Summaries of Judgments, AdviNot an official document of the Internationa
l Court of Justice
CASE CONCERNING LEGALITY OF USE OF FORCE (YUGOSLAVIA v.
PORTUGAL) (I'ROVISIONAI, MEASUR.ES)
Order of 2 June 1999
In an Order issued in the case concerning .Legality of
Use of'Force(Yugoslaviav. Porhigal),the Courtrejectedby
eleven votes to four the request for the indication of
provisional measures submitted by the Federal Itepublic of
Yugoslavia (FRY). The Court also stated that it remained
seized of the case. It reserved the subsequent~~cedure for On 29 April 1999 Yugoslavia filed an Application
furthei decisionby fourteen\~otesto one. institutingproceedingsagainst Portugal "for violation of the
obligation not to use force",accusing that State of bombing
The Court was composed as follows: Vice-President Yugoslav territory "together with other Member States of
Weeramantry,Acting President;PresidentSchwebel;Judges
Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, NATO. On the same day, it submitted a request for the
Fleisclnhauer, Koroma, Vereshchetin, Higgins, Parra- indication of provisional measures, asking the Court to
Aranguren, Kooijmans: Judge ad hoc Kreca; Registrar order Portugal to "cease immediately its acts of use of
Valencia-Ospina. force" and to "refrain from any actof threat or use of force"
againstthe FRY.
As a basis for the jurisdiction of the Court, Yugoslavia
invoked thedeclarationsby which both States had accepted
the compulsoryjurisdiction of the Court in relation to any
The full text of the operative paragraph of the Order other State accepting the same obligation (Article 36,
reads as follows: paragraph 2, of the Statute of the Court). and Article 1Xof
"50. For thesereasons, the Convention on the Preveiltion and Puilishment of the
THE COURT, Crime of Genocide, adopted by the United Nations General
(1)By elevenvotesto four, Assembly on9 December 1948.Article IX of the Genocide
Rejects the request for the indication of provisional Convention provides that disputes between the contracting
measures submitted b:y the Federal Republic of parties relating to the interpretation, application or
Yugoslavia on 29 April 1999; fulfilment of the Convention shall be submitted to the
InternationalCourtof Justice.
IN FAVOUR: President Schwebel; Judges Oda,
Be:djaoui.Guillaume, Ranjeva, Herczegh, Fl.eischhauer,
Koroma,Higgins, Parra-Aranguren,Kooijmans; Reasoning of tile Cozrrt
AGAINST: Vice-President Weeramanfry, Acting In its Order, the Court first emphasizes1.hatit is "deeply
President; Judges Shi, Vereshchetin; Judge ad hoc
concerned with the hutnan tragedy, the loss of life, and the
Kreca; enormous suffering in Kosovo which form tlie background"
(2)By fourtcenvotes to one, of the dispute and "with the continuing loss of life and
Reserves the subsequent procedure for further human sufferingin allparts of Yugoslavia".It declares itself
decision. "profoundlyconcernedwith the use of force in Yugoslavia",
which "under the present circumstances ...raises very
IN FAVOUR: Vice-President Weeramarltry,Acting serious issues of international law". While being "mindful
President; President Schwebel; Judges Bedjaoui, of the purposes and principles of the UnitedNations Charter
Gilillaume, Ranjeva, Herczegh, Shi, Fleischhauer,
Koroma, Vereshchetin, Higgins, Parrs-Aranguren, and of its own responsibilities in the maintenance of peace
Kooijmans;Judge ad liocKreca; and security under tlie Charter and [its] Statute", the Court
"deems itnecessary to emphasize that all parties before it
AGAINST:Judge Otla." must act in conformity with their obligations under the
United Nations Charter and other rules of internationallaw,
includinghumanitarianlaw".
