Legality of Use of Force (Serbia and Montenegro v. Canada) - Preliminary Objections - The Court finds that it has no jurisdiction to entertain the claims made by Serbia and Montenegro

INTERNATIONAL COURT OF JUSTICE

Peace Palace, 2517 KJ The Hague. Tel: +31 (0)70 302 23 23. Cables: Intercourt,
The Hague. Fax: +31 (0)70 364 99 28. Telex: 32323. E-mail address:

[email protected]. Internet address: http://www.icj-cij.org.

Press Release

Unofficial

No. 2004/40
15 December 2004

Legality of Use of Force (Serbia and Montenegro v. Canada)
Preliminary Objections

The Court finds that ithas no jurisdiction
to entertain the claims made by Serbia and Montenegro

THE HAGUE, 15 December 2004. The International Court of Justice (ICJ), the principal
judicial organ of the United Nations, today concluded that it had no jurisdiction to entertain the

daims made in the Application filed by Serbia and Montenegro against Canada on 29 April1999.
The Court's decision was taken unanimously.

Background to the case

On 29 April1999, the Federal Republic of Yugoslavia (with effect from 4 February 2003,
"Serbia and Montenegro") filed an Application instituting proceedings against Canada in respect of
a dispute concerning acts allegedly committed by Canada

"by which it has violated its international obligation banning the use of force against

another State, the obligation not to intervene in the internai affairsther State, the
obligation not to violate the sovereigntyf another State, the obligation to protect the
civilian population and civilian abjects in wartime, the obligation to protect the
environment, the obligation relating to free navigation on international rivers, the
obligation regarding fundamental human rights and freedoms, the obligation not to use

prohibited weapons, the obligation not to deliberately inflict conditions of life
calculated to cause the physical destruction a national group".

The Application invoked as a basis of the Court's jurisdiction Article 36, paragraph 2, of the
Statute of the Court, as well as Article IX of the Convention on the Prevention and Punishment of

the Crime of Genocide, adopted by the United Nations General Assembly on 9 December 1948
("the Genocide Convention"). On the same day, the Federal Republic of Yugoslavia filed
Applications, drafted in broadly similar terms, instituting proceedings in respect of other disputes
arising out of the same facts against Belgium, France, Germany, Italy, the Netherlands, Portugal,
Spain, the United Kingdom and the United States of America.

By Orders of 2 June 1999 the Court rejected the requests for provisional measures submitted
in each of the ten cases, including the present one, and further decided that the proceedings against
Spain and the United States be removed from its List for manifest lack ofjurisdiction. -2-

On 5 July 2000, Canada submitted preliminary objections relating to the Court's jurisdiction

to entertain the case and to the admissibility of the Application. The proceedings on the merits
were accordingly suspended. Hearings were held from 19 to 23 Apri12004 on those objections, as
well as on those submitted by the seven other Respondents.

Reasoning of the Court

The Court first deals with a preliminary question that has been raised in various forms in

each of the eight cases conceming Legality of Use of Force, including the present one, namely
whether, as a result of the changed attitude of the Applicant to the Court'sjurisdiction, as expressed
in its Observations on the Respondent's Preliminary Objections, the Court should not simply
decide to dismiss the case in limine litis, and remove it from its List, without enquiring further into

matters of jurisdiction.

The Court finds itself unable to uphold the various contentions of the respondent States in
this respect. lt considers that it cannot treat the Observations of Serbia and Montenegro as having

the legal effectof a discontinuance of the proceedings and finds that the case does not fall into the
category of cases in which it may of its own motion put an end to proceedings in a case. As
regards the argument advanced by certain Respondents that the dispute on jurisdiction has
disappeared since the Parties now agree that the Applicant was not a party to the Statute at the

relevant time, the Court points out that Serbia and Montenegro specifically asked in its submissions
for a decision of the Court on the jurisdictional question. lt notes that, in any event, there is a
distinction between a question of jurisdiction that relates to the consent of the parties and the
question of the right of a party to appear before the Court, which is independent of the views or

wishes of the parties. As to the argument conceming the disappearance of the substantive dispute,
the Court observes that it is clear that Serbia and Montenegro has by no means withdrawn its
claims as to the merits. Indeed, these claims were extensively argued and developed in substance

during the hearings on jurisdiction, in the context of the question of the jurisdiction of the Court
under Article IX of the Genocide Convention. lt is equally clear that these claims are being
vigorously denied by the Respondents. The Court is therefore unable to find that Serbia and
Montenegro has renounced any of its substantive or procedural rights, or has taken the position that

the dispute between the Parties had ceased to exist. For ali these reasons, the Court finds that it
cannot remove the cases conceming Legality of Use of Force from the List, or take any decision
putting an end to those cases in limine litis; and that, in the present phase of the proceedings, it
must proceed to examine the question of its jurisdiction to entertain the case.

