INTERNATIONALCOURTC)FJUSTICE
CASE CONCERNING LEGALITYOF USE OF FORCE
(Yugoslavia v. Portugal)
PRELIMINARYOBJECTIONS
OFTHE PORTUGUESEREPUBLIC
5JULY2000 Index
Introduction
1- Backgroundand preliminary questions
II- Presentationof these objections
Part 1 - Objections concerning the Locils stund of the FRY
1- Locus standi and Jurisdiction
II- FRY'Srelationship with the United Nations Organisation
III- FRY is not party to the Court'sStatute
IV - FRY is not entitled to apply to theCourt
Part II - Objections relating to the Court's Jurisdiction
I -In the light of the OptionalDeclarationdepositedby theFRY
II- In the light of article IX of the 1948GenocideConvention
A - Portugal wasnot party tothat Convention
B - There is no dispute withinthe meaning ofarticle IX
Part III - Objections relating to Admissibility
1 - The claim concerns acts by NATO,not Portugal 31
II -The exercise ofjurisdiction woulddirectlyaffect the rightsand dutiesof third parties 43
III - The submissions relating to facts subsequentto 10 June 1999radicallychangethe
nature of the dispute 45
SUBMISSIONS 4s Introduction
1 - Background and preliminaryquestions
1. On 29 April 1999, the Federal Republicof Yugoslavia (FRY) brought an
action against the Portuguese Republic("Portugal"), by means of a Application dated
26 April, in which Portugal, jointly with other membersof the North Atlantic Treaty
Organisation ("NATO77)w , as allegedto be responsiblefor various acts arising from the
crisis in Kosovo which inFRY'sopinion werein violation of international law'.
2. On the same date FRY submitted a Request for the indicationofprovisional
measures, essentially applying to the Court foran injunction on Portugal to refrain from
the actsof which it was accused.
3. Portugal requested that the Court reject that application,arguing in particular
that, prima facie, the Court had no jurisdiction. TheCourt, by an Order dated 2 June
1999, accepted Portugal's contention regarding that stage of the process, and rejected
FRY'Ssubmission2.
4. By an Order dated 30 June 1999,the Court seta time limit of 5 January 2000
for FRY's Memorial and 5July 2000 for Portugal's Counter-Memorial.
5. The FRY forrnally respected that time limit, althoughthe Memorial in its
action against Portugal was identical to that submitted in respectof the now seven other
IThe subject-matter of the dispute was thus determined: "The subject-matter of the
dispute are acts of Portugal by which it has violated its internationalobligation banning theuse
of force against another State, the obligation not tointemene in the interna1affairs of another
State, the obligation not toolate the sovereigntyof another State, the obligation to protect the
civilian population and civilianbjects in wartime, the obligation to protect the environment,
the obligation relating to free navigationon international rivers, the obligation regarding
fundamental human rights and freedoms, the obligation not to useprohibited weapons, the
obligation not to deliberately inflict conditions of life calculated to cause the physical
destruction of a national group" (cfr.lication of TheFederal Republic of Yugoslavia against
Portugalfor Violationof the ObligationNot to UseForce, p. 1-2).
2
Cfr.Case Concerning Legality of Use of Force (Yugoslavia v. Portugal), Request forNATO member states cited in other cases of the same date and substance, namely the
Federal Republic of Germany, Belgium, Canada, France, the Netherlands, Italy and the
United Kingdom. By this approach, FRY unilaterally joined the proceedings forthe
purposes of its allegations, referring toit as "Memorial, Case Concerning Legality of
Use of Force (Yugoslavia v.Belgium, Canada, France, Germany, Italy, Netherlands,
Portugal and UnitedKingdom)".
6. Portugal is of the opinion that this unilateral initiative fallsshort of the respect
due to the Court's exclusive competence in the issue under Article 47 of its Rules of
Procedure. The amendment of a symbolic aspect, determinedby the Court, such as the
officia1 title of the proceedings, implying its merger withseven other proceedings,
cannot be dissociated from FRY's claim of the existence of a joint defence by the
respondent Statesrestated in its ~emorial~.
7. Portugal has already had the opportunityto commenton this matter. hfter the
appointment of Prof. J. SérvuloCorreia as ad hoc Judge on 25 April 2000, FRY bas
objected to this appointmentmaintainingthat Portugal had thesame interest as the olher
respondent States in the actions initiated by it on the same date. In response, tila
separate document bearing the date ofthe present PreliminaryObjections and to which
the Court isreferred, Portugalhas refutedthe existenceof ajoint case.
8. Portugal contends, as it has already done during the phase of the pïocedure
relating to FRY's Requestfor the indication ofprovisional measures, that FRY is not
entitled to locus standi before the Court. Additionally, the Court lacks jurisdiction to
judge the present caseon any grounds, and the submissions formulated by the FRY are
inadmissible formore than onereason.
9. Accordingly Portugalintends to avail itself of Article 79 (1) of the Court's
Rules of Procedure, submitting Preliminary Objections within the time limit for
submission of the Counter-Memorial. In consequence, the following Preliminary
Objections are limited to the issues which prevent theCourt's hearing the submissions
by FRY, and do not discuss the merits of the case. Therefore, they possess an
the IndicatioofProvisional Measures,Order of 2June 1999,para. 50.
3Cfr. Memorial, Case ConcerningLegality of Use ofForce (Yugoslaviav. Belgium,
Canada,FranceG , ermany,ItalyNetherlands,Portugaland UnitedKingdom), 5 January 2000.exclusively preliminary character. Shouldthe procedure advance to the merit stage,
Portugal will respond to FRY'sclaims within the time-limit decided by the Court under
Article 79 (7) of its Rules of Procedure.
10.In view of the number and weight of the procedural objections to the merits
of the case raised by the present PreliminaryObjections, Portugal does not accept that
the Court should consider the present PreliminaryObjections during the merits phase of
the case, since the conditions for applicability of Article 79 (8) of the Rules of
Procedure are not met. Portugalaccordingly appliesfor the hearings on the merits to be
suspended with a view to the Court deciding specifically on the present preliminary
questions in accordance withArticle 79(3) and (7)of its Rules of Procedure.
11. Portugal is in no doubt thatthe Court will not regardany of the arguments in
the present Preliminary Objections as recognition in whatsoever form of itsjurisdiction
in the present case (Forumprorogatum) pursuant to Article 38 (5) of its ~ules~.But it
must nevertheless make the point that it cannot accept the Court's jurisdiction.This
rejection not only derives from the fact that the exercise of such jurisdiction would
necessarily affect third States and Organisations vis-à-vis the case, but is also because
Portugal contends that since FRY's substantive case is not well-founded, it would be a
waste of the valuable time of the Court.
4 And with due attention to the care with which it wisely approached the issue. Thus
"The Court does not find that the Respondent has given in this case a "voluntary and
indisputable" consent (seeCorfu Channel, Preliminary Objection, Judgement, I.C.J. Reports
1947-1948, p. 27)" (cfr. Application of the Convention on the Prevention and Punishment ofthe
Crime of Genocide Case, Preliminary Objections, Judgement, 11 July 1996, I.C.J. Reports
1996, para. 40). II - Presentation of these objections
12.The present PreliminaryObjectionsrelate to threemajor issues.
13. The first arises from FRY'SLocus standi. Portugal contends that the FRY
has no right to apply to the Court.
14. A second relates tothe Court'sjurisdiction in the strictsense. Portugal is of
the view thatthe Court does not havejurisdiction forthe present case.
15.Finally, the application byFRY is inadmissible inas much as Portugal is not
responsible for the alleged acts, and the hypothetical exercise of jurisdiction by the
Court in the present case would directly affectthe rights and duties of States and
organisations not present inthese proceedings, since their actions constitute their very
subject-matter. In addition,al1applications by FRY relating toevents subsequentto 10
June 1999 are similarly inadmissible since they would transform the nature of the
dispute. Part 1
Objections concerning theFRY'SLocus standi
1 - Locus standi and Jurisdiction
16.The Court has repeatedly affirmedin its rulings that its jurisdiction extends
only to States which, being party to its Statute, have voluntarily accepted it by a
subsequent act5.
17. However, an essential precondition of the Court's jurisdiction is that the
entity claiming access to it is entitled to do so. The Court itself has held "whereas the
Court can therefore exercise jurisdiction only between Statesparties to a dispute who
not only have accessto the Courtbut also have accepted the jurisdiction of the Court,
either in general form orforthe individualdisputec~ncemed"~.
18.This means that for an entity whichdoes not enjoy the right of access to the
Court, the question of jurisdiction does not even arise. It simply cannot appear before
the Court as either Applicantor Respondent. In consequence,the application must be
rejected in limine. This right of access is therefore a sine qua non condition of the
Court's jurisdiction.
19.The Court's Statutelimits that right of accessto those States which are party
to the Statute [Article 35 (i)], or to States which, though not members, have complied
with the requirementsdefinedby the UN Security Council foraccess [Article 35 (2)].
Thus only a few years agoit held that"one of the fundamental principles of its Statute
is that it cannot decide a dispute between States without the consent of those States to its
jurisdiction" [cfr. Case Concerning East Timor(Portugal v. Australia), Judgement, I.C.J.
Reports 1995,p. 101,para. 261.
Cfr. Case ConcerningLegality of Use of Force (Yugoslavia v. Portugal), Order o2
June 1999, para. 19.The same view can be concluded from the Court's Orders of the same date
in the proceedings brought by FRYagainst other NATO membercountries. 20. Those requirementsare set out in Security Council Resolution9 (1946) of 15
October 1946',which Statesthat it shall be open to a State which is not a party to the
Statute of the International Courtof Justice, upon the condition thatsuch 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 theterms and subject tothe
conditions of the Statute and the Rules of the Court, and al1 the obligations under
Article 94 of the Charter of the United Nations, namely, the powers of the Security
Council to enforce a decision of the Court. This requirement iseasily understood: only
in this way may the parties meet on equal termsas regards guaranteesof cornpliance
with the Court's decisions.
21. The Statuteadmits only one exception tothese cases, whichisjurisdiction of
the Court in relation to two or more non-member States based on "treaties in force"
[Article 35 (2), second sentence].This notion is, however, unclear.The interpretation
that it may cover any treaty in force would open the door to circumventing the
requirements of SecurityCouncil Resolution9 (1946),and henceof Article 35 (2)of the
Statute. It would suffice for a non-memberState to enter intoa treaty with anotherState
accepting thejurisdiction of the Court for the Resolution tobe inapplicable.
22. Article 35 (2) of the Statute dates back tothe Statuteof the Permanent Court
of International Justice, where thisexceptionto the "treatiesin force" was introduced to
safeguard clauses in the Peace Treaties, which put an end to the First World War,
attributing to the Courtjurisdiction, and that were alreadyin force before the Court's
Statutehad been adopted.
23. The Permanent Court's jurisprudenceon the interpretation of this exception
is not even. On one occasion it applied the exception with reference to Article386 of
the Treaty of versailles', but on another it gave to understand that theexception was
applicableto a treaty whichcame into force onlyafter the statuteg.
Text in Resolutions and Decisions of TheSecuriy Council, Official Records1946, pp.
