Summaries of Judgments, AdvNot an official documents of the Internationa
l Court of Justice
CASE CONCERIVINGLEGALITY OF US,EOF FORCE (YUGOSLAVIA v. SPAIN)
(PROVISIONAL MEASURES)
Order of 2 Jiune1999
In an Order issued in the case concerning Legality of AGAWST: JudgesShi,Vereshchetin;
Use of Force (Yugoslavia v. Spain), the Court rejected by (2) By thirteenvotesto three,
fourteen1votes to two the request for the indication of
Ordersthat the casebe removed frointhe List.
provisionalmeasures submitted by the Federal Republic of IN FAVOUR: Vice-President Weeramantry, Acting
Yugo~la~vi(aFRY). President; President Schwebel; Judges Oda, Bedjaoui,
In its Order, the Court,a.vingfound that it manifestly Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,
lacked jurisdiction to entertain the case, decided to dismiss
it. It ordered by thirteen votes to three that the case be Koron~a, Higgins, Kooijmans; Judge ad hoc Torres
removed fromthe List. Bernardez;
AGAINST: Judges Vereshchetin, Parra-Aranguren;
The Court was composed as follows: Vice-president Judge adhoc Kreca.
Weeramantry,Acting President;President Schweb1:l;Judges
Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,
Fleischhauer, Koroma, Vereshchetin, Higginr;, Parra-
Aranguren, Kooijmans; Judges ad hoc Torres E;ernhrdez,
Kreca;RegistrarValencia-Ospina. Judges Shi, Koroma and Vereshchetin appended
tleclarations to the Court's Order. Judges Oda, Higgins,
I'arra-Arangurenand Kooijmans, and Judge ad hoc Kreca
appendedseparateopinions.
The full text of the operative paragraph of the Order
reads as follows:
40. For these reasons,
'"THECOURT,
(1) By fourteenvotesto two, On 29 April 1999 Yugoslavia filed an Application
Rejects the request for the indication ofPI-ovisionainstituting proceedings against Spain"for violation of the
measures submitted by the Federal Republic of obligationnot touse force", accusingthat State of bombing
Yugoslaviaon 29 April 1999; Yugoslav territory "together with other Member States of
IN FAVOUR: Vice-PresidentWeeramantry, Acting NATO" (seePress CommuniquC99/17).On the sameday, it
President; President Schwebel; Judges Oda, Bedjaoui, s.ubmitted a request for the indication of provisional
Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma, measures, asking the Court to order Spain to "cease
Higgins, Parra-Aranguren, Kooijmans; Judges ad hoc immediately its acts of use of force" and to "refrain from
TorresBernirdez, Kreca; ernyact ofthreator use of force" against the FRY.
Continuedon next page As a basis for the jurisdiction of the Court, Yugoslavia party to the Statute of the Court, and that it cannot appear
invoked the declarationsby which both States had accepted before the Court, the Court maintains that it need not
the compulsoryjurisdiction of the Court in relation to any consider this question, taking into account its finding that
other State accepting the same obligation (Article 36, the declarationsdo not constitutea basis ofjurisdiction.
paragraph 2, of the Statute of the Court), and Article IX of Concerning Article IX of the Genocide Convention, the
the Convention on the Prevention and Punishment of the Court states that it is not disputed that both Yugoslavia and
Crime of Genocide, adopted by the United Nations General Spain are parties to that Convention, but that Spain's
Assembly on 9 December 1948.Article IX of the Genocide instr~lnientof accession, deposited with the United Nations
Convention provides that disputes between the contracting Secretary-General on 13 September 1968, contains a
parties relating to the interpretation, application or
reservation"in respect of the whole of Article IX. Sincethe
fulfilment of the Convention shall be submitted to the Genocide Convention does not prohibit reservations and
InternationalCourt of Justice. since Yugoslavia did not object to the Spanish reservation,
the Court considers that Article IX manifestly does not
Reasoning of the Co~~rt constitute a basis of jurisdiction in the case. even prima
facie.
