InternationalCourtofJustice
Case concerningLegality
of Useof Force
(Yugoslaviav.UnitedKingdom)
PreliminaryObjectionsof the UnitedKingdom
June2000 Contents
Page
Part1 Introduction 1
Part2 Background tothe present proceedings
Part3 The Courtlacksjurisdiction rationepersonae 25
(1) TheFRYis a new State
(paras.3.2to 3.12)
(2)TheFRYis not a partyto the Statuteofthe
Court(paras.3.13to 3.26)
(3)The FRYhas not claimedto be entitledto
bringtheseproceedingsby virtue of Article35(2)
of the Statute,nor couldit do so
(paras.3.27to 3.34)
Part 4 Article36(2)of the Statutedoes not provide
jurisdiction rationemateriaein thepresentcase 42
(1)TheFRY isnot entitledto rely upon
Article36(2)followingthe Court'sOrder
of 2 June 1999(paras.4.8to 4.18)
(2)TheFRY hasnot made a valid declaration
underArticle36(2)of the Statute
(paras. 4.19to 4.20)
(3)The conditionsonwhichthe
UnitedKingdomacceptedthejurisdiction of
the CourtunderArticle36(2)have notbeen
met (paras.4.21to 4.27) 52
(4)The conditionsonwhichthe FRY accepted
thejurisdictionof the Courtunder Article36(2)
havenot beenmet (paras.4.28to 4.47) 56Part 5 ArticleIX oftheGenocideConventiondoesnot
providejurisdictionrationemateriae inthe
presentcase 68
Part6 The claimsare inadmissible 85
(1)The claimadvancedbytheFRYinitsMemorial
regardingtheperiodsincethe adoption ofSCR 1244
(1999)on 10June 1999 is inadmissiblebecauseit is
an entirelynew claimwhich,if theCourtwereto
entertainit,would transformthenatureofthedispute
before theCourt (paras.6.2to 6.8) 86
(2)Theclaimrelatingtothe periodfrom24
Marchto 10June 1999is inadmissible
becausethe legalinterestsof other Stateswhich are
not beforethe Court(eitherinthepresentcaseorin
the otherproceedingsbroughtbytheFRY) would
formthe verysubject-matterof thedecision
requestedby the FRY(paras.6.9to 6.22) 89
(3)The claim advancedbytheFRYin its
Memorialregardingthe periodsincethe adoption
of SCR 1244(1999)on 10June 1999isinadmissible
becausethe legalinterestsofother Statesandofthe
UnitedNationswouldformtheverysubject-matter
ofthe decisionrequestedbythe FRY
(paras.6.23to 6.27) 95
(4)TheFRYhas notacted in goodfaith
(paras6.28to 6.40) 97
Concludingsubmissions 102
Listof Annexes PART1
INTRODUCTION
1.1 The United Kingdom raises the following Preliminary Objections in the
proceedings which the Federal Republic of Yugoslavia (hereinafter the "FRY")
has purported to institute against the United Kingdom. For the reasons set out
herein, the United Kingdom submits that the FRY is not entitled to institute
proceedings before the Court, that the Court lacks jurisdiction over the claims
broughtby the FRY, andthat thoseclaimsareinadmissible.
Surnrnary of theproceedings
1.2 On 28 April 1999the FRY filed with the Court an Application purporting
to commenceproceedingsagainstthe United Kingdom. The case was entered in
the General List under the title "Legality of Useof Force (Yugoslaviav. United
~in~dom)".' On the same date, the FRY filed identical Applications instituting
proceedings against nine other States (Belgium, Canada,France, Germany, Italy,
Netherlands,Portugal,Spain,UnitedStatesofAmerica).