14-15,[Annex 11.
8Cfr. Wimbledon,P.C.I.J., Series A, Judgement of17 August 1923, No 1,pp. 7 and 20.
9
Cfr.German Interests in Polish Upper Silesia, P.C.I.J., SerieA, 1926, No 7, p.
11. 24. However, when the Statute was reviewed in 1926, specific proposals to
extend the exception to treaties inforce at the time of the Application failed to gainthe
support of the PermanentCourt'smembers,and were not finallyadopted.
25. The Court has only once had the opportunity to consider the question, and
that only provisionally, in 1993,in Application of the Conventionon the Prevention and
Punishment of the Crimeof Genocide Case[Bosnia-Herzegovina 17.Federal Republic of
Yugoslavia (Serbia and Montenegro)], where citing the Wimbledon case it ruled:
"proceedings may validlybe institutedby a State against a Staten-hichis a party tosuch
a special provision in a treaty in force,but is not party tothe Statute, and independently
of the conditions laid down by the SecurityCouncil in its Resolution 9 of 1946" and "a
compromissory clause in a multilateral convention,such as Article IX of the Genocide
Convention relied on by Bosnia-Herzegovina in the present case.could, in the view of
the Court, be regarded prima facie as a special provision contained in a treaty in
force"lO.
26. Portugal's understanding is that this preliminan- opinion is not binding on
the Court. Indeed, the Court did not restate the position in its 1996 judgement on
Yugoslavia's Preliminary Objectionsl'. From Portugal's point of view, the
interpretation which fits best with the teleology of Article 33 (2), preserving the
requirement to meet the conditions of Security Council Resolution 9 (1946)is that the
exception should not apply to anycase involving Treaties coming into force later than
the Statute itself. Only those Treaties of which theStates party to the Statute could have
been aware at the moment of the adoption of the Statute are thus excluded from the
requirement that their States parties complywith the requirements of Security Council
Resolution 9(1946).
27. Furthermore, any other interpretation would result in a breach of the
fundamentalaim of the nom, which is made clearin the finalpart of Article 35 (2): that
the parties should not be put in a position of inequality. In practice one party, as a
'OCfr.I.C.J. Reports 1993,p. 14,para. 18.
II
See Case Concerning Application of the Converlrion 017 the Prevention and
Punishment of the Crime of Genocide [Bosnin-Herzegovinn v. Federal Republic of Yugoslavia
(Serbia and Montenegro)], Preliminary Objections, Judgement. 11 July 1996,I.C.J. Reports
1996.member of the United Nations, would bebound by Article 94 of the Charter whilst the
other, a non-member, with whichthe first had concluded a (for instance) bilateral
Treaty, would not. The second would thus benefit from a guarantee as to execution of
the Treaty notenjoyedby the first.
28. In short, Portugal contends that the right of access to the Court is limited to
the parties to its Statute, the States which have deposited a Declaration in accordance
with SCR 9 (1946) and those which have accessto theCourt by virtue of Treatieswhich
came into forceprior to theCourt's Statute. II - FRY'srelationship withthe United Nations Organisation
29. The allegations madeabout the right toapply to the Court are relevant tothe
present caseby virtueof the questionofthe FRY'srelationshipwith the United Nations,
since only member States are ipso facto parties in the Statute of the Court [Article 93
(1) of the Charter].
30. On 27 April 1992, at the moment of its inception, the FRY adopted a
declaration in which it assumedthe claimto continueautomatically the former Socialist
Federal Republic of Yugoslavia (SFRY), which was fonvarded to the United Nations
secretary-~enera1.l~ It subsequently claimed the seat of the SFRY in the United
Nations.
31. Nevertheless, this claim encountered some hostility from the international
community ingeneraland the competentorgans ofthe United Nations.
32. In Resolution 757 (1992) of 30 May 199213,the Security Council stated
(preamble, Para 10): "Noting that the claimby the Federal Republic of Yugoslavia
(Serbia and Montenegro) to continue automatically the membership of the former
Socialist Federal Republic of Yugoslaviain the United Nations has not been generally
accepter. This position would be reaffirmed in Resolution 777 (1992), of 19
September 199214,in which, havingaffirmed in the preamble that "the state formerly
known as the Socialist FederalRepublic of Yugoslaviahas ceased to exist" and refened
to the earlier Resolution, it stated that it "Considers that the Federal Republic of
Yugoslavia (Serbia and Montenegro) cannotcontinue automatically the membershipof
the former Socialist Federal Republic of Yugoslavia in the United Nations; and
12
"The Federal Republicof Yugoslavia, continuing the State, international legal and
political personalityof the Socialist Federal Republicof Yugoslavia, shall strictly abide by al1
the commitments that the Socialist FederalRepublic of Yugoslavia assumed internationally"
(cfrApplication of the Convention (...)cit., PreliminaryObjections, Judgement, 11 July 1996,
I.C.J.Reports 1996, para. 17).
l3[Annex21.
14
[Annex 31.therefore recommends to the General Assembly thatit decide that the Federal Republic
of Yugoslavia (Serbia and Montenegro) should apply for membership in the United
Nations andthat itshall not participateinthe workof the General Assembly".
33. Following this recommendation, the General Assemblyaffirmed, in its
Resolution 4711,of 22 September 1992, (Para.1): "Considers that the Federal Republic
of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership
of the former Socialist Federal Republic of Yugoslaviain the United Nations; and
therefore decides that the Federal Republic of Yugoslavia (Serbia and Montenegro)
should apply for membership in the United Nations and thatit shall not participate in
the work of the General~ssembl~"'~.
34. During the debate which preceded the adoptionof the General Assembly
Resolution, on 22 September 1992 the then Prime Ministerof the FRY acknowledged
that his country was not a member of the United Nationswhen, addressing the
Assembly, he announced "1 hereby formally request membership inthe United Nations
on behalf of the new Yugoslavia,whose Government 1represent"16.This declaration did
not, however, result inany further actionby FRY, which,in contrast to the al1the other
Republics of the former SFRY,submitted noforma1application for membership.
35. Faced with this situation and in order to put FRY'S non-member status
beyond doubt, the Security Council decided by Resolution 821 (1993), of 28 April
199317, that: "Reaffirms that the Federal Republic of Yugoslavia (Serbiaand
Montenegro) cannot continue automatically the membership of the former Socialist
Federal Republicof Yugoslavia in the United Nations; andtherefore recommends to the
General Assembly that, further to the decisionstaken in Resolution 4711,it decide that
the Federal Republic of Yugoslavia (Serbia and Montenegro)shall not participate in the
work of the Economicand Social Council".
36. Further to this recommendation,the General Assemblyapproved Resolution
''Cfr.UN GAOR,47, Supp.No 49, UN Doc. Al47149,1992, p.12,[Annex41.
1Cfr. UN Doc. Al47lPV.7,1992, p. 149[Annex 51.
17
[Annex 61.471229,of 5 May 199318,in which it decided that: "the Federal Republic of Yugoslavia
(Serbia and Montenegro) shall not participatein the work of the Economic and Social
Council" and also decided in Resolution48/88 of 20 December 1993 that Member
States and the Secretariat should "end the de facto working status of the Federal
Republic of Yugoslavia (Serbia and Montenegro)" (para. 19).
37. The position of the organs competentto decide the admission and expulsion
of members (Articles 4 and 6 of the Charter) is thus quite clear. The Socialist Federal
Republic of Yugoslaviano longerexists, and none of its component Republics, whether
members of a new federation or not, can claim to be its successor for the purposes of
membership of the ~r~anisation'~.
38. The Federal Republic of Yugoslavia is,consequently, not a member of the
United Nations, since the membership of the SFRY lapsed automatically on the
dissolution of that State.
39. Such a situation is not unknown in United Nations practice. The same
situation arose on 31December 1992with the dissolutionof Czechoslovakia,when both
the Czech Republicand Slovakia sought admissionto the United Nations. In the case of
the Former Union of Soviet Socialist Republics, it was broadly accepted by the
International Community, including al1 eleven other members of the new
Commonwealth of Independent States, that the Russian Federation should succeed to
the Soviet Union. Such recognition, enshrined in Security Council Resolution 757
(1992), was never accorded in the case of FRY. The four other former members of the
Socialist Federal Republic of Yugoslavia declined to accept that the FRY should
become the SocialistFederal Republic'ssole successor tat te."
40. The same conclusion was reached by the Arbitration Commission of the
[Annex 71.
19 Without prejudice, of course, to being able to succeed, along with the other
Republics, as regards other treaties which are notconstitutive of international organisations, in
the general terms ofthe Law relating toState Succession.
20Cfr., in particular, the letter of 28 October 1996to the Secretary-General from Bosnia
and Herzegovina, Croatia, Slovenia and the Former Yugoslav Republic of Macedonia (UN
Doc.Al5 11564-SI19961885),[Annex 81.Peace Conferenceon ~u~oslavia~'in a seriesof opinions on thequestion.
41. Thus, in its first opinion, dated 29November 1991, para. 3, it concluded
"The SocialistFederal Republicof Yugoslavia is in the processof diss~lution"~~.
42. Later, in Opinion No. 8 dated 4 July 1992, after upholding that Serbia and
Montenegro had constituted a new Federal State on 27 February 1992,at para. 4 it
affirmedthat: "the processof dissolutionof the SFRY (...)is now complete andthat the
SFRYno longer e~ists"~~.
43. In its Opinion No.9, also dated 4 July 1992, it stated clearly: "New States
have been createdon the territoryof the formerSFRYand replaced it. Al1are successor
States to the former SFRY" and at para. 4:"the SFRY's membership of international
organisations must be terminated according totheir statutes and that none of the
successor States may thereupon claim for itselfalone membership rights previously
enjoyedby the former SFRY"~~.
44. Finally, in its Opinion No. 10, again of the same date, at para. 5 it stated:
"the FRY (Serbiaand Montenegro)is a new Stateand could not be the sole successor to
the SFRY"~~.
45. The Court did not rule on the issue of Yugoslavia's membershipof the
United Nations: "the question whether or not Yugoslavia is a Member of the United
Nations (...) is one which the Court does not need to determine definitively at the
21Set up on 27 August 1991 by a declaration adopted at an extraordinary meeting of
Ministers in the frameworkof European Political Cooperation betweenthe Member States of
the European Unionand accepted by the seven Yugoslav republics atthe opening of the peace
conference on 7 September 1991. Serbia itself chose to put questions to the Arbitration
Commission.
22Cfr. Revue Générald ee Droit InternationalPublic, Vol96, 1992,No. 1, pp.264-266
(in French), [Annex91.
23Cfr. Revue Générale deDroit InternationalPublic, Vol.97, 1993,No. 2, pp.588-590
(in French), [Annex IO].
24
Cfr. Revue Générale de Droit InternationalPublic, Vol97, 1993,No. 2, pp. 591-593
(in French), [Annex111.
25Cfr. Revue Générale de Droit lnternational Public, Vol97, 1993,No. 2, p.594-595
(in French), [Annex121.present stage of the proceedings"26.It repeated this positionon its Order relating to the
indicationof provisional measuresinthe presentcase27.