In its Order, the Court first emphasizesthat it is "deeply
concerned with the human tragedy, the loss of life, and the The Court concludes that it "manifestly lacks
enormous suffering in Kosovo which form thebackground" jurisdiction to entertain Yugoslavia's Application" and that
of the dispute and "with the continuing loss of life and "it cannot therefore indicate any provisional measure
human sufferingin all parts of Yugoslavia". Itdeclaresitself whatsoever". Itadds that "within a system of consensual
jurisdiction, to maintain on the General List a case upon
"profoundly concernedwith the use of forcein Yugoslavia", which it appears certain that the Court will not be able to
which "under the present circumstances ...raises very adjudicate on the merits would most assuredly not
serious issues of international law". While being "mindful
of the purposes and principles of the UnitedNations Charter contributeto the soundadministrationofjustice".
and of its own responsibilities in the maintenance of peace The Court finally observes that "there is a fundamental
and security under the Charter and [its] Statute", the Court distinctionbetweenthe questionof the acceptanceby a State
"deems it necessary to emphasize that all parties before it of the Court's jurisdictionand thecompatibilityof particular
acts with iiiternational law". "The fornier requires consent;
must act in conformity with their obligations under the the latter questioncan only be reachedwhenthe Court deals
United Nations Charter and other rules of internationallaw,
includinghumanitarianlaw". with the merits after having established its jurisdiction and
The Court then points out that it "does not automatically having heard full legal arguments by both parties." It
have jurisdiction over legal disputes between States" and emphasizes that "whether or not States accept the
that "one of the fundamentalprinciples of its Statute is that jurisdiction of the Court, they remain in any event
responsible for acts attributable to then1 that violate
it cannot decide a dispute between States without the internationallaw, includinghumanitarianlaw" and that"any
consent of those Statesto itsjurisdiction". It cannot indicate disputes relating to the legality of such acts are required to
provisional measures without its jurisdiction in the case
being establishedprima facie(at first sight). be resolved by peaceful means, the choice of which,
Concerning the first basis of jurisdiction invoked, the pursuant to Article 33 of the Charter, is left to the parties".
Court observes that Spain contended that its declaration In this context, "the parties shouldtake care not to aggravate
or extend the dispute". The Court reaffirms that "when such
contains a reservation which is relevant to the case. Under a dispute gives rise to a threat to the peace, breach of the
the terms of that reservation, Spain does not recognize the peace or act of aggression, the Security Council has special
jurisdiction of the Court in respect of "disputes to which the responsibilitiesunderChapterVII of the Charter".
other party or parties have accepted the compulsory
jurisdiction of the Court less than 12 montlis prior to the
filing of the application bringing the dispute before the Declaration of Judge Shi
Court". The Court notes that Yugoslavia deposited its
Judge Shi agrees with the majority that in the cases of
declaration of acceptance of the compulsoryjurisdiction of Yugoslavia against France, Germany, Italy and the United
the Court with the United Nations Secretary-Generalon 26 Kingdom there is no prima facie jurisdiction, and in the
April 1999and that it brought thedispute to the Court on 29 cases of Yugoslavia against Spain and the United States not
April 1999. It states that there can be no doubt that the even prima facie jurisdiction, for the indication of
conditions for the exclusion of the Court's jurisdiction provisionalmeasuresrequestedby the Applicant.
provided for in Spain's declaration are satisfied. The Court
concludes that the declarations made by the Parties Nevertheless, he is of the opinion that, being confronted
manifestly cannot constitute a basis of jurisdiction in the with a situation of great urgency arising from the use of
force in and against Yugoslavia, and upon receipt of the
case, evenprima facie. requests by the Applicant for the indication of provisional
As for Spain's argument that Yugoslavia is not a measures, the Court ought to have issued a general
member State of the United Nations in view of United statementappealing to the Parties to act in compliance with
Nations Security Council resolution 777 (1992) and United their obligations uiider the United Nations Charter and all
Nations General Assembly resolution 4711 (1992), nor a
other rules of internationallaw relevant to the situation,andat least not to aggravate or extend their dispute, regardless Declaratiolz of Jzrdge Vereskchetin
of what might be the Court's conclusion on prima facie
The extraordinary circumstances in which Yugoslavia
jurisdiction pending its final decision. made its request for interim measures of protection imposed
Nothing in the Statute or Rules of Court prohibits the a need to react immediately. The Court should have
Court from so acting. Also, given the responsibi'litiesof the promptly expressedits profound concern over the unfolding
Court within the general frainework for the maintenance of
peace and security under the Charter, and under the Statute human misery, loss of life and serious violations of
international law which by the time of the request were
as an integral partof the Charter,to issue such a statementis already a matter of public knowledge.It is unbecomingfor
within the implied powers of the Court in the exercise of its the principal judicial organ of the United Nations, whose
judicis~lfunctions.Obviously,the Court has failetlto take an very raison d'etre is the peaceful resolution of international
opportunityto make its due contributionto the maintenance disputes, to maintain silence in such a situation. Even if
of peace and securitywhen thatis mostneeded. ultimatelythe Courtmay cometo the conclusionthat, dueto
Moreover, in spite of the request of Yugoslavia that the
constraints in its Statute, it cannot indicate fully fledged
Court exercise its powers under Article 75, paragraph 1,of provisional measures inaccordance with Article 41 of the
the Rules of Court to decide proprio ~ttot~Yr ugoslavia's Statute inrelation to oneor anotherof the respondent States,
request to indicateprovisional measures, the Court failed to the Court is inherently etnpowered, at the very least,
exercise that power, in contrast to its decision to make use immediatelyto call upon theParties neither to aggravatenor
of that;power in the recent ~5aGrandcase (Gerrnanyv. the to extend the conflict and to act in accordance with their
UniteclStates of America) irka situation not as urgent as in obligations under the Charter of the United Nations. This
the present case.