The Court then points out that it "does not automatically
Judge Koroma appended a declaration to the Court's have jurisdiction over legal disputes between States" and
Order. Judges Oda, Hliggins, Parra-Aranguren and that "one of the fundamentalprinciples of its Statute is that
Kooijmans appended separate opinions. Vice-President it caiinot decide a dispute between States without the
Weeramantry, Acting President, Judges Shi and consent of those Statesto itsjurisdiction". It cannot indicate
Vereshchetin, and Judge ad hoc Kreca appendeddissenting provisional measures without its jurisdiction in the case
opinions. being establishedprima facie. Concerning the first basis of jurisdiction invoked, the threat or use of force against a State cannot in itself
Court observes that under the terms of its declaration, constitute an act of genocide within the meaning of Article
Yugoslavia limits its acceptance of the Court's compulsory II of the Genocide Convention". It adds that in its opinion, it
jurisdiction to "disputes arising or which may arise after the does not appear at the present stage of the proceedings that
signature of the present Declaration, with regard to the the bombings which form the subject of the Yugoslav
situations or facts subsequent to this signature". It states thatApplication "indeed entail the element of intent, towards a
in order to assess whether it hasjurisdiction in the case, it is group as such, required by the provision" mentioned above.
sufficient to decide whether the dispute brought to the Court The Court considers therefore that it is not in a position to
"arose" before or after 25 April 1999, the date on which the find, at this stage of the proceedings, that the acts imputed
declaration was signed. It finds that the bombings began on by Yugoslavia to Portugal are capable of coming within the
24 March 1999 and have been conducted continuously over provisions of the Genocide Convention; and Article IX
a period extending beyond 25 April 1999. The Court has cannot accordingly constitute a basis on which the
thus no doubt that a "legal dispute ... 'arose' between jurisdiction of the Court could prima facie be founded in the
Yugoslavia and [Portugal], as it did also with the other case.
NATO member States, well before 25 April 1999". The Concerning Portugal's argument that at the date on
Court concludes that the declarations made by the Parties do which Yugoslavia filed its Application ... "Portugal was not
not constitute a basis on which the jurisdiction of the Court
could prima facie be founded in the case. party to the Genocide Convention — although its instrument
of accession had already been deposited in the United
As to Portugal's argument that Yugoslavia is not a Nations", the Court considers that with regard to the finding
Member State of the United Nations in view of United it reached on Article IX of the Genocide Convention as a
Nations Security Council resolutions 777 (1992) and 821 basis of jurisdiction, there is no need for it to consider this
(1993), as well as of General Assembly resolutions 47/1 question for the purpose of deciding whether or not it can
(1992) and 48/8 (1993), nor a party to the Statute of the indicate provisional measures in the case.
Court, the Court maintains that it need not consider this The Court concludes that it "lacks prima facie
question, taking into account its finding that the declarations jurisdiction to entertain Yugoslavia's Application" and that
do not constitute a basis of jurisdiction. it "cannot therefore indicate any provisional measure
Concerning Article IX of the Genocide Convention, the whatsoever". However, the findings reached by the Court
Court finds that it must ascertain whether the breaches of "in no way prejudge the question of the jurisdiction of the
Court to deal with the merits of the case" and they "leave
the Convention alleged by Yugoslavia are capable of falling
within the provisions of that instrument and whether, as a unaffected the right of the Governments of Yugoslavia and
consequence, the dispute is one over which the Court might Portugal to submit arguments in respect of those questions".
have jurisdiction ratione materiae. In its Application, The Court finally observes that "there is a fundamental
Yugoslavia contends that the subject of the dispute concerns distinction between the question of the acceptance by a State
inter alia "acts of Portugal by which it has violated its of the Court's jurisdiction and the compatibility of particular
international obligation ... not to deliberately inflict
acts with international law". "The former requires consent;
conditions of life calculated to cause the physical the latter question can only be reached when the Court deals
destruction of a national group". It contends that the with the merits after having established its jurisdiction and
sustained and intensive bombing of the whole of its having heard full legal arguments by both parties". It
territory, including the most heavily populated areas, emphasizes that "whether or not States accept the
constitutes "a serious violation of Article II of the Genocide jurisdiction of the Court, they remain in any event
Convention", that it is the Yugoslav nation as a whole and
as such that is targeted and that the use of certain weapons responsible for acts attributable to them that violate
international law, including humanitarian law" and that "any
whose long-term hazards to health and the environment are disputes relating to the legality of such acts are required to
already known, and the destruction of the largest part of the be resolved by peaceful means, the choice of which,
country's power supply system, with catastrophic pursuant to Article 33 of the Charter, is left to the parties".