46. Nevertheless, anddespitethe clarityof the decisionson this issue, it must be
recognised that United Nations practice has not been consistentA . s the Court said in the
case quoted above, certain Secretariat membersseem to have interpreted the Security
Council and General Assembly Resolutions restrictively, suggesting that the
Resolutions did not end Yugoslavia's membershipof the United Nations, referring,
however, solely to the SFRY and not to the FRY. The implication was that the
membership of the SFRY, in their viewpoint, survives until the question of its
succession is definitively solved. Hence, the continueduse of the flag of the former
SFRY and not the flag of the FRY. And it is also understood thatthe representatives of
the new FRY cannot make claimto the seatof the old~u~oslavia~~.
47. In practice the resolutions of the competentorgans could scarcelybe clearer.
It would notmake senseto terminate the membershipofan alreadyextinct entity.
48. However, the situation is confùsed by this interpretation of certain
Secretariat members, coupled with FRY'Spersistent failure to apply formembership of
the United Nations, whilst maintaining its representationto the Organisation, althoughit
has naturally remained without any voting rights within the UnitedNations organs since
1992-93,and remains sotoday.
49. In fact, in addition to the Secretariat having assessed quotas on the New
Yugoslavia, the General Assembly approved Resolution 521'2 15, of 22 December
1997~~.This fixed the percentage to be paid to the budget by members and non-
members who participate in certainactivities of the Organisation,and this list includes
amongst the membersa Statenamed Yugoslavia.
26Cfr. Applicationof the Convention (..),cit.,1C.J.Reports 1 993, p. 14,para.18.
27 Cfr.Case ConcerningLegali~,of Useof Force (Yugoslavia v. Portugal) c,it.,Order
of2 June 1999,para. 32.
28 Cfr.Applicationof the Convention (.. .)cit.I.C.J. Reports1993, p. 13,para. 17.Also
theMernorial, cit.,p. 330,para. 3.1.4,butherearguing,in error, thatthe Assistant Secretary-
Generalis referringto theFRY. 50. These secretariat decisions may be dismissed as mere administrative
practice, which cannot on theirown change the situationof the FRY. A decision of the
General Assembly in which, even for purely financial purposes, a State named
Yugoslavia is listedas a member,is deservingof more attention.
51. Nonetheless, Portugal contends that this Resolution, on its own, is
insufficient to change FRY's status as a non-member. Even ifwe admit the possibility
of a State's tacit admission tothe United Nations,it is clear thatthe General Assembly
would not be competent to do so in the absence of the Security Council's approval.
Article 4 of the Charter is quite clear on this. And nothing inthe Security Council's
practice indicatesthat such a position has been adopted.
52. It may be added that there is nothing in Resolution521215indicating the
intention ofmodi@ingthe FRY's situation, even ifit were held legitimateto refer to it.
Had such an intention existed,it is clear that such a Resolution would not have been
adopted by consensus. Some, if not most, States would have challenged an act which
failed to comply withthe UN Charter. A mere arrangement for financial purposes,
probably at the behest of the Secretariat, cannotserve as a basis for admission to the
UnitedNations.
53. In view of the foregoing, Portugalcontends that the reference in Resolution
521215relates to the former Socialist Federal Republic of Yugoslaviaand not to the
FRY. It appears to be the view of certain Secretariat members that the former
Yugoslavia's membership of the United Nations will notbe extinguished until the
question of its succession is regarded as definitively over and done with, including by
the new Yugoslavia. Until that isthe case, it is convenient to collect the former State's
dues from the only country which is willing topay them, in simple de facto recognition
of the situation on the partof the United Nation's administrativeorgans alone. It is not
unreasonable that the staff whose daily task is toope with the organisation's financial
crisis should seekto avoid losingany sourceof revenue.
54. Portugal thereforecontends that the situation of FRY vis-à-vis the United
Nations cannot be interpretedas one of membership. In practice, its Permanent Mission
to the United Nations enjoys fewer rights than the Observation Mission of a non-
member country. The fact of contributingto the budget changes nothing, since observerStates also contribute, in accordance with Para.3(b) of the same General Assembly
resolution 521215.If FRY were a member, its current situation of being deprived of
voting rights in al1 United Nations organs would represent an extremely serious
violation of the Charter.
55. FRY thus appears to be in a sui generis situation more resembling that of an
observer State than a member State, since it enjoys practically no rights of participation
in thework of United Nationsorgans,and no voting rights whatsoever. III -FRY is not party to the Statute of the Court
56. If Yugoslavia is not a member of the United Nations, we are forced to
conclude that it is not party to theStatute of the Court, since it has not sought to be
bound by the Statute pursuant to Article93 (2),nor has there been any corresponding
decision of the Security Council and General Assembly,as there have been in thecases
of switzerland3' and, until their admissionas members, ~a~an~l,~iechtensteinl~,San
~arino~~and au ru^^.
57. FRY does not even suggest that this procedurehas been accomplished: no
claim tothis effect is made in the Memorial.
58. Likewise, it is unacceptable that FRY shouldconclude that from the fact
that, under its Statute,the Court took measures against Yugoslaviain theApplicationof
the Convention on the Preventionand Punishment of the Crime of Genocide Case
[Bosnia-Herzegovinav. Federal Republic of Yugoslavia (Serbia and Montenegro)],it
has consideredFRY as party to itsStatute,by arguing that onlyStates parties are bound
by the statute3'. What is clear is that anyState which is not a party to the Statute, but
legitimately recognisesthejurisdiction of the Courtunder Article 35(2),does so on the
terms of the Statute. In other words, subjectto certain conditions [broadly, acceptance
of Security Council Resolution 9 (1946)l the Statute accords rights to non-member
States who recognise the jurisdiction ofthe Court on its terms. In this way a form of
30 Cfr. Security Council Resolution 11 (1946), 15 November 1946, and General
Assembly Resolution 91(1),11 December 1946.
31 From 2 April 1954 to 18 December 1956 [in accordance with Security Council
Resolution 102 (1953), 3 December 1953, General Assembly Resolution 805 (VIII), 9
December 19531.
32 Liechtenstein,29 March 1950 to 18 September 1990 [under Security Council
Resolution 71 (1949),27 July 1949,and General Assembly Resolution 363(IV), 1December
19491.
33 18February 1954 to2 March 1992 [under Security Council Resolutio103(1953),3
December 1953,and General Assembly Resolution806(VIII),9 December 19531.
34
29 January 1988 to14 September 1999 [under Security Council Resolution600
(1987),19 October 1987,and General Assembly Resolution42/21,18 November 19871.
3As FRY did: cfr.Mernorial,cit., 335,para.3.1.21.It is even less relevant to rely on
the position of other member States which, in bringing cases agaFRY, have asserted that
they considerFRY to be a party to the Statute (Mernorial,cit., p335,paras 3.1.19and
3.1.20).It is for the United Nations to decide its membership, and not any member State incollateral agreement is made by which the rights and obligations of the Statute are
extended to non-mernber~~~,without their formally becorning party to it, Le. with al1the
rights of a formal party and without the requirement to make any formal declaration
pursuant to Resolution 9 (1946).
isolation.
36Cfr. Articles 35 and 36 of the 1969 Convention on the Law of Treaties; the
requirement that recognition of obligations shouldbe given in writing should not be regarded as
customary although in this case itis respected, since the Declaration required by SCR 9 (1946)
must of necessity be in writing. IV- FRY is not entitled to apply to the court
59. If FRY is not party to the Court's Statute, it could onlyaccede to the Court
underthe terms of Article 35 (2).
60. On 26 April 1999, Yugoslavia submitteda declaration recognising the
Court'sjuri~diction~~b ,ut as the declaration clearlyStates,it is made pursuant to Article
36 (2), and makes no reference toSecurity Council Resolution9 (1946) which govems
access to the Court by a State which is not party to the Statute, in accordance with
Article4 1 of its Rules.
61. Neither is possible to interpretthis declaration asalso being a declaration of
acceptanceof the obligations derivingfiom Article94 of the Charter, since no reference
is madeto that Article. Therefore, the Court should in any case declare such Declaration
as void inaccordancewith the final sectionof Article 41 of its Rules.
62. Even if such a reference had been made,a declaration under Article 36 (2)
could not be used to enter a case against Portugal. Para. 2 of Security Council
Resolution 9 (1946)requires the explicit consentof the respondentStatebefore bringing
proceedings againstit. Portugal has not givensuch consent and, for the reasons already
outlined, will notdo ~0~~.
63. Portugalcan therefore onlyconcludethat the present declaration recognising
the jurisdiction by FRY is nul1and void, and that FRY consequently does not enjoy
locus standi before the Court.
64. This shortcoming also affects the right to claimArticle IX of the 1948
37 As follows: "1 hereby declare that the Govemment of the Federal Republic of
Yugoslavia recognises, in accordance with Article 36, paragraph2, of the Statute of the
International Court of Justice, as compulsory ipso facto and without special agreement, in
relation to any other Stateaccepting thesame obligation, thatis oncondition of reciprocity, the
jurisdiction of theaid Court in al1disputes arisingor which may arise after the signatureof the
present Declaration, with regard to the situatior facts subsequent tothis signature,except in
cases where the parties have agreed or shall agreto have recourse to another procedureor to
another method of pacific settlement. The present Declaration does not apply to disputes
relating to questions which, under international law,fa11exclusively withinthe jurisdiction of
the FederalRepublic of Yugoslavia,as well as to territorial disputes.The aforesaid obligation
accepted untilsuchtime as notice maybe given to terminate the acceptance".
38Cfr.,supra, para. 10.Convention on the Prevention and Punishmentof en oc ide as'the ground of the
Court's jurisdiction.
65. Portugal has already had occasion to state that theexceptionalright to apply
to the Court without complyingwith Security CouncilResolution 9 (1946) on the basis
of "the treaties in force" [Article 35 (2) of the Statute] should relate only to treaties
already in force when the Court's Statute came into force. This is a teleological
requirement, without whichit would be possible to circumvent the requirements of the
said Resolution. This would result ina breach ofthe fundamental aim of the principle,
i.e. that the parties shouldbe on equal tenns, since one would then be bound by Article
94 and the otherwouldn~t.~'
66. However, this does not apply inthe case of the 1948 Genocide Convention,
which came into force only on 12January 1951.
67. Portugal is consequently of the opinion that the proceedings filed by
Yugoslavia should be rejected on the grounds that Yugoslaviais not qualifiedto bring
an action before the Court.
68. Portugal contends that the present objection, although it does not technically
concern a question of jurisdiction strictu senso or of admissibility, is manifestly
preliminary in nature, falling withinthe meaning ofArticle 79 of the Rules of the Court.
Since the right of access is a sine qua non condition of the jurisdiction of the Court, it
should be consideredas an "other objection thedecisionupon which isrequestedbefore
any further proceedings on the merits" under Article 79 (1). This is the conclusion
implicit in the Court's distinction, followed byPortugal, between right of access and
jurisdiction4'.
39Text in U.N.T.S., No.1021, vol.78, 1951,pp. 277etseq.
40Cfr.,supra, para.26-28.
