Summary of the Order of 2 June 1999

Summaries of Judgments, AdviNot an official document of the Internationa
l Court of Justice

CASE CONCERNING LEGALITY OF USE OF FORCE (YUGOSLAVIA v.
BELGIUM) (PR!OVISIONALIMEASURES)

Order of 2 June 1999

In an Order issued in the case concerning Legality of
Use of Force(Yugoslaviav. Belgium), the Courtrejected by
twelve votes to four the request for the indication of

provisionalmeasures sublnilted by the Federal liepublic of Buckgr-otlndii?forn~utioi.r
Yugoslavia (FRY). The Court also stated that it remained On 29 April 1999 Yugoslavia filed an Application
seized of the case. It reserved the subsequentprocedure for institutingproceedingsagainstBelgium"for violation of the
furtlie:rdecisionby fifteen votes to one.
Thc Court was coniposed as follows: Vic:e-President obligation notto use force", accusing that State of bombing
Weerzunaiitry,ActingPresident; PresidentSchwsbel;Judges Yugoslav territory "together with other Member States of
NATO". On the same day, it submitted a request for the
Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, indication of provisional measures, asking the Court to
Fleischhauer. Korotna, Veresliclietin, Higgins, Parra- order Belgium to "cease iiniilediately its acts of use of
Aranguren, Kooijmaiis; Judges ad hoc Kreca, Duinslaeger; force" and to "refrainro11allyact of threator use of force"
RegistrarValencia-Ospina. againstthe FRY.

As a basis for the jurisdiction ofthe Court, Yugoslavia
invoked thedeclarationsby which both States had accepted
the compulsoryjurisdiction of the Caul-tin relation to any
T11.efull text of the operative paragraph of the Order other State accepting the same obligation (Article 36,
reads as follows: paragraph 2, of the Statute of the Court), and Article IX of
the Convention on the Prevention and Punishment of the
"51. Forthese reasons, Crime of Genocide,adoptedby the United Nations General
THE COURT,
(I) By twelvevotes to four, Assemblyon 9 December 1948.Article IX of the Genocide
Convention provides thatdisputes between the contracting
Rejects the request for the indication of provisional parties relating to the interpretation, application or
measures si~bniitted by the Federal Republic of fulfilment of the Convention shall be submitted to the
Yugoslaviaon 29 April 1999; International Court of Justice. In a supplement to its
IN FAVOUR: President Schwebel; Judges Oda, Application submitted to the Court on 12 May 1999,
Bedjaoui, Guillaume, Ranjeva. Herczegh,Fyleischhauer, Yugoslaviainvoked,as an additionalground ofjurisdiction,
Koroiiia, Higgiiis,Parra-Aranguren, Kooijmans; Judge
Article 4 of the Convention of Conciliation, Judicial
ad liocDuinslaeger; Settlement and Arbitration between Belgium and the
AGAINST: Vice-President Weeramanlry, Acting Kingdom of Yugoslavia, signed at Belgrade on 25 March
President; Judges Shi, Vereslichetin; Judge ad hoc 1930.
Kreca;

(2)By fifteenvotes to one,
Reserves the subsequent procedure for further In its Order,the Court first eiiipliasizes that itis "dceply
decision. concerned with the hunian tragedy, the lossof life, and the
IN FAVOUR: Vice-President Weeramarltry,Acting enormoussufferingin Kosovo whichform the background"
President: President Schwebel; Judges Bedjaoui,
of the dispute and "with the continuing loss of life and
Guillarrme, Ra~~jeva, Herczegh, Shi, Fleischhauer, humansufferingin aHparts of Yugoslavia".It declaresitself
Koroii~a, Vereshchetin, Higgins, Parra-Aranguren, "profoundly concerned with the useof force in Yugoslavia",
Kooijmans;Judges ad lioc Kreca,Duinslaeger; which "under the present circumstances ... raises very
AGAINST:JudgeOcia." serious issues of international law". While being "mindful
of thepurposes and principlesof the UnitedNations Charter
and of its own responsibilities in the maintenanceof peace
and security under the Charter and [its] Statute", the Court