1.3 The Application describedthe subject-matterofthe disputein the following
terrns:
"The subject-matterof the disputeare acts ofthe United Kingdom of Great
Britain and Northern Ireland by which it has violated its international
obligations banning the use of force against anotherState, the obligation
1 The term "Yugoslavia" inthe title ofthe case wasevidentlychosenas an abbreviatedreferenceto
the FRY, sinceit has been madeclear throughoutthe case thatthe Applicant Stateisthe FRY. That ishow
the Applicant describesitself in the Applicationand the Memorialand how its counsel referred toit at the
hearingson the request forprovisionalmeasures(e.g.,ProfessorEtinski,CR 99/14,p. 19). Since,however,
the status of the FRY is oneof the issueswhicharises in theseproceedings,the UnitedKingdomwill refer
to the Applicant as the FRYto avoid confusionwith the former Socialist Federal Republicof Yugoslavia,
which isreferredto simplyas"Yugoslavia" insome ofthe documentsto which referencewill be made. notto interveneinthe interna1affairsof another State,the obligationnotto
violate the sovereignty of another State, the obligation to protect the
civilianpopulationand civilianobjectsin wartime,the obligationto protect
the environment,the obligation relatingto fiee navigation on international
rivers, the obligation regarding fundamental hurnan rights and fieedoms,
the obligation not to use prohibited weapons, the obligation not to
deliberately inflict conditions of life calculated to cause the physical
destructionof a nationalgroup."
TheApplicationthen listed a numberof incidentssaidto havetakenplacesince24
March 1999. TheApplication referredto Article 36(2) of the Statuteof the Court
and ArticleIX of the Conventionon the Preventionand Punishmentof the Crime
of Genocide 1948("the Genocide on vent ion" a)^the bases for the jurisdiction
of the Court. On the same day, the FRY also filed a request for provisional
measuresof protection.
1.4 By an Order dated 2 June 1999, the Court rejected the request for
provisionalmeasuresby twelve votes to three. The Court held that Article36(2)
of the Statuteof the Court manijëstly could not constitute a basis ofjurisdiction3
and that Article IX of the Genocide Conventioncould not "constitute a basis on
whichthejurisdictionofthe Court couldprima faciebe fo~nded".~
1.5 The Courtstatedthat its findings -
"...in no way prejudge the questionof thejurisdiction of the Court to deal
with the meritsof the caseunderArticleIX of the Genocide Convention,or
any questionsrelating to the admissibilityof the Application,or relatingto
the meritsthemselves".
-
2 78UNTS277 (Annex1).
3
Legalityof UseofForce(Yugoslaviav. UnitedKingdom),Orderof2 June1999,para.25.
4
Ibid.,para.36.The Court further held that its findings left unaffected the right of the
Govemmentsof the FRY andthe United Kingdomto submit argumentsin respect
of thosequestions.
Onthe same date the Court rejectedthe requests for provisional measures
1.6
in the nine other cases brought by the FRY. The Court orderedthat the cases
brought againstSpain and the United Statesof Arnerica should be removed from
the GeneralList becauseof a manifestabsenceofj~risdiction.~
TheFRYMemorial
1.7 In January 2000 the FRY filed its Memorial in the present proceedings.
Although the cases against Belgium, Canada, France, Germany, Italy, the
Netherlands,Portugal andthe United Kingdomare separateproceedings,the FRY
has filed a single Memorial in respect of al1eight cases. The FRY Memorial
makes no attempt whatsoeverto distinguish the claims against the respondent
Statesinthe eightcases,exceptas regardsjurisdiction.
1.8 Par 1tof the FRY Memorial (entitled "Facts") fxst sets out a long list of
eventswhichtheFRY claimstook placebetween24 March 1999andthe cessation
of militaryoperationson 10June 1999. The Memorial containsno suggestionas
to which State may have carried out the attacks which it alleges took place. No
specificallegationsare made against the UnitedKingdom (or, indeed, against the
respondentState inanyof the othercases).
1.9 Part 1 of the Memorial then adds an entirely new set of allegations, quite
distinct fiom those contained in the Application, relating to the period after 10
June 1999, whenUnitedKingdom forces,togetherwith those of thirty-eightother
5 Ibid.,para.38.
6 Yugoslaviav.Spain,Orderof2 June1999,para.35; Yugoslaviav. UnitedStatesofAmerica,
Orderof2 Jme 1999,para.29. tat tes,eployed as part of the international security presencein Kosovo,known
as the Kosovo Force ("KFOR"), authorized by Security Council resolution
("SCR) 1244(1999).~ Underthe terms of that resolution,KFORis authorizedto
cooperate with the international civil presence in Kosovo, the United Nations
Interim Administration Mission in Kosovo ("UNMIK"), in ensuring security
within Kosovo. The Memorial alleges that the United Kingdom has incurred
responsibilityfor what the Memorial describesas the failureof KFORto prevent
genocideand its alleged violationoftheterms of SCR 1244.