4'"Whereas the Court can therefore exercise jurisdictiononly between States parties to
a dispute who not only have access to the Courtbut also have accepted the jurisdiction of the
Court, either in general form or for the individualdispute concerned"(cfrCase Concerning
Legafiryof Use ofForce(Yugosluvia v.Portugal),Order of 2 June 1999,cit., para. 19). Part II - Objections relating to the Court's Jurisdiction
1 -In the light of the optional Declarationdeposited by FRY
69. Portugal has already hadthe occasion torefùte the validity of the optional
Declaration deposited byFRY, in the lightof both Article 36 (2) and Article 35(2) of
the Statute. Had it infact been deposited pursuantto Article 35 (2),it would still not be
opposable to Portugal without explicit consent [cfr.the final words of Para. 2 of
SecurityCouncilResolution9 (1946)~~~.
70. However, even without these failings, the Declaration would not allowthe
Court's jurisdiction in the present case, ratione temporis, by reasonof its own wording.
71. The Declaration deposited by portuga$ contains no explicit reference to
reciprocity, but refers back to the termsof Article 36 (2) of the Statute which renders
reciprocity a conditionof each declaration when itaffirms"in relation to any otherstate
acceptingthe same obligation".
72. As the Court has consistently stressed inits jurisprudence, the principleof
reciprocity "forms part of the system of the Optional Clause by virtue of the express
terms both of Article 36 of the Statute and of most Declarationsof ~cce~tance'"~and
42Cfr.,supra, para. 60-63.
43Portugal'sdeclaration readsas follows:"Under Article 36, paragraph 2, ofthe Statute
of the International Court of Justice,1declare on behalf of the Portuguese Govemment that
Portugal recognises the jurisdiction of this Court as compulsorypsofacto and without special
agreement, as provided for in the said paragraph2 of Article 36 and under the following
conditions: (1) the present declaration covers disputes arising out of events both prior and
subsequent to the declaration of acceptanceof the "optional clause" which Portugal madeon
16December 1920as a party to theStatuteof the PermanentCourt of IntemationalJustice; (2)
the present declarationenters into forceat the momentit is deposited with the Secretary-General
of the United Nations; itshall be valid for a period of one year, and thereafter until noticeof its
denunciationis given to thesaid Secretary-General;(3) the Portuguese Governmentreservesthe
right toexclude from the scope of the present declaration, at any timeduring its validity, any
given category or categories of disputes, by notifying the Secretary-General of the United
Nations and with effect from the momeno t f such notification".
44 Cfr. Case Concerning Right of Passage overIndian Territory (Portugal v. India),
PreliminaryObjections,I. C.J. Reports 1957,p. 145."Reciprocity in the case of Declarations accepting thecompulsory jurisdiction of the
Court enables a party to invoke a reservation to that acceptance which it has not
expressed in its own ~eclaration"~~.Further "it is recognised that,as a consequenceof
the condition of reciprocity stipulated in paragraph 2 of Article 36 of the Statute of the
Court", any limitation ratione temporis attached by one of the Parties to its declaration
of acceptance of the Court's jurisdiction "holds good as between the Parties"
(Phosphates in Morocco,Judgement, 1938, P.C.I.J., SeriesA/B, No. 74, p. 10)"~~.
73. Portugal may consequently invoke theterrns and conditions of FRY'S
Declaration - which furthermore explicitlycalls for reciprocity - in as much as there
will bejurisdiction only in the exacttenns of the coinciding Declarations.In the Court's
own words, "jurisdiction is conferred uponthe Court only to the extent to which the
Declarations coincide in conferringitm4'.
74. Furthemore, since on a question of jurisdiction the Court must decide
proprio motu, Portugal's right to draw the Court's attention to the limits of its
juri~diction~~cannot be challenged even though the principle of reciprocity is not
applicable.
75. Portugal maintains theview, presented to the Court dunng the hearings on
Yugoslavia's application requesting the indicationof provisional measures, that the
Declaration deposited by ~u~oslavia~~ contains a time limitation precluding the Court's
45 Cfr. Interhandel Case (Switzerland v. USA), Preliminary Objections, 1.C.J. Reports
1959,p. 23.
46 Cfr. Case ConcerningLegality of Use of Force (Yugoslavia v.Portugal), Order of 2
June 1999,cit., para.29.
47 Cfr. Case of Certain Nonvegian Loans (France v. Norway), I.C.J. Reports 1957, p.
23.
48 The Court thus held: "the Court, in accordance with its Statute and its settled
jurisprudence, must examine proprio motu the question of its own jurisdiction" and
"Furthemore, in the present case the duty of the Court to make this examination on its own
initiative is reinforced by theerrns of Article53 of the Statute of the Court [cfr. Fisheries
Jurisdiction Case (U.K. v. Iceland), PreliminaryObjections,I.C.J. Reports1973, para. 121.Also
"The Court points out that the establishmentorothenvise of jurisdiction is not a matter for the
parties but for theCourt itself' and "That being so, thereno burden of proof to be discharged
in thematter ofjurisdiction. Rather,it isfor theCourt to determine from al1the facts and taking
into account al1the arguments advancedby the Parties" (cfr.Fisheries Jurisdiction Case (Spain
v.Canada),jurisdiction,4 December 1998,paras 37 and 38).
49 Text citessupra, para. 60.jurisdiction in the present case.
76. The Declarationconfersjurisdiction on the Court only in "disputes arisingor
which may arise after the signature of the present Declaration, with regardto the
situations of facts subsequentto this signature". FRY thus uses the so-called"Belgian"
formulation whichis structuredas a double exclusion. Jurisdictionis conferred onlyon
disputes arising after the date of the Declarationand, of those, only the disputesarising
in relation to events occurring after26April 1999.
77. However, the dispute underlying the present casearose well before26 April
1999. Itfirst surfacedon 30 April 1998when theNorth Atlantic Councilcondernnedthe
military action of the Yugoslavia authorities inKosovo as disproportionate and in
violation of the Humanitarian Lawof Armed Conflicts not of an international natures0,
and reached itsclimax in the days immediately before and after the onset of NATO
military action against FRY on24 March 1999, with Yugoslavia's accusations, which
were immediately refuted.
78. This reading of events wasconfirrned by the Court in the phase of the
proceedings relating to the request forthe indication of provisional measures, in
apparently conclusive terrns: "Whereas it is an established fact that the bombings in
question began on 24 March 1999 andhave been conducted continuouslyover a period
extending beyond 25 April 1999;and whereas theCourt has no doubt, in the light,inter
alia, of the discussions at the Security Council meetings of24 and 26 March 1999
(S/PV. 3988 and 3989),that a "legaldispute"(East Timor(Portugal v. Australia),I.C.J.
Reports 1995,p. 100,para. 22) "arose" between FRY and the Respondenta ,s it did also
with the other NATO member States, well before25 April 1999concerningthe legality
of thosebombings assuch, taken as a wholen5'.
79. Thus when at the 3988th meetingof the Security Council on 24 March 1999
the representative of the FRY asserted that "That blatant aggression was a flagrant
50Cfr. North Atlantic Council on the Situationin Kosovo, 30 Apri1998,NATO Press
Release98151,[Annex 141.
51Case Concerning Legali~, of Use of Force (Yugoslavia v. Portugal)Order of 2 June
1999, cit., par27.violation of the basic principles of the and NATO members disputed that
assertion, a dispute clearly already existedas regards the central issue underlying
Yugoslavia'spresent action, i.e.the iawfulnessof the bombing.
80. Portugal consequentlyaccepts that a legal dispute exists between itselfand
FRY. Evidently, Portugal denies certain facts which appear to be alleged, albeit
vaguely, in FRY's Memorial, and also the allegation thatsuch facts were in breach of
international la^.^ ^ dispute does indeed therefore exist, as the Court has f~und.'~
Portugal contends simply that it arose well before26 April 1999,and is therefore not
covered by FRY's Optional Declaration. As the Court has already held, it is clear that,
by the time of the Security Council Meeting of24 and 26 March 1999, al1the facts of
the disputewhich led FRY to bringthe present proceedings werealready in place.
81. It may be added that the underlying eventsbegan in 1998, being related to
Yugoslav repression in~osovo.~~They were thus clearly outside the time limitsof the
FRY Declaration, which excludes not only disputesarising before 26 April 1999, but
also those arising fromearlier factsor situations.
82. Of those facts or situations, the Court has said, "The facts or situations to
which regard mustbe had in this connection arethose with regard to which the dispute
has arisen or, in otherwords, as was said by the PermanentCourt in the case concerning
the Electriciy Companyof Sofiaand Bulgaria, only 'thosewhich must be consideredas
being the sourceof the dispute', thosewhichare its 'realcause"'56.
83. The facts relating tothe repression inKosovo clearly fa11into that category,
52
Cfr. UN Press Release SCl6657, 3988th Meeting (PM), 24 March 1999, p. 11,
[Annex 151.
53
But for reasons already set out willnot develop the issue here, though reserving the
right to do so should it become necessary ata laterstage. supra, para. 9.
54 Following the traditional definitionof the PCIJ, which the Court has quoted more
than once: "in the sense accepted in its jurisprudence and thatof its predecessor, a dispute is a
disagreement on a point of law or fact, a conflict of legal views or interests between parties"
[cfrEast Timor Case (Portugal v.Australia),cit.,p. 90, para. 221.
55Condemned by the Security Council in SCR 1160(1998), 31 March 1998,para. 3 of
the preamble ["Condemning the useof excessive force by Serbian police forces against civilians
and peacefuldemonstratorsin Kosovo (..)],[Annex 163".
56 Cfr. Case concerning Right of Passage over lndian Territory (Portugal v. India),
Merits,12 April,1960,l.C.J. Reports 1960,p. 35.as do those relating to NATO's action begunon 24 March 1999,al1being earlierthan
26 April 1999.
84. During the phase of its application relatingto the indication of provisional
measures, FRY alleged inter aliathat each military action by NATO between 26 April
and 29 April, the dateof its application,as well as those actions prior to 10 June 1999
was in itself a breach of international law givingrise to a dispute. In its Memorial,FRY
appears to have abandoned thatposition.57
85. The Court was clear on this question,rejecting the allegation: "Whereasthe
fact that the bombings have continued after 25 April 1999 and that the dispute
conceming them has persisted since that date is not such as to alter the date on which
the dispute arose; whereas each individual air attack couldnot have given rise to a
separatesubsequentdispute"58.
86. The Court's position is clear and Portugal fullysupports it. Unable to
convince the Court thatthis was not a singledispute extendingover time5',as it is, FRY
has formulatedits Declaration witha view to achievingits aims in bad faith: obtaininga
judgement from the Court on the NATO action whilst remaining beyond the Court's
jurisdiction as regards the repression against its owncitizensprior to 26 April 1999. By
this means, it would be protected from any counter-claim by Portugau lnder Article 80
(1) of the Rules of the Court, or any otherform of action basedon that repression.This
would require splitting a dispute intotwo, favouring the party which gave rise to the
disputewith its initial illegal action.The Court has already ruled on other occasions that
this is notacceptable.60
57
Cfr.Memorial, cit., p. 339, paras 3.2.11and 3.2.12.
58Cfr. Case Concerning Legalityof Use of Force (Yugoslavia v.Portugal), Order of2
June 1999,cit.,para27.