Judge Koroma appended a declaration to the Court's "deems it necessary to emphasize that all parties before it
Order. Judges Oda, Hlrggins, Parra-Aranguren and must act in conformity with their obligations under the
United Nations Charter and other rules of international law,
Kooijinans appended separate opinions. Vice-president including humanitarianlaw".
Weeramaatiy. Acting F'resident, Judges Shi and The Court thenpoints out that it "does notautomatically
Vereshchetin, and Judge ad hoc Kreca appendeddissenting have jurisdiction over legal disputes between States" and
opinions.
that "one of the fundatner~talprinciples of its Statute is thatit cannot decide a dispute between States without the Yugoslav national group as such. For its part, Belgium,

consent of those States to itsjurisdiction". It cannot indicate referring to the definition of genocide contained in the
provisional measures without its jurisdiction in the case Conv~:ntioti,emphasizes the importance of "the intentional
beingestablished prima facie. element, the intent to destroy all or part of an ethnic, racial
Concerning the first basis of jurisdiction invoked, the or religious [group]". It asserts that Yugoslavia cannot
Court observes that under the terms of its declaration, "produce the slightest evidence of such intention" on the
Yugoslavia limits its acceptancc of the Court's cotnpulsory part of Belgium in this case. It appears to the Court that,
according to the Convention, the essential characteristic of
jurisdiction to "disputes arising orhich may arise after the
signature of the present Declaration, with regard to the genocide is the intended destruction of a national, ethnical,
situations or facts subsequent to this signature". It racial or religious group; the Court further states that "the
emphasizes that although Belgiuiii did not base any threat or use of force against a State cannot in itself
argument on this provision, the Court must consider what constitute an act of genocide within the meaning of Article
effects it might have priniafacieupoilitsjurisdiction. In this I1of the GenocideConvention".It adds that in its opinion,it
does not appear at the present stage of the proceedings that
regard, the Court states, it is sufficientto decide whether the the bombings which form the sub-ject of the Yugoslav
dispute brought to the Court "arose" beforeor after 25 April
1999,tlie date on which the declaration was signed. It finds Application "indeed entail the element of intent, towards a
that the bombings began on 24 March 1999 and have been group as such, required by the provision" mentionedabove.
conducted continuously over a period extending beyond 25 The C.'ourtonsiders therefore that it is not in a position to
April 1999. The Court has thus no doubt that a "legal find, at this stage of the proceedings, that the acts imputed
dispute ...'arose' between Yugoslaviaand [Belgium], as it by Yugoslavia to Belgiurllare capable of comingwithin the
provisions of the Genocide Convention; and Article IX
did also with the other NATO member States, well before
25 April 1999". The Court concludes that the declarations cannot accordingly constitute a basis on which the
made by the Parties do not constitute a basis on which the jurisdiction of the Court couldprima faciebe founded in the
jurisdiction of the Court could primafaciebe founded in the case.
case. As to Article 4 of the Convention of Conciliation,
As to Belgium's argument that Yugoslavia is not a Judicial Settlement and Arbitration between Belgium and
the Kingdom of Yugoslavia, the Court observes that "the
member State of the United Nations in view of United
Nations General Assembly resolution 4711 (1992). nor in invocation by a party of a new basis of jurisdiction in the
consequence a party to the Statute of the Court, so that second round of oral argument on a request for the
Yugoslavia cannot subscribe to the optional clause of indication of provisional measures has never before
compulsoryjurisdiction, the Court maintainsthat it need not occurred in the Court's practice", that "such action at this
coiisider this question, taking into account its finding that late stage, when not accepted by the other party, seriously
the declarationsdo not constitutea basisofjurisdiction. jeopardizes the principle of procedural fairness and the
soundadministrationofjustice" and thatin consequencethe
Concerning Article IX of the Genocide Convention, the
Court states that it is not disputed that bothYugoslavia and Court cannot take into consideration this new title of
Belgium are parties to that Convention,without reservation, jurisdiction.
and thatArticle IX accordinglyappears to constitute a basis The Court having found that it has "no prima facie
on which the jurisdiction of the Court might be founded. jurisdiction to entertain Yugoslavia's Application, either on
tlie basis of Article36, paragraph 2, of the Statute or of
The Court however finds that it must ascertain whether the
breaches of the Convention alleged by Yugoslavia are Article JX of the Genocide Convention" and having"taken
capable of falling within the provisions of that instrument the view that it cannot, at this stage of the proceedings,take
and whether, as a consequence, the dispute is one over account of the additional basis of jurisdiction invoked by
which theCourtmighthavejurisdiction I-cltionemotericleIn Yugor;lavia",it follows that the Court "cannot indicate any
its Application,Yugoslavia contends that the subject of the provisional measure whatsoever". However, the findings
dispute concerns inter alia "acts of the Kingdomof Belgium reached by the Court "in no way prejudge the question of
the jurisdiction of the Court to deal with the merits of the
by which it has violated its internationalobligation..not to
deliberately inflict conditions of life calculated to cause the case" and they "leave unaffected the right of the
physical destruction of a national group". It contends that Governments of Yugoslavia and Belgium to submit
the sustained and intensive bombing of the whole of its arguments in respectof those questions".
territory, including the most heavily populated areas, The Court finally observes that "there is a fundamental
constitutes"a seriousviolation of Article I1of the Genocide distinctionbetweenthe questionof the acceptanceby a State

