INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
2004/8 Summary
2004 December 15
Case concerning Legality of Use of Force (Serbia and Montenegro v. Netherlands)
Summary of the Judgment of 15 December 2004
History of the proceedings and submissions of the Parties (paras. 1-23)
On 29April1999 the Government of the Federa l Republic of Yugoslavia (with effect from
4February2003, “Serbia and Montenegro”) filed
instituting proceedings against the Kingdom of the Netherlands (hereinafter “the Netherlands”) in
respect of a dispute concerning acts allegedly committed by the Netherlands
“by which it has violated its international obligation banning the use of force against
another State, the obligation not to intervene in the internal affairs of another State, the
obligation not to violate the sovereignty of another State, the obligation to protect the
civilian population and civilian objects in
environment, the obligation relating to
obligation regarding fundamental human rights and freedoms, the obligation not to use
prohibited weapons, the obligation not to
calculated to cause the physical destruction of a national group”.
The Application invoked as a basis of the Court’
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 Na
(hereinafter “the Genocide Convention”).
On 29April1999, immediately after filing
Yugoslavia also submitted a request for the indication of provisional measures pursuant to
Article 73 of the Rules of Court.
On the same day, the Federal Republic of
proceedings and submitted requests for the indication of provisional measures, in respect of other
disputes arising out of the same facts, against the Kingdom of Belgium, Canada, the French
Republic, the Federal Republic of Germany, the Italian Republic, the Portuguese Republic, the
Kingdom of Spain, the United Kingdom of Great Britain and Northern Ireland and the
United States of America.
Since the Court included upon the Bench no judge of Yugoslav nationality the Yugoslav
Government exercised its right under Article31 of the Statute and chose Mr. MilenkoKre ća to sit
as judge ad hoc in the case. - 2 -
By letter of 12May1999 the Agent of the Federal Republic of Yugoslavia submitted a
“Supplement to the Application”, invoking as a furt her basis for the Court’s jurisdiction “Article 4
of the Treaty of Judicial Settlement, Arbitr ation and Conciliation between the Kingdom of
Yugoslavia and the Netherlands, signed in The Hague on 11March1931 and in force since
2 April 1932”.
By ten Orders dated 2 June 1999 the Court, after hearing the Parties, rejected the request for
the indication of provisional measures in all of the cases, and further decided to remove from the
List the cases against Spain and the United States of America.
On 5July2000, within the time–limit fixed for the filing of its Counter-Memorial, the
Netherlands, referring to Article 79, paragraph1, of the Rules, submitted preliminary objections
relating to the Court’s jurisdiction to entertain the case and to the admissibility of the Application.
Accordingly, the proceedings on the merits were suspended.
On 20 December 2002, within the prescribed time-limit as twice extended by the Court at the
request of the Federal Republic of Yugoslav ia, the latter filed a written statement of its
observations and submissions on those preliminary objections (hereinafter referred to as its
“Observations”), together with identical written statements in the seven other pending cases.
Pursuant to Article24, paragraph1, of the Statute, on 25November2003 JudgeSimma
informed the President that he considered that he should not take part in any of the cases.
At a meeting held by the President of the Court on 12December2003 with the
representatives of the Parties in the eight cases concerning Legality of Use of Force , the questions
of the presence on the Bench of judges ad hoc during the preliminary objections phase and of a
possible joinder of the proceedings were discussed, among other issues. By letter of
23 December 2003 the Registrar informed the Agents of all the Parties that the Court had decided,
pursuant to Article31, paragraph5, of the Statute, that, taking into account the presence upon the
Bench of judges of British, Dutch and French nationality, the judges ad hoc chosen by the
respondent States should not sit during the current phase of the procedure in these cases. The
Agents were also informed that the Court had decided that a joinder of the proceedings would not
be appropriate at that stage.
Public sittings in all the cases were held between 19 and 23 April 2004.
After setting out the Parties’ claims in th eir written pleadings (which are not reproduced
here), the Judgment recalls that, at the oral proceedings, the following final submissions were
presented by the Parties:
On behalf of the Dutch Government,
at the hearing of 22 April 2004:
“May it please the Court to adjudge and declare that:
⎯ the Court has no jurisdiction or should decline to exercise jurisdiction as the
parties in fact agree that the Court has no jurisdiction or as there is no longer a
dispute between the parties on the jurisdiction of the Court.
Alternatively,
⎯ Serbia and Montenegro is not entitled to appear before the Court; - 3 -
⎯ the Court has no jurisdiction over the cl aims brought against the Netherlands by
Serbia and Montenegro; and/or
⎯ the claims brought against the Netherlands by Serbia and Montenegro are
inadmissible.”