59 As stated by the International Law Commission, in its draft on the International
Responsibility of States, approved onfirst reading 1996, at Article 25, No 1:"The breach of
an international obligation by an act of the State having a continuing character occurs at the
moment when that act begins" (cfr. Reportof the International Law Comission, 1996,Chapter
III), [Annex171.
Thus "if the Iranian Govemment considered the allegedactivities of the United States
in Iran legally to have a close connection with the subject-matter of the United States'
Application, it was open to that Govemment to present its own arguments regarding those
activities to the Court either by way of defei-icein a Counter-Memorial or by way of a counter- 87. FRY is now alleging that there was indeed only one dispute, which
deteriorated and reached its nadir after 10June 1999,accusing KFOR,the multinational
force authorised by Paras. 7 and 9 of Security CouncilResolution 1244 (1999) of 10
June 1999~',of violating the terms of the said Resolutionand of acts against the Serbian
population of Kosovo. FRY asserts "No doubt thatthese new disputed elements are part
and parce1of the dispute related to the bombingof the territory of the Applicant. The
dispute arising fromthe bombing matured throughout the newdisputed elements (...)".
88. But, further ahead, FRY already accepts that "The dispute arose in the
discussions at the Security Councilmeetings of 24 and 26March 1999", but that new
factors in the dispute emerged after 10 June 1999.~~.In support, it quotes the Case
concerning Right of Passage over Indian Territory, where the Court held that "The
dispute before the Court having these three-fold subject, could not arise until al1its
constituent elements hadcorneinto e~istence"~~.
89. FRY hasyet to state exactly whenandwhy itcontends that the dispute arose.
It has done no more than quotethe case-lawof the Court it considers applicable,with no
justification. From FRY'S point of view, the dispute arose after 26 April 1999 and
crystallised after 10June. Whenandwhy, FRY has not said.
90. This conduct appearsto indicate thatwhen, on 29 April 1999,FRY filed its
action, the dispute was about to begin but had not yetdone so. Initially, in fact, it was
begun with no specific legal scope. This is an extraordinary conclusion, when in its
application FRY submitted a long list of accusations, most of which had already been
presented to the United Nations andrejected.
91. Portugal feels compelled to observe that itis bizarre that a dispute which
arose as a result of the use of force, whether by FRY against its own people or by
NATO, appears in FRY'Sview not tohave existed until an agreement was concluded
between the parties in conflict, confirmed by the Security Council, ending it partly. On
claim"[cfr. United States Diplornaticand Consular Staffin Tehran (United Statesof America
v.Iran),Judgment, I.C.J. Reports1980,para.361.
61
[Annex181
62Cfr. Mernorial,cit.,p.339, para. 3.2.1and alsop. 8, para.12.
63Cfr. Mernorial,cit.,p.340,para. 3.2.16.the other hand, subsequent acts occurring ina radically different contextof peace, gave
rise to the "dispute".
92. Portugal is thus unable to accept that the disputearose only after 10 June
1999.However, for this purpose, Portugal does not propose to deny that the new facts
arising since that date form part of an earlier dispute,since its contention is that the
dispute emerged fully on 24-26 March 1999, i.e. at a time outside the Court's
jurisdiction under the termsof the Declaration depositedby FRY.~~
93. To this reasoning maybe added that evenif the dispute were to have arisen
only after 10June 1999, it would still have its origins in factsand situationsdating back
to 1998and to 24 March 1999, i.e. it would stillbe outside the Court'sjurisdiction by
virtue of being basedon facts priorto 26April 1999.
94. Failing this interpretation, FRY would be ableto exclude from the Court's
jurisdiction facts and situations which werethe direct causeof the present dispute,thus
abusively depriving Portugal of the means of defence against the explicit terrns of
FRY'Sown Declaration.
95. Portugal is therefore bound toconclude that the Declaration deposited by
FRY does not provide a basis for the Court's jurisdiction to decide on the present
dispute in any ofits aspects.
64Cfr. I.C.J. Reports1960,pp. 34-35.
65 Were it to be maintained that these constituted a new dispute (whicFRY does not
contend) then they would have to be held inadmissible as radically altering the subject of the
proceedings. Seeinfra, paras149-159. II- In the light of Article IX of the 1948 Genocide Convention
A -Portugal was not partyto the Convention
96. Further to the terrns of its application andits allegations made orally during
the phase relating to the request for the indicationof provisional measures, FRY has
maintained in its Memorial the allegation thatthe Court'sjurisdiction is also based on
Article IX of the 1948 Genocide Convention and has apparently maintained that
allegationagainst ~ortu~al.~~
97. Portugal has already contended that FRY cannot invoke Article IX of the
1948 Genocide Convention since FRY is not Party to the Statute of the Court and has
submitted no declaration pursuant to SCR 9 (1946), and the Convention isnot a "treaty
in force" forthe purposes of the exceptionin Article 35(2) ofthe tat tu te.^^
98. This attempt to attribute Jurisdiction to the Court by virtue of the 1948
Genocide Convention encounters a further obstacle. At the moment of FRY'S
application to the Court, on 29 April 1999, Portugalwas not party to the m on vent ion^^,
as the Courtwas informedduringthe phase of the proceedings relating to the request for
the indication of provisional measures. In accordance with Article 13 (3) of the
Convention, Portugal became party to it only on 10 May 1999, its instrument of
accessionhaving been deposited on 9 Februaryof that year.69
99. Portugal evidently does not dispute that it is bound by the underlying
material principles set out in the Convention.As early as 1951the Court held that "the
principles underlying the Convention are principles which are recognised by civilised
66Cfr.Memorial, cit., p. 349, para. 3.4.3.
67Cfr.,supra,para. 64-66.
"Party" for the purposes of the 1969 Vienna Convention on the Law of Treaties,
Article, (1) (g), and Customary International Law,is "a Statewhich has consented to be bound
by the treatyand for which the treaty is in force".
69Cfr. Note verbale from the Secretary-Generalof the United Nations, [Annex 191.nations as binding on States, even without any conventional obligation"70.However,
only the substantive, material principles fonn part of Customary Universal International
Law,and not Article IX on the Jurisdiction of the Court.
100.By the same token it is not possibleto invoke Article 18(b) of the Vienna
Convention on the Law of Treaties of 23 May 1969.~~ Firstly, because Portugal is not
party to that Convention. Secondly,because even though the preceptmay be held to be
c~stomary,~~ it would relate only to those principles of the convention the breach of
which might threaten thatconvention'spurpose and objects, i.e. its material principles.
A clause attributing jurisdiction cannot in practice be breached. A State may deny
jurisdiction, but the final word on the subject is with the Court. This is not an issue
which can be included in the notion of provisions whose breach would deprive the
Treaty of its object and purpose. The object and purpose of the Genocide Conventionis
the prevention and punishment of crimes of genocide, and not the safeguarding of the
Court'sjurisdiction.
101. Accordingly, since on 29 April 1999 Portugal had not recognised the
jurisdiction of the Court pursuant to Article IX of the 1948Genocide Convention,FRY
cannot invoke the Convention as groundsforjurisdiction.
102. However, in the phase relating tothe indication ofprovisional meas-jrc:l,
FRY cited in support of its application the Court'sjurisprudence relating to "the
principle according to which it should not penalisea defect in a procedural act which
the applicant could easily remedy"73.In other words, the fact that Portugal became
70Cfr.Reservations to the Conventionon the Prevention and Pzinishmentof the Crimes
of Genocide,Advisory Opinion, I.C.J. Reports1951,p. 23.The Court confirmed this view in
Case ConcerningApplicationof the Conventionon the PreventionandPzrnishmentof the Crime
of Genocide [Bosnia-Herzegovina v. Federal Republic of Yugoslavia (Serbia and
Montenegro)], Preliminary Objections, cit., p3r1.
71
Text inUNT.S,vol. 1155, 1980, No 18232, pp 331-512
72 There is case law to support this, cfrGerman Interests in Polish Upper Silesia,
P.C.I.J.,SeriesA,No 7, 1926,p.30.
73
Cfr. Case Concerning Application of the Convention on the Prevention and
Punishment of the Crime of Genocide [Bosnia-Herzegovinav. FederalRepublic of Yugoslavia
(Serbia and Montenegro)], Preliminary Objections, cit., para26 and already in Northern
Cameroons (Cameroon v. UK), I.C.J. Reports,1963, p. 28 and Military and Paramilitary
Activities in and against Nicaragua (Nicaraguv. UnitedStates of America), Jurisdiction and
Admissibility, I.C.J. Reports1984, p. 428-429, para. 83. The principle also appears inbound by the Convention only a few days after the application was lodged, should not
be considered as groundsfor rejecting theCourt'sjurisdiction.
103. Portugal accepts that the principle claimedby FRY is well rooted in the
Court'sjurisprudence, but contends that in practical terms it is irrelevant to the present
case.
104. Invoking this practice does nothing to change the conclusion that by the
force of circumstances Portugalbecame bound to theConvention only on 10May 1999,
whilst the continuingand complex fact giving rise to the present claim arose before that
date. A mere forma1act on the part of FRY will do nothing to change that fact. And,
should FRY file a new action, nothing will have changed in this respect, the Court
having found that it has nojurisdiction. The purported dispute relating to applicationof
the Convention, whose existence Porîugal de nie^,^ w^ill continue to relate to a
continuing fact which first arose prior to 10 May 1999~',as Portugal has already
demonstrated and asthe Courtupheld in its Decision of2 June 1999~~.
105.Furthermore, theprinciple governingthe temporal applicationof Treaties is
the customary principle of non-retroactivity, enshrined in Article 28 of the 1969
Convention on the Law of Treaties 77 and upheld by the Court when it declared: "To
accept this theory would mean giving retroactive effectto Article 29 of the Treaty of
1926,whereas Article 32 of this Treaty statesthat the Treaty, which must mean al1the
provisions of the Treaty, shall come into force irnrnediately upon ratification.Such a
conclusion might havebeen rebuttedif there had beenany special clause or any special
object necessitating retroactive interpretation. There is no such clause or object in the
jurisprudenceof the PCIJ, in Mavrommatis Palestine Concessions, P.C.I.J., Series A, No 2,
1924,p. 34e Certain GermanInterests in PolishUpperSilesia, cit.p.14.
74Cfr,infra,para.1 12-126.
75
Once again Article 25 (1) of the InternationalLaw Commissiondraft on the
InternationalResponsibilito yfStates:"The breachof aninternationalobligatiobny anact ofthe
Statehavinga continuingcharacteroccurs at the moment when thatactbegins"(cfr. Report of
the InternationalLaw Comission, 1996,Chapter III),[Annex 171.
76
See supra, para.77-83.
77"Unless adifferentintention appearsfromthetreatyor is othenviseestablished, its
provisionsdo not bind a party inrelationto anyact or fact which tookplaceor any situation
whichceasedto exist beforethedate of the entryintoforce of the treaîywith respectto that
party".presentcase. It is therefore impossibleto hold that anyof its provisionsmust be deemed
to have been in force earlier78".