Convention", that it is the Yugoslav nation as a whole and of the Court's jurisdictionand the compatibilityof particular
as such that is targeted and that the use of certain weapons acts with international law". "The former requires consent;
whose long-tenii hazards to health and the environmentare the latterquestion can only be reached when the Court deals
already known, and the destruction of the largest part of the with the merits after having established its jurisdiction and
country's power supply system, with catastrophic having heard full legal arguments by both parties." It
consequelices of which the Respondent must be aware, emphasizes that "whether or not States accept the
"iinpl[yJ tlie intent to destroy. in whole or in part". the jurisdiction of the Court, they remain in ally eventresportsible for acts attributable to them that violate Judge Oda considers that the Federal Republic of
intern;itionallaw, includingkmn~anitarian law" artdthat "any Yugoslavia is not a Member of the United Nations and thus
disputes relating to the legality of such acts are required to not a party to the Statute of the Iilternational Court of
be resolved by peaceful means, the choice of which, Justice. The Applicationspresented by the Federal Republic
pursusmtto Article 33 of the:Charter, is left to the parties". of Yugoslavia should therefore be declared inadinissiblefor

In this context, "thearties s:tlouldtake care not to aggravate this reason alone and should be removed ftom the General
or extend the dispi~te".The Court reaffim~sthat "when such List of the Court.
a dispute gives rise to a threat to the peace, breach of the He nevertheless then goes on to discuss whether, if the
peace or act of aggression, the Security Council has special Federal Republic of Yugoslavia were to be considered a
responsibilitiesunder Chapte:rVII of the Charter". party to the Statute, it could have brought the present

Applicationson the basis of certain legalinstruincnts.Af er
Declai.ation ofJudge Kolama having examined the meaning of (i) the optional clause of
the Court's Statute, (ii) the background to the 1930 and
In his declaration Judge Koroma observed that these 1931 instrumeilts with Belgium and the Netherlands,
were perhaps the most serious cases that have ever come respectively, and (iii) the 1948 Genocide Convention. he
before:the Court for provisional measures. He stated that reaches the conclusion that none of these instiuments grant
jurisp~udentially such measures were designed to prevent the Courtjurisdiction in anyof the ten Applications.
violence, the use of force, to safeguard internationalpeace
and st:curity as well as serving as an important part of the Judge Oda agrees with the Court that, as it has no basis
dispute settlement process vmderthe Charter of the United of jurisdiction, it must reject therequests for the indication
of provisional measures in all ten cases. However. he
Nations. In his view the indication of such measures considers that, the Court having decided that it has no
therefore represents one of the nost important junctions of jurisdiction to entertain the cases, not evenprima facie, that
the Court.
But the granting of such a relief, he stressed, could only this can only mean that it has no jurisdiction whatsoever in
be done in accordance with the Stah~teof the Court. In this any of the cases. It follows, in Judge Oda's view, that not
only in the cases of Spain and the United States, in which
regard, and in the light of .thejurisprudence of the Court, the Court states that it manifestly lacksjurisdiction, but in
where prima facie jurisdiction is absent or other all the other cases, the Applications should be dismissed at
circumstances predominate, the Court will not grant the this stage, given that the Court has found that there is not
request forprovisionalmeasures. even aprima faciebasis ofjurisdiction.
Nevertheless, he considered the Court, being the
principal judicial organ of the United Nations, whose Judge Oda also points out that, while the Courtmakes a
distinctionbetween the Applications, even though they deal
primary raison d'2tre remains the preservation of virtually with the saine subject matter, this distinction,
internatioilal peace and security, to be under a positive which came about simply because of the different positions
obligation to contribute to the maintenance of international which individual States happened to take towards the
peace and security and to provide a judicial framework for
the resolution of a legal conflict, especially one which not various instruments that are to be applied concerning the
only threatens international peace and security but also Court's jurisdiction,will leadto differingresults concerning
involves enormous human suffering and continuing loss of the future proceedings in each of the cases. In Judge Oda's
view this is an illogical situation, which supports his
life. He had thereforejoined with the other Members of the contentioil that all ten cases should be dismissed in their
Court in calling for the peaceful resolution of !:hisconflict entiretyat this stage.
pursuant to Article 33 of -theCharter, and in urging the
Parties not to aggravateor extend the dispute and to respect
international law, including humanitarian law and the
huinanrights of all the citize:sf Yugoslavia. Judge Higgins in her separate opinions addresses two