On behalf of the Government of Serbia and Montenegro
at the hearing of 23 April 2004:
“For the reasons given in its pleadi ngs, and in particular in its Written
Observations, subsequent correspondence with the Court, and at the oral hearing,
Serbia and Montenegro requests the Court:
⎯ to adjudge and declare on its jurisdiction ratione personae in the present cases;
and
⎯ to dismiss the remaining preliminary objections of the respondent States, and to
order proceedings on the merits if it finds it has jurisdiction ratione personae.”
Before proceeding to its reasoning, the Court includes a paragraph (para.24) dealing with
the Applicant’s change of name on 4February20 03 from “Federal Republic of Yugoslavia” to
“Serbia and Montenegro”. It explains that, as far as possible, except where the term in a historical
context might cause confusion, it will use the name “Serbia and Montenegro”, even where
reference is made to a procedural step taken before the change.
Dismissal of the case in limine litis (paras. 25-43)
The Court begins by observing that it must first deal with a preliminary question that has
been raised in each of the cases, namely the co ntention, presented in various forms by the eight
respondent States, that, as a result of the changed attitude of the Applicant to the question of the
Court’s jurisdiction as expressed in its Observatio ns, the Court is no longer required to rule on
those objections to jurisdiction, but can simply dismiss the cases in limine litis and remove them
from its List, without enquiring further into matters of jurisdiction.
The Court then examines a number of arguments advanced by different Respondents as
possible legal grounds that would lead the Cour t to take this course, including, inter alia : (i) that
the position of Serbia and Montenegro is to be treated as one that in effect results in a
discontinuance of the proceedings or that the Court should ex officio put an end to the case in the
interests of the proper administration of justice; (ii) that there is agreement between the Parties on
a “question of jurisdiction that is determinative of the case”, and that as a result there is now no
“dispute as to whether the Court has jurisdiction” ; (iii) that the substantive dispute under the
Genocide Convention has disappeared and thus the whole dispute has disappeared in those cases in
which the only ground of jurisdiction relied on is Ar ticle IX of that Convention; (iv)that Serbia
and Montenegro, by its conduct, has forfeited or renounced its right of action in the present case
and is now estopped from pursuing the proceedings.
The Court finds itself unable to uphold the various contentions of the Respondents. The
Court considers that it is unable to treat the Observations of Serb ia and Montenegro as having the
legal effect of a discontinuance of the proceedings under Article 88 or 89 of the Rules of Court 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 has not - 4 -
invited the Court to find that it has no jurisdiction; while it is apparently in agreement with the
arguments advanced by the Respondents in that regard in their preliminary objections, it has
specifically asked in its submissions for a decision of the Court on the jurisdictional question. This
question, in the view of the Court, is a legal question independent of the views of the parties upon
it. As to the argument concerning the disappeara nce of the substantive dispute, 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 ArticleIX of the Genocide
Convention. It is equally clear that these claims are being vigorously denied by the Respondents.
It could not even be said under these circumstances that, while the essential dispute still subsists,
Serbia and Montenegro is no longer seeking to have its claim determined by the Court. Serbia and
Montenegro has not sought a discontinuance and has stated that it “wants the Court to continue the
case and to decide upon its jurisdiction ⎯ and to decide on the merits as well, if it has jurisdiction”.
The Court therefore finds itself unable to conclude that Serbia and Montenegro has renounced any
of its substantive or procedural rights, or has taken the position that the dispute between the Parties
has ceased to exist. As for the argument based on the doctrine of estoppel, the Court does not
consider that Serbia and Montenegro, by asking the Court “to decide on its jurisdiction” on the
basis of certain alleged “new facts” about its ow n legal status vis-à-vis the United Nations, should
be held to have forfeited or renounced its right of action and to be estopped from continuing the
present action before the Court.
For all these reasons, the Court concludes that it cannot remove the cases concerning
Legality of Use of Force from the List, or take any decision pu tting an end to those cases in limine
litis. In the present phase of the proceedings, it must proceed to examine the question of its
jurisdiction to entertain the case.
Serbia and Montenegro’s access to the Court und er Article35, paragraph1, of the Statute
(paras. 44-90)
The Court recalls that the Application filed on 29April1999 stated that “[t]he Government
of the Federal Republic of Yugoslavia invokes Ar ticle36, paragraph2, of the Statute of the
International Court of Justice as well as ArticleIX of the Convention on the Prevention and
Punishment of the Crime of Genocide”. The Court further recalls that Serbia and Montenegro
claims as an additional basis of jurisdiction “A rticle4 of the Treaty of Judicial Settlement,
Arbitration and Conciliation between the Kingdom of Yugoslavia and the Netherlands, signed in
The Hague on 11 March 1931 and in force since 2 April 1932”.
