InternationalCourtof Justice
Case Concerning Legality ofUse of Force
(Yugoslaviav. Belgium)
Preliminary Objections ofthe
KingdomofBelgium
5July2000 InternationalCourt of Justice
CaseConcerning Legality of Useof Force
(Yugoslaviav. Belgium)
Preliminary Objectionsofthe
Kingdomof Belgium
5Jul2000[blank] Contents
CONTENTS
Page
INTRODUCTION ........................................................... 1.............
......
PART 1: BACKGROUNDANDPRELIMINARY ISSUES .....................
Chapter One: The FRY's case ............................................................
1. The FRY'SApplicationinstitutingproceedings ...............................
2. The provisional measuresphase ...................................................
The FRY's Provisional MeasureR sequest ...........................
(a)
(b) The oral phase of the requestfor provisional measures .........
(c) The Court's ProvisionalMeasuresOrder ...........................
3. The FRY's Memorial ................................................................
4. Conclusions .......................................................
................
Chapter Two: The Court lacksjurisdiction in respect of claims
made for the first time in the FRY's Memorial andlor such
claims are inadmissible ......................................................................
Chapter Three: The context of the case .....................................31.........
1. The situation inKosovoprior to 24 March 1999 ........................31...
2. Elementsconcerningthe NATOactionin the FRY ......................37..
3. Developments subsequent to the cessationof the NATO actionon
lOJune1999 .........................................................
...............
PART II: OBJECTIONS TO JURISDICTION ..............................41......
Chapter Four: The Court is not open to the FRY ...........................41.....
1. The FRY isnot a memberof the United Nations ........................42...
The dissolutionof the SFRYandthe establishmentof the
(a)
FRY as a new state ........................................................
(b) The practiceof the United Nationsin respectof the admission
to membershipof new States ....................................50..
(c) The practiceof the SecurityCouncil andGeneralAssembly
in respectof claimsof succession toUN membership
by the FRY .....................................................3.............. Contents
The practiceof the UN Secretariat .....................................
(d)
(e) The practiceof other internationalorganisationsin respectof
claimsof successionto membershipby the FRY ..................
(i) WorldHealth Organisation .....................................
(ii) InternationalLabour Organisation ...........................
(iii) InternationalMaritime Organisation .......................
(iv) InternationalCivilAviationOrganisation .................
(v) InternationalMonetaryFund. InternationalBankfor
Reconstructionand Development.International
Development Association.InternationalFinance
Corporation ..........................................................
(vi) GeneralAgreementon Tariffsand Trade and the
WorldTrade Organisation ......................................
(f) Conclusions ....................................................................
2 . The FRY isnot otherwisea party to the Statute of the Courtpursuant
to Article93(2)of the Charter .....................................................
3. The Court is not open tothe FRYpursuantto Article35(2) of the
Statute ...............................................................
............
4. Conclusions .............................................................
..........
ChapterFive: TheCourtdoesnot havejurisdictionon the bais
of the FRY'SDeclarationof 25 April1999 ..............................................
1. The natureand interpretationof Declarationsunder Article 36(2)
of the Statute ...............................................................
........
2 . The Belgian andFRYDeclarations .................................................
3. The scopeof the Court's jurisdictionon the basis of the Belgian and
FRY Declarations ........................................................................
(a) Belgium's argumentsin outline ...........................................
(b) The reasonsfor and consequencesof the temporal limitation
in the FRY'sDeclaration ....................................................
(c) The Court's jurisdiction under the OptionalClause ................
(i) The disputebetweenthe Parties and the point at which
it crystallised .........................................................
(ii) Themeaningof the phrase "situationsor facts" ..........
The FRY'sallegationsconcerningpost-10June 1999
(iii)
events ...................................................................
4. Conclusions ...............................................................
........ Contents
Chapter Six: The Court does not have jurisdiction on the basis
of Article IX of the Genocide Convention ................................................
1. Article IX of the GenocideConvention and thenature of the test to
..............................................
be satisfiedat the jurisdictionalstage
2.. The FRY'Sallegations ..................................................................
3. The breaches allegedby the FRY are not capableof fallingwithin
the provisionsof the GenocideConvention......................................
(a) The requirementto show that theacts allegedwere directed
against aprotectedgroup ....................................................
(b) The requirementto showthat Belgiumcommittedacts with the
intentionof destroying inwholeor in part a protectedgroup.
as such -the questionof mensrea ........................................
(c) The requirementto showthat Belgiumcommittedthe acts
alleged- the actus reus of genocide .....................................
4. Conclusions ..........................................................
.............
Chapter Seven: The Court does not havejurisdiction on the basis
of Article 4 of the1930Convention ........................................................
1 . The 1930 Convention ...................................................................
2 . The FRY'Sclaimsunder the 1930 Convention .................................
3 . The Court lacksjurisdictionon the basisof the 1930 Convention.......
(a) Article37 of the Statuteis not applicablein the circumstances
of this case.......................................................................
(b) The 1930 Convention is no longerin force ............................
(c) The FRY hasnot succeeded to the 1930 Convention ...............
(d) The conditionslaiddownby the 1930 Convention have not
been satisfied ....................................................................
4 . Conclusions ...........................................................
............
PART III: OBJECTIONS TO ADMISSIBILITY ..................................
Chapter Eight: The FRY has not identified any actions specifically
alleged to have been committed by Belgiurnwith which it takes issue .......
Chapter Nine: The FRY has acted in bad faith .....................................
1. Badfaith and the termsof the FRY'SDeclarationof 25 April 1999 .... Contents
2. Badfaith and theIndictmentof FRY PresidentSlobodanMilosevic
and other principal leadersof the FRY for crimes againsthumanity
and violationsof the lawsor customsof war .........................161.......
3. Bad faith and the manifestevidenceof massiveviolationsof human
rights by the FRY in Kosovoin the period priorto the NATO action ...163
4. Badfaith and the documented andpersistent failureby the FRY to
complywith the obligationsrequiredof it by the UN Security Council
in respect of the operationsof theTY in Kosovo .....................65....
ChapterTen: Theabsence ofthe UnitedStatesandother "Respondents"
fromthe parallel proceedings .............................................17.................
1. The absenceof the United States andother NATOMembersfrom
proceedings arisingfrom allegationsconcerning theNATO action .....175
2. The absenceof other KFORparticipants from proceedingsarising
from the FRY'Sallegationsconcerningpost-10June 1999events .......178
CONCLUSIONS ..........................................................8............
........
SUBMISSIONS ...........................................................8..........
........
LISTOF ANNEXES .....................................................18.7...............
. Introduction
INTRODUCTION
1. By an Applicationdated 26 April 1999 filed with the Registry of the Court
on 29 April 1999, the Federal Republic of Yugoslavia ("FRY") instituted
proceedings againstthe Kingdomof Belgium ("Belgium") alleging the violationof
various obligations arising from the use of force by the North Atlantic Treaty
Organisation ("NATO") in the FRY. The Application charges that "Belgium,
together with the Governrnentsof other Member Statesof NATO, took part in the
acts of use of force against the Federal Republic of Yugoslavia by taking part in
bombing targets in the Federal Republic of Yugoslavia". It further charges that
"Belgium is taking part in the training, arming, financing, equippingand supplying
the so-called 'KosovoLiberatian Amy"'. The legal grounds for the jurisdiction of
the Court invoked by the FRY in its Application wereArticle 36(2) of the Court's
Statute and Article IX of the Convention onthe Preventionand Punishmentof the
Crimeof Genocide of 1948("the GenocideConvention"). ' The Declaration filedby
the FRY which forms the basisof its claimto jurisdiction under Article 36(2) of the
Statute was dated 25 April 199g2and was deposited with theSecretary-Generalof
the United Nationson 26 April 1999. The BelgianDeclaration under Article 36(2)
of the Statuteis dated 17June 1958.~
2. At the same time as the filing of its Application instituting proceedings
against Belgium, theFRY filed separateApplicationsinstituting proceedingson the
basis of the same factual and legal allegations against the United States, the United
Kingdom,France, Germany,Italy, the Netherlands, Canada, Portugaland Spain.
3. Contemporaneously with its Application instituting proceedings against
Belgium, the FRY also filed ciRequest for the Indication of Provisional Measures
dated 28 April 1999by which it requested the Court to order Belgium to "cease
imrnediately itsacts of use of force and [to]refrain from any act of threat or use of
force againstthe Federal Republicof Yugoslavia" .4 Corresponding requests for the
indication of provisional measures were submittedby the FRY in the parallel
proceedings againstthe other nineRespondents.
'78 UNTS277 (Annex1).
Annex2.
Annex3.
Request for the Indication of ProvisionalMeasures, 28 April 1999 ("Provisional Measures
Request"or "Request"), p.17. Introduction
4. The Court held hearings on the FRY'S requests for the indication of
provisional measures on 10-12 May 1999. In the course of those hearings, by a
letter of 12 May 1999, the FRY sought to supplement its Application instituting
proceedings against Belgium by invoking Article 4 of the Convention of
Conciliation,Judicial Settlement anA drbitration of 1930 ("the 1930 Con~ention")~
between Belgium and the Kingdom of Yugoslavia as an additional basis of the
Court'sjurisdiction.
5. By an Order of 2 June 1999, the Court rejected the FRY'Srequest for the
indication of provisional measures in respect of its proceedings against Belgium.
The basis of the Order was the Court's determination that the relevant declarations
of the Parties did not constitute a prima facie basis of jurisdiction under Article
36(2) of the StatuteYt6hat Article IX of the GenocideConventioncould not constitute
a prima facie basis of jurisdiction7 and that, in consequence of the late stage at
which the 1930 Conventionwas invokedas a basis of jurisdiction, the Court could
not consider that Conventionfor the purpose of deciding whether it could indicate
provisional measures. *
6. Similar Orders were made by the Court in respect of the requests for the
indication of provisional measuresby the FRY in its proceedings against Canada,
France, Germany, Italy, the Netherlands, Portugaland the United Kingdom. In the
proceedings against both Spain and the United States, the Court ordered that the
cases be removed from the List on the grounds that the Court "manifestly lack[ed]
jurisdiction to entertainYugoslavia'sApplication"and that it "would mostassuredly
not contribute to the soundadministrationof justice" for the Court to maintain on
the General List a case upon which it appears certain that it would not be able to
adjudicateon the me rit^.^
7. By an Order of 30 June 1999, the Court fixed 5 January 2000 for the filing
of the Memorial of the FRY and5 July 2000 for the filingof the Counter-Memorial
of Belgium. Pursuant to this Order, the FRY filed its Memorial, dated 5 January
2000, together with annexes,under cover of letters dated4 January 2000.
106LNTS(1930-1931) 343,No.2455. (Annex4)
Case ConcerningLegalityof Useof Force (Yugoslaviav. Belgium):Requestfor the Indicationof
ProvisionalMeasures,Orderof 2 June1999,("Provisionl easuresOrdern),atparagrap30.
'ProvisionalMeasuresOrder,atparagrap41.
ProvisionalMeasuresOrder,at paragraph4.
RespectivelyCase ConcerningLegality of Use of Force (Yugoslaviav. Spain):Requestfor the
Indicationof Provisional MeasurOrderof 2 June 1999, at paragraph 3and Case Concerning
Legali~ of Use of Force (Yugoslaviav. UnitedStatesof America):Requestfor the Indicationof
ProvisionalMeasures,Orderof 2 June1999,atparagrap29. Introduction
8. By Article 79 of the Rules of Court ("Rules"), any objection by the
respondent inter alia to the jurisdiction of the Court or the admissibility of the
application is to be made in writing within the time-limit for the delivery of the
Counter-Memorial. In accordance with this requirement, Belgium submits these
Preliminary Objections to thejurisdiction of the Court and the admissibility of the
application inthe present case.
9. The underlying issues of substance in this case involve allegations by the
FRY against Belgium that, by "taking part in" action by NATO in the FRY,
Belgiurnhas violated various obligationsof international law. Given the nature of
the present phase of the case, and as Belgiumobjectsto the jurisdiction of the Court
and the admissibility of the application, Belgium makes no comment here on the
substanceof the FRY'Sallegationsof fact and argumentsof law or on the evidential
propriety of and weight to be attributed to the material annexed to the FRY'S
Memorial in purported support of these allegations and arguments. For the
avoidance of doubt, however, it may be noted that Belgiumrejects the allegations
raised against it by the FRY and that, were the Court to decide, contrary to
Belgium's submissionsherein, that it has jurisdiction to hear the case and that the
applicationis admissible,Belgium wouldcontestthe allegationsfully.
10. Neither this stateme~t,nor any reference herein to the underlying factual
context of this case or any other statement herein can be taken in any way as
implying the submissionby Belgiumto the jurisdiction of the Court in this matter.
Belgium does not here join argument with the FRY on the substance of its
allegations.
11. Belgium's positionon the jurisdiction of the Court and the admissibility of
the application may be surnmarisedas follows. As a prelirninary matter, Belgium
contends that the Court lacksjurisdiction in respectof claims advancedfor the first
time the FRY'SMemorial but not in its Applicationinstituting proceedings andior
that such claims are inadmissible.
12. On the issue of jurisdiction more generally, Belgium contends that the
Court lacksjurisdiction to considerthis case on the following grounds:
(a) the Court is not open to theFRY. The FRY is not a member of theUnited
Nations. The FRY is not otherwise a party to the Statute of the Court Introduction
pursuant to Article 93(2) of the UN Charter. The Court is not otherwise
open to the FRY pursuant to Article 35(2) of the Statute. Absent standing
to appear, the FRY cannot foundjurisdiction on its Declaration of 25 April
1999,on Article IX of the GenocideConventionor on Article 4 of the 1930
Convention;
(b) in the alternative, Belgium contends that the Court lacks jurisdiction under
the FRY'S Declaration of 25 April 1999, Article IX of the Genocide
Convention andArticle 4 of the 1930 Conventionon the followinggrounds:
(i) as regards the FRY's Declarationof 25 April 1999 - that the dispute
andior the situationsor facts allegedarose prior to the "crucial date"
indicatedin the temporal limitationof the FRY's Declaration;
(ii) as regards Article IX of the Genocide Convention - that the action
alleged does not come within the scope ratione materiae of the
Genocide Convention;
(iii) as regards Article 4 of the 1930 Convention - in addition or in the
alternative, that the FRY is not a party to the Court's Statute for the
purposes of Article 37 of the Statute; that the 1930 Conventionis no
longer in force; that. the FRY has not succeeded to the 1930
Convention; and that the conditions of Article 4 of the 1930
Conventionhave not beenobserved.
13. In additionor in the alternativeto these contentionsgoing to thejurisdiction
of the Court, Belgium contends that the FRY'Sapplication is inadmissible on the
grounds:
(a) that the FRY does not identifyany actions specifically allegedto have been
committedby Belgiumwith which it takes issue;
(b) that the FRY hasacted in bad faith; and
(c) of the absence of the United States and other "Respondents" from the
parallel proceedings. Introduction
14. In paragraph 11 of its Memorial, the FRY notes that it "has prepared an
identicaltext of the Memorialin al1eight pending cases" and that the "substance of
the dispute in al1eight casesis identical". Itgoes on to noteas follows:
"Whereas al1Respondentsare in the same interest, according to
Article 31, para.5, of the Statuteof the Court, they should, for the
' purpose of the nomination of ad hoc judge, be reckoned as one
party only. Alternatively, for said purpose, Belgium and the
Netherlands are in the same interest; Canada, Portugal and the
United Kingdom are in the same interest; and France, Germany
and Italy are in the sameinterest."
15. Belgium rejects the contentionthat it is a party in the same interest as any
of the Respondents in the parallel cases initiated by the FRY, whether for the
purpose of Article 31(5) of the Statute or of any other provision of the Court's
Statuteor Rules.
16. By a letter to theCourtdated 5 May 1999,Belgiumnotified the Court of its
intentionto choose a Judgead hoc pursuantto the termsof Article 31 of the Statute
and nominated Mr Patrick Duinslaeger for this purpose. The FRY, referring to
Article 31(5) of the Statute, objected to this nomination. The Court, "after due
deliberation, found that nominationof a judge ad hoc by Belgium was justified in
the present phase of the case".1°
17. In the light of this decision,and in accordance withArticle 31 of the Statute
and Article 35 of the Rules, Belgium, by a letter dated 13 April 2000 addressed to
the Registrar of the Court, confirmed its appointmentof and nominatedMr Patrick
Duinslaegeras Judgead hoc for purposesof this case.
18. In so doing, Belgium considers that the circumstances that warranted its
nominationof a Judgead hoc for the provisionalmeasures phaseof the caseremain,
and indeed are accentuated, in respect of the present phase of the case. Although
the factual and legal allegationsraised by the FRY against eachof the Respondents
in the parallel proceedingsare the sarne, Belgium'sinterest in the matter is not the
same as that of the other Respondentsand should not be presumed to beso. As is
also evident, the FRY has relied on jurisdictional bases in its proceedings against
Belgium that are particular to Belgium alone - namely, in the context of Article
36(2) of the Statute, the Belgian Declaration of 17 June 1958 and, separately,
- -
"Provisional MeasureOrder,atparagraph 12. Introduction
Article 4 of the 1930 Convention. Belgium contends, therefore, that it cannot be
considered to be a party in the same interest as any of the Respondents in the
parallel proceedings. ChapterOne
PART1: BACKGROUNDANDPRELIMINARYISSUES
CHAPTERONE: THEFRY'S CASE
19. The FRY filed its Applicationinstitutingproceedings on 29 April 1999. At
the same tirne, it filed Request for the Indicationof ProvisionalMeasures. Oral
argumenton this Request washeard on 10-12May 1999. The FRY's Memorialwas
filed on 5 January 2000. Although the Provisional Measures Reques tnd the oral
argument thereon were concerned with matters that are not now before Court,
important elements of the FRY's case wereaddressed during this phase of the
proceedings.
20. As will be describedmore fully below, it is Belgium's contention that the
FRY's case has undergone a metamorphosis over the course of its submissions to
the Court since its Application. The implicitpurpose of this metamorphosiswas to
develop and adjust the FRY's case inan attempt to cure fundamental defects in the
original formulation of the case, and in the jurisdictional bases relied upon by the
FRY, that became apparent during the course of the provisional measures
proceedings. As is addressed in Chapter Two below, Belgium also contends that,
insofar as the FRY's case has evolved over time to includematters that were not
specified in its Application, the Court lacks jurisdiction overhese new elements
andfor that these new elementsare inadmissible. It is against this background, and
for purposes of its argument on jurisdiction and admissibility only, that Belgium
now turns to identify the essential elementsof the FRY's case.
1. The FRY'SApplicationinstitutingproceedings
21. Article 40(1) of the Court'sStatuteprovides inter aliathat cases brought
before the Court by written application shall indicate the subject of the dispute.
This is reiterated in Article 38(1) of the Court'sRules and is expanded upon in
paragraph 2 of that Article inthe followingterrns:
"The application shall specify as far as possible the legal grounds
upon which thejurisdiction of the Court isaid to be based; it shall
also specify the precise nature of the claim, together with a
succinct statementof the facts and grounds on which the claim is
based." ChapterOne
22. In respect of this provision, Belgium draws particular attention to the
requirement that an application instituting proceedings shall specify"the precise
nature of the claim".
23. Addressingthe "Subject of the dispute", the FRY, in its Application, States
as follows:
"The subject-matter of the dispute are acts of The Kingdom of
Belgium by which it has violated its international obligation
banning the use of force against another State, the obligationnot to
intervene in the interna1affairs of another State, the obligation not
toviolate the sovereigntyof another State, the obligationto 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
nationalgroup."
24. Under the heading "Claim", the FRY goes on to request the Court to
adjudge and declare that, "by taking part in" various specified acts, Belgium is in
breach of the aforementionedobligations. The acts in which Belgium issaid to have
participatedare:
the bombingof the territory of the FRY;
the training, arming, financing, equipping and supplying the Kosovo
Liberation Amy ("KLA");
attackson civiliantargets;
destroyingor damaging monasteriesand monumentsof culture;
the use of cluster bombs;
the bombingof oil refineries andchemical plants;
the use of weaponscontainingdepleteduranium;
the killing of civilians, destroying enterprises, communications, health and
cultural institutions;and
the destructionof bridges on internationalrivers.
25. The allegationconcerningtheviolationof "the obligationnot to deliberately
inflict conditions of life calculated to cause the physical destruction of a national
group" is based on the claim that Belgium tookpart in the "activities listed above, ChapterOne
and in particular by causing enormousenvironmentaldamage and by using depleted
uranium".
26. Under the heading "Facts upon which the claim is based", the FRY alleges
that
"Belgium, together with theother Governments of other Member
States of NATO, took part in the acts of use of force against the
Federal Republic of Yugoslaviaby taking part in bombing targets
in the Federal Republicof Yugoslavia ...[and]is taking part in the
training, arming ,financing ,equipping and supplying the so-called
'Kosovo Liberation Amy ' ."
27. The jurisdictional bases invokedby the FRY in its Applicationin respect of
these allegations of substance are simply stated to be Article 36(2) of the Court's
Statuteand Article IX of the GenocideConvention.
28. Three observations are warranted in respect of these elements. First, the
allegations levelled againstBelgium are that, "by taking part in" various specified
acts, Belgium is in breach of the various legal obligations. Beyond this, the
allegations do not identify with any particularity the acts said to have been
undertaken by Belgium whichare alleged to constitute violations of law. It is not,
for example, allegedthat Belgiumused weaponscontainingdepleted uranium or that
Belgium was engaged in the training, arming, financingequipping and supplying of
the KLA.
29. Second, the Applicationcontains no indication of the dates on which the
alleged acts are said to have been cornrnitted. In other words, the Application does
not identify any point at which the allegeddispute could be said to have crystallised
or the period within which the acts constituting the dispute could be said to have
taken place. The full extent of FRY specificity on this point is to be found in that
part of the Applicationaddressingthe "facts upon which the claim is based" where
it is alleged that Belgium, "together with the otherGovernments of other Member
Statesof NATO, took part in the acts of use of force againstthe Federal Republic of
Yugoslavia by taking part in bombing targets in the Federal Republic of
Yugoslavia" and "is taking part in the training, arming, financing, equipping and
supplyingthe so-called'KosovoLiberationArmy'".
30. By reference to this statement, insofar as it ispossible to identifyfrom the
Application the period within which the allegationsfall, this would seem to be the Chapter One
period within which (a) NATO used force against the FRY(b) by bombing targets
in the FRY. On this test, the relevant period is that of 24 March 1999, ie, the date
on which the NATO bombing commenced, to 10 June 1999, ie, the date on which
the NATO bombingceased.
31. In this regard, it may be noted that 10 June 1999was also the date on
which the Security Council, acting under Chapter VI1 of the Charter, adopted
Resolution 1244(1999) laying down the principles thatwere to apply to a political
solution of the "Kosovo crisis" and deciding upon "the deployment in Kosovo,
under UnitedNations auspices, of internationalciviland security presences" .ll
32. Third, no indicationis given in the Applicationof any linkage between the
acts alleged and the bases of jurisdiction invoked. In other words, it is not clear
from the Applicationwhether the FRY relies on each allegedbasis of jurisdiction in
respect of every act alleged or whether one or other basis of jurisdiction is relevant
only to certain of the acts alleged. It is however settledlaw that, while Declarations
under Article 36(2) of the Statute may, subject to such limitations as may be
contained therein, give the Court jurisdiction in disputes of a wide-ranging and
general nature, Article IX of the Genocide Conventioncan only give the Court
jurisdiction in "[dlisputes between the Contracting Parties relating to the
interpretation, applicationor fulfilment of the present Convention". Article IX of
the GenocideConventioncan therefore only establishjurisdiction in respect of acts
falling within the scope of the Convention ratione materiae. It cannot provide a
basis of jurisdiction in respect of acts more generally. Notwithstandingthe lack of
clarity on thismatter in the Application, Article IX of the GenocideConventioncan
therefore only give the Court jurisdiction insofar as any of the acts alleged come
within the scope of the Conventionand in respect of those acts only. This matter is
addressed further in Chapter Six below.
2. The provisional measures phase
(a) TheFRY'SProvisional MeasuresRequest
33. Filed at the same time as its Application,the FRY's Provisional Measures
Request did notaddress the substanceof the FRY'scase in detail or in a manner that
was at variance with its Application. It did, however, list at some length various
acts of destructionalleged to havebeen causedby NATObombing.
- -
"SIRES1124 (1999)of 10June 1999, at paragraphs 1and 5 (emphasisadded). (Annex5)
1O Chapter One
34. Two observations are warranted in respectof this Request. First, as in the
case of the Application, the Request does not particularise any acts specifically
allegedto have been committedby Belgium. The allegationsin question are cast in
general terms. Second, as in the case of the Application, the Request gives no
indicationof the dates on which the alleged actsare said to have been committed.
In other words, as with the Application,the Request does not identify anypoint at
which the alleged dispute could be said to have crystallised or the period within
whichthe acts constitutingthe disputecould be saidto havetaken place.
35. This omission notwithstanding,some indication of the point at which the
alleged disputemight be said to have crystallised is implicit from the terms of the
Request. Three elements in particularare relevant in thisregard. First, theRequest
is dated 28 April 1999. By necessary implication,any disputemust therefore have
arisen prior to this point. Second, the FRY's allegations are placed in a broad
temporal context, namely,"[flrom the onset of the bombingof the Federal Republic
of Yugoslavia ..."12 Implicitly, therefore, the dispute with which the FRY is
concerned crystallisedon 24 March 1999,ie, the point at whichthe NATO bombing
cornrnenced. This is consistent with the FRY's Application. Third, the specific
allegationsof destructionmade by the FRY are also consistentwith an appreciation
on the part of the FRY that the dispute with which the FRY was concerned
crystallisedwith the commencementof bombingby NATO on 24 March 1999.
36. For example, under the heading "Bridges", the FRY alleged that the
"Varadin Bridge on the Danube" was destroyed.I3 While no date is given in the
Request for this allegedact of destruction, material subsequently filedby the FRY
puts the date of the allegeddestructionof this bridge as 1 April 1999.14By way of
further example, under the heading "Industry and Trade", the FRY alleged an
attack on the "'Lola Utva'agriculturalaircraft factory in Pancevo".lS While no date
is given in the Request for the alleged act, material subsequently filedby the FRY
Statesas follows:
"The Lola Utva factory in Pancevo was exposed several times to
NATO missile attacks:on 24 March 1999, at 9.00 p.m., by four
ProvisionalMeasuresRequest,app.1-2, fourparagraph.
ProvisionalMeasuresRequest,at p.4, "Bridges",at (a)(l).
See NATOCrimesin Yugoslavia,Volume1:DocumentaryEvidence(24March - 24 April 1999)
filed as an annexto the FRY'sMernorialof 5 January2000, at p.233.
'ProvisionalMeasuresRequest,ap.8,"Industryand Trade", at item6. Chapter One
missiles; on 27 March 1999, at 8.05 p.m., by one missile and on
29 March 1999,at 8.30 p.m., by one mi~sile."'~
37. Although theFRY makesno express observationsto this effect, it is clear
that the allegeddispute with which theFRY is concerned arose, in the view of the
FRY,at the point at which theNATO bombingcommenced,ie, on 24 March 1999.
(b) Theoral phase of the requestfor provisional measures
38. The oral phase of the provisionalmeasuresproceedingstook placeon 10-12
May 1999. In keeping with thenature and characterof those proceedings, the FRY
developed various aspectsof its case-both in respectofjurisdiction and merits - at
some length during the course of its submis~ions.'~Without reopening or entering
into debateon the detail of these submissions,a numberof observationspertinent to
the questionsofjurisdiction and admissibilityare warranted. First, as in the case of
its previous submissions, the FRY's oral submissions during the provisional
measuresphasemade no attemptto particulariseany acts specifically allegedto have
been comrnittedby Belgium. Second, insofar as the FRY identified any NATO
member in the context of its allegations, it pointedto the UnitedStates alleging that
"the Kosovo crisis was a crisis selectedand developedby the UnitedStatesas a part
of a long-term anti-Serb campaign. The objectives werepolitical and ~trategic."'~
39. Third, as in its Applicationand ProvisionalMeasuresRequest, the FRY did
not expressly place the alleged dispute withwhich it was concerned within a
temporal framework. Once again, however, by reference to the detail of its
submissions, it is possibleto deducethe relevantperiod. Thus, for example, in the
course of the FRY's opening round of ara1 argument, the Agent for the FRY
referred variously, and generically, to "[tlhe acts of bombing of the Yugoslav
territory", "[tlhe acts of bombing of the territory of Yugoslavia", "[bly bombing
the territory of Yugoslavia", "[c]ontinued bombing of the whole territory of the
State".I9 Similarly, Counsel for the FRY, Mr Mitic, opened his statement by
referring to "the consequences whichNATO aggression againstYugoslavia caused
so far and continues to cause". In the course of his statement, he went on to
l6See NATO Crimesin Yugoslavia,Volume1:DocumentatyEvidence (24March - 24 April 1999)
filed asaannexto theFRY'sMernoriaoi 5January2000,atp.351.
l7See CR 99/141,0May 1999 andCR 99/251 ,2May 1999.
l8StatementbyMrBrownlie,CR 99/251,2May 1999 ,tp.16.
l9Statementby MrEtinski,CR99/141 ,0May 1999 ,tpp.23and30. ChapterOne
develop various argumentsby reference to "the beginning of the aggression on 24
March 1999".20
40. In the light of these statements, and given the generic nature of the
references to the "acts of bombing", it is clear that the alleged dispute withwhich
the FRY was concerned crystallised, in the view of the FRY, at the point at which
the bombing commenced, ie, on 24 March 1999. This, indeed, is confirrned
unambiguouslyby the statementby Mr Miticjust noted.
41. Fourth, while it is abundantlyclear that the allegeddispute with which the
FRY wasconcerned arosewith the commencementof the bombing, it is alsoclear
that the FRY itselfsawthis "dispute" asan intimatepart of a wider series of events.
Thus, while taking care to preface his remarks by the comment that they were
"without prejudice to the jurisdiction of the Court defined by the Yugoslav
declaration of the acceptance of the compulsoryjurisdiction of the Court", the
Agent for the FRY neverthelesswent on to state that, "for a full comprehension of
the case, it could be useful to shed light on facts surrounding the case".21 He
proceeded to place the "dispute" in the context of the wider events in the former
Yugoslavia and, in particular, of the wider events concerning Kosovo. Thus,
reference was made, amongst other things, to the deteriorating situation in Kosovo
during 1998, the establishment of the Kosovo Verification Mission and the
Rambouillet Conference of February-March 1999 .22 Counsel for the FRY,
Professor de Waart, similarlyplaced the "dispute" which the FRY sought to bring
before the Court within its wider context, noting that "[tlhe threat or use of force
against the Federal Republic of Yugoslavia in order to compel it to sign the
Rambouilletdraft Agreementwas unjustified".23
42. Fifth, in the light of arguments advanced by Belgium and by the
Respondentsin the parallelproceedingsbefore the Court, a number of statements of
interest to the present phase of the proceedingswere madeby the representatives of
the FRY during the second round of oral hearings on 12 May 1999. Particularly
important amongst these was the statementby Counsel for the FRY, Mr Corten,
who addressedat somelengththe temporaldimensionof the "dispute" raised by the
FRY in the context of the terms of the Declaration filed by the FRY purportedly
under Article 36(2) of the Court's Statute. This provides inter alia that the Court
-- - - -
'OStatementby Mr Mitic,CR99/14, 10May 1999,atp.59.
" StatementbyMrEtinski,CR99/14, 10May1999,atp.25.
'?Statementby MrEtinski,CR99/14, 10May1999,atpp.25-29.
'StatementbyMrdeWaart,CR99/14, 10May 1999,atp.41. ChapterOne
will havejurisdiction "in al1disputes arisingor whichmay arise after the signature
of the present Declaration,with regard to the situationsor facts subsequentto this
signature". TheFRY Declarationwas signedon 25 April 1999.
43. Addressingthe argumentthat the dispute betweenthe Parties predated the
signature of the FRY's Declaration,and that in consequence, by the express terms
of the Declaration, the Courtcould not have jurisdiction on the basis thereof, Mr
Corten contended that the Declaration had to be interpreted on the basis of the
intention of its author. He went on to argue that "Yugoslavia desired, from 25
April 1999 onwards, to recognise the Court's jurisdiction over awide range of
disputes".24 Each act of bombing, on this contention, "led to 'a disagreementon a
point of law or fa~t"'.~~In keeping with thisanalysis, the disputewith which the
FRY was concerned was not, therefore - contrary to the language of the FRY's
Application, ProvisionalMeasures Request and first round oral statements - a
dispute thathad arisen with the commencementof the NATO bombingon 24 March
1999. Rather, there were "a largenumber of separate disputes arising between
Yugoslavia and the NATO Member countries since 25 April concerning events
occurring afterthat date" .26
44. Expressly eschewingany notion of a "continuing situation" arising from
"repeated separate military attacks", Counsel for the FRY described these acts as
"instantaneous wrongful acts"which "can be precisely dated, including those after
25 A~ril".~~ The Court, on this contention, had jurisdiction on the basis of the
FRY's Declaration, overthe "dispute" that aroseafter 25 April 1999 as a result of
individual, separate,instantaneous wrongful acts.
45. The interpretationand applicationof the temporal limitationin the FRY's
Declaration is addressed in Chapter Fivebelow. For present purposes, Belgium
siinply notes these statementsof Counsel for the FRY and the evident discordance
between these statements and theclear thrust of the earlier submissionsof the FRY
on the matter. For completeness, itmay be notedthat, even within the attemptby
Counsel for the FRY to circumventthe limitationsof the FRY's Declaration, some
ambiguity was evident. Thus, Counsel for the FRY, continuing the statement
referred to above, noted that
'4Statementby MrCorten,CR99/25, 12May 1999,Translation,atp.13.
'5Statementby MrCorten,CR99/25, 12May 1999,Translationa , tp.10
I6Statementby MrCorten,CR99/25, 12May 1999,Translation,atp.11.
" Statementby MrCorten,CR99/25, 12May 1999,Translationa , tp.11. ChapterOne
"[wlhat is in any event clear is that, initially, Yugoslavia wishedto
secure a judicial settlement of the disputes relating to the armed
conflict then - and indeedstill - in progress between Yugoslavia
and the respondent States. It goes without saying - and the
drafters of the declaration could personally testify to this - that
Yugoslaviadid indeed wish toinclude, and not to exclude, al1the
disagreements relating to the bombing to which it has been
subjected. "28
46. Notwithstanding the instantaneouswrongful acts argument previously
advanced, this statement suggests that the"dispute" which constituted the subject-
matter of the FRY'S case was the dispute "relating to the armed conflict ... in
progress between Yugoslaviaand the respondent States", ie, the use of force by
NATO that had comrnencedon 24 March 1999.
(c) TheCourt'sProvisionalMeasuresOrder
47. The Court gave its Order on the ProvisionalMeasures Requeston 2 June
1999. Rejecting theFRY'Srequest, the Court made a number of observations that
are material to the present phase of the proceedings. First, the Court affirmed that
it can "exercise jurisdiction only between Statesparties to a dispute who not only
have access to the Court but also have accepted thejurisdiction of the Court, either
in general form or for the individualdispute ~oncerned".~~As Belgium willcontend
in Chapter Four of these Preliminary Objections, thistwofold test to the Court's
jurisdiction - (a) access to theCourt, and (b) acceptanceof the jurisdiction of the
Court - is fundamental to the schemeof the UN Charterand theCourt's Statute.
48. Second, noting that "the Application is directed, in essence, against the
'bombingof the territory of the Federal Republicof Yugoslavia'" ,30the Court stated
that it had "no doubt" that a legal dispute arose between the FRY and Belgium
"well before 25 April 1999concerningthe legalityof those bombingsas such, taken
as a ~hole".~' Having noted the FRY argument that "there exist 'a number of
separate disputeswhich havearisen' between theparties 'since25 April relating to
events subsequentto that date"',32the Court went on to state:
''StatementbyMrCorten,CR99/25, 12 May1999,Translationa ,tp.13.
I9ProvisionalMeasuresOrder,atparagraph 20.
30ProvisionalMeasuresOrder,atparagraph 27.
31ProvisionalMeasuresOrder,atparagraph 28.
32ProvisionalMeasuresOrder,atparagraph 25. Chapter One
"Whereas the factthat the bombingshave continued after 25 April
1999 and that the dispute concerning themhas persisted since that
date is not such as Io alter the date on whichthe dispute arose;
whereas each individualair attack could not have given rise to a
separate subsequent dispute; and whereas, at this stage of the
proceedings, Yugoslavia has not established that new disputes,
distinct from the initial one, have arisen between the Parties since
25 April 1999 in respect of subsequent situations or facts
attributableto Belgium. "33
49. On the basis of this analysis, the Court concluded that the Declarations of
the Parties "do not constitute a basis on which the jurisdiction of the Court could
prima faciebe founded in this case".34
50. Third, in the light of this finding, the Court concluded that it did not need
to consider the question of the status of the FRY vis-à-vismembership of the United
Nations and accessto the Co~rt.~' It had been Belgium's contention in the oral
phase of the provisional measures proceedings that theCourt lacks jurisdiction in
this matter as the FRY is not a member of the United Nations andthat the Court is
not otherwise open to the FRY on the basis of other arrangements contemplatedby
the Charterand the Statute. Belgiummaintains thiscontention in these Preliminary
Objections.
51. Fourth, as regards the FRY'Sclaim to jurisdiction on the basis of Article
IX of the Genocide Conventiont,he Court observedthat, as it was "not disputed that
both Yugoslavia and Belgium are parties to the Genocide Convention without
reservation", Article IX of the Convention
"accordingly appears to constitutea basis on which the jurisdiction
of the Court might be foundedto the extentthat the subject-matter
of the dispute relates to 'interpretation,application or filfilment'
of the Convention,including disputes'relatingto the responsibility
of a State for genocide or for any of the other acts enumerated in
Article III' of thesaid Convention".36
52. Addressing the allegations advanced by the FRY, the Court nevertheless
went on to concludethat
" Provisional MeasuresOrder,atparagraph29.
34ProvisionalMeasuresOrder,atparagraph 30.
35Provisional MeasuresOrder,atparagraph33.
36ProvisionalMeasuresOrder,atparagraph 37 (emphasisadded). ChapterOne
"the threat or use of force against a State cannotin itself constitute
an actof genocidewithinthe meaningof Article IIof the Genocide
Convention; and [that], in the opinion of the Court, it does not
appear at the present stage of the proceedingsthat the bombings
which form the subject of the Yugoslav Application'indeed entai1
the element of intent, towards a group as such, required by
[Article II of the Convention]' (Legality of the Threat or Useof
' Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (1) ,
p.240, para.26)" .37
53. On the basis of this analysis, the Court concluded that Article IX of the
Genocide Conventioncould not constitute "a basis on which thejurisdiction of the
Court couldprima faciebe foundedin this case".38
54. Fifth, as regards the FRY's invocationof Article 4 of the 1930 Convention
as an additionalbasis of jurisdiction vis-à-visBelgium, theCourt concludedthat, in
consequenceof the late stage at which the Conventionhad been invoked, it could
not consider the Conventionfor the purpose of deciding whetherit could indicate
provisionalmeasures .39
55. Finally, the Court noted that the findings reached at the provisional
measure stage inno way prejudged thequestion of the jurisdiction of the Court to
deal with the merits or any questions relating to the admissibility of the
~pplication.~~This observation notwithstanding,it is evidentthat certain aspects of
the Court's findingsamountto settledconclusionsof law. While, for example, the
issueofjurisdictionunder the FRY'sDeclarationwasleft open, as a matter properly
to be determined in the present phase of the case, the Court's conclusion that "the
fact that the bombingshave continuedafter 25 April 1999 ...is not such as to alter
the date on which the dispute aroseW4w ' as cast in conclusiveterms. Similarly,
while the issueofjurisdictionunder ArticleIXof the GenocideConventionwas also
left open, the Court's conclusion that "the threat or use of force against a State
cannot itself constitute an act of genocide within the meaningof Article II of the
Genocide C~nvention"~~ was also conclusive.
37ProvisionalMeasuresOrder,atparagraph 40.
3"rovi~ional MeasuresOrder,atparagraph 41.
39Provisional MeasureOrder,atparagraph 44.
40Provisional MeasureOrder,atparagraph 46.
4'Seeparagraph 48 above.
4'Seeparagraph 52 above. ChapterOne
56. The Court is not, of course, bound by its earlier decisions and Belgium
does not here suggest that these findings cannotbe reopened. These matters are
accordingly addressedby Belgium fully elsewhere in these Preliminary Objections.
Belgium nevertheless observesthat the Court's findings on these points are cast in
conclusiveterms.
3. The FRY'SMemorial
57. The FRY filed its Memorialand annexeson 5 January 2000. Of the four
volumesof annexes, thefirst, marked "Annexes", contains 178documents, Nos.1 -
160 of which are in Serbo-Croat. No translationof these documents is provided in
this volume although translations are provided elsewherein the annexed material
filed by the FRY. The remaining 18 documents in this collection are filed in
English or French with the exceptionof Annex No.165 which is filed in German
only. No translationof this document is providedby the FRY.
58. The second and third volumes of annexed material are entitled NATO
Crimes in Yugoslavia:DocumentaryEvidence. These are divided into Volumes 1
and II; the first relating to period 24 March - 24 April 1999; the second to the
period 25 April - 10 June 1999. These dates are material. Volume1 covers the
period from the start of the NATO bombingto the point imrnediatelyprior to the
signing of the FRY's Declaration purportedly under Article 36(2) of the Court's
Statute. Volume II covers the period from the signature of the FRY's Declaration
to the suspensionof the NATObombing. None of the material annexedby the FRY
addresses acts alleged to have been comrnitted after 10 June 1999. The material
included in these volumes is filed in English and includes translations of Annexes
No. 1 - 160filedby the FRY in Serbo-Croatinits first volumeof annexes.
59. The final volume of annexes is entitled "Documents Diplomatiques:
Correspondanceconcernant lesactes de violenceet de brigandage des Albanais
dans la Vieille-Serbie (Vilayetde Kossovo)1898-1899"and is filed in both Serbo-
Croat and French.
60. As regards its Memorial, the FRY opens with arestatement of its case as
formulated in its ~~~lication~a~nd goes on to note that it has prepared an identical
43FRY Memorial, paragraph5. ChapterOne
Memorialin respect of al1eightpendingcases arising out of the NATO action in the
FRY as c[tlhe substanceof dispute inal1eight casesis identical" .44
61. Noting that the Court, in its Provisional Measures Order, had concluded
that it wasprima facie without juri~diction,~~the FRY then contendsthat
"[s]ince the Orders of the Court, dated 2 June 1999, the dispute
aggravatedand extended. It got new elernentsconcerningfailures
of the Respondents to fulfil their obligations established by
Security Council resolution1244 and by the 1948Convention on
the Prevention and Funishrnent of the Crime of Genocide.
Negating the allegedhumanitarianmotivesof the Respondents,the
new elements are of crucial importance for the substance of the
dispute.
Due to the fact that thedispute matured, throughnew elements, the
Applicant considers that the circumstances related to the
jurisdiction of the Court have thus changed so that the Court has
thejurisdictionto resolvethe dispute. "46
62. As these paragraphs make plain, an important feature of the FRY's
Memorial is that it seeks to develop the caseoriginally stated in the FRY's
Application bothtemporallyand substantively. In Belgium'scontention, insofar as
the FRY case has evolved to include matters that were not specified in its
Application, the Courtlacksjurisdiction over these new elements andlor that these
new elements are inadmissible. This matter is addressed fully in Chapter Two
below .
63. Approximatelythree-quarters (some 300 pages) of the FRY's Memorialis
given over to allegations of fact. About half of this material sets out a
chronological,day-by-day series of allegations concerning"facts related to bombing
of the territory of the FR ofYug~slavia".~~This begins on 24 March 1999and goes
through to 9 June 1999. The allegations run seamlessly , day-by-day , throughout
this period making no distinctionbetween acts alleged to haveoccurred prior to 25
April 1999 (ie, the date of signature of the FRY's Declaration purportedly under
Article 36(2) of the Court's Statute)and acts allegedto have occurred subsequently.
44FRY Memorial,paragraph 11.
45FRY Memorial,paragraph 8.
49RY Memorial,paragraphs 12and16. Seealsopp.339-340.
47FRY Memorial,Part1.1, pp.11-137. ChapterOne
Of the annexed material referred to in this part, Annexes No.1 - 74 correspond to
allegations in respectof the period24 March - 24 April 1999.
Part 1.5 of the FRY's Memorial, under the title "Facts Related toKillings,
64.
Wounding and Ethnic Cleansing of Serbs and Other Non-Albanian Gro~ps",~~
addresses acts alleged to have occurred in the period after 10 June 1999, ie, after
the suspension of the NATO bombing and the adoption, by the Security Council
acting under Chapter VI1of the Charter, of Resolution 1244 (1999). This Part of
the Memorial thus addresses those elements which,in the FRY's contention, caused
the dispute to be "aggravated and extended" in the period following the Court's
Provisional Measures Order. None of the allegations made in this Part are
supported by any annexed documentarymaterial. The allegationsare thus entirely
unsubstantiated.
65. The allegationsin this Part constitutethe only material cited by the FRY in
support of its contention that "the dispute aggravatedand extended" in the period
after 10June 1999.
66. Beyond its allegatioru of fact, the FRY Memorial includes short sections
addressing issuesof law4'and thejurisdiction of the Court."
67. As regards the jurisdiction of the Court, insofar as is material to the
proceedings involvingBelgium,the FRY case can be sumrnarisedas follows:
(a) the FRY is a Member of the United Nations;"
(b) the Court has jurisdiction under Article 36(2) of its Statute pursuant to the
Belgian Declaration of 17 June 1958and the FRY Declaration of 25 April
1999;~~
(c) in this regard, a dispute arises when al1its elements come into existence.53
As the post-10 June 1999 "elements are part and parce1 of the dispute
related to the bombing of the territory of the Appli~ant",'~the Court has
48FRYMernorial,pp.201-282.
49FRYMernorial,PartTwo,pp.301-328.
FRYMernorial,PartThree,pp.329-349.
51FRYMernorial,pp.329-335.
52FRYMernorial,pp.335-343.
53FRYMernorial,p.339, paragraph 3.2.13.