106. This does not mean that Portugal defends that the principle of non-
retroactivity should result in the Conventionnot being applicableto subsequentfacts 79,
simplybecause those facts includeone continuingfactwhich arose at an earlier date.
107. What it does signiQ is that, whilst it is necessary to split a continuing fact
for the purposes of the applicabilityof a Convention and ofits Jurisdiction clause,the
Court should refrain from extendingits jurisdiction over those parts of the continuing
fact where such a split would prevent one of the parties from exercising its right to
defend itself, because the splitbarred it from invoking aspects ofthe samefact essential
to its own defence. Were thisto happen, the result wouldbe irremediable prejudice to
the right upheld by the Court when it declared: "if the Iranian Government considered
the alleged activitiesof the United States in Iran legallyto have a close connection with
the subject-matterof the United States' Application,it was open to that Govemment to
present its own arguments regarding those activities to the Court either by way of
defencein a Counter-Memorialor by way of acounter-~laim"'~.
108.Clearly,the Courthas already avoidedthis situationby simplyruling that it
has jurisdiction not just conceming the facts subsequent to the date one of the parties
became bound,but to al1the constituent factsof the dispute, includingfor the purposes
of Article IX of the 1948Genocide Convention,in the Case ConcerningApplication of
the Conventionon the Prevention and Punishment of the Crime of Genocide [Bosnia-
Herzegovinav.Federal Republicof Yugoslavia(Serbiaand ~ontene~ro)]~'.
78Cfr.AmbatielosCase (Greece v.UnitedKingdom),PreliminaryObjections, 1 July
1952,1.C.JReports 1952p ,.40.
79Admittingitsapplicabilityforthe sakeofargument,althoughPortugal considertshere
arenogroundseven prima facie forapplicability,seenfra,para. 112-126.
Cfr. UnitedStates Diplomatic and ConsulurStaff in Tehran (United States of
Americav.Iran), Judgment I.C.J.Reports 1980, p.36.
81
"TheCourtheld: "the GenocidC eonvention - and inparticularArticleIX -doesnot
containany clausethe objector effectof whichis to limit in suchmanner thescope ofits
jurisdictionrationetemporis,and nordid the Parties themselve msakeany reservationto that
end, either to the Conventionor on the occasion of the signatureof the Dayton-Paris
Agreement. The Court thus finds thatit has jurisdictionin this case to give effect to the
Genocide Convention with regardtotherelevant factswhich haveoccurredsincethe beginning 109. However, the Court's ruling in that case cannot be dissociated from the
manner inwhich both FRYand above al1Bosnia andHerzegovina becameparties to the
1948 Genocide Convention, i.e. succe~sion.~~This retroactive applicability of its
jurisdiction can only be understood, given the non-retroactive natureof treaties, if it is
recalled thatthe parties assumed by succession the rights andobligations of the SFRY
as party to the Convention from the date of its entry into force, whichthus bound the
citizens ofthe SFRY before they wereto become citizensof the future States.
110. Practically speaking, any retroactive application of the 1948 Genocide
Convention must be carefully tempered by the principle of non-retroactivity of
International Criminal Law, which forms an integral part of Customary International
Lawjuri sogentis and conventional Human Rights ~aw~~I .t is consequently only by
succession to a State whose citizens were bound by the Convention that retroactivity
can be held to apply.It would be insufficient toconclude that the Convention applied
retroactively to States but not to their citizens, since in normal practice it would be
impossible to disentangle the Convention's effectson the former from ils effects, even
indirect, on the latter
11 1.However, Portugal did not become bound to theConventionby succession,
with the result that retroactive applicationmust be rejected, including the retroactive
application of its Jurisdiction clause. From the point of view of Portugal, the Court
should rule that it has no jurisdiction over any fact underlying the present dispute, even
arising after 10 May 1999.Were the Convention applicableto the present dispute, and
were the Court to consider it applicable to factsarising after that date which in practice
involved a continuing fact of earlier origin, invoking "theprinciple according to which
it should not penalise a defect in a procedural act which the applicant could easily
of the conflict which took place in Bosnia-Herzegovina. This finding is, moreover, in
accordance with theobject and purpose of the Convention as defined by the Court in 1951 and
referred to above (see paragraph 31 above)" (cfr. Case Concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide [Bosnia-Herzegovina
v. FederalRepublic of Yugoslavia (Serbiaand Montenegro)],Preliminary Objections, cit., para.
34).
82ASthe Court has held, cfr. Case ConcerningApplication (...), cit., paras 17, 20 and
23.
83Cfr., at universal level, Article 11(2) of the Universal Declaration of Human Rights,
adopted by GA Resolution 217 A (III), 10 December 1948, and Article 15 (1) of the
International Covenant on Civil and Political Rights (text in. No. 14668, vol 999 (1976),remedy", it would (in a hypothetical phase relating to the merits) bar Portugal from any
adequate defence, by prohibiting reference to parallel acts by FRY committed on an
earlier date. The principle of equality of the parties before the Court would be
threatened.
pp. 171 etseq). B -There is no dispute within the meaning of Article IX
112.However,a furtherobstacle arisesto FRY's claim, quite apart from the lack
of grounds for the Court's jurisdictionunder Article IX, resulting from Portugal not
being party to the Convention at the timeFRY filed its application. The acts of which
FRY accuses Portugal,evenwere they true, manifestlydo not fa11within Articles II and
III of the 1948 Genocide Convention and are thus not subject to the jurisdiction
attributedby Article IX.
113.Article IX reads: "Disputes between the ContractingParties relating to the
interpretation, application or fulfilment of the present Convention, including those
relating to the responsibility of a State for genocide or for any of the other acts
enumerated in Article III, shallbe submitted to the International Court of Justice at the
request of any of the partiesto the dispute".
114.But as the Court stressed,"in order to determine, even prima facie, whether
a dispute within the meaningof Article IX ofthe Genocide Convention exists, the Court
cannot limit itself to noting that one of the Parties maintains that the Convention
applies, while the other denies it; and whereas in the present case the Court must
ascertain whether the breaches of the Convention alleged by Yugoslavia are capable of
falling within the provisions of that instrument and whether, as a consequence, the
dispute is one which the Courthasjurisdiction ratione materiae to entertain pursuant to
Article IX"*~.
115.In other words, the existenceof a dispute between FRY and Portugal, and
FRY's assertion that it falls within the meaning of Article IX, is not on its own
sufficient for the Courtto assertthat it hasjurisdiction under that Article.
84Cfr. Case Concerning Legality of Use of Force (Yugoslavia v. Portugal), Order2of
June 1999, cit., para.37; also in Case Concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide [Bosnia-Herzegovina v. Federal Republic
of Yugoslavia (Serbia and Montenegro)], Preliminary Objections, cit., para.("To found its
jurisdiction, the Court must, however,ill ensure that the dispute in question does indeed fa11
within the provisions of ArticIX of the Genocide Convention"); and in Oil Platforms (Islamic
Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports
1996,para. 16. 116. In practice FRY has done little more than make that assertion. It broadly
accuses Portugal and the other respondent States of genocide. But the somewhat casual
way in which it seeks to ground these accusations suggests that FRY itself holdsfew
expectations as to their credibility. Faced with the problemof finding grounds for the
Court's jurisdiction,FRY appears to have soughtto bend both the lawand the facts in
an attemptto make the latter fitthe former.
117.On the question of the Court'sjurisdiction onthe grounds of Article IX of
the 1948 Convention, the Memorial has a single relevant paragraph of six lines, para.
3.4.3 (p. 349). This proposes asgrounds for theCourt'sjurisdiction the NATO bombing
and the events in Kosovo since 10June 1999under KFOR occupation. Relating to the
specific intent to commit genocide,pages 282-284 listas "proofs" the alleged bombing
of chemical industry targetsand the alleged use ofdepleteduranium shells. It also refers
to acts against Serbsin Kosovo, subsequent to 10June 1999, but without alleging them
to be the responsibility of the KFOR. It makes no attempt to fit the alleged facts to the
1948 Genocide Convention, which is only quoted, without comment, in mid-page (p.
326).
118. Genocide presupposes botha material and a psychological element. The
first requires the practice of acts to destroy "in whole or in part, a national, ethnical,
racial or religious group" by acts such as "Killing members of the group; Causing
serious bodily or mental harm to members of the group; Deliberately inflictingon the
group conditions of life calculated to bring aboutits physical destruction in whole or in
part; Imposing measures intended to prevent births within the group; Forcibly
transferring children of the group to another group" (Convention, Article11~')T. hus, to
constitute genocide,the acts mustbe practised in such a way thatthey may result in the
destructionof the group.
119. Inaddition, there must bea specific intent, clearlystated in Article IIof the
The same notion can be found in Articl17 in the International Law Commission's
Draft Code of Crimes against the Peace and Security of Mankind (cfr.C, 1996, Chapter 2)
[Annex 201. Also Articles 4 (2) of the Statute of the International Criminal Tribunal for ex-
Yugoslavia (approved by Security Council Resolution827(1993),25 May 1993,reported in the
Secretary-General's ReportUN Doc. SI25704 and Add.1), [Annex 211 and Articles 2 (2) for
Rwanda (approved by Security Council Resolution955(1994), 8 November 1994, in its annex),
[Annex 221 and Articl6 of theStatute of the International Criminal Tribunal (tUNt Doc.Convention: "the intended destructionof 'anational, ethnical,racial or religious group",
as the courts6 and the International CrirninalTribunals for the former ~u~oslavia~'
have ruled.
120.It is not sufficient that thereis the murder of one or more individuals who
happen to bemembers of a particular group,or eventhat the acts are comrnittedbecause
the victims are members of that group. The acts must form part of a broader plan to
destroy a group or a substantial part of itgs.For this reason, even widespread acts of
murder, although they clearly constitute a crimeagainsthumanity, are not in themselves
genocide unless accompaniedby sucha specificintentionto destroy a group as a whole.
121.FRY'Sallegations, by seeking to presume this intent in acts of war aimed
exclusively at targets of military significance and which employ al1 the means of
modern technology to Savecivilian livesand property, clearly fail to support its claims.
The alleged violations of international humanitarian law, whichPortugal rejects, cannot
be brought as evidence of anygenocidal intent. Violationsof Humanitarian Law may, in
abstract, be the origin of war crimes, but notof the crime of genocide. Besides, al1acts
of bombing were directed at targetsof military significance and not to any group of
individuals, Serbs or other. Unfortunately, eventhe Chinese Embassy was by accident
AICONF.183I9,17July 1998),[Annex 231.
86Cfr. Case ConcerningLegaliw of Useof Force (Yugoslaviav.Portugal), Order of 2
June 1999, cit., para. 39; also in Legality of the Threator Use ofNuclear Weapons,Advisory
Opinion, I.C.J. Reports 1996,p.240, para. 26.
87The Court held that "It is in fact themens rea which givesgenocide its speciality and
distinguishes it from an ordinarycrime and othercrimes against international humanitarianlaw.
The underlying crime or crimes must be characterisedas genocide when committed with the
intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such.
Stated othenvise, "[tlhe prohibited act mustbe committed against an individual because of his
membership in a particular group and asan incremental step in the overall objective of
destroying the group" [cfr. Prosecutor v.Goran Jelisic, (Case No IT-95-1O),Judgment, 14
December 1999,para. 661,[Annex241.