issues that arise in relation to those cases where the Federal
Separcrteopii~ioirofJnldgeOda Republic of Yugoslavia claims jurisdiction on the basis of
Article 36, paragraph 2, of the Statute. The first issue
Ju.dge Oda supports the decision of the Court in concerns temporal liinitatioils to so-called "optional
dismissing the requests for the indication of provisional clauses", andin particular the question of when a dispute
measures by the FederalRej?ublicof Yugoslaviaagainst ten arises and when the relevant events have occurred. These
respondent States.While favouringthe decision of the Court concepts are analysed inconnectionwith Yugoslavia's own
to remove the case from the GeneralList of the Courtin the
cases of Spain and the United States, Judge Oda voted declaration. The second issue addresses the question of
against the decision in the other eight cases in which the exactly what has to be shown for the Court to be satisfied it
has prima facie jurisdiction when it is considering the
Courf ordered that it "[r]eserves the subsequent procedure indicationof provisionalmeasures.It is suggestedthat some
for firrther decision", because hebelieves that those eight jurisdictional issues are so complex that they cannot be
cases should also be ren~ovedat this stage from the General addressed at all at this phase; their holding over for later
List of the Court.
phase does not stand in the way of the Court determiningwhether or not it has prima facie jurisdiction for the jurisdiction of the Court, there is no need for a separate
opinion in those cases.
purposes of Article 41.
2. Article 36, paragraph 2, of the Statute explicitly
Separute opinion of Judge Pcrrra-Aranguren states that only States which are party to the Statute can
recognize the compulsory jurisdiction of the Court by
Judge Parra-Arangurenrecalls that Yugoslaviamaintains depositing a declaration of acceptance with the Secretary-
that "the bombing of Yugoslav populated areas constitute a General of the United Nations. Member States of that
breach of Article I1 of the Genocide Convention", a organization are eo ipso party to the Statute. All six
contention denied by the Respondent; that a legal dispute
exists between the Parties because of the existence of "a Respondents contended, that since the Federal Republic of
situation in which the two sides hold clearly opposite views Yugoslavia is not a Member of the United Nations, its
declarationof acceptancehas not beenvalidlymade.
concerning the question of the performance or non- 3. On 22 September 1992the GeneralAssembly, on the
performance of certain treaty obligations", as the Court recornmendation of the Security Council, decided that the
stated in its decision of 11 July 1996 (Applicatioirof the Federal Republic of Yugoslavia cannot continue
Conventionon thePre~~entioiazid Ptlitishmentof the Crime
of Geilocide (BosniaundHerzegovina v. Yugoslcivia),I.C.J. automatically the membership of the former Socialist
Reports 1996 (10 p,. 614-615,para. 29); and that according Federal Republic of Yugoslavia andtherefore that it should
to Article IX of the Genocide Convention, "disputes apply for membership in the UnitedNations. Until that time
betweenthe ContractingParties relating to the interpretation it shall not participate in the work of the General Assembly
(res. 4711). The Federal Republic of Yugoslavia never
or fulfilment of the present Convention" shall be submitted appliedfor membership.
to the International Court of Justice. Therefore, in his
opinion the Court has prima facie jurisdiction to decide 4. In its present Orders the Court avoids the questionof
upon the provisionalmeasuresrequestedby Yugoslavia. the contested validity of Yugoslavia's declaration.It takes
Yugoslavia requested the Court to indicate that the the position that it need not consider this issue since the
declaration cannot provide the Court witha basis forpriina
Respondent"shall cease immediatelythe acts of use of force faciejurisdiction on othergrounds.
and shall refrain from any act of threat or use of force 5. Judge Kooijmans is of the view that the Court's
against the Federal Republic of Yugoslavia". However, the
threat or use of force against a State cannot in itself reasordng in this respect is inconsistent.Such other grounds
constitute an act of genocide within the meaning of the only become relevant if the validity of the declarati-n at
Genocide Convention. Consequently, Yugoslavia is least for the present stage of the proceedings is accepted.
requestingthe indicationof provisionalmeasuresthat do not The Court's reasoning isbased on a presumption of validity