TheUnitedKingdom'sPreliminary Objections
1.10 The United Kingdom contends that the Court lacks jurisdiction, both
ratione personae and ratione materiae, and contests the admissibility of the
Application. While the United Kingdom emphatically rejectsthe uneven and
distorted account of the facts advanced by the FRY in its Application and
Memorial,the United Kingdomwill address factual mattersonly in so far as it is
useful to do so in the context of these Preliminary Objections. However, the
United Kingdomwishes to put on recordthat it does not acceptthe descriptionof
events set out in the FRY Application and Memorial and considers that they
contain numerous inaccuracies, omissions and other misrepresentationsof the
facts. In contributingto NATO's militaryoperationsthe United Kingdomand its
armed forces were bound by obligationsarisingunder conventional international
law(inparticular,the Geneva Conventions1949and the First Additional Protocol
1977)and customaryinternationallaw. TheUnitedKingdom's conductduringthe
NATO air operations was fully in accordance with its obligations under
internationallaw. In this contexttheUnitedKingdomnotesthat on2 June2000
7 Thenurnbeof StatescontributoKFORvariesfiomtimetotirne.
8
Annex2.the Prosecutor of the InternationalCriminal Tribunal for the Former Yugoslavia
("ICTY") stated in the SecurityCouncil:
"1am now able to announcemy conclusion, following a full consideration
of my team's assessment of al1complaintsand allegations,that there is no
basis for opening an investigationintoanyofthose allegations or into other
incidents related to the NATO bombing. Although some mistakes were
made by NATO, 1 am very satisfiedthat there was no deliberate targeting
of civilians or of unlawful military targetsby NATO during the bombing
~arn~ai~n."~
1.11 The United Kingdom first submits that the FRY is not qualified to bring
these proceedings, because it is not a partyto the Statute of the Court, nor is it
othenvise entitled to institute proceedings. The Court accordingly lacks
jurisdictionrationepersonae. Thismatteris dealtwith Mer in Part3 below.
1.12 The United Kingdom further subrnits that, inany event, the Court lacks
jurisdiction ratione materiae. The FRY has persistedin its argumentthat Article
36(2)of the Statuteprovidesa basis for the Court's jurisdiction. However,n light
of the Court's Order of 2 June 1999this argumentis simplynot opento the FRY.
In that Order the Courtheldthat the declarationsmadeby the FRY and the United
Kingdom under Article 36(2) manifestly could not provide a basis for the
jurisdiction of the Court. That was in contrast to its decision regarding the
possibilitythatjurisdiction might existundertheGenocide Convention. Whilethe
Court expressly leR unaffected the right of the Parties to submit arguments in
respect of the question ofjurisdiction under the GenocideConvention,it did not
do so with regard to Article 36(2). The case was permitted to remain on the
GeneralList only on the basis that jurisdiction might be found to exist under the
GenocideConvention,not under Article 36(2)of the Statute. It is not opento the
FRY now, at the present state of the proceedings,to seek to reintroduce Article
9 UN Doc. S/PV/150p.3 (fullstatementatAnnex3).
536(2)as a basis forjurisdiction. This matteris dealt withfürtherin paragraphs4.8
to 4.18below.
1.13 The United Kingdom Mer submits that, even if- notwithstandingthe
clear language of the Order of 2 June 1999 -the FRY were not debarred from
attemptingto rely uponArticle 36(2) of the Statute,Article 36(2) does not confer
jurisdiction in the presentcase. Thisissueis discussedin paragraphs4.19 to 4.47
below.