consequences of which the Respondent must be aware, In this context, "the parties should take care not to aggravate
"implfy] the intent to destroy, in whole or in part", the or extend the dispute". The Court reaffirms that "when such
Yugoslav national group as such. For its part, Portugal
a dispute gives rise to a threat to the peace, breach of the
contends that "the specific intent which is necessary for the peace or act of aggression, the Security Council has special
crime [of genocide]'s existence is absent in the case", that responsibilities under Chapter VII of the Charter".
the actions in which Portugal allegedly took part "are clearly
inadequate to the commitment of a crime that would require Declaration ofJudge Koroma
a selective effort in the choice of the victims, incompatible
with the contingent effect of the employed means" and that In his declaration Judge Koroma observed that these
in consequence, "both the objective and subjective elements were perhaps the most serious cases that have ever come
of the crime are missing". It appears to the Court that, before the Court for provisional measures. He stated that
according to the Convention, the essential characteristic of jurisprudentially such measures were designed to prevent
genocide is the intended destruction of a national, ethnical, violence, the use of force, to safeguard international peace
racial or religious group; the Court further states that "the and security as well as serving as an important part of the
106dispute settlement process under the Charter cf the United of provisional measures in all ten cases. However, he
Nations. In his view the indication of such measures considers that, the Court having decided that it has no
therefore represents one of the most important functions of jurisdiction to entertain the cases, not even prima facie, that
the Court. this can only mean that it has no jurisdiction whatsoever in
any of the cases. It follows, in Judge Oda's view, that not
But the granting of such a relief, he stressed, could only
be done in accordance with the Statute of the Court. In this only in the cases of Spain and the United States, in which
regard, and in the light of the jurisprudence of the Court, the Court states that it manifestly lacks jurisdiction, but in
where prima facie jurisdiction is absent or other all the other cases, the Applications should be dismissed at
circumstances predominate, the Court will not grant the this stage, given that the Court has found that there is not
request for provisional measures. even a prima facie basis ofjurisdiction.
Nevertheless, he considered the Court, being the Judge Oda also points out that, while the Court makes a
principal judicial organ of the United Nations, whose distinction between the Applications, even though they deal
primary raison d'être remains the preservation of virtually with the same subject matter, this distinction,
international peace and security, to be under a positive which came about simply because of the different positions
obligation to contribute to the maintenance of international which individual States happened to take towards the
peace and security and to provide a judicial framework for various instruments that are to be applied concerning the
the resolution of a legal conflict, especially one which not Court's jurisdiction, will lead to differing results concerning
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 enormous human suffering and continuing loss of
life. He had therefore joined with the other Members of the contention that all ten cases should be dismissed in their
Court in calling for the peaceful resolution of this conflict entirety at this stage.
pursuant to Article 33 of the Charter, and i:i urging the
Parties not to aggravate or extend the dispute and to respect
international law, including humanitarian law and the Separate opinion ofJudgeHiggins
human rights of all the citizens of Yugoslavia. Judge Higgins in her separate opinions addresses two
issues that arise in relation to those cases where the Federal
Separate opinion ofJudgeOda Republic of Yugoslavia claims jurisdiction on the basis of
Article 36, paragraph 2, of the Statute. The first issue
Judge Oda supports the decision of the Court in concerns temporal limitations to so-called "optional
dismissing the requests for the indication of provisional clauses", and in particular the question of when a dispute
measures by the Federal Republic of Yugoslavia against ten arises and when the relevant events have occurred. These
respondent States. While favouring the decision of the Court concepts are analysed in connection with Yugoslavia's own
declaration. The second issue addresses the question of
to remove the case from the General List of the:Court in the exactly what has to be shown for the Court to be satisfied it
cases of Spain and the United States, Judge Oda voted has prima facie jurisdiction when it is considering the
against the decision in the other eight cases in which the
Court ordered that it "[r]eserves the subsequent procedure indication of provisional measures. It is suggested that some
for further decision", because he believes that those eight jurisdictional issues are so complex that they cannot be
cases should also be removed at this stage from the General addressed at all at this phase; their holding over for a later
List of the Court. phase does not stand in the way of the Court determining
whether or not it has prima facie jurisdiction for the
Judge Oda considers that the Federal Republic of purposes of Article41.