As was confirrned by the International LawCommission, in its commentary on
Article 17of its draft Codeof Crimes againstthe Peace and Security of Mankind: "the intention
must be to destroy a group and not merely one or more individuals who are coincidentally
members of a particular group. The prohibited act must becommitted against an individual
because of his membership in a particular group and as an incremental step in the overall
objective of destroyingthe group" and"The group itself isthe ultimate target or intendedvictim
of this type of massiveriminalconduct. The actiontaken against the individualmembersof the
group is themeans used to achieve the ultimatecriminal objective with respect to the group"
and "the crime of genocide by its very nature requires the intention to destroy at least a
substantial part of a particular group" (cfr.ILC, 1996, Chapter 2, paras 6 and 8 of thetargeted.
122. In anyevent, an aspect which Portugal wishes tostress is that, even in the
form of conspiracy, the crime of genocide requiresan intent to destroy by the accused,
not by third parties. FRYhas not accused Portugalof any acthaving that specificintent.
The Memorial containsnot a singleallegationof a specific act by Portugal, far less any
which meets boththe materialand the psychologicalcriteriaof genocide.
123. FRY does not attempt to attribute to theKFORthe acts which it alleges to
have taken place since 10June 199gg9,accepting that they were perpetrated by elements
of the Kosovo population90.But the crime of genocide cannot be cornmitted by
124. It must be added that the acts alleged to have taken place since 10 June
1999,like those committed before that date, and ifthey occurred at all, were manifestly
not the material acts of genocide. Most wereclearlyoutsidethe scope of Article II (a) to
(e). Those relating to murder,reprehensible thoughthey may have been - and Portugal
stresses its condernnation of them - and though they have been appropriately
repressed, were in no way of a nature to resultin the destruction, even partial, of the
Serb population of Kosovo. Neither has FRY submitted anyevidence that they were
committed with such a specific intent.The allegations in thismatter go no further than
the repetition of unfounded presumptionsand the quoting of international reports in
which no reference whatsoeveris made to genocidali~~tent~~.
125. In short, not only hasFRY failed to provide evidence to substantiate its
accusations, an issue which would normallycome before the Court only in the merits
commentary on Article 17),[Annex 251.
89Allegations which, if they are held to constitute a new dispute, should be regarded as
inadmissible. See infra, paras 149-159.
90Cfr. Memorial, cit.,p. 201-282.
91As the International Law Commission has said, acts of genocide "are not the type of
acts that would normally occur by accident or even asa result of mere negligence. However, a
general intent to commit one of the enumerated acts combined witha general awareness of the
probable consequences of such an act with respect to the immediate victim or victims is not
sufficient for the crime of genocide. The definition of this crime requires a particular state of
mind or a specific intent with respect to the overall consequences of the prohibited act" (cfr.
RILC, 1996,Chapter 2, para. 5 of the Commentary on Article 17),[Annex 261.
" Cfr. Memorial, cit.p.283-284phase of the case, it has failed to bring fonvard the necessaryallegations of facts which,
whether true or not, would have demonstrated theexistence of a dispute relating to
acts within the meaning of Articles II and III of the 1948 Genocide Convention. A
dispute may indeed exist, but it relates towhether or not the international noms on the
use of force, International Humanitarian Law and SecurityCouncil Resolution 1244
(1999) were respected. It does not relate to acts of genocide, and it is manifest that no
such acts occurred.
126. In view of the foregoing, Portugal contends that the Court's provisional
conclusions on this question, reached at the provisional measures phase, cannot be
challenged: "whereas the threat or use of force against a State cannot in itselfconstitute
an act of genocide within the meaning of Article II of the Genocide Convention; and
whereas, in the opinion of the Court, it does not appear at the present stage of the
proceedings that the bombings which form the object of FRY'SApplication "indeed
entai1the element of intent, towards a group as such, required by the provision quoted
ab~ve""~~.
93Cfr. Case Concerning Legality of Use of Force (Yugoslavia v. Portugal),Order of 2
June 1999, citpara. 39. Part III- Objections relating with admissibility
127. Even without the obstacles representedby the lack of Locus stand ind of
the Court's jurisdiction, as put forward by Portugal and described inthe foregoing
paragraphs, there would still remain legal constraints to theexercise of the Court's
jurisdiction.
128.As the Courthas already had occasion to observe "evenif the Court, when
seized, finds that it has jurisdiction, the Court isnot compelled inevery case toexercise
that jurisdiction. There are inherent limitations on the exerciseof the judicial function
which the Court, as a courtofjustice, cannever ignoreng4.
129.Portugalcontendsthat FRY'Sclaims submitted in thepresent action arejust
such a case, for the following reasons.
I - The claim concerns acts by NATO, not Portugal
130.As FRY recognises throughout its Mernorial, and even in the title of one of
the annexes theretog5,the acts which are the subjectof the present proceedings are acts
of NATO. Hence the references to"NATO aviationy99o 6r "acts of ~ato".'~ Indeed, al1
the political and military decisions weretaken by NATO bodies, respectively its
Council, its Secretary-Generaland its militaryauthorities.
131. NATO is, however, an international organisation with international legal
personality. This is implicit in the North Atlantic Treatyof 4 April 1949by which the
organisation was established, in the creation of the North Atlantic Council, its supreme
body, with cornpetence to set up other subsidiary bodies (Article 9), in attributions
94 Cfr. Case concerning Northern Cameroons (Cameroon v. United Kingdom),
Preliminary Objections, I.C.J. Reports 1963,p. 29.
95"Nato Crimes inYugoslavia", vols 1and IIMayIJuly 1999.
96
e.g. in the second paragraph of Part 1of its Memorial, cit., p. 11,para. 1.1.1.2.
97Ibid, Mernorial,cit.p.299, para. 1.10.whose performance requires the existence of legal personality and in the distinction
between the situation of the organisation and that of its members, deriving from the
power of its bodies to issue recommendations to members under to the same Article 998.
132. This personality is confirmed by its own practice and by that of other
bodies, including the United ~ations.~~ Thus, numerous member states and certain non-
members have permanent representations to NATO, and the organisation has entered in
treaties not only with its own members but also with third countries, including FRY
itself. This is the case of the Agreement signed in Belgrade on 15 October 1998 by the
Chief of General Staff of the Amy of Yugoslavia and the Supreme Allied Commander
Europe of NATO, concerning the Aerial Verification Mission in ~osovo,'~~ and the
Military Technical Agreement signed on 9 June 1999 by the military representatives of
NATO, representing KFOR and Yugoslavia on behalf of their government and of
98
These are criteria applied by the Court to determine theexistence of international
legal personalityof the United Nations Organisation, cfr.Reparationfor InjuriesSuffered in the
Service of the United Nations, Advisory Opinion, 11April 1949,I.C.J. Reports 1949,p. 148-
149.
99
The Security Council has referred both directly and indirectly to NATO as an
organisation, and not merelyan alliance of its members, implicitly recognisingits personality,
although its seems hesitant to qualifyit asregional or international organisationstrictu senso.
Thus in Resolution 816 (1993), 31 March 1993 [Annex271,after referring to ChapterVI11in
the preamble (para. 6), the Security Council at para.thorises themember states, individually
or through regional bodies and agreements, touse force to impose an air exclusion zonein
Bosnia and Herzegovina. In practice, the intervening forces werethose of NATO, and the
Security Council was fully aware of that fact. This thus represented implicit recognition of
NATO as a regional organisation for the purposes of Chapter VIII. The same applied in
Resolution 770 (1992), 13August 1992,in paras 2 and 4 [Annex281,and although here Chapter
VI11is not invoked, the intervention ofregional organisations and agreements is permitted.
Likewise in Resolution 836(1993), 4 June 1993, para. 10 [Annex 291;Resolution 908(1994),
31 March, para. 8 [Annex 301;Resolution 958(1994), 19November, para. 2 [Annex 311and
Resolution 981 (1995), 31March, para.6 [Annex321.In Resolution 1031(1995), 15December,
paras 12, 14and 25, which established theIFOR multinational force,commanded by NATO in
Bosnia and Herzegovina [Annex 331,and in Resolution 1088(1996), 12December [Annex341,
by which it was replaced by the SFOR [whose powers are restated in the same terms on
Resolution 1174 (1998), 15June [Annex351,and Resolution 1247(1999), of 18 June, [Annex
3611,the Security Council refersto NATO as the organisation referred to in Annex 1 of the
Dayton Agreements), thus explicitly referring toit as an organisation. Resolution 1203(1998),
24 October, para.4 of the preamble and paras 1 and 3 [Annex 371,refer directly to NATO for
thefirst time, describiitas an international organisation.The President of the Council was to
do the same in the DeclarationNo. 12of 14May 1999 [Annex381.In Resolution 1244(1999),
10 June, setting up KFOR, the Council refers to NATO by implication as an international
organisation (para7 and 10)[Annex 181.
1O0Cfr. UN Doc. Sl19981991,annex [Annex 391.This agreement was endorsedby the
Security Councilin Resolution 1203(1998) of 24 October 1998,whichalso demanded thatit be 133. By these treaties, FRY has recognised de jureNATO's legal personality.
Accordingly, it has recognised that withinthe scope of its competences,NATO acts in
place of its memberstates, inits ownname and onits own authority, notablyas regards
the questions coveredby the agreements referred to, i.e. those relating to the crisis in
Kosovo.
134.The sameprincipleswere adoptedby the UnitedNations as regards the acts
of its forces. Once under United Nations command,lo2those forces act under its
responsibility,eventhough the forcesmayhavebeen suppliedby member states'03.
135. But as has already been stated, al1 the operations which took place in
Kosovo were decided by NATO bodies, the forces of its member states having been
placed under NATO cornrnand,and it is to NATO that responsibility for the military
operations falls.FRYitselfhas recognisedthis fact.lo4
136. It is consequently NATO as a legal person which assumes full
responsibility under international law for its actionsin Kosovo, and not its member
States. Having recognised NATO's responsibility in the agreements cited, it is with
NATO that FRY must resolve the disputes arising from its alleged failure to comply
with those agreements and acts associatedwith the subject of those agreements, i.e.
[email protected] recitalandparas. 1and3)[Annex 371.
101
[Annex401
IOThus,Article1 (c)ofthe Conventionon the SafetofUnitedNationsandAssociated
Personneladoptedby the General Assembly inResolution49/59of 9 December1994[Annex
411,states:""United Nationosperation"meansan operationestablishedbythe competent organ
oftheUnitedNations inaccordance withthe Charterofthe UnitedNationsand conductedunder
UnitedNations authorityandcontrol".
'OCfr. Secretary-General'Rsepor(UN Doc.Al511389 October1996),para.6 and 7
[Annex421("TheUnited Nations has s,incethe inceptioof peace-keeping missionas,ssumed
itsliabilityfordamagecaused by membersof itsforcesintheperformanceof their duties"and
"The internationalresponsibilityoftheUnited Nationsfor the activitiesof United Nations
forcesis an attributeof its internationallegalpersonalityand its capacityto bear international
rightsandobligations").