The Court notes that in its jurisprudence it ha s referred to “its freedom to select the ground
upon which it will base its judgm ent”, and that, when its jurisdiction is challenged on diverse
grounds, it is free to base its decision on one or more grounds of its own choosing, in particular
“the ground which in its judgment is more direct and conclusive”. However, in those instances, the
Parties to the cases before the Court were, without doubt, parties to the Statute of the Court and the
Court was thus open to them under Article35, para graph1, of the Statute. The Court points out
that this is not the case in the present proceeding s, in which an objection has been made regarding
the right of the Applicant to have access to the C ourt. And it is this issue of access to the Court
which distinguishes the present case from those cited in the jurisprudence concerned.
The Court observes that the question whether Serbia and Montenegro was or was not a party
to the Statute of the Court at the time of the in stitution of the present pro ceedings is fundamental;
for if it were not such a party, the Court would not be open to it under Article 35, paragraph 1, of
the Statute. In that situation, subject to any ap plication of paragraph2 of that Article, Serbia and
Montenegro could not have properly seised the Co urt, whatever title of jurisdiction it might have
invoked, for the simple reason that it did not have the right to appear before the Court. Hence, the
Court must first examine the question whether the Applicant meets the conditions laid down in - 5 -
Articles34 and35 of the Statute for access to the Cour t. Only if the answer to that question is in
the affirmative, will the Court have to deal with the issues relating to the conditions laid down in
Articles 36 and 37 of the Statute.
The Court notes in this respect that there is no doubt that Serbia and Montenegro is a State
for the purpose of Article 34, paragraph1, of th e Statute. However, ce rtain Respondents objected
that, at the time of the filing of its Application on 29April1999, that State did not meet the
conditions set down in Article 35 of the Statute.
Thus the Netherlands argued that “the FRY is not entitled to appear before the Court” and
asserted, inter alia, that
“the FRY as one of the successor States of the former SFRY is at present not a
member of the United Nations and is ther efore not a party to the Statute of the
International Court of Justice by virtue of Article 93, paragraph 1, of the UN Charter”
(Preliminary Objections of the Netherlands, p. 11, paras. 3.1 and 3.2 respectively).
The Court then recapitulates the sequence of events relating to the legal position of the
Applicant vis-à-vis the United Nations over th e period 1992-2000. It refers, interalia , to the
following: the break-up of the Socialist Fe deral Republic of Yugoslavia in 1991-1992; a
declaration of 27April1992 by the SFRY Asse mbly, 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 47/1 of 1992 stating that the FRY shall not participate
in the work of the General Assembly; and a letter dated 29September1992 from the United
Nations Legal Counsel regarding the “practical consequences” of General Assembly
resolution 47/1.
The Court concludes that the legal situation that obtained within the United Nations during
the period 1992-2000 concerning the status of the Federal Republic of Yugoslavia remained
ambiguous and open to different assess ments. This was due, interalia , to the absence of an
authoritative determination by the competent orga ns of the United Nations defining clearly the
legal status of the Federal Republic of Yugoslavia vis-à-vis the United Nations.
The Court notes that three different positions were taken within the United Nations. In the
first place, there was the position taken by the two political organs concerned. The Court refers in
this respect to Security Counc il resolution 777 (1992) of 19 September 1992 and to General
Assembly resolution47/1 of 22September1992, according to which “the Federal Republic of
Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former
Socialist Federal Republic of Yugoslavia in the United Nations”, and “should apply for
membership in the United Nations ”. The Court points out that, wh ile it is clear from the voting
figures that these resolutions reflected a position endorsed by the vast majority of the Members of
the United Nations, they cannot be construed as conveying an authoritative determination of the
legal status of the Federal Republic of Yugoslavia within, or vis-à-vis, the United Nations. The
uncertainty surrounding the ques tion is evidenced, inter alia , by the practice of the General
Assembly in budgetary matters during the years following the break-up of the Socialist Federal
Republic of Yugoslavia.
The Court recalls that, secondly, the Federal Republic of Yugoslavia, for its part, maintained
its claim that it continued the legal personality of the Socialist Federal Republic of Yugoslavia,
“including its membership in all international organizations and particip ation in international
treaties ratified or acceded to by Yugoslavia”. This claim had been clearly stated in the official - 6 -
Note of 27 April 1992 from the Permanent Mission of Yugoslavia to the United Nations addressed
to the Secretary-General of the United Nations. It was sustained by the Applicant throughout the
period from 1992 to 2000.