54FRYMernorial,p.339, paragraph 3.2.11. See alsop.340, paragrap3.2.14 and3.2.16. Chapter One
jurisdiction notwithstanding the temporal limitation in the FRY's
Declaration asthe dispute "has arisen in full after 10June 1999";55
(d) the Court has jurisdiction vis-à-vis Belgium pursuant to Article 4 of the
1930 Conventi~n;~~
(el in this regard, the FRY contends that the 1930 Conventionis in force57and
that the procedural obstaclesthat led to the Court decliningto consider the
Conventionduring the provisionalmeasures phase havedi~appeared;~~
(0 the Court has jurisdiction pursuant to Article IX of the Genocide
onv vent ion;^^
(g) in this regard, the FRY contends that, by its Memorial, it has submitted
evidence of intent to commit genocide - namely, acts of bombing and acts
of killing and woundingof Serbs and other non-Albanianpopulation after
10 June 1999 - such as to establish jurisdiction under Article IX of the
Genocide Convention .60
68. Each of these elementsof the FRY'Scase is addressedin detail below in the
contextof Belgium'ssubstantiveobjectionstojurisdiction and admissibility.
A number of observations on the FRY's Memorial more generally are
69.
warranted at this point. First, as regards the annexesto the FRY's Memorial, much
of the material contained in the two volume collection entitled NATO Crimes in
Yugoslavia:Documentary Evidence is not referred to in the FRY's Memorial.
Similarly, no reference is made in the FRY's Memorial to the fourth volume of
annexes containingDocuments Diplomatiquesfrom the period 1898-1899. In both
cases, the FRY's purpose in attaching this material is unclear although it may be
presumed to have been put before the Court with prejudicial intent vis-à-vis
Belgium.
Second, as was the case in its earlier submissions, the FRY makes no
70.
attempt in its Memorial to particularise any acts specificallyalleged to have been
comrnittedby Belgium. Indeed, with the sole exception of that part of the FRY's
Memorial that addresses the 1930 Conventionas an additional basis of jurisdiction
vis-à-visBelgium, theMemorial makes no reference to Belgiumat al1in respect of
any of the allegationstherein.
55FRYMernorial,p.340, paragraph3.2.14.
56FRYMernorial,pp.343-346.
57FRYMernorial,p.346, paragraph3.3.10.
FRYMernorial,p.346, paragraph3.3.9.
59FRYMernorial,pp.346-349.
60FRYMernorial,p.349, paragraph3.4.3. ChapterOne
71. Third, the FRY's contention that "the dispute aggravated and extended" to
includenew elements inthe period after 10June 1999is of central importanceto the
present phase of the case. Referring to "failures of the Respondents" to fulfil their
obligations under Security Council Resolution 1244 (1999) and the Genocide
C~nvention,~t 'he FRY contendsthat
"these new disputed elementsare part and parce1 of the dispute
related to the bombing of the territory of the Applicant. The
dispute arising from the bombing matured throughout the new
disputed elementsrelated to responsibility of the Respondentsfor
the crime of genocide comrnittedto Serbs and other non-Albanian
groups in the areaunder control of KFOR. ...
Whereas some of the constituentelements of the dispute appeared
after 10 June 1999, the dispute, which started to arise before 25
April 1999, has arisen in full after 10 June 1999. So, it iswithin
the compulsory jurisdiction of the Court, established by the
Yugoslavdeclarationof 25 April 1999. "62
72. As Belgiumhas already observed, the only material contained in the FRY's
Memorial relating to the alleged aggravation and extension of the dispute after 10
June 1999 is to be foundin Part 1.5. Belgium reiterates that this material consists
of entirely unsubstantiated allegations, unsupported by any evidence whatever. In
keeping with the strictly preliminarycharacter of these proceedings, Belgiurnmakes
no comment on the substance of these allegations. As a purely forma1 matter,
however, and one which is appropriate for determination by the Court in
proceedings addressing jurisdiction and admissibility, Belgium contends that the
material filed by the FRY in respect of its post-10 June 1999 allegations does not
allow for any meaningful appraisal and response by Belgium and is likewise
fundamentally incapableof any meaningfuljuridical appraisalby the Court.
4. Conclusions
73. A number of general conclusionsemerge from the preceding review of the
FRY's case:
61See paragraph61 above.
" FRY Memorial,pp.339-340,paragraph3.2.12 and3.2.14. ChapterOne
in none of the documents filedso far by the FRY is any attempt made to
particularise allegationsagainst Belgium in respect of specific acts alleged
to havebeen committedby Belgium;
insofar as the actions of any specific NATO Member are identified
throughout its various submissions,the FRY alleged that the Kosovo crisis
was "selectedand developedby the UnitedStates" ;
both in its Applicationand throughout the provisional measures phase of
the case until the second round of oral argument, the FRY gave no
indicationof the temporal dimensionof the dispute it soughtto bring before
the Court;
in this regard, however, it is evidentfrom the detailed allegationsadvanced
by the FRY that thedisputewith which theFRY is concerned is thedispute
that crystallised with the commencementof the NATO action in the FRY
on 24 March 1999;
the FRY also, however, acknowledged that the NATO action was an
integralpart of a wider seriesof events concerningKosovo;
with the objectiveof avoiding the difficultiesthat became apparent as a
result of the temporallimitationin the FRY'sDeclarationof 25 April 1999,
Counsel for the FRY, in the second round of the oral hearings in the
provisionalmeasuresphase, sought tocharacterisethe "dispute" before the
Court as a series of instantaneous wrongful actssubsequent to 25 April
1999each of which gave rise to a separatedisagreementon a point of fact
or law ;
in a further attempt to avoid thepitfalls of the temporal restriction in the
FRY's Declarationof 25 April 1999, the FRY, in its Memorial, alleged
that the dispute was "aggravatedand extended"in the period after 10 June
1999 soas to bring a disputeinto existenceonlyafter 25 April 1999;
this allegation notwithstanding, thefactual allegations at the heart of the
FRY's Memorial consistently treat the "dispute" as running from the
commencementof the NATObombingon 24 March 1999; and ChapterOne
(il as regards the FRY'S allegation that the dispute was "aggravated and
extended" in the period after 10 June 1999, the only material cited by the
FRY in support of this allegationis that set out in Part 1.5 of its Memorial.
In not a single instance, however, are these allegations supported by
evidence. Purely as a matter of form, these allegations could not therefore
admit of any meaningful appraisal and response by Belgium and wouldbe
fundarnentally incapableof any meaningfulappraisalby the Court.
74. These elementswill be addressedfurther below in the context of Belgium's
substantive argumentsonjurisdiction and admissibility. ChapterTwo
CHAPTERTWO: THECOURTLACKSJURISDICTIONIN RESPECTOF
CLAIMSMADEFOR THEFIRSTTIMEIN THEFRY'SMEMORIAL
ANDIORSUCHCLAIMSARE INADMISSIBLE
75. In Chapter One, Belgium contended that theFRY's casehas undergone a
metamorphosisover the course of its various submissionsto the Court. Belgium
further contendedthat, insofar as theY'Scase has evolved over time to include
matters that were not specifiedin its Application,the Court lacks jurisdiction over
these new elementsandlor that these new elementsare inadmissible. As regards the
first ofhese contentions, the metamorphosisof the FRY's case isplain. As the
review in the preceding Chapter shows,theFRY'SApplicationwas focused on the
allegations regarding NATO bombing of the FRY andthe training, arming, etc of
the KLA. This focus was maintained during the proceedings on the FRY's
ProvisionalMeasuresRequest leavingno doubt about thetemporal dimensionof the
FRY'Sclaim.
76. The focus of the FRY's case was, however,expandedboth temporally and
substantivelyin theRY'SMemorialto include allegedfailures by Belgiumto fulfil
its obligations under Security Council Resolution1244 (1999) and the Genocide
Convention in the period after the cessation of NATO bornbing. These new
allegations are significantly and qualitatively different from those raised in the
FRY'S Application as they address the interpretation and application of Security
Council Resolution 1244(1999) and raise issues of a broader nature that are likely
to be of concern to many members of the UnitedNations, including, in particular,
those which currently have forces in Kosovopursuant to the mandate laid down in
Security Council Resolution 1244 (1999). These new claims cannot inany way be
said to have been implicit in the original Applicationor to otherwise arise directly
out of thesubject-matterof that Application.
77. The evidential shortcomings of the FRY'Sallegations in respect of these
matters have already been touched upon in Chapter One. Other aspects of the
metamorphosis in the FRY'Scase will be addressedin the context of Belgium's
argument concerning the temporal limitatioin the FRY's Declarationof 25 April
1999. Separately from these issues, Belgium also contends that the Court lacks
jurisdiction in respect of the matters raisedfor the first time in the FRY's Memorial
andlor thatthese new claims are inadmissible. As this question straddlesvarious ChapterTwo
otherwise discrete arguments which are addressed in Parts II and III of these
Preliminary Objectionsbelow, it is convenient toaddress itat thispoint.
78. Article 40(1) of the Court's Statute provides that the "subject of the
dispute" must be indicated in the Application. Article38(2) of the Court's Rules
goes on to require that "the precise natureof the claim" must be specified in the
Application. The importance of these provisions within the scheme of the
administrationof justice by the Court cannot be overstated. As the Court observed
in its Judgmentin the Naurucase,63
"[tlhese provisionsare so essential from thepoint of view of legal
security and the good administration of justice that they were
already, in substance, part of the text of the Statute of the
Permanent Courtof International Justice,adoptedin 1920 (Art.40,
first paragraph), and of the text of the first Rules of that Court,
adoptedin 1922 (Art.35, secondparagraph), respectively "64
79. This assessmentwas echoedby the Court more recently in its Judgment in
the Fisheries Jurisdiction Case (Spainv. Canada) .65
The central importanceof a precise statementof an applicant'scase in the
80.
document initiating legal proceedings is also attested to by the inclusion of
provisions similar to those in the Court's Statuteand Rules in the corresponding
documentsof other courtsand tribun al^.^^
As is clear from the jurisprudence of both the Permanent Court and the
81.
International Court, the requirement that an applicant must specify the precise
nature of its claim is not regarded as an unimportant matter of form. Thus, the
Permanent Court, in its Order of 4 February 1933 inthe case concerningthe Prince
von PlessAdministration (PreliminarO ybjection),statedthat
h3CertainPhosphate LandsinNauru(Nauruv. Australia),PreliminatyObjections,Judgment1.C.J.
Reports1992, p.240.
"'Nauruv. Australia,ibid, at p.267, paragraph 69.
h5 FislzeriesJurisdictionCase (Spv.nCanada), Jurisdiction,Judgmentof 4 December 1998, at
paragraph 29.
h6 See, for example, Article 19 of the Statute,and the Rulesof Procedure,of the European Court of
Justice and Article 6.2 of theWTO Understandingon Rules and Procedures Governing the
SettlementofDisputes. ChapterTwo
"it is the Applicationwhich sets out thesubject of the dispute, and
the Case, though it may elucidate the terms of the Application,
must not go beyond the limitsof the claimas set out therein .."67
82. Similarly, in Société commerciald eeBelgique, the Permanent Court stated:
"It is to be observed that the liberty accorded to the parties to
amendtheir submissionsup to the end of the oral proceedings must
be construed reasonablyand without infringingthe terms of Article
40 of the Statute and Article 32, paragraph 2, of the Rules which
provide that the Application must indicate the subject of the
dispute. The Court has not hitherto had occasion to determine the
limits of this liberty, but it is clear that the Court cannot, in
principle, allow a dispute brought before it by application to be
transformed by amendrnents in the submissions into another
dispute which is different in character. A practice of this kind
would be calculated to prejudice the interests of third States to
which, under Article 40, paragraph 2, of the Statute, al1
applicationsmust be communicatedin order that they may be in a
position to avail themselves of the right of intervention provided
for in Articles 62 and 63 of the Statute. Similarly, a complete
change in the basis of the case submitted tothe Court might affect
the Court'sjurisdiction. ""
83. The Judgment of the Court in the Nauru case is even more directly on
point. In that case, Australia contended thatNauru's claim concerningthe overseas
assets of the British Phosphate Commissionerswas inadmissibleand that the Court
had nojurisdiction in relation to that claim on theground that the claim was new,
having appeared for the first time in the Nauruan Memorial. Australia further
argued that the claim would transform the disputebrought before the Court into a
disputeof a different nature. 69
84. Addressing this matter, the Court noted that there was no reference to the
claim in question in Nauru'sApplicationand that, from a forma1point of view, the
claim in question was thus a new ~laim.~' On the question of whether this
shortcoming of form was one to which the Court should attach importance, the
Court noted thatfor the claimin question
67Prince vonPlessAdministration (Preliminarybjection),P.C.I.J., SeriesA/B, No.52, atp.14.
68Sociétécommercialede Belgique,P.C.Z. ., SeriesA/B, No.78, atp.173.
69Nauruv. Australia,note63 supra,atpp.264-5, paragraphs2-63.
70Nauruv. Australia,note63 supra,atpp.265-6,paragraphs64-65. ChapterTwo
"to be held to have been, as a matter of substance, included in the
original claim, it is not sufficient that there should be links
between themof a general nature. An additional claim must have
been implicit in the application (Templeof Preah Vihear, Merits,
I.C.J. Reports 1962, p.36) or must arise 'directly out of the
question which is the subject-matterof that Application'(Fisheries
Jurisdiction (FederalRepublic of Germany v. Iceland), Merits,
I.C.J. Reports 1974, p.203, para.72). "71
85. The Court went on further to note that, if it had to entertain the dispute on
the new claims on the merits, "the subject of the dispute on which it would
ultimately have to pass wouldbe necessarily distinctfrom the subject of the dispute
originally submitted to it in the Applicati~n".~~ Given this to be the case, and
referring to the requirementin the Court's Statuteand Rulesthat the "subject of the
dispute" and the "precise nature of the claim" had to be specified in the
Application, the Court concluded that the Nauruan claim in question was, in both
form and substance, a new claim. The Court, accordingly, upheld the preliminary
objection advancedby Australia.
86. In Belgium's contention,this reasoning applies equally to thecircumstances
of the present case. The allegations in respectof the period after 10June 1999 raise
questions of a fundamentallydifferent nature to those in respect of the pre-10 June
period - quite apart from any issues concerning the veracityof the substantive
allegations of fact. Issues which may be relevant include the interpretation and
application of Security Council Resolution 1244(1999), the responsibility of UN
members acting pursuant to a mandate laid down in a binding resolution of the
Council, the law applicable to forces acting pursuant to a UN mandate, the
imputability of acts to individual troop-contributing states, the application of the
GenocideConventionto situations involvingUN peacekeepingor peace-enforcement
operations, questions relating to theimmunity of states andlor forces engaged in
such operations, etc. Questionssuch as these could in no way be said to have been
contemplated by the original Application or to be directly linked to the subject-
matter of the dispute originally referredto the Court. To borrow the words of the
Court in the Nauru case, if the Court had to entertain the dispute on these new
claims on the merits, the subjectof the dispute on which it would ultimately have to
pass would, as regards these claims, be entirely distinct from the subject of the
dispute originally submitted to it in the FRY'SApplication. In Belgium's view, to
entertain such a case would becontrary to principles of legal certainty and the sound
''Nauruv. Australianote63 supra,atp.266, paragrap67.
72Nauruv.Australia,note63 supra,atp.266, paragrap68. Chapter Two
administrationof justice andwould prejudice the interests of third States having an
interestin the matter.
87. One final point mustbe added. In its Application, the FRY stated that it
"ïeserves the right to amend and supplement thisApplication". Whatever may be
permittedby way of amendmentby referenceto this statement - and it is clear from
the~ourt's jurisprudence that such a reservation cannotbe relied upon simply to
give an applicant the latitude to amend as it sees fit73 - this camt include the
addition of new claims, identified for the first time in the applicant's Memorial,
which have the effect of transformingthe dispute beforethe Court into a dispute of
a different character. The matter was addressed by the Court in its Judgment on
jurisdiction and admissibilityin the Nicaraguacase in the following terms in the
context of its decision on whether an additional ground of jurisdiction may be
invoked during the courseof proceedings:
"An additional ground of jurisdiction may ... be brought to the
Court's attention later, and the Court may take it into account
provided that the Applicantmakes itclear that it intendsto proceed
upon that basis ... and provided also that the result is not to
transform the dispute brought before theCourt by the application
into another dispute which is different in character (Société
commercialede Belgique, P.C.I.J., SeriesA/B, No.78, p.173).
88. To the extent that a clause reservingto an applicant the right to amend or
supplementits applicationcannot be relied upon to invokean additionalground of
jurisdiction in circumstances in which this would transform the character of the
dispute, it followsthat sucha clause cannotbe reliedupon as abasis for introducing
new claims whichwouldhave the sameeffect.
89. In the light of the preceding analysis,Belgiumcontendsthat theCourt lacks
jurisdiction to consider the claims advanced for the first tirne in the FRY'S
Memorialandlor that these new claims are inadmissible. These clairnsrelate to the
allegations
73See, for example,the Orderof the Courtin theApplicationof the Conventionon thePrevention
and Punishmentof the Crime of Genocide, Provisionalasures, Order of 13 September 1993,
I.C.J. Reports1993, p.325, atp.338, paragr28.
74Milifary and ParamilitaryActivities in andAgainst Nicaragua (Nicaraguav. United States of
America),Jurisdictioand Admissibility,Judgment,1.C.J. Reports1984, p.392, atp.427, paragraph
80. See alsopp.397-8,paragraph12. Chapter Two
"concerning failures of the Respondents tofulfil their obligations
established by Security Council resolution 1244 and by the 1948
Convention on the Prevention and Punishment of the Crime of
Genocide. New elements related to killings, woundings and
expulsion of Serbs and other non-Albaniangroups in Kosovo and
Metohija, after 10June 1999" .75
90. The allegations of facts which form the basis of these contentions are set
out in particular in Part 1.5 of the FRYMemorial. Belgiurncontendsthat the Court
lacks jurisdiction in respect of these allegations andlor that these allegations are
inadmissible.
75FRYMemorial,p.339,paragraph 3.2.11. Chapter Three
CHAPTERTHREE: THE CONTEXTOF THE CASE
91. Given the preliminary nature of the these proceedings, Belgium does not
join argument with the FRY on the substanceof its allegations. As already noted,
were the Court to decide that it has jurisdiction to hear this case and that the
application is admissible, Belgium would contest the allegations fully. While not
taking issue with the FRY's allegations, it may nevertheless assist the Court's
appreciation of the matter for Belgium to set out briefly some salient contextual
elementsrelevantto the case.
92. As will be plain from the review of the FRY's case in Chapter One, the
essence of the dispute raisedby the FRY against Belgiumconcerns the useof force
by NATO in the FRY. The context within which this action occurred was the
situation in Kosovo. As was recognisedby the FRY, "a full comprehensionof the
however, requires an appreciation of the wider circumstances concerning
events in the former Yugoslavia. Chief amongst these are the dissolution of the
Socialist Federal Republicof Yugoslavia ("SFRY") and the establishment of the
FRY, the situation in Kosovo prior to 24 March 1999, elements concerning the
NATO action in the FRY, and developments subsequentto the cessation of the
NATO action on 10 June 1999. With the exceptionof the dissolutionof the SFRY
and the establishmentof the FRY, which are addressed in detail in Chapter Four,
these matters are addressedbriefiy below.
1. ThesituationinKosovopriorto 24 March1999
93. Prior to the dissolutionof the SFRY, under its 1974Constitution, Kosovo
was defined as an autonomous province withinSerbia, one of the six republics
comprising the SFRY. This status was in recognitionof the fact that some 90 per
cent of the populationof Kosovowas ethnicAlbanianin origin.
94. The situation in Kosovo became a matter of urgent internationalconcern
from at least 31 March 1998,the point at which the SecurityCouncil, acting under
Chapter VI1of the Charter, adoptedResolution 1160(1998) condemninginter alia
"the use of excessive force by Serbian police forces against civiliansand peaceful
demonstrators in Kosovo".77 By this resolution, the Council imposed an arms
embargo against the FRY and took various other steps designed to facilitate "a
7See paragrap41 above.
7SlRESll160, 31 March1998. (Annex6) ChapterThree
solution of the Kosovoproblem" in accordance with theproposals put forward by
the Contact Group of c~untries.~~The Council also requestedthe UN Secretary-
Generalto keep it regularly informedand to report on the situationin Kosovo.
95. In adopting Resolution 1160(1998), the SecurityCouncil was responding
to growing concernin the widerinternationalcommunityat the rapidly deteriorating
human rights situation in Kosovo, a matter addressed by, amongst others, the
Organisationfor Security andCooperationin Europe ("OSCE").79
96. Fursuantto the terms of Resolution 1160(1998), the UN Secretary-General
reported regularlyon the situa.tionin Kosovo. These reports mark a steady decline
in the human rights and humanitarian situationin Kosovo. Thus, in his initial
Report on 30 April 1998, the Secretary-General expressed concern "about the
deteriorating situation in Kosovo and the absence of progress in negotiations
betweenthe parties"
97. Reporting a month later, on 4 June 1998, the Secretary-Generalobserved
that
"the situation in Kosovo continuesto be extremely volatile and
shows marked signsof deterioration. The armed confrontation in
Kosovo has led to loss of life and there is serious risk of a
humanitarian and refugee crisis in the area. In this regard, the
most recent Serbian police offensive inKosovo is particular cause
for alarm. 1 am gravely concerned that themounting violence in
Kosovo rnight overwhelm political efforts to prevent further
escalationof the crisis. 1 deplore the excessiveuse of force by the
Serbian police in Kosovo and cal1upon al1parties concerned to
demonstrate restraint and commit themselves to a peaceful
solution.
98. The downwardspiral continued. Reportingon 2 July 1998, the Secretary-
General noted that "the situation inKosovo has deteriorated significantly since the
submissionof my last report" and that "[tlhe internationalcommunityis appalled by
" The Contact Groupwas composedof France, Germany, Italy, the Russian Federation, the United
Kingdomand the United States.
79 See, for examplDecision218on the situationin Kosovo,adoptedut the specialsessionof the
Permanent Counco ilf the Organisatior Securitand Cooperatioin Europe,on 11 March1998;
S119981246,17March 1998. (Annex7)
'OS119981361,30 April 1998,at paragraph 9. (Annex8)
" Sl19981470,4 June 1998,at paragraph46. (Annex9) Chapter Three
the continued violencein Kosovo".82Further deteriorationwas recorded in August
1998 .83 Reporting inSeptember1998,the Secretary-Generalnoted inter alia that
"[aln estirnated 600to 700 civilianshave been killedin the fighting
in Kosovo since March. The conflicthas resulted in the estimated
cumulativedisplacementof over 230,000 persons. "84
99. In the face of these Reports, the President of the Security Council issued a
Statement on 24 August 1998 in which the Council expressed its grave concern
"about the recentintense fightingin Kosovo which hashad a devastating impacton
the civilian population and has greatly increased the numbers of refugees and
displaced persons."85 This was followed,on 23 September1998,by the adoption of
Resolution 1199(1998)in which theCouncil againnoted its grave concern
"at the recent intense fighting in Kosovo and in particular the
excessive and indiscriminate use of force by Serbian security
forces and the Yugoslav armywhich have resulted in numerous
civilian casualtiesand, accordingto the estimateto the Secretary-
General, the displacement of over 230,000 persons from their
homes" .86
100. Expressing its alarm at the "impending humanitarian catastrophe", the
Council went on to affirm "that the deteriorationof the situation in Kosovo,Federal
Republic of Yugoslavia, constitutes a threat to peace and security in the region".
Acting under Chapter VI1of the Charter, the Council demanded inter alia that the
FRY "cease al1action by the security forces affecting the civilian population and
order the withdrawalof securityunitsused for civilian repression" .87
101. The Secretary-General's Reportof 3 October 1998signalled asharp decline
in the situation inKosovo:
"The desperate situation of the civilian population remains the
most disturbing aspect of the hostilities in Kosovo. 1 am
particularly concerned thatcivilians increasinglyhave become the
main target inthe conflict. ...
Sl19981608,2 July 1998,at paragraphs 10and 13 respectively. (Annex10)
83S119981712,5 August 1998. (Annex11)
84S119981834,4 September 1998, at paragra7. (Annex12)
8SlPRSTl1998125,24 August1998. (Annex13)
SIRES11199,23 September 1998. (Annex14)
8SIRES11199,23 September 1998, at paragrap4(a). (Annex14) Chapter Three
1 am outragedby reports of mass killings of civilians in Kosovo,
which recall the atrocities cornmittedin Bosnia andHerzegovina.
*.988
102. In the face of some progress towards a peaceful settlementof the situation
in Kosovo, the Security Council adopted Resolution1203 (1998) on 24 October
1998 endorsingand supporting agreementssigned betweenthe FRY and the OSCE
and the FRYand NATOconcerningthe verificationof complianceby the FRY and
others in Kosovo with the requirements of Resolution 1199 (1998). By this
Resolution, the Council, acting under Chapter VI1of the Charter, demanded "the
full and prompt implementationof these agreements by the Federal Republic of
Yugoslavia" .89
103. By late December 1998, these initiativestowards a peaceful settlementhad
al1but broken down. Reportingon Christmaseve, the Secretary-General notedthat
"the situation inKosovohas notsignificantly improvedand there are alarming signs
of potential deterioration" .gO By mid-January 1999, this "potential deterioration"
had become a reality. Reporting on 30 January 1999, the Secretary-General noted
inter alia that "[slince late December, more than 20,000 people have fled from
some 23 villages in the four rnunicipalitiesof Decane, Podujevo, Stirnljeand Suva
Reka" .9'Addressing thebroader picture, the Secretary-Generalwenton to note that
"[alt the start of 1999, UNHCR estimated that some180,000 civilians remained
displacedwithinKosovo,the vastmajorityof whomare KosovoAlbanians" .92
104. More troubling was the Secretary-General's assessment of the
transformationof the nature of the violencein Kosovo duringthe last weeks of 1998
and thefirst weeksof 1999:
"The most disturbing new element is the spread of violence in
Kosovo and the transformation of the nature of that violence.
Prior to the ceasefire hostilitieswere limited tocertain geographic
locations, with fluid lines of engagement, although sniperfire did
occur sporadically outside the discrete areas of encounter. In
many cases, the civilian population fledfrom threatened locations
to areas of perceived relative safety, some to urban areas within
Kosovo butmany others to exposed conditions withpoor access to
shelter and food. Following the ceasefire, many internally
R8S119981912,3 October 1998,at paragraphs 7-9. (Annex15)
X9SlRESl1203, 24 October 1998, atparagraph 1. (Annex16)
'OS1199811221,24 December 1998, at paragraph4. (Annex17)
91S11999199,30 January 1999, atparagraph25(Annex18)
92S11999199,30 January 1999,at paragraph 2(Annex18) Chapter Three
displaced persons began returning to their homes, but many
continue to express fear of government forces and pararnilitary
units in and around villages. Calculatedacts of violence followed
by retaliatory measures now occur frequently in citiesthat, until
winter, had been notably exempt from violence, even during the
influx of internally displacedpersons into urbanreas whose social
resources were already overtaxed. With the exceptionof some
isolated incidents, the resident communities of Kosovo's large
multi-ethniccities, where most of its population resides, have not
turned violently upon each other. However, targeted acts of
violence and growing expressions of public rage during the past
monthmight seriouslythreatenpeace in urban areas. "93
One of the worst examples of the atrocities comrnittedwithin this period
105.
was the massacre of 45 Kosovo Albanian civilians in the village of Racak on 15
January 1999.
106. In response to the eventsin Racak, the President of the Security Council
issueda Statementon 19January 1999 interaliain the followingterms:
"The Security Councilstrongly condemnsthe massacreof Kosovo
Albanians in the village of Racak in Southern Kosovo, Federal
Republic of Yugoslavia, on 15 January 1999, as reported by the
Organisation for Security and Cooperation in Europe (OSCE)
Kosovo Verification Mission(KVM). It notes withdeep concern
that the report of the KVM states that the victims werecivilians,
including women andat least one child. The Council also takes
note of the statement by the Head of the KVM that the
responsibility for the massacre lay with the Federal Republic of
Yugoslavia security forces, and that uniformed membersof both
the Federal Republic of Yugoslavia armed forces and Serbian
specialpolicehad been in~olved."~~
107. In the faceof this deteriorating situation,and in a further attempt toachieve
a peaceful resolutionto the situation in Kosovo, the Contact Group of countries
summoned representatives of the FRY and the Kosovo Albanian community to a
conference at Rambouillet, France in early February 1999. Followingintensive
negotiations both inRambouilleton 6-23 February 1999and subsequentlyin Paris
in mid-March 1999this peace initiative collapsed,the negotiations beingsuspended
on 19March 1999.
93S/1999/99, 30 January 1999, at paragraph4. (Annex 18)
94S/PRST/1999/2, 19January 1999. (Annex 19)
35 ChapterThree
108. Reportingon the situation inKosovoon 17March 1999, the UN Secretary-
Generalnotedinter aliathat
"[tlhe humanitarianand human rights situation inKosovo remains
grave. The general insecurity , combined with continuing and
unpredictable outbreaks of violence, has resulted in a cycle of
displacementand return throughoutKosovo. During the reporting
period, targeted killings of civilians , surnrnary executions,
mistreatment of detainees and new abductioncases were reported
almostdaily "95
109. Throughoutthe period under consideration,NATO worked closely with the
UN Security Council and Secretary-General and the OSCE in respect of the
situation in Kosovo. Thisinvolvementwas contemplatedby the Security Council
from the outset, albeit in general terms, in Resolution 1160 (1998) insofar as it
requested "the Secretary-General, in consultation with appropriate regional
organisations" to include in his first report on the situation in Kosovo
"recomrnendationsfor the establishmentof a comprehensive regimeto monitor the
iinplementationof the prohibitionsimposedby this resolution" .96
110. In responseto thisrequest, the Secretary-Generalnoted:
"1believe thatOSCE, with contributionsand assistancefrom other
regional organisations, as necessary, would be in a position to
carry out the requested monitoring functionseffectively. Those
regional organisations might include the European Union, the
North Atlantic Treaty Organisation,and the Western European
Union. "97
111. On the basis of further instructions from the Security Council, the UN
Secretary-Generalundertook adetailed consultativeexercise withthe OSCE, NATO
and other groups and organisationsdesignedto establisha comprehensiveregime to
monitor compliancewith Resolution 1160(1998). NATO played an integral role in
the mechanism that emerged from these consultations and in the wider process
aimedat achieving apeacefulresolutionof the situationin ~osovo.~*
95Sl19991293,17 March 1999, at paragraph4. (Annex20)
96SIRES11 160(1998), 31March 1998,at paragraph15.(Annex6)
97Sl19981361,30 April1998, at paragraph7. (Annex8)
98 See, for example, tKosovoVer@cation Mission Agreemen between NATO and theFRY of 15
October1998; S1199819912, 3October 1998 (Annex 21) and Annex II to the Report of the UN
Secretary-Generalof0January 1999;S119991993,0January 1999(Annex 18). Chapter Three
112. In the light of the sharply deteriorating situation in Kosovo and continued
non-complianceby the FRY with the requirements of Security Council Resolution
1199 (1998)and other relevantresolutions, NATO notifiedthe FRY on a number of
occasionsof its resolve to take militaryactionto addressthe situationin the event of
a continued failure by the FRY to fulfil its internationalcommitments. Thus, for
example, in a letter dated 30January 1999from the NATO Secretary-Generalto the
President of the FRY, NATO identified various steps required of the FRY to
address the situationin Kosovoand continued:
"Ifthese steps are not taken, NATO is ready to take whatever
measures are necessary in the light of both parties' compliance
with international commitmentsand requirements, including in
particular assessmentby the Contact Group of the response to its
demands, to avert a humanitarian catastrophe, by compelling
compliance with the demandsof the international communityand
the achievement of a political settlement. The Council has
therefore agreed today that the NATO Secretary-General may
authorise air strikes against targets on territory of the Federal
Republicof Yugoslavia. 'y99
113. In the light of the continuedfailure by the FRY to take steps to address the
situation in Kosovo, NATO commenced military action in the FRY on 24 March
1999. Following an agreementof 9 June 1999on inte arliathe phased withdrawal
of FRY forces from Kosov~,'~~ NATO suspended its military action on 10 June
1999. On the same day, the UN Security Council adopted Resolution 1244 (1999)
laying down the principles that were to apply to a political solution of the Kosovo
crisis.
2. Elements concerning the NATOactionin the FRY
114. NATO, a politicaland military alliance establishedin accordance with the
principles of the UN Charter, was created by the North Atlantic Treaty of April
1949. It is currently composed of 19 members - Belgium, Canada, the Czech
Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy,
Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey, the
United Kingdomandthe UnitedStates.
99S/1999/107*,3February 1999, atp.4, paragraph 5. (Annex22)
'"S/1999/682, 15June 1999. (Annex23) ChapterThree
115. NATO operates within a wider framework known as the Partnership for
Peace ("PfP") which comprises a further 27 co~ntries.'~'The PfP meets within the
framework of the Euro-Atlantic PartnershipCouncil on a regular basis as well as
under the auspices of the North Atlantic Council, the principal decision-making
organ of NATO.
116. Of the 19membersof NATO, 14participatedin some active manner in the
NATO military action inthe FRY. These includedthe UnitedStates, France, Italy,
the United Kingdom, Germany, the Netherlands, Turkey, Canada, Belgium,
Denrnark, Spain, Norway, Hungary and Portugal. The Belgiancontribution to the
NATO force amounted to approxirnately1.3% of total aircraft cornmitted. By
comparison to the Belgiancontribution, the United States, by a significant margin
the largest contributorto the NATO force, cornmittedsome 65%of total aircraft.
3. Developments subsequent to the cessation ofthe NATO action on 10
June 1999
117. On 10 June 1999, contemporaneously with thecessation of the NATO
military action, the UN Security Council, acting under Chapter VI1of the Charter,
adopted Resolution 1244 (1999). By this Resolution, the Council decided that "a
political solution to the Kosovo crisis shall be based on the general principles in
annex 1 and as further elaborated in the principles and other required elements in
7,102
annex 2 . The Security Council further decided "on the deploymentin Kosovo,
under United Nationsauspices, of international civil and security presences, with
appropriate equipmentand personnel as required ,.103 The Council went on inter
alia to:
(a> request the UN Secretary-Generalto appoint a Special Representative to
control the implementation of the international civil presence and to
coordinateclosely with the international securitypresence;lo4
'("These include Albania, Armenia, Austria, Azerbaijan, Belarus, Bulgaria, Croatia, Estonia,
Finland, Georgia, Ireland, Kazakstan,the Kyrgyz Republic,Latvia, Lithuania, Moldova, Romania,
Russia, Slovakia, Slovenia, Sweden, Switzerland, Tajikistant,he former Yugoslav Republicof
Macedonia, Turkmenistan,Ukraine and Uzbekistan.
'O'S/RES/1244, 10June 1999, at paragraph1. (Annex5)
'O3S/RES/1244, 10June 1999,at paragraph5. (Annex5)
'O4S/RES/1244, 10June 1999,at paragraph6. (Annex5) Chapter Three
(b) authorise Member States and relevant international organisations to
establishthe internationalsecurity presence in Kosovo as set out in point 4
of Annex2; 'O5and
(CI authorise the Secretary-Generalto establish an international civil presence
to promotesubstantial autonomy and self-governmenitn Koso~o.'~~
118. mirsuant to Annex2, point 3 of Resolution 1244(1999), agreement was to
be reached on the "[dleployment in Kosovo under United Nations auspices of
effective civiland securitypresences". By Annex2, point 4:
"[tlhe international security presence with substantial North
Arnerican Treaty Organisation participation must be deployed
under unified cornmand andcontrol and authorised to establisha
safe environrnentfor al1people in Kosovo andto facilitate the safe
return to theirhomesof al1displaced persons andrefugees. "
119. In accordance with the terms of this Resolution, the international civil
presence in Kosovo was established by the UN Secretary-General as the United
NationsInterimAdministration Mission in Kosovo ("UNMIK"). The structure, role
and responsibilitiesof UNMIK were laid out initiallyby the Secretary-Generalin a
Report of 12 June 19991°7and subsequently elaborated uponin two further Reports
of 12 July 19991°*and 16 September 1999.1°9 On 2 July 1999, the Secretary-
General indicated hisintentionto appoint BernardKouchnerof France as his Special
Representativeand headof UNMIK.l10 UNMIK's operational presence in Kosovo
is extensive.
120. In accordance with Resolution1244 (1999), the international security
presence in Kosovo was established pursuant to a Military-technical agreement
concluded betweenthe NATO military authoritiesand the FRY."' The force,
known as KFOR, is to "operate without hindrance withinKosovo and with the
authority to takeal1necessaryaction to establishand maintaina secure environrnent
for al1citizens of Kosovo andotherwisecarry out its mission 9,.12 KFOR's 50,000
'OSlRESl1244, 10June 1999,at paragraph 7. (Annex5)
IOSlRESl1244, 10June 1999,at paragraphs 10-11. (Annex5)
'OS119991672,12June 1999.
'OS119991779,12July 1999.
'OS119991987,16September 1999.
See S119991748,6 July 1999and S119991749,6 July 1999.
IlS119991682,15June 1999. (Annex23)
IlS119991682,15June 1999,at p.3, paragraph 2. (Annex23) ChapterThree
or so personnel are drawn from 39 States as follows: Argentina, Austria,
Azerbaijan, Belgium, Bulgaria, Canada, Czech Republic, Denrnark, Estonia,
Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy,
Jordan, Latvia, Lithuania, Luxembourg, Morocco, Netherlands, Norway, Poland,
Portugal, Romania, Russian Federation, Slovakia, Slovenia, Spain, Sweden,
Switzerland, Turkey, Ukraine, United Arab Emirates, United Kingdom and United
States. The Belgiancontingent inKFOR amountsto around 800personnel. ChapterFour
PARTII: OBJECTIONSTOJURISDICTION
CHAPTERFOUR: THE COURTIS NOT OPENTO THEFRY
121. In its Provisional Measures Order, the Court observed that it can exercise
jurisdiction "only between Statesparties to a dispute who not only have access to
the Court but also have accepted thejurisdiction of the Court, either in general form
or for the individual disputeconcerned 7.113 As this recognises,access to the Court,
or an entitlementto appear, is a condition precedentto any question arising as to the
Court'sjurisdiction in a particular case.
122. Access to the Court is controlledby the UN Charter and the Statute of the
Court. Pursuant to Article 93(1) of the Charter, "[al11Members of the United
Nationsare ipsofacto parties to the Statute" of the Court. Pursuant to Article 93(2)
of the Charter,
"[a] State which is not a member of the United Nations may
become a party to thc Statute of the InternationalCourt of Justice
on conditions to be determined in each case by the General
Assemblyupon the recornrnendationof the SecurityCouncil. "
123. In the lightof these provisions, the Statute lays down thecircumstances in
which the Court "shall be open" to States. Pursuant to Article 35(1) of the Statute,
the Court is open to "the Statesparties to the present Statute". Pursuant to Article
35(2), "[tlhe conditionsunder which the Court shall be open to other States shall,
subject to the special provisions containedin treaties in force, be laid down by the
Security Council" .
124. Acting pursuant to the powers conferred upon it by Article 35(2) of the
Statute, the Security Council adopted Resolution9 on 15 October 1946. This
requires thedepositof a declarationaccepting thejurisdictionof the Court as well as
compliancewithother specifiedconditions.
125. The institutionof proceedings by a state which is not party to the Statute
but which has accepted the jurisdiction of the Court by a declaration made "in
accordance with any resolution adopted by the Security Council" under Article
35(2) of the Statute is addressedby Article 41 of the Court's Rules. This provides
IlProvisionalMeasuresOrder,atparagraph20.
41 ChapterFour
that the institution of proceedings "shall be accompanied by a deposit of the
declaration in question, unless the latter has previously been deposited with the
Registrar" .
126. As these provisions make plain, accessto the Court by a state is dependent
upon (a) membership of the United Nations, or (b) the state in question being
otherwise a party to the Statute on conditions determinedby the General Assembly
upon the recommendationof rhe Security Council, or (c) in the case of a state not
party to theStatute, compliance with the termsof Article 35(2) of the Statute.
127. Of these bases of access to the Court, the FRY contends sirnplythat it is a
memberof the UnitedNations.
128. In Belgium's contention, the Court is not open to the FRY on any of the
bases just enurnerated. The FRY is not a memberof the United Nations. The FRY
is not otherwise a partyto the Statuteof the Court pursuant to Article 93(2) of the
Charter. The FRY has not depositeda declaration acceptingthe jurisdiction of the
Court pursuant to the terms of Article 35(2) of the Statute, Security Council
Resolution 9 (1946) andArticle 41 of the Court's Rules. Nor does the reference to
"treaties in force" in Article 35(2) of the Statute provide a basis of access to the
Court by the FRY in this case. Each of these elementsis addressedfurther below.
129. Absent an entitlement to appear, the Court lacks jurisdiction ratione
personae. As this is a condition precedentto any question arising as to the Court's
jurisdiction in a particular case, the questionof whether the Court has jurisdiction
rationemateriaeor rationetemporisdoesnot arise.
1. TheFRYis not a memberof the United Nations
130. The FRY asserts that it is a party to theStatuteof the Court.ll4 The basis
for this assertion is the contention that the FRY is a member of the United
~ations."' Although this is not expressly stated in the FRY'S pleadings, this
contention rests on the proposition that the FRY is the continuation of the former
Socialist Federal Republicof Yugoslavia("SFRY") and that, as such, it continued
IlFRYMemorial, at paragraph3.1.18.
IlFRYMemorial, Part3.1. ChapterFour
the UN membershipof the SFRY. Il6 The FRY advancesno other ground in support
of its claim of accessto theCourt.
131. Belgiumrejects the FRY'Sclaim to membershipof the UN. The FRY is a
new state. It is one amongstfive successor statesof the former SFRY. It is neither
the continuation nor the "sole successor" of the SFRY. In accordance with the
terms of the Charter, the establishedpractice of the Organisationand authoritative
comrnentary, new states must apply for membership. They cannot succeed to
membershipon the basis of the membershipof the state from which they emerged
or with which they were onceconnected. The long-standing practice of the
Organisation in this regard has been confirmed repeatedly in resolutions of the
Security Council and Genera! Assembly with respect to the position of the FRY.
Whatever the practical complicationsto which thisposition has given rise, whether
for reasons of pragmatism or oversight, the status of the FRY vis-à-visthe UN is
clear. The FRY is not a memberof the United Nations. It cannottherefore, on this
basis, be a party to the Statuteof the Court.
132. Membershipof the United Nationsis governedby Articles 3 and 4 of the
UN Charter. Article 3 addressesthe "original" membership ofthose states which
signed and ratified the Charter following the San Francisco negotiationsin 1945.
Article 4 addressesthe admission to membershipof al1other states.
133. Pursuant to Article 4(2), the admission to membership of any state
satisfying the requirementsof Article 4(1) "will be effected by a decision of the
General Assembly upon the recommendationof the Security Council". As this
makes clear, membershipof the UN is a matter of combined action by two of the
principal organsof the UN, SecurityCounciland the General Assembly. As the
Court observed in its Conditionsof AdmissionAdvisory Opinion, the "judgment of
the Organisation" which is at the core of the procedure admitting states to
membership "means the judgment of the two organs mentionedin paragraph 2 of
Article 4, and, in the last analysis, that of its Member~"."~ It is a solemn
responsibility. Itis a responsibility thatrequires two distinct affirmativeacts, both
of which "are indispensable toform the judgmentof the Organisationto which the
previous paragraphof Article 4 refer~.""~
IlSee, for example,S124073,6 June 1992,at p.2 (Annex24) and S124577,21 September 1992, at
p.2 (Annex25).
IlAdmissionof State to the United Nations(Charter,Article 4), Advisory Opinion:1.C.J. Reports
1948, p.57, at p.62.
IlCompetenceof the General Assembfor the Admissionofa Stateto the UnitedNations,Advisory
Opinion:1.C.J. Reports1950,p.4, at pp.7-8. ChapterFour
134. The issue before the Court is whether the FRY is a member of the UN
pursuant to these provisions. It is not, as hassometimesbeen suggested, a question
of the suspensionof the rights and privilegesof membership under Article 5 of the
Charter. Nor isit a questionof expulsion fromthe Organisationunder Article 6 of
the Charter. The FRY is not now, and hasneverbeen, a member of the UN.
The issues relevant to a considerationof this matter are addressed below
135.
under the followingheadings:
(a> the dissolution of the SFRY and the establishmentof the FRY as a new
state;
(b) the practice of the United Nations in respect of the admission to
membershipof newstates;
(CI the practice of the Security Counciland General Assembly in respect of
clairnsof successionta UN membershipby the FRY;
(d) the practiceof the UN Secretariat;
(e) the practice of other international organisations in respectof claims of
successionto membershipby the FRY;
(f) conclusions.
(a) The dissolutionof theSFRYand theestablishmentof the FRYas a new
state
136. "Yugoslavia", as the Kingdom of Serbs, Croats and Slovenes became
known in 1929, was an originalmember of the UnitedNations. By its Constitution
of 31 January 1946, "Yugoslavia"was declared to be composedof six republics:
Serbia, Croatia, Slovenia, Bosnia andHerzegovina, Macedonia and Montenegro.
Its name was changedin 1963 to the SocialistFederal Republicof Yugoslavia. The
status of the six republics of the SFRY was confirmed in Constitutions adoptedin
1963 and 1974.
137. Following the outbreak of hostilities in the SFRY and declarations of
independence by four of its constituent republics in 1991,119the European
Cornrnunityand its Member States conveneda peace conference to bring together
the Federal Presidencyand FederalGovernmentof Yugoslavia, the Presidentsof the
IlDuring 1991, declarations of independeof one form or another were made by Slovenia,
Croatia, MacedoniaandBosnia-Herzegovina.
44 ChapterFour
six Yugoslav Republics and representatives of the European Cornmunity and its
Member States. As part of this Conference on Yugoslavia, the participants
established an Arbitration Commission, composed of five eminent jurists, the
competenceof which was to decide on disputessubmittedto it by the parties and to
give advice on any legal question submitted to it by the Chairman of the
C~nference.'~' The arrangements establishingthe Arbitration Commission were
accepted by the six Yugoslav Republics at the openingof the Conference on
Yugoslavia on 7 September1991. 12'
138. In response to a request from the Chairman of the Conference on 20
November 1991 to consider inter aliawhether the SFRY had disintegrated as a
result of the declarations of independenceof four of its constituent republics, the
ArbitrationCommissionissued OpinionNo. 1 on 29 November1991 interalia in the
followingterms:
"1. The Commissionconsiders:
(a) that the answer to the question should be based on the
principles of public international law which serve to define the
conditionson which an entity constitutesa State; ...