The Court observes that the question whether the Applicant was or was not a State party to
the Statute of the Court at the time of the institution of the present proceedings is fondamental; for
if it were not such a party, the Court would not be open to it. The Court must therefore examine

whether the Applicant meets the conditions for access to it laid down in Articles 34 and 35 of the
Statute before examining the issues relating to the conditions laid down in Article36 of the Statute.

The Court points out that there is no doubt that Serbia and Montenegro is a State for the

purpose of Article 34, paragraph 1, of the Statute. However, the objection was raised by certain
Respondents that, at the time when the Application was filed, Serbia and Montenegro did not meet
the conditions set down in Article 35 of the Statute. The Court recalls that Canada argued as its
first preliminary objection to the jurisdiction of the Court, inter alia, that:

"The Applicant is not a Member of the United Nations and accordingly is not
party to the Statute of the Court ... " (Preliminary Objections of Canada, p. 9.
para. 32.)

"In order to have access to the Court, the Applicant must be either be a party to
the Statute of the Court, or claim to apply the exceptional mechanisms provided for in - 3 -

Article 93, paragraph 2, of the Charter of the United Nations or in Article 35,

paragraph 2, of the Statute. The Applicant meets neither of these requirements."
(Ibid., para. 35; emphasis original.)

The Court then recapitulates the sequence of events relating to the legal position of the

Applicant vis-à-vis the United Nations. It refers, inter alia, to the following: the break-up of the
Socialist Federal Republic of Yugoslavia in 1991-1992; a declaration of 27 April1992 by the
SFRY Assembly, the National Assembly of the Republic of Serbia and the Assembly of the
Republic of Montenegro asserting the continuation of the international legal and political

personality of the SFRY by the Federal Republic of Yugoslavia; a note of the same day from
Yugoslavia to the United Nations Secretary-General asserting the continuation by the FRY of the
membership of the SFRY in the Organization; Security Council resolution 777 of 1992
considering that the FRY could not continue automatically the SFRY's membership; General

Assembly resolution 4711 of 1992 stating that the FRY shall not participate in the work of the
General Assembly; and a letter dated 29 September 1992 from the United Nations Legal Counsel
regarding the "practical consequences" of General Assembly resolution 47/1. The Court then
concludes that the legal situation that obtained within the United Nations during the period

1992-2000 concerning the status of the Federal Republic ofYugoslavia, following the break-up of
the Socialist Federal Republic of Yugoslavia, remained ambiguous and open to different
assessments. This was due, inter alia, to the absence of an authoritative determination by the

competent organs of the United Nations defining clearly the legal status of the Federal Republic of
Yugoslavia vis-à-vis the United Nations. The Court then summarizes the various positions taken in
that regard within the United Nations.

Against this background, the Court observes that it referred, in its Judgment of
3 February 2003 in the case concerning Application for Revision of the Judgment of 11 July 1996
in the Case concerning Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina_y,__Yugoslavia), Preliminary Objections

(Yugoslavia v. Bosnia and Herzegovina), to the "sui generis" position which the FRY found itself
in "during the period between 1992 to 2000"; however, in that case, no final and definitive
conclusion was drawn by the Court from this descriptive term on the amorphous status of the
Federal Republic of Yugoslavia vis-à-vis or within the United Nations during this period. The

Court considers that this situation came to an end with a new development in 2000. On 27 October
ofthat year, the Federal Republic ofYugoslavia requested admission to membership in the United
Nations, and on 1 November, by General Assembly resolution 55/12, it was so admitted. Serbia
and Montenegro thus has the status of membership in the Organization as from 1November 2000.

