, in
to deteimine what isthe subjectmatter of the dispute,which which he holds that the extraordinary and unprecedented
in the present cases consists of a number of constituent circumstances of the cases before the Court imposed on it a
elements. The section "Subject of the Dispute" in each of
Yugoslavia's Applicationsindicatesthat subjectmatter tobe need to act promptly and, if necessary,proprio motu.After
that, he proceeds to explain why he has no doubt that prima
acts of the Respondent by which it has violated its facie jurisdiction under Article 36, paragraph 2, of the
international obligations not to use force against another Statute of the Court exists with regard to the Applications
State,not to intervenein the internal affairs of another State, instituted against Belgium, Canada, the Netherlands and
not to violate the sovereigntyof another State,to protect the Portugal. As far as Belgium and the Netherlands are
civilian population and civilian objects in wartime, to concerned, the Court also has prima faciejurisdiction under
protect the environment,etc.
the Agreementssigned between Belgium and Yugoslavia on
Prior to the coming into existence of all the constituent 25 .March 1930 and between the Netherlands and
elements, the dispute cannot be said to arise. Though the Yugoslaviaon 11March 1931.
aerial bombing of the territory of Yugoslavia began some Judge Vereshchetin disagrees with two cornerstone
weeks before the critical date of signatureof the declaration, propositions on which, in his opinion, rest the argumentsto
aerial bombing and its effects as such do not constitute a the contrary upheld in the Orders of the Court. The first
dispute. It is true that prior to the critical date, Yugoslavia
had accused NATO of illegal use of force against it. This proposition is that the text of the Yugoslav declaration
acceptingthe jurisdiction of the Court, and in particular the
complaint constitutes at the most one of the manywording of the reservation containedtherein, d0e.snot grant choose as many judges ad hoc to sit on the Bench as is
prima faciejurisdiction to the Court.The secondproposition necessaryto equalizethe positionof applicant State and that

is that thetiming of the presentation by Yugoslavia of the of the respondent States which have judges of their
additic~ilalases forjurisdiction does not allow the Court to nationality on the Bench and whichshare the same interest.
concludethat it has priina faciejurisdiction in respectof the Itt concreto, the inherent right to equalization in the
cases institutedagainstBelgiilnland theNetherlands. coinposition of the Bench, as an expression of a
As coilcerns the first proposition, Judge V~zreshchetin fundamental rule of equality of parties, ineans that the
Federal Republic of Yugoslavia should have the right to
takes the view that the Court, by refusing to take into choose five judges ad hoc, since even five out of ten
account the clear intenth of Yugoslavia, reads its
declarationin a way that cou1.dlead to the absurdconclusion respondent States (United States, the United Kingdom,
that Yugoslavia intendedby its declarationof acceptanceof France, Gennany, and the Netherlands) have their national
the Court's jurisdiction to exclude the jurisdiction of the judges sittingon the Bench.
Court over its Applications instituting proceedings against At the sametime, accordingto coherentjurisprudence of
the Respondents. the Court, none of the respondeilt States were entitled to
appoint a judge ad hoc (Ter.ritor-ial.J~trisdictionof the
As to the second proposition connected with the
invocationof additionalgrounds ofjurisdiction inrelationto Ititerilational Conlmissiorl of the River Oder; Ctrstoms
Belgium and the Netherlands, in the opinion of Judge Rkgiiitebetweeil Germmy anddlrstriu).
Vereshchetin, the legitimate concern of the Court over the There is no need to say that the above-mentionedissues
observance of "the principle of procedural fairness and the are of upmost specific weight in view of the fact that
sound administrationofjustice" cannot be stretched to such obviously the meaning of such issues is not restrictedto the

an extent as to exclude a priori the additional basis of procedure, but that it may have a far-reaching concrete
jurisdiction from its consideration. solely because the meaning.
respondent States have not been given adequate time to Judge Kreca finds that in the recent practice of the
prepare their counter-arguments. Admittedly, it cannot be Court, in particular that in which individuals were directly
considered normal for a new basis of jurisdiction to be affected, a high standard of humanitarian concern in the
invoked in the second round of the hearings. However, the proceedings for the indicationof interim nleasures has been
respon.deatStates were given the possibility of presenting
their counter-arguments to the Court, and they used this formed, a standard which commanded sufficient inherent
strength to brush aside some relevant, both procedural and
possibility to make various observations and objections to material. rules governing the i~~stitutionof provisional
the new basis of jurisdiction. If necessary, they could have measures (e.rampli cuusn, the LaGr(znd case). Thus,
asked for the prolongation of the hearings. 111turn, the humanitarian considerations, independently from the noims
Applicant may reasonably claim that the belatedinvocation of international law regulating human rights and liberties,
of the new titles of jurisdiction was caused by the have, in a way, gained autonomous legal significance;they
extraordinary situation in Yugoslavia, in which the have transcended the moral and philanthropic sphere, and
preparation of the Applications had been carried out under
entered thesphereof law.
conditionsof daily aerialbombardmentby the Respondents. In the case at hand, it seem that "humanitarian concern"
The refusal of the majorityto take into considerationthe has lost the acquired autonomous legal position. The fact
new bases of j~irisdictionis clearly contrary to Article 38 of needs to be stressed in view of the specialircunlstancesof
the Rules of Court and .to the Court's jurisprudence. The this case. Unlike the recent practice of the Court,
refusal to have duc regard to the intention of a State making "humanitarian concern" has as its objcct the fate of ail entire
a decliuationof acceptanceof the Court's jurisdiction is also
incompatible with the Court's case-law and with the nation, in the literal sense. The Federal Republic of
Yugoslavia and its national and ethnic groups have been
custoa~laryrules for interpn:ting legal instrume:nts.In the subjected for more than two months now to coiltinued
view of Judge Vereshchetin, all the requirements for the attacks of a very strong, highly organized air armada of the
indication of provisional measures, flowing from Article 41 most powerhl States of the world. At the same time, the
of the Court's Statute and from its well-,established arsenal used in the attacks on Yugoslavia contains also
jurisprudence, have been met, and the Court should weapons whoseeffectshave no limitationseitherin spaceor
undoubtedly have indicated such measures so far as the
above four Statesare concerned. in time such as depleted uranium which cause far-reaching
and irreparable damage to the health of the whole
population.
Dissentir~gopin,lonof Judge Kreca Judge Kreca finds that, as regards the membership of
~u~oslavia in the United ~atiois, the Court remained
In his dissenting opinion Judge Kreca poiints out the consistent with its "avoidance" position, persisting in its
followingrelevant issues:
Judge Kreca finds that noneof the equalizationfunctions statement that it "need not consider this question for the
of the institution of judge ad hoc have been -met in this purpose of deciding whether or not it can indicate
particillarcase. The letter an,dspirit of Article 31,paragraph provisional measures in the present case. But it is the
profound conviction of Judge Kreca that the Court should
2, of the Statute of the Courl:,appliedto this particular case,have answeredthe question whetherthe Federal Republic of
imply the right of Yugoslavia, as the applicant State, toYugoslavia can or cannot, in the light of the content of hand. As far as jurisdiction of the Court is concerned, it
General Assembly resolution4711and of the practice of the seems incontestable that a liberal approach towards the
world Organization, be considered to be a Member of the temporal element of the Court's jurisdiction in the
United Nations and especially party to the Statute of the indication of provisional measures has become apparent. It