Thirdly, another organ that came to be involved in this problem was the Secretariat of the
United Nations. In the absence of any authorit ative determination, th e Secretariat, as the
administrative organ of the Organization, simply continued to keep to the practice of the
status quo ante that had prevailed prior to the break-up of the Socialist Federal Republic of
Yugoslavia in 1992.
The Court points out that it was against this background that the Court itself, in its Judgment
of 3February2003 in the case concerning Application for Revision of the Judgment of
11July1996 in the Case concerning Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovinav. Yugoslavia), Preliminary
Objections (Yugoslavia v. Bosnia and Herzegovina) (hereinafter the “Application for Revision
case”), referred to the “suigeneris position which the FRY found itself in” during the relevant
period; however, in that case, no final and defi nitive conclusion was drawn by the Court from this
descriptive term on the amorphous status of the Fe deral 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 of that year, the Federal Republic of Yugoslavia 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
1 November 2000. However, its admission to th e 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 suigeneris position of the Applicant could not ha ve 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 co ncerning the status of the Federal Republic of
Yugoslavia vis-à-vis the United Nations.
The Court finds that from the vantage point from which it now looks at the legal situation,
and in light of the legal consequences of the ne w development since 1 November 2000, it is led to
the conclusion that Serbia and Montenegro was not a Member of the United Nations, and in that
capacity a State party to the Statute of the Internat ional Court of Justice, at the time of filing its
Application.
A further point the Court considers is the relevance to the present case of the Judgment in the
Application for Revision case, of 3February2003. The Court points out that, given the specific
characteristics of the procedure under Article 61 of the Statute, in which the conditions for granting
an application for revision of a judgment are strictly circumscribed, there is no reason to treat the
Judgment in the Application for Revision case as having pronounced upon the issue of the legal
status of Serbia and Montenegro vis-à-vis the United Nations. Nor does the Judgment pronounce
upon the status of Serbia and Montenegro in relation to the Statute of the Court.
For all these reasons, the Court concludes that, at the time when the present proceedings
were instituted, the Applicant in the present case, Serbia and Montenegro, was not a Member of the
United Nations, and consequently, was not, on that basis, a State party to the Statute of the
International Court of Justice. The Applicant not having become a party to the Statute on any other
basis, it follows that the Court was not then open to it under Article 35, paragraph 1, of the Statute. - 7 -
Serbia and Montenegro’s possible access to the Court on the basis of Article 35, paragraph 2, of the
Statute (paras. 91-113)
The Court then considers whether it might be open to Serbia and Montenegro under
paragraph 2 of Article 35, which provides:
“The conditions under which the Court sha ll 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 position of inequality before the Court.”
In this regard, it quotes from its Order of 8 Ap ril 1993 in the case concerning Application of
the Convention on the Prevention and Punish ment of the Crime of Genocide (Bosnia and
Herzegovinav. Serbia and Montenegro) (hereinafter the “Genocide Convention case”), where it
stated, inter alia, that a “compromissory clause in a multilateral convention, such as Article IX of
the Genocide Convention relied on by Bosnia and 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”
(emphasis added).
The Court recalls that a number of Respondents contended in their pleadings that the
reference to “treaties in force” in Article35, paragraph2, of the Statute relates only to treaties in
force when the Statute of the Court entered into forc e, i.e. on 24October1945. In respect of the
Order of 8 April 1993 in the Genocide Convention case, the Respondents pointed out that that was
a provisional assessment, not conclusive of the matter, and considered that “there [were] persuasive
reasons why the Court should revisit the provisional approach it adopted to the interpretation of this
clause in the Genocide Convention case”.
The Court notes that the passage from th e 1993 Order in the Genocide Convention case was
addressed to the situation in which the proceedings were instituted against a State whose
membership in the United Nations and status as a pa rty to the Statute was unclear. It observes that
the Order of 8 April 1993 was made on the basis of an examination of the relevant law and facts in
the context of incidental proceedings on a request for the indication of provisional measures, and
concludes that it would therefore now be appropriate for the Court to make a definitive finding on
the question whether Article35, paragraph2, affords access to the Court in the present case, and
for that purpose, to examine further the question of its applicability and interpretation.
The Court thus proceeds to the interpretation of Article35, paragraph2, of the Statute, and
does so in accordance with customary internationa l law, as reflected in Article31 of the 1969
Vienna Convention on the Law of Treaties. Accord ing to paragraph 1 of Article 31, a treaty must
be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in
their context and in the light of the treaty’s object and purpose. Interpretation must be based above
all upon the text of the treaty. As a supplemen tary measure recourse may be had to means of
interpretation such as the preparatory work of the treaty and the circumstances of its conclusion.