Yugoslavia is not a Member of the United Nations and thus
not a party to the Statute of the International Court of
Justice. The Applications presented by the Federal Republic Separate opinionofJudge Parra-Aranguren
of Yugoslavia shouid therefore be declared inadmissible for
this reason alone and should be removed from the General Judge Parra-Aranguren recalls that Yugoslavia maintains
that "the bombing of Yugoslav populated areas constitute a
List of the Court. breach of Article II of the Genocide Convention", a
He nevertheless then goes on to discuss whether, if the contention denied by the Respondent; that a legal dispute
Federal Republic of Yugoslavia were to be considered a exists between the Parties because of the existence of "a
party to the Statute, it could have brought the present situation in which the two sides hold clearly opposite views
Applications on the basis of certain legal instruments. After
having examined the meaning of (i) the optional clause of concerning the question of the performance or non-
performance of certain treaty obligations", as the Court
the Court's Statute, (ii) the background to the 1930 and stated in its decision of 11 July 1996 (Application of the
1931 instruments with Belgium and the Netherlands, Convention on the Prevention and Punishment of the Crime
respectively, and (iii) the 1948 Genocide Convention, he of Genocide (Bosnia and Herzegovina v. Yugoslavia),I.C.J.
reaches the conclusion that none of these instruments grant Reports 1996 (II),pp. 614-615,para. 29); and that according
the Courtjurisdiction in any of the ten Applications. to Article IX of the Genocide Convention, "disputes
between the Contracting Parties relating to the interpretation
Judge Oda agrees with the Court that, as it has no basis
of jurisdiction, it must reject the requests for the indication or fulfilment of the present Convention" shall be submitted
107to the International Court of Justice. Therefore, in his (res. 47/1). The Federal Republic of Yugoslavia never
opinion the Court has prima facie jurisdiction to decide applied for membership.
upon the provisional measures requested by Yugoslavia. 4. In its present Orders the Court avoids the question of
Yugoslavia requested the Court to indicate that the the contested validity of Yugoslavia's declaration. It takes
Respondent "shall cease immediately the acts of use of force the position that it need not consider this issue since the
and shall refrain from any act of threat or use of force declaration cannot provide the Court with a basis for prima
against the Federal Republic of Yugoslavia". However, the facie jurisdiction on other grounds.
threat or use of force against a State cannot in itself 5. Judge Kooijmans is of the view that the Court's
constitute an act of genocide within the meaning of the reasoning in this respect is inconsistent. Such other grounds
Genocide Convention. Consequently, Yugoslavia is only become relevant if the validity of the declaration — at
requesting the indication of provisional measures that do not least for the present stage of the proceedings — is accepted.
aim to guarantee its rights under the Genocide Convention, The Court's reasoning is based on a presumption of validity
i.e., the right not to suffer acts which may be characterized and the Court should have said so and have given its
as genocide crimes by the Convention. Therefore, in the
arguments for it.
opinion of Judge Parra-Aranguren, the measures requested 6. According to Judge Kooijmans there certainly was
by Yugoslavia should not be indicated. no need for the Court to take a definitive stand on
Yugoslavia's membership of the United Nations. He is fully
Separate opinion of Judge Kooijmans aware that resolution 47/1 is unprecedented and raises a
1. Judge Kooijmans joined a separate opinion to the number of highly complex legal questions, which require a
Order of the Court in the cases of Yugoslavia versus thorough analysis and careful evaluation by the Court at a
Belgium, Canada, the Netherlands, Portugal, Spain and the later stage of the proceedings.