power flows from its responsibility for the safeguarding of
For these reasons, Judge Shi felt compelled to vote international law and from major considerations of public
againstoperativeparagraph (1) of the sixOrders. order. Such an authoritative appeal by the "World Court",
which wouldalso be consistentwith Article41 of its Statute
and Article 74, paragraph 4, and Article 75, paragraph 1,of
Dec!laration ofJudge Koromu its Rules, could have a sobering effect on the parties
In his declaration Judge:Koroma observed that these involvedin the military conflict,unprecedentedin European
were perhaps the most serious cases that have ever come
history sincethe end of the SecondWorld War.
before the Court for provisional measures. He stated that The Court was urged to uphold the rule of law in the
jurisprudentially such measures were designed to prevent context of large-scale gross violations of international law,
violence, the use of force, to safeguard international peace including of the Charter of the United Nations. Insteadof
and security as well as serving as an important part of the acting expeditiously and, if necessary,pr-opriomotu, in its
dispute settlement process under the Charter of the United
Nations. In his view the indication of such measures capacityas "the principal guardianof internationallaw", the
therefore represents one of the most important functions of majority of the Court, more than one month after the
requests were made, rejected them in a sweeping way in
the Court. relation to all the cases brought before the Court, including
But the granting of such a relief, he stressed, could only those where the prima faciejurisdiction of the Court could
be done in accordance with the Statute of the Court. In this have been clearly established. Moreover, this decision has
regard, and in the light of the jurisprudence of the Court, been taken ina situation in which deliberate intensification
where prima facie jurisdiction is absent or other
circurrlstances predominate, the Court will no't grant the of bombardment of the most heavily populated areas is
causing unabated loss of life amongst non-combatantsand
request forprovisionalmeasures. physical and mental harmto the population in all parts of
Ne:vertheless, he considered the Court, being the Yugoslavia.
principal judicial organ of' the United Nations, whose For the foregoing reasons, Judge Vereshchetin cannot
prima~y raison d'&tre remains the presel-vation of concur with the inaction of the Court in this matter,
international peace and security, to be under a positive
obligation to contribute to thenlaintenance of iilternational althoughhe concedesthat in someof the cases institutedby
the Applicant the basis of the Court's jurisdiction, at this
peace and security and to provide a judicial frainework for stage of the proceedings,is open to doubt, and in relation to
the re:;olutionof a legal conflict, especially one which not Spain andthe United Statesis non-existent.
only threatens international peace and security but also
involves enormous huinan suffering and continuing loss of
life. He had thereforejoined with theother Members of the Separate opinion ofJudge Oda
Court in calling for the peaceful resolution of this conflict Judge Oda supports the decision of the Court in
pursuant to Article 33 of the Charter, and in urging the dismissing the requests for the indication of provisional
Parties not to aggravate or extend the dispute antlto respect measuresby the Federal Republicof Yugoslaviaagainst ten
international law, including humanitarian law and the respondent States.Whilefavouringthe decisionof the Court
humanrights of all thecitizei~sof Yugoslavia. to removethe case fkomthe General List of the Court in the
cases of Spain and the United States, Judge Oda voted
against the decision in the other eight cases in which theCourt ordered that it "[rleserves the subsequent procedure jurisdictional issues are so complex that they cannot be
for further decision", because he believes that those eight addressed at all at this phase; their holding over for a later
cases should also be removed at this stage from the General phase does not stand in the way of the Court determining
List of the Court. whether or not it has priina facie jurisdictioil for the
Judge Oda considers that the Federal Republic of purposes of Article41.