2. The Arbitration Commissionnotesthat:
(a) - although the SFRY has until now retained its international
personality, notably inside international organisations, the
Republics haveexpressedtheir desire for independence;
...
(c) The recourse to force has led to armed conflict between the
different elementsof the Federation which hascaused the death of
thousandsof people and wrought considerabledestructionwithin a
few months. Theauthorities of the Federation and the Republics
have shown thernselvesto be powerless to enforce respect for the
succeeding ceasefire agreementsconcluded under the auspices of
the European Communitiesor the United NationsOrganisation.
3. Consequently,the ArbitrationCommissionis of the opinion:
- that the Socialist Federal Republic of Yugoslavia is in the
process of dissolution;.."'"
'*OSee96ZLR737, atp.738 andgenerallyZLRatVo1.92,pp.162et seq andVo1.96,pp.713etseq.
12'InterlocutoryDecision(OpinionsN., 9 and IO),4 July 1992, 92ZLR194, atp.197, paragraph
2.
'?'OpinionNo.1, 29 November1991, 92ER 162-166.
45 ChapterFour
139. Contributing to this process of dissolution, the Republics of Serbia and
Montenegro, by a Declarationof 27 April 1992, established the "Federal Republic
of Yugoslavia". The Declarationprovided interalia as follows:
"...the representativesof the peopleof the Republicof Serbia and
the Republicof Montenegro declare:
1. The Federal Republic of Yugoslavia, continuing the state,
international,legal and politicalpersonalityof the Socialist Federal
Republicof Yugoslavia,shallstrictly abideby al1the commitments
that the SFR of Yugoslaviaassumedinternationally,
Remaining bound by al1obligationsto international organisations
and institutions whose member it is, the Federal Republic of
Yugoslaviashall not obstructthe newly formed Statesto join these
organisations and institutions, particularlythe United Nations and
3123
its specialisedagencies....
140. As will be evident from its terms, the FRY, by this Declaration,purported
to be the continuation of the SFRY, including, implicitly, in respect of its
membership of international organisations, particularlythe United Nationsand its
Specialised Agencies. This claim to continuity between the SFRY andthe FRY
was, however, unequivocally rejected by the Arbitration Commission, by the
Security Council and General Assembly andby other internationalorganisations.
These elementsare addressedfurther below.
141. In the light of OpinionNo.1 and subsequent Opinionsof the Arbitration
Commission concerning the status of the four constituent Republics that had
declared independence,the Chairmanof the Conference onYugoslavia,on 18 May
1992, asked the Arbitration Commission whether theprocess of dissolution of the
SFRY couldbe regarded as complete. In response, the Commissionissued Opinion
No.8 on 4 July 1992interalia in the followingterms:
"1. In its Opinion No.1 of 29 November, the Arbitration
Commissionfoundthat:
- a State'sexistenceor non-existencehad to be establishedon the
basis of universally acknowledgedprinciples of international
law concerning theconstituentelementsof a State;
- the SFRYwas at that time a legal internationalentity but the
desire for independence had been expressed through
referendums in the Republics of Slovenia, Croatia and
'23S123877,5 May 1992. (Annex26) ChapterFour
Macedonia, and through a resolutionon sovereigntyin Bosnia-
Hercegovina;
- the composition and functioning of essential bodies of the
Federation no longer satisfied the intrinsic requirements of a
federal State regarding participationand representativeness;
- recourse to force in different parts of the Federation had
demonstratedthe Federation'simpotence;
- the SFRY was in the process of dissolution but it was
nevertheless upto the Republics which sowishedto constitute,
if appropriate, a new associationwith democratic institutionsof
their choice;
- the existence or disappearance of a State is, in any case, a
matter of fact.
2. The dissolution of a State means that it no longer has legal
personality, something which has major repercussions in
international law. It therefore callsfor the greatest caution.
The Commission finds that the existenceof a federal State,
which is made up of a number of separate entities, is seriously
compromised when a majority of these entities, embracing a
greater part of the territory and population, constitute themselves
as sovereign States with theresult that federal authority may no
longerbe effectivelyexercised.
By the same token, while recognitionof a State by other States
has only declarative value, such recognition, along with
membership of international organisations, bears witness to these
States' convictionthat the political entity so recognisedis a reality
and confers on it certain rights and obligationsunder international
law .
3. The ArbitrationCommissionnotes that since adopting Opinion
No. 1:
- the referendumproposed in OpinioN no.4was held in Bosnia-
Hercegovina on 29 February and 1 March: a large majority
voted in favourof the Republic'sindependence;
- Serbia and Montenegro, as Republics with equal standing in
law have constituted a new State, the 'Federal Republic of
Yugoslavia',and on 27 April adopteda new constitution;
- most of the new States formed from the former Yugoslav
Republics have recognisedeach other's independence, thus
demonstrating thatthe authorityof the federal State no longer
held swayon the territory of the newlyconstitutedStates;
- the common federal bodies on which al1 the Yugoslav
Republics were represented no longer exist: no body of that
type has functioned since;
- the former national territory and populationof the SFRY are
now entirelyunder the sovereignauthorityof the new States;
- Bosnia-Hercegovina, Croatia and Slovenia have been
recognised by al1 the Member States of the European ChapterFour
Community andby numerous other States, and were admitted
to membershipof the United Nationson 22 May 1992;
- UN Security Coiincil Resolutions Nos.752 and 757 (1992)
containa numberof referencesto 'theformer SFRY' ;
- what ismore, ResolutionNo.757 (1992) notesthat 'the clairn
by the Federal Republic of Yugoslavia (Serbia and
Montenegro)to continue automatically(the membership)of the
former Socialist FederalRepublicof Yugoslavia(in the United
Nations)has not been generallyaccepted';
- the declarationadoptedby the Lisbon European Councilon 27
June makesexpress referenceto 'theformer Yugoslavia'.
4. The ArbitrationCommissionis thereforeof the opinion:
- that the process of dissolution of the SFRY referred to in
OpinionNo.1 of 29 November 1991is now complete and that
the SFRYno longer e~ists."'~~
142. As thisOpinion makesclear, the dissolutionof the SFRY did notresult in a
legal vacuumin the territory previously comprising the SFRY - viz., "the former
national territory and populationof the SFRYare now entirely under the sovereign
authorityof the new States".
143. The emergence of, and relationship between, the "new" states was
addressed by the Arbitration Commission in OpinionNo.9 of 4 July 1992 in the
context of its response to the questionof how issuesof successionshouldbe settled
betweenthe various successor states.
"New States have been created on the territory of the former
SFRY and replaced it. Al1 are successor States of the former
SFRY.
...
The ArbitrationCommissionis thereforeof the opinion that:
- the successor Statesto the SFRY must together settle al1
aspectsof the successionby agreement;
...
- the SFRY'smembershipof international organisationsmust
be terminated according to their statutes and that none of
the successor States may thereuponclaimfor itself alone
the membershiprightspreviously enjoyed by the former
SFRY; ..."125
144. Belgium draws particular attentionto the italicisedpart of OpinionNo.9
just cited to the effect that, in the view of the Arbitration Commission,none of the
'24OpinionNo.8, 4 Jul1992,92ZLR 199-202.
Iz5OpinionNo.9, 4 Jul1992,92ZLR 203-205,at paragraphs 1and 4 (emphasisadded). ChapterFour
new states emergingfrom the former SFRY could clairnto be the successor to the
SFRYin respectof membership in internationalorganisations.
145. Addressing thespecificquestion of whether theFRY wasto be considered
a new state, the Arbitration Commission, in Opinion No.10 of 4 July 1992,
concluded inter alia that "the FRY (Serbia and Montenegro) is a new State which
cannotbe considered the solesuccessorto the SFRY" .'26
146. The principal conclusions, for present purposes,which emerge for the
Opinionsof the ArbitrationCommissionmaybe summarisedas follows:
the SFRY - ie, the statethat was an originalmember of the United Nations
(a)
-ceasedto exist;
(b) the critical element leading to the dissolution of the SFRY was the
constitution of the majority of the republics comprising the SFRY as
independent sovereign states, the republics in question "embracing a
greater part of theterritory and population'' of SFRY;
(cl the SFRY was replaced by new States,al1of which are successors to the
former SFRY;
(dl as with the other successorstates, the FRY is a new state and cannot be
considered the sole successorof the SFRY; and
(el none of the successor states may claim for itself alone the membership
rights of the SFRYin any internationalorganisations.
147. The conclusionsof the ArbitrationCommissionare not, of course, binding
upon the Court. They are, however, in Belgium'scontention, of very particular
importance in the present context as they constitute theessential legal framework
within which on-going attemptshave been taking place to address the difficult
questions raised by the dissolution of the SFRY. They form, for example, an
essential legal basis of the negotiations between thesuccessor states on such
questions as their successionto the property, archives, assets and liabilities of the
SFRY. The conclusionsof the Arbitration Commission, as withother principles to
emerge from the negotiations within the framework of the Conference on
Yugoslavia, are thus part of a delicate balance of relations between the various
successorstates.
126Opinio No.IO,4July 1992,in 9ZLR 206-208atparagraph5.
49 ChapterFour
(b) The practice of the United Nations in respectof the admission to
membershipof new states
148. The admission to membership of the United Nationsof new states is in
principle governed by Article 4 of the Charter. As previously described, this
establishes boththe conditionsthat mustbe fulfilled before a stateanbe admitted to
membership and a two-stage procedure for admission involving a recommendation
by the Security Counciland a decisionby the General Assembly.
149. Virtually from the oiltset, questions havearisen concerning succession to
UN membership in cases of secession from, or the partition or dissolution of,
existing members. Although the circumstances of such cases have varied
considerably, the basicprinciple underpinningthe practiceof the UN is that, while a
state which constitutesthe continuationof the pre-existing legalperson will retain its
UN membership, new statesemerging in such circumstances must applyfor and be
admittedto membershipin accordancewith the procedure set out in Article 4 of the
Charter. A new state cannot, in otherwords, succeed tomembershipof the United
Nations.
150. This principle first emerged from the circumstances surrounding the
establishment of Pakistan as a new state on its separation from India in 1947.
Addressing this situation, the UN Assistant Secretary-General for Legal Affairs
noted interalia:
"Pakistan will be a gew non-member State. In order for it to
become a Member of the United Nations, it would have to apply
for admission pursuant to Article 4 of the Charter, and its
application would be handled under the pertinent rules of
procedure of the GeneralAssembly andthe Security C~uncil."'~~
151. In the light of further discussionon this matter, the Sixth Cornmitteeof the
General Assembly was asked to consider "the legal rules to which ...a State or
Statesentering into internationallife through the divisionof a Member State of the
United Nations shouldbe s~bject".'~~In response, the Sixth Cornmitteeagreed on
the following principles:
12Legal Opinion of 8 August 1947by the Assistant Secretary-General for Legal Affairs; set out in
Document AlCN.41149 and Add.1, Thesuccessionof Statesin relationto membershipin the United
Nations:memorandumpreparedby theSecretariat,YILC (1962)Vol.11,p.101, at p.102.
IzThesuccessionof Statesin relationto membershipin the UnitedNations:memoraprepared
by theSecretariat,ibid, at p.103, paragraph 14. ChqpterFour
"1. That, as a general rule, it is in conformity with legal
principles to presume that a State which is a Member of the
Organisationof the United Nations does not cease to be a Member
simply because its Constitutionor its frontier have been subjected
to changes, and that the extinction of the State as a legal
personality recognised in the international order must be shown
before its rightsand obligationscan be considered therebyto have
ceasedto exist.
2. That whena new Stateis created, whateverrnaybe the
territoryand thepopulations whichit comprisesand whether or
not theyforrnpart of a State Mernberof the UnitedNations, it
cannot under the systernof the Charterclairnthe status of a
Memberof the UnitedNations unless it hasbeen forrnallyadrnitted
as suchin conformi@ withtheprovisionsofthe Charter.
3. Beyond that, each case must be judged according to its
merits.
152. With due regard to the appreciation that each case mustbe judged on its
own merits, the principle that new states cannot succeedto UN membership but
must apply for and be admitted to membershipin accordance with the terms of
Article 4 of theCharter has been theguidingprinciplesince 1947.
153. An exampleof the applicationof this principle in circumstances whichmost
closely approxirnates that involving the SFRYis that of Czechoslovakia, also an
originalmember of the United Nations. 011the dissolutionof Czechoslovakiaon 31
December 1992,both successorstates, the CzechRepublic andthe SlovakRepublic,
applied for and were admittedto membershipas new states on 19 January 1993 in
accordance with Article 4of the Charter.
154. The principlethat new statescannot succeed tomembershipof international
organisations by reason of the fact of the membershipof the state of which they
were once a part or from which theyemerged is also reflected in the work of the
InternationalLaw Commissionin the contextof its Draft Articles on the Succession
of Statesin Respectof Treaties. Although theDraft Articles - which formed the
basis of the 1978 Vienna Convention onSuccessionof StatesinRespectof Treaties -
did not address the subject of succession to membership of international
A/C.1/212; GAOR,SecondSession, First Committee, pp.582-583,annex 14g; reproducedin The
successionof States in relationto membershipin the United Nations: memorandumby theed
Secretariat,.&. note 127,atpp.103-4, paragraph 16 (empsdded). ChapterFour
organisations, the issue was addressed in the Commission's commentaryto draft
Article4 in the followingterms:
"(2) International organisations take various forms and differ
considerably in their treatment of membership. In many
organisations, membership other than original membership, is
subject to a forma1 process of admission. Where this is so,
practice appearsnow to have established theprinciple that a new
State is not entitled automatically to become a party to the
constituent treaty and member of the organisation as a successor
State, simplyby reason of the fact that at the dateof the succession
its territory was subject to the treaty and within thembit of the
organisation. The leading precedent in the development of this
principle was the case of Pakistan's admission to the United
Nations in 1947. The Secretariat then advised the Security
Council that Pakistan should be consideredas a new State formed
by separation from India. Acting upon thisadvice, the Security
Council treated India as a continuing member, but recommended
Pakistan for admission as a new member; and after some debate
the General Assembly adopted this solution of the case.
Subsequently, the general question was referred to the Sixth
Committeewhich, inter alia, reported:
2. That when a new State is created, whatever may be the
territory and the populations which it comprises and whether or
not they form part of a State Member of the United Nations, it
cannot under the system of the Charter claim the status of a
Member of the United Nations unless it has formally been
admittedas such in conformitywiththe provisionsof the Charter.
New States have, therefore been regarded as entitled to become
members of the United Nations only by admission, and not by
succession. The sarne practice has been followed in regard to
membership of the specialised agencies andof numerous other
organisations.
(3) The practice excludingsuccessionis clearest in cases where
membershipof the organisation is dependenton a forma1process
of admission,but it is notonfinedto them."'30
155. As the precedingsectïonin this part describes,clairnsby theFRY to be the
continuationor sole successorof the SFRY - and, as such, to have succeededto its
membership of the UN - were unambiguously rejected by the Arbitration
Commission of the Conference on Yugoslavia.It has been a cornerstone of the
I3OSuccessionof States: SucceinRespectof Treaties,Report of the Commissionto the General
Assembly, YILC, 1972,ol.11,p.223, at p.233. ChapterFour
response of the international community to eventsin the former SFRY that the
republics, once partof the SFRY, that emergedto independencein the period 1991-
92 were al1new states and were al1equal successors of the former SFRY. This
characterisationwas explicitly affirmedby the Arbitration Commissionin respect of
the FRY in itsOpinionNo.10.
156. As has also been mted, one of the fundamental consequences of this
appreciationwas the assessmentby the ArbitrationCommissionthat none of the new
states could claim for itself the membership rights in international organisations,
includingthe United Nations, previously enjoyedby the former SFRY. As has been
described in this section, this conclusion corresponds to the practiceof the United
Nationsin relation to theadmissionof new states to membership.
157. The Arbitration Commission's assessment that the FRY was a new state,
and that, assuch, it could notsucceedto the UN membershipof the SFRY, mirrors
the approach adopted by the SecurityCouncil and General Assembly, the relevant
UN organs concernedwith questionsof membership. This element is addressed in
the following section.
(c) The practiceof theSecurityCounciland GeneralAssemblyin respect of
claims of successionto UNmembershipby theFRY
158. mirsuant to applicationsfor membershipin accordance with Article4(1) of
the Charter, Bosnia-Herzegovina, Croatia and Slovenia were admitted to
membershipof the United Nations on 22 May 1992 followingrecommendations by
the Security Council and decisions of the General Assembly in accordance with
Article4(2). Macedonia was admitted to membershipof the UN pursuant to the
same procedure on 8 April 1993under the provisionaldesignation of "the former
YugoslavRepublicof Macedonia".
159. As regards FRY membershipof the United Nations,the SecurityCouncil,
on 30 May 1992, in the course of Resolution 757 (1992) imposing economic
sanctions against the "FederalRepublic of Yugoslavia (Serbia andMontenegro)",
noted inter alia
"that the claimby the Federal Republicof Yugoslavia (Serbiaand
Montenegro) to continue automaticallythe mernbership of the ClzapterFour
former Socialist Federal Republic of Yugoslavia in the United
Nations has not beengenerally accepted" .13'
160. This rejection by the Security Council of FRY succession to the UN
membershipof the SFRYwas a reaction to the Declaration establishing theFRY of
27 April 1992and its purported continuationof the SFRY's UN membership. As
the quoted paragraph indicates,the SecurityCouncil was also acting in the face of
opposition amongst UN members to the FRY'Sclaim to continue the SFRY's UN
membership. By way of example of such opposition, Austria, in a communication
to the UN Secretary-Generalof 5 May 1992, commented: "There is no legal basis
for an automatic continuationof the legal existenceof the former SocialistFederal
Republic of Yugoslavia by tlie Federal Republic of Yugoslavia, which therefore
cannot be considered to continue the Yugoslav membership in the United
Nations. "'32
161. By way of further example, and of particular significancegivenits status as
one of the successor Statesof the former SFRY, Slovenia, in a communication of27
May 1992, addressedthe matter inter aliain the followingterms:
"Serbia and Montenegro - two of the Republics of the former
Socialist Federal Republicof Yugoslavia - opted for the creation
of a common State, currently called the 'Federal Republic of
Yugoslavia'. It is beyonddoubtthat theyhave theright to create a
new commonState. However, that right does not provide Serbia
and Montenegro with any title of right either to continuity of the
internationalpersonality of the former Socialist Federal Republic
of Yugoslaviaor to the membershipof the former Socialist Federal
Republicof Yugoslaviain internationalorganisations. ...
Since the dissolution of the former Socialist Federal Republic of
Yugoslavia, some of its successor States havealready become
members of certain international organisations, including the
United Nations. This process will continue. It would be only
correct to terminate the membership of the former Socialist
Federal Republic of Yugoslavia in al1internationalorganisations,
on grounds of its dissolutionand non-existence. Moreover, al1the
Republics of the former Socialist FederalRepublic of Yugoslavia
that so wish should, as equal successor States of the former
Socialist Federal Republicof Yugoslavia, become candidates for
13'SlRESl757, 30 May 1992. (Annex27)
13S123876,5 May 1992, at p.2. (Annex28) ChapterFour
membership in these organisations, in accordance with their
pertinent rules on membership. "133
162. Resolution757 (1992)was followed, on 25 August 1992, by the adoption
of Resolution 461242by the General Assembly in which the Assembly noted inter
alia "that a large number of States have reserved their position regarding the
successionof the Socialist FederalRepublic of Yugoslaviaby the Federal Republic
of Yugoslavia (Serbiaand Montenegro)". 134
In the light of continuedoppositionto automaticsuccessionby the FRY to
163.
the UN membershipof the SFRY, the SeclirityCouncil returned to the question on
19 September 1992, addressing the matter expresslyin Resolution 777(1992) in the
following terms:
"TheSecurityCouncil,
Reaflrmingits resolution 713(1991)of 25 September1991and al1
subsequentrelevantresolutions,
Consideringthat the Stateformerly known as the Socialist Federal
Republicof Yugoslavia has ceasedto exist,
Recallingin particular its resolution 757 (1992) whichnotes that
'the clairn by the Federal Republic of Yugoslavia (Serbia and
Montenegro) to continue automatically themembership of the
former Socialist Federal Republic of Yugoslavia in the United
Nationshas not beengenerallyaccepted',
1. Considersthat the Federal Republic of Yugoslavia(Serbia and
Montenegro)cannot continue automatically the membershipof the
former Socialist Federal Republic of Yugoslavia in the United
Nations; and therefore recommendsto the GeneralAssemblythat it
decide that the Federal Republic of Yugoslavia (Serbia and
Montenegro) should apply for membership in the United Nations
and that it shall not participate in the work of the General
Assembly ;
2. Decidesto considerthe matter againbefore the endof the main
part of the forty-seventhsessionof the General Assembly. "13'
-- - -
'33Sl24028, 28 May1992,at p.3. (Annex29)
134GA Resolution461242, 25August 1992. (Annex30)
13'SlRESl777, 19September 1992. (Annex31) ChapterFour
164. In the light of the recommendationof the Security Council, the General
Assembly,on 22 September 1992,adopted Resolution 4711in the followingterms:
"TheGeneralAssemhty
Havingreceivedthe recommendationof the Security Councilof 19
September 1992 that the FederalRepublic of Yugoslavia (Serbia
and Montenegro) should apply for membership in the United
Nations and that it shall notparticipate in the workof the General
Assembly ,
1. Considersthat the Federal Republicof Yugoslavia(Serbia and
Montenegro) cannot continueautomatically themembershipof the
former Socialist Federal Republic of Yugoslavia in the United
Nations; and therefore decides that the Federal Republic of
Yugoslavia(Serbia and Montenegro)should applyfor membership
in the United Nations andthat it shall notparticipate in the workof
the GeneralAssembly;
2. Takesnote of the intentionof the SecurityCouncil to consider
the matter again before the end of the main part of the forty-
seventhsessionof the GeneralAssembly.
165. In acting in this manner, the Security Council and General Assembly
adopted the procedure laid down in Article 4(2) of the Charter concerning
membership.
166. Speakingin the debate in the GeneralAssemblythat preceded the adoption
of this Resolution,Mr Milan Panic, the then Prime Ministerof the FRY, appearing
to accept that the FRYcould not be considered to have succeeded tothe UN
membershipof the former SFRY, stated:
"1herewith formallyrequest membershipin the United Nations on
behalf of the new Yugoslavia, whose Government 1 represent. 1
am certain that my country and my Government satisfy the
conditions for membership at least as well as the countries and
Governments manyhere today represent.
167. This statement wasnot, however, followedup by a forma1application for
admission tomembershipby tlieFRY.
'36GA Resolution4711,22 September1992. (Annex32)
13'Al47lPV.7, 22 September1992,at p.149. (Annex33) ChapterFour
168. The SecurityCouncil returnedto the matter of the status of the FRY within
the UN in Resolution 821 (1993) of 28 April 1993. Recallingits Resolution 777
(1992)and GeneralAssemblyResolution4711,the Council interalia
"[r]eafSlrm[ed t]at theFederal Republicof Yugoslavia(Serbiaand
Montenegro)cannot continue automatically the membershipof the
former Socialist Federal Republicof Yugoslavia in the United
Nations; and therefore recornmend[ed] to the General Assembly
that, further to the decisionsaken in resolution4711,it decidethat
the Federal Republicof Yugoslavia (Serbia andMontenegro) shall3,138
not participatein the work of the Economic and SocialCouncil .
169. In the light of this recomrnendation, the General Assembly adopted
Resolution471229on 29 April 1993in the followingterms:
"TheGeneralAssembly,
Recalling its resolution4711 of 22 September1992,
Having received the recommendationmadeby the Security Council
in its resolution 821 (1993) of 28 April 1993that, further to the
decisions taken in resolution 4711, the Federal Republic of
Yugoslavia (Serbiaand Montenegro) shall not participate in the
work of the Economic and SocialCouncil,
1. Decides that the Federal Republic of Yugoslavia (Serbia and
Montenegro)shallnot participatein the work of the Economicand
Social Council;
2. Takes note of the intentionof the SecurityCouncil to consider
the matter again before the end of the forty-seventh sessionof the
GeneralAssembly ."
170. In view of some continuing ambiguityin the defacto working status of the
FRY withinthe UN (addressedfürther below), the General Assembly, inResolution
48/88 of 20 December 1993
"[r]eaffirm[ed] its resolution 4711 of 22 September 1992, and
urge[d] Member Statesand the Secretariatin fulfillingthe spirit of
that resolution to end the defacto working status of the Federal
Republicof Yugoslavia (Serbia and monte ne gr^)."'^
13S/RES/821,28 April1993,atparagraph1. (Annex34)
13GA Resolution471229,29 April1993. (Annex35)
I4GA Resolution48/88, 20 December1993,atparagraph19. (Annex36) ChapterFour
171. In Belgium's contention, the resolutions of the Security Council and
General Assemblynoted above leave no room for doubt that, in the appreciation of
the Organisation, as expressedby its principal organscharged with responsibility in
this area, the FRY couldnot - and did not - succeedto the UN membership of the
former SFRY. The language of the resolutions is unambiguous - "the Federal
Republic of Yugoslavia (Serbia andMontenegro) cannot continue automatically the
membership of the former Socialist FederalRepublic of Yugoslavia in the United
Nations ...the Federal Republic of Yugoslavia (Serbia andMontenegro) should
apply for membership in theUnitedNations."
172. As the FRY has not been admitted to membershipin accordance with the
procedure setout in Article 4 of the Charter, there is no basis for the claim that the
FRY is a memberof the UN.
173. Before leavingthis section, a concluding observation is necessary. The
resolutions set outboveaddressthe claimby the FRY tohave succeededto the UN
membershipof the former SFRY. Theirfocus was thus the status of the FRYin the
UN. While the underlying premisewas that the SFRYhad ceased to exist, the
resolutions did not address the status of the SFRY, or "Yugoslavia" as it was
invariably referred to, in the UN. They did not, for example, purport to terminate
the membershipof "Yugoslavia". SFRYmembershipof the UN was thus formally
left unaffectedby the resolutions in question.
174. In the normal courseof events, the terminationof the UN membership of a
state that has dissolved willoccur by operation of law, lapse of tirne and, where
relevant, the admission to membershipof the new states that comprised the
constituent parts of the former member (as in the case of Czechoslovakia). In the
case of the SFRY, however, the matter was more complex. The failure by the
successor states toresolve fundamental issuesof successionarising from theSFRY's
dissolution suggested that, for forma1purposes, some conception of the SFRY
remained extant. This, in the perceptionof some, combined withthe silence on the
matter of the SFRY's statuswithin the UN by the SecurityCouncil and the General
Assembly, has resulted in the anomalous positionof the apparent continued UN
membershipof the SFRY.
175. It is undeniable that acertain amountof confusion has been causedby this
situation. The anomalousposition of the SFRY withinthe UN is clearly a matter
that will have tobe addressedby the Organisationin due course. It is equally clear, ChapterFour
however, that the two issues - the figmentof continuedmembership of the SFRY
and the status of the FRY within the UN - are distinct. The anomalousposition of
the SFRYwithin the UN cannot provide a foundationfor the claim by the FRY to
have succeededto the membershipof the SFRY.
(d), Thepracticeof the UNSecretariat
176. In its Memorial, the FRY refers to various aspects of the practice of the
UN Secretariat in respect of the FRY - opinions from the Officeof the UN Legal
Counsel, certain aspects relating to the practice of the Secretary-General in his
capacity as depositaryof multilateral treatiesand the Secretariat'sassessmentof the
FRY for contributions. This practice is cited in support of the proposition that the
FRY is a member of the UN.
177. A number of observationson this material and on the conclusion advanced
on the basis thereofare warranted. First, as has already been noted, there is no
doubt that a certain amount of confusion has arisen as a result of the anomalous
positionof the SFRY within theUN. As has also been noted, however, the issue of
the status of the SFRY within the UN is distinct fromthat concerning the status of
the FRY. The anomalous position of the SFRY cannot.therefore provide a
foundation for the clairn by the FRY to have continued to the SFRY's UN
membership.
178. Second, far from supportingthe FRY'Sclaim to havesucceededto the UN
inembershipof the SFRY - and contrary to the interpretationadvancedby the FRY
in its Memorial - the observationsof the UN Legal Counsel of 29 September 1992
on certain questions arisingfrom the adoptionof General AssemblyResolution 4711
affirm that a distinction isto be drawn between the UN membershipof the SFRY,
under the name "Yugoslavia", and the position of the FRY. Thus, having noted
that "the General Assembly has stated unequivocallythat the FederalRepublic of
Yugoslavia (Serbia andMontenegro)cannot automaticallycontinue the membership
of the Socialist FederalRepublic of Yugoslaviain the United Nations andthat the
Federal Republicof Yugoslavia (Serbiaand Montenegro) should apply for
membershipof the United Nati~ns",'~'the Legal Counselwent on to state:
"On the otherhand, the resolutionneither terminatesnor suspends
Yugoslavia 'smembershipin the Organisation. Consequently ,the
14'A/47/485,30 September 1992, atp.2, third paragraph (emphasisadded). (Annex37)
59 ChapterFour
seat and nameplate remain as before, but in Assembly bodies
representatives of theFederalRepublicof Yugoslavia (Serbia and
Montenegro) cannot sit behind the sign 'Yugoslavia'. ...The
admissionto the United Nationsof a new Yugoslavia under Article
4 of the Charter will terminate the situation created by resolution
4711."'42
179. As these extracts indicate, a clear distinction was made by the Legal
Counsel between "Yugoslavia" - ie, the SFRY, being an original member of the
UN whose membershipremained unaffectedby Resolution4711 - and the "Federal
Republicof Yugoslavia (Serbiaand Montenegro)". Significantly, the LegalCounsel
also expressly contemplated the admissionto the UN "of a new Yugoslavia under
Article 4 of the Charter", a reference to possible FRY admission to the UN. By
necessaryimplication,the FRY was not then a member of the UN.
180. The same distinctionbetween "Yugoslavia" and the FRY was preserved in
the letter by the Acting Director of the Officeof the Legal Counsel reproduced as
AnnexNo.167to the FRY'sMemorial.
181. Third, whether for reasons of pragmatism in the face of the delicate
situation in the Balkansor of oversight, the confusioncaused by the figment of the
continued UN membership of the SFRY, combined with the absence of SFRY
representation, allowed the FRY to assume the guise of the SFRY for various
purposes. So, for example, UN documentscirculated to "Yugoslavia" and sent to
the lastknown address of the "Yugoslav" missionto the UN, were received by the
FRY as the occupantof that premises. Similarly, assessed contributionsin respect
of "Yugoslavia"were received, and on occasion actedupon, by the FRY.
182. The confusion thathas arisen as a result of this situation isregrettable and,
as has already been observed, will have tobe addressedby the Organisationin due
course. This practice cannot, however, providea foundationfor the FRY'sclaim to
UN membership. It is, in the first instance, practice which, withinthe arnbit of
operation of the UN, is relatively limited in scope. More fundamentally,
membership of the UN is not a de facto affair. It is governed by theCharter. It
involvesa formal, twofoldprocedure requiring affirmative actsof both the Security
Council and the General Assembly, actswhich are predicated on compliance with
procedural and substantiveconditionsby an applicant. It involves the exercise of
"the judgment of the Organisation". It also has legal consequences entailing
14*A/47/485, 30 September 1992,at pp.2-3, fourthparagraph (emphasisadded). (Annex37)
60 ChapterFour
obligations as well as rights, both vis-à-visthe Organisationand its members.N
membership isnot therefore something thatcan arise enpassant as a result of some
passing contact between astate and the Organisation. Itis certainly not something
that can arise by reference to the practice of the Secretariat in the face of
unambiguous resolutionsto the contrary by the two principal organs chargedunder
the Charterwith actionin respectof membership.
Thepractice of other international organisationisn respect of claims of
(e)
succession to mernbershipby theFRY
183. The approachadoptedby the SecurityCounciland GeneralAssemblyto the
succession of the FRY to UN membership is mirrored by that taken by other
international organisationsand bodiesof whichthe SFRYwas a member in the face
of claims by the FRY to have succeeded to SFRY membership. The following
examplesillustratethe general practice.
(i) WorldHealthOrganisation
184. In the face of claims by the FRY to have succeededto membershipof the
World Health Organisation ("WHO"), the World Health Assembly adopted
ResolutionWHA46.1on 3 May 1993 in thefollowingterms:
"The Forty-sixthWorldHealthAssembly,
Recallingresolution4711of the United NationsGeneral Assembly
- upon the recornrnendation of the Security Council of 19
September 1992 (SlRESl777) - of 22 September 1992, in which
the General Assembly considered that the Federal Republic of
Yugoslavia (Serbia and Montenegro) cannot automatically the
membership of the former Socialist Federal Republic of
Yugoslavia in the United Nationsand decided that the Federal
Republicof Yugoslavia (Serbia and Montenegro) should apply for
membershipin the United Nationsand that it shall notparticipate
in the work of the GeneralAssembly,
1. CONSIDERS that the Federal Republic of Yugoslavia
(Serbia and Montenegro) cannot continue automatically the
membership of the former Socialist Federal Republic of
Yugoslaviain WHO;
2. DECIDESthat the FederalRepublicof Yugoslavia(Serbia
and Montenegro) should applyfor membershipin WHO pursuant ChapterFour
to the relevant provisions of the Constitutionof the World Health
Organisation and that it shall not participate in the work of the
principal and subsidiaryorgans of WHO, including theForty-sixth
World HealthAssembly " 143
185. Pursuant to the termsof this Resolution,the FRY is not a memberand does
not participate in the work of the WHO. Slovenia, Croatia, Bosnia-Herzegovina
and Macedonia each applied for and were admittedas members of the WHO in
accordance withthe relevant provisionsof the WHO Constitution. As in the case of
the UN, "Yugoslavia" continues to be referred to in WHO documentation and to
feature in certain forma1elements of WHO practice, eg, the flying of members'
flags and the use of members' nameplates. TheFRY does not participate as
"Yugoslavia" in respectof suchmatters .
1
(ii) International LabourOrganisation
186. In the face of claims by the FRY to have succeeded tomembership of the
International Labour Organisation ("ILO"), the Governing Body of the IL0
addressed the participation of the FRY in the 80thSession of the International
Labour Conferencein the followingterms:
"The Governing Body [instnicts]the Director-Generalto take no
action as regards the invitationto the 80thSession (1993) of the
International Labour Conference of the Federal Republic of
Yugoslavia (Serbia and Montenegro) or with regard to any
credentials submittedon behalf of that State at the80" Session of
the Conferencenotwithstanding the absenceof such an invitation,
as long as that Statehad not been recognisedby the United Nations
as the continuation of the former Socialist Federal Republic of
Yugoslaviaor admittedto the International Labour Organisation as
a new Member " 14'
187. The decision to preclude FRY participation in the International Labour
Conferencewas renewed indefinitely the following year. 145 Subsequentattempts by
the FRY to participate in the work of the International Labour Conferencewere
143WHA46.1, 3 May 1993. (Annex38)
144SecondReportof the Oflcers of the GoverningBody:Participationof the FederalRepublicof
Yugoslavia (Serbiaand Montenegro)at the 80h Session (1993) of the InternationalLabour
Conference,IL0 Officia1Bulletin,Vol.LXXV1,SeriesA, 1993,at pp.129-130. (Annex39)
145IL0 Officia1Bulletin,Vol.LXXVI1,SeriesA, 1994,at pp.166-7. (Annex40) Chapter Four
rejected on the basis of this de~isi0n.l~~ As with the International Labour
Conference, the FRY is precluded from participating in the work of IL0
coinmittees. Slovenia, Croatia, Bosnia-Herzegovinaand Macedonia each applied
for and were admitted as members of the ILO. As in the case of the UN,
"Yugoslavia" continuesto be referred to in IL0 documentation. The use of this
name is, however, explained in the IL0 circular listing IL0 member countries as
follows:
"Specialcases
...
Yugoslavia
7. The FederalRepublicof Yugoslavia (i.e. the territory of Serbia
and Montenegro) is still not recognised as continuing
automatically the membershipof the former Socialist Federal
Republic(SFRY)in the ILO.
Information fromor about the Federal Republicof Yugoslavia
should therefore use that name rather than Yugoslavia, which
is used torefer to the former SFRY. "'47
188. Of general significance is the explanatory noteintroducing this circular
which Statesinteralia as follows:
"This circular gives the standard office nomenclaturerelating to
country and area designations which must be used in a IL0
publications and documents. Then3148clature ...is in line with
currentUnitedNations practice ...
(iii) InternationalMaritimeOrganisation
189. At its 69" Session in November 1992, the Council of the International
Maritime Organisation ("IMO") noted General Assembly Resolution 4711 of 22
September 1992.'49In the light of a draft resolutionon the matter proposed by the
Islamic Republicof Iran, the Council, at its 70thSessionin June 1993, adopted by
consensusResolution C.72(70) in the following terms:
14See, for example, the First Report of the Credentials Cornmitteeof the 85" Session of the
International LabourConference, Record of Proceedings of theession of the International
Labour Conference,1997, at p.714,paragraph4.
14Seehtt~:llwww.ilo.orgl~ubliclenglish/standar dsnlrx41)ct~-ndx.htm
14Seehtt~:/lwww.ilo.oral~ubliclen~lishlstandar at srreramhl1.(Annexh41)
'4Notebythe Secretary-General,C 701311,17March 1993. ChapterFour
"THE COUNCIL,
RECALLINGresolutions4711of 22 September 1992of the United
Nations General Assembly, adopted uponthe recommendationof
the Security Council of 19 September 1992 (S/RES/777), and
471229of 29 April 1993, adopted on the recommendationof the
Security Council of 28 April 1993 (S/RES/821), which decided
that the Federal Republic of Yugoslavia (Serbia andMontenegro)
shouldapplyfor membershipin the United Nations andthat it shall
not participate in the work of the General Assembly and in the
work of the Economicand Social Council,
CONSIDERSthat the Federal Republicof Yugoslavia(Serbia and
Montenegro) cannotcontinue automaticallythe membershipof the
former SocialistFederalRepublicof Yugoslaviain IMO; and
DECIDES that the Federal Republic of Yugoslavia (Serbiaand
Montenegro) must comply with Articles 5 or 7, as applicable of
the IMO Convention concerning the procedures for acquiring
membership in the Organisation and that until then it shall not
participate in the work of the principal and subsidiary organs of
IMO. "I5O
190. Pursuantto the termsof this Resolution, the FRYis not a memberand does
not participate in thework of the IMO.
(iv) InternationalCivil AviationOrganisation
191. On 25 September 1992, the Assembly of the International Civil Aviation
Organisation ("ICAO") adopted Resolution A29-2 on the question of the
membershipof the Federal Republicof Yugoslavia (Serbia andMontenegro) in the
following terms:
"TheAssembly :
Having noted United Nations SecurityCouncil Resolution 777
(1992) of 19 September 1992, and United Nations General
Assembly ResolutionAl4711of 22 September1992;
Considers that the Federal Republic of Yugoslavia (Serbia and
Montenegro) cannotcontinue automaticallythe membershipof the
former Socialist Federal Republic of Yugoslavia in ICAO; and
therefore
''OResolutioC.72(70)18June1993. (Annex42) ChapterFour
Decides that the Federal Republic of Yugoslavia (Serbia and
Montenegro) should apply for membership in ICA0 pursuant to
Chapter XXI of the Chicago Convention on International Civil
Aviation and thatit shallnot participate inthe work ofICAO. ""'
192. In accordance with the termsof this Resolution,the FRY is not a member
and does not participatein the work of ICAO.
fv) InternationalMonetary Fund, Internationa Blankfor Reconstructionand
Development, International Development Associatio and International Finance
Corporation
193. In accordancewith Article II, Section 1 of the Articlesof Agreementof the
International Bank for Reconstructionand Development("IBRD" or "the Bank"),
membership of the IBRD is open to members of the International Monetary Fund
("IMF"). Pursuant to Article II, Section 1 of the Articlesof Agreementof both the
International Development Association ("IDA") and the International Finance
Corporation ("IFC"), membershipin these organisations isopen to membersof the
IBRD. In the light of these provisions, membershipin each of these organisations
will in the first instancebe determinedby referenceto membershipof the IMF.
At a meeting on 14 December 1992, the Executive Board of the IMF
194.
considered the status of SFRY membership in the IMF. In the light of its
considerationof this matter, the IMF "found that the SFRY has ceased to exist and
has therefore ceasedto be a memberof the IMF." Is2At the sametime, the IMF
"decided that the Republic of Bosnia and Herzegovina, the
Republicof Croatia, the former YugoslavRepublicof Macedonia,
the Republic of Slovenia and the Federal Republic of Yugoslavia
(SerbiaIMontenegro)are the successors to theassets and liabilities
of the SFRYin the IMF .."Is3
195. Having determinedthe share of assets and liabilities of the SFRY to be
apportionedto eachof the successor States,the IMF went on to decide:
"Each successor may formally succeed to the membership of the
SFRY in the IMF when the followingconditionshave been met: it
15Resolution A29-2,25 September1992. (Ann43)
15IMF PressReleaseNo.92192,15December1992. (Annex 44)
'5IMF PressReleaseNo.92/92, 15December 1992. (Annex44) ChapterFour
has notified theIMF, within one month, that it agreesto its share
in theassets and liabilitiesof the SFRYin the IMF; it has notified
the IMF that it agrees, in accordance with its law, to succeedto
the membership in accordance with the terms and conditions
specified by the IMF and has taken al1 the necessary steps to
enable it to succeed to such membership and carry out al1of its
obligationsunder the Articles of Agreement; it has been found by
the IMF to be able to meet its obligationsunder the Articles; and it
has no overdue financial obligations to the IMF or in the SDR
Department. "'54
196. Subsequent to this decision, and in accordance with the conditions laid
down, Slovenia, Croatia, Macedonia and Bosnia-Herzegovinabecame members of
the IMF. The FRY has yetto becomea memberof the IMF.
197. Following the decision of the Executive Board of the IMF, the Board of
ExecutiveDirectors of the IBRDand theIDA andthe Boardof Directors of the IFC
met to consider the matter in February 1993. hrsuant to these deliberations, the
membership of the SFRY in the IBRD, IDA andIFC was terminated and, as in the
case of the IMF, detailed requirements laid down under which the five successor
Statescould succeedto the SFRY'smembership.15'
198. Subsequent to this decision, Slovenia, Croatia, Macedonia and Bosnia-
Macedonia and Bosnia-
Herzegovina becarne members of the IBRD and IFC.
Herzegovinaare eligibleas IDA borrowers. The FRY hasyet to become a member
of these organisations.
(vi) GeneralAgreementon Tarzfsand Tradeand theWorld Trade Organisation
199. The SFRYbecarnea contractingparty to the GeneralAgreementon Tariffs
and Trade ("GATT") in 1966. In the light of the Declaration establishingthe FRY
of 27 April 1992, and a communication drawing this, and purported FRY
continuationof SFRYmembershipin international organisations,to the attention of
the GATT,'56 the questionof the FRY'Sstatus withinthe GATT was first considered
by the GATT Councilon 30 April 1992at which pointit was agreed that the matter
shouldbe placed on the agendaof a future Councilmeetingfor ~0nsideration.l~~
ls4IMF Press ReleaseNo.92192,15December 1992. (Annex44)
Is5World BankPress ReleaseNo. 931S43,26 February 1992. (Annex45)
IsGATT DocumentL17000,29April 1992.
IsGATT DocumentClM1256,29 May 1992. ChapterFour
200. The status of the FRY within the GATT was addressed further by the
Council at its 19 June 1992 meeting at which point the Council agreed with a
proposa1of its Chairmanthat,
"without prejudice to the question of who should succeed the
former SFRY in the GATT, and until the Council returned to this
issue, ... the representative of the FRY should refrain from
participatingin the businessof theCo~ncil."'~~
201. The Council returnedto the questionof the FRY'Sstatus withinthe GATT
at its 16-17 June 1993 meeting. In the light of the adoption of General Assembly
Resolution4711on 22 September1992, and on the proposa1of the Chairman of the
Council after consultationswith its members, the Council, by consensus, adopted
the following decision:
"The Council considers that the Federal Republicof Yugoslavia
(Serbia and Montenegro) cannot continue automatically the
contracting party statusof the formerSocialistFederal Republicof
Yugoslavia in the GATT, and therefore decides that the Federal
Republic of Yugoslavia (Serbia and Montenegro)should apply for
accessionto the GATTand that it shall not participate in the work
of the Council and its subsidiary bodies. TheCouncil further
invites other cornmittees and subsidiary bodies of the GATT,
including Cornmittees of the Tokyo Round Agreements and the
Committeeon Trade and Development, to take necessary decisions
in accordancewith the above.
202. In the light of this decision, and the decisionof other GATT committeesin
accordance with the Council's invitation, the FRY did not become a contracting
party to and did notparticipatein the workof the GATT.
203. Following the entry into force of the AgreementEstablishingthe World
Trade Organisationon 1 January 1995, the FRY, on 30 September 1996,
" [expressed]the requestto regulateits membershipin the World Trade Organisation
...by the adoptionof a clauseof retroactive effect,whichcould be the subject of an
agreement between the Federal Republic of Yugoslavia and the WorldTrade
Organi~ation".'~~In response to this communication, theRepublic of Slovenia,
whichhad becomea memberof the WTO, statedinteralia as follows:
Is8GATT DocumentsC/M/257, 10July 1992,at p.3 and C/M/257/Corr.1, 6 August 1992.