1.14 Nor can Article IX of the Genocide Conventionconstitute a basis for the
jurisdiction of the Court in the present case. The Application does not raise a
dispute "relating to the interpretation, application or fulfilment" of that
Convention. Most of the Applicationand Memorialis manifestly concernedwith
issues which have nothing whatsoever todo with the Genocide Convention and
even where the Application andthe Memorial referto that Convention, thecase,
even aspleaded by the FRY, does not fa11within the jurisdictional provisions of
the Convention. Thisissueis iùrtherconsideredinPart 5below.
1.15 With regardto the questionof admissibility,the United Kingdom submits
that the attempt to add allegations regardingthe activitiesof the United Kingdom
as part of KFOR following theadoptionof SCR 1244is inadmissiblein that the
FRY is seeking to add matters which would radically transforrnthe nature of the
dispute. This matteris consideredinparagraphs6.2to 6.8 below.
1.16 Moreover, the United Kingdom submits that the entire Application is
inadmissible because, in order to rule upon it, the Court would be required to
determine the legality of the actions of States not before the Court, and,
particularlywith regardto the allegations concerningevents after 10June 1999,of
others,includingthe United Nations. Thisissue of admissibility is consideredin
paragraphs6.9 to 6.27below.1.17 Finally, the United Kingdom submits that the Application should be
declared inadmissibleon the groundthat the FRY has acted, and is continuingto
act, in bad faith. Thismatteris consideredinparagraphs6.28to 6.40 below. PART2
BACKGROUND TOTHE PRESENTPROCEEDINGS
International concern aboutthe situation in Kosovo pre-dated by several
2.1
years the events of 1998-1999. In July 1992 the Helsinki sumrnit of the
Conferenceon Security and Co-operationin Europe (CSCE) adopted a declaration
"urging the authoritiesin Belgrade to refrain from further repression". In August
1992the CSCEestablisheda missionin Kosovoto monitorthe situation. A report
in December 1992by the mission expressed deepconcern over the increasing
violence in the province. In June 1993thFRY refused to renew the mandateof
the CSCE mission. In SCR 855 (1993) of 9 August 1993, the Security Council
calledontheFRYto reconsiderits decision,butthe cal1went unheeded.
2.2 On 31March 1998the SecurityCounciladopted,by fourteenvotes to none
with one abstention,SCR 1160(1998).1° SCR 1160(1998), which was adopted
under Chapter VI1 of the Charter, condernned "the use of excessive force by
Serbianpolice forces against civilians and peacefuldemonstrators in Kosovo, as
well asal1acts of terrorism by the KosovoLiberationArmy or any other group".
The resolution included a mandatory prohibition the supply of weaponsto the
FRYand onarmingandtrainingfor terroristactivitiesthere.
2.3 Diplomatic efforts to resolve the crisis in Kosovo continued over the
summer of 1998. In a Presidential Statement of 24 August 1998 the Security
Council expressed its grave concern at the recent intense fightingn Kosovo,
particularlythe numbersof displaced persons. TheCouncil noted that it "remains
IO Annex4.essentialthat the authoritiesof the Federal Republicof Yugoslaviaandthe Kosovo
Albaniansaccept responsibilityforendingthe violencein~osovo".'~
2.4 A report of 4 September 1998 by the United Nations Secretary-General
noted that, as a result of the fighting, there had been a tenfold increase in the
number of displaced persons sincethe first four monthsof the year. Thetotal in
September was estimated at over 230,000, of whom 170,000were internally
displacedwithin Kosovo. The report noted that deserted "towns and villages, as
well as destroyedhouses, slaughteredlivestock and burned fields,bearwitnessto
the scaleof displacement anddestructionin Kosovo".It quotedUNHCRestimates
that up to 50,000 displaced personsin Kosovo couldhave been "forcedfromtheir
homes into the woods and mountains". The report emphasisedthat "if these
peopleremain intheir currentlocationsover thewinter,theywillbe at seriousrisk
of death". The report contrastedtheundertakingsgiven by the FRYauthoritiesto
facilitatereturn with the facts on the ground, concluding that"inadequatesecurity
conditionsand the continueddestructionof homes" was makingreturn "virtually
impossible". The Secretary-Generalnoted that if the FRY Governrnent continued
with its policies, it couldtransformwhat is currentlya humanitariancrisis into a
humanitariancatastrophe".12
2.5 A further report by the Secretary-Generalon 21 September1998notedthat
the month since the previous report had seen "a sharp escalation of military
operationsin Kosovo,as a result of anoffensivelaunchedbythe Serb forces".13
2.6 On 23 September,the SecurityCouncil adopted,by fourteenvotesto none
with one abstention, SCR 1199 (1998),14also under Chapter VI1of the Charter.