Yugoslavia is not a Member of the United Nations and thus
not a party to the Statute of the International Court of Separate opinion ofJudge Parra-Aranguren
Justice. The Applicationspresentedby the FederalRepublic Judge Parra-Aranguren recalls that Article 79 of the
of Yugoslavia should thereforebe declared inadmissiblefor
this reason alone and should be removed from the General RuEes of Court prescribes that any objection by the
List of the Court. Respondentto thejurisdiction of the Court shall be made in
He nevertheless then goes on to discuss whether, if the writing within the time limit fixed for the delivery of the
Counter-Memorial. Such preliminary objection shall be
Federal Republic of Yugoslavia were to be considered a decided as provided by paragraph 7 of the said Article 79.
party to the Statute, it could have brought the present The Court has no discretionary powers to depart from the
Applications on the basis of certain legal instruments.After rules establishedby Article 79; and the present proceedings
having examined the meaning of (i) the optional clause of have not yet reached the stage when the Respondent may
the Court's Statute, (ii) the background to the 1930 and
1931 ,instruments with Belgium and the Netherlands, submit preliminary objections. Therefore, in his opinion,
respectively, and (iii) the 1948 Genocide Convention, he when deciding upon a request for provisional measures the
Coilrtcan neither make its final decision onjurisdiction nor
reaches the conclusion that none of these instruments grant orderthe removal of the case from the Court's List.
the Courtjurisdiction in anyof the ten Applications.
Judge Oda agrees with the Court that, as it has no basis
of jurisdiction, it must reject the requests for the indication Separate opinion ofJudge Kooijniurls
of provisional measures in all ten cases. However, he 1. Judge Kooijmans joined a separate opinion to the
considers that, the Court having decided that it has no Order of the Court in the cases of Yugoslavia versus
jurisdiction to entertain the cases. not even prima facie, that Belgium, Canada, the Netherlands, Portugal, Spain and the
this can only mean thatit has no jurisdiction whatsoever in UnitedKingdom,respectively.
any of the cases. It follows, in Judge Oda's view,that not He does not agree with the Court's view that
only in the cases of Spain and the United States, in which Yugoslavia's declaration of acceptance of the compulsory
the Court states that it manifestly lacks jurisdiction, but in jurisdiction of the Court of 25 April 1999 cannot provide a
all the other cases, the Applications should be dismissed at basis of jurisdiction in the present case, even prima facie,
this stage, given that the Court has found that there is not
because of the reservations incorporated in the declarations
even a prima faciebasis ofjurisdiction. of Spain and the United Kingdom, cq. because of the
Judge Oda also points out that, while the Court makes a temporal limitation contained in Yugoslavia's declaration
distinctionbetween the Applications,even though they deal (cases against Belgium, Canada, the Netherlands and
virtually with the same subject matter, this distinction. Portugal). He is of the view that the Court lacks prima facie
which came about simply because of the differentpositions jurisdiction because of the controversial validity of
which individual States happened to take towards the Yugoslavia's declaration. This validity issue constitutes a
preliminary issue and should, therefore, have been dealt
various instruments that are to be applied concerning the
Court's jurisdiction,will leadto differing results concerning with by the Court as a thresholdquestion.
the future proceedings in each of the cases. In Judge Oda's Sincethis issue is of no relevance in the four other cases
view this is an illogical situation, which supports his (against France, Germany, Italy and the United States) as
contention that all ten cases should be dismissed in their these States themselves do not recognize the compulsory
entiretyat this stage. jurisdiction of the Court, there is no need for a separate
opinion in thosecases.
Separate opiniortofJzrdgeHiggirrs 2. Article 36, paragraph 2, of the Statute explicitly
Judge Higgins in her separate opinions addresses two states that only States which are party to the Statute can
recognize the compulsory jurisdiction of the Court by
issues that arise in relation to those cases where the Federal depositing a declaration of acceptance with the Secretary-
Republic of Yugoslavia claims jurisdiction on the basis of General of the United Nations. Member States of that
Article 36, paragraph 2, of the Statute. The first issue
concerns temporal limitations to so-called "optional organization are eo @so party to the Statute. All six
clauses", and in particular the question of when a dispute Respondents contended that since the Federal Republic of
arises and when the relevant events have occurred. These Yugoslavia is not a Member of the United Nations, its
concepts are analysed in connection with Yugoslavia's own declarationof acceptancehas not beenvalidlymade.