Is9GATT DocumentC/M/264, 14July 1993,at p.3. (Annex46)
WTO DocumentWT/L/176, 30 September 1996. (Annex47)
67 ChapterFour
"1. An accessionon the basis of Article XII of the Agreement
Establishingthe World Trade Organisationis the only acceptable
basis for the FederalRepublicof Yugoslavia to become amember
country;
2. There is no legal basis for exceptional or privileged
treatment of the Federal Republicof Yugoslaviacomparedto other
acceding countries, especially those that have emerged from the
former Socialist Federal Republic of Yugoslavia, which was a
contracting party of GATT 1947".'6'
204. The FRY has not become amemberof the WTO.
(f3 Conclusions
205. The principal conclusions thatemerge from the preceding review may be
surnrnarisedas follows:
(a) with the dissolutionof the SFRY, the national territory and population of
the SFRY came under the sovereign authorityof five new states: Bosnia-
Herzegovina, Croatia, the FRY,Macedoniaand Slovenia;
(b) each of these states is asuccessorof the former SFRY;
(c) none of these states can be considered to be the sole successor of the
SFRY;
this assessmentwas explicitly affirmed withregard to the FRY by the
(d)
ArbitrationCommission establishedby the Conferenceof Yugoslavia;
in keeping withthe principle that each of the new states is a successor to
(e)
the SFRY,the ArbitrationCommissionalso expressed theopinionthat none
of the successor states couldbe considered to be the successor to SFRY
membershipin internationalorganisations,includingthe UN;
this assessmentmirrors that of the SecurityCouncil and General Assembly
(f)
in respect of FRY claims to have continuedthe UN membership of the
SFRY;
(g) the approach adopted by the Security Council andGeneral Assembly in
respect of the FRY reflects the approach adopted within the UN more
generally tomembershipby new siates;
(h) as the organsresponsiblefor issues of membershipof the UN, the practice
of the SecurityCounciland GeneralAssembly is controllingin this matter.
Such practice as there may be of the UN Secretariat whichis at odds with
Ib'WTO DocumentWTlLl181, 18October 1996. (Annex48) ChapîerFour
the approach taken by the Security Council andGeneral Assembly cannot
form the basis of a claim by the FRY to have continued the SFRYYsUN
membership ;
(il the practice of the Security Council and General Assembly in respect of
FRY membership of the UN is mirrored by the approach taken by other
international organisationsand bodies of whichthe SFRYwas a member in
the face of claimsby the FRY to have continuedthat membership.
206. In Belgium's contention, the evidence against FRY membership of the
United Nations is overwhelming. The FRY is not now and has never been a
member of the United Nations. Thisbeing thecase, there is no basis for the FRY'S
claim to be a party to the Statute of the Court pursuant to Article 93(1) of the
Charter. The Court is not therefore, on this basis, opento the FRY in accordance
withArticle 35(1) of the Statute.
2. The FRY is not otherwise a partyto the Statute of the Courtpursuant
to Article93(2)of the Charter
207. The only basis on which a non-memberof the United Nationsmay become
a party to theStatuteof the Court is pursuant to Article 93(2) of the Charter "on
conditions to be determined in each case by the General Assembly on the
recornrnendationof the SecurityCouncil". In accordance with this provision - and
pursuant to recornmendationsof the SecurityCouncil and decisions of the General
Assembly in each case - Japan, Liechtenstein, Nauni and San Marino becarne
parties to the Statute prior to their admission to membership of the UN.
Switzerlandis currently a partyto theStatuteon this basis.
208. The FRY does not clairn to be a party to the Statute pursuant to Article
93(2) of the Charter. There could be no basis for any such claim, the Security
Council and General Assembly having taken no action pursuant to this provision.
As with the preceding section,the Court is not therefore, on this basis, opento the
FRY pursuant to Article 35(1)of the Statute.
3. The Court is not open to the FRY pursuant to Article 35(2) of the
Statute
209. Article 35(2) of the Statute addresses circumstances in which the Court
shallbe open toStatesnot party to theStatutein the followingterms: Chqter Four
"The conditions under which the Court shall be open to other
states shall, subject to thespecial provisionscontainedin treaties in
force, be laid downby the Security Council, but in no case shall
such conditionsplace the parties in a positionof inequalitybefore
the Court."
210. Acting pursuant to the powers conferred upon it by Article 35(2) of the
Statute, the Security Council adoptedResolution 9 on 15 October 1946. In relevant
part, this provides:
"1. The InternationalCourt of Justice shall beopen to a State
which is not a party to the Statute of the International Court of
Justice, upon the following condition,narnely,that such State shall
previously have deposited with the Registrar of the Court a
declaration by which it accepts the jurisdiction of the Court, in
accordance with the Charter of the United Nations andwith the
terms and subject to theconditionsof the Statuteand Rules of the
Court, and undertake. to comply in good faith with thedecisionor
decisions of the Court and to accept al1 the obligations of a
Memberof the United NationsArticle 94 of the Charter;
2. Such declarationmay be either particular or general. A
particular declarationis one accepting thejurisdiction of the Court
in respect only of a particular dispute or disputes which have
already arisen. A general declaration is one accepting the
jurisdiction generally in respect ofal1disputes or of a particular
class or classes of disputes which have alreadyarisen or which
may arise in the future. A State, in making such a general
declaration, may, in accordancewith Article 36, paragraph 2, of
the Statute, recognise as compulsory, ipso facto and without
specialagreement thejurisdictionof the Court, provided, however,
thatsuchacceptancemay not, withoutexplicit agreement,be relied
upon vis-à-vis Statesparties to the Statute which have made the
declaration in conformity with Article 36, paragraph 2, of the
Statuteof the InternationalCourt of Justice".
211. The FRY has not advanced a claim of access to the Court pursuant to
Article 35(2) of the Statute. Nor should such an argument be presumed on its
behalf. It may nevertheless assist the Court for Belgium to make a number of
general observationson the matter.
212. Two elements of Article 35(2) warrant particular comment: (a) the
conditionsunder which theCourt is to be open to states not party to the Statute are ChapterFour
to be laid downby the SecurityCouncil; and (b)action by the Council is subject to
the special provisionscontainedin treatiesin force.
213. Subject to special conditions containedin treaties in force, the basis for
access tothe Court pursuant to Article 35(2) is actionby the Security Council laying
down the conditions under which the Court shall be open to Statesnot party to the
Statute. As noted above, action by the Council pursuant to this provision tookthe
form of Resolution 9of 15October 1946.
214. Insofar as is material for present purposes, the conditions laid down by
Resolution 9 (1946)for accessto the Court by a state not party to the Statute are as
follows:
the state in question "shallpreviouslyhave deposited withthe Registrar of
(a)
the Court a declarationby which it acceptsthe jurisdiction of the Court" in
accordance withUN Charter andthe Court's Statuteand Rules;
(b) in so doing the state in question must undertake"to comply in good faith
with the decisionor decisionsof the Court and to accept al1the obligations
of a Member of the United NationsArticle 94of the Charter";
(c) in making a general declaration, the state may recognise the compulsory
jurisdiction of the Court in accordance withArticle 36(2) of the Statute,
"provided, however, that such acceptance may not, without explicit
agreement, be reliedupon vis-à-vis Statesparties to the Statute which have
made the declaration in conformity with Article 36, paragraph 2, of the
Statuteof the InternationalCourtof Justice".
215. Addressing the institutionof proceedingsby a statewhich is not party to the
Statute but which, under Article 35(2) of the Statute, has made a declaration in
accordance with Resolution9 (1946), the Court, in Article 41 of its Rules, provides
that "[tlhe institution of proceedings ...shall be accompaniedby a deposit of the
declaration in question, unless the latter has previously been deposited with the
Registrar" .
216. The FRY satisfiesnone of the conditionsof Resolution9 (1946)and Article
41 of the Court's Rules. It has not deposited with theRegistrar a declaration
accepting the jurisdictionof the Court pursuant to Resolution 9 (1946). The FRY ChapterFour
Declarationof 25 April 1999did notpurport to be and cannot beregarded as such a
declaration. The FRY hasnot undertakento complyin good faith with the decision
of the Court and to accept theobligationsof a UN member under Article 94 of the
Charter. In this regard, Belgium notes thefurther requirementof Article 35(2) that
the conditions under which theCourt is to be opento states not party to the Statute
cannot place the parties in a position of inequality before the Court. Absent
cornpliance by the FRY with the requirements of Resolution 9 (1946) - formal,
procedural and substantive - access to the Court by the FRY under Article 35(2)
would placeBelgiumin a position of inequality before theCourt vis-à-visthe FRY
insofar as the FRY would have access to the Court without any corresponding
obligations.
217. Belgiumalso notes that, pursuant to paragraph 2 of Resolution 9 (1946), a
declaration accepting the compulsory jurisdiction of the Court in accordance with
the Resolution cannot, without explicit agreement, be relied upon vis-à-vis states
parties to the Statute which have made optional clause declarationsunder Article
36(2). No suchagreementhas been forthcomingfromBelgiumin this case.
218. Article 35(2) provides that action by the Security Council laying down
conditions for access to theCourt is "subject to the specialprovisions contained in
treaties in force".
219. In the absenceof a claimby the FRY under this heading, a detailedreview
of the meaning of this phrase is not necessary. For completeness, however,
Belgium notes that thephrase, based on the virtually identicalprovision in the
Statute of the Permanent Court, was intended to provide an exceptional basis of
access to theCourt pursuant to the peacetreaties concluded after the First World
War in circumstancesin which the former enemy states could not be party to the
Protocol of Signatureof the Statuteof the PermanentCourt. This focus on the First
World War peace treaties emerges clearly from cornrnentsmade by Judges Huber
and Anzilotti in the context of a review of the Rules of the Permanent Court in
1926.16*There is nothing to suggest that a different interpretationwas intended
when the provisionwas adoptedas part of the Statuteof the present Court.
220. The scope of the clause was, however,the subject of passing comment by
the Court in its first Provisional MeasuresOrder in the Genocide Conventioncase
16PCIJ,Acts and Documents Concernin tge Organisationof the Court(1926), Series D, No.2
(Add.), pp104-107.
72 ChapterFour
betweenBosnia-Herzegovinaand the FRY. Notingthat "the questionof whether or
not Yugoslaviais a Member of the UnitedNationsand as such a party to the Statute
of the Court is one which the Court does not need to determine definitivelyat the
present stageof the proceedings", the Court referred to Article 35(2) of the Statute
and observed:
"the Court therefore considers that proceedings may validly be
institutedagainsta Statewhichis a party to such special provisions
in a treaty in force, but is not a party to the Statute, and
independentlyof the conditions laiddown by the SecurityCouncil
in its resolution9 of 1946 ...accordingly if Bosnia-Herzegovina
and Yugoslavia are both parties to the Genocide Convention,
disputes to which Article IX applies are in any event prima facie
within the jurisdictionationepersonaeof the Court.
221. The Court has notreturnedto the matter in subsequent phasesof that case.
222. In Belgium's contention, apart from the evident focus of the clause in
question on the peace treaties concluded after the First World War, there are
persuasive reasonswhy the Court should revisit the provisional approachit adopted
to the interpretation of this clause in the Genocide Convention case. The
consequenceof an interpretationof Article 35(2) of the Statutewhich construed the
phrase "the specialprovisions containedin treaties in force" to meanjurisdictional
clauses contained in treaties in force would be to fundamentallyundermine the
scheme of the Statute and the distinction between access to the Court and the
jurisdiction of the Court in particular cases. It would, for example, completely
erode any distinctionbetween access to the Court and the jurisdiction of the Court
under Article 36(1) of the Statutepursuantto provisionsin treaties or conventions in
force. Such an interpretation would be fundamentallyat odds with the accepted
appreciationof the Court'scompetence.
223. An expansiveinterpretationof Article 35(2) would also sit uneasily with its
character as an exceptionto the generalprovisions relatingto accessto the Court. It
would, furthermore, place states not party to theStatutein a privilegedposition as
they would have access to theCourt without any assumption of the obligations
ordinarily requiredof statesto whichthe Court is open.
Applicationof the Conventand Punishmen otf the Crimeof Genocide,ProvisionalMeasures,
Orderof8April1993, 1C.J. Reports1993,p.3, atparagra18-19. ChapterFour
224. On the basis of these considerations, Belgiumcontends that the Article IX
of the Genocide Conventioncannotbe construedto be a special provision in atreaty
in force within the scope of Article 35(2) of the Statute. The same is true for
Article 4 of the 1930 Conventjon. In respect of the latter treaty, there is the added
hurdle of Article 37 of the Statutewhich operatesto givethe Courtjurisdiction only
"as between partiesto the present Statute". By its express terms, Article 37 of the
Statute can therefore only operate insofar as the Court is competent pursuant to
Article 35(1) of the tat tu te.'^^
225. In the light of the preceding observations,Belgiumcontendsthat the Court
is not open to the FRY pursuant to Article 35(2) of the Statute. The FRY has not
met the requirementsof Resolution 9 (1946). Nor can the reference to "treaties in
force" in Article 35(2) be relied upon to provide a basis of access to the Court by
the FRYin this case.
4. Conclusions
226. Access to theCourt is a conditionprecedent to any question arising as to
the Court's jurisdiction in a particular case. TheFRY claims such access on the
ground that it is a member of the United Nations. This is the only basisof access
relied uponby the FRY.
227. As the preceding review shows, there is no basis for such a claim. The
FRY did not succeed to theUN membership of the SFRY. It has not become a
member of the United Nationspursuant to the tems of Article 4 of the Charter.
The FRY is not therefore a party to the Statute pursuant to Article 93(1) of the
Charter.
228. Nor has the FRY become a party to the Statute in accordance with the
procedure laid down in Article 93(2)of the Charter.
229. The FRY is not, accordingly, a party to the Statute of the Court. The
Court is not therefore opento the FRY pursuantto Article35(1) of its Statute.
230. The FRY has not advanceda clairnfor access to the Court on the basis of
Article 35(2) of the Statute. There wouldbe no basisfor such a claim. The FRY
IwIn practice, the effect of the interactionbetween35(2)and 37 of the Statutewill be to
limit the operation of Art35(2)to cases in which the state in question hasadeclaration
under Resolution9 (1946). ChapterFour
has not satisfied the requirements of Resolution 9 (1946) and Article 41 of the
Court'sRules. The referenceto "treaties in force" in Article35(2) cannotprovide a
basis for FRY accessto the Court in this case.
231. Absent standing to appear, the FRY cannot found jurisdiction on its
Declaration of 25 April 1999, on Article IX of the Genocide Convention or on
Article 4 of the1930 Convention. The FRY isnot competentto make a declaration
under Article 36(2) of the Statute. Article IX of the Genocide Convention and
Article 4 of the 1930 Conventioncannot give theCourtjurisdiction inthe absence of
standing rationepersonae. Neither conventioncan be regarded as a treaty inforce
withinthe meaningof this phrase in Article35(2). As regards the 1930 Convention,
as Article 37 of theStatuteonly operates insofar as the Court is competentpursuant
to Article 35(1), Article 35(2) cannot provide a basis of access to the Court by
referenceto this treaty.
232. One concludingobservationis necessary. In its Memorial, the FRY seeks
to rely on the fact that it is the Respondentin separateproceedings before theCourt
initiatedby Bosnia-Herzegovina andCroatiato supportthe claim that it is aparty to
the Stat~4te.l~~Whatever the circumstances of those cases, Belgium observes that
there is a fundamental difference between those cases and the one here in issue.
Whereas in the other cases theFRY isthe Respondent,in the present case the FRY
is the Applicant. Where, in proceedings inwhich a state is respondent, it chooses,
for its own reasons, to acquiesceto the jurisdiction of the Court ratione personae,
there may be good grounds, consonantwith Article l(1) of the Charter, for the
Court to assume the existence of such jurisdiction. Although not precisely
analogous, the assumptionof jurisdiction by the Court in the Co@ Channel case
points in this dire~ti0n.I~~In such cases, at least insofar as jurisdiction ratione
personae is concerned, both applicantand respondent acceptthe jurisdiction of the
Court. Against the backdrop of the limitations expressed in Article 59 of the
Statute, the Court therefore proceedson the basisof the agreementof the parties.
233. The position is entirely different in the present case. The FRY is the
Applicant. Belgium conteststhe jurisdiction of the Court by reference inter alia to
the FRY'Slack of standing. There is no question of acquiescence. There is no
agreement of the parties. In accordancewith the schemeof the Stature,jurisdiction
rationepersonae mustbe established.
IhFRY Memorial,at paragraph3.1.9-3.1.21.
16VorjùChannelCase (Preliminarybjections),I.C.J. Reports194815..
75 ChapterFour
In undertaking, from timeto time, an evaluation of its relations with the
234.
FRY, Belgium isentitledto rely on the appreciationthat, absentaccessto the Court
pursuant to Articles 35(1) or (2) of the Statute, the FRY lacksstanding to initiate
proceedings against it. FRY acquiescence to the Court's jurisdiction ratione
personae as Respondentin other cases cannotprovidea basis on which it can initiate
proceedings asApplicantin the present case. The proceedingsinitiatedby Bosnia-
Herzegovinaand Croatia against theFRY cannottherefore be relied upon tofound a
generalised claimto standingbefore the Court by the FRY. ChapterFive
CHAPTERFIVE: THECOURTDOESNOTHAVEJURISDICTIONON
THE BASISOFTHE FRY'S DECLARATION OF25 APRIL1999
235. In the precedingchapter, Belgiumcontendedthat the Court was not open to
the2FRY. Absent an entitlementto appear, the FRY cannot, simply by lodging a
Deelaration purportedly under Article 36(2) of the Statute, perfect its otherwise
fundamentallyflawed position and avail itselfof the procedures of the Court. The
FRY was not competent tomake a declaration under Article 36(2) of the Statute.
The FRY's Declarationof 25 April 1999cannot therefore give theCourtjurisdiction
in this case.
236. If, contrary to this contention, the Court accepts that the FRY was
competent to make a Declaration under Article 36(2) of the Statute, Belgium
contends, in the alternative, that the Declaration of 25 April 1999 cannot in any
event give the Court jurisdiction in the case brought by the FRY. The reason for
this is the temporal limitationcontained in the FRY's Declaration restricting the
jurisdiction of the Court to "disputes arisingor which may arise after thegnahire
of the present Declaration,with regard to the situationsof facts subsequentto this
signature".
237. As the Court observedin its ProvisionalMeasures Order,
"the Applicationis directed, in essence, against the 'bombingof
the territory of the Federal Republicof Yugoslavia'..
Whereas it is an established fact that the bombings in question
began on 24 March 1999 and have been conducted continuously
over a period extendingbeyond 25 April 1999; and whereas the
Court has no doubt, in the light, inter alia, of the discussionsat the
Security Council meetingsof 24 and 26 March 1999 (SlPV.3988
and 3989), that a 'legal dispute' (East Timor (Portugal v.
Australia), I.CJ. reports 1995, p.100, para.22) 'arose' between
Yugoslavia and the Respondent, as it did also with the other
NATO member States, well before 25 April 1999 concerning the
legalityofthosebombingsas such, taken as a whole;
Whereas the fact that the bombings have continuedafter 25 April
1999and that thedispute concerningthem has persisted since that
date is notsuch as to alter the date on which the dispute arose;
whereas each individualair attack could not havegiven rise to a
separate subsequent dispute; and whereas, at this stage of the ChapterFive
proceedings, Yugoslavia has not established that new disputes,
distinct from the initial one, have arisen between theParties since
25 April 1999 in respect of subsequent situations or facts
attributableto Belgium" .167
238. Belgiumcontendsthat this assessmentis as accuratenow, in the light of the
FRY's Memorial,as it was at the provisionalmeasures phaseof the case. Not only
has the FRY not established thatnew disputes, as distinct from the initial one, have
arisen between the Parties since 25 April 1999but it has not even attemptedto do
so. As will be clear from the extract of the FRY'sMemorial quoted at paragraph
71 above, the FRY argues that certain new disputed elements which it raises "are
part and parce1 of the dispute related to the bombing of the territory of the
Applicant". Thereis thus no newdispute. The disputethat the FRY seeksto bring
before the Court arose wellbefore the signatureof its Declarationon 25 April 1999.
Fursuant to the temporal limitationin the FRY's Declaration, the Court therefore
has nojurisdiction in this matter. Theseissuesare addressedin more detailbelow.
1. Thenature and interpretation of Declaration usnderArticle36(2) of the
Statute
239. A declarationunder Article 36(2) of the Statute "is a unilateral actof State
9,168
sovereignty . It is a facultative, unilateralengagement thatstates are free to make
or not to make and free to do so unconditionally and withoutlimit of the or to
qualify with conditions or re~ervations.'~~"[J]urisdiction only exists within the
limits within which it has been a~cepted."'~~At the same the, however, such
declarations establish a"consensua1bond and thepotential for a jurisdictional link"
with other states that have made such de~larations.'~' Reciprocal consent to the
jurisdiction of the Court is thus at the heart of the OptionalClause arrangements.
240. In circumstances in which the jurisdiction of the Court depends on such
declarations, on the basis of the principle of reciprocity, "since two unilateral
declarations are involved, suchjurisdiction is conferred upon the Court only to the
extent to which the Declarationscoincide in conferring it'y.'72 In other words,
16ProvisionalMeasuresOrder,atparagraph2 s7-29.
FisheriesJurisdictionCase (Spainv. Canada),Jurisdiction,Judgmentof 4 December 1998, at
paragraph 46.
16Military and ParamilitaryActivities in andAgainstNicaragua (Nicaraguav. UnitedStates of
America),JurisdictionandAdmissibility,Judgment,I.C.J. Reports1984,p.418,paragrap59.
I7PhosphatesinMorocco(PreliminaryObjections),P.C.I.J., SeriesA/B, No.74, atp.23.
j7FisheriesJurisdictionCase,note168supra,atparagraph46.
17Caseof CertainNorwegianLoans,I.C.J. Reports1957,p.9, atp.23. ChapterFive
limitations inthe declarationof one party will hold good as between bothparties to
a dispute.'73
241. The Court is trustee of these arrangements. It is frequently calledupon to
interpret OptionalClause Declarationsfor purposes of establishing whether theydo
in fact embody the reciprocal consent of the states in question in respect of the
subject-matterof the dispute beforethe Court. The role of the Court in this regard
is not to construe the declarationsin question so as to foundjurisdiction. There is
not, in other words, a presumption in favour of jurisdiction which shapes the
outcome of the interpretative exercise. As the Court observed in its Provisional
Measures Order, the Court's jurisdiction remains fundarnentally hinged on
~0nsent.l~~Construing Optional Clause Declarationsin any given case is thus an
exercise in defining the parameters of the states' acceptance of the compulsory
jurisdiction of the Court. The question is whether the reciprocal consent of the
statesis actuallyevident. In this context,
"[c]onditions or reservations ...do not by their terms derogate
frorn a wider acceptancealready given. Rather, they operate to
define the parameters of the State's acceptanceof the compulsory
jurisdiction of the Court. There is thus no reason to interpret them
restrictively. Al1 elements in a declaration under Article 36,
paragraph 2, of the Statute which, read together, comprise the
acceptanceof the declarant State of the Court'sjurisdiction, are to
be interpreted as a unity, applying the same legal principles
throughout. "'75
242. For purposes of this interpretative exercise, the Court has elaborated
variousprinciples:
"Every declaration'must beinterpreted as it stands,having regard
to the words actuallyused' (Anglo-IranianOil Co., Preliminary
Objections, Judgment, I.C.J. Reports 1952, p.105). Every
reservation must be given effect 'as it stands' (CertainNorwegian
Loans, Judgment, I.C.J. Reports 1957, p.27). Therefore,
declarations and reservations are to be read as a whole.
Moreover, 'the Court cannot base itself on a purely grammatical
interpretationof the text. It must seek the interpretationwhich in
harmony witha natural and reasonableway of reading the text.'
(Anglo-IranianOilCo., PreliminaryObjections,Judgment,I.C.J.
Reports 1952,p.104. )
-~ p ~
'7PhosphatesinMorocco,note170supra,atp.22.
'7ProvisionalMeasuresOrder,atparagraph 20.
17FisheriesJurisdictionCase,note 168 supr,tparagraph 44. ChapterFive
2, of the Statute of the International Court of Justice, as
compulsoryipsofacto and withoutspecial agreement,in relation to
any other State accepting the same obligation, that is on condition
of reciprocity, the jurisdiction of the said Court in al1 disputes
arising or which may arise after the signature of the present
Declaration, with regard to the situations or facts subsequent to
this signature, except in cases where theparties have agreed or
shall agree to have recourse to another procedure or to another
method of pacific settlement. The present Declarationdoes not
apply to disputes relating to questions which,under international
law, fa11exclusively within thejurisdictionof the Federal Republic
of Yugoslavia,as well asto territorial disputes.
The aforesaid obligation isaccepteduntil such time as notice may
be givento terminatethe acceptance."
246. Puttingthese two Declarationsside-by-side,it is evidentthat, depending on
how they are read, they coincide to give the Court jurisdiction in either (a) legal
disputes arising afterthe signatureof the FRY'SDeclaration concerningsituations or
facts subsequentto that date, or (b) legal disputes arising after thesignature of the
FRY's Declaration, with regard to the situations or facts subsequent to that
signature. The elementof "legal dispute" emerges fromthe languageof the Belgian
Declaration. Formulation (ri)reflects the language of the Belgian Declaration,
reading the "crucial date"'77in the FRY's Declarationinto thistext - viz. "in legal
disputes arising after [25 April 19991concerning situationsor facts subsequent to
that date". Formulation (b) reflects the language of the FRY's Declaration
simpliciter.
247. Insofar as there are differences inthese two formulations - slight variations
in language, theuse of the definite article in the formulationbased on the authentic
English text of the FRY's Declaration and the presence of a comma after
"Declaration" also in the formulationbased on the FRY's Declaration - Belgium is
not at this point convinced thatthese differencesare of significancein the context of
the present case. Belgium notes, nevertheless,that, in keeping with the essential
character of the arrangements under Article 36(2) of the Statute, in contesting the
jurisdiction of the Courtpursuant to these Declarations,Belgiurnmay avail itself of
the limitationsthat emerge from the formulationsdrawn from bothits own and from
the FRY's Declaration.
In PhosphatesinMorocco,note 170supra, at p.23.
81 ChapterFive
248. Without prejudiceto any further argument that Belgiummay wish to make
on this matter in due course, Belgium submitsthat, for present purposes the two
Declarations coincideto give the Courtjurisdiction inlegal disputesarising afer 25
April 1999 concerningsituations orfacts subsequentto that date. This formulation
reflects the languageof the BelgianDeclaration subjectto the temporal limitation in
the FRY'SDeclaration.
3. The scope of the Court'sjurisdictionon the basis of the Belgian and
FRYDeclarations
(a) Belgium'sarguments in outline
249. As regards the various elementsapparentin the formulationjustmentioned,
Belgiumaccepts that there is a "dispute"between theParties, as this term has been
defined in the Court'sjurisprudence, and accepts, also, that thisnountsto a "legal
dispute". The Court, indeed, has already concludedas much in its Provisional
Measures Order:
"the Court has no doubt, in the light, inter alia, of the discussions
at the Security Council meetingsof 24 and 26 March 1999
(SlPV.3988 and 3989), that a 'legal dispute'(East Timor (Portugal
v. Australia),.C.J. reports 1995, p.100, para.22) 'arose'between
Yugoslavia and the Respondent, as it did also with the other
NATO memberStates, well before 25 April 1999 concerning the
legalityofthosebombingsas such, taken as a wh01e."'~~
250. While, however, theremay be a legal disputebetween the Parties, Belgium
does not accept that the disputearose only after the signature of the FRY'S
Declaration on 25 April 1999. As the passage justcited makes clear, the Court, in
its ProvisionalMeasures Order, had nodoubtthat thelegal disputein questionarose
"well before 25 April 1999". That assessment, in Belgium's contention,remains
cogent, notwithstanding any argument advanced in the FRY'S Memorial. By
operation of the temporal limitation inthe FRY'SDeclaration the Court therefore
lacks jurisdiction in this matter. The various elements of this contention are
addressed below.
Although the preceding contentionis sufficient to dispose of the matter,
251.
Belgium also contends that the Court lacksjurisdiction by operation of the second
'7ProvisionalMeasuresOrder,atparagra28. ChapterFive
element of the temporal limitationin the FRY's Declaration, namely, in respect of
disputes concerning situationsor facts subsequent to the signature of the FRY's
Declaration. This elementwould only be relevant in the event that the Court were
to conclude that the FRY had, in the languageof the Court, "established that new
disputes, distinct fromthe initialone, have arisen between theParties since 25 April
1999 in respect of subsequent situations or facts attributable to Belgium". The
essential elementof this contentionis that, even if it could be shown that a dispute
arose after the "crucial date" inthe FRY's Declaration,the FRY wouldalso have to
show that the situations or facts giving rise to, or which were thesource of, the
dispute arose after this date. In Belgium'scontention, however, even if a dispute
between the FRY and Belgiumwas found to have arisen after 25 April 1999, the
relevant situationsor factswouldbe those of the NATOuse of force in the FRY, ie,
situations or facts that in their origin and in other critical respects predated the
signature of the FRY Declaration. As such, the Court would lack jurisdiction to
address the matter. The various elements of this contention are addressed further
below .
(b) Thereasonsfor and consequencesof the temporal limitationin theFRY'S
Declaration
252. Before turning to address the various constituentelements at the heart of
these contentions, it is illuminating toconsider briefly thereasons for the temporal
limitation in the FRY's Declarationand to identify theconsequences that flow
therefrom. Notwithstanding thespeculativeelementconcerningthe FRY's motives,
this is not simplyan academicexercise. It goesultimately to thepropositionthat, in
the absenceof agreementto the contrary by partiesto proceedings beforethe Court,
the Court can onlyhavejurisdictionto adjudicateupon a complaintif that complaint
einbodies what may reasonably be said to constitute the whole of the dispute
between the parties. The Court cannot, in other words, in the absence of the
consentof the parties, assumejurisdiction over a partialelementof a disputeonly as
to do so would run the risk of a miscarriage of justice in that it may deprive the
respondent of the abilityto raise arguments in its defence.17'The reasons for and
17Inmakingthissubmission, Belgium is mindfdof theCourt's jurisprudence to ffectthat "no
provisionof theStatuteorRulescontemplatthattheCourtshoulddecline totakecognizanceof one
aspectof a disputemerelyecausethatdispute hotheraspects,howeverimportant"(UnitedStates
Diplomaticand ConsularStaffin Tehran, JudgmenIt,.C.J.Reports1980, p.3, atparagra36; also
Border and TransborderAmed Actions (Nicaraguav. Honduras),Jurisdictionand Admissibiliîy,
Judgment,1.C.J.Reports1988,p.69, atparagraph54). IntheHostagescase, the Courtwenton to
state, in respect ofIranianallegationsagainstthe United States,if the IranianGovemment
consideredthe alleged activiof the UnitedStatesin Iranlegallyto have aclose connectionwith
the subject-mattof the UnitedStates'Applicatioiiwmt opento that Governmentto present its ChapterFive
consequences of the FRY's temporal limitation alsogo to the matter of the
admissibility of the FRY's application insofaras they suggest an element of bad
faith on the part of the FRY. This latter element is addressed further in Chapter
Nine below .
253. As will be evident both from the descriptionof the FRY's case in Chapter
One of these PrelirninaryObjectionsand from the Court's appreciationof the matter
at the provisionalmeasuresphase, the FRY'scase "is directed, in essence, 'against
the bombingof the Federal Republic of Yugosla~ia'".'~~This began on 24 March
1999. Giventhis to be the case, the questionthat arises is why did the FRYdraft its
Declaration in such terms as to exclude the jurisdiction of the Court in respect of
disputes arisingprior to 25 April 1999, with regardto the situationsandfacts prior
to this date. Why, in other words, with the evident intention of submitting an
Applicationto the Court four days later on the subjectof the NATO bombingof the
FRY, did the FRY cast its Declaration in suchterms as to exclude from the Court's
jurisdiction thevery dispute withwhichit was then concerned?
254. Two possibilities are apparent. First, the consequences of the chosen
formulationmay simply not have occurredto the drafters of the Declaration. They
may have considered that the Declaration would have been sufficientto give the
Court jurisdiction overthe on-going disputeand simply intended theDeclaration to
become operational fromthe date of its signature. In other words, the drafters may
not have seen their formulation as excluding in any way the Court's jurisdiction
over the subject-matterof the disputein contemplation. Second,the drafters may
have considered that the language of the Declaration would permit the Court to
assume jurisdiction over the on-going dispute but would restrict the Court's
competenceto address matterspredating thesignatureof the Declaration.
own argumentsregardingthose activities tothe Court either by way of defencein a Counter-
Memorialor by way of a counter-claimn(emphasisadded). Inthe case now before the Court, the
alternative avenues contemplatedby the Court in this passage are precisely what the temporal
limitation in the FRY's Declaration appeoe an attempttoexclude. As is reflectinthe body
ofthese submissions, Belgiumcontendstherefore that, particularlyin circurnsinnwhich the
jurisdiction of the Courtis temporallylimited, the Courtcannot, in the absenceof the consent of the
parties, assume jurisdiction overa partial elementof a disputeFor the avoidance ofdoubt,
Belgium notes thatthe present caseis not in any wayanalogous to either theor the Border
andTransborderArmedActionscases. Issuesrelating to eventsin Kosovoprior to 25 April 1999are
intimately and inextricablyconnectedwithose to which thFRY refers, not simplypart of the
broader background. The25 April 1999dateof signatureof the FRY's Declarationwas an entirely
artificial pointof separationbetweenuselementsof an on-goingdispute.
ProvisionalMeasuresOrder,atparagraph27. ChapterFive
255. As regards these possibilities, the first seems unlikely. The Declaration
was evidently drafted with care, a matter attested to by the variation, even if only
slight, in the language of the Declarationby comparisonto the Belgian Declaration
on which it appearsto have been based. For example,by reference to the authentic
English text of the FRY's Declaration,the exclusion of the Court's jurisdiction
"with regard to the situationsor facts" prior to 25 April 1999seems to contemplate
the possibility that the Court could assume jurisdiction over a dispute which
involved factual elements which straddled the date of signature of the FRY's
Declarationbut that, if so, the Court would onlyhave jurisdiction "with regard to
the situationsor facts subsequentto this signature".
256. It is also evident, from the statementby Counsel for the FRY during the
oral proceedingson provisional measures,that the FRY'sintentionwas to allow "al1
disputes effectively arising after25 April 1999to be taken into acc~unt".'~~This
does not suggestany oversightby the drafters of the Declaration. On the contrary,
it suggests a clearintent to impose a temporal limitation in respect of the Court's
considerationof the eventsin and concerningKosovo.
257. This leaves the secondof the possibilitiesadvancedabove, namely, that the
drafters considered that the languageof the Declarationwould permit the Court to
assumejurisdiction over the on-going dispute but thatit would restrict the Court's
competence to address elements of that dispute predating the signature of the
Declaration.
258. In every respect, this explanationcomrnendsitself. It is consistent with a
plain readingof the text of the Declaration. It is consistent with the statementsby
Counselfor the FRY during the provisionalmeasurespha~e."~ It is consistentwith
a presumed intent to keep from the Court considerationof al1matters relatingto the
conduct of the FRY in Kosovo leading up to the NATO action and in the early
period of that action. By its Declaration and subsequent Application, the FRY
evidently hoped to impugn the conductof NATO in the FRY while excluding the
possibility of any examinationby the Court of the FRY's own conductin Kosovo
and the causesof the NATOaction.
259. If these are the reasons for the FRY's temporal limitation, what are its
consequences? Three are apparent. First, the temporal limitation in the FRY's
18StatemenbyMrCorten,CR99/25, 12May1999,Translationa ,tp.9.
18Statement yMrCorten,CR99/25, 12May1999,Translationa ,tpp.9-14. ChapterFive
Declaration precludes the possibility of any other state with an Optional Clause
Declaration bringingproceedings against the FRY in respect of the FRY's conduct
prior to the date in question. This is not relevantfor present purposes. Second, and
of more importance,the temporal limitationappearsto be an attemptto preclude the
possibility of Belgium basinga substantivedefenceon the merits of the case on the
conduct of the FRY prior to 25 April 1999.183Third, and also of importance, the
temporal limitation appearsto be intended topreclude the possibility that Belgium
could bring a counter-claimagainst the FRY in respect of its conduct in Kosovo
prior to 25 April 1999. In this regard, Belgium notes that Article 80(1) of the
Court's Rulesprovides that "[a] counter-claimmay be presented providedthat it is
directly connectedwith the subject-matterof the claimof the other party and that it
corneswithin thejurisdiction qf the Court."184
260. These are not factors of an academic or abstract nature. The FRY has
attempted, in a peremptory manner,to preclude a full appreciationof the underlying
subject-matter of the dispute. The wilful attempt by the FRY to hive off one
element of the legal dispute thatit brings beforethe Court from other elementsthat
clearly come within the scopeof the dispute as presented in the FRY'sApplication
strikes at the heart of the Optional Clause arrangements. An applicant cannot, by
the device of a temporal limitation in its Optional Clause Declaration, isolate the
elements of the dispute it wishes topresent from the elements of the dispute that it
has no wish to defend. That, in Belgium'scontention, is an abuse of the Optional
Clause arrangements and cannot be relied upon to found the jurisdiction of the
Court. As the Court has observedin another context, when a case isreferred to the
Court, "[tlhe Court must ...examine whether[its]jurisdiction is CO-extensivewith
,Y185
the task entrusted to it . In Belgium'scontention, in the light of the temporal
limitation in the FRY's Declarationbut the scopeof the case as formulated by the
FRY, the Court'sjurisdiction is not CO-extensive with thetask entrustedto it and the
Court must accordingly declinejurisdiction in the matter.
IgFor theavoidanceof doubt, Belgiurnrejectsany suggestionthatthe temporallimitationcould
achievethisend.
IgEmphasisadded. TheCourthasrecentlyconfirmedthata counter-claim cannotexceedthe limits
of the Court's jurisdictas recognisedby theparties. See Applicationof the Conventon the
PreventionandPunishmeno tf the Crimeof Genocide, Counter-clais,rderof 17 December1997,
I.C.J. Reports1997,p.243, atparagraph31; alsoOil Pla@onns(IslamicRepubliof Iranv. United
States of America), Counter-Claim,Order of 10 March 1998, Z.C.J. Reports 1998, p.190, at
paragraph 33.
IsCase of the monetarygold removedfrom Romein 1943 (Preliminary Question), Z.C.J. Reports
1954,p.19, atp.31. ChapterFive
261. For the avoidanceof doubt, Belgium emphasises thatthis submissionhinges
on a purely forma1appreciationof the dispute that the FRYhas brought before the
Court based on the materialthat is beforethe Court at present. It is not a contention
on the merits. It does not join argument with theFRY on, or address in any way,
the substanceof the FRY'sallegations.
(c) The Court's jurisdictionunderthe OptionalClause
262. Three elements require more detailed examination: (i) in respect of
Belgium's principal contention, the dispute between the Parties and the point at
which it crystallised, (ii) in respectof Belgium's subsidiarycontention, the meaning
of the phrase "situations or facts", and (iii) the consequences of the FRY's
allegations concerning post-10 June 1999 events. Each of these elements is
addressedin turn.
(i) ThedisputebeîweenthePartiesandthepoint at which itcrystallised
263. The Court's jurisprudence makes clear that the starting point for the
identification of the dispute with which the Court is seised is the Application
instituting pr~ceedings."~ Where, however, there is disagreement or uncertainty
with regard to the real subjectof the dispute or the exact nature of the claims, the
Court will not be restricted to a consideration of the terms of the Application
alone. lS7In suchcircumstances,
"[ilt is for the Court itself, while givingparticular attentionto the
formulation of the dispute chosen by the Applicant, to determine
on an objectivebasis the dispute dividing the parties, byexamining
the position ofboth parties".lg8
264. The Court will also consider "diplomaticexchanges, public statementsand
9,189
other pertinent evidence .
265. The concept of "dispute''is at the heart of the contentiousjurisdiction of
the Court. The term was defined by the Permanent Court in The Mavrommatis
Palestine Concessions case as connoting"a disagreementon a point of law or fact, a
IgFishedesJurisdictionCase,note 168supra, at paragraph 29.
lXFisheriesJurisdictionCase,note 168supra, at paragraph 29.
IgFisheriesJunsdictionCase, note 168supra, at paragraph30.
IgFisheriesJurisdictionCase,note 168supra, at paragraph31. ChapterFive
conflict of legal views or of interests between two pers on^",'^ a definition adopted
and applied consistentlyby the Court in its own jurisprudence with only minor
variation.19' The key element in this definition is the positive oppositionby one
party of a claimby another .'92
266. As will have been apparent from the discussion of the FRY'S case in
Chapter One above, it is clear that the dispute as formulated by the FRY in its
Applicationwas focusedon the NATO use of force in the FRY by bombing targets
in the FRY. '93It is agreedthat this cornmencedon 24 March 1999.
267. This focus, and the temporal dimensionof the dispute as formulatedby the
FRY, was reiterated by the FRY in its Requestfor the Indicationof Provisional
~easures.'~~It was reiteratedagainby Counselto the FRY in the first round of the
oral hearings on the provisionalmeasures reque~t.'~~
268. The FRY attempted to moveaway from this positionin the course of the
second roundof oral argumentat the provisionalmeasures phasewhen Counsel for
the FRY argued that therewere in fact "a large numberof separatedisputes" arising
from a series of individual, separate, "instantaneouswrongful acts" after 25 April
1999. Based on this analysis,the FRY argued that the Court had jurisdiction over
the disputes that arose after25 April 1999.'~~
269. The Court unambiguouslyrejected this analysisin its ProvisionalMeasures
Order:
"Whereasthe fact that the bombings have continued after 25 April
1999and that the disputeconcerningthem has persisted since that
date is not such as to alter the date on which thedispute arose;
whereas each individualair attack could not have given rise to a
separatesubsequentdispute". 197
TheMavrommatis Palestine ConcessionP,C.ZJ., SerieA, No.2, at p.11.
19As expressedby the Cou~tin the EastTimorcase, "a disputeis a disagreementon a point of law
or fact, a conflictof legal views or interestsbetweenpartiesn (EastTimor(Portugalv. Australia),
Judgment,Z.C.J. Report1995,p.90, at paragraph 22).
19EastTimor,ibid, at paragraph22.
19See paragraphs 26,29-30above.
19See paragraphs34-37above.
19Seeparagraphs39-40above.
19Seeparagraphs43-44above.
19ProvisionalMeasuresOrder,atparagraph29. ChapterFive
270. In the light of this assessmentby the Court, the FRY has chosen not to
pursue this line of argumentin its Memorial, arguinginsteadthat, since the Court's
3,198
Order, "the dispute aggravatedand extended ...matured, through new elements .
The FRY has not argued, however, that these new elements constitute a new
dispute. Rather, in the FRY'scontention,they were "part and parce1of the dispute
related to the bombing" of the FRY.199 The dispute as formulated by the FRY
remains therefore the dispute focused on the use of force by NATO against the
FRY.
271. In the light of the forcgoing, on the basisof the FRY's Applicationas well
as its subsequent submissions to the Court, the dispute before the Court as
characterised by the FRY is a dispute focused on the NATO use of force in the
FRY. This dispute crystallisedon 24 March 1999.
272. Before leaving the FRY's characterisation of the dispute, two further
observations are warranted. First, the FRY's "instantaneous wrongful acts"
argument is patently without merit. The FRY has not pursued this analysisin its
Memorial and there is therefore no need for Belgiumto address it further. It may
however be helpfulto note that such an analysiswould require as a precondition an
act-by-act particularisationof the allegationsagainstBelgium and wouldnecessarily
have to involve thereafter an assessmentof the Court's jurisdiction on the same
basis. Quite apart from the legal shortcomingsof such an analysis, a matter not
addressedhere, the absurdityof this position fundamentallyundermines any residual
credibility this argumentmayhave.
273. Second, Belgium notes that the FRY, during the oral proceedings on
provisional measures, expressly rejected any notion that the NATO action
constituted a "continuing situation".200Nor is this an argument that the FRY has
sought to develop in its Memorial. It is not, therefore, an argument upon which
there is any need for Belgiumto comment. Once again, however, it may behelpful
simply to observe that a "continuingsituation" analysis could not bring within the
jurisdiction of the Court a dispute whichwould otherwisebe excludedby operation
of a temporal limitation in an OptionalClause Declaration merely on grounds that
some aspect of the disputewas not temporallybarred. In other words, the point at
19Seeparagraph61 above.
19Seeparagraph71 above.
2W Seeparagraph44 above. Chapter Five
which a dispute crystalliseswill be determined by the point at which its critical,
originatingelements occ~r.~~'
274. Turning from the dispute as characterised by the FRY to other more
objective pointers on the matter. There is manifest evidence pointing to the
existence of a legal dispute between the FRY and Belgium "well before 25 April
1999concerning the legalityof [the NATO] bombingsas such, taken as a ~hole".~~~
The evidenceto this effect - al1attestingto a disagreementon a point of law or fact
betweenthe Parties - includes interalia the following:
(a) the FRY'S letter of 24 March 1999 addressed to the President of the
Security Council requestingthe conveningof an urgent meeting of the UN
SecurityCouncil "to condemnand to stop theNATO aggressionagainst the
Federal Republicof Yugoslavia and toprotect its sovereigntyand territorial
integrity";203
(b) the FRY'Sdeclarationof a "state of war" in responseto the commencement
of militaryactionby
(c) the various statements made during the course of the 398gthand 3989th
meetings of the UN Security Council on 24 and 26 March 1999
respectively at which the matter of NATO action against the FRY was
considered. These statementsleave no roomfor doubt about the existence
of a disagreementbetweenthe Parties on the question of the NATO action
againstthe FRY;205
(dl a Statement of 25 March 1999 issued by the European Council
(representing the Member States of the European Union, including
Belgium) concerning Kosovo.This noted interalia that
"Europe cannot tolerate ahumanitariancatastrophe in its
midst .. [in which]the predominant populationof Kosovo
is collectivelydeprivedof its rightsand subjectedto grave
human rights abuses. ...An aggressor must know that he
will have to pay a high price. .. Now the North Atlantic
'OSee furtherparagraphs302-308below.
'OProvisionalMeasuresOrder,at paragraph28.
'OS119991322,24 March 1999. (Annex 49)
'OS119991327,24 March 1999. (Annex50)
'OS/PV.3988,24 March 1999(Annex51) and SlPV.3989, 26 March 1999(Annex52). ChapterFive
Alliance is taking action against military targets in the
Federal Republicof Yugoslaviain order to put an end to
the humanitariancatastrophe in Kosovo";206
(el a letter of 25 March 1999fromthe FRY Foreign Minister to the Chairman-
in-Office of the Organisation for Security and Cooperation in Europe
addressingNATO "aggression" againstthe FRY;~'~
(0 a letter of 27 March 1999from the Secretary-Generalof NATO to the UN
Secretary-General indicating that, in response to "serious human rights
abuses and atrocities against the civilian population" the NATO Supreme
Allied CommandEurope had been directed "to initiate a broader scope of
operations to intensifyaction against the Federal Republic of Yugoslavia
forces to compel themto desist from further attacks in Kosovo andto meet
the demandsof the internationalcomm~nity";~~~
(g) a letter of 31 March 1999 from the FRY to the UN Secretary-General
taking issue with NATO's allegationsof FRY non-compliance with the
provisions of Security CouncilResolution 1199 (1998) and noting that,
following the expiry of the period coveredby the NATO report, "NATO
cornmencedan all-out armedaggression against Yugoslavia on 24 March
1999 ..";'O9and
(h) the Conclusionsof the SpecialGeneral Councilof the European Unionon 8
April 1999on the situationinKosovowhichstated interalia as follows:
"The Council is appalled by the human tragedy inflicted
upon the population of Kosovo by the criminal and
barbaric acts being perpetrated by the authorities of the
FederalRepublicof Yugoslavia andSerbia.