aim to guarantee its rights under the Genocide Convention, and the Court should have said so and have given its
argumentsfor it.
i.e., the right not to suffer acts which may be characterized
as genocide crimes by the Convention. Therefore, in the 6. According to Judge Kooijmans there certainly was
opinion of Judge Parra-Aranguren, the measures requested no need for the Court to take a definitive stand on
by Yugoslaviashouldnot be indicated. Yugoslavia'sniembersliipof the UnitedNations. He is fully
aware that resolution 4711 is unprecedented and raises a
Separczteopinion of Judge Kooijnluns number of highly complex legal questions, which require a
thorough analysis and careful evaluation by the Court at a
1. Judge Kooijmans joined a separate opinion to the later stageof the proceedings.
Order of the Court in the cases of Yugoslavia versus
Belgium, Canada, the Netherlands, Portugal, Spain and the Difficult though the question may be, the relevant
decisions have been taken by the organs of the United
United Kingdom, respectively. Nations which have exclusive authority in matters of
He does not agree with the Court's view that membership (Security Council and General Assembly) and
Yugoslavia's declaration of acceptance of the compulsory they cannotbe overlookedor ignored.
jurisdiction of the Court of 25 April 1999cannot provide a
basis of jurisdiction in the present case, even prima facie, 7. According to Judge Kooijmans the doubts, raised by
because of the reservations incorporated in the declarations the decisions of the competent United Nations bodies with
regard to Yugoslavia's membershipand the ensuingvalidity
of Spain and the United Kingdom, cq. because of the of its declaration, are, however, so serious that the Court
temporal limitation contained in Yugoslavia's declaration should have concluded that this declaration cannot provide
(cases against Belgium, Canada, the Netherlands and it with a basis for prima faciejurisdiction. The Court should
Portugal). He is of the view that the Court lacks prima facie not indicate provisional measures unless its competence to
jurisdiction because of the controversial validity of
Yugoslavia's declaration. This validity issue constitutes a entertain the dispute appears to be reusoncrblvpivbable and
preliminary issue and should, therefore, have been dealt this test of reasonable probability cannot be passed because
of the doubtfulvalidity of the declaration.
with bythe Court as a thresholdquestion. 8. If that is the case, issues like reservations and
Since this issue is of no relevance in the four other casestemporal limitationson whichthe cases were decidedby the
(against France, Germany, Italy and the United States) as Court, become irrelevant since they are wholly conditioned
these States themselves do not recognize the compulsory
by the prelilninaryquestionof the declaration's validity. Disseiltirzy opirzionof P7ce-Presideiif Weernnianfry sides, and assisting in promoting negotiation and settlement
between theParties.
Vice-President Weeramantry in his dissenting opinion
takes the view thatthe Court has prima faciejurisdiction in
this c.aseand that provisional ineasures shoulclhave been Disseratingopinion ofJllrlge Shi
issuetl against both Parties. Lives are being lost daily and In the four cases of Yugoslavia against Belgium,
vast numbers of people includingwomen, children,the aged
Canada, the Netherlands and Portugal, Judge Shi disagrees
and the infinn are continuo-uslyexposed to physical danger with the Court's findings that,given the liinitation ratiorze
and suffering, and important issues of law are involved, temporis contained in Yugoslavia's declaration of
whicli go to the fundamentals of the international rule of acceptance of compulsory jurisdiction, the Court lacked
law, the peaceful resolution of disputes and the Cliarter prima faciejurisdiction underArticle 36, paragraph2, of the
provisionsrelating to tlieprohibitionof the use of force. Statute for the indicationof provisional measures requested
If the Court haspriilla faciejurisdiction it is eplinentlya
by Yugoslavia.
case in which provisionalmeasures should havebeen issued By that declaration, signed on 25 April 1999,
on bothParties. Yugoslavia recognized con~pulsory jurisdiction "in all
He disagreed with the Court's reasoning that the acts disputesarisingor which mayarise after the signatureof the
complained of relate back to 24 March the date when the present Declaration, with regard to the situations or facts
bombing comnlenced and that therefore there was a lack of subsequentto this signature ..."In cases where the Court is