The Court points out that the words “treaties in force” in Article 35, paragraph2, do not, in
their natural and ordinary meaning, indicate at wh at date the treaties contemplated are to be in
force, and may thus lend themselves to different interpretations. They may be interpreted as
referring either to treaties which were in force at th e time that the Statute itself came into force, or
to those which were in force on the date of the institution of proceedings in a case in which such
treaties are invoked.
The Court observes that the object and purpose of Article35 of the Statute is to define the
conditions of access to the Court. While paragraph 1 of that Article opens it to the States parties to
the Statute, paragraph 2 is intend ed to regulate access to the Court by States which are not parties
to the Statute. It would have been inconsistent wi th the main thrust of the text to make it possible - 8 -
in the future 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 moreover notes that the interpreta tion of Article35, paragraph2, whereby that
paragraph is to be construed as referring to treatie s 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
considers that the legislative history of Article35, paragraph2, of the Statute of the Permanent
Court of International Justice (hereinafter the “Permanent Court”) demonstrates that it was intended
as an exception to the principle stated in paragraph1, in order to cover cases contemplated in
agreements concluded in the aftermath of the First World War before the Statute entered into force.
However, the travaux préparatoires of the Statute of the present Court are less illuminating. The
discussion of Article35 was prov isional and somewhat cursory; it took place at a stage in the
planning of the future international organization when it was not yet settled whether the Permanent
Court would be preserved or replaced by a new court. Indeed, the records do not include any
discussion which would suggest that Article35, paragraph2, of the Statute should be given a
different meaning from the corresponding provisi on in the Statute of the Permanent Court. It
would rather seem that the text was reproduced from the Statute of the Permanent Court; there is
no indication that any extension of access to the Court was intended.
Accordingly Article 35, paragraph 2, must be interpreted, mutatis mutandis, in the same way
as the equivalent text in the Statute of the Permanent Court, namely as intended to refer to treaties
in force at the date of the entry into force of the new Statute, and providing for the jurisdiction of
the new Court. In fact, no such prior treaties, referring to the jurisdiction of the present Court, have
been brought to the attention of the Court, and it may be that none exist. In the view of the Court,
however, neither this circumstance, nor any consideration of the object and purpose of the text, nor
the travaux préparatoires , offer support to the alternative in terpretation that the provision was
intended as granting access to the Court to States not parties to the Statute without any condition
other than the existence of a treaty, containing a cl ause conferring jurisdiction on the Court, which
might be concluded at any time subsequently to the entry into force of the Statute. As previously
observed, this interpretation would lead to a resu lt quite incompatible with the object and purpose
of Article 35, paragraph 2, namely the regulation of access to the Court by States non-parties to the
Statute. In the view of the Court therefore, the reference in Article 35, paragraph 2, of the Statute
to “the special provisions contained in treaties in force” applies only to treaties in force at the date
of the entry into force of the Statute, and not to any treaties concluded since that date.
The Court thus concludes that, even assuming that Serbia and Montenegro 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 to have 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 of the 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.
Jurisdiction on the basis of Article 4 of the 1931 Treaty of Judicial Settlement, Arbitration and
Conciliation between the Kingdom of Yugoslavia and the Netherlands (paras. 114-125)
As noted above, by a letter of 12 May 1999 , the Agent of Serbia and Montenegro submitted
to the Court a “Supplement to the Application” against the Netherlands. In that Supplement, it
invoked as an additional ground of jurisdiction of the Court “Article4 of the Treaty of Judicial
Settlement, Arbitration and Conciliation between the Kingdom of Yugoslavia and the Netherlands,
signed in The Hague on 11March1931 and in fo rce since 2April1932” (hereinafter “the 1931
Treaty”). - 9 -
The Court recalls its finding that Serbia and Montenegro was not a party to the Statute at the
date of the filing of its Application instituting pr oceedings in this case, and consequently that the
Court was not open to it at that time under Article 35, paragraph 1, of the Statute. Therefore, to the
extent that Serbia and Montenegro’s case rest s on reliance on Article35, paragraph1, it is
irrelevant whether or not the 1931 Treaty could provide a basis of jurisdiction.
The question nonetheless remains whether th e 1931Treaty, which was concluded prior to
the entry into force of the Statute, might rank as a “treaty in force” for purposes of Article35,
paragraph 2, of the Statute, and hence provide a basis of access.