In the face of extreme and criminally irresponsible
policies, and repeated violationsof resolutions of the
Security Council, the use of the severest measures,
including military action, has been both necessary and
warranted. The North Atlantic Allianceis taking action
against military targets in the Federal Republic of
Yugoslavia in order to put an end to the humanitarian
'O6S119991342,26 March 1999.(Annex53)
'O7S/1999/35328 March 1999. (Annex54)
'O8S/1999/360, 30 March 1999(Annex55)
209S/1999/367, 1April1999.(Annex56) ChapterFive
catastrophe in Kosovo. The European Union (EU)
emphasises that the responsibility for the armed conflict
that is now taking place lies entirely with President
Milosevic and his regime, who and which deliberately
worked to destroy the chancesof a diplomatic settlement
which others strove so hard, and so exhaustively,to bring
about. "'Io
275. In each case, these documents attest to the existence of a dispute between
the Parties on the questionof NATO militaryaction againstthe FRY from 24 March
1999.
276. Withoutprejudice to any argumentthat Belgiummay wish to make in due
course regarding the more precise temporal dimensions of the dispute, Belgium
would also drawthe followingto the Court'sattention:
(a) the Security Councilhad been seized of the matter of FRY acts in Kosovo
from at least the point of its adoption, on 31 March 1998, acting under
Chapter VI1of the Charter,of Resolution1160(1998)by which it imposed
an arms embargo against theFRY.'" Other action taken by the Security
Councilwith regard to events inKosovoin the periodfrom 31 March 1998
to 24March 1999includes:
(il SecurityCouncil PresidentialStatementof 24 August 1998;"'
(ii) SecurityCouncil Resolution1199 (1998)of 23 September 1998;'13
SecurityCouncil Resolution1203(1998)of 24 October 1998;'14
(iii)
(iv) SecurityCouncil Resolution1207 (1998)of 17November 1998;'15
(v) SecurityCouncil PresidentialStatementof 19January 1999;'16
SecurityCouncil PresidentialStatementof 29 January 1999.'17
(vi)
(b) by a letter of 1 February 1999addressed to thePresident of the Security
Council, the FRY respondeddirectly to a communiquéfrom the Secretary-
General of NATO addressedto the President of the FRY. Noting various
210SI19991414, 13 April 1999. (Anne57)
"' SlRESl1160, 31March 1998. (Annex6)
212SlPRSTl1998125,24 August 1998. (Annex 13)
"3 SlRESl1199, 23 September 1998. (Annex14)
214SlRESl1203, 24 October 1998. (Annex16)
215SlRESl1207, 17 November1998. (Annex 58)
"6 SlPRSTl199912,19January 1999. (Annex 19)
217SlPRSTl199915,29 January 1999. (Annex 59) ChapterFive
demands of the internationalcommunity, this communiquéprovided inter
alia:
"If these steps are not taken, NATO is ready to take
whatever measures are necessary in the light of both
parties' compliance with international cornmitrnentsand
requirements ...The Council has therefore agreed today
that the NATO Secretary-General may authorise air
strikes againsttargets on territory of the Federal Republic
of Yugoslavia. "
In response, the FRY requested the conveningof an emergencymeeting of
the Security Council "in order to prevent aggression againstthe Federal
Republicof Yugos1aui.a 218
by a letter dated 17 March 1999 addressedto the President of the Security
(c)
Council, the FRY addressed"open threats of aggression"by
277. As these documentsattest, the disputeover NATO military actionagainst
the FRY from 24 March 1999had direct and immediateantecedents in the period
prior to this, amatter acceptedby the Agent for the FRY during the oral phase of
the provisional measures pr~ceedings.~~' This antecedentactivityinvolvedaction by
the UN Security Council. As the documentsreferred to in sub-paragraphs(b) and
(c) in paragraph 276 above indicate, this periodalso witnessed thedirect opposition
of NATO andFRY clairns.
278. In the light of this evidence, Belgiumcontends that it is quite clear that a
legal dispute arose between the FRY and Belgium, as it did also with the other
NATO Member States, well before 25 April 1999. As, by operation of the
principle of reciprocity, the Court lacks jurisdiction in respect of disputes arising
between the Parties before25 April 1999, Belgium contends that the Court lacks
jurisdiction under Article 36(2) of its Statutein respect of the case initiatedby the
FRY.
2'8S/1999/107*,3 February 1999, atp.4, paragr5. (Annex 22)
219Sl19991292,17March 1999. (Annex60)
'?OSeeparagraph41 above. Chapter Five
(ii) Themeaningofthephrase "situationsofr acts"
279. Pursuant to the Belgian andFRY Optional Clause Declarations, the Court
hasjurisdiction in legaldisputes arisingafer 25 April 1999 concerningsituationsor
facts subsequent to that date. Asjust noted, Belgiumcontends, principally, that the
Court lacksjurisdiction overthe case initiatedby the FRY asthe disputein question
arose at some point prior to the signature of the FRY's Declarationon 25 April
1999. Although thiscontentionis sufficientto disposeof the matter, Belgium also
contends, as a subsidiarymatter, that the Court lacksjurisdiction by operation of the
second limb of the temporal limitation in the FRY's Declaration, namely, that
jurisdiction will be absent in respect of disputesconcerningsituationsor facts prior
to 25 April 1999.
280. In the event that theCourt accepts Belgium'sprincipal contentionregarding
the point of crystallisation ofthe dispute, this subsidiarycontentionwill not require
further consideration. If, however, the Court was persuaded that a new dispute
arose between theParties subsequent to thesignature of the FRY's Declaration, it
would also be necessary, if the Court was to assumejurisdiction, to show that this
new dispute concerned situationsor facts subsequentto this date. Jurisdiction only
exists in respect of legal disputesarising after 25 April 1999concerningsituations
orfacts subsequenttothatdate.
281. The FRY has notaddressed the temporal dimension of the situations or
facts that it alleges directlyor in anytail. In the context of its arguments on the
question of the temporal dimension of the dispute between the Parties, it has,
however , variously suggestedthat "instantaneouswrongful acts" occurred after 25
April 1999and that "new elements" of the disputeoccurredafter this date.
282. Belgium does not take these references to amount to an argument
concerning the temporaldimension of any alleged situationsor facts. This is not,
therefore, an issue that requires a response from Belgium. As, however, these
referencesraise the risk thatthe terms "situations"and "facts" mighterroneously be
construed simplyto mean "acts" or "elements", some briefdiscussionof the matter
is appropriate.
283. As a preliminarymatter, Belgiumnotes that thephrase "situationsor facts"
is not an abstract concept thatcan be detached from the remainder of the temporal
limitation in the FRY's Declaration. It is directly linked to the "dispute" with ChapterFive
whichthe Court is seised. Insofaras the Court must identifythe dispute withwhich
it is seised, it must also have an appreciationof the situations or facts from which
the dispute arose. Identifying the situationsor facts givingrise to the dispute is thus
inextricably bound up with the identificationof the dispute itself. It is therefore
properly a matter for the Court to addressat this phase of the proceedings.
284. Turning to the meaning of the phrase "situations or facts", the issue has
been addressed both by the Permanent Court and the International Court in a
number of cases including, most significantly, the Phosphates in Morocco and
ElectricityCompanyof SofiaandBulgariacases before the PCIJ221 and the Right of
Passage case before the present Althoughthere is some discussionabout
variations in the nuance of these decisions, there is sufficient consistency in the
thread of these cases for purposes of the present matter to avoid the necessity of a
close comparative scrutiny. Belgium, in any event, is content to rely on the
principal decision of the present Court on the matter - in the Rightof Passage case
- a decisionwhich is commonlyregarded ashaving endorsed thenarrower of earlier
approachesto the interpretationof the phrase in question.
285. Addressingthe meaningof the phrase "situationsor facts" as found in the
Indian Optional Clause Declaration,the Court, in the Rightof Passage case, stated
as follows:
"The facts or situations to which regard must be had in this
connection are those with regard to which the dispute has arisen
or, in other words, aswas saidby the PermanentCourt in the case
concerning the Electriciq Companyof Sofia and Bulgaria, only
'those which must be considered as being the source of the
dispute', thosewhichare its 'real cause'. "223
286. In its subsequent analysisin this case, the Court emphasised that the
relevant situationsor facts are those whichare the sourceof the dispute between the
parties rather than those which are the source of the rights upon which they rely.
This approach is consistent with that adopted by the Court in respect of the
definition of a "dispute" to the effect that itinvolves a disagreementor conflict or
oppositionbetween the partiesin question. The relevant situationsor facts are, in
'" PhosphatesinMorocco,note 170supra; andElectricityCompanyof SojïaandBulgaria,P.C.Z.J.,
SenesA/B, No.77.
'" CaseconcerningRightofPassageoverZndianTerritory (Merits),.C.J.Reports1960, p.6.
223RightofPassageCase,ibid,atp.35. ChapterFive
other words, the situationsor factsthat are the proximatecause of the disputebefore
the Court.
287. As Belgium reads the statement from the Right ofPassage case quoted
above in the context of the present case, even if the FRY were able to show that a
dispute arose after25 April 1999, it wouldalso have to showthat the situations or
facts "with regard to whichthe disputehas arisen" or "which mustbe considered as
being thesourceof the dispute" occurred afterthis date.
288. The FRY has made no attempt to developsuch a case. Belgium contends
that no credible case couldbe cievelopedon this point. Even if a dispute were found
to have arisen after 25 April 1999, the relevant situations or facts - whether by
reference to the terms of the FRY'S Application or its wider submissions to the
Court - wouldbe those of the NATOuse of force inthe FRY. In other words, they
wouldbe situationsor facts that in their origin and in otherritical respectspredated
the signatureof the FRY Declaration.
289. Belgium further contends that the terms "situations" or "facts" do not
connote a series of isolated, disjointed events. They are collectivenouns that refer,
as the Court made clear in the RightofPassage extract quoted above, to the events
or circumstanceswhich are the source of the dispute; ie, to the events as a whole,
not to individualacts in isolation. Where, in theirorigin, the situations or facts
whichgive rise to, or are the sourceof, a disputepredate the relevant "crucial date"
in an Optional Clause Declaration, the Declaration must be construed as being
insufficient to constitute a basis of consent to the jurisdiction of the Court.Any
other interpretationwouldbe contrary to the Court'spositionof trustee in respect of
these Declarations. The consent of a state cannot be irnpliedin circurnstances in
which the situations or facts giving rise to the dispute in question predate the
"crucial date" relevantto theCourt'sjurisdiction.
290. Turning to the identificationof the relevantsituationsor facts which gave
rise to, or were the source of, the dispute before the Court, this will be closely
bound up with the identificationof the dispute withwhich the Court is seised. It
will thus be closely connected to theexercise addressedabove concerning the point
of crystallisationof the disputenitiatedby the FRY.
291. This close connection notwithstanding, there is some indication in the
jurisprudence that the exercise of identifying thesubject-matterof the dispute - as ChapterFive
opposed, more generally, to the dispute itself - will involve a narrower
methodologicalexercise. Thus, in the Phosphates in Morocco case, the Permanent
Court limited its examinationto the "facts and circumstances"set out in Application
a10ne.~~~ Broadening this approach slightly,the present Court, in the Interhandel
Case, stated that "the subjectof the present dispute is indicated in the Application
and in the Principal Final Submissionof the Swiss Go~ernment".~~~ Both separate
and dissenting views in this case suggested, however, that the exercise may be
broadened further to include theApplicant'sMem~rial.~~~
292. In the context of the present case, the necessity of identifying the relevant
situationsof facts would only arise in the event that theCourt were to conclude that
the FRY had establishedthat a new dispute arose after25 April 1999.
293. It is not for Belgiumto suggest, evenarguendo, what such a "new dispute"
mightbe, particularly in circumstancesin which the FRY hasexpressly rejectedany
notion that the dispute thatit has brought before the Court is any other than the
disputeover NATO's useof force inthe FRY. Belgiumsimplyobserves, therefore,
that, whether one looks at the FRY's Application alone, its Application in
conjunction with its Principal Final Submission,or its Applicationin conjunction
with its pleadings more generally, the subject-matterof the dispute is unavoidably
the NATO militaryaction in the FRY that began on 24 March 1999. Whatever
characterisation is given to the dispute, the "situations or facts" with regard to
which the dispute arose or which must be considered as being the source of the
dispute are therefore situationsor facts that occurredprior to 25 April 1999. This
being the case, Belgiumcontends, that, even if the Court were to concludethat the
FRY had established that anew dispute arose in the period after 25 April 1999, the
Court would lackjurisdiction pursuantto the second elementof the FRY's temporal
limitation, namely, that the dispute concerned situationsor facts that arose prior to
the "crucial date" in the FRY's OptionalClause Declaration.
224PhosphatesinMorocco,note 170supra, at p.21.
225Interhandel Case(Switzerlandv.United Statesof America) (PreliminaryObjections), 1.C.J.
Reports1959, p.6, at p.21.
226See the Separate Opinion of Sir Percy Spender, ibid, at p.62 and the Dissenting Opinion of Sir
Hersch Lauterpacht, ibid, at p.9In a concurring declaration, Judge Basdevant considered that
attention had to be directed towards "the subject of the dispute and not to any particular claim put
forward in connectionwith the dispute" (ibid, at p.30). ChapterFive
(iii) TheFRY'sallegations concerningpost-10 June 1999 events
294. The FRY's allegationsin respect of the post-10 June 1999 period have
already been addressed in Chapter Two above. Belgium there contended that the
Court lacksjurisdiction in respect of these allegationsandlor that these allegations
are inadmissible. This is Belgium's principal contention concerning these
allegations.
295. Given the Court's ProvisionalMeasuresOrder, these allegationsare critical
to the FRY's case on jurisdiction as, absent these "new elements", it may be
assumed thatthe Court would endorse the conclusion expressedin its Order to the
effect that the legal disputebetween theParties arose "wellbefore 25 April 1999".
It may be expected, therefore, that this element of the FRY's case will feature
prominentlyin any future submissionsby the FRY on this phase of the case. These
allegations accordingly warrantsomefurther commentby Belgium.
296. Without detracting fromBelgium's principalcontentionon this matter, the
question arises of the effect ofhese allegations onthe FRY's clairn to jurisdiction
under the Optional Clause in the event that the Court were to conclude that it has
jurisdiction toconsider these allegations and that these allegations are admissible.
In other words, do the FRY's allegationsin respect of the post-10 June 1999period
alter the assessment advanced abovethat the disputein questionarose well before 25
April 1999and that the Court, accordingly,lacksjurisdiction in respect thereof?
297. In Belgium's contention,the FRY's allegationsconcerning post-10 June
1999 events do not alter the assessmentthat the Court lacks jurisdiction under
Article 36(2)of its Statutein the case initiatedby the FRY.
298. Two readings of the FRY's allegations concerning post-10 June 1999
events are possible: (a) that they concern the same dispute as was raised by the
FRY's Applicationof 29 April 1999,or (b)that they concern a new dispute, one not
raised in the FRY's Application. Of these possibilities, the FRY has expressly
advancedonly the first of these arguments,ie, that itsallegations concerningpost-10
June 1999 events "are part and parce1of the disputerelated to the bombing of the
territory of theppli~ant".~" In keeping with thisargument, the FRY has asserted
that its allegations concerningpost-10 June 1999 events constitute "some of the
22FRY Memorial, at p.339, paragraph 3.2.12. Chapter Five
constituent elements of the dispute ... which started to arise before 25 April
1999" ."*
299. In Belgium's contention, it makes no difference which of the two
possibilitiesjust identifiedis preferred. In either case, the allegations concerning
post-10 June 1999 events do notserve to bring the FRY's case within the scope of
the temporal limitation inits OptionalClause Declaration.
300. Of these possibilities, Belgium submits that the "same dispute" analysis is
to be preferred as this reflects the manner in which the dispute has been
characterised by the FRY as the party initiating the proceedings. It is not for
Belgium -nor, for that matter, for the Court - to recastthe FRY's arguments.
301. In respect of this analysis, the argumentadvancedabove on the issue of the
identificationof the dispute and the point at which it crystallised applies equallywith
respect to the allegationsconcerning post-10 June 1999events. In other words,
these allegationsare, on the FRY's assertion, "part and parcel" of the dispute that
arose between theParties sometimeprior to 25 April 1999. They, together with the
dispute more generally,accordingly fa11outsideof thejurisdiction of the Court.
302. One additionalcommenton this analysisis required. The FRY has asserted
en passant and without further explanation that its post-10 June 1999 allegations
constitute "someof the constituentelementsof the dispute ...which started to arise
before 25 April 1999". Its purpose in doing so is to attemptto haul the disputewith
which theCourt is seised into thepost-25 April 1999period and thereby toestablish
the Court's jurisdiction. Thus, the FRY asserts that the dispute "has arisen in full
after 10 June 1999 ...[and is therefore] withinthe compulsoryjurisdiction of the
Court" .229
303. As Belgiumhas previouslyobserved, the FRY, during the oral proceedings
on provisional measures, expressly rejectedany notion that the NATO action
constituted acontinuingsituation,viz:
"Mr President, the Canadian Agent mentioned last Monday a
'continuing situation'to describe the use of force by the NATO
member States since 24 March. Yugoslaviadoes not accept this
description ...
--
''FRY Mernorial, at p.340, paragraph 3.2.14.
''FRY Mernorial, at p.340, paragraph 3.2.14. Chapter Five
Nor can there be any questionof subsumingthetotaliv of these
acts into a single and exclusivedispute which, as it were, would
absorbthe subsequentdisputesthat have effectivelyarisen. "230
304. In the light of this statement, it is not clear what should be made of the
FRY'Sunexplained "constituent elements" assertion. Subjectto fürther argument
on this point by the FRY, Belgium cannot accordingly commentusefülly on the
matter.
305. For the avoidance of doubt, it may nevertheless assist the Court for
Belgium to elaborate briefly on an observation it has already made.231 A
"constituent elements" or "continuing situation" analysis cannotbring within the
jurisdiction of the Court a dispute thatwould otherwisebe excludedby operation of
a temporal limitation in an Optional Clause Declaration merely on grounds that
some aspect of the dispute falls outside of the "crucial date". For purposes of the
jurisdiction of the Court, the point at whicha dispute arises will be determined by
the pointat which its critical, originatingelementsoccur.
306. Thus, the Permanent Court, in the Phosphatesin Morocco case, drew a
distinction between the situations or facts which constitute "the real cause of the
dispute" and those "subsequent factors which either presume the existence or are
merely the confirmationor developmentof [the] earlier [constitutive]situations or
fa~ts".~~~ On this analysis, the point of crystallisation ofa dispute was determined
by "the essential facts constituting ...the tlisp~te"~~a nd not by facts which "in no
way altered the situation which had been e~tablished".~~~Nor could cornplaints
which could not be separated from the dispute that had crystallised prior to the
"crucial date" give the Courtjurisdi~tion.~~~
307. The same analysis is evident in the Court's Judgment in the Right of
Passage Case. While the Court there observed that the dispute in question could
not arise "until al1its constituent elementshad come into existence",236 the critical
factor underlying its analysis was that the essential constitutive element of any
dispute was the point at which the parties "adopt clearly-defined legalpositions as
230Statementby Mr Corten, CR 99/25, 12May 1999,Translation,at p.11(emphasis added).
231Seeparagraph273 above.
'" PhosphatesinMorocco,note 170supra, at p.24.
"3 PhosphatesinMorocco,note 170supra, at p.26.
'34PhosphatesinMorocco,note 170supra, at p.27.
235PhosphatesinMorocco,note 170supra, at pp.28-29.
236RightofPassageCase,note222 supra, at p.34. ChapterFive
YY237
against each other . The Court in this case thus identified thepoint at which the
dispute in question crystallisedby reference to the essential situationsor facts, or
those whichwere the "real cause" of the
308. Applying these principles to the circumstances of the present case, it is
evident that a "constituent elements"or "continuingsituation" analysisbased on the
FRY's allegations concerningpost-10June 1999events couldnot serve to bring the
already crystallised pre-25 April1999 dispute within the jurisdiction of the Court.
Taking the FRY'Scase in its ownwords, its post-10June 1999allegations "are part
and parce1of the disputerelated to the bombingof the territory of the Applicant" .239
They are, in the languageof the Permanent Court in the Phosphates inMorocco
Case, subsequent factorswhich amountto a developmentof the earlier constitutive
situationsor facts, which did not alter the situationwhich had been established and
which could not be separatedfrom the dispute thathad crystallisedprior to 25 April
1999.
309. Turning to the "new dispute" argument, notwithstanding the FRY'S
expressed preference for a "same dispute" analysis, there are grounds for
considering that the FRY'S allegations concerningpost-10 June 1999 events in
reality amount to a new, quite distinct dispute. As noted in paragraph 86 above,
these allegationsraise issuesof a fundamentallydifferent naturefrom those raised in
respect of the pre-10 June 1999period. These are likely to include inter alia: (a)
the interpretation and applicationof Security CouncilResolution 1244 (1999), (b)
the responsibility of UN members acting pursuant to a mandate laid down in a
binding resolutionof the Council, (c)the law applicable toforces acting pursuant to
a UN mandate, (d) the imputabilityof acts to individualtroop-contributing states,
(e) the application of the Genocide Convention to situations involving UN
peacekeeping or peace-enforcement operations, and (f) questions relating to the
irnrnunityof states andlor forces engaged in such operations. These allegations do
not come withinthe scopeof the case initiatedby the FRY'sApplication.
310. In Chapter Two, Belgium contended that theCourt lacks jurisdiction in
respect of these allegationsandlor that they are inadmissibleon the ground that they
are new claimsadvancedfor the first time in the FRY'SMemorial. The argument
and analysis there advancedapply mutatismutandisto the proposition addressed in
this part that the allegationsin questionamountto a new dispute. The Court lacks
237RightofPassageCase,note222 supra,atp.34.
238RightofPassageCase,note222 supra,atp.35.
239FRY Memorial,atp.339, paragraph3.2.12. ChapterFive
jurisdictionin respect of allegations setout in the FRY'sMemorial that seek toraise
a new disputeandlor these new allegationsare inadmissible.
311. One additional observation on this matter is required. There is long-
standingjurisprudence of both the PermanentCourt and International Court to the
effect that the Court ccshouldnot penalise a defect in a procedural act which the
Y,240
applicant could easily remedy . Lest there be any suggestion that this principle
might avail the FRY in respect of the "new dispute" analysishere in issue, Belgium
notes that the case law relevant to this principle is concerned either with situations
involvingshortcomingsof f~rm~~o 'r with circumstancesin which the applicant had
relied on a basis of jurisdiction which was in some way irnperfe~?~~ or failed
initiallyto identifya basis ofjurisdictionon whichit subsequentlysoughtto
312. This is not the situationin the present case. In this case, the "new dispute"
hypothesis would take the FRY to have submitted to the Court an entirely new
dispute en passant in the course of argument developedin its Memorial. This
would not be a mere matter of form or a "defect in a procedural act". This would
be a developmentof substanceof the utmost importance insofar as it would purport
to implead Belgiumin passing in the absenceof any indicationof the legalgrounds
upon whichthejurisdiction of the Court was said to be based or any specificationof
the precise nature of the claim. In Belgium'scontention, the principlerelating to
defects of a forma1nature can have no place in any considerationof the matter here
in issue.
313. On the basis of the preceding observations andanalysis, Belgiumcontends
that the FRY's allegations concerningpost-10 June 1999 events do not alter the
assessmentadvancedin the earlier parts of this Chapter to the effect that the Court
lacksjurisdiction under Article 36(2) of its Statutein the case initiatedby the FRY
in consequenceof the temporallimitationinthe FRY's OptionalClause Declaration.
4. Conclusions
314. If, contrary to Belgium's contention in Chapter Four above, the Court
accepts that the FRY was competentto make a Declarationunder Article 36(2) of
'4Applicationof the Convention onthe Preventionand Punishmeno tf the Crimeof Genocide,
PreliminaryObjections,Judgment,Z.C.J. Reports1996,p.595, atparagrap26.
24ASin the CaseconcerningtheNorthernCameroons(Cameroonv. UnitedKingdom), Preliminary
Objections1.C.J. Reports,p.15, aty.28.
24ASintheGenocideConvention Case,note240 supra,atparagraph 26.
'4ASintheNicaraguaCase,note169supra,atparagraph 83. ChapterFive
the Statute, Belgiumcontendsthat the FRY'sDeclarationof 25 April 1999cannot in
any event give the Court jurisdiction in this case. In this regard, Belgium's
principal submissionsin this Chaptermaybe sumrnarisedas follows:
(a) on the basis of the principle of reciprocity, the Belgian and FRY Optional
Clause Declarationscoincideto give theCourtjurisdiction in legal disputes
arising after 25 April1999concerningsituations orfacts subsequentto that
date;
the Court lacksjurisdiction in this matter as the dispute with which it was
(b)
seisedis a disputethat arose prior to 25 April 1999;
(c) separately, the Court also lacks jurisdiction in this matter on the ground
that the dispute with which it has been seised concerns situations or facts
that aroseprior to 25 April 1999;
(d) furtherrnore, in the light of the temporallimitationin the FRY's Optional
Clause Declaration, the Court's jurisdiction is not CO-extensivewith the
task entmsted to it. The Court must accordinglydecline jurisdictionin this
matter; and
whether construedas being part and parce1of the dispute thatarose prior to
(e)
25 April 1999or as constituting a new dispute arising after that date, the
FRY's allegations concerning post-10 June 1999 events do not alter the
assessment that the Court lacks jurisdiction under Article 36(2) of its
Statutein the case initiatedby the FRY.[blank] ChapterSix
CHAPTER SIX: THE COURT DOESNOTHAVEJURISDICTIONON THE
BASISOF ARTICLE IXOP THE GENOCZDE CONVENTION
315. In Chapter Four, Belgium contended that theCourt was not open to the
FRY. The FRY is not a party to the Statute. Nor can Article IX of Genocide
Conventionbe construed to be a special provision in a treaty in force within the
scope of Article 35(2) of the Statute. Absent an entitlement to appear, the FRY
cannot rely on Article IX of the GenocideConventionto found jurisdiction in this
case.
316. If contrary to these contentions, the Court concludes that it does have
jurisdiction ratione personae in respect of proceedings initiated by the FRY,
Belgium contends that Article IX of the Genocide Convention cannot in any event
give the Courtjurisdiction in this case. The reason for thisstraightforward. The
acts allegedby the FRY do not come within the scopeof the GenocideConvention.
The dispute is thus not one that the Court has jurisdiction ratione materiae to
entertainpursuantto ArticleIX of the Convention.
317. More specifically, Belgium contends that the FRY'S allegations, even if
accepted, are not capableof sustainingan argument thatthere has been a breach of
the Genocide Convention.mirsuant to thejurisdictionaltest laiddown by the Court
in the Oil Platformscase, the Court must ascertain at this stage whether the
violations pleaded by the FRY fa11 within the provisions of the Genocide
onv vent ion.^ I^^ Belgium's contention, they do not. The FRY cannot,
accordingly, rely on Article IX of the Convention to foundurisdiction in this case.
The issuesrelevantto thiscontentionare addressed furtherbelow.
1. ArticleIX of the GenocideConvention and the natureof the test to be
satisfiedat thejurisdictionalstage
318. Article IX of the Genocide Conventionrovidesas follo~s:~~~
"Disputes between the Contracting Parties relating to the
interpretation, applicationor fulfilmentof the present Convention,
includingthose relatingto the responsibilityof a Statefor genocide
or for any of the other acts enumeratedin article III, shall be
244Oil Plafforms(ZslamRepublicof Irav.United Statesof America),PreliminaryObjections,
Judgment,1.C.J.Reports1996,p.803, atparagr16.
245Thetextof theGenocide Convents atAnnex1. ChapterSix
submittedto the InternationalCourt of Justice at the request of any
of the parties to the dispute."
319. The scope of the Article is clear. It constitutes "a basis on which the
jurisdiction of the Court might be founded to the extentthat the subject-matterof the
3,246
dispute relatesto 'the interpretation, applicationor fulfilment'of the Convention .
The Court will accordingly havejurisdictionpursuantto this provisionin the case of
allegations concerningacts that come within the scope of the Convention ratione
materiae and in respect of such acts only. Article IX of the Genocide Convention
does not constitute a basis on which thejurisdiction of the Court may be founded
more generally .
320. The scope of the Genocide Convention isevident from its terms. Thus,
insofar as is relevantfor present purposes, ArticleII definesgenocideas follows:
"ArticleII - In the present Convention, genocide means any of
the followingacts committed with intentto destroy, in whole or in
part, a national, ethnical, racialor religiousgroup, as such:
(a) Killing membersof the group;
(b) Causing serious bodily or mental harm to members of the
group;
(c) Deliberately inflicting on the group conditions of life
calculated tobring about its physicaldestruction inwhole or in
part;
(d) Imposing measures intended to prevent births within thegroup;
(e) Forcibly transferringchildrenof the group to another group."
321. As this makes clear, the essentialfocus of the Conventionis the protection
of national, ethnical, racialor religious groups. At its mostfundamental,the crime
of genocide thus involvesacts directedat these particular protectedgroups. Within
this scheme, two essentialelementsdefinethe crime: theactus reus, the commission
of any of the acts enumeratedin paragraphs(a) - (e) of Article II, and the mensrea,
the intentionto destroy, in whole or in part, the protected group againstwhich the
acts were directed. Of these elements, it is the mens rea of the offence that
constitutesthe "essentialcharacteristic"of gen~cide.*~~
24ProvisionalMeasuresOrder,at paragraph37.
247Application of the Convention onthe Preventionand Punishment f the Crimeof Genocide,
ProvisionalMemures,Orderof 13 September1993,I.C.J. Reports1993,p.325, at paragraph42. ChapterSix
322. Insofar as these elements define the crime of genocide, they also, for
present purposes, identify theessential parametersof the scope of the Convention
ratione materiae. Thus, in the case of a claim of genocide, if the Court is to have
jurisdiction pursuant to Article IX of the Convention, the specific allegations
pleadedmust fa11withinthe parameters of these elementsof crime. The allegations
pleaded must, in other words, be capable of sustainingan argument that there has
been a breach of the Convention.
323. The nature of the jurisdictional testto be applied in cases such as this has
been addressed most recentlyby the Court in the Oil Platforms case. Noting that
the parties in that case differedon the questionof whetherthe dispute betweenthem
was a dispute "asto the interpretationor application"of the relevantconvention, the
Court stated:
"In order to answer that question, the Court cannot limit itselfto
noting that one of the Parties maintains that such a dispute exists,
and the other denies it. It must ascertainwhether theviolationsof
the Treaty ...pleaded ..do or do not fa11within the provisions of
the Treatyand whether, as a consequence,the dispute is one which
the Court hasjurisdiction ratione materiae to entertain, pursuant to
[the relevantjurisdictional clause]."248
324. As isevident from a number of the SeparateOpinionsin that case, the test
embodied in this statement is one which requires the Court to make a definitive
interpretationof the relevant conventionat thejurisdictional phase for purposes of
determining whether the claims raised come within the scopeof the convention
ratione rnateri~e.'~~As the Court expressedthe matter in the Genocide Convention
case, the task of the Court at the jurisdictional stage is to "verify" whether the
disputefalls within the scopeof the conventionin question.250This requirement of a
definitive interpretationof the relevant conventionat thejurisdictionalphase reflects
the approachadoptedby the PermanentCourt in the Mavrommatis case.251
325. As the Separate Opinion of Judge Higginsin Oil Platfomzsdescribes, the
jurisdictional test applied in cases such as this has varied over time. Thus, for
example, in contrastto the approachadoptedin OilPlatforms, the test applied in the
248OilPlafforms,note244 supra.
249See, in particular, the SeparateOpinionsof Judge Shahabuddeenand Judge Higgins, note 244
supra, at pp.822 and 855respectively.
''OApplicationof the Conventionon the Preventionand Punishmentof the Crime of Genocide,
PreliminaryObjections,Z.C.J. Reports1996,p.595, at paragraph27.
"' Mavrommatis Palestine ConcessionP,.C.Z. . Reports,SeriesA, No.2, atp.16. Chapter Six
Ambatielos case was whether the arguments advancedin respect of the treaty
provisionson which the claimwas based "are of a suficientlyplausiblecharacterto
warrant a conclusionthat the claim is based on the Treaty."252A similar approach
was evident in the Interhandeland Nicaraguacases in which the Court stated,
respectively, that it would "confine itself to considering whether the grounds
invoked ...are such as to justiQ the provisional conclusionthat they may be of
relevance in this case" and that "a reasonableconnectionbetween the Treaty and
e~tablished.'~~
the claims submitted to theCourt" must be
326. Notwithstanding thisstrand of jurisprudence, inthe light of Oil Platfomzs,
it is apparent that the testto be appliedin the present case is whether theallegations
raised by the FRY come definitively within the scope ratione materiae of the
Genocide Convention.The issue is thus essentially whether, even takingpro tem
the facts as allegedby the FRY, they are capableof coming within the terms of the
Convention. As the Courtobservedin its Provisional Measures Order:
"...in order to determine, even prima facie, whether a dispute
within the meaning of Article IX of the Genocide Convention
exists, the Courtcannot limit itselfto notingthat one of the Parties
maintains thatthe Conventionapplies, while theother denies it; ..
the Courtmustascertain whether the breachesof the Convention
allegedby Yugoslavia are capableoffalling withintheprovisions
of that instrument and whether, as a consequence, the disputeis
one which theCourt has jurisdiction rationemateriaeto entertain
pursuant to Article IX(cf. Oil Platforms(IslamicRepublicof Iran
v. United Statesof America), PreliminaryObjection,Judgment,
I.C. J. Reports1996 (II),p.810, para.16)".254
327. In Belgium'scontention, evenacceptingpro temthe facts as allegedby the
FRY, the violationspleaded are not capable of falling within the provisionsof the
Genocide Convention.Article IX of the Convention cannot accordingly be relied
upon to foundthejurisdictionof the Court in this case.
328. For completeness,Belgium observes that, even on the Ambatielosline of
jurisprudence noted above, the breaches allegedby the FRY do not comewithin the
scope ratione materiaeof the Genocide Convention.The facts alleged and the
252AmbatielosCase (Greecev. UnitedKingdom),I.C.J. Reports 1953,p.10, at p.18 (emphasis
added).
ISInferhandel Case,.C.J.Reports1959, p.6, atp.24 (emphasisadded);CaseConcerningMilitary
and Paramilitary ActivitieisnandAgainstNicaragua (Nicarag. UnitedStates),Jurisdictionand
Admissibility,1.C.J. Repo1984,p.392,atparagraph81 (emphasis added).
25ProvisionalMeasuresOrder,atparagraph 38 (emphasis added). ChapterSix
arguments advancedby the FRY are not of a "sufficiently plausiblecharacter" to
warrant the conclusion thatthe FRY'Sclaims come properly withinthe scope of the
Genocide Convention.
2. TheFRY'S allegations
329. The FRY'Sallegationsof genocideare stated in the barest terms. Indeed,
in its Application, the FRY makes no explicit mention of "genocide" contending
simplythat Belgiumhas violated"the obligationnot to deliberately inflict conditions
of life calculatedto cause the physical destructionof a nationalgr~up".~~~ The only
elaborationof this takes theform of the allegationthat
"by taking part in activities listed above [involving the use of
force], and in particular by causing enormous environmental
damage and by using depleteduranium, TheKingdomof Belgium
has acted against the Federal Republic of Yugoslaviain breach of
its obligation not to deliberately inflicton a national group
conditionsof life calculatedto bring about its physicaldestruction,
in wholeor in part 3.256
330. Under the heading"facts uponwhich the clairnis based", this allegation is
varied slightly insofar as it refers to "conditions calculated at the physical
destruction of an ethnicgroup, in whole or in part".257Whether anything is to be
made of these alternate referencesto a national groupand an ethnic groupis not
clear. Given, however, that the fundamental elementof genocide is that it involves
acts directed at a particular group, the evident lackof clarity about the identity of
the group in issue raises, at the very least, a question about the sufficiencyof the
FRY'Sparticularisationof its claimunder this heading.
331. Giventhe seriousnessof the allegations,the portion of the FRY'SMemorial
devotedto developingits claimof genocide is astonishinglyshort.258Thus, focusing
on the period of the NATOaction - ie, the periodfrom 24 March to 9 June 1999 -
under the heading "[tlhe facts related to the existence of an intent to commit
genocide by the bombing, causing environmental disaster and using depleted
uranium",259 theFRY advancestwo allegationsin the followingterms:
255FRY Application, at 1.(Subjectof the dispute). See also at p.5 (Legal groundson which the
claim isbased).
256FRY Application, atp.3 (Claim).
"' FRY Application, atp.4 (Factsupon which theclaimis based)(emphasisadded).
2'8FRY Memorial,pp.282-284.
259FRY Memorial,p.282, paragraph1.6.1. ChapterSix
First
"The Respondents intentionallybombed chemical industry plants
(in Pancevo, especially) which are not known for any military
purposes while at the same time it is a well-knownfact that their
destruction and damaging have extremelysevere consequencesfor
health of a large numberof people in a very wide area. ...
Genocidal intentionof the responsible individuals for the strikes
against chemicalindustry facilitiesin Yugoslavia is clearly implied
by destructionof the plantsof this industryin Pancevo. "
Second
"Scientists at a conference on depleted uranium and cancers in
Iraq, held on30 July 1999,contended that depleteduranium shells
can cause birth defectsand serious illness, includingcancers. Mr.
Coghill, a biologist who mns a research centre in Gwent, Wales,
said: 'Wethinkthere willbe 10,000extra deaths in Kosovo'."
332. No further detail is provided in support of these clairns. It is not alleged
that Belgium was responsiblefor the bombing of the facilities at Pancevo, nor that
Belgium used depleteduranium. No indicationis given of large scaleloss of life or
injury. No indicationis given of the identityof the group againstwhichthe alleged
acts are said to have been directed. Apart fromthe suggestion thatthe mens rea of
genocide isto be impliedfrom the act of bombingof the Pancevofacilities, nothing
further is adduced in support of the allegation of Belgium's intent to commit
genocide.
333. Addressing theperiod from 10 June 1999, the FRY, under the heading of
"[tlhe facts related to the existenceof an intent to commit genocideby killing and
wounding Serbs and other non-Albaniangroups in Kosovo and Met~hija",'~'states
as follows:
"The intent to commit genocideis implied in the fact that Serbs
and membersof other non-Albaniangroups were killed, injured or
expelled as such, it is due to their ethnicity. Proof of intent to
commit genocideis inferred from the fact that great majority of
Serbian institutions, like monasteries, churches, monuments of
260FRY Memorial,p.283,paragraph1.6.2. ChapterSix
cultures and Orthodoxtombstoneson cemeterieswere destroyed or
damaged ."261
334. No further detail is provided in supportof this claim. It is not allegedthat
Belgiumcommittedany of the acts thatare the subjectof this claim. The allegations
of fact concerning thisperiod chargeuniformly thatthe acts allegedwere committed
by "Albanianterr~rists".~~'Althoughthe allegationsidentiQ acts said to have been
perpetrated against Serbs, they also identify acts said to have been cornmitted
against others - Roma, Muslims, Turks and other non-Albanian per~ons.'~~The
identity of the group against which the genocidalacts are alleged to have been
directed is thus unclear. No documentary evidenceis provided in support of any of
these allegations.
335. Surnmingup its claimsunder Article IX of the Genocide Convention, the
FRY concludesas follows:
"By this Memorial, the Applicant has submitted theevidence on
the intent to commit genocidereferring to acts of the Respondents
(acts of bombing) andto acts of killing and woundingof Serbs and
other non-Albanian populationin Kosovo and Metohija after the
IOthof June 1999. Accordingly, the Applicant claims that the
jurisdiction of the Court, based on Article IX of the Genocide
Conventionis e~tablished."~~~
336. This constitutes the sum total of the FRY's claims under the Genocide
Convention.
337. On the basis of these claims, the FRY'Sallegationsin respect of the pre-10
June 1999 period appear to be that Belgium is in breach of the obligation under
Article II(c) of the Convention not to deliberatelyinflict on a protected group
conditions of life calculated to bring about its physical destruction in whole or in
part. In the absenceof anyexpress indicationon the matter, the basis of the FRY's
allegationsin respect of the post-10 June 1999 periodis less clear. From its clairns
in respect of this period, the FRY appears, however,to be allegingthat Belgium is
in breachof Article II(a) or (b) of the Conventionconcerning the killingof members
of a protected groupor causing seriousbodily or mentalharm to members of such a
group.
261FRY Mernorial,at p.283, paragraph 1.6.2.1.
262FRY Memorial, at pp.201-282.
263See, for example,the FRYMernorial,atpp.210-211, 221-222, 233and 240.
261FRYMernorial,at p.349, paragraph 3.4.3. ChapterSix
3. The breaches alleged by the FRY are not capable of falling within the
provisions of the Genocide Convention
338. The shortcomingsof the FRY'Sallegationsare manifest. There is a quite
fundamentalabsence of essential detail. The group againstwhich the alleged acts
are said to have been directed is not identified. The allegations donot indicate
specific acts said to have been committedby Belgium whichare alleged to amount
to genocide. Nothing of substance is said about the actus reus of the alleged
breaches. The questionof mens rea is addressed inpassingon the basisof two brief
sentences suggestingthat intent to commit genocideis to be implied from the facts
alleged.
339. The test at this stageof the proceedingsis whether the violationspleaded by
the FRY fall, or are capable of falling, within the provisions of the Genocide
Convention; whether they are capable of sustaining a claimunder the Convention.
In Belgium'scontention, even taking pro tem the facts alleged,they are not capable
of sustainingsucha claim. At a forma1level, the allegationsdo not addressmatters
that would be fundamentaltc any credible claim of genocide. At a substantive
level, the essential, defining elementsof genocide theactus reus and mens rea of
the crime - have not been addressed other than by the barest of propositions.
Furthermore, as is addressedbelow, the acts alleged cannotof themselvesconstitute
genocide within the meaning of Article II of the Convention. The allegation of
intent to commit genocide alsofalls so far short of establishedlegal standardsthat it
cannot sustain a claim under the Convention. The violations pleadedby the FRY
are not therefore capable of falling within the provisions of the Genocide
Convention.
340. Three elementswarrantfurther comment:
(a) the requirement to show that the acts alleged weredirected against a
protected group;
(b) the requirementto show that Belgium comrnittedacts with the intention of
destroying inwholeor in part the group in questionas such (the mens rea
of the offence);and ChapterSix
(c> the requirementto showthat Belgiumcornmitted theacts alleged (theactus
reus of the offence).
341. Before turning to address these matters, a prelirninary observation is
warranted. The GenocideConvention is a treaty withspecialcharacteristics. As the
Court observedin its ReservationsAdvisory Opinion:
"... it was the intentionof the United Nationsto condemn and
punish genocide as 'a crime under international law' involving a
denial of the right of existence of entire human groups, a denial
which shocksthe conscienceof mankindand results in great losses
to humanity, and which is contrary to moral law and to the spirit
and aims of theUnited Nations (Resolution96 (1)of the General
Assembly , December 1l", 1946). "265
342. While the Convention was adopted, in the words of the Court, "for a
purely humanitarianand civilisingpurpose 3,266its principal focus is not the conduct
of hostilities in the course of armed conflict. Although such conduct may corne
within the purview of the Convention,it will only do so to the extent that the mens
rea and actus reusof the offencecan be shown. This point emerges clearly from
the Court's Advisory Opinionon the Legality of the Threat or Use of Nuclear
Weapons .267
343. In this regard, as the Court observedin its Provisional Measures Order, the
essential characteristicof genocide is the intendeddestructionof a national,ethnical,
racial or religious group, as su~h.'~' Whatever the wider issues raised by such
conduct, "the threat or use of force against a State cannotin itself constitute an act
of genocide withinthe meaningof ArticleII of the GenocideConvention" .269
344. Insofar as the present case is concerned, the issue is thus whether the
FRY'Sallegations, on their face, adduceevidence showingboth Belgium'sintent to
destroy, in whole or in part, a national, ethnical, racialor religious group and the
commissionby Belgiumof acts coming withinparagraphs (a) - (e) of Article II of
the Convention.
26Reservationsto the Conventionon Genocide,AdvisoryOpinion, Z.C.J. Reports1951, p.15, at
p.23.
26Id.
'6Legalityof themreat or UseofNuclearWeapons,AdvisoryOpinion, Z.C.J. Report1s996, p.226,
atparagraph26.
"'ProvisionalMemuresOrder,atparagraph 40.
26Id. ChapterSix
(a) The requirementto show that the acts alleged were directedagainst a
protected group
345. The Convention identifies national, ethnical, racialand religiousgroups as
protected groupsunder the Convention. While, in the light of the jurisprudence of
the International Tribunaflor the Former Yugoslavia("ICTY") and the
InternationalTribunalfor Rwanda("ICTR"), there is some scopefor debate about
how precisely these categoriesshouldbe defined, it isclear that the identificationof
the group against which the acts alleged are said to have been directed is a
fundamental elementof any allegationof genocide. The existenceand identity of a
targeted group is the essential nexus betweenthe actusreusand the mensrea of the
offence. Thus, it must be shown thatthe alleged perpetrator committed acts with
intent to destroy a given group, as such, and that the acts alleged were directed
against thegroup in question.
346. Howeverthe categoriesof national, ethnical, racialand religiousgroups are
to be defined, it is evident that the merecoincidenceof nationality,ethnicity, race or
religion across members of a given group will not of itself be sufficient to
characterise the group in question as a protected group under the Convention.
Thus, the ICTY in Jelisic indicated thatpolitical groups were excluded from the
purview of the Con~ention.~~~ The fact that membersof a political groupare al1of
the same nationality, ethnicity, race or religion will not therefore of itself be
sufficientto bring the groupin questionwithin the purviewof the Convention.