prima facie jurisdiction as the operative date specified in confrontedwith such a "double exclusionformula", it has to
Yugoslavia's declaration vlras25 April. In his view the ascertain both the date of the dispute and the situations or
claims of Yugoslavia became legal claims only when the factswith regardto which the disputehas arisen.
acts complained of were pe.rformedand not when the entire As tothe first aspectof the time condition,the Courthas
bombing campaign was planned. He bases this view on the to determinewhat is the subjectmatter of the dispute,which
princ.iplesusually applied in determiningwhen ;legalclaim
arises. The claims of Yugoslavia thus arose after the date in the present cases consists of a number of constituent
elements. The section "Subject of the Dispute" in eachof
specified in Yugoslavia's declaration (25April) and not on Yugoslavia's Applicationsindicatesthat subject matterto be
the date when the bombirig commenced (24 March). The acts of the Respondent by which it has violated its
Court therefore does have 11rimafaciejurisdiction over the international obligations not to use force against another
case. State,not to intervenein the internal affairsof anotherState,
He disagreedwith thecontentionthat theinvolvementof not to violate the sovereigntyof another State,to protect the

a political element rendered the matter unsuitable for the civilian population and civilian objccts in wartime, to
issue ofprovisioilaln1easurt:s. protectthe environment,etc.
The Couit perfonns a role comple~nentaiyto that of Prior to the coming into existence of all the constituent
other United Nations organs in the maintenance of peace elements, the dispute cannot be said to arise. Though the
and t:hepeaceful settleillentof disputes. It is also the role of aerial bombing of the territory of Yugoslavia began some

the Clourtto facilitate negotiations between the:Parties and weeks beforethe critical date of signatureof the declaration,
to assist them towards the peaceful settleillent of disputes. aerial bombing and its effects as such do not constitute a
Interim ineasures containing such provisions would have dispute. It is true that prior to the critical date, Yugoslavia
served a useful purpose. There is ample suppor: for such an had accused NATO of illegal use of force against it. This
approach in the jurisprudetlce of the Court as well as in the complaint constitutes at the most one of the many
inherentpowers of the Court. constituent elements of the dispute. Besides, NATO cannot
be identified with, nor be the Respondent in the present
A. precondition to the issue of interim illeasures would
be that the Applicant shouildimmediately cease from any cases ratioiiepersonae. The dispute only arose at the date
violencetowardsthe people.of Kosovoand that the return of subsequentto the signatureof the declaration.
refugees and other displaced persons should t)e facilitated Regarding the second aspect of the time condition, the
under international safeguards. The provisional measures dispute relates to the alleged breach of various international
should also have called for the immediate cessation of the obligationsby acts of force, in the fonn of aerialbombingof
use of force against Yugoslavia. These requirements are
the territories of Yugoslavia, which are attributed by the
interlinked. Applicant to the respondent State. It is obvious that the
The Court is heir to the judicial traditions of the allegedbreach of obligationsby such a "continuing"act first
principal formsof civilizationand the peaceful :settlementof occurred at the Inoinent when the act began, weeks before
disputes is a strong tradition in the civilizationsof the East. the critical date. Given that the acts of aerial bombing
For example the peaceful settlement of disputes is deeply continued well beyond the critical date and still continue,
the time of cornmission of the breach extends over the
embedded in the Buddhist tradition. The Court's
jurisprudence could be enriched by this perspective, which whole period during which the acts continue and ends only
would also have given it support in tlie issue of provisional whenthe acts of the respondentState cease.
measures with a view to restrainingthe use of force on both The conclusionmay bedrawn that the limitationrrrtione
temporis contained in Yugoslavia's declarationin no wayconstitutes a bar to founding prima facie jurisdiction upon obse~vanceof "the principle of procedural fairness and the

Article 36, paragraph 2, of the Statute for the purpose of sound administrationofjustice" cannot be stretchedto such
indicatingprovisionalmeasuresin the present case. an extent as to exclude a priori the additional basis of
Moreover, for reasons similar to those expressed in the jurisdiction from its considcration? solely because the
declarationsrelating to the other six cases,Judge Shiregrets respondent States have not been given adequate time to
that the Court, being confronted with a situation of great prepare their counter-arguments. Admittedly, it cannot be
considered no~mal for a new basis of jurisdiction to be
urgency, failedto make a general statementappealingto the
Parties to act in compliancewith their obligationsunder the invok:edin the second round of the hearings. However, the
United NationsCharter and all the rules of internationallaw respondent States were given the possibility of presenting
relevant to the situation, and at least not to aggravate or their counter-arguments to the Court, and they used this
extend their disputes immediately upon receipt of possibility to inake various observations and objections to
Yugoslavia's request and regardless of what might be the the new basis of jurisdiction. If necessary, they could have
Court's conclusionon priina facie jurisdiction pending its asked. for the prolongation of the hearings. In turn, the
Applicant inay reasonably claim that the belated invocation
final decision. The Court also failed to make use of Article
75, paragraph 1,of the Rules of Court to decide the requests of the new titles of jurisdiction was caused by the
proprio motu,despiteYugoslaviahavingso asked. extraordinary situation in Yugoslavia, in which the
For these reasons, Judge Shi felt compelled to vote preparation of the Applications had been carried out under
againstoperativeparagraph(1) of the four Orders. conditionsof daily aerialbombardmentby the Respondents.
The refusal of the majority to take intonsideratioilthe