United Kingdom, respectively. Difficult though the question may be, the relevant
decisions have been taken by the organs of the United
He does not agree with the Court's view that Nations which have exclusive authority in matters of
Yugoslavia's declaration of acceptance of the compulsory
jurisdiction of the Court of 25 April 1999 cannot provide a membership (Security Council and General Assembly) and
basis of jurisdiction in the present case, even prima facie, they cannot be overlooked or ignored.
because of the reservations incorporated in the declarations 7. According to Judge Kooijmans the doubts, raised by
of Spain and the United Kingdom, cq. because of the the decisions of the competent United Nations bodies with
regard to Yugoslavia's membership and the ensuing validity
temporal limitation contained in Yugoslavia's declaration
(cases against Belgium, Canada, the Netherlands and of its declaration, are, however, so serious that the Court
Portugal). He is of the view that the Court lacks prima facie should have concluded that this declaration cannot provide
jurisdiction because of the controversial validity of it with a basis for prima facie jurisdiction. The Court should
Yugoslavia's declaration. This validity issue constitutes a not indicate provisional measures unless its competence to
preliminary issue and should, therefore, have been dealt entertain the dispute appears to be reasonably probable and
with by the Court as a threshold question. this test of reasonable probability cannot be passed because
Since this issue is of no relevance in the four other cases of the doubtful validity of the declaration.
(against France, Germany, Italy and the United States) as 8. If that is the case, issues like reservations and
these States themselves do not recognize the compulsory temporal limitations on which the cases were decided by the
jurisdiction of the Court, there is no need for a separate Court, become irrelevant since they are wholly conditioned
opinion in those cases. by the preliminary question of the declaration's validity.
2. Article 36, paragraph 2, of the Statute explicitly
states that only States which are party to the Statute can Dissenting opinion of Vice-President Weeramantry
recognize the compulsory jurisdiction of the Court by
depositing a declaration of acceptance with the Secretary- Judge Weeramantry has filed a dissenting opinion in this
case on the same grounds as in Yugoslavia v. Belgium.
General of the United Nations. Member States of that
organization are eo ipso party to the Statute. All six Dissenting opinion ofJudge Shi
Respondents contended that since the Federal Republic of
Yugoslavia is not a Member of the United Nations, its In the four cases of Yugoslavia against Belgium,
declaration of acceptance has not been validly made. Canada, the Netherlands and Portugal, Judge Shi disagrees
with the Court's findings that, given the limitation ratione
3. On 22 September 1992 the General Assembly, on the
recommendation of the Security Council, decided that the temporis contained in Yugoslavia's declaration of
Federal Republic of Yugoslavia cannot continue acceptance of compulsory jurisdiction, the Court lacked
automatically the membership of the former Socialist prima facie jurisdiction under Article 36, paragraph 2, of the
Federal Republic of Yugoslavia and therefore that it should Statute for the indication of provisional measures requested
apply for membership in the United Nations. Until that time by Yugoslavia.
it shall not participate in the work of the General Assembly
By that declaration, signed on 25 April 1999,
Yugoslavia recognized compulsory jurisdiction "in all
108disputes arising or which may arise after the signature of the 75, paragraph 1, of the Rules of Court to decide the requests
present Declaration, with regard to the situations or facts proprio motn, despite Yugoslavia having so asked.
subsequent to this signature ...". In cases where the Court is
For these reasons, Judge Shi felt compelled to vote
confronted with such a "double exclusion formula", it has to against operative paragraph (1) of the four Orders.
ascertain both the date of the dispute and the si.-uations or
facts with regard to which the dispute has arisen. Dissenting opinionofJudge Vereshchetin
As to the first aspect of the time condition, the: Court has
to determine what is the subject matter of the dispute, which Judge Vereshchetin begins his dissenting opinion with a
in the present cases consists of a number of constituent general statement, attached to all the Orders of the Court, in
which he holds that the extraordinary and unprecedented
elements. The section "Subject of the Dispute" in each of circumstances of the cases before the Court imposed on it a
Yugoslavia's Applications indicates that subject matter to be
acts of the Respondent by which it has violated its need to act promptly and, if necessary, proprio motu. After
international obligations not to use force against another that, he proceeds to explain why he has no doubt that prima
State, not to intervene in the internal affairs of another State,facie jurisdiction under Article 36, paragraph 2, of the
not to violate the sovereignty of another State, to protect the Statute of the Court exists with regard to the Applications
civilian population and civilian objects in wartime, to instituted against Belgium, Canada, the Netherlands and
Portugal. As far as Belgium and the Netherlands are
protect the environment, etc. concerned, the Court also has prima facie jurisdiction under
Prior to the coming into existence of all the constituent
elements, the dispute cannot be said to arise. I'hough the the Agreements signed between Belgium and Yugoslavia on
aerial bombing of the territory of Yugoslavia began some 25 March 1930 and between the Netherlands and
weeks before the critical date of signature of the declaration, Yugoslavia on 11March 1931.