347. Similarly,there is somesuggestionon the basis of the AkayesuJudgment of
the ICTR that members of the armed forces of a state, even if of the same
nationality, ethnicity,race or religion, will not constitutea group comingwithin the
purview of the C~nvention.~~'This appreciationis supportedby the jurisprudence
on the mens rea of genocide, addressed below, which indicates that it is not
sufficientto show simplythat acts were committed against membersof a protected
group. It must be shown that the acts were committed against members of a
protected group becauseoftheirmembershipofthat gro~p.~~~
27TheProsecutorv. GoranJelisicZCTY,Judgmentof the Trial Chamber, 14December 1999, Case
No.IT-95-10, at paragraph69.
27TheProsecutorv. Jean-Paul kayesu,ZCTRJ,udgmentof the Trial Chamber, 2 September 1998,
Case No.ICTR-96-4-T,at paragraphs125and 128.
?" See, for example, Akayesu,ibid, at paragraph521. Also TheProsecutorv. AlfredMusema,
ICTR,Judgmentof the Trial Chamber,27 January2000, CaseNo.ICTR-96-13-T,at paragraph 165. CiiapteSix
348. In thepresent case, apart fromthe bare assertionsin the FRY's Application
that Belgiumis in breach of its obligationnot to deliberatelyinfiict on a nationalor,
alternatively, on an ethnic gïoup conditions of life calculated to bring about its
physical destruction, there is no identificationby the FRY of the group against
which the alleged acts are said to have been directed or any elaboration of the
essential characteristics of the group that bring it within the purview of the
Convention. Thus, in the contextof the alleged attackon the facilities in Pancevo,
the FRY describes the group said to have been affected as "a large number of
3,273
inhabitants of Yugoslavia . Subsequently, reference is made to "killing and
wounding Serbs and other non-Albanian groups in Kosovo and Met~hija","~ a
category that, as has already beennoted, includes Serbs, Roma, Muslims, Turks as
wellas other non-Albanianpersons. 275
349. Insofar as the identificationof a group coming within the purview ofthe
Convention is an essential element of both the mens rea and the actus reus of
genocide, the FRY's allegations are fundamentally flawed. As they stand, the
violations pleaded fail to identify with any clarity the group against which the
alleged acts are said to have been directedand which Belgiumis said to have had
the intentto destroy.
350. In Belgium'scontention, this shortcomingis in itself a sufficientbasis for
concluding that the violationspleadedby the FRY are not capable of falling within
the provisions of the Genocide Convention.
(b) Therequirementto showthatBelgiumcommittedacts withthe intention
of destroyingin wholeor in part a protected group,as such - the question of
mens rea
351. The mens rea of genocide, the intentionto destroy , in whole or in part, a
group protectedby the Convention, is the "essentialcharacteristic" of the ~ffence.~~~
The importanceand singular characterof this elementwas addressedby the ICTRin
Musemain the following terms:
"164. Genocideis distinct from other crimesbecause it requires
a dolusspecialis, a specialintent. The specialintent of a crime is
'73FRY Mernoriai, at p.283, paragraph 1.6.1.3.
27FRY Mernoriai, atp.283, paragraph 1.6.2.
27Seeparagraph 334 above.
'" ProvisionalMeasuresOrder,at paragraph40. Chapter Six
the specific intention which, asan element of the crime, requires
that the perpetrator clearly intended theresult charged. The dolus
specialisof the crime of genocide liesin 'the intent to destroy, in
whole or in part, a national, ethnical, racial or religious group, as
such'. A person may be convicted of genocide only where it is
established that he committed one of the acts referred to under
Article 2(2) of the Stat~te[~~~w]ith the specificintent to destroy, in
wholeor in part, a particular protected group.
165. For any of the acts charged to constitute genocide, the
said acts must have been committed against one or more persons
because suchperson or persons were membersof a specificgroup,
and specifically,becauseof their membershipin this group. Thus,
the victim is singled out not by reason of his individual identity,
but rather on account of his being a member of a national,
ethnical, racial or religious group. The victim of the act is,
therefore, a member of a given group selected as such, which,
ultimately, means the victimof the crime of genocideis the group
itself and not the individual alone. The perpetration of the act
charged, therefore, extends beyond its actual commission - for
example, the murder of a particiilar person - to encompass the
realisationof the ulteriorpurpose to destroy the group in whole or
in part."278
352. This analysisis echoed in other decisionsof the ICTR.~~~ The issue of the
mensrea of genocidewas addressedby the ICTYin Jelisicin the followingterms:
"It is in fact the mensrea which gives genocideits specialityand
distinguishes it from an ordinary crime and other crimes against
international humanitarian law. The underlying crime or crimes
must be characterised asgenocidewhen committed withthe intent
to destroy, in whole or in part, a national, ethnical, racial or
religious group as such. Stated otherwise, '[tlhe prohibited act
must be committed against an individual because of his
membershipin a particular groupand as an incrementalstep in the
overall objective of destroying the group'. Two elements which
may thereforebe drawn from the special intentare:
'77The definitionof genocide inArticleII of the GenocideConventionwas inserted verbatas
Article2(2) of theStatuteof ICI;PandArticle4(2)of theStatuteof theICTY.
278Musema,note272 supra.
'79See, for example,Akayesu,note 271 supra, at paragraphs498-499 and 517-522; also The
Prosecutorv. Clément Kayishemaand ObedRuzindana,Judgmentof the TrialChamber,21 May
1999,CaseNo.ICTR-95-1-Ta , tparagrap91. ChapterSix
- that the victims belonged toan identifiedgroup;
- that the allegedperpetrator must have committedhis crimes as
part of a wider planto destroythe group as s~ch."~~~
353. In the light of this decision, if the FRY is to satisfythe requirementsof the
mens rea of genocide, it must show - or, at this stage of the proceedings, the
violations pleaded mustbe capableof showing - that the victims of the alleged acts
belonged to a group protected by the Conventionand that Belgium committed the
acts in questionas part of a widerplan to destroythe group as such.
354. Of the two elements identifiedin Jelisic, the question of the identification
of the group against which the allegedacts are said to have.been directed has
already been addressed. It suffices therefore simply to recall that the FRY has
failed to identify withany clarity the group alleged to have been the victirn of the
acts in question.
355. The evidence adduced by the FRY of Belgian intent to destroy an
(indeterminate) group is equallyunsatisfactory. Insofar asany evidence is offered,
or any argument made, in support of the proposition that Belgium intended to
destroy someor other protectedgroup, it is sirnplythat Belgium'sintent to commit
genocide isto be impliedfromthe bombingof the facilitiesat Pancevo and from the
fact that Serbs and other non-Albaniangroups were killed, injured or expelled by
"Albanian terrorists" on grounds of their ethnicity. Nothing is said about requisite
intent to commit genocide in the case of the allegations concerning the use of
depleted uranium.
356. To these forma1shortcomingsof the FRY'Sallegationsin respect of mens
rea must also be added legal shortcomings.Thus, whilethere maybe circumstances
from which the requisite intention to commit genocidemay be inferred, the
jurisprudence of both the ICTYand the ICTR indicate that the sufficiency of the
circumstantial evidence on this point will depend on the weight andextent of the
evidence adduced.
357. The starting point for the analysis of this matter is Jelisic in which the
ICTY,subsequentlyacquittingthe accusedof the charge of genocide, notedthat
''OJelis iote270 supra,atparagrap66 (quotingthILC Draft Codeof Crimesagainstthe Peace
andSecurityofMankind,Al51/10(1996),atp.88).
117 ChapterSix
"the intention necessary for the commission of the crime of
genocide rnay not be presumed even in the case where the
existence of a group is at least in part threatened. The Trial
Chamber must verifj whether the accused had the 'special'
intention which, beyond the discrimination of the crimes he
commits, characterises his intent to destroy the discriminated
group as such, at least in part."281
358. The startingpoint is thus againstany presumptionof the requisite intent for
genocide.
359. In the light of the intrinsic difficultyof proving intent, both the ICTY and
ICTR have, however, accepted that, where it is difficult to find explicit
manifestations of intent by the alleged perpetrators, intent rnay be inferred. The
matter was addressedby theICTRin Kayishem ia the following terms:
"Regarding the assessment of the requisite intent, the Trial
Chamber acknowledges that it rnay be difficult to find explicit
manifestations of intent by the perpetrators. The perpetrator's
actions, including circumstantial evidence,however rnay provide
sufficientevidenceof intent. The Commissionof Experts in their
Final Report on the situation in Rwanda also noted this difficulty.
Their Report suggestedthat the necessary elementof intent can be
inferred from sufficient facts, such as the number of group
members affected. The Chamber finds that the intent can be
inferred either from wordsor deeds andrnay bedemonstratedby a
pattern of purposefulaction. In particular, thehamber considers
evidence such as the physical targeting of the group or their
property; the use of derogatory languagetowards membersof the
targetedgroup; the weaponsemployedand the extent of the bodily
injury; the methodicalway of planning, the systematicmanner of
killing. Furthermore, the numberof victimsfrom the groupis also
important. In the Report of the Sub-Commissionon Genocide, the
Special Rapporteurstated that 'the relative proportionate scaleof
the actualor attempteddestructionof a group, by any act listed in
ArticleII and IIIof the GenocideConvention,is strong evidenceto
prove the necessary intent to destroy a group in whole or in
part."282
360. As this extract makes clear, while evidenceof intent rnay be inferred, the
weight and extent of the circumstantial evidence adduced willbe critical to this
281Jelisic,note 270supra, atparagraph 78.
28'Kayishema,note279supra, at paragraph 93. Chapter Six
exercise. A similar approachwas adoptedby the ICTR in other cases283 and by the
ICTY in the caseof its Rule 61 Decisionsin Nikolic andKaradzic and Mladi~.~~~
361. The issue at this preliminarystage of these proceedings is not whether the
evidence adducedby the FRY in support of its claim of intent is meritorious. That
would ultimately be a matter for the merits. The issue is whether the FRY has
adduced any credible evidence at al1 in support of its claims of genocidal intent.
The test at this stage of the proceedings is whether, even acceptingpro tem the facts
allegedby the FRY, they are capableof coming within theterms of the Convention.
The paucity of detail in the FRY'Sclaims under this heading speaks for
362.
itself. Adoptingthe languageof the ICTR in Kayishema,the FRY has not adduced
any evidence showing,on the part of Belgium, a "pattern of purposeful action", or
the "physical targeting" of an identified protected group or their property, or the
"use of derogatory languagetowards membersof the targeted group"; or "weapons
employedand the extent of the bodilyinjury"; or the "methodicalway of planning,
the systematicmanner of killing". No evidencehas been adduced of "the number
of victims" from the identifiedprotectedgroup. In short, the basicproposition apart
- that intent is to be impliedfrom the bombingof the facilitiesat Pancevo and from
the fact that Serbs and other non-Albaniangroups were killed, injured or expelled
by "Albanianterrorists" on grounds of their ethnicity- nothing atal1is adduced in
supportof the allegationof genocidal intenton the part of Belgium.
363. It is also worth observingthat the FRY hasnot pointedto any statementby
Belgium showing the slightest indicationof a plan or political doctrine whose
objective mighthave been the destruction of any protected group. The FRY does
not report any manifestationof hatred or insult or other humiliating behaviour on
the part of Belgiumto anygroup withinthe FRY.
See, for example,Akayesu,note271 supra, at paragrap523;and Musema,note 272 supra, at
paragraphs 166-167.
'84Prosecutorv.Nikolic(Rule61), Decisionof the Trial Chamb20,October 1995, 108ILR 21,at
paragraph 34;Prosecutorv. KaradzicandMladic(Rule61), Decisionof the Triai Chamber11July
1996, 108ILR 85,at paragrap94. Pursuantto Rule61 of the ICTY'sRulesof Procedure,where a
warrant of arrest has not beenexecuteddespite reasonable steps having been taken to do so, the
Prosecutor may be ordered to submitthe matter to the Trial Chamber of the Judge confuming the
indictment. In so doing,the Prosecutor shallsubmit, inopenCourt, ail theevidencethat was before
the Judge who initially confirmed the indictment as wellas any additionai evidence. If the Triai
Chamber is satisfied, on this evidence, that there are reasonable grounds for believing that the
accusedhascommitted ailor anyof the crimeschargedin the indictment,itshallso determine. Chapter Six
364. It also merits observationthat, where genocidalintent is inferred from the
circumstancesof the acts alleged, a cardinal principlein such an exercise must be
thatsuch intent cannot be inferred in the abstract.In other words, genocidal intent
on the part of a named respondent such as Belgium cannot be inferred from acts
with which thatrespondenthas no clear and demonstrableconnection. To proceed
otherwise would be to introduce a significant and unacceptable margin of
uncertainty into an exercise that is already adoptinga deductive approach to the
determinationof responsibility. This factoris importantin respect of al1three of the
allegationsof genocideraisedby the FRY: the bombingof the Pancevo facilities and
the use of depleteduranium, in respect of which no particular perpetrator has been
alleged, and the killing and injuring of Serbs and other non-Albaniangroups, in
respect of which "Albanianterrorists" are namedas the allegedperpetrators. In no
case can it be shown that Belgiumhad a clear and demonstrable connectionto the
commissionof the acts. Yet the FRY would havethe Court infer the mens rea of
genocidefrom these actions.
365. As is addressed in more detail in Chapter Eight below, pursuant to the
Court's Rules, the FRY's Memorialis the principal, and perhaps only, document in
which the FRY isto make its case. Every pleadingbeyond this is at the discretion
of the Court. Subsequent pleadingsare to have as their object the bringing out of
the issues that stilldivide the ~arties.~They are not, in other words, intended for
the presentation of new material. The allegations advancedby the FRY in its
Applicationand Memorial, and thematerialadducedin support of those allegations,
must therefore be taken as constituting a fullstatementof the FRY'scase.
366. The mens rea of genocide is the "essential characteristic" of offence. It
requires evidencethat the allegedperpetrator cornrnittedthe acts allegedas part of a
wider plan to destroy an identified protected group as such. The FRY has not
identified theprotectedgroup allegedto be the target of genocidalintent. Nor has it
adduced anyevidenceto show that Belgiumintendedthe destruction, in whole or in
part, of any group within the FRY, letalone an identifiedgroup within the purview
of the Convention. These shortcomings are both manifest and, in Belgium's
contention, fatalto the FRY's claimat the most basic level. They are of such an
order as to invitethe contentionthatthe FRY'sclaim is manifestlyill-founded. The
facts put forward cannot by any means justiQ the claim of genocide. They are
wholly unsubstantiated. In Belgium's contention, the violations pleaded are not
capableof fallingwithin theprovisionsof the GenocideConvention.
28ASper Article49(3)of the Court'sRules. ChapterSix
(4 The requirement toshow that Belgiumcommittedthe acts alleged - the
actus reusof genocide
367. The FRY alleges distinct genocidalacts in respect of the pre- and post-10
June 1999periods. Thus, in respectof the pre-10 June 1999period, the acts alleged
are the bombing of the factory at Pancevo and the use of depleted uranium. In
respect of the post-10June 1999period, the acts allegedare the killing and injuring
of "Serbs and membersof other non-Albaniangroups". These allegations of fact
translate into different allegationsof breach of the Genocide Convention.Thus, in
respect of the pre-10 June 1999period, the FRY alleges that Belgiumhas violated
Article II(c) of the Conventionby "[dleliberately inflictingon the group conditions
of life calculatedto bring about its physicaldestructionin wholeor in part". Insofar
as it is possible to discern, the allegationin respect of the post-10 June 1999period
appears to be that Belgium hasviolated Article II(a) or (b) of the Convention by
"[klilling members of the group" or "[c]ausing serious bodily or mental harm to
membersof the group" .
368. A number of observationsare warranted on these allegations. First, as the
Court noted in its Provisional MeasureO s rder, "the threat or use of force against a
State cannotin itself constitutean act of genocidewithinthe meaningof Article II of
the Genocide Conventi~n".~~~ The same is true in the case of the acts mentioned in
paragraphs (a) - (e) of Article II. The GenocideConventionis structured on the
basis of an essential nexusbetween the actusreusand mensrea of the offence. A
credible allegation of genocide - one capable of coming within the scope of the
Convention - thus requiresboththe actusreusand the mensrea of the offenceto be
*shown.
369. Second, the critical factor linking the actus reuswith the mensrea is the
requirement in each of the paragraphs of Article II that theacts in questionmust be
directed towards "the group", ie, the group in respect of which the alleged
perpetrator is said to have had the requisite genocidalintent. The shortcomings of
the FRY's allegations on this matter have already been addressed. It suffices
therefore simplyto reiterate thatthe failure by the FRY to identifywith any clarity
the group against which the alleged acts are said to have been directed also
constitutes afundamentalflawin this elementof the FRY'sallegations.
- -
286ProvisionalMeasuresOrder,at paragraph40.
121 Chapter Six
370. Third, as with its allegationson the questionof mensrea, the FRY makes
no specific allegations againstBelgium in respect of the actus reus. Thus, the
generality of the FRY's allegationsapart, it is not alleged that Belgium killed
members of the (indeterminate) groupor caused serious bodily or mental harm to
members of the group or deliberately infiicted on the group conditions of life
calculated tobring about its physicaldestruction inwholeor in part.
371. Fourth, linked to the preceding, thereis nothing of substancein the FRY's
Memorialto substantiateany of its claims in respect of the actus reusof genocide.
Thus, in respect of the bombing of the facilities in Pancevo, there is nothing in
either the FRY's descriptionof the bombii~$~~ or in its allegations on intenea8that
identifyany conditionsof life having been deliberatelyinflictedon any group which
were calculatedto bring about its physicaldestructionin whole or in part. As the
language of Article II(c) makes clear, independentlyof the mens rea of genocide
more generally, a claim under this provision requiresboth that an intentionto inflict
certain conditions of life on the group in question must be shown and that the
conditions in issue must be calculated tobring about thephysical destruction of the
group. Absent any evidence of intent to inflict the conditions in question and to
bring about the physical destruction of the group by the infliction of these
conditions, no credible claim of genocidecan be made. There being nothing in the
FRY's Memorialto support its claim under this heading, Belgiumcontends that the
violationspleaded are not capable of coming within theprovisions of the Genocide
Convention.
372. The same is true of the FRY's allegationsconcerning the use of depleted
uranium. Against the backgroundof a total absence of any detail regarding the
alleged use of depleted uranium, the FRY attaches a single annex consisting of a
news report referring to a conferenceon "depleteduranium in Iraq 3.289 While the
FRY attempts to make much of one sentencein this news report which speculates
about 10,000 extra deaths in Kosovo,2go the full report is both infinitely more
equivocal than the FRY implies and serves to underminethe FRY's claimagainst
Belgium. Thus, citing an experimentalbiologist from Wales, a Mr Coghill, the
news report States:
287FRYMemorial,atpp.44-45, paragraph1 s.1.24.1.-1.1.24.2.
288FRYMemorial,atpp.282-283,paragraphs 1.6.1.1.-1.6.1.3.
'89FRYMemorial,AnnexNo.161.
290FRYMemorial,atp.283, paragraph 1.6.1.4. ChapterSix
"The use of DU [depleted uranium]shells in Kosovo, fired mainly
from US A-10 'tank-busting'aircraft, was endangeringthe health
of returning refugees, peacekeepers,aid workers and the peopleof
neighbouringcountries, he [Mr Coghill] said.
'We think there will be be [sic] 10,000 extra deaths in Kosovo,'
Mr Coghill said, basing the figure on extrapolations from US
statementsaboutthe useof DUweapons duringthe war.
But critics of the claimed link betweenthe use of DU weapons and
increase in cancer and genetic abnormalities Say the problem
could, instead, be comected with the use of chemical weapons
used againstthe Kurdsand others in Iraq duringthe 1980s.
RichardGuthrie of Sussexuniversity'sscience policyresearch unit
told the conferencein London yesterdaythat the case was 'not cut
and dried' and there needed to be more research - something Dr
Coghillconceded. "291
373. Not only is the "evidence" adduced by the FRY in support of its claim
considerablymore equivocal tlianthe FRY would havethe Court believe but it also
suggests that depleted uranium was "fired mainly from US A-10 'tank-busting'
aircraft". There is no suggestionhereof the use of depleteduranium by Belgium, a
suggestionthat Belgiumwould in any event deny. The news report further suggests
that theuse of depleted uraniumwas "endangeringthe healthof returning refugees,
peacekeepers, aid workers and the peopleof neighbouringcountries". There is no
suggestionhere of any acts having been comrnitted againsta protected groupwithin
the purview of the Genocide Convention or conditions of life having been
deliberatelyinflictedon the group calculatedto bring aboutits physicaldestruction.
374. There being nothing of substance in the FRY's Memorial to support its
claim under this heading, Belgiumcontendsthat these violations tooare not capable
of comingwithin the provisionsof the Genocide Convention.
375. Turning, lastly, to the FRY's allegations in respect of the post-10 June
1999 period - ie, the killing and injuring of "Serbs and members of other non-
Albaniangroups" - the critical shortcomingof this allegation isthat the FRY, in its
Memorial, uniforrnlyand explicitly alleges thatthe actsin question were comrnitted
by "Albanianterrorists". There is no suggestionthat Belgium cornrnitted any of the
19'FRYMemorial,AnnexNo. 161. Chapter Six
acts. There is no basis whatever for the FRY's allegationof genocide against
Belgiumunder this heading. These allegations tooare accordingly not capable of
comingwithin the provisionsof the Genocide Convention.
376. For completenesson this matter, Belgiumrecalls that, as was addressed in
detail in Chapter Two, the Court in any event lacksjurisdiction in respect of the
FRY's allegations concerning the post-10 June 1999 period andlor that such
allegationsare inadmissible.
377. On the basis of the preceding, Belgiumcontendsthat there is nothing in the
FRY's allegations of fact that is even remotely capable of sustaining a claim of
genocide against Belgium. The violationspleaded are not, accordingly, capable of
falling within the provisionsof the GenocideConvention.
4. Conclusions
378. At the provisionalmeasuresphase, thejurisdictional questionfor the Court
was whether "the provisions invokedby the applicantappear, prima facie, to afford
a basis on which the jurisdictionof the Court rnightbe e~tablished".~~~ In respect of
the FRY's claim under Article IX of the GenocideConvention,the Court responded
to that questionindicatingthat it was "not in a positionto find, at this stage of the
proceedings, thatthe acts irnputedby Yugoslaviato the Respondentare capable of
Y293
comingwithinthe provisions~fthe Genocide Convention .
379. Nothing has changedsince that phase of the proceedings to warrant the
Court changing its assessmentof the matter. The FRY has not developed its claim
of genocidein any significant fashion inits Memorial. It has failedto identify with
any clarity the protectedgroup alleged to have been thetarget of Belgiangenocidal
intent or action. It has not adducedany evidenceof genocidal intent on the part of
Belgium. Its allegations of fact are incapable of sustaining a claim of genocide.
Even takingpro tem the facts as allegedby the FRY, they are incapableof coming
within the terms of the Genocide Convention. The violations pleaded do not,
accordingly, fa11within the provisionsof the Convention. In consequence, the
dispute is not one which theCourt has jurisdiction ratione materiae to entertain
pursuant to ArticleIX of the Genocide Convention.
19ProvisionalMeasuresOrder,atparagraph21.
'9ProvisionalMeasuresOrder,atparagraph41. ChapterSix
380. For completeness,Belgiumcontendsthat the FRY'Sallegationsof genocide
are not even of a "sufficientlyplausible character" tome within the scopeof the
Genocide Conventionon the basisof thejurisdictionaltest outlinedin theAmbatielos
line ofjurisprudence notedabove.[blank] ChapterSeven
CHAPTER SEVEN:THECOURTDOESNOT HAVEJURISDICTIONON
THEBASISOFARTICLE4 OF THE1930CONVENTION
381. In Chapter Four, Belgiumcontendedthat the Court is notopen to the FRY.
Absent an entitlement to appear, the FRY cannot rely on Article 4 of the 1930
Conventionto provide a basis of jurisdiction in this case.294Closely associated with
this contention, Article37 of the Court'satute, relied on by the FRYto perfect its
claimto jurisdictionunder the1930 C~nvention,~'o~nly operates "as betweenparties
to the present Statute". The FRY is not a party to the Statute. Article 37 of the
Statute cannot thereforecombinewith Article 4 of the 1930 Conventionto give the
Courtjurisdiction in this case. This issue addressedfurtherbelow.
382. If, contrary to these contentions, the Courtwere to concludethat the FRY
is a party to theStatute, Belgium c0ntend.sthat Article 4 of the1930 Convention
cannot in any event give theCourtjurisdiction inthis case. The reasons for this, in
additionor in the alternative,are that: (a)the30 Conventionis no longer in force,
andlor (b) the FRY is not a successor to the 1930 Convention, andlor (c) the
conditionslaid downby the 1930 Convention have notbeen satisfied. Each of these
elementsis addressedfurther below.
1. The 1930 Convention
383. The 1930 Convention, signed by the representatives of Belgium and
"Yugoslavia" on 25 March 1930, entered into force on 3 September 1930 for a
period of five years. Pursuant to Article 38(3), the Conventionwas to remain in
force for further periods of five years unless denounced. The Convention was
registered withthe Secretariatof the League of Nationson 8 September 1930. The
officia1languageof the Conventionwas French. For purposesof the Englishtext of
these Preliminary Objections, reference ie made to the English translation of the
Conventionproducedby the Leagueof NationsSecretariat.
384. The Conventionwas concluded "[clonsideringthat the faithful observance
under the auspices of the League of Nations, of peaceful procedure allows of the
settlementof al1international disputes.296The interactionbetween the Convention
2" The text of the 1930 Conventionis at Annex4.
'95FRY Mernorial, at p.346, paragraph3.3.12.
2961930 Convention,Preamble. ChapterSeven
arrangements and the League of Nations was addressed inter alia in Article 37 of
the Conventionin the followingterms:
"The present Conventionwhich isin conformity with the Covenant
of the Leagueof Nations, shallnot be interpreted as restrictingthe
duty of the League to take atany time whatever action may be
deemed wiseand effectua1to safeguard the peaceof the world."
385. The Conventionthus operatedwithin and subject to the general framework
of actionby the Leagueof Nations.
Within this framework, the Conventionestablished a complex regirne for
386.
the peaceful settlement of disputes based on interacting arrangements involving
judicial settlement, conciliationand arbitration.
387. The general intent of the Conventionwas set out in Article l(1) in the
followingterms:
"Disputes of every kind which may arise between the High
Contracting Parties and which it has notbeen possible to settle
through diplomatic channels shall be submitted, under the
conditions laid down in the present Convention, for judicial
settlementor arbitration, preceded, accordingto circumstances, as
a compulsoryor optionalmeasure,by recourse to the procedure of
conciliation.
388. Article2 went on to provide:
"Disputes for the settlementof which a special procedure is laid
down in other conventionsin force between theHigh Contracting
Parties shall be settled in conformity with theprovisions of those
conventions. If, however, the disputeis not settledby application
of this procedure, the provisions of the present Convention
concerning arbitrationor judicial settlementshall apply"
389. As this provision makes clear, the arrangements establishedby the 1930
Conventionwere intended - insofar as disputes governedby a special procedure in
other conventions wereconcerned - to be residual dispute settlementarrangements
that would become operative only if the disputein question was not settled by the
applicationof the other procedure. ChapterSeven
390. The three forms of dispute settlementunder the Convention wereaddressed
in distinct partsof the Convention -judicial settlementin ChapterII, conciliation in
Chapter III, and arbitration in Chapter IV. Although the matter does not emerge
clearly from a cursory review of the Convention's provisions, the operationof and
interaction between these three forms of dispute settlement was based on the
classificationof the disputein question. Thatthe Conventionembodied an irnplicit
"classification of disputes" emerges clearly from Article36 of the Convention
whichprovided:
"Disputes relatingto the interpretationor applicationof the present
Convention, including those concerning the classification of
disputes, shall be submitted to the Permanent Court of
International Justice.5~~
391. Under the heading "Judicial Settlement", Article 4 of the Convention,
invokedby the FRY, provided:
"Al1disputes withregard to which theParties are in conflict as to
their respective rights shall be submitted for decision to the
PermanentCourt of International Justice unlessthe Parties agree in
the mannerhereinafterprovided, to resort to an arbitraltribunal.
It is understood that the disputesreferred to above include in
particular those mentioned in Article 36 of the Statute of the
PermanentCourt of International Justice."
392. Articles 5 and 6 went on to address various aspects of the arbitral
procedure contemplatedas an alternative to judicial settlement in Article 4. To
avoid confusion, this arbitration is hereinafter described as judicial settlement
alternative arbitration("JSAarbitration").
393. Confirming that the Conventionwas based on an appreciationof different
kinds of disputes, Article7(1)provided:
"In the case of the disputesmentionedin Article 4, before any
procedure before the Permanent Court of International Justice or
any other arbitral procedure, the Parties may by cornmonconsent,
have recourse to the conciliation procedure provided for in the
present Convention. "298
29Emphasisadded.
29Emphasisadded. ChapterSeven
394. Conciliationpursuant to Article 7(1) is hereinafter referred to as optional
conciliation.
395. Articles 8-23 contained detailed procedural provisions in respect of
conciliation generally. Article 8 provided that "[al11disputes between the Parties
other than disputes mentionedin Article 4 shall be submitted obligatorily to a
procedure of conciliation before they can form the subject of a settlement by
arbitrati~n".~~~The italicised phrase reaffirmsthe perception at the core of the
Conventionthat Article 4 was concerned withparticular typesof dispute. Fursuant
to Article 8, conciliationwas an obligatoryprerequisiteto arbitration.
396. By way of contrast with conciliationpursuant to Article 7(1), conciliation
pursuant to Article 8is hereinafter referredto acompulsoryconciliation.
397. Pursuant to Article 9, disputes referred to cornpulsoryconciliation in
accordance with Article 8, were to be "submitted to a permanent or special
Conciliation Commissionconstitutedby the Parties". By Article 22(1),
"[tlhe task of the ConciliationCommissionshallbe to elucidatethe
questions in dispute, to collect with that object al1 necessary
informationby meansof enquiry orotherwise, and to endeavourto
bring the Parties to an agreement. Itmay, after the case has been
examined, inform the Parties of the terms of settlement which
seem suitableto it, and laydown the periodwithin which theyare
tomaketheir decision."
398. As this indicates, although compulsory,this conciliation procedure was not
binding. It was a traditional conciliationprocedurewhich wasdesignedto facilitate
the settlementof the disputeby the agreementof the parties.
399. Arbitration was addressed in Articles 24-32. Insofar as is relevant for
present purposes, Article 24(1)provided:
"If the Partieshave not reachedan agreementwithin a monthfrom
the termination of the work of the Conciliation Commission,the
question may, if the Parties agree, be brought before an arbitral
tribunal."
29Emphasisadded. ChapterSeven
400. As this makes clear, arbitration pursuant to Article 24 was an optional
procedure dependenton the consent of the parties. Pursuant to Article 32, if the
parties had not agreed to refer the disputeto arbitration in accordancewith Article
24, "the dispute shallbe settled in conformity with the provisions of Article 15 of
the Covenantof the Leagueof Nations". Article 15of the Covenant provided inter
ali as follows:
"If there shouldarise betweenMembersof the League anydispute
likely to lead to a rupture, which is not submitted toarbitration in
accordance with Article13, the Membersof the Leagueagree that
they will submit thematter to the Council. ...
The Council shall endeavourto effect a settlementof the dispute,
and if suchefforts are successful, a statementshallbe made public
giving such facts and explanations regardingthe dispute and the
terms of settlementthereof as the Councilmaydeemappropriate.
If the dispute is nothus settled, the Council eitherunanirnouslyor
by a majority vote shall make and publish a report containing a
statement of the facts of the dispute and the recommendations
which are deemedjust andproper in regard theret~."~~~
401. By reference to these various provisions, while arbitration would have
resulted in adecisionbindingupon the parties, resort to arbitrationwas optional and
dependent on the agreement of the parties. In contrast, while the operation of
Article 15 of the Covenant of the League constituted a compulsory default
procedure, the outcome of the procedure would not havebeen binding upon the
parties.
402. A number of observations are warranted on the Convention and its
operationin the light of theseprovisions. First, the Convention operatedwithin and
subjectto the generalfrarneworkof the Leagueof Nations. Second, the Convention
established a relatively complexset of interacting dispute settlement arrangements
including judicial settlement, JSA arbitration, optional conciliation, compulsory
conciliation, arbitrationand settlementby the Councilof the League. Within this
300Articles 12and 13of the Covenantprovided interalia as follows:
Article 12, paragraph one: "The Membersof the Leagueagree that if there should arise
betweenthem any dispute likely tod to a rupture, they willsubmit thematter either to arbitration
or to inquiryby the Council, and theyagree in no case to resortto war untilthree months after the
awardby the arbitrators or the reportby the Council."
Article 13, paragraph one: "The Membersof the Leagueagree that wheneverany dispute
shall arise between them whichtheyogniseto be suitablefor submission toarbitration andwhich ChapterSeven
scheme, there were however two broad categories of arrangements: (a) judicial
settlement, JSA arbitration (as an optional alternative to judicial settlement), and
optional conciliation (as an optional procedure preliminary to both); and (b)
compulsory conciliationleading either to arbitration (optional)or settlementby the
Council of the League in conformity with theprovisions of Article 15 of the
Covenant (compulsory, if the parties did not opt for arbitration). Within this
framework, the outcome of the category (a) procedureswould be a decisionbinding
upon the parties. In contrast, the outcomeof the category (b) procedures would
onlybe bindingif both partieshad electedto refer the matter to arbitration.
403. Third, the Convention was based on an appreciation by the Parties of
different types or classifications of dispute. While the Convention did not
enumerate a classificationof types of dispute, Article, paragraph 2 provided that it
was understood thatthe disputes tobe submitted to thePermanentCourt included in
particular those disputes mentioned in Article 36 of the Statute of the Permanent
Court.
404. Fourth, Article 2 of the Convention - providing that disputes for the
settlementof which special procedureswere laiddown in conventionsin force were
to be settled in accordance with those procedures - indicates that the intent of the
Conventionwas to safeguardexisting dispute settlementarrangements. Only if the
dispute in question was not settled by such procedures would the Convention's
arbitration or judicial settlement provisionsperate. Article 2 was thus in effect a
sequencing provisionwhich providedfor the operationof inter alia Article 4 at the
point at which the other relevantspecialprocedures failedto achieve a settlementof
the dispute.
2. TheFRY'S claims underthe 1930 Convention
405. By a letter dated 12 May 1999, during the oral proceedings before the
Court on the FRY's ProvisionalMeasures Request, the FRY invoked Article 4 of
the 1930 Convention asan additionalbasis of jurisdiction inthis case. In so doing,
the FRY did not specifyparticular allegations thatfell to be addressed under the
1930 Convention. It has not done so in its Memorial. The 1930 Conventionis thus
relied upon by the FRY as a basis of general jurisdiction, operatingin parallel and
additionalto the other bases ofjurisdiction relied uponby the FRY.
cannot be satisfactorily settled by diplomacy, they will submit the whole subject-matter to
arbitration. ChapterSeven
406. The applicationof the 1930 Conventionto the circumstancesof this case is
addressed only briefly in the FRY'SMemorial. Thus, the FRY alleges that the
Convention is in force; that Article 4 of the Convention "does not provide any
preliminary procedureswhose exhaustionis a necessary condition for the seisin of
the PCIJ"; and that, in accordance withArticle 37 of the Statute of the Court, the
reference to the PermanentCourt in Article 4 of the Conventionis to be read as a
reference to the International AS has already been intirnated, Belgium
rejects each elementof thisclaim. It is to these issuesthat Belgiumnow turns.
3. The Court lacksjurisdictionon the basisof the 1930 Convention
407. In Belgium's contention, the Court lacks jurisdiction on the basis of the
1930 Conventionon one or more of the following grounds:
(a) Article 37 of the Statute is not applicable inthe circumstancesof this case,
andlor
(b) the1930 Conventionis no longer inforce, andlor
(c) the FRY has not succeededto the 1930 Convention,andlor
(d) the conditionslaid downby the 1930 Conventionhave not been satisfied.
(a) Article37 of the Statuteis notapplicablein the circumstancesof this case
408. In Chapter Four, Belgium addressed the issue of the Court's jurisdiction
rationepersonae. As was there shown, the Courtis not open to the FRY, whether
pursuant to Article 35(1) or (2) of its Statute. Absentjurisdiction rationepersonae,
the question of whether the Court has jurisdiction ratione materiae or ratione
temporisunder a treatydoesnot arise.
409. In the case of treaties containingjurisdictional clauses whichprovide for
reference of a matter to the PermanentCourt, the positionis narrower still. While,
pursuantto Article 37 of the Statute,the InternationalCourtwill havejurisdiction in
such cases, this provision only operates "as between the parties to the present
Statute". Article 37 of the Statute is thus only relevant insofar as the Court is
competent pursuantto Article 35(1)of the Statute.
30'FRY Memorial,at p.346, paragraphs3.3.10-3.3.12.
133 ChapterSeven
410. This appreciationof the scopeand limitationsof Article 37 is reflected in
the Court's detailed review of the operation of this provision in the Barcelona
Traction Case.302
411. As has already been contended, the FRY is not a party to the Statute,
whetherunder Article 93(1) or (2) of the Charter. Article 37of the Statutedoes not
therefore apply in the circumstancesof this case. It cannottherefore operate to give
the Court jurisdiction on the basis of Article 4 of the 1930 Conventionin these
proceedings .
(b) The 1930 Convention is no longerinforce
412. The 1930 Conventionwas a bilateral treaty. It was concluded between
Belgium and "Yugoslavia" in 1930. It was conceived of as operating within and
subject to the general frameworkof action by the League of Nations. Insofar as
Belgium hasbeen able to establish, itwas not invokedby either party inthe course
of more than 60 years of bilateral relationsfollowing itsentry into force.
413. "Yugoslavia" (ie, the SFRY) ceasedto exist as a stateby no later than 4
July 1992.303In the period from 8 October 1991to 27 April 1992, it was succeeded
by five new ~tates.~'~Despite extensive negotiations between Belgium and each of
the successor states (with the exception of Bosnia-~erzegovina~'~) in the period
followingthe dissolutionof the SFRYon the questionof their successionto bilateral
Belgian-"Yugoslav" treaties, not a single reference was made to the 1930
Conventionby any of these states, in any context, includingby the FRY. The first
and only occasion on which the Conventionwas referred to was by the FRY in its
letter to the Court of 12May 1999.
414. In Belgium's contention, the 1930 Convention had lapsed - whether
through obsolescence or desuetude or on the basis of the implied consent of the
parties - by no later than 4 July 1992, ie, the point at which the SFRY was
considered by the ArbitrationCommissionof the Conference on Yugoslavita o have
ceased to exist. The dissolutionof the SFRYand the conductof both Belgiurnand
30Barcelom Traction,Light and Power Company,Limited, PreliminaryObjections, Judgment,
I.C.J. Reports 1964,p.6, at pp.32-36.
30See paragraph 141above.
3" See Opinion No.11 of 16 July 1993 of the Arbitration Commission of the Conference on
Yugoslavia,96ILR719.
30Negotiations betweenBelgium and Bosnia-Herzegovinaon this matter have been delayed for
reasonsconcerningthe interna1situationin Bosnia-Herzegovina. ChapterSeven
the various successor statesto the SFRYin the period following the dissolution of
"Yugoslavia" supports this conclusion.
415. Although there is little direct practice on the matter, it is evident that
"'obsolescence' or 'desuetude' may be a factual cause of the termination of a
treaty .306 The legal basis of the termination in such cases, "is the consent of the
parties to abandonthe treaty, which is to be impliedfrom their conductin relation to
the treaty."307
416. A number of factors support the conclusionthat the 1930 Conventionhad
lapsedby, or did so at, the pointof the dissolutionof the SFRY. These include the
following :
(a) the scheme of the Convention - as has already been observed, the
Conventionwas conceivedof as operatingwithin and subjectto the general
frameworkof actionby the Leagueof Nations. This is attestedto interalia
by the preambularparagraphsof the Convention, the roleof the Council of
the League pursuant to Article 32 of the Convention in cases in which
parties to a dispute chose not to haverecourse to arbitration in accordance
with Article 24 of the Convention,and Article 37 of the Convention. This
last provisionis of particular importanceas it would require an assessrnent
of the lawfulnessof a respondent's actionto take accountof the "duty of
the Leagueto take at any time whatever action may be deemed wise and
effectua1to safeguardthe peaceof the world". In the circumstancesof the
present case, if the 1930Conventionwere still in force, this would open the
possibility of Belgium arguing on the merits that its participation in the
NATO action in the FRY was justified by reference to the duty of the
Leagueof Nationsunder its Covenant. In a world in which the League and
its Covenantno longer have any role to play in the conduct of international
relations, the possibilityof such an argumentis absurd. Yet this would be
the logical consequence of the continued application of the 1930
Convention;
the Convention was not conceivedof as operatinginperpetuiîy - although
(b)
the Convention was not concluded for a determined period, nor was it
30Reportof the Internatiolaw Commissiononthe Law of Treaties,Reportof theCommissionto
the GeneralAssembly,YILC, 1966, Vol.11,p.172, at p.237, paragra(3, commentaryto draft
Article39.
30Id. ChapterSeven
contemplated that it would operate without limit. Article 38(3) of the
Conventionprovidedthat it was to remain inforce for successiveperiods of
five years. This approachmay be contrasted with that adopted in the case
of treaties which are intended to operate without temporal limitation and
which do not therefore contain any temporal limitation clause. While the
1930 Convention was never denounced, thissimplyreflects the appreciation
of the parties that it hadlapsed, whetheron the dissolutionof the League of
Nationsor thereafter;
thepracticeof theparties - insofar as it has been possibleto establish, the
(c)
1930 Convention was neither invokednor even referred to by either of its
parties (Belgiumand "Yugoslavia") in their bilateral relationsfollowing the
Convention's entry i~itoforce. While the failure to invoke or refer to a
treaty may not of itself be sufficiently conclusive of the obsolescence or
desuetudeof the treaty, silenceof this kindover an extendedperiod - such
as the 62 years between the Convention's entryinto force in 1930 and the
dissolutionof "Yugoslavia"in 1992 - lends supports the conclusionthat the
parties no longer regarded the treatyas operative;
the disappearanceof "Yugoslavia"and the attitude of its successors -
(d)
"Yugoslavia"ceasedto exist as a stateby no later than 4 July 1992. While
the disappearanceof one of the parties to a bilateral arrangement does not
preclude the possibility that the arrangement may continue to operate
between the remaining party and a successor to the party that has
disappeared, it necessarilyinvolvesthe terminationof the arrangements as
betweenthe original parties. Without prejudging questionsof succession -
addressed as a separate issue in the next section of this Chapter - the
disappearance of one of the original parties to a bilateral treaty also
necessarilyraises the questionof whether the treatycontinuesin force. The
attitude of both the remainingparty and any potential successors to the
treaty followingthe disappearanceof the first party will thus be critical in
any assessmentof whether the treaty continuesin force. In the case of the
1930 Convention, the appreciation of both Belgium and the various
successor states of the SFRY with which issues of succession were
addressed supportsthe conclusionthat the Convention is no longerin force.
This elementis addressed further in the followingparagraphs. ChapterSeven
417. As has already been noted, in the period following the dissolution of the
SFRY, Belgium conducted extensive negotiations with Croatia, Macedonia,
Slovenia and the FRY - al1equal successorsto the SFRY - on the questionof their
successionto bilateral Belgian-"Yugoslav"treaties. The negotiationswith the FRY
are addressed fullyin the following section ofthis part dealingwith the question of
FRY succession to the 1930 Convention. The significant point thatemerges, for
present purposes, from al1of these negotiationsis that neither Belgiumnor any one
of these four equal successors to the SFRY considered that the 1930 Convention
remained in force. The Conventionwas not, for example, included on the original
list of treaties between Belgium and the SFRY drawn up for internal working
purposes by the Belgian Ministryof Foreign Affairs in the period following the
dissolution of the SFRY in 1992.~'~ It was not included on the revised internal
(Belgian) workinglist of treaties of 27 September 1994which, by reference to the
earlier list, reflected Belgium'spreliminary view on whether the treaties identified
on the first list continued inforce.309It did not feature on the further revised list of
treaties thatthe Belgian Foreign Ministry prepared,followinga 28 September 1994
internal meeting, setting out the treaties that Belgium considered continued in
f~rce.~" Nor did it featureon a further Belgianlist of treaties of 9 September 1996
whichhad as its declared object
"to establish the list of agreements, concluded between Belgium
(BLEU) and theformer Republic of Yugoslaviawhich remain in
force between Belgium and the respective successor States
(Slovenia, Croatia, Bosnia andHerzegovina,the Federal Republic
of Yugoslavia,the former YugoslavRepublicof Macedonia)" .311
418. These lists - and notably the final list of 9 September 1996 - reflect
Belgium's considered view,arrived at after careful assessment, of the treaties
concluded between Belgium and "Yugoslavia" that continuedin force between
Belgium andeach of the five successor Statesof the SFRY. The 1930 Convention
did notfeature on any ofthese lists. Theselists thus attestclearly and objectively to
Belgium'sview - a view formed well before the present litigation - that the1930
Convention was nolonger in force.
308Annex61.
309Annex62.
310Annex63.
3'1Annex 64 (at paragraph one). On the basis of this working document, a revised final list
comprising 16 treaties was drawn up, also on 9 September1996, reflecting Belgium'sview of the
treatiesthat continuedin forcebetweenBelgium andthe successorSFRY.he(Annex65) ChapterSeven
419. The final Belgian list of 9 September 1996 served as a basis for talks
between Belgiumand, separately,Croatia, Sloveniaand Macedoniain the latter part
of 1996 and 1997 on the question of their succession to "Yugoslav" treaties
concludedwith Belgium. In no case did any of these three States - each an equal
successorto the SFRY - suggest the continuationin force of, or raise the question
of succession, or even refer, to the1930 Convention. On the basis of these talks,
separate agreementswere concluded betweenBelgiumand, respectively, Cr~atia,"~
slovenia313and ~acedonia~'~ on the continuationinforce of various treaties that had
been concluded between Belgiumand "Yugoslavia". The 1930 Convention is not
referred to in any ofthese agreements.
420. Talks between Belgium andthe FRY on the issue of FRY succession to
"Yugoslav" treaties took place in Belgrade on 13 November 1996. The basis of
these discussionswas the finalBelgianlist of 9 September1996referred to above as
well as various lists submittedby the FRY on 6 December 1995315 and 9 October
1996.~'~The 1930 Convention is not referred to on any of these lists.