11 Annex5.
l2 UNDoc. S/1998/834,paras.7,8,9 and11.
13
UNDoc. SI19981834lAdd.1,para.1.
14 Annex6.The Council,having considered the reports of the Secretary-General referredto
above, affirmed that the deterioration of the situation in Kosovo constituted a
threatto peace and securityin theregion,and statedthat itwas-
"Gravely concerned at the recent intense fighting in Kosovo and in
particularthe excessiveand indiscriminate useof forceby Serbian security
forces and the Yugoslav Army which have resulted in numerous civilian
casualties and, according to the estimate of the Secretary-General,the
displacementof over 230,000persons fiomtheirhomes",
and
"DeepZyconcernedby the rapid deteriorationin the humanitarian situation
throughoutKosovo, alarmed at the impending humanitarian catastropheas
describedin the report of the Secretary-General, andmphasisingthe need
to prevent thisfiom happening".
SCR 1199demanded acease-fire and the start of a real dialogue. In particular,in
paragraph 4, the Councildemandedthat theFRY:
" (a) cease al1 action by the security forces affecting the civilian
population and order the withdrawal of security units used for civilian
repression;
(b) enable effective and continuous international monitoringin Kosovo
by the European Community MonitoringMission and diplomatic missions
accredited to the Federal Republic of Yugoslavia, including accessand
complete fieedom of movement of such monitors to, fiom and within
Kosovounimpededby govemment authorities,and expeditiousissuanceof
appropriatetravel documentsto international personnel contributing to the
monitoring;
(c) facilitate, in agreement with the UNHCR and the International
Committee of the Red Cross (ICRC), the safe retum of refugees and
displaced personsto their homes and allowfiee and unimpeded accessfor
humanitarianorganizationsandsuppliestoKosovo;
(d) make rapid progress to a clear timetable,in the dialogue referredto
in paragraph 3 with the Kosovo Albanian community called for in
resolution 1160 (1 998), with the aim of agreeing confidence-building
measuresand findinga political solutionto the problemsof Kosovo".2.7 In October 1998apackagewasnegotiated withthe FRY, which comprised
a FRYIOSCEagreement, signed on 16 October, for an unarmed civilian ground
verification mission in Kosovo (the Kosovo Verification ~ission)'~ and a
FRYNATO aerial verificationagreement,16 which ledto the multinationalAerial
Verification Mission overseen by the Verification and Coordination Centre in
Skopje.
2.8 The SecurityCouncilwelcomedthis packagein SCR 1203(1998),adopted
under Chapter VI1 on 24October 1998, by thirteen votes to none with two
abstentions.17 This resolution re-emphasisedthe need to prevent the impending
humanitarian catastrophe fiom happening. It demanded the full and prompt
implementationby the FRY of the agreementsreached withthe OSCEand NATO
and with the requirementsof SCRs1160and 1199. The resolution demanded,in
paragraph 11,that the FRY and the Kosovo Albanian leadership cooperate with
international efforts "to improve the humanitarian situation and to avert the
impendinghumanitariancatastrophe".
2.9 SCRs 1160and 1199 also called uponthe FRY andthe Kosovo Albanian
leadershipto cooperate with the ICTY Prosecutor. On 17 November 1998,the
Security Counciladopted a furtherresolution,SCR 1207(1998), condemningthe
failureof the FRYto cooperatewiththe ICTY."