aerial bombing and its effects as such do not constitute a Judge Vereshchetin disagrees with two cornerstone
propositions on which, in his opinion, rest the arguments to
dispute. It is true that prior to the critical date, Yugoslavia
had accused NATO of illegal use of force against it. This the contrary upheld in the Orders of the Court. The first
complaint constitutes at the most one of the many proposition is that the text of the Yugoslav declaration
constituent elements of the dispute. Besides, NATO cannot accepting the jurisdiction of the Court, and in particular the
be identified with, nor be the Respondent in the present wording of the reservation contained therein, does not grant
cases ratione personae. The dispute only arose at the date prima facie jurisdiction to the Court. The second proposition
subsequent to the signature of the declaration. is that the timing of the presentation by Yugoslavia of the
additional bases for jurisdiction does not allow the Court to
Regarding the second aspect of the time condition, the
dispute relates to the alleged breach of various international conclude that it has prima facie jurisdiction in respect of the
obligations by acts of force, in the form of aerial bombing of cases instituted against Belgium and the Netherlands.
the territories of Yugoslavia, which are attributed by the As concerns the first proposition, Judge Vereshchetin
Applicant to the respondent State. It is obvious that the takes the view that the Court, by refusing to take into
account the clear intention of Yugoslavia, reads its
alleged breach of obligations by such a "continuing" act first declaration in a way that could lead to the absurd conclusion
occurred at the moment when the act began, weeks before
the critical date. Given that the acts of aerial bombing that Yugoslavia intended by its declaration of acceptance of
continued well beyond the critical date and still continue, the Court's jurisdiction to exclude the jurisdiction of the
the time of commission of the breach extend» over the Court over its Applications instituting proceedings against
whole period during which the acts continue and ends only the Respondents.
when the acts of the respondent State cease. As to the second proposition connected with the
invocation of additional grounds ofjurisdiction in relation to
The conclusion may be drawn that the limitation ratione
temporis contained in Yugoslavia's declaration in no way Belgium and the Netherlands, in the opinion of Judge
constitutes a bar to founding prima facie jurisdiction upon Vereshchetin, the legitimate concern of the Court over the
Article 36, paragraph 2, of the Statute for the purpose of observance of "the principle of procedural fairness and the
indicating provisional measures in the present case. sound administration ofjustice" cannot be stretched to such
an extent as to exclude a priori the additional basis of
Moreover, for reasons similar to those expressed in the jurisdiction from its consideration, solely because the
declarations relating to the other six cases, Judge Shi regrets respondent States have not been given adequate time to
that the Court, being confronted with a situation of great prepare their counter-arguments. Admittedly, it cannot be
urgency, failed to make a general statement appealing to the
Parties to act in compliance with their obligations; under the considered normal for a new basis of jurisdiction to be
United Nations Charter and all the rules of international law invoked in the second round of the hearings. However, the
respondent States were given the possibility of presenting
relevant to the situation, and at least not to aggravate or their counter-arguments to the Court, and they used this
extend their disputes immediately upon receipt of possibility to make various observations and objections to
Yugoslavia's request and regardless of what might be the the new basis of jurisdiction. If necessary, they could have
Court's conclusion on prima facie jurisdiction pending its asked for the prolongation of the hearings. In turn, the
final decision. The Court also failed to make use of Article Applicant may reasonably claim that the belated invocation
of the new titles of jurisdiction was caused by the
109extraordinary situation in Yugoslavia, in which the have, in a way, gained autonomous legal significance; they
preparation of the Applications had been carried out under
have transcended the moral and philanthropic sphere, and
conditions of daily aerial bombardment by the Respondents. entered the sphere of law.