421. Further exchanges took place betweenBelgiumand the FRY on this matter
on 14 March 1997317 at which point the FRY raised a number of questions
concerning the continuation in force of various financial and trade treaties. No
mention was madeby the FRY of the 1930 Convention at this point. Discussions
between the parties on these matters remained unresolvedin mid-February 1998318
and were subsequentlysuspendedin the light of eventsin Kosovo.
422. As these documentsand exchangesattest, notwithstandingthe evident and
careful attention givenby the FRY to the question of the continuation in force of
various "Yugoslav" treaties with Belgium, at no time did the FRY make any
reference to the 1930 Convention. In the light of the documentedappreciation of
Belgium, Croatia, Sloveniaand Macedonia that the 1930 Convention was no longer
in force, the clear implication tobe drawn from the FRY'S lists of treaties of 6
December 1995 and 9 October 1996, as well as from its communication of 14
March 1997, is that theFRY also was of the view that the 1930 Convention was no
longer in force.
31Annex66.
31Annex 67.
31Annex 68.
3'Annex 69.
31Annex 70.
31Annex71.
3'Annex 72. ChapterSeven
423. On the basis of the preceding, Belgiumcontendsthat the 1930Convention
is no longer in force. This conclusionis dictated by the terms of the Convention,
the practice of the parties inthe periodfollowingits entry into force, the fact of the
disappearanceof "Yugoslavia" asone of the two originalparties to the Convention,
and the clear and documented appreciation of Belgium, Croatia, Slovenia,
Macedonia and the FRY that the treaty was no longer in force. Article 4 of the
1930 Convention cannot, accordingly, be relied upon by the FRY to found
jurisdiction in this case.
(c) The FRY hasnotsucceededto the 1930 Convention
424. Distinct from the argument advanced in the preceding section, Belgium
contendsthat, in the event that theCourt were to concludethat the 19Convention
does continue in force, the FRY has not succeededto the Convention and that it
cannot, accordingly,rely on Article of the Conventionto foundjurisdiction in this
case.
425. The FRY is a successorto the SFRY. Thereis no dispute about this. It is,
however, oneamongstfive new statesto have succeeded theSFRY. It is neither the
sole successor northe continuationof the SFRY.
426. The dissolutionof the SFRYhas given rise to complexissues of succession
concerningthe entitlements, rightsand obligationsof the five successor stateser
se as well as in the relationshipof each of them with the world atlarge. In many
cases, these issues remain unresolved.
427. Insofar as issues of succession between the successor stateinter seare
concerned, the Arbitration Commissionof the Conferenceon Yugoslavia provided
some guidanceon how these matters ought to be re~olved.~'~In contrast, with the
exception of the principle thatone of the successors can be regarded as the
continuationor sole successorof the SFRY, the relationshipbetween the successor
states and the world at large was not addressed. This matter thus falls to be
addressed by reference to such general principles of international law as may be
applicableandthe relevant circumstancesandpracticeof the states concerned.
31See, for exarnOpinio no.9of4 July 1992, ILR203; OpinioNo.12of 16July 1993, 96
ILR723;OpinioNno.13of 16 July 1993,ILR 727;Opinio no.14of 13 August 1993, ZLR
729; anOpinioNno.15of 13Auguzt1993,9ILR733. ChapterSeven
428. Belgium is not a party to the ViennaConventionon State Successionin
Respectof Treaties1978 ("Vienna SuccessionConvention"). This Convention does
not therefore apply quatreaty inrespect of relationsbetween Belgiumand the FRY.
Nor, in Belgium's contention, can the Convention generally be said to reflect
principles of customary international law. Indeed, withthe exception of certain
treaties of a particular character - eg, treaties establishing a boundary or other
territorial or "objective"regirnes, or human rights treaties- about which there is a
broad measure of agreement, there are few generally accepted principles of
international law relating to succession. As the International Law Commission
("ILC") itself notedin respect of its work on statesuccessionin respectof treaties:
"A close examination of State practice afforded no convincing
evidenceof any general doctrineby referenceto which the various
problems of succession in respect of treaties could find their
appropriate solution."320
429. This view is echoed by a contemporary and authoritative treatise in the
followingterms:
"When a successionof stateshas occurred, the extentto which the
rights and duties of the predecessor devolve on the successor is
uncertain and controversial. ...The practiceof states suggests that
no general succession takes place according to international
iaw ."321
430. While the extent of succession is controversial, a number of accepted
principles relevantto the present circumstancesare discernible. First, it is evident
that succession to bilateral treaties is to be treated differently from succession to
multilateral treaties. Thisemergesclearly fromthe approachadopted in the Vienna
SuccessionConvention,which. in respectof successionby newly independentstates,
addresses multilateral treatiesand bilateral treaties separately, settingout different
rules in respect of ea~h.~~~ It also emerges from theILC's commentaryto the draft
articlesthat formedthe basisof the ViennaSuccession Convention:
320Successionof States in Respectof Treaties,Report of the Commission to theGeneral Assembly,
YILC, 1974, Vol.11Par Otne, atp.168, paragraph 51.
3" Jennings and Watts, Oppenheim'sInternational Law(9Ihed., 1992), at8 61, pp.209-210
(emphasisin the original).
322Vienna Conventionon Successionof States in Respectof Treaties, 1978 (Annex Part III,
Section 2 (Multilateral Treaties: Articles 17-23)and Section 3 (BilateralTreaties: Articles 24-26),
respectivel. ChapterSeven
...the former legal nexus between the territory and the
"(2)
treaties of the predecessor State has at any rate some implications
for the subsequent relations between the successor State and the
other parties to the treaties. If in the case of many multilateral
treaties that legalnexus appears to generate an actual right for the
successor Stateto establish itself as a party or a contracting State,
thisdoes not appearto be so in the caseof bilateraltreaties.
(3) The reasons are twofold. First, the persona1equation - the
identityof the other contractingparty - althoughan elementalso in
multilateral treaties, necessarily plays a more dominant role in
bilateral treaty relations; for the very object of most bilateral
treaties is to regulate the mutual rights and obligations of the
parties by referenceessentiallyto their ownparticular relationsand
interests. In consequence, it is not possible automaticallyto infer
from a State's previous acceptance of a bilateral treaty as
applicable in respect of a territory its willingnessto do so after a
successionin relation to a wholly new sovereign of the territory.
Secondly, in the caseof a bilateral treaty there is no question of
the treaty's being brou,3323nto force betweenthe successor State
and itspredecessor ...
431. Second, as regardssuccessionto bilateral treaties,the basic principle is that
succession dependson consentto this effectby boththe remainingoriginal party and
the successor state. In the absence of such consent, there is no presumption of
continuity. This principleis reflected uncontroversiallyin Articles 24(1) and 9(1) of
the Vienna Succession Conventio in the following terms:
"Article 24
Conditionsunderwhicha treaty is consideredas beinginforce in
thecaseofa succession ofStates
1. A bilateral treaty which at the date of a succession of States
was in force in respect of the territory to which thesuccession of
States relates is considered as being in force between a newly
independent State and theother State party when:
(a) they expresslyso agree; or
(b) by reason of their conductthey are to be considered as having
so agreed. "
323Successionof States: SuccessinRespectof Treaties,Reportof theCommission totheGeneral
Assembly ,YILC, 1972,Vol.11,p.223, atpp.272-273(emphasisintheoriginal).
141 ChapterSeven
"Article 9
Unilateraldeclaratio n ya successor State regardingtreatiesof
thepredecessor State
1. Obligations or rights under treaties in force in respect of a
territory at the date of a successionof States do not become the
obligations or rights of the successor State or of other States
parties to those treaties by reason only of the fact that the
successor Statehas madea unilateral declaration providingfor the
continuation in forceof the treaties in respectof its territory."
432. The ILC's commentary on what became Article 24 of the Vienna
Succession Conventio nddresses thematter in the followingterms:
From the considerable measure of continuity found in
"(4)
practice, a general presumptionhas sometimesbeen derived that
bilateral treaties inforce with respect to a territory andown to
the successorState continuein force unlessthe contrary is declared
within a reasonable timeafter the successor State's attainment of
independence. ...
(8) The Commissionis therefore awarethat Statepractice shows
a tendency towards continuityin the case of certain categories of
treaties. Itdoes not believe however that thepracticejustifies the
conclusion thatthe continuity derives from a customary legal rule
rather than the willof the States concerned (thesuccessor Stateand
the other party to its predecessor'streaty). At any rate, practice
does not seem to support the existence of a unilateral right in a
newly independent Stateto consider a bilateral treaty ascontinuing
in force with respect to its territory after independencegardless
of the wishesof the otherparty to the treaty. This is clear from
some of the State practice alreadyset out in commentaries to
previous articles. Thus, the numerous unilateral declarationsby
newly independent Statesexaminedin the commentaryto article 8
have unmistakably been basedin the assumptionthat, as a general
rule, the continuance in force of their predecessor's bilateral
treaties is amatter on which it would be necessary to reach an
accord with the other party to each treaty. The Commission is
aware that those declarations envisage that some categories of
treaties may continuein force automatically under customary law.
But apart from these possible exceptions theyclearly contemplate
bilateral treatiesas continuingin force onlybymutualconsent. ...
(12) From the evidence adducedin the precedingparagraphs, the
Commission concludes that succession in respect of bilateral
treaties has an essentially voluntarycharacter: voluntary, that is, ChapterSeven
on the part not only of the successor State but also of the other
interested State. On this basis the fundamentalrule to be laid
down for bilateral treaties appearsto be that their continuance in
force afterindependenceis a matter of agreement,express or tacit,
between the successor State and the other State party to the
predecessor State's treaty"324
433. There is broad agreement on the two principles just stated concerning
successionto bilateral conventions. In Belgium'scontention, these principles are
accordinglyapplicableto the determinationof the question of whether the FRY has
succeeded to the 1930Convention. In contrast, there is no general agreementon the
application of the principle of continuity of treaties contained in Article 34 of the
ViennaSuccession Conventiod nealing with successionin the case of the separation
of parts of a state. Quite to the contrary. As Belgium, in common with other
states, noted in its commentson draft Article 27 dealing withsuccessionin the case
of the dissolution of a state, rather than the principle of continuity, the
circumstances in contemplationwould havebeen better addressed by reference to
the clean slate principle which would"have led to a conclusion directlyopposite to
that whichthe Commissionhad reached 3,.25
434. In the light of the acceptedprinciplesapplicableto successionin the case of
bilateral treatiesidentifiedbove, the questionof whether the FRYhas succeededto
the 1930 Conventionis to be addressedby reference to the consent or otherwise of
both Belgium and theFRY on the matter. Absent the consentof both states, FRY
successionto the 1930 Convention will not haveoccurred.
435. As is addressed further below, the position is in fact relatively clear.
Belgium has never consideredthe FRY to have succeededto the 1930 Convention
and has never, accordingly, consented to such succession. There is objective
evidence to attest to this. In view of the bilateral characterof the treaty, and the
singular importanceof the "persona1equation - the identityof the other contracting
part^"^^ -^in the conclusion of a dispute settlementtreaty of this kind, Belgium
contends that the absenceof consent on its part to FRY succession is a sufficient
basis for concludingthat succession has not occurred.
3'4Ibid, at pp.273-275.
325Successionof Statesin Respectof Treaties,First Report of the Special Rapporteur, Sir Francis
Vallat,YILC, 1974, Vol.11,Part One, at p.68, paragraph 390. See also the observations of the
Special Rapporteurat.70, paragraphs 398-402.
326See text at note 323 above. Chapter Seven
436. The matter is, however, clearer still as al1the evidenceindicatesthat, prior
to 12 May 1999 when the FRY invoked the Convention as a basis of the Court's
jurisdiction, the FRY was also of the view that there was no successionin respect of
the Convention. Therewas therefore, until the adventof this case, a coincidenceof
opinion by both Belgium andthe FRY that there was no succession to the 1930
Convention. This matter is addressedfurtherbelow.
437. In the light of these factors, Belgium contends that there is no basis for
concludingthatthe FRY isa successorto the 1930 Convention.
438. As has already beendescribed, the BelgianForeign Ministry undertook a
review of al1bilateral treaties in forcebetween Belgium and "Yugoslavia" in the
period followingthe dissolutionof the SFRYin 1992. As part of this process, the
Foreign Ministry drew up an initial list of 28 agreements concluded between
Belgium and "Yugoslavia" that, pending review, might be consideredto be still in
Although theprecise date of this initial list is not clear, it was drawn
sometimeprior to 23 September1994, the date on whicha meeting was held in the
Belgian Foreign Ministry to consider the The 1930 Conventionwas not
includedon this list.
439. Again at a date that is not clear but at some point wellbefore 6 December
1995, this list was comrnunicatedto the FRY. That this occurred is attested to by
the "preliminary analysis of the contractual relations between the two states"
undertakenby the FRY andsentto Belgiumon 6 December 1995.~ 'his document
containsfour lists of agreementsunder the followingheadings:
"1. Accordsen vigeur, se trouvant surla liste YougoslaveetBelge,
selonle MinistèreYougoslavedes affairesétrangères";
"II. Accords qui ne sont pas en vigeur et qui se trouvent sur la
liste Yougoslave et Belge, selon le Ministère Yougoslave des
affaires étrangères
"III. Accords qui se trouvent seulementsur la liste Yougoslave";
and
3'Annex61.
32See the introductory notation to the list of 27 September 1994cited at note 309 above. (Annex
62)
3'Annex 69. ChapterSeven
"IV. Accordsqui se trouventseulementsur la listeBelge" .330
440. As the references to a Belgian list in these headings attest, the FRY'Slists
took as their basis a prior Belgian list of agreements. A comparison of the
agreements set outon the initial Belgianlist referred to in paragraph 438 above and
FRY lists number 1,II and IV of 6 December 1995indicatesthat the FRYlists were
compiledon the basis of and in responseto the initialBelgianlist.
441. The 1930 Convention wasnot referred to in any of the FRY lists.
442. In the light of the Belgian and FRY lists, the Belgian Foreign Minister
wrote to the Foreign Minister of the FRY on 29 April 1996 proposing an interim
arrangement on the question of FRY succession to SFRYtreaties in inter alia the
followingterms:
"Le Royaume de Belgique espère qu'une coopération fructueuse
pourra s'établiravec la RépubliqueFédérale de Yougoslavie, tant
sur le plan bilatéralque multilatéraldans le respect du Droit
international et des traitésinternationaux auxquels nosdeux pays
sont parties. A ce propos, la Belgique part du principe que les
accords bilatérauxliant, d'une part, le Royaume de Belgique (en
ce compris ceux conclus avec l'Union Economique Belgo-
Luxembourgeoise) et, d'autre part, la République Socialiste
Fédérativede Yougoslavie, continueront à produire leurs effets
jusqu'à ce qu'ils aient étésoit confirmés soit renégocié psar les
deux parties.
443. Given the prior exchangeof lists betweenthe parties, the proposition that
bilateral agreements betweenBelgium andthe SFRY wouldcontinue in force until
either confirmed or renegotiated had in contemplation the agreements already
identifiedby the parties.
330''1.Agreementsin force, whichare to befoundon the YugoslavandBelgianlists, accordingto the
YugoslavMinisterof Foreign Affairs"; "II.Agreements whichare not in force, whicharefound on
the Yugoslavand Belgian lists,ccordiig to the Yugoslav Minister of Foreign Affairs"; "III.
Agreementsthat are foundonly on the Yugoslavlist"; and "IV. Agreementsthat are foundonly on
theBelgian list"emphasisadded; translatby Belgium).
331"The Kingdomof Belgiumhopes that a fruitful cooperationcan be established with theFederal
Republicof Yugoslaviaasmuch at the bilateral levelas asthe multilateral level inconformity
with international Iaw and international treaties towhich Our two countries areIn thiss.
regard, Belgiumproceeds onthe assumption that thebilateral agreements binding, onthe one hand,
the Kingdom of Belgium (includingthose agreements entered into with the Belgo-Luxembourg
Economic Union) and,on the other hand,the SocialistFederalRepublicof Yugoslavia, willcontinue
to have effect until they are either confirmedor renegotiatedby both parties." [Translation by
Belgium] (Annex74) ChapterSeven
444. Subsequent to the letter from the Belgian Foreign Minister to his FRY
counterpart, the Belgian Foreign Ministry undertook afurther review of Belgian-
SFRY treaties. Following an interna1meeting on9 September 1996, a revised list
was drawn up comprising 16 agreements that Belgium considered continued in
force. The 1930 Conventionwas not includedon this list.
445. In prospect of a meeting scheduled totake place in Belgrade on 28-29
October 1996(although subsequentlycancelled),the FRY, on 9 October 1996, sent
Belgium a further list of bilateral agreementswhich did not appear on the Belgian
list but which, according to theFRY, continued in The 1930 Convention
did not appear on thislist.
446. Following talks between Belgiumand the FRY on questions of succession
on 13 November 1996, further exchanges took placeon 14 March 1997.~~~NO
mention was madeby the FRY of the 1930 Conventioneither in the course of the
bilateral talks or in theater exchanges. Discussions between theparties on these
matters remained unresolvedand were subsequently suspendedin the light of events
in Kosovo.
447. The absence of any reference to the 1930 Conventionboth on the Belgian
and FRY lists and in their bilateral discussions on thematter was matched by an
evident appreciationon the part of Croatia, Sloveniaand Macedoniathat there was
no question of succession ontheir part to the 1930 Convention. Given that these
states are successors to the SFRYof equal standingto the FRY, the fact that the
1930 Conventiondid not even featureas part of the successiondiscussionsinvolving
these states lends objectivesupport to the appreciationthat successionto the1930
Convention cannot be presumed in the absence of explicit and unarnbiguous
agreement in favour of successionby the states concerned. It also lends support to
the propositionthat Belgium has never consideredthe FRY to have succeededto the
1930 Conventionand that it has never, either expresslyor implicitly, consented to
FRY successionto this Convention. The absenceof any indication,at any time, by
any state having an interest in the matter, that th1930 Conventiongave rise to
questionsof succession,coupled with thefact that the Conventiondid notfeature on
any of the Belgian lists drawn up for this purpose, suggests that it is virtually
inconceivable that Belgium wouldhave at any time considered theFRY to have
332"..la listedesAccords bilatéuxine figurepas surla liste belge etqui,dla position
yougoslave,sontapplicables"(Annex70)
333Seeparagraphs20-421above.
146 ChapterSeven
succeeded to the Convention and indicated its consent in any way to such
succession.
448. The cornmon appreciation of Belgium, Croatia, Slovenia and Macedonia
that the 1930 Convention did not give rise to any question of succession also
supportsthe implicationthatthe absenceof any referenceto the1930 Convention by
the FRY prior to 12 May 1999 reflectedariappreciationon thepart of theFRY that
there was no questionof successionon its part to theConvention.
449. Beyond thepractice of the states, the character of1930 Convention also
supports the conclusion that succession cannotbe presurned in the absence of
explicit and unambiguous agreementin favour of successionby both Belgium and
the FRY. A bilateral disputesettlement agreementsuch as th1930 Convention is
quintessentiallythe kindof agreementthat, to adoptthe languageof the International
Law Commission, "regulate[s] the mutual rights and obligations of the parties by
reference essentiallyto their own particular relations andr est^".^P^articularly
given the events surroundingthe dissolutionof the SFRY,it is not possible to infer
from Belgium's acceptance of a bilateral treaty with "Yugoslavia" in 1930 its
willingness to do so with the FRY, and on the same terms despite evident
shortcomings in the text, and without any discussionon thematter, more than 60
years later.
450. In the light of the foregoing, Belgium contends that the FRY has not
succeededto the 1930 Convention. The bilateral nature andparticular character of
the Conventionmilitatesagainstsuccessionin the absenceof agreementto this effect
by both Belgium and theFRY. Belgium hasnever considered the FRY to have
succeeded, and has never consentedto FRY succession, to the Convention. FRY
practice, in the form of variouslists of agreementsdrawnup addressing thequestion
of FRY succession to SFRY treaties with Belgium, as well as other bilateral
exchanges withBelgiumon the matter, has beenconsistentwiththe appreciationthat
there was no question of succession to the 1930 Convention. The practice of
Croatia, Slovenia and Macedoniaon the issueof successionto SFRY treaties with
Belgium is also consistentwith the appreciationthat the1930 Convention did not
give rise to any question of successionby the SFRY successor states. There is
therefore no basis for concluding that the FRY has succeeded to the 1930
Convention. The FRY cannot, accordingly ,rely on Article 4 of the Convention to
foundjurisdiction in this case.
334Seetextatnote323 above. ChapterSeven
(4 Theconditionslaiddownbythe 1930 Conventionhavenot beensatisfied
451. In the alternative to the preceding submissions,Belgium contends that in
the event thatthe Court were to concludethat theFRY is a party to the Statute, that
the 1930 Convention is inforce and that theFRY has succeededto the Convention,
the conditionslaid down by the Conventionfor the applicationof Article 4 have not
been satisfied. Accordingly, theFRY cannot relyon Article 4 of the Convention to
foundjurisdiction in this case.
452. The structure and content of the 1930 Convention have already been
addressed in section 1 of this Chapter. The questionof the conditionslaid down by
the Conventionfor the applicationof Article 4 can thereforebe dealt with relatively
briefly.
453. As was observed in the earlier discussion, the Convention lays down a
relatively complex regime of interacting dispute settlement procedures. This
interactionhighlightsa centralfeature of the Convention, namely,the sequentialand
controlled applicationof the various procedures. So, for example, before resorting
to judicial settlementor arbitration, the parties to a dispute may have recourse to
conciliationpursuant to Article 7(1) of the Convention. Pursuant to Article 7(2), if
conciliation fails to resolve the dispute, the parties must wait one month from the
termination of the conciliationproceedingsbefore resorting to judicial settlement or
arbitration. In similar vein, if the parties choose to resort to arbitration butl to
agree on the terms of the arbitration, either party may refer the matter to the
Permanent Court, subjectto the requirement in Article 6 of a three months' notice
period.
454. The sarne sequential approach is evident in the case of the other dispute
settlement procedures. Thus, disputes other than those mentioned in Article 4,
inust, pursuant to Article 8, be referred initially to conciliation. If thisfails to
resolve the dispute,the parties may, pursuant to Article 24(1), refer the matter to
arbitration withina month. If, on the expirationof this month, the parties have not
referred the matter to arbitration, Article 32 provides that it is to be settled in
conformitywith Article 15of the Covenantof the League.
455. In similar vein, and of relevance for present purposes, Article 2 of the
Conventionprovides, first, that ChapterSeven
"[d]isputes for the settlementof which a special procedure is laid
down in other conventions in force between the High Contracting
Parties shall be settled in conforrnity withthe provisions ofthose
conventions",
and, second, that
"[ilf, however, the dispute is not settled by application of this
procedure, the provisions of the present Convention concerning
arbitrationor judicial settlementshall apply."
456. As with the approach adoptedby the Convention more generally, Article 2
is in effect a sequencing provision which provides for the operation of inter alia
Article 4 (concerningjudicial settlement)at the point at which the other relevant
special procedures have failed to achieve a settlement of the dispute in question.
Article 4 was thus envisaged as an alternativebasis of jurisdiction that would only
become operational at the point at which a dispute was not settled in conformity
with someother designatedprocedure.
457. In Belgium'scontention, the reference in Article 2 to special procedures in
conventions in force must be construed as a reference both to dispute settlement
clauses in treaties in force and to the "consensual bond"established on the basis of
Optional Clause arrangementsunder Article 36 of the Court's Statute. Both such
arrangements are based on conventional cornmitments. Bothestablish special
procedures for the settlementof disputes.
458. In the present case, the FRY hasrelied on Article 4 of the Convention as a
basis of general jurisdiction, operatingin parallel and additionalto Article 36 of the
Statuteand Article IX of the GenocideConvention. By operation of Article 2 of the
1930 Convention, however, judicial settlement pursuant to Article 4 of the
Convention is only availableif the disputeis not settled by the applicationof other
special procedures. Article4 couldtherefore only operateto establishjurisdiction in
respect of the present complaintby the FRY if and when, and to the extent that, the
Court concluded that it had no jurisdiction under Article 36 of the Statute and
Article IX of the GenocideConventionin this matter. The FRY'S invocation of
Article 4 of the1930 Conventionas a basis ofjurisdiction is therefore, in respect of
the present complaint, premature.
459. There is, of course, a degree of formalism to this argument and Belgium
acknowledgesthat the Court, in other circumstances,has been disinclinedto refuse ChapterSeven
jurisdiction on grounds that a procedural stepdealingwith a time limit has not been
respected. The issue, however, in Belgium's contention, cannotbe so easily
dismissed in this case for a number of reasons. First, the sequential operation of
various dispute settlement procedures was clearly conceived of as an essential
element of the 1930 Convention. If the Convention is to be applied, it must
therefore be applied in accordancewith its terms. Second, the FRY is purporting,
in quite exceptional circumstances,to rely on an agreementconcluded70 years ago,
in the context of the dispute settlement environmentof the League of Nations, by
parties of which it was not one. Ifit is to be permittedto do so, it must at the very
least satisfythe conditions laiddown by the Convention. Third, in the light of the
present analysis,the only circumstancesin which Article 4 of the 1930 Convention
could conceivably provide a basis ofjurisdiction inthis case wouldbe if one or both
of the other bases ofjurisdiction relied uponby the FRY were rejectedby the Court
with the inevitableconsequence that someor al1of the parallel cases broughtby the
FRY against the other Respondent membersof NATO would be removed from the
Court's list. In such circumstances, if the FRY sought to proceed against Belgium
alone, Belgium considers that the FRY should be required to initiate proceedings
afresh indicating, as it has not done in its present Application and Memorial,
precisely the acts allegedto havebeen cornmittedby Belgium.
460. In the light of the foregoing, if, contrary to Belgium'ssubmissions in the
preceding sectionsof this Chapter, the Court were to concludethat (a) theFRY is a
party to the Statute, and (b) the1930 Conventionis in force, and (c) the FRY has
succeeded to the Convention, Belgium contends that the FRY has not satisfied the
conditions laid downby the 1930 Conventionfor the application of Article 4 and
that it cannot thereforerely on Article4 of the Conventionto foundjurisdiction in
this case.
4. Conclusions
461. If, contrary to Belgium's submissionsin Chapter Four, the Court were to
conclude that it has jurisdiction ratione personue in proceedings initiated by the
FRY, Belgium contendsthat theCourt does not havejurisdictionunder Article 4 of
the1930 Conventionin the present caseon the followinggrounds:
(a) insofar as the FRY is not a party to the Court's Statute, Article 37 of the
Statute does not operate to foundjurisdiction in the Court on the basis of
Article4 of the1930 Convention;andlor ChapterSeven
(b) the 1930 Convention is no longerin force; andlor
(c) the FRY has not succeeded to the1930 Convention; andlor
(d)., the conditionslaid downby the 1930 Convention have notbeen satisfied. Chapter Seven
[blank] Part III
PARTIII: OBJECTIONSTO ADMISSIBILITY
462. In its Judgmenton preliminary objectionsin the NottebohmCase, the Court
observed:
"The purpose of Article 36, paragraph 2, and of the Declarations
relating thereto,is to regulate the seisingof the Court ...But the
seising of the Court is one thing, the administrationof justice is
another "335
463. Noting that the filing of an application instituting proceedings "does not
prejudge the action that theCourt may take to deal with the case", the Court, in the
Northern CameroonsCase, elaboratedupon its cornrnentsin the NottebohmCase as
follows:
"It is the act of the Applicant whichseises the Court but even if
the Court, when seised, finds that it has jurisdiction, the Court is
not compelledin every caseto exercisethatjurisdiction. There are
inherent limitationson the exercise of the judicial function which
the Court, as a court ofjustice, can never ignore. There may thus
be incompatibility between thedesires of an applicant, or, indeed,
of both parties to a case, on the one hand, and on the other hand
the dutyof the Court to maintainits judicialcharacter. The Court
itself, and not the parties, must be the guardian of the Court's
judicial integrity"336
464. The issue, to echo the wordsof a distinguishedformer Judge of the Court,
is the "propriety" of the Court exercising jiirisdictionin the particularcircumstances
of a case, notwithstanding thatit'may be entitled to do so.337While an assessrnent
of "propriety" is generally a matter falling within the discretion of the Court, the
Court'sjurisprudence makes clear that, in certain circumstances,notably concerned
with the interests of third States absent from the proceedings, the exercise of
jurisdiction mustbe de~lined.~"
465. In Belgium'scontention, evenif, contrary to the submissionsin Part II of
these Preliminary Objections,the Court were to concludethat it has jurisdiction to
Nottebohm Case (PreliminaryObjectionsC),I.. Reporis1953,p.111, at p.122.
Case concerningNorihemCameroons (Cameroo n. United Kingdom). PreliminaOybjections.
I.C.J. Reports1963,p.15, at p.29.
33Sir Gerald Fitzmaurice, "The Law and Procedure of the InternationalCourt of Justice, 1951-
1954:Questionsof Jurisdiction,Competence andProcedure", (1958)BYIL 1, at pp.22-23.
33See H. Thirlway, "TheLaw and Procedureof the International Courtof Justice, 1960-1989:Part
Nine- IV. Questionsof JurisdictionandCompetence,1954-1989",(1998)BYIL 1, at pp.34-35. PariZZZ
hear this case, there are compelling reasons for it not to assume thatjurisdiction.
The FRY's application is inadmissibleon grounds relatingto the administration of
justice andthe judicial integrity of the Court. Specifically,Belgium contends that
the case is inadmissibleon the grounds:
(a) ,, that the FRY hasnot identifiedany actionsspecifically allegedto have been
, committedby Belgiurnwith which it takes issue;
(b) that theFRY has actedin bad faith; and
(c) of the absenceof the United Statesand other "Respondents" in the parallel
proceedings .
466. On the basis of general principles relatingto the sound administration of
justice, Belgium contends that it would be inappropriate for the Court to assume
jurisdiction in these circumstances. Each of the contentions is addressed further
below.
467. Before turning to acldress these matters, a preliminary point warrants
comment. In Chapter Nine below, Belgiumalleges that the FRY hasacted in bad
faith. In support of this allegation, Belgiurnrefers to certain matters of a factual
nature. For the avoidanceof doubt, Belgium notesthat this material is cited for
purposes of its contentionson admissibilityonly. It is notcited, either expressly or
by implication, in response to the FRY's allegations on the substance. Belgium
inakes no comment herein on the merits of the FRY's clairns. The allegation by
Belgiumof bad faith on the part of the FRYdoes notjoin issue withthe FRY on its
clairnson the merits. ChapterEight
CHAPTEREIGHT: THE FRY HAS NOTIDENTIFIEDANYACTIONS
SPECIFICALLY ALLEGED TO HAVE BEENCOMMITTED
BYBELGIUMWITH WHICH IT TAKESISSUE
468. In its Applicationinstitutingproceedings, the FRY alleged that "by taking
part in" various specified acts, Belgium is in breach of certain obligations under
international law. These allegationsare repeated in the introduction to the FRY's
Memorial. Throughoutthe remaining360 or so pages of the Memorial, no further
reference is to be found to Belgium, with thesole exception of that part of the
Memorial which addresses the 1930 Conventionas a possible basis of the Court's
jurisdiction. No attempt is madeby the FRY to particularise any acts specifically
allegedto havebeen committedby Belgium.
469. Absent specificallegations against Belgium,the'FRYsimplyarguesthat the
acts of NATO and KFOR are imputableinter alia to Belgium. This allegation is
developed in a few short paragraphs in theFRY's ~emorial.~~~The essence and
virtually the sum total of these claims is that NATO organs take their decisions on
the basis of consent of the MemberStates, "each separatelyand al1together", and
that, in consequence, al1NATO acts are imputable toBelgi~m.~~'As regards the
acts of KFOR, the FRY simplyasserts that "KFOR is under NATO command and
control structure. NATOcountriesare prominentlyrepresented in theforce."34'
470. As has alreadybeen (îddressed,Article 38(2) of the Court's Rules requires
that an application shallspecify "the precise natureof the clairn". Article 45(1) of
the Rules goes on to provide that the pleadingsshall consist of a Memorial by the
applicant and a Counter-Memorialby the respondent. Pursuant to Article 45(2) of
the Rules, other pleadings are at the direction of the Court. As regards the
applicant's Memorial,Article 49(1) of the Rules provides that this "shall contain a
statementof the relevantfacts, a statementof law, and the submissions". As these
provisions make clear, the applicant'sMemorial is the principal, and perhaps only,
document by which an applicantis to make its case. This being so, an applicant
must set out and substantiate,ints Memorial, its allegationsagainst the respondent
with a sufficiencyof detailthat meetsa basic threshold test of foundation. In other
words, general principles relating to the administration of justice require that
allegations be particularised in a Memorial in enough detail to provide the
respondent with sufficientinformationto allow it to address the allegationsby way
339FRYMernoriaip, p.327-328.Seealsopp.291-299.
340FRYMernoriaip, .327,paragras.8.1.1.1 and2.8.1.1.5.
34'FRYMernoriaip, .327,paragrh.8.1.2.1.
155 ChapterEight
of defence. The basis of the allegationsmust alsobe sufficiently well-foundedso as
not to fa11so far short of a basic threshold of justiciability as to be considered
manifestly ill-foundedand, accordingly,an abuseof the process of the Court.
471. While questionsgoing to the sufficiencyof allegations,proof and evidence
are sometimes left for determination in proceedings on the merits, it is clear that
they have an important place in preliminary objections proceedings. Indeed, the
manifest insufficiencyof allegationsis cornmonlya matter of admissibility. So, for
example, Article 294 of the UN Convention on the Law of the Sea addressing
preliminary proceedings by a court or tribunal indicated in Article 287 of the
Convention, including theInternationalCourt of Justice, provides that the court or
tribunal in question
"shall determine at the request of a party, or may determine
proprio motu, whether the claim constitutes an abuse of legal
process or whetherprima facie it is wellfounded. If the Court or
tribunal determines that the claim constitutes an abuse of legal
process or isprima facie unfounded, it shall takeno further action
in the case."
472. By way of further example, the European Court of Human Rights is
required to declare inadmissible an application "which it considers incompatible
with the provisions of the Convention or the protocols thereto, manifestly ill-
founded, or an abuseof the right of application" .342
473. The requirementfor a sufficiencyof detail in the allegationsraised by an
applicant is also implicit in the basic principle relating to the burden of proof,
namely, that a party seekingto establish a factbears theburden of proving it. As
describedby Professor Bin Cheng in his seminalwork on general principles of law,
"a party having theburden of proof must not only bring evidence insupport of his
allegations, but must also convince the Tribunal of their proof, lest they be
disregardedfor want, or insufficiency,of proof" .343 The necessityfor a sufficiency
of detail and particularity in the allegations raised by an applicant is thus an
elementaryaspectof the basic principles relatingto the administrationofjustice.
342 Article 35(3), EuropeanConvention for theProtectionof HumanRights and Fundamental
Freedoms,as amendedby ProtocolNo.11.
343BinCheng, GeneralPrinciplesofLawasAppliedby InternationaCl ourtsandTribunals(1953). at
p.329. ChapterEight
474. Insofar as these matters cal1for considerationat the preliminary objections
phase of proceedings, Belgium contendsthat the questionfor the Court is whether,
by reference to the information before the Court at that point - notably the
Applicationand the applicant'sMemorial - the applicant's caseis stated in sufficient
detail and particularity as to provide the respondent with sufficient information to
allqw it to address the allegationsby way of defence andis sufficiently well-founded
so as not tofa11so far short of a basic threshold of justiciability asto be considered
manifestly ill-foundedand an abuse of the process of the Court. This question is a
threshold question - a test of admissibility- which does not require the Court to
address the meritsof the applicant's allegations.
475. Belgiumcontendsthat the FRY'scase falls short of this threshold. Insofar
as the allegations againstBelgiumare concerned, the FRY's case proceedsby way
of assertionrather than proof. Other than implyingthat Belgium votedin favour of
NATOmilitary actionagainst theFRY in someunspecifiedNATO organ, nothing is
said about Belgian involvementin the NATO action. Nothing is allegedspecifically
againstBelgium. The FRY doesnot addressthe constituentelementsof the offences
alleged insofar as they may be fundarnentalto the allegations levelledat Belgium.
The case for the imputabilityof NATO's acts toBelgium isnot made; it rests on
proposition alone. If required to file a defenceon the merits, Belgium wouldhave
to presume some specific substantive content into the FRY's allegationsbefore
responding. This would be contrary to the most basic principles relating to the
administration of justice. In Belgium's contention, the FRY's case does not
accordingly meet the most basic threshold test of justiciability. It is inadmissible.
The Court should takeno further actionin the case.
476. For completeness,Belgiumnotes that the Court addressed the question of
the adequacy of allegations of fact advanced by an applicant in its Judgment on
preliminary objectionsin Cameroon v. ~igeria.~~ T~he issue in that case concerned
the Nigerian objectionthat the Application and subsequent pleadingo sf Cameroon
did not meet the required standard of adequacy as to the facts on which it was
based, includingon such matters as the dates, circumstances andlocations of the
alleged breachesby Nigeria.
477. The circumstances of the present case are different. The FRY filed a
largely identical Application in separate proceedings initiated against 10
"4 CaseConcerningtheLand andMaritimeBoundaryBetweenCameroonandNigeria(Cameroon v.
Nigeria),PreliminaryObjections,J.Reports1998,p.275. ChapterEight
Respondents. It has filed a single Memorial on the merits in the eight cases
It has not, in either its Application or its
remaining on the Court's docket.
Memorial, particularised allegations againstBelgium. This is not a question of the
absence of details such as the dates, circumstances or locations of the alleged
breaches. It is a questionof the completeabsenceof any allegationsparticularising
acts said to havebeen cornmittedby Belgium. Belgiumreiterates, if required to file
a defence, Belgium wouldhave to presume some specific substantivecontent into
the FRY'Sallegationsbefore responding.
478. The question at this point in the proceedingsis whether the FRY'S case
against Belgium isprima facie well founded. In other words, it is whether the case
advanced by the FRY is, in the absence of any argument or evidence to the
contrary, capable of sustaining the allegations levelled against Belgium. In
Belgium's contention, it is not. The applicationmust accordingly be considered
inadmissible. ChapterNine
CHAPTERNINE: THE FRY HAS ACTED IN BADFAITH
479. The principle of good faith is a cornerstone of international law. It is, as
the Court observed in the Nuclear Tests Cases, "[olne of the basic principles
governing the creation and performanceof legal obligations, whatevertheir source,
...Trust and confidenceare inherentin internationalCO-operation "45 As with good
faith, so too with its corollary, bad faith or abuse of rights, concepts whichaddress
the application of the principle of good faith to the exercise of right~.~~~The
principle of abus dedroit o,the equitable doctrineof "clean hands", has long been
acknowledged in both Judgments and the Separate and Dissenting Opinions of
Judges of both the Permanent Courtand International and has been widely
heldby publiciststo constitutea general principleof law.348
480. To allege bad faith or abuse of right against a state in the course of legal
proceedingsis nota step tobe taken lightly. The circumstancesof the present case
are, however, whollyexceptional and theevidencein support of the clairnmanifest,
objective and persuasive. Notwithstanding the gravity of the allegation, it is
therefore warranted inthis case. The FRY has acted, and continuesto act, in bad
faith. The FRY'Sapplicationmust accordinglybe consideredinadmissible.349
---
345NuclearTests (Australiav. France) (NewZealandv. France),I.C.J. Reports1974, pp.253 and
457, at paragraphs46 and 49 respectively.
349in Cheng, GeneralPrinciplesofLawasAppliedbyInternationaC l ourtsandTribunals(1953), at
p.121.
347See, for example, Factoryat Chonow, P.C.I.J.. SeriesA, No.9, at p.31; Free ZonesCase,
P.C.I.J., SeriesA/B No.46, at p.167; Legal Statusof EasternGreenland,P.C.I.J., Series A/B,
No.53, as per Judge Anzilloti, at p.95;Diversionof Waterfrom the Meuse,P.C.I.J., Senes A/B,
No.70, as per Judge Anzilloti, atp.50, and Judge Hudson, at p.77; United StatesDiplomaticand
ConsularStaffin Tehran.Judgment,I.C.J. Reports1980,p.3, as per Judge Morozov, at pp.53-55,
and Judge Tarazi, at pp.62-63; Military and ParamilitaryActivities in andAgainst Nicaragua
(Nicaraguav. United StateofAmenca),Ments, Judgment,1.C.J.Reports1986,p.14, as per Judge
Schwebel, at paragraphs240 and 268-272.
348See, for example,H. Lauterpacht,TheFunctionofLaw inthe InternationaClommunity (1933), at
chapter 14, and TheDevelopmentofInternational Law by theInternationalCourt(1958), at pp. 162-
165; Bin Cheng, note 346supra, at chapter4; Taylo"The Contentof the Rule AgainstAbuse of
Rightsin InternationalLaw",(1972-73)BYIL 323;Reuter,Droitinternalionap lublic(7e éd., 1993),
at p.119; Carreau, Droit International(6e éd., 1999), at $ 164; Daillier and Pellet, Droit
International Publi(6e éd., 1999),at $ 227; and Zoller, La Bonnefoi endroitinternatilublic
(1977).
349Citing the equitablemaximthat "a court of equity refuses relief to a plaintiffeonduct in
regard to the subject-matterof the litigation hasbeen improper", Judge Hudson, in his Separate
Opinion in Diversionof Waterfrom theMeuse, addressed the matter as follows: "The general
principleis oneof whichan international tribunal shmakea very sparingapplication... Yet, in
a proper case, and withscrupulousregard for thelimitations whichare necessary, a tribunal bound
by international law ought not to shrink from applying a principle ofsuch obvious fairness."
(Diversionof WaterfromtheMeuse,note347 supra,at p.77.) Chapter Nine
481. Two elements are necessary to sustain an allegation of bad faith: the
allegation must be supported by evidence and the evidence must relate in some
direct manner to the matter before the Court. More specifically,if it is to sustain a
claim of bad faith, the evidenceadducedmust address the conduct of the applicant,
in respect of the underlying subject-matterof the dispute with which the Court is
seised, and must beof such an order as to give rise to real concerns relating to the
administrationof justice or the judicial integrity of the Court. The issue in such
circumstances is the "propriety" of the Court exercisingjurisdiction in the case in
questionnotwithstanding thatit may be entitled todo so.
482. In Belgium's contention, four clear and objective heads of evidence are
apparent in supportof the allegationthat theFRY has acted, and continuesto act, in
bad faith in respectof the subject-matterof the case before theCourt:
(a) the terms of the FRY'S Declaration of 25 April 1999 - specifically, the
FRY's attempt to forestall any review of its actions prior to this date,
whether by way of a substantiveargument in defence by Belgium or by
way of a counter-claim;
the fact of the Indictmentof FRY President SlobodanMilosevic and other
(b)
principal leadersof the FRY for crimes against humanity andviolations of
the laws or customs of war by the InternationalCriminalTribunal for the
FomzerYugoslavia("ICTY") in respectof acts comrnittedin Kosovo in the
period from 1Januaryto late April 1999;
the manifestevidence, including the Indictmentjust referred to, pointing to
(c)
massive violationsof human rights by the FRY in Kosovo in the period
prior to theNATOaction; and
the documented andpersistent failure by the FRY to comply with the
(dl
obligations required of it by the UN Security Council in respect of the
operationsof the ICTYin Kosovo.
483. Each of these elementsconcernsthe conductof the FRY and relates to the
underlying subject-matterof the proceedingsnow before the Court, ie, the conduct
of the FRY in Kosovo and theinternational reaction thereto. The evidence raises
real concerns relatingto the administrationofjustice and the judicial integrity of the ChapterNine
Court. In the circumstances,Belgiumcontendsthat the FRY's applicationmust be
considered inadmissible.
1. BadfaithandthetermsoftheFRY'SDeclarationof 25 April1999
484. The reasons for and consequencesof the temporal limitationin the FRY's
Declaration of 25 April 1999 have already been addressedin Chapter Five above.
There is, accordingly, no need to restate them at this point. For ease of reference,
Belgium simply recalls that the evident intentionbehind the temporal limitation in
the FRY's Declarationwas to give theCourtjurisdiction overthe dispute relating to
the NATOuse of force in the FRY but to attemptto restrict the Court's competence
to address fundamental elementsof that dispute predatingthe signatureof the FRY's
Declaration.
485. It is the consequencesof this temporal limitation that Belgium alleges
amount to bad faith as the FRY evidently hoped to preclude the possibility of
Belgium basinga substantive defenceon the merits of the case on the conductof the
FRY prior to 25 April 1999. It alsoevidently intendedto preclude the possibility
that Belgium mightbring a counter-claim againstthe FRY in respect of its conduct
in Kosovo prior to 25 April 1999. Thus, in a manner almost akin to an automatic
reservation, the FRY has sought to isolate the elementsof the dispute it wishes to
present from the elementsof the dispute that has no wish to defend. The FRY has
purported to givejurisdictionto the Court in respectof someelementsof the dispute
while at the same time withholdingit in respect of crucial matters that may be
relevant both to the Respondent'scase and the Court's appreciationof the Parties'
respective rights and obligations. This is not consistent with the sound
administrationof justice or the exercisebg the Court of its judicial functions. In
Belgium's contention, the .FRY'S application must accordingly be considered
inadmissible.
2. BadfaithandtheIndictmentof FRYPresidentSlobodanMilosevicand
other principal leadero sf the FRYfor crimes against humanityand violations
ofthe lawsor customsofwar
486. On 22 May 1999, the Prosecutor of the ICTY, Justice Louise Arbour,
presented an Indictmentfor confirmation againstSlobodanMilosevic, President of
the FRY, Milan Milutinovic, Presidentof the Republicof Serbia, Nikola Sainovic,
Deputy Prime Minister of the FRY, Dragoljub Ojdanic,Chief of the General Staff ChapterNine
of the Armed Forces of the FRY, and Vlajko Stojhiljkovic, Minister of Interna1
Affairs of the Republic of Serbia, charging them withcrimes against humanity and
violations of the law or customs of war in respect of acts cornmittedin Kosovo in
the period 1 January to late April 1999.~~~ Allegingthat "[elach of the accused is
individually responsible for the crimes alleged against him in this indictment,
pursuant to Article 7(1) of the Tribunal's Stat~te",~~t'he Indictment charges inter
alia that the accused"planned, instigated,ordered, committed or otherwise aided
and abetted in a campaign of terror and violence directed at Kosovo Albanian
civilians living in Kosovo in the FRY"352based "on political, racial, or religious
grounds 9,.53
487. In accordance withthe Statuteand Rulesof Procedure and Evidence of the
ICTY, the Prosecutor was required to present the Indictmentfor confirmation by a
Judge of the Tribunal. This was done on 23 May 1999,the matter being transmitted
to Judge David ~unt.~'~ After reviewing and considering the Indictmentand the
detailed supporting material put forward by the Prosecutor, Judge Hunt concluded
that the "the material facts pleadedestablish aprima faciecase in respect of each
and every count of the indictment and that there is evidence available which
supports thosematerialfact~."~~~ He accordingly confirmed theIndictment.