The Court observes that Article 35 of the Statute of the Court concerns access to the present
Court and not to its predecessor, the Permanent Cour t. The conditions for transfer of jurisdiction
from the Permanent Court to the present Court are governed by Article 37 of the Statute. However,
this does not signify that a similar substitution is to be read into Article 35, paragraph 2, of the
Statute, which relates, not to consensual jurisdiction, but to the conditions of access to the Court.
The Court notes that Article37 of the Statute ca n be invoked only in cases which are brought
before it as between parties to the Statute, i.e. under paragraph 1 of Article 35, and not on the basis
of paragraph 2 of that Article. It then adds, as regards jurisdiction, that when a treaty providing for
the jurisdiction of the Permanent Court is invoked in conjunction with Article 37, the Court has to
satisfy itself, inter alia, that both the Applicant and the Respondent were, at the moment when the
dispute was submitted to it, parties to the Statute. As the Court observed in the Barcelona Traction
case,
“three conditions are actually stated in the Article. They are that there should be a
treaty or convention in force; that it shou ld provide (i.e., make provision) for the
reference of a ‘matter’ (i.e., the matter in litigation) to the Permanent Court; and that
the dispute should be between States both or all of which are parties to the Statute.”
Having already determined that Serbia and Montenegro was not a party to the Statute of the Court
when the proceedings were instituted against the Netherlands, the Court accordingly concludes that
Article37 cannot give Serbia and Montenegro access to the present Court under Article35,
paragraph 2, on the basis of the 1931 Treaty, irrespective of whether or not that instrument was in
force on 29 April 1999 at the date of the filing of the Application.
Unnecessary to consider other preliminary objections (para. 126)
Having found that Serbia and Montenegro did not, at the time of the institution of the present
proceedings, have access to the Court under either paragraph 1 or paragraph2 of Article 35 of the
Statute, the Court states that it is unnecessary for it to consider the other preliminary objections
filed by the Respondents to its jurisdiction.
*
The Court finally recalls (para.127) that, irrespective of 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”.
* - 10 -
The text of the operative paragraph reads as follows:
“For these reasons,
T HE C OURT ,
Unanimously,
Finds that it has no jurisdiction to entertain the claims made in the Application
filed by Serbia and Montenegro on 29 April 1999.”
___________ Annex to Summary 2004/8
Joint declaration of Vice-President Ranje va and Judges Guillaume, Higgins, Kooijmans,
Al-Khasawneh, Buergenthal and Elaraby
1. Vice-President Ranjeva and Judges Guilla ume, Higgins, Kooijmans, Al-Khasawneh,
Buergenthal and Elaraby voted in favour of the dispositif of the Judgments because they agree that
these cases cannot, as a matter of law, proceed to the merits. They have added in their joint
declaration that they nevertheless profoundly disagree with the reasoning adopted by the Court.
2. They note that when the Court finds in a ca se that, on two or more grounds, its jurisdiction
is not well founded rationepersonae , rationemateriae or rationetemporis , it may choose the most
appropriate ground on which to base its decision of lack of competence. They point out that this
choice must be guided by three criteria: consistency with the past case law; degree of certitude of
the ground chosen; possible implications for the other pending cases.
3. In the present instances, according to the Judgments of the Court, Serbia and Montenegro
was not a Member of the United Nations in 1999 and, as a result, was not then a party to the Statute
of the Court. In the Judgments, the Court concludes therefrom that it was not at that time open to
the Applicant under Article35, paragraph1, of the Statute. The Judgments go on to state that
paragraph 2 of that Article enables States not partie s to the Statute to appear before the Court only
by virtue of Security Council decisions or treatie s concluded prior to the entry into force of the
Statute. It is observed in the Judgments that the United Nations Genocide Convention only entered
into force in 1951. It is thus concluded that Article35, paragraph2, of the Statute does not grant
Serbia and Montenegro access to the Court either.
4. In the view of the seven judges making the joint declaration, this solution is at odds with a
number of previous decisions of the Court, in particular the Judgment rendered on 3 February 2003
in a case between Bosnia and Herzegovina and Yu goslavia, in which it was found that Yugoslavia
could appear before the Court between 1992 and 2000 and that this position had not been changed
by its admission to the United Nations in 2002. Further, the authors of the declaration note that in
reality it is far from self-evident that Yugoslavia was not a Member of the United Nations at that
time. Lastly, they regret that the Judgment leaves some doubt as to whether Yugoslavia was a
party, between 1992 and 2000, to the United Nations Genocide Convention and thus could call into
question the solutions adopted by the Court in the case brought by Bosnia and Herzegovina against
Serbia and Montenegro. Thus, the Court’s Judgment does not meet any of the three criteria set out
in paragraph 2 above.