The refusal of the majority to take into consideration the In the case at hand, it seems that "humanitarian concern"
new bases of jurisdiction is clearly contrary to Article 38 of has lost the acquired autonomous legal position. The fact
the Rules of Court and to the Court's jurisprudence. The needs to be stressed in view of the special circumstances of
refusal to have due regard to the intention of a State making this case. Unlike the recent practice of the Court,
a declaration of acceptance of the Court's jurisdiction is also
"humanitarian concern" has as its object the fate of an entire
incompatible with the Court's case-law and with the nation, in the literal sense. The Federal Republic of
customary rules for interpreting legal instruments. In the Yugoslavia and its national and ethnic groups have been
view of Judge Vereshchetin, all the requirements for the subjected for more than two months now to continued
indication of provisional measures, flowing from Article 41 attacks of a very strong, highly organized air armada of the
of the Court's Statute and from its well-established most powerful States of the world. At the same time, the
jurisprudence, have been met, and the Court should arsenal used in the attacks on Yugoslavia contains also
undoubtedly have indicated such measures so far as the weapons whose effects have no limitations either in space or
above four States are concerned. in time such as depleted uranium which cause far-reaching
and irreparable damage to the health of the whole
Dissenting opinion ofJudge Kreca population.
Judge Kreca finds that, as regards the membership of
In his dissenting opinion Judge Kreca points out the
following relevant issues: Yugoslavia in the United Nations, the Court remained
consistent with its "avoidance" position, persisting in its
Judge Kreca finds that none of the equalization functions 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
particular case. The letter and spirit of Article 31, paragraphprovisional measures in the present case. But it is the
2, of the Statute of the Court, applied to this particular caseprofound conviction of Judge Kreca that the Court should
imply the right of Yugoslavia, as the applicant State, to have answered the question whether the Federal Republic of
choose as many judges ad hoc to sit on the Bench as is
necessary to equalize the position of applicant State and that Yugoslavia can or cannot, in the light of the content of
General Assembly resolution 47/1 and of the practice of the
of the respondent States which have judges of their world Organization, be considered to be a Member of the
nationality on the Bench and which share the same interest. United Nations and especially party to the Statute of the
In concreto, the inherent right to equalization in the Court; namely the text of resolution 47/1 makes no mention
composition of the Bench, as an expression of a of the status of the Federal Republic of Yugoslavia as a
fundamental rule of equality of parties, means that the party to the Statute of the International Court of Justice.
Federal Republic of Yugoslavia should have the right to Judge Kreca is equally convinced that, especially because
choose five judges ad hoc, since even five out of ten
respondent States (United States, the United Kingdom, the Court should have answered that question, both the
content of the resolution which represents contradictio in
France, Germany, and the Netherlands) have their national adiecto and in particular the practice of the world
judges sitting on the Bench. Organization after its adoption over a period of nearly seven
At the same time, according to coherent jurisprudence of years, offered ample arguments for it to pronounce itself on
this matter.
the Court, none of the respondent States were entitled to
appoint a judge ad hoc {Territorial Jurisdiction of the Judge Kreca is of the opinion that the extensive use of
International Commission of the River Oder; Customs armed force, in particular if it is used against objects and
Régime between Germany and Austria). means constituting conditions of normal life, can be
There is no need to say that the above-mentioned issues conducive to "inflicting on the group conditions of life"
are of upmost specific weight in view of the fact that
bringing about "its physical destruction" (Genocide
obviously the meaning of such issues is not restricted to the Convention, Article II).
procedure, but that it may have a far-reaching concrete Judge Kreca goes on to say that it can be argued that
meaning. such acts are in the function of degrading the military
Judge Kreca finds that in the recent practice of the capacity of the Federal Republic of Yugoslavia. But such an
Court, in particular that in which individuals were directly
explanation can hardly be regarded as a serious argument.
affected, a high standard of humanitarian concern in the For the spiral of such a line of thinking may easily come to a
proceedings for the indication of interim measures has been point when, having in mind that military power is after all
formed, a standard which commanded sufficient inherent comprised of people, even mass killing of civilians can be
strength to brush aside some relevant, both procedural and claimed to constitute some sort of precautionary measure
material, rules governing the institution of provisional that should prevent the maintenance or, in case of
measures (exampli causa, the LaGrand case). Thus, mobilization, the increase of military power of a State.