3. On 22 September 1992the GeneralAssembly, on the
declaration. The second issue addresses the question of recommendation of the Security Council, decided that the
exactly what has to be shown for the Court to be satisfied it
has prima facie jurisdiction when it is considering the Federal Republic of Yugoslavia cannot continue
indicationof provisionalmeasures. It is suggestedthat some automatically the membership of the former SocialistFederal Republic of Yugoslavia and therefore thai it should Separate opinion of Judge Kreca
apply for membership in the United Nations. Until that time
it shall :notparticipate in therk of the General Assembly In his separate opinion Judge Kreca points out the
(res. 4711). The Federal Republic of Yugosla~ia never t?ollowingrelevantissues:
Judge Kreca finds that noneof the equalizationfunctions
appliedfor membership. of the institution of judge ad hoc have been met in this
4. In its present Ordersthe Court avoids the question of particularcase. The letter and spirit of Article,paragraph
the contested validity of Yugoslavia's declaration.It takes
the position that it need not consider this issue since the 2, of the Statuteof the Court, appliedto this particular case,
declaration cannot provide the:Court with a basis for prima imply the right of Yugoslavia, as the applicant State, to
choose as many judges ad hoc to sit on the Bench as is
-faciejurisdiction on otherrocmds. necessaryto equalizethe position of applicant Stateand that
5. Judge Kooijmans is of the view that the Court's of the respondent States which have judges of their
reasoning in this respect is inconsistent.Such0the.rgrounds nationality on the Bench and whichshare the same interest.
only become relevant if the validity of the declaration- at
least for the present stage of the proceeding- is accepted. lrn concreto, the inherent right to equalization in the
'TheCourt's reasoningis based on a presumptionof validity composition of the Bench, as an expression of a
fundamental rule of equality of parties, means that the
and the Court should have said so and have given its Federal Republic of Yugoslavia should have the right to
argumentsfor it. choose five judges ad hoc, since even five out of ten
6. According to Judge Kooijinans there certainly was respondent States (United States, the United Kingdom,
no need for the Court to take a definitive stand on France, Germany, and the Netherlands) have their national
Yugoslslvia'smembershipof the United Nations. IIe is fully
judges sittingon the Bench.
aware that resolution 4711 is unprecedented ant1raises a At the sametime, accordingto coherentjurisprudence of
number of highly complex legal questions, which require a the Court, none of tlie respondent States were entitled to
thorough analysis and careful evaluation by the Court at a iippoint a judge ad hoc (Territorial Jz4risdiction of the
later stageof the proceedings. International Comnzission of the River Oder; Customs
Difficult though the question may be, the relevant
RkgimebetweenGernlaiy nndAustria).
decisior~shave been taken by the organs of the United There is no need to say that the above-mentionedissues
Nations which have exclusive authority in matters of iae of upmost specific weight in view of the fact that
membership (Security Council and General Assernbly) and obviouslythe meaning of such issues is not restrictedto the
they cannotbe overlookedor ignored. procedure, but that it may have a far-reaching concrete
7. According to Judge Kooijmans the doubts, raised by
the decisions of the competent United Nations bodies with meaning.
Judge Krecapoints out that a reservationsuch as the one
regard to Yugoslavia'sme1nbe:rshipand the ensuingvalidity inade by Spain in respect to Article IX on the Convention
of its declaration, are, however, so serious that the Court on the Prevention andPunishmentof the Crimeof Genocide
should have concluded that this declaration cannot provide does not contribute to the implementationof the concept of
it witha basis forprima faciejurisdiction. The Court should an organizeddejure internationalcommunity. States do not
not indicate provisional measures unless its competence to
entertain tlie dispute appears to be reasonably prohnble and expressverbally their belief in internationallaw, byniaking
declaratoryvows, but by taking effective measures aimed at
this test of reasonable probability cannot be passe,dbecause implementationof human rights and fundamentalfreedoms.
of the doubtfulvalidity of the declaration. 'Thisis especiallytrue in regard to the GenocideConvention
8. If that is the case, issues like reserva~:ionsand since:
temporaillimitationson which the caseswere decidedby the
Court, beconle irrelevant since they are wholly ccnditioned "In such a convention the contracting States do not
by the preliminaryquestionof the declaration's validity. have any interests of their own; they merely have, one
and all, a common interest, namely, the accomplishment
of those highpurposeswhich are the raison d'etre of the
convention" (Advisoi-y Opinion of the Zt~ternational
Court ofJzistice)
Summary of the Order of 2 June 1999