2.10 On 15 January 1999 the Kosovo Verification Mission reportedthat FRY
securityforces and Serbianspecial policehad beenresponsiblefor a massacre of
Kosovo Albanian civilians at Racak. In a Presidential Statementon 19 January
1999the Security Councilstronglycondemnedthe massacre, deploredthe FRY'S
15 UN Doc.S/1998/978.
16 UN Doc.S/1998/991.
17 Annex7.
18
Annex8.decision to refuse the ICTY Prosecutor access to Kosovo to investigate the
massacre,and statedtheview ofthe Council thatthe recent eventswere violations
of itsresolutions.l9
2.11 Meeting on 29 January 1999in London, Foreign Ministers of the Contact
Group (France, Gerrnany, Italy, Russian Federation, United Kingdom, United
Statesof Arnericaand EU Presidency) calledupon the FRY/Serbian and Kosovo
Albanianparties to attend negotiations,to begin on 6 February 1999,to defmethe
terms of an agreementwhich would provide for a cease-fire, a peace settlement
and the deployment of an international presenceto uphold that~ettlement.~'This
initiativewaswelcomedby the Security~ouncil.~'
2.12 Following two and a half weeks of negotiations at Rambouillet, France,
there emerged whatbecameknown as the Rambouilletaccords," the full text of
which was endorsed by Contact Group Foreign Ministersat their meeting on 23
February 1999. The FRY/Serbian delegation wrote to the negotiators on that
day," emphasizingthat 'majorprogresshas beenachieved ...in definingpolitical
solutionon substantialself-government"for Kosovo. TheFRY "agreedto discuss
the scope and character of international presence in Kosmet to implement the
agreementto be acceptedin Rambouillet".
2.13 As agreed at Rambouillet a secondround of talks was held in Paris fiom
15-19 March. In response to a proposa1by the FRYISerbian delegation for
substantial changes to the draft agreement:' the Russiq United States and
19 UNDoc.S/PRST/1999/2(Annex9).
20
UN Doc.Sl1999196.
21 UNDoc.S/PRST/1999/5(Annex10).
22
UNDoc.Sl19991648.
23 M. Weller (ed.), TheCrisis in Kosovo 1989-1999,(hereinafter"TheCrisis in Kosovo"),p. 470
(document33).
24
TheCrisisinKosovo,pp. 480to490(document2).EuropeanUnion negotiators emphasizedin a letter to the Belgrade delegationof
16Marchthat '"iheunanimousview of the ContactGroup"was that onlytechnical
adjustmentsto the agreementendorsed at Rambouillet could be agreed.25On 19
March the Co-chairmen of the talks announced that, given the FRYISerbian
delegation7sposition,therewasnopurposein extendingthetalks any~her.~~
2.14 Also on 19 March the OSCE Chairman-in-Office (the Foreign Ministerof
Norway)decidedto withdrawthe KosovoVerificationMissionthe next day asthe
situation in Kosovo had deteriorated to such an extent that it was becoming
increasinglydifficultforthe Missionto carryout itstasks safely.
2.15 Thereport of the Kosovo VerificationMission,which waspublishedby the
OSCE in November 1999, gives a detailedpicture of the situation in Kosovoin
March 1999. The findingssumrnarizedinthat reportinclude:
That the intention of the Yugoslav and Serbian forcesto use mass
(a)
killing as an instrument of terror, coercion or punishment againstKosovo
Albanians was already in evidence in 1998 and was shockingly
demonstratedby incidents in and after January 1999(including theRacak
masskilling);
Arbitrary killing of civilians was both a tactic in the carnpaignto
(b)
expelKosovoAlbanians,and an objectiveinitself;
(c) Arbitrary arrest and detention and the violationof the right to a fair
trial became increasinglythe tools of the law enforcement agenciesin the
suppression of Kosovo Albanian civil and political rights and -
accompanied by torture and ill-treatment - were applied as a means to
intimidatethe entireKosovoAlbaniansociety;