However, its admission to the United Nations did not have, and could not have had, the effect of
dating back to the time when the SFRY broke up and disappeared. It became clear that the
sui generis position of the Applicant could not have amounted to its membership in the
Organization.

In the view of the Court, the significance of this new development in 2000 is that it has
clarified the thus far amorphous legal situation concerning the status of the Federal Republic of
Yugoslavia vis-à-vis the United Nations. From the vantage point from which the Court now looks

at the legal situation, and in light of the legal consequences of the new development since
1November 2000, it concludes that Serbia and Montenegro was not a Member of the United
Nations, and in that capacity a State party to the Statute of the International Court of Justice, at the

time of filing its Application to institute the present proceedings before the Court on 29 April 1999.
The Applicant not having become a party to the Statute on any other basis, it follows that the Court
was not then open toit under Article 35, paragraph 1, of the Statute.

The Court then considers whether it might be open to the Applicant under paragraph 2 of
Article 35, which provides: -4-

"The conditions under which the Court shall be open to other States [i.e. States

not parties to the Statute] shall, subject to the special provisions contained in treaties
in force, be laid down by the Security Council, but in no case shall such conditions
place the parties in a positionf inequa1itybefore the Court."

The Court starts by noting that the words "treaties in force" in that paragraph do not, in their
natural and ordinary meaning, indicate at what date the treaties contemplated are to be in force.
They may be interpreted as referring either to treaties which were in force at the time that the
Statute itself came into force, or to those which were in force at the date of the institution of

proceedings in a case in which such treaties are invoked.

The Court points out that Article 35, paragraph 2, is intended to regulate access to the Court
by States which are not parties to the Statute.It would have been inconsistent with the main thrust

of the text to make it possible for States not parties to the Statute to obtain access to the Court
simply by the conclusion between themselves of a special treaty, multilateral or bilateral,
containing a provision to that effect. The Court finds that the interpretation of Article 35,

paragraph 2, whereby that paragraph is to be construed as referring to treaties in force at the time
that the Statute came into force is in fact reinforced by an examination of the travaux préparatoires
of the text.

The Court thus concludes that, even assuming that the Applicant was a party to the Genocide

Convention at the relevant date, Article 35, paragraph 2, of the Statute does not provide it with a
basis for access to the Court under Article IX of that Convention, since the Convention only
entered into force on 12 January 1951, after the entry into force ofthe Statute. The Court does not
therefore consider it necessary to decide whether Serbia and Montenegro was or was not a party to

the Genocide Convention on 29 April 1999 when the current proceedings were instituted.

Having concluded that Serbia and Montenegro has no access to the Court under either
paragraph 1 or paragraph 2 of Article 35, the Court notes that it is unnecessary for it to consider the

Respondent's other preliminary objections.

The Court finally recalls that, irrespectivef whether it has jurisdiction over a dispute, the
parties "remain in all cases responsible for acts attributable to them that violate the rights of other

States".

The text of the operative paragraph reads as follows:

"For these reasons,

THE COURT,

Unanimously,

Finds that it has no jurisdiction to entertain the claims made in the Application
filed by Serbia and Montenegro on 29 Apri11999."

Composition of the Court

The Court was composed as follows: President Shi; Vice-President Ranjeva;

Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek,
Al-Khasawneh, Buergenthal, Elaraby, Owada, Tomka; Judge ad hoc Kreéa; Registrar Couvreur.

* - 5-

Vice-President RANJEVAand Judges GUILLAUMEH , IGGINS,KOOIJMANSA , L-KHASAWNEH,

BUERGENTHALand ELARABYappend a joint declaration to the Judgment of the Court;
Judge KOROMAappends a declaration to the Judgment of the Court; Judges HIGGINS,KOOIJMANS
and ELARABY and Judge ad hoc KREéAappend separate opinions to the Judgment of the Court.

A summary of the Judgment is published in the document entitled "Summary No. 2004/3",
to which summaries of the declarations and opinions attached to the Judgment are annexed. The
present Press Release, the summary and the full text of the Judgment also appear on the Court's

website under the "Docket" and "Decisions" headings (www.icj-cij.org).

Information Department:

Mr. Arthur Witteveen, First Secretary the Court (tel+:31 70 302 2336)
Mrs. Laurence Blairon and Mr. Boris Heim, Information Officers (t+l31 70 302 2337)

E-mail address: [email protected]