Disseiztiizg opinioiz of Judge Veresltchetin new bases of jurisdictioil is clearly contrary to Article 38 of
the Rules of Court and to the Court's jurisprudence. The
Judge Vereshchetin begins his dissenting opinion with a refusal to have due regard to the intentionof a Stateking
general statement,attached to all the Orders of the Court, in a declarationof acceptanceof the Court's jurisdiction is also
which he holds that the extraordinary and unprecedented incon~patible with the Court's case-law and with the
circumstancesof the cases before the Court imposed onit a custo~naryrules for interpreting legal instruments. In the
need to act promptly and, if necessary,propi-io iirotu.After view of Judge Vereshchetin, all the requirements for the
that. heproceeds to explain why he has no doubt that prima
indication of provisional measures, flowing from Article 41
facie jurisdiction under Article 36, paragraph 2, of the of the Court's Statute and from its well-established
Statute of the Court exists with regard to the Applications jurisprudence, have been met, and the Court should
instituted against Belgium, Canada, the Netherlands and undoubtedly have indicated such measures so far as the
Portugal. As far as Belgium and the Netherlands are above four Statesare concerned.
concerned, the Court also has prima faciejurisdiction under
the Agreementssigned betweenBelgiumand Yugoslaviaon
25 March 1930 and between the Netherlands and Disseiztiizg opiniorzof Judge Kiaca
In his dissenting opinion Judge Kreca points out the
Yugoslaviaon 11March 1931.
Judge Vereshchetin disagrees with two cornerstone followingrelevant issues:
propositions on which, in his opinion. rest the arguments to Judge Kreca finds that noneof the equalizationfunctions
the contrary upheld in the Orders of the Court. The first of the institution of judge ad hoc have been inet in this
proposition is that the text of the Yugoslav declaration particular case. The letter and spirit of Art31,paragraph
2, of the Statute of the Court, applied to this particular case,
accepting thejurisdiction of the Court, and in particular the
wording of the reservation containedtherein, does not grant imply the right of Yugoslavia, as the applicant State, to
prima faciejurisdiction to the Court.The secondproposition choose as many judges ad hoc to sit on the Bench as is
is that the timing of the presentation by Yugoslavia of the necessary to equalizethe position of applicant State and that
additional bases forjurisdiction does not allow the Court to of the respondeilt States which have judges of their
conclude that it has prima faciejurisdiction in respect of the nationality on the Bench and whichshare the same interest.
cases institutedagainstBelgiumand theNetherlands. In cortcreto, the inherent right to equalization in the
composition of the Bench, as an expression of a
As concerns the first proposition, Judge Vereshchetin
takes the view that the Court, by refiising to take into fundamental rule of equality of parties, means that the
account the clear intention of Yugoslavia, reads its Federal Republic of Yugoslavia should have the right to
declarationin a way that could leadto the absurdconclusion choose five judges ad hoc. since even five out of ten
that Yugoslavia intended by its declaration of acceptance of respondent States (United States, the United Kingdom,
France, Germany, and the Netherlands) have their national
the Court's jurisdiction to exclude the jurisdiction of the judges sittingon the Bench.
Court over its Applications instituting proceedings against
the Respondents. At the same tinie, accordingto coherentjurisprudence of
As to the second proposition connected with the the Court, none of the respondent States were entitled to
invocationof additionalgrounds ofjurisdiction inrelation to appoint a judge ad hoc (Territorial Jurisdictio~lof tlze
Iizterim/ion~I Cornntissioizof the River Oder; Clrstonzs
Belgium and the Netherlands, in the opinion of Judge RL,oiniehefivee~G~~lilm~ my~dAllstria).
Vereshchetin, the legitimate concern of the Court over the There is no need to say that the above-mentionedissues conducive to "inflicting on the group conditions of life"
are of up~nost specific weight in view of the fact that bringing about "its physical destruction" (Genocide
obviously thc lnea~lingof such issues is not restricted to the Convention,Article 11).

procedure, but that it inay have a far-reaching concrete Judge Kreca goes on to say that it can be argued that
meaning. such acts are in the function of degrading the military
Judge Kreca tinds that in the recent practice of the capacityof the FederalRepublicof Yugoslavia.But such an
Court. in particular that in which individuals were directly explanation can hardly be regarded as a serious argument.
affected, a high standard of' humanitarian concern in the For the spiralof such a line of thinkingmay easily coineto a
proceedings for the indication of interim measures has been point when, having in mind that inilitary power is after all