humanitarian considerations, independently from the norms Judge Kreca also points out that, in the incidental
of international law regulating human rights and liberties, proceedings the Court cannot and should not concern itself
110with the definitive qualification of the intent to impose uponhand. As far as jurisdiction of the Court is concerned, it
the group conditions in which the survival of the group is seems incontestable that a liberal approach towards the
threatened. Having in mind the purpose of provisional temporal element of the Court's jurisdiction in the
measures, it can be said that at this stage of the proceedingsindication of provisional measures has become apparent. It
it is sufficient to establish that, in the conditions of is understandable that the proceeding for the indication of
extensive bombing, there is an objective risk of bringing provisional measures is surely not designed for the purpose
about conditions in which the survival of the group is
of the final and definitive establishment of the jurisdiction
threatened. of the Court. The determinant "prima facie" itself implies
Judge Kreca finds that the stance of the Court as regards lhat what is involved is not definitely established
jurisdiction of the Court ratione temporis is highly jurisdiction, but the jurisdiction deriving or supposed to be
questionable for two basic reasons. Firstly, for reasons of a normally deriving from a relevant legal fact which is
general nature to do with the jurisprudence of the Court in defined as the "title ofjurisdiction". It could be said that the
"title of jurisdiction" is sufficient per se to constitute prima
this particular matter, on the one hand, and with 1:he nature
of the proceedings for the indication of provisional facie jurisdiction except in the case of the absence of
measures, on the other and, secondly, for reasons of a jurisdiction on the merits is manifest (Fisheries Jurisdiction
specific nature deriving from circumstances of the case in cases).
123. CASE CONCERNING LEGALKTY OF USE OF FORCE (YUGOSLAVIA v. SPAIN)
(PROVISIONAL MEASURES)
Order of 2 June 1999
In an Order issued in the case concerning Legality of AGAINST: Judges Shi, Vereshchetin;
Use of Force (Yugoslavia v. Spain), the Court rejected by (2) By thirteen votes to three,
fourteen votes to two the request for the indication of Orders that the case be removed from the List.
provisional measures submitted by the Federal Republic of IN FAVOUR: Vice-President Weeramantry, Acting
Yugoslavia (FRY).
In its Order, the Court, having found that it manifestly President; President Schwebel; Judges Oda, Bedjaoui,
lacked jurisdiction to entertain the case, decided to dismiss Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,
Koroma, Higgins, Kooijmans; Judge ad hoc Torres
it. It ordered by thirteen votes to three that the case be Bernárdez;
removed from the List. AGAINST: Judges Vereshchetin, Parra-Aranguren;
The Court was composed as follows: Vice-President Judge ad hoc Kreca.
Weeramantry, Acting President; President Schwebel; Judges
Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,
Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-
Aranguren, Kooijmans; Judges ad hoc Torres Bernárdez,
Kreca; Registrar Valencia-Ospina. Judges Shi, Koroma and Vereshchetin appended
declarations to the Court's Order. Judges Oda, Higgins,
Parra-Aranguren and Kooijmans, and Judge ad hoc Kreca
appended separate opinions.
The full text of the operative paragraph of the Order
reads as follows:
40. For these reasons,
"THE COURT, Background information
(1) By fourteen votes to two, On 29 April 1999 Yugoslavia filed an Application
Rejects the request for the indication of provisional
measures submitted by the Federal Republic of instituting proceedings against Spain "for violation of the
obligation not to use force", accusing that State of bombing
Yugoslavia on 29 April 1999; Yugoslav territory "together with other Member States of
IN FAVOUR: Vice-President Weeramantry, Acting NATO" (see Press Communiqué 99/17). On the same day, it
President; President Schwebel; Judges Oda, Bedjaoui, submitted a request for the indication of provisional
Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma, measures, asking the Court to order Spain to "cease
Higgins, Parra-Aranguren, Kooijmans; Judges ad hoc immediately its acts of use of force" and to "refrain from
Torres Bernárdez, Kreca;
any act of threat or use of force'" against the FRY.
Ill
Summary of the Order of 2 June 1999