10e.g."KFORiscreated by NATO. Itisundercommandandcontrol ofNATO"(Cfr.
Mernorial,cit.p.299, para.1.9.2.7).Kosovo. The agreementswere between FRYand NATO.
137. By seeking to impute NATO's acts to its member states, FRY
acknowledges that they wereacts of NATO. In anattempt to escape this reality, FRY
has taken as grounds for imputation such weak allegations as an apology,'05tendered
for diplornaticreasons and Comitas Gentium.
138. FRY also contends that, because there exists a procedure of unanimous
adoption of political decisions in the NATO Council it is implied that eachmember
State holds political andmilitary control over NATO action, and NATO actionscan be
imputed to them. Decisions are in fact taken by consensus, and an abstention does not
therefore invalidate them. Principally, though, FRYignores the fact that, because each
member State has a seat on the NATO Council, NATO's legal personality vis-à-vis
international law does not diminish. It continues to hold responsibility foral1practical
purposes. To deny this is also to maintain that the Permanent Members of the Security
Council are directly responsible for the unlawful actsof the United Nations even when
they have abstained from voting a policy whose implementation is claimed to have
resulted inan unlawful act.
139.This state of affairsis confirrnedelsewhere in FRY'Sown Memorial. None
of the facts or allegations relate to an act by Portugal.FRY does no more than accuse
NATO of certain acts and vaguely assert that Portugal and the other respondent States
are responsible by virîue of being members of NATO. There is not a single specific
allegation of a political act by Portugal withinNATO, or of an act of war by Portuguese
forces against FRY. The only explanationof this breach of the requirements underlying
Article 49 (1) of the Rules of the Court is that FRYhas nothing relevant to Sayon the
matter.
140.In conclusion, FRYhas filed proceedingsagainst Portugal in respect ofacts
which were the responsibility of another body, alleging no specific act by Portugal, and
basing its action solelyon the fact that Portugalis a member ofNATO.
141. InPortugal's view, al1the claims by FRY should, consequently,be deemed
inadmissible on the grounds that in accordance withthe principles of international
'O5Cfr.Mernorial,cit., p. 299-300, para. 1.10.
41responsibility, they are not addressed to the entity responsible. II- The exercise ofjurisdiction would directly affect the rights and duties
of third parties
142. Even if that was not the Court's view, Portugal contends that the Court
should decline jurisdiction in the present case, on the grounds that the international
organisation which adopted the acts resulting in FRY'S action is not party to the
proceedings.
143.The same appliesto other major membersof the organisation which are not
parties to the proceedings filed bythe FRY. Of the 19NATO members, 14had a greater
or lesser role in theNATO action. FRY has brought actions against only ten, two of
which the Courthas already rejected.
144.Itmay also be notedthat as regards theactions relating to KFORand events
subsequent to 10 June 1999,a firther 34 States, including non-NATO members, were
involvedlo6.In this matter, even the United Nationsis directly involved, since it was the
Security Council that authonsed the intervention ofKFOR, and UNMIK, a subsidiary
organ of the United Nations, hasmajor responsibilities in~osovo'~'.
145.The rights and duties of other States and of two international organisations,
al1third parties to the present proceedings, consequently lie at the very heart of its
subject-matter.As the Court has alreadyheld, itcannot exercisejurisdiction when todo
so would imply that, without itsconsent, a third party's "legal interests would not only
be affected by a decision,butwould form thevery subject-matterof the deci~ion"'~~.
146. The Court applied thesame principle again: "the effects of the judgement
requested by Portugal wouldamount to a determination thatIndonesia's entryinto and
continued presence in East Timor are unlawful and that,as a consequence, it does not
106Belgium, CanadaC , zechRepublic,Denmark,France, Germany, GreeceH , ungary,
Iceland, Italy,Luxembourg,The Netherlands,Norway, Poland, Spain, Turkey, United
Kingdom,United States (NatoMember States), Argentina,Austria, Azerbaijan,Finland,
Georgia,Ireland,Jordan,Lithuania, Morocco R,ussia, Slovakia, lovenia,Sweden, Switzerland,
Ukraine,UnitedArabEmirates (Non-NatS otates)[Annex431.
107Cfr.Resolution1244(1999),10June 1999,para 5.-7and 9-11.
108
Cfr.Monetary Gold Removed from Rome in 1943 (Italyv. France,UK and USA),have the treaty-making power in matters relatingto the continental shelf resources of
East Timor. Indonesia's rights and obligations would thus constitute the very subject-
matter of such a judgement made in the absence of that State's consent. Such a
judgement would run directlycounter to the "well-establishedprinciple of international
law embodied in the Court's Statute, namely, that the Court can only exercise
jurisdiction over a State withits consent""10g.
147. Only in cases where the third party's action was of minor significance in
the situation under consideration,and where its interestswere consequently secondary,
has the Court refusedto applythis principle.'O
148.By the force of the circumstances of the presentcase, where the actionsare
those of NATO (or of KFOR, in which NATO has a decisive participation) andother
major States,whether or notNATO members,it willclearly bea sine qua noncondition
of the Court's decision on FRY's claims that the legalsituation is analysed in detail.
The same can be said of the United Nations.The Court would beobliged to exercise its
jurisdiction over issues whose central subject-matterwas the rights and responsibilities
of third parties, without their consent.
149. Portugal contends, therefore, that the Court shoulddecline to exercise its
jurisdiction in this case,holdingal1FRY'sclaimsto be inadmissible.
I.C.J. Reports 1954,p. 32.
109C fr. East TimorCase (Portugal v.Australia), cit., pa34.
1IOcr
In the present case, a finding by the Court regarding the existence or the content of
the responsibility attributed to Australia by Nauru might well have implications for the legal
situation of the two other States concemed, but no finding in respect of that legal situation will
be needed as a basis for the Court'sdecision on Nauru'sclaims against Australia. Accordingly,
the Court cannot decline to exercise its jurisdiction" [cfr.rtain Phosphate Lands in Nauru
(Nauru v. Australia), Preliminary Objections, I.C.J. Report1992,p. 261-262, para. 551.Also in
Military and Paramilitary Activifies in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibilik I.C.J.Reports 1984,para. 88. III- The submissions relating to facts subsequent to 10 June 1999 radically
change the nature of the dispute
150.In the Memorial submittedby FRY, the initialclaims are supplementedby
a series of claimsrelating to events subsequent to 10 June 1999alleged to have occurred
in Kosovo during the period when UNMIK and KFOR were on the tenitory."' FRY
justifies this broadening of the nature ofthe proceedings withthe claim that these new
elements likewise form partof the initial dispute.
151. Portugal has already claimed thatthe Court should reject FRY's
applications relating to events subsequentto 10June 1999, if considered to be part of
the sarne dispute, on the grounds that ithas no jurisdiction, given that, inter alia, the
dispute arose well before 26 April 1999,the date on which Yugoslavia acceptedthe
Court's jurisdiction in relation to disputesarising after that date, based on events
subsequentto the samedate.' l2
152. However, should the Court reject FRY's claim that these are elements of
the sarnedispute, finding that it has jurisdictioriin relation to this new dispute, Portugal
will contend that these are elements which radically change the nature of the
proceedings, and that the corresponding claims should be held to be inadmissible.
153. For the Court has found that, notwithstandingany reservation in the
original claimregarding its future extension,l13there is a limit to the right to formulate
new claims. Thus it held: "The Court,however, isof the view that, for the claimrelating
to the overseas assets of the BritishPhosphate Commissionersto be held tohave 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 theapplication(Temple ofPreah Vihear,Merits, ICJ Reports 1962,p. 36)or
must arise "directly out of the question which is the subject-matter of that Application
(Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, ICJ Reports
IICfr. Memorial, cit., p8,para. 12and pp. 339-340, paras 3.2.11-3.2.12 and 3.2.16.
II2
See, supra, para. 92.
113
Which FRY effectively did; cfr.Application of The Federal Republic of Yugoslavia1974, p. 203, para. 72)."""4.
154. But the new claims by FRY change the respondent entities, which are no
longer exclusively members of NATO, but another34 States, and also involve the
United Nations by virtue of the allegations regarding violationof Security Council
Resolution 1244(1999), and also of the fact that thesaid Resolution authorisesKFOR
to interveneon the ground and createsUNMIK.
155.They also changethe situation under consideration, no longer thatof open
arrned conflict, but merely of peace-keeping, after thesignature of an agreement
between the parties endorsed by the Security Council.A more complete change is
difficult to imagine. In the lightof traditional InternationalLaw, the shift from wartime
to peacetime was so profound that it implied a change in the applicable law, from the
Law of War to the Law of Peace. Today, a change of this magnitude cannot be
accepted,but the change remains substantial.
156.It also affects the penod of time the Court must take into account. Seen in
this light, FRYhas done little more than attempt once again to postpone the starting
date of the dispute with the aim of escaping the limitations ratione temporis of its own
optional Declaration.
157.It changes thecause of the claim,in so far as an allegation of responsibility
for the breach of the mles on the use of force and of Humanitarian Law becomes,in
essence, a responsibility flowing from the breach of United Nations acts.
158.It changes, finally, the natureof the responsibility, whichin the first period
would derive from intentionalacts, and in the second, apparently,fromnegligence.
(...)cit.,p. 5.
114
Cfr. Certain Phosphate Lands in Nauru (Nauruv. Australia), cit.,para.69. Also
Miliraryand Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdictionand Admissibilitycit.,para.80).ThePermanent Couro tf International
Justice alsoruled on the question:"the Courtcannot, in principle,allow a disputebrought
before it by applicationto be transformed by amendments in the submissions into another
disputewhichisdifferentincharacter. A practiceofthis kind wouldbecalculatedtoprejudice
the interests of third Statesto which, under Article 40, paragraph 2, of the Statute,al1
applicationsmustbecommunicated in orderthattheymaybe ina positionto availthemselves
of the rightof interventionprovidedfor in Articles62 and 63 of the Statute." (cfr.Société
Commercialede Belgique, Judgement,1939,P.C.I.J.,SeriesAIB,No 78,p. 173). 159. Claims less connected with the initialsubject of the dispute, and more
radically amending it, can be imagined only with difficulty.Al1the evidence suggests
that, rather than wishing to bring new claims,FRY is in fact seeking to bring a new
procedure, sincethere is clearlyno basis on whichit can hope to succeed in the first.
160. This being the case, and in the interests of its defence and of the good
administration of justice, Portugal contends that there is every reason to avoid the
further artificial complicating of the case by converting its nature to another whilst
maintaining earlier claims. Portugal consequently requeststhe Court to hold the new
claims brought by FRY to be inadmissible. SUBMISSIONS
For the reasons advanced above, Portugal requests the Courtto adjudge and
declare that:
1 - That the Federal Republic of Yugoslavia has no Locus Standi before the
Court.
2 - That the Courtlacksjurisdiction over the claimsfiled against Portugal by the
Federal Republicof Yugoslavia.
3 - That the claims filed against Portugal by the FederalRepublic of Yugoslavia
are inadmissible.
Maria Margarida AleixoAntunes Rei
Agent of thePortugueseRepublic
Preliminary Objections of the Portuguese Republic