Court; namely the text of resolution4711makes no mention is understandable that the proceeding for the indication of
of the status of the Federal Republic of Yugoslavia as a provisional measures is surely not designed for the purpose
party to the Statute of the International Court of Justice. of the final and definitive establishment of the jurisdiction
Judge Kreca is equally convinced that, especially because of the Court. The determinant "prima facie" itself implies
the Court should have answered that question. both the that -what is involved is not definitely established
content of the resolution which represents conti-ctdictioin jurisdiction, but the jurisdiction deriving or supposed to be

adkcto and in particular the practice of the world normally deriving from a relevant legal fact which is
Organizationafter its adoptionover a period of nearly seven defined as the "title ofjurisdiction". It could be said thatthe
years, offered ample arguments for it to pronounce itself on "title of jurisdiction" issufficientperse to constituteprima
this matter. facie jurisdiction except in the case of the absence of
Judge Kreca is of the opinion that the extensive use of jurisdiction on the merits is manifest (Fisheries Jitrisdiction
armed force, in particular if it is used against objects and cases).

means constituting conditions of normal life, can be Jutlge Kreca disagrees with the stance of the Court
conducive to "inflicting on the group conditions of life" regarding the additional ground ofjurisdiction (Article 4 of
bringing about "its physical destruction" (Genocide the 1931 Treaty), since he finds that three essential
Convention,Article 11). conditions necessary to qualify the additional ground as
Judge Kreca goes on to say that it can be argued that admissibleare met inthis particularcase:

such acts are in the function of degrading the military (a) that the Applicant makes it clear that it intends to
capacity of the FederalRepublic of Yugoslavia.But such an proceed uponthat basis;
explanation can hardly be regarded as a serious argument. (b) that the result of invoking additional grounds is not
For the spiralof such a line of thinkingmay easilycometo a to transform the dispute brought before the Court by the
point when. having in mind that military power is after all App1ic:ationinto another dispute which is different in
comprised of people, even mass killing of civilians can be character;and
claimed to constitute some sort of precautionary measure
(c)that additional grounds afford a basis on which the
that should prevent the maintenance or, in case of jurisdiction of the Court to entertain the Application might
n~obilization,the increaseof militarypowerof a State. be prima facieestablished.
Judge Kreca also points out that, in the incidental It should be stressed,in the opinion of Judge Kreca, that
proceedings the Court cannot and should not concern itself
with thedefinitivequalificationof the intentto imposeupon the 193 1Treaty was concludedand designedforthe purpose
of dealing with disputes which may arise between the
the group conditions in which the survival of the group is Contracting Parties through "conciliation, judicial
threatened. Having in mind the purpose of provisional settlement and arbitration" per defi~litionernaffords a basis
measures, it can be said that at this stage of the proceedings on which the jurisdiction of the Court to entertain the
it is sufficient to establish that, in the conditions of Applicationmay be established.Article 4 (1) stipulatedthat
extensive bombing, there is an objective risk of bringing "the dispute shall be submitted jointly under a special
about conditions in which the survival of the group is
threatened. agreement" and, as that obviously is not the case, only
paragraph 2 of the said Article may be the appropriatebasis
Judge Kreca finds that the stanceof the Court as regards ofjurisdiction of the Courtpro.fut~iro.
jurisdiction of the Court rntione temporis is highly At the sametime he points out that even if the document
questionable for two basicreasons. Firstly, for reasons of a in which the Applicant pointed to the Treaty of 1931 as
general nature to do with thejurisprudence of the Court in
this particular matter, on the one hand, and with the nature additional grounds of jurisdiction were declared
"inad~nissible",the Court could not haveignored the fact
of the proceedings for the indication of provisional that the Treaty exists. In that case, the Court could have
measures, on the other and, secondly, for reasons of a differentiatedbetween the document as such and the Treaty
specific nature deriving from circumstances of the case in of 1931,per se,as a basis ofjurisdiction.