JudgeHunt went on to issueorders inter aliafor the arrest of the ac~used"~
488.
and for the freezing of their as set^.^' ^ursuant to Article 29(2) of the ICTY's
Statute and Resolution 827 (1993) of the UN Security Council adopted under
Chapter VI1of the Charter,358 Statesare required to comply without undue delay
with these orders.
489. The crimes alleged in this Indictmentare crimes of the utmost severity.
They are allegedagainst the Presidentand other principal leadersof the Applicant in
350 The Prosecutorof the Tribunalv. SlobodanMilosevic, Milan Milutinovic.Nikola Sainovic,
Dragoljub Ojdanoviacnd VlajkoStojhiljkovic,Indictment,22 M1999("Indictment"). (Annex75)
35'Indictment,at paragraph83. (Annex75)
"' Indictment, atparagraph90. (Annex75)
35Indictment,at paragraph99. (Annex75)
35Case No.IT-99-37-1,Presentationof an Indictment forReviewandApplicationfor Warrantsof
Arrestandfor RelatedOrders,23 May 1999. (Annex76)
35Decisionon Reviewof Indictmentand Applicationfor ConsequentialOrders, Decisionof Judge
DavidHunt, 24 May 1999,atparagraph 17. (Annex77)
35DecisiononReviewof Indictment anA dpplicatiofor ConsequentiaOl rders,ibid, at paragraphs
19-25and38(2). (Annex77)
35DecisiononReviewof Zndictmena tndApplicationfor Consequential rders,ibid, at paragraphs
26-29and 38(2). (Annex77)
35SlRESl827,25 May 1993. (Annex78) ChapterNine
these proceedings. They relate to circumstanceswhich constitute an integral and
fundamentalpart of the subject-matterof the disputewith whichthe Court is seised.
They relate to events thattook placein the period between January and late April
1999,ie, the period excludedfrom thejurisdiction of the Courtrsuantto temporal
limitationin theRY'SDeclarationof 25 April 1999.
490. Those accused in the Indictment are entitled to the benefit of the
presumption of innocence. Belgium does not seek to undermine that presumption.
It cannot be overlooked, however, that the circumstances addressed in the
Indictmentare of the utmostseriousness, thatthey constitute antegral part of the
subject-matterof the dispute before the Court, and that the FRY has sought to put
them beyond review .
491. Whatever presurnptions the individual accusedmay be entitled to, the
Indictmentand the circumstancesto which it refers, and the attemptby the FRY to
put the matters in questionbeyondthe reviewof the Court,aise questionsabout the
bona fldes of the Applicant that cannot beoverlooked. They constitute, in
Belgium'scontention, strong evidenceof bad faith on the part of the FRY. They
also raise real concernsabout theadministrationof justice and the judicial integrity
of the Court in this case. In Belgium's contention, the FRY'S application must
accordinglybe consideredinadmissible.
Bad faith and the manifest evidenceof massive vioIationsof human
3.
rights by theFRY in Kosovoin theperiod priorto the NATO action
492. The Indictmentof FRY President Slobodan Milosevic andothers referred
to in the preceding sectiondescribesmassive violationsofuman rights perpetrated
by the FRY on the Albaniancivilian populationin Kosovo from January to April
1999. This document standsas independent testimonyof the bad faith of the FRY
in respect of the eventsin Kosovo whichare at the heart of the disputewith which
the Court is seised.
493. This is not the only independent testimony to thiseffect. As Belgium has
already observed in ChapterThree above, the UN Security Councilwas seised of
the matter'of FRY acts against the Kosovo civilian population from at least 31
March 1998 when, acting under Chapter VI1of the Charter, it adopted Resolution
1160 (1998).~~~AShas alsobeen noted, pursuant to the terms of Resolution 1160
--
35SIRES1 16031March 1998. (Annex6) ChapterNine
(1998), the UN Secretary-General reported regularly on the situation in Kosovo.
These reports mark a steady decline in thehuman rights and humanitariansituation
in Kosovo. They also point to official FRY instigationof and complicity in acts of
terror and violence against thethnicAlbaniancivilianpopulationin Kosovo.
494. The massacreof KosovoAlbanianciviliansin Racak on 15 January 1999 is
one example of such acts. The circumstances surrounding this atrocity were
described by the Secretary-Generalin his Report to the Security Council on 30
January 1999in the followingterms:
"During the period from 15 to 18 January, fighting occurred in
and around the village of Racak, nearStimlje. On 15 January ,the
Serb police and, as indicated in some reports, paramilitary units
entered Racak. On 16 January, the Kosovo Verification Mission
reported that the bodies of 45 Kosovo civilians, including 3
women, atleast 1 chi'idand severalelderly men, were found, 11 in
houses, 23 on a rise behind the village andothers in various
locations in the immediate vicinityof the village. Many of the
dead appeared to have been summarily executed, shot at close
range inthe head and neck. ...
The Special Rapporteur on human rights in the territory of the
former Yugoslavia, in a statement issued on 16 January from
Prague, and the United NationsHigh Commissioner for Human
Rights, in a letter of 19 January to President Milosevic,
condemned themassacre and called for an immediateinvestigation
of the Racak deaths. However, investigative and forensic efforts
in the wake of this massacre have been wilfully obstructedby the
lack of cooperation by the authorities of the Federal Republicof
Yugoslavia withthe international cornmunity. In an attempt to
enter the Federal Republic of Yugoslaviato investigate the Racak
deaths, the Chief Prosecutor of the International Tribunal for the
Former Yugoslavia, Louise Arbour, was turned back, without a
visa, at the border of the Federal Republic of Yugoslavia on 18
January 1999; the Governrnent of the Federal Republic of
Yugoslaviacontinues to assert that the International Tribunal for
the Former Yugoslavia does not have jurisdiction to investigate
alleged warcrimes in Kosovo."360
3"Sl1999199,30January1999,atparagraph11-12. (Annex18)
164 ChapterNine
495. As noted in Chapter Three, the President of the Security Council issued a
statement on 19 January 1999 in response to the events in Racak in which the
Councilcondemnedthe massacre and took noteof the statementof the Head of the
KosovoVerification Mission
"that the responsibility for the massacre lay with the Federal
Republic of Yugoslavia security forces, and that uniformed
membersof both the Federal Republicof Yugoslavia armedforces
and Serbianspecial policehad been involved.361
496. Given the restricted characterof Belgium'ssubmissionson these matters at
this point ie, objectionsto admissibili-ythere is no need to put before the Court
the extensive additional documentarymaterial from other sources attestingto the
violations ofuman rights by the FRY in Kosovo in the period prior to 24 March
1999. The position is clearfrom the Reports of thUN Secretary-General. There
is manifestevidenceof massive violationsof humanrights by the FRY in Kosovo in
the period prior to 24 March 1999. These circumstances are fundamentally
connectedto the subject-matterof the dispute with which theCourt is seised. The
FRY has attempted to excludethem from the scrutiny of the Court by the temporal
limitation in its Declaration of25 April 1999. This amounts, in Belgium's
contention, to evidenceof bad faith by the FRY in respectof the dispute withwhich
the Court is seised. In Belgium's contention, the FRY's application must
accordinglybe considered inadmissible.
4. Bad faith and the documentedand persistentfailure by the FRY to
complywith theobligations required oift bythe UNSecurity Council in respect
of the operationsof theICTYin Kosovo
497. In the preceding section, reference was made to the FRY's refusa1 to
cooperate with theICTY in respect of its attempt to investigate theevents in Racak.
As will be addressedfurtherbelow, this particularinstanceof refusa1to cooperate is
one example of a general practiceby the FRY in respect of theZCTY' sttempt to
investigateevents in Kosovo. In Belgium'scontention, this refusa1by the FRY to
cooperate withthe ICTY constitutesfurther evidenceof FRY badfaith in respect of
the proceedings here in issue. The FRY's failure to cooperate with theICTY in
respect of events in Kosovohas beenpersistent. It has beenclearly documented in
communications fromthe thenICTY Prosecutor, Justice Louise Arbour, andICTY
President, Judge Gabrielle Kirk McDonald. The refusa1to cooperate relates to
36SlPRSTl199212,19Januar1999. (Annex19) ChapterNine
circumstanceswhich are fundamentally connectedto the underlying subject-matter
of the proceedings withwhich the Court is seised. The FRY's conduct in this area
is also relevant at a more general, but nonetheless important, level insofar as it
demonstrates a persistentdisregardby the FRYboth for the Security Counciland an
international court competent to address matters arising from events in Kosovo.
The FRY's actions in this sphere thus raise very directly the question of the
prcpriety of admitting the FRY as an applicant in proceedings before the
InternationalCourt of Justice.
498. The ICTY was established by the UN Security Council, acting under
Chapter VI1of the Charter, by Resolution827 (1993)of 25 May 1993.362Pursuant
to paragraph 2 of the Resolution, the competenceof the Tribunal extends to the
prosecution of persons responsible for serious violations of international
humanitarian law "comrnittedin the territory of the former Yugoslavia between 1
January 1991 and a date to be determined by the Security Council upon the
restorationof peace ..9363
499. By Resolution 1160(1998)of 31 March 1998,the Security Council, acting
under ChapterVI1of the Charter, inter alia
"[u]rge[d] the Office of the Prosecutor of the International
Tribunal establishedpursuant to resolution 827 (1993) of25 May
1993 to begin gathering information related to the violence in
Kosovo that may fa11within its jurisdiction, and note[d] that the
authorities of the Federal Republic of Yugoslavia have an
obligation to cooperate with the Tribunal and that the Contact
Group countrieswill make availableto the Tribunal substantiated
relevant information intheir possession."364
500. The issue of the FRY's general practice of non-cooperationwith the ICTY
was raised by ICTY President, Judge Gabrielle Kirk McDonald, and ICTY
Prosecutor, Judge LouiseArbour, on numerous occasions.365It was also the subject
362SlRESl827,25 May1993. (Annex78)
363SlRESl827,25 May 1993. (Annex78)
364SlRESl1160,31 March 1998,at paragraph 17. (Annex6)
365See, for example, the Letter from ZCTYPresident McDonald to the President of the Security
Council, 8 September 1998(Sl19981839,8 September 1998)(Annex 79); the addressby President
McDonald to the Security Councilof 2 October 1998 (Press Release CClPIUl349-E, 2 October
1998)(Annex 80);the Statementby the Officeof the Prosecutoron thequestionof the refusal by the
FRY to allow Kosovoinvestigations(PressReleasePIUl351-E,7 October 1998)(Annex 81); the
Letter from President McDonald to the President of the Security Council of 22 October 1998
(S119981990, 3 October 1998). (Annex82) ChapterNine
of commentby the SecurityC0unci1.~~~ Addressingthis practice in respect of ICTY
attemptsto investigateevents in Kosovo, Judge McDonald issued a statement on 5
November 1998in interalia the followingterms:
"Yesterday evening, the Prosecutor was informed by the
Governmentof the FRY that "theFederalRepublicof Yugoslavia
does not acceptany investigationof ICTY [sic] in Kosovo and
Metohija generallyn , orduringyour stay in the FR of Yugoslavia
[sic]." This statementis a blatant refusa1to allow theProsecutor
to investigate eventsin Kosovo. ..
1 would like to emphasisethat the position of the Governmentsof
FRY (Serbia andMontenegro)and Serbiahave no basis in law and
that therefusal to allow theProsecutor access to Kosovois illegal.
The SecurityCouncilhas on a nurnberof occasionsreaffirmed the
legal right of, and indeed has directed, the Prosecutor to
investigateevents in Kosovo. In March of this year, the Council
urged the Prosecutor to begin gathering information related to
crimes that may fa11within the jurisdiction of the International
Tribunal. It further reiterated the obligation of the FRY (Serbia
and Montenegro) to CO-operatewith the International Tribunal.
This was subsequentlyrestated in resolution1199in Septemberof
this year. Most recently, in resolution 1203, the Council called
'for prompt and complete investigation, including international
supervision and participation, of al1 atrocities committed against
civilians and full CO-operationwith the InternationalTribunal for
the former Yugoslavia, including compliance with itsorders,
requestsfor informationand investigations.'
These resolutionswere adopted, and the InternationalTribunal was
established, by the Security Council under Chapter Seven of the
United Nations Charter. As a matter of international law, al1
States are bound by such actions. The Governmentof the FRY
(Serbia and Montenegro) is, thus, under a clear and
incontrovertible obligation to CO-operate fully with the
International Tribunal. It may not take any unilateral action that
countermandsor underminesthe authorityof the Security Council.
The decisions and orders of the Security Council supersede any
statement or assertion made by that Government. Its actions,
therefore, are in direct violation of resolutions 1160, 1199 and
1203.
This conductis a further exampleof the FRY'Sutter disregard for
the noms of the international community. Essentially, it has
366See Resolution1199 (1998),at paragraph13 (Annex 14), and Resolutio1203 (1998), at
paragraph14. (Annex16) ChapterNine
become a rogue Statc, one that holds the internationalrule of law
in contempt."367
501. Judge McDonald returned to this matter in her address to the UN General
Assemblyon 19 November 1998in the followingterms:
"Twice in the past ten weeks, 1 have reported to the Security
Council the non-complianceof the Federal Republicof Yugoslavia
(Serbia andMontenegro). ...
...The failure to address this non-CO-operation in a meaningful
way has emboldened the Federal Republic of Yugoslavia to
unabashedlyobstruct theTribunal, and in the process, the will and
explicit mandate given to it by the United Nations. Thus, the
Federal Republic of Yugoslavia's actions, flouting international
law, are an affront to the United Nationsand the very principles
these
underlying the establishmentof this institution. Further,
misdeeds are in direct contravention of express Security Council
resolutions regardingeventsin Kosovo.
Ignoring the Federal Republic of Yugoslavia's non-CO-operation
and non-compliance which has escalated into blatant
inflicting a
obstructionism encouragesother States todo likewise,
devastatingblowto internationallaw andthis institution. "368
502. FRY non-cooperationwith the ITCY in respect of events in Kosovo has
persistedto the present moment.369
503. The non-compliance to which Jiidge McDonald referred relates to the
underlying subject-matterof the dispute with which theCourt is seised. It attests to
the bad faith of the FRY. It is also conduct that raises a more fundamental
challengeto the noms of the internationalcomrnunity,the internationalrule of law
and the principles underlying the United Nations. By reference to these
'" Statementby PresidentMcDonald,5 November1998(Press ReleaseJLlPIUl359-E, 5 November
1998). (Annex83)
Address to the United NationsGeneral Assembly,Judge GabrKirkeMcDonald, President of
the InternationaliminalTribunalfor the former Yugoslavia, 19November 1998(Al53lPV.62, 19
November 1998). (Annex 84)
369See inter aliathe Statement byJudgeMcDonald tothe UN Security Councilof 8 December 1998
(Press ReleaseJLlPIUl371-E, 8 December 1998)(Annex 85); the Letter from Judge McDonald to
Justice Arbour of 16 March 1999(Press ReleaseJLlPIUl386-E, 18 March 1999) (Annex 86); the
Letter from Judge McDonald to the President of the Security Council of 16 March 1999
(Sl19991383,6 April 1999)(Annex 87); the Letter from President McDonaldto the President of the
Security Councilof 2 November 1999(SI19117,2 November1999). (Annex 88) Chapter Nine
circumstances, Belgium contends that the FRY'S application rnust be considered
inadmissible.[blank] ChapterTen
CHAPTERTEN: THEABSENCEOFTHEUNITED STATES AND
OTHER"RESPONDENTS" FROMTHEPARALLELPROCEEDINGS
504. As described in Chapter Three, NATO is composed of 19 members -
Belgium, Canada, the Czech Republic, Denmark, France, Germany, Greece,
Hungary , Iceland, Ita,yLuxembourg, the Netherlands , Norway , Poland, Portugal,
Spain, Turkey, the UnitedKingdomand the UnitedStates. Of these, 14participated
in some active manner - although to significantlyvarying degree- in the NATO
military action in the FRY. These included the United States, France, Italy, the
United Kingdom, Germany, the Netherlands, Turkey, Canada, Belgium,Denrnark,
Spain, Norway, Hungary and Portugal. The Belgian contribution to the NATO
force amountedto approximately1.3 %of the total aircraftcomrnitted.
505. By comparison to the Belgian contribution, the United States, by a
significant margin the largest contributor to the NATO force, committed around
65% of total aircraft.
506. As was also noted in Chapter Three, NATO operates within a wider
framework known as the Partnership for Peace ("PfP"). At the point at which
NATO action in the FRY began the PfP arrangements comprised a further 27
~tates.~" Although PfP states did not participate directly inthe NATO action, a
number, such as Bulgaria andRomania, opened theirairspace and access routes to
NATO forces for thesepurposes.
507. As was describedmore fully in Chapter Three, the UN Security Council,
on 10June 1999,actingunder ChapterVI1of the Charter,adoptedResolution 1244
(1999). By this Resolution, theCouncil decided "on the deployment in Kosovo,
under United Nations auspices, of internationalcivil and security presences, with
the appropriateequipment andpersonnelas req~ired".~~'
508. Pursuant to the termsof this Resolution,the internationalcivil presence in
Kosovowas establishedas UNMIK. The internationalsecuritypresence in Kosovo,
known as KFOR, operates on the basis of troop and other personnel contributions
from 39 states as follows: Argentina, Austria, Azerbaijan, Belgium, Bulgaria,
370These include Albania, Armenia,ustria,Azerbaijan,Belams, Bulgaria, Cro, stonia,
Finland,Georgia,Ireland,Kazakstant,heKyrgyzRepublic,Latvia, Lita,oldova,Romania,
Russia, Slovakia, Slovenia, Swenw, itzerland,the formerYugoslav Repcf Macedonia,
Tajikista, urkmenistaU,kraineandUzbekistan.
37'SlRESl1244,10June1999,atparagrap5. (Annex5) Chapter Ten
Canada, Czech Republic,Denrnark, Estonia, Finland, France, Georgia, Germany ,
Greece, Hungary ,Iceland, Ireland, Italy,Jordan, Latvia, Lithuania, Luxembourg,
Morocco, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation,
Slovakia, Slovenia, Spain, Sweden, Switzerland,Turkey, Ukraine, United Arab
Emirates, United Kingdomand UnitedStates.
509. The FRY instituted legal proceedings against10 NATO Members - the
United States, France, Italy, the United Kingdom, the Netherlands, Canada,
Germany, Belgium, Spain and Portugal. It did not initiateproceedingsagainst nine
other NATO Members, includingfour whichhad contributedin some activemanner
to the NATO action in the FRY. Pursuant to its Orders of 2 June 1999,the Court
removed from its General List the FRY Applicationsagainst the UnitedStates and
Spain. Applicationsthus remain against eightNATOmembers.
510. By its Memorial, the FRY seeks to broaden its applicationby adding new
allegations in respectof the period after 10 June 1999, ie, the point at which the
NATO action ceased and, pursuant to Security CouncilResolution 1244(1999), an
internationalcivil presence(UNMIK) andan international security presence(KFOR)
assumed various responsibilitiesin the name of the United Nations. In respect of
this period and these allegations,the FRY proposesto proceed against Belgiumand,
separately, the other seven remaining respondentNATO Members . Although the
FRY'Sallegations in respectof this periodare cast in general terms - ie, they do not
specify acts alleged to have been cornrnittedby Belgiumor the Respondents in the
other proceedingsbut refer simply to acts of KFOR - the FRY has not sought to
proceed against the 31other statesparticipatingin KFOR.
511. It is, of course, the prerogative of an applicantto decide against whom it
wishes to proceed. There may be good reasons, whetherin law or politics, for an
applicant to decide to proceed against one state but not another. While it rnay
colour the Court's impressionof an applicant'sgood faith if it initiatesproceedings
against someof the participantsin ajoint endeavour but notothers,
"[wlhere ...claims of a legal nature are made by an Applicant
against a Respondentin proceedingsbefore the Court, and made
the subject of submissions, the Court has in principle merely to
decide on those submissions, with bindingforce for the parties Chapter Ten
only, and no other State, in accordance with Article 59 of the
Statute"372
512. In principle, therefore, both the respondent and theCourt must take the
case as they find it. It is not for them to determine who are the appropriate
respondents.
513. While, however, this is the general principle, the jurisprudence of the
Court indicates that it is subject to exception. The Monetary Gold case, for
example, establishesthat, where the verysubject-matterof the case with which the
Court is seised concernsthe legalinterests of a third statenot before the Court, the
Court cannot exercise juri~diction.~~~ In such circumstances, the principlethat the
Court shouldmerely decide on the submissionsas between theparties before itdoes
not therefore apply.
514. There are variations on thistheme. Thus, where the behaviour of the
named respondent cannotbe assessed withoutfirst entering into a consideration of
the lawfulnessof the behaviourof some other statenot present beforethe Court, the
Court cannot exercise juri~diction.~~~On this formulation, notwithstanding the
existence of a discrete dispute between applicantand respondent with which the
Court is ~eised,~~t'he fact that the Court would be required, as a prerequisite, to
considerthe lawfulnessof the conductof another statenot beforethe Court, requires
that the Court declinejurisdiction.
515. Both variations are hinged on the "well-established principle of
internationallaw embodiedin the Court's Statute, namely, thatthe Court can only
exercise jurisdiction over a State with its The Court must accordingly
decline jurisdiction in circumstances inwhich theinterestsof a third stateconstitute
the very subject-matterof thejudgmentto be rendered.
516. So expressed, the Monetary Gold principle is concerned with the legal
interestsof third statesnot before the Court. Implicitin this formulation,however,
is also the necessarycorollary of it, namely, that where theinterests of a third state
372Militaryand ParamilitaryActivitiesin andAgainstNicaragua (Nicaragua. UnitedStates of
America),JurisdictionandAdmissibility,Judgment,I.C.J.Reports1984,p.392, at parah8.p8
373Caseof the monetary gold removefrom Romein 1943 (PreliminaryQuestion).1.C.J. Reports
1954,p.19, atpp.32-33.
374EastTimor(Portugalv,Australia),Judgment,1.C.J. Reports1995,p.90, at paragr2s8-35.
375SeeEastTimor,ibid,atparagraph2s1-22.
376MonetaryGold,note373supra,atp.32 andEastTimor,note374supra,atparagraph 34. ChapterTen
not before the Court constitutethe very subject-matterof the disputewith which the
Court is seised, for the Court to assumejurisdiction wouldbe to prejudice the legal
interests of the respondent. This is particularly so in circumstances in which the
acts of the third state constitutethe dominantpart of the factual dimension of the
disputein question. The respondentrnaynot, in such circumstances,have available
to ital1the necessaryfactualmaterialwith whichto defendits interests. It rnay find
itself under real practical constraints when it comes to developing important
argumentsby way of defencewhich hingeon the role and interests of the third state
or the relationshipbetween therespondentand the third state. It may, for example,
in the absence of that third state, be practically impossibleto develop a de minimis
argumentor sustainan argument basedon the responsibilityof the third statefor the
acts in question, whether or not they amountto violationsof law. There rnay also,
in suchcircumstances,be a real risk of abuseof the legal processto the extent that a
de minimisrespondentrnay be impugnedin the absenceof the principal antagonist
but nevertheless stand in jeopardy of allegations levelled non-specifically at
unnamedrespondents. An abusive applicantmay, in otherwords, proceed against a
manifestly de minimisrespondenton the basisof allegationsof a generalnature with
a view to obtaining, for al1 practical purposes, a judgment on the acts of the
principal antagonist.
517. In Belgium'scontention, it is not sufficient, in such circumstances, to Say
simply that the Court has in principle merely to decide on the submissionsbetween
the parties. Where the interests of a third state not before the Court constitute the
very subject-matterof the dispute with which the Court is seised - and particularly
in circumstancesin which the actsof the third state constitute thedominantpart of
the factual dimensionof the disputein question - the assumptionof jurisdiction by
the Court wouldboth prejudicethe positionof the respondentand give rise to a risk
of abuse of the legal process. It would, in such circumstances,be inappropriate for
the Court to assumejurisdiction. Theapplicant'scase must, in such circumstances,
be consideredinadmissible.
518. For completeness, Belgium notesthat the proposition advanced above -
concerningthe effect on therespondentof the absenceof a third party which has a
direct and essential interestin the verysubjectmatter of the dispute beforethe Court
- is not an "indispensableparties"argument along thelines of that advanced bythe
United Statesin the Nicaraguacase.377The proposition is not, in other words, as
the United States there argued, that the Court cannot determine the rights and
377Nicaraguav. UnitedStateof America,note372supra,at paragraph8s6-88. ChapterTen
obligationsof an absent state withoutits consent. It is that, in some circumstances,
the absence of a third party which has a direct and essential interest in the very
subject-matterof the dispute may prejudice theposition of the respondentand may
give rise to a risk of abuseof the legal process. The interests, in other words, in the
circumstanceshere addressed,are the interestsof the respondentand of the integrity
of ,thejudicial process, not the interests of the absent third state. This matter is
addressed furtherbelow in the specificcontextof this case.
519. Turning to the application of these principles to the present case, two
distinct sets of circumstancesmust be differentiated: (a) theFRY's allegations in
respect of thepre-10 June 1999period, ie, the allegationsagainstBelgiumin respect
of the NATO action, and (b) the FRY's allegationsin respect of the post-10 June
1999period, ie, the allegations against Belgiumin respect of actssaid to have been
committedin the area under KFOR control. The two sets of allegations giverise to
differing considerationsrelatingto the absencefromthe proceedingsof third parties.
They are addressed in turn below.
1. The absence of the United States and other NATO Members from
proceedings arising from allegations concerning the NATO action
520. NATO consists of 19 Members. Although the brevity and lack of
specificity of theFRY's allegations leave thematter unclear, the FRY appears to
take the view that NATO Members are both jointly and separately responsible for
NATO acts. Of the 19 NATO Members, 14 participatedin some active manner in
the NATO action in the FRY. The FRY initiatedproceedings against 10 of these.
Of the 10parallelcases, eight remainon the docketof the Court.
521. The contribution of the 14 NATO Members participating in the action in
the FRYdiffered significantly. As already noted,the UnitedStates, by a significant
margin the largest contributorto the NATO action, committed some 65% of total
aircraft. As has also been noted, the Belgiancontribution to the NATO force
amountedto approximately1.3%of total aircraftcommitted.
522. The FRY'Scase doesnot particulariseallegations against Belgium.Indeed,
as was noted ChapterOne above, insofar as theFRY identifiedany NATOMember
specificallyin the contextofits allegations, itpointed to the United Statesalleging
that "the Kosovo crisis was a crisis selected and developedby the United States as ChapterTen
part of a long-term anti-Serb~ampaign".~~~ The FRY's fixation on the role of the
United States, and its evidently motivatingperception that NATO's action was
driven by the United States, is also apparent from FRY communications to the
United Nations. Thus, for example, in the 3988thMeeting of the UN Security
Council called to consider the NATO action, the FRY representative stated that
"[tlhe United Statesof Americaand NATOmust assumefull responsibility" for the
actions in question.379 Speaking during the following session of the Security
Council, the FRY representative stated sirnilarly that "[mly country has been a
victim of the brutal unlawful aggressionof the North Atlantic Treaty Organisation
(NATO), led by the United Statesof Ameri~a".~~' The United States was also
expressly singled out by the FRY on other occasions in communicationsto and
statementsbefore the Security Co~ncil.~~~
523. Insofar as Belgium has been able to discover, the FRY has not on any
occasion levelledallegations againstBelgiumdirectly.
524. The FRY initiated legal proceedingson the basis of allegationsconcerning
the NATO action against theUnited taies(as well asnine other respondents). This
approachwas consistentwith itsview that theNATOaction was driven and directed
by the UnitedStates. This approachis also consistentwith the fact that the United
Stateswas the dominantcontributorto the NATO action. For reasons of a manifest
lack of jurisdiction, the Court ordered the FRY's case against the United States
removedfrom its docket.
525. The absenceof the United Statesfrom the parallel proceedingsinitiated by
the FRY raises two important questionsof principle that go to the integrity of the
judicial process. First, to theextent that the FRY has consistently singledout the
United States, and the United States alone, in the context of its allegations
concerning theNATO action, and to the extentthat theinterestsof the United States
manifestly amountto a direct and essentialinterest in the very subjectmatter of the
dispute with which theCourt is seised, is it appropriate - by referenceto the legal
interestsof the UnitedStates - for the Court to assumejurisdiction in proceedings
against Belgium arising out of the NATO action in circurnstances in which the
United States is not beforethe Court? Second, to the extent that the interests of the
37Seeparagraph38 above.
37SlPV.3988,24 March1999,atp.14. (Annex 51)
38SlPV.3989,26 March1999,atpp.10-11. (Annex52)
38See, forexample,S119991353,28 March1999;Sl19991453,21 April 1999andSlPV.4011, 10
June1999, atp.3. Chapter Ten
United Statesamount to a direct and essential interest in the subject matter of the
dispute before the Court, and that the United Stateswas ovenvhelmingly the
dominant participant in the NATO action, is it appropriate - by referenceto the
position of Belgiumas Respondentas well as by referencetu the integrity ofthe
judicial process - for the Court to assumejurisdiction in the proceedings agaïmt
Belgiumin circumstancesinwhichthe United Statesis not also before theCourt?
526. In Belgium'scontention, it would be inappropriateon both counts for the
Court to assumejurisdiction irithis case. By referenceto the position of the United
States, however the Court may couch a decision on the merits, and whatever the
terms of Article 59 of the Statute, it is inescapable that such a decision would
involvethe Court, as a fundamentalelementof the process, in adjudicatingupon the
intzrestsof a statenot before the Court. The interestsof the UnitedStatesconstitute
the very subject-matter of the case with which the Court is seised. It is
inconceivablethatthe Court could give judgmenton the merits of the FRY'Sclaims
against Belgiumwithout also, for al1purposes of reality, adjudicatingon the merits
of the FRY'Sclaims against the UnitedStates, claims that weresummarilyremoved
from the Court's docket. This is not a case analogousto the situation in Nauru in
which the Court concluded that the determination of the responsibility of New
Zealand and the United Kingdom, absent from the proceedings, was not a
prerequisite for the determinationof the responsibilityof Australia, against whom
the case was bro~ght.~~~ The interests of the United States go to the very heart of
these proceedings. This is not a case for the Court to prefer vestigial notions of
form over the looming realityof the substanceof the matter.
527. The same conclusion emergesby reference to the position of Belgium as
Respondentand the integrityof thejudicial process. The overwhelminglydominant
role played by the United Statesin the NATO action, coupled with the absence of
the United Statesfrom proceedingson this matter, is bound, unavoidably,to impose
practical constraintson the developmentof arguments thatmay be importantby way
of defence. This is particularly so in the circumstancesof the present case given
that the FRY has not raised specific allegations against Belgium but has simply
soughtto impugn "the Respondents"as a generic category. Belgium also observes
that, in proceeding againsta manifestly de minimisrespondent, on the basis of
allegationslevelled non-specifically atunnamed respondents, and in the absence of
the United Statesfrom parallel proceedings before the Court, the FRY is, for al1
- -- --
"' CertainPhosphate Lands in Nauru (Nauruv.Australia),PreliminaryObjections,Judgment,
1.C.J. Reports1992,p.240,atparagrap55. ChapterTen
practical purposes, seeking to obtain a judgment against the United States as its
declared principal antagonist. There is thus, in the manner in which the various
parallel proceedingshaveunfolded, a real riskof abuseof the legal process.
528. Two brief concluding observationson this matter are warranted. First,
given the differentbases of jurisdiction reliedon by the FRY in thearious parallel
proceedings, there is a possibility that the Court may, contrary to Belgium's
contentionsherein, concludethat it has jurisdiction in proceedings against Belgium
in circumstancesin which it has rejectedjurisdiction in the parallel cases. Belgium
contends that such circumstances would raise even more directly the grounds of
inadmissibilityaddressed above.
Second, the distinctionbetween the contention advanced herein and the
529.
"indispensable parties" argument advancedby the United States in the Nicaragua
case has already been touched upon. In respect of thisatter, Belgiumnotes that,
in its considerationof the "indispensableparties" argumentin the Nicaraguacase,
the Court drew attentionto the emphasisplacedby Nicaragua on the fact that it had
asserted "claimsagainst theUnited States only, and not against any absent State, so
that theCourt is not requiredto exercisejurisdiction overanysuch State"383
530. The circumstances under consideration in the present case are not
analogous. By every indicator,the Applicantin this case, the FRY, considered the
United States to be its principal antagonist. It initiated proceedings against the
United States. It directed the ire and force of its public statements against the
United States alone. It is the Applicant thathas placed the UnitedStates centre
stage. Belgiumis simply respondingto the FRY'scase.
2. Theabsenceof other KFOR participantsfrom proceedingsarisingfrom
the FRY'Sallegationsconcerningpost-10June1999events
531. The position regardingthe FRY's allegationsin respect of the post-10 June
1999 period is even more clear cut. From this point, pursuant to SecurityCouncil
Resolution 1244(1999), internationalcivil and security presences in Kosovowere
establishedby the United Nations. The United Nations isultirnatelyresponsible for
the mandate of these operations as well asfor the way in which theyare exercised.
KFOR includes contingentsfrom 39 States. While there is, in terms of Resolution
1244 (1999), substantial NATO participation in this operation, it is not a NATO
Nicaraguav.United StatofAmerica,not372supra,at paragraph6.
178 Chapter Ten
operation. It is a force authorised by and ultimately answerable to the Security
Council.
532. The fundamentalshortcomingsof the FRY's allegations in this area have
alreadybeen commentedupon. The allegationsdo not particularise acts said to have
been cornrnittedby Belgium,or indeedby anyother state. No evidence is advanced
by the FRY in support of these allegations. These allegations are thus
fundarnentally flawedas a matter of forrn. The allegations effectively seek to
impugn KFOR, and by implication al1 of its participating states, on the basis of
proceedingsagainst Belgium,in parallel with proceedingsagainst a smallgroup of
other participating states,alone.
533. The absenceof 31 of the states pa.rticipatingin KFOR, and, indeed, of the
United Nationsitself, from the proceedingswouldpose very considerableobstacles
to the proper adjudicationby the Court of the FRY'sallegations in respect of this
period. It is inconceivable thatany adjudicationof these allegations as betweenthe
FRY and Belgiumcould be insulated from the direct and essential interests of the
other participating states. The chainlinking Belgium to the acts alleged is long,
stretching from the alleged perpetrators (invariably characterised simply as
"Albanian terrori~ts"~~~ to KFOR (as the UN supervising force in Kosovo) to
NATO (said to be in control of KFOR) to Belgium (asa Member of NATO). It is
inconceivable that Belgium's actions and responsibility in respect of these
allegations couldbe assessed without - as a prerequisiteto and integral part o- an
assessmentof the actions and responsibilityof al1the other organisationsand states
also in the chain. It is inconceivable, therefore,that an assessment of Belgiurn's
conduct would not inevitablyalso involve an assessmentof the conduct of Russia,
Jordan, Ireland, Switzerlandand al1the other non-NATOparticipants in KFOR, as
well as the 18other NATOMembers.
534. In Belgium'scontention, on the basis of the Monetary Gold principle, the
Court must declinejurisdiction in respectof the FRY's allegationsconcerning the
post-10 June 1999period. Not to do so would inevitably involve it in rendering
judgment on the interestsof third statesnot before theCourt.
535. For completeness,Belgiumnotes that a coherent evaluationof the FRY's
allegations on this matter would also inevitably require the Court to consider
important question relating to the conduct of the United Nations in
38FRYMemorial,at Part1.5,pp.201-282. ChapterTen
peacekeepinglpeace-enf oreretonn.t The proper mechanism for raising
such matters with the Court is by wayaorequest for an Advisory Opinionrather
than in contentious proceedings against individual states participating in UN
operations.
536. The sameconclusionashasjust been expressedby referenceto the interests
of absent third states is also dictated by reference to Belgium's interests and the
integrity of the judicial procesGiven the nature of theFRY's allegations in
respect of this period, Belgium,or any individualrespondent, would faceicant
practical hurdles inthe preparationof its defence. Included amongstthese would be
obtaining the necessaryinformationto respond specificallyto allegationsthat have
been levelled in generalterms and in the absenceof any supporting evidence.
complete assessment by the Court of the matters in issue would also require the
Court to consider issues that it may not be for Belgium, or which Belgiumwould
not be best placed, to address. These relate notably to therole and responsibility of
the United Nationsand the otherKFORparticipating states inthis matter.
537. In Belgium's contention, therefore, on this ground too, the FRY's
allegations must be considered inadmissible. The Court must accordingly decline
jurisdiction in respect of these allegations. Conclusions
CONCLUSIONS
538. On the basis of the preceding, Belgium contends that the Court lacks
jurisdiction in the case brought by the FRYagainstBelgiumandlor that the case is
inadmissible. For easeof reference,Belgiurn'sprincipal submissionsand arguments
maybe sumrnarisedas follows:
PreliminarySubmission(Chapter Two)
The Court lacksjurisdiction in respect of claims made for the first time in
the FRY's Memorial andlor such claims are inadmissible (pp.25-30,
paragraphs75-90);
Obiectionsto Jurisdiction(Part II)
First Submission(ChapterFour)
The Court is not opento the FRY (pp.41-76, paragraphs121-234):
the FRY is nota member of the United Nations (pp.42-69, paragraphs
130-206);
the FRY isnot otherwise aparty to the Statutepursuant to Article 93(2)
of the Charter(p.69, paragraphs207-208);
the Court is notopento the FRY pursuantto Article 35(2) of the Statute
(pp.69-74, paragraphs209-225);
Znthe alternative:
Second Submission(ChapterFive)
The Court does not havejurisdictionon the basisof the FRY'SDeclaration
of 25 April 1999(pp.77-103,paragraphs235-314);
the jurisdiction invoked by the FRY is not CO-extensivewith the task
entrustedto theCourt @p.83-87, paragraphs252-261);
the dispute with which theCourt is seisedarose prior to the "crucial
date" in theFRY'[email protected], paragraphs263-278); Conclusions
the situationsor facts alleged arose prior to the "crucial date" in the
FRY's Declaration @p.94-97, paragraphs279-293);
the FRY's allegations concerningpost-10 June 1999events do not alter
the assessmentthat the Court lacks jurisdictionursuant to the FRY's
Declaration(pp.98-102, paragraphs 294-313);
Third Submission (ChapterSix)
The Court does not have jurisdiction on the basis of Article IX of the
GenocideConvention @p.105-125, paragraphs315-380);
the FRY has not identified a protected group against which genocidal
intentor actscan be said to havebeen directed @p.114-115,paragraphs
345-350);
the FRY hasnot adducedany evidenceof genocidal intenton the part of
Belgium(pp.115-120, paragraphs351-366);
there is nothing in the FRY's allegationsof fact that is capable of
sustaininga claimof genocideagainstBelgium(pp.121-124,paragraphs
367-377);
Fourth Submission (Chapter Seven)
The Court does not have jurisdictionon the basis of Article 4 of t1930
Convention (pp.127-151, paragraphs 381-461);
Article 37 of the Statuteis not applicable in this case and cannot
thereforeoperateto give the Courtjurisdiction on the basis of Article 4
of the1930 Convention (pp.133-134,paragraphs408-411);
the1930 Convention is no longer in force (pp.134-139,paragraphs 412-
423);
the FRY has not succeeded to the 1930 Convention @p.139-147,
paragraphs 424-450);
the conditionslaid downby the1930 Convention have not been satisfied
(pp.148-150,paragraphs451-460); Conclusions
Obiections toAdmissibilitv (Part III)
Fifth Submission (Chapter Eight)
• The FRY has not identified any actions specificallyalleged to have been
committedby Belgium with which it takes issue (pp. 155-158, paragraphs
468-478);
Sixth Submission (ChapterNine)
• The FRY has actedin bad faith @p.159-169,paragraphs 479-503);
the temporal limitationin the FRY's Declaration arnounts to bad faith
insofar as the FRY has purported to withholdjurisdiction in respect of
matters that may be crucial both to Belgium'scase and to the Court's
appreciation of the Parties' respective rights and obligations (p. 161,
paragraphs484-485);
the Indictment of FRY President Slobodan Milosevic and other
principal leadersof the FRY for crimes againsthumanity andviolations
of the laws or customs of war in Kosovoconstitutes strongevidence of
bad faith on thepart of the FRY (pp. 161-163,paragraphs486-491);
the manifestevidenceof massive violationsof human rights by the FRY
in Kosovo in the periodprior to the NATO action amountsto evidence
of bad faith by the FRY in respect of the dispute with whichthe Court
is seised(pp.163-165,paragraphs492-496);
the documentedand persistent failureby the FRY to comply with the
obligations requiredof it by the UN SecurityCouncil in respect of the
operations of the ICTY in Kosovo attests to the FRY's bad faith
(pp.165-169,paragraphs497-503);
Seventh Submission (ChapterTen)
• The FRY'SApplication is inadmissiblein the light of the absence of the
United Statesand other "Respondents"from proceedings before theCourt
(pp.171-180,paragraphs504-537); Conclusions
the Applicationis inadmissibleon grounds of the absenceof the United
States and other NATO members from proceedings concerning the
NATO action(pp.175-178,paragraphs520-530);
the allegationsconcerningpost-10 June 1999eventsare inadmissibleon
grounds of the absence of other KFOR participants from the
proceedings(pp.178-180, paragraphs531-537).
539. For the avoidanceof doubt, Belgiumreiterates a pointmade at the outset of
these Preliminary Objections. Belgiumdoes not hereinjoin issue with thesubstance
of theFRY'Sclaims. These pleadingsare confined toobjectionsto the jurisdiction
of the Court and to the admissibilityof the Application. Insofar as certain matters
of a factual nature are referred to, they are cited for purposes of Belgium's
contentions on jurisdiction and admissibilityonly. Belgium further avers that its
objections to jurisdiction and adrnissibility are of an exclusively preliminary
character and do not raise issues that couldor should appropriately be joined to
proceedingson the merits. Submissions
SUBMISSIONS
540. For the reasons stated in these Prelirninary Objections, Belgium requests
the Court toadjudgeand declarethat the Court lacksjurisdiction in the casebrought
against Belgiumby the Federal Republicof Yugoslavia andlor that the application
broughtby the FederalRepublicof Yugoslavia againstBelgium is inadmissible.
Jan Devadder
Agentof the Kingdomof Belgium
5 July 2000[blank] Annexes
LIST OF ANNEXES
The documents indicated below ar set out in the orderin which referenceisfirst
madeto themin theBelgianPreliminaryObjections. Volume I containsdocuments
numbered 1 - 48. Volume II containsdocumentsnumbered 49 - 88.
Annex
~umber Document
1. ConventiononthePrevention and Punishmeo nftthe Crimeof Genocide,
1948, 78 UNTS277
2. FRY Declarationof 25 April 1999
3.. BelgianDeclarationunder Article36(2)of theStatute,17June 1958
4. Conventionof Conciliation,JudicialSettlementand Arbitration 1930,
106LNTS (1930-1931)343, N0.2455
5. Security Council Resolution 124(1999), 10June 1999
6. Security Council Resolution1160(1998), 31 March 1998
7. Sl19981246,17March 1998,containing Decision218 on the situationin
Kosovo,adoptedat thespecial session of the PermanentCouncilof the
OrganisationforSecurityandCooperation inEuropeon 11 March 1998
8. Sl19981361,30 April 1998, Report of the Secretary-General prepared
pursuantto Security Council Resolution1160(1998)
9. Sl19981470, 4 June 1998, Report of the Secretary-General prepared
pursuant to Resolution 1160 (1998)of the Security Council; and
Corrigendum ,l19981470lCorr.1, 8 June 1998
10. Sl19981608, 2 July 1998, Report of the Secretary-General prepared
pursuantto Resolution1160(1998)of the SecurityCouncil
11. Sl19981712,5 August 1998, Report of the Secretary-Generalprepared
pursuantto Security Council Resolution1160(1998)
12. Sl19981834, 4 September 1998, Report of the Secretary-General
prepared pursuant to Resolution 1160 (1998)of the Security Council;
andAddendum, Sl19981834lAdd1 ., 21 September1998
13. SlPRSTl1998125,24 August 1998, Statement by the President of the
SecurityCouncil Annexes
Security CouncilResolution1199(1998), 23 September1998
Sl19981912,3 October 1998, Report of the Secretary-Generalprepared
pursuant to Resolutions 1160 (1998) and 1199 (1998) of the Security
Council
Security CouncilResolution1203 (1998),24 October 1998
Sl199811221, 24 December 1998, Report of the Secretary-General
prepared pursuant to Resolutions 1160 (1998), 1199 (1998) and 1203
(1998)of the SecurityCouncil
Sl1999199,30 January 1999, Report of the Secretary-Generalprepared
pursuant to Resolutions1160 (1998), 1199 (1998) and 1203 (1998) of
the Security Council
SlPRSTl199912, 19 January 1999, Statement by the President of the
Security Council
Sl19991293,17 March 1999, Report of the Secretary-Generalprepared
pursuant to Resolutions1160 (1998), 1199 (1998) and 1203(1998) of
the Security Council
SI1998199 1, 23 October 1998, containing the Kosovo Verification
Agreement betweenNATOand the FRY, 15October 1998
S/1999/107*, 3 February 1999, containing a letter dated 30 January
1999from the NATOSecretary-Generalto thePresidentof the FRY
Sl19991682, 15 hne 1999, Letter dated 15 June 1999 from the
Secretary-Generaladdressed to thePresidentof the Security Council
SI24073 (A/47/258), 6 June 1992, Letter dated 5 June 1992 from the
Chargé d'affaires a.i. of the Permanent Mission of Yugoslavia to the
United Nations addressedto the Secretary-General
Sl24577, 21 September1992, Letter dated 19 September1992from the
Chargé d'affaires a.i. of the Permanent Mission of Yugoslavia to the
UnitedNations addressedto the Presidentof the Security Council
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*
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