formecl. a standard which commanded sufficient inherent comprised of people, even mass killing of civilians can be
strength to brush aside soine relevant, both procedural and claimed to constitute soine sort of precautionary measure
materiitl, rules governing the institution of provisional that should prevent the maintenance or, in case of
measures (cxorizpli cnusn, the LnGrnnd case). Thus, mobilization,the increaseof inilitarypower of a State.
hu~nanitarianconsiderations, independently from the norms Judge Kreca also points out tliat, in the incidental
of international law regulating hurnan rights and liberties,
have, in a way, gained autonomous legal significance; they proceedings the Court cannotand should not concern itself
with the definitivequalificationofthe intentto impose upon
have t~:anscendedthe moral and philanthropic sphere, and the group conditions in which the survival of the group is
enteredthe sphereof law. threatened. Having in milid the purpose of provisional
I11the case at hand, it seeinsthat "humanitarian concern" measures, it call be said tliat at this stageof tlieproceedings
has lost tlie acquired autonomous legal position. The fact it is sufficient to establish tliat, in the conditions of
needs to be stressed in view of the special circunlstancesof extensive bombing, there is an objective risk of bringing
this case. Unlike the recent practice of the Court, about conditions in which tlie survival of the group is

"humanitarian concein" has as its objectthe fate of an entire threatened.
nation, in the literal sense. The Federal Republic of Judge Kreca finds that the stance of the Court as regards
Yugoslavia and its national and ethnic groups have been jurisdiction of the Court rntione tenlporis is highly
subjec~:edfor more than two months now to continued questionablefor two basic reasons. Firstly, for reasons of a
attacks of a very strong, highly organized air armada of the general nature to do with thejurisprudence of the Court in
most powerful States of the world. At the same time, the this particular matter, on the one hand, and with the nature
arsenal used in the attacks on Yugoslavia coiltains also
of the proceedings for the indication of provisional
wcaponswhose effectshave 1nolimitationseither in spaceor measures, on the other and, secondly, for reasons of a
in time such as depleted uranium which cause fix-reaching specific nature deriving from circumstances of the case in
and il~eparable dalnage to the health of the whole hand. As far as jurisdiction of the Court is concerned, it
population. seems incontestable that a liberal approach towards the
Juclge Kreca finds that, as regards the membership of temporal element of the Court's jurisdiction in the
Yugoslavia in the United Nations, the Courl remained indication of provisional measures has become apparent. It

consistent with its "avoidan~ce"position, persisting in its is understandable that the proceeding for the indication of
statement tliat it "need not consider this questi.onfor the provisional measures is surely not designed for the purpose
purpose of, deciding whether or not it can indicate of the final and definitive establishment of the jurisdiction
provisional measures in the: present case". But it is the of the Court. The determinant "prima facie" itself implies
profound conviction of Judge Kreca that the Court should that what is involved is not definitely established
have answeredthe questioliwhether the Federal Republicof jurisdiction, but thejurisdiction deriving or supposed to be
Yugoslavia can or cannot, in the light of the content of normally deriving from a relevant legal fact which is

GeiieriilAssembly resolution4711and of the practice of the defined as the "title ofjurisdiction". It couldbe said thatthe
world Organization, be considered to be a Meniber of the "title ofurisdictioa" is sufficient per se to constitute prima
Unitecl Nations and especially party to the Statute of the facie jurisdiction except in the case of the absence of
Court; namely thetext of resolution4711makes :nomention jurisdiction on the tnerits is manifestislzeriesJzrrisdiction
of the status of the Federal Republic of Yugoslavia as a cases).
party to thc Statute of the International Court of Justice. Judge Kreca disagrees with the stance of the Court
Judge Kreca is cqually convinced that, especial.1~because
tlie Court should have answered that question, both the regarding the additional ground of jurisdiction (Article 4 of
the 1930 Treaty), since he finds that three essential
content of the resolution which represents corzi'radictioin conditions necessary to qualify the additional ground as
cmdiectoand in particular the practice of the world admissibleare met inthis particularcase:
Organizationafter its adoption overa period of nearly seven (a) that the Applicant inakes it clear that it intends to
years, offered ample argumentsfor it to pronounce itself on proceed upon thatbasis;
this matter.
(b) that the result of invoking additional grounds is not
Judge Kreca is of tlie opinion that the extensive use of to transform tlie dispute brought before the Courtby the
aniied force, in particular if it is used against objects and Application into another dispute which is different in
nieans constituting conditions of nonnal life, can be character;and (c)that additional grounds afford a basis on which the additional grounds of jurisdiction were declared
jurisdiction of the Court to entertain the Application might "inadmissible", the Court could not have ignored the fact
be prima facie established. that the Treaty exists. In that case, the Court could have
~t the sametime he points out that even if the document differentiatedbetween the document as such and the Treaty
in which the Applicant pointed to the Treaty of 1930 as of 1930,Per% as abasis ofjurisdiction.