5. The seven judges finally observe that the Court could easily have founded its Judgment
that it lacked jurisdiction on the grounds on which it relied in 1999 when the requests for the
indication of provisional measures were considered. The Court then found that it lacked
jurisdiction rationetemporis in respect of the declaration acce pting the compulsory jurisdiction of
the Court which Serbia and Montenegro had f iled several weeks after the start of military
operations in Kosovo. It also found itself to be without jurisdiction ratione materiae in respect of
the United Nations Genocide Convention, as no genoc idal intention had been established. These
solutions could easily have been confirmed.
Declaration of Judge Koroma
In his declaration Judge Koroma stated that, while concurring in the Judgment, he considered
it necessary to stress the following. The questio n which the Court was requested to rule on and
which it in fact did decide in this phase of the case was the issue of jurisdiction, namely, whether - 2 -
the Court could entertain the merits of the case. The jurisdictional function is intended to establish
whether the Court is entitled to enter into and adjudi cate on the substantive issues in a case. This
function, in his view, cannot be dispensed with as it is both required by law and stipulated in the
Statute of the Court. It is this function that the Court has carried out in this Judgment and it is
within this paradigm that the Judgment must be understood. The Judgment cannot be interpreted as
the Court taking a position on any of the matters of substance before the Court.
Separate opinion of Judge Higgins
Judge Higgins agrees that Serbia and Montenegro have not discontinued the case. However,
she disagrees with the apparent finding of the Court that a case may only be removed from the List
where there is a discontinuance by the applicant or the parties, or where an applicant disclosed no
subsisting title of jurisdiction, or where the Court manifestly lacked jurisdiction (see paragraph 32
of the Judgment). In her view, the right of the Court exceptionally to remove a case from the List
rests on its inherent powers, which are not limited to a priori categories.
Judge Higgins is of the opinion that the present case should have been removed from the
List, as the Applicant has by its own conduct put itself in a position incompatible with Article 38,
paragraph2, of the Rules of Court. The manner in which it has dealt with preliminary objections
would further warrant the case not being proceeded with.
Finally, Judge Higgins greatly regrets the a ttention the Court has a fforded to Article35,
paragraph 2, of the Statute, believing its relevance lies only in another pending case.
Separate opinion of Judge Kooijmans
JudgeKooijmans has added a separate opinion to the Judgment and the joint declaration of
seven Members of the Court, which he co-signed, for two reasons.
First he wishes to explain why in his view the Court should not have decided the issue of
jurisdiction on the ground of Serbia and Montenegro ’s lack of access to the Court, although in
1999, when the Court rejected Yugoslavia’s request for interim measures of protection, he was in
favour of this approach. In his view, the Court has not in a convincing and transparent way
elucidated the status of the Federal Republic of Yugoslavia vis-à-vis the United Nations before its
admission to the Organization in 2000. Further, the Court’s Judgment has undeniable implications
for other pending cases, in particular the Genocide Convention case (Bosnia Herzegovina v. Serbia
and Montenegro), which could easily have been avoided by choosing another approach. Finally,
the Judgment is at odds with previous decisions of the Court, thus endangering the principle of
consistency of reasoning. This consistency with earlier case law should prevail over present or
earlier misgivings of individual judges if an approa ch in conformity with that consistency does not
lead to legally untenable results.
In the second place JudgeKooijmans sets out why in his view the Court would have done
better to dismiss the cases in limine litis . In 1999 the Applicant invoked two grounds of
jurisdiction which it explicitly abandoned in its Written Observations of 20December2002
without replacing them by other grounds. Nevertheless it did not discontinue the case but asked the
Court to decide whether it had jurisdiction. Thus the A pplications did no longer meet the
requirement of Article 38, paragraph 2, of the Rules of Court, which states that the application shall
specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be
based. Since the Court has the inherent power to strike a case from the General List in order to
safeguard the integrity of the procedure, it should have done so in view of the fact that the
Applicant has failed to demonstrat e and even did not make an effort to demonstrate that a valid
ground of jurisdiction existed. - 3 -
Separate opinion of Judge Elaraby
Judge Elaraby voted in favour of the dispositif, but disagreed both with the grounds on
which the Court decided to base its Judgment ⎯ Article35, paragraph1 and Article35,
paragraph 2 of the Court’s Statute ⎯ and with the conclusions which the Court reached on each of
these grounds. The joint declaration, to which Judge Elaraby is a signatory, explains why he
believes that the Court should have chosen altern ative grounds to reach its decision. His separate
opinion explains why he disagrees with its substantive findings.