25 TheCrisis in Kosovo, p. 490 (document 3).
26 TheCrisis in Kosovo, p. 493 (doc10).t (d) Rape and other forms of sexualviolence weresometimesappliedas
a weaponof war;
Forced expulsion carried out by Yugoslav and Serbian forces took
(e)
place on a massive scale, with evident strategic planning and in clear
violation of the laws and customs of war. It was often accompaniedby
deliberate destruction ofproperty and looting.Opportunitiesfor extortion
of money were aprime motivation for Yugoslav and Serbian perpetrators
ofhumanrightsand humanitarianlaw violation^.^'
2.16 The scale of the hurnanitarian crisis which existed in Kosovo in March
1999 was confirmed by the briefing given by the United Nations High
Cornmissionerfor Refugees to the Security Council on 5 May 1999. In that
briefing, Mrs Ogata stated that, before 24 March 1999,there had already been
nearly half a millionpeople (out of a total population of only two million) who
were internally displacedpersonsor refugees inneighbouring tat tes.^'
2.17 It was against this background that the North Atlantic Council concluded
that military actionwas the only way to avert the humanitariancatastrophewhich
the SecurityCouncil had feared and which was then unfolding. The Secretary-
Generalof NATO announcedon 23 March that NATO air operations in the FRY
were beginning. He notedthat NATO was takingthis actionfollowingthe failure
of the FRY to meet the international cornmunity's demands. He recalled that
NATOhad warned on 30 Januarythat "failure to meetthese demandswould lead
NATO to take whatever measures were necessary to avert a humanitarian
27 Annex11(Executivesurnmaryofthe rep, osovo/Kosova:AsSeen,As Told). Thefull report is
availableathttp://www.osc¢.org/kosovo/reports/hr/index.htm.
28
Annex12.catastrophe" and thatNATO's actionwas intendedto supportthe political aimsof
the internationalcornmunity .29
2.18 The Security Council considered the action being taken by NATO at a
meeting on 24 March 1999. Speaking in the Council, the representativeof the
UnitedKingdomsaid:
"The actionbeing taken is legal. Itisjustified as anexceptional measureto
prevent an overwhelming humanitarian catastrophe. Under present
circumstances in Kosovo, there is convincing evidence that such a
catastropheis imminent. Renewedacts of repressionby the authoritiesof
the Federal Republic ofYugoslavia would causefurtherloss of civilian life
and would lead to displacementof the civilian populationon a large scale
and in hostileconditions.
Every means short of force has been triedto avert this situation. Inthese
circumstances,and as an exceptionalmeasureon groundsof overwhelming
humanitarian necessity, military intervention is legally justifiable. The
force now proposed is directed exclusivelyto averting a humanitarian
catastrophe,andisthe minimumjudgednecessaryforthatpurpose."30
Statements justi@ing the action were also made by the representatives of the
United States of ~merica," loven nia ,'^hrain,~~~arnbia,~' the
~etherlands,"~ rance,' M^ alaysia''and~r~entina." china,' theRussian
- -
Annex13. SeealsoUNDoc.Sl19991107.
UNDoc. SPV.3988, p. 12(Annex14).
SPV.3988, pp.4-5.
SPV.3988,pp.5-6.
SPV.3988, pp.6-7.
SPV.3988, p.7.
SPV.3988, pp.7-8.
SPV.3988,p. 8.
SPV.3988, pp.8-9.
SPV.3988, pp.9-10.
SPV.3988, p. 11
SPV.3988, pp. 12-13.Federation 4'andNamibia 42were criticalof the operation.
2.19 On 26 March 1999,the SecurityCouncil considered a draft resolutionco-
sponsoredby Belams, India and the Russian~ederation." The draft describedthe
use of force by the NATO States as "a flagrant violation of the United Nations
Charter, in particular Articles 2(4), 24 and 53"and demanded an irnmediate
cessation. Speaking in the debate on the draft, Nr JovanoviC:(on behalf of the
FRY) accused the NATO States of aggression and of violating international
humanitarian law." These allegationswererefuted by the United ~in~dom" and
most of the other States represented on the Council. The Russian draftresolution
was rejectedby twelve votes (Argentina, Bahrain,Brazil, Canada, France,Gabon,
Garnbia, Malaysia, Netherlands, Slovenia, United Kingdom, United States of
America)to three (China,Namibia,Russian~ederation)."
2.20 On 9 April 1999,the Secretary-Generalissued