Beginning with the issue of access to the Court under Article 35, paragraph 1, Judge Elaraby
explained why, in his view, the Federal Republic of Yugoslavia was a Member of the United
Nations at the time it filed its Application in th e case. He emphasized that, although the FRY was
excluded from participation in the work of th e General Assembly and its subsidiary organs, it
remained, as the Court had previously found, a sui generis Member between 1992 and 2000. Thus
Judge Elaraby pointed out that during this period it continued to exhibit many attributes of United
Nations membership and was neither suspended nor expelled from the Organization under the
relevant provisions of the United Nations Charter. On this basis, Judge Elaraby concluded that the
FRY was a Member of the United Nations when it file d its Application in 1999 and, as a result, he
disagreed with the Court’s finding that it was not “open” to the FRY under Article 35, paragraph 1,
of the Court’s Statute.
He also disagreed with the Court’s finding that, assuming the FRY was a non-Member of the
United Nations, it would not have had access to the Court under Article35, paragraph2. For
JudgeElaraby, the Court’s interpretation of the term “treaties in force” in Article 35, paragraph 2,
as meaning “treaties in force at the time the Stat ute of the Court entered into force” was unduly
restrictive. Like the Court, Judge Elaraby analysed the relevant travaux préparatoires , but, unlike
the Court, he found that the expression “treaties in force” should be read to include any treaties
connected with the peace settlement following th e Second World War, whether they entered into
force before or after the Statute of the Court. This would include, according to Judge Elaraby, the
Genocide Convention, a treaty drafted under the ausp ices of the United Nations in direct response
to the tragic events of the Second World War. In the alternative, Judge Elaraby stated that, even if
the Court’s reading of “treaties in force” were adopted as a general rule, there should be an
exception for treaties intended to remedy violations of jus cogens . These, he wrote, should be
subject to a broader interpretation so that any State seeking access to the Court on the basis of a
treaty that addresses a jus cogens violation could do so as long as the treaty was in force when the
Application was filed.
Because Judge Elaraby concluded that the Court was open to the FRY under Article 35 when
it filed its Application in 1999, he went on to assess whether the Court has jurisdiction ratione
personae under ArticleIX of the Genocide Convention. He concluded that it does, because the
FRY succeeded to the treaty obligations of the fo rmer Socialist Federal Republic of Yugoslavia,
including the Genocide Convention. In reaching this conclusion he explained that, in cases
involving the separation of parts of the territory of a State to form one or more new States,
Article34 of the Vienna Convention on Succession of States in respect of Treaties embodied a
customary rule of automatic succession by the new St ate to the treaties in fo rce on the territory of
its predecessor. He pointed out that it was all the more important for the Court to recognize and
apply this rule in the case of a fundamental human rights treaty such as the Genocide Convention.
Judge Elaraby thus concluded that the FRY was a party to the Genocide Convention on the basis of
succession ⎯ not its subsequent purported accession and reservation ⎯ and therefore that the
Court had jurisdiction ratione personae . He found, however, that the Court did not have
jurisdiction ratione materiae under the Convention, so in the final analysis agreed with the Court
that there was no jurisdiction to examine the merits of the FRY’s case. - 4 -
Separate opinion of Judge Kreća
JKdree ća noted that the Respondent, as well as the Applicant, attached crucial importance
to the issue of locus standi of Serbia and Montenegro before the Court.
In the case at hand, it is closely, and even organically, linked with the membership of Serbia
and Montenegro in the United Nations, due to the fact that it could not be considered as being party
to the Statute of the Court apart from being a Me mber State of the United Nations as well as the
fact that its locus standi cannot be based on conditions set forth in Article35, paragraph2, of the
Statute.
In that regard he finds that at the end of the year 2000 the Applicant did two things:
(i) renounced the continuity claim and accepted the status of the successor State of the former
SFRY; and
(ii) proceeding from a qualitatively new legal basis ⎯ as the successor State ⎯ submitted the
application for admission to membership in the United Nations.
The admission of the FRY to the United Nations as a Member as from 1 November 2000 has
two principal consequences in the circumstances of the case at hand:
(i) with respect to the admission of Yugoslavi a as a Member as from 1November2000, it
can be said that what is involved is the admission as a new Member; and
(ii) the admission of Yugoslavia as a Member as from 1November2000 qualified per se its
status vis-à-vis the United Nations before that da te. It seems clear that, in the light of the
decisions taken by the competent organs of the United Nations, this status could not be a
membership status. A contrario , Yugoslavia could not have been admitted as a Member
as from 1 November 2000.
He is also of the opinion that the formulation of the dispositif explicitly linked to the absence
of locus standi of Serbia and Montenegro would be more appropriate considering the circumstances
of the case as well as the reasoning of the Court.
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Summary of the Judgment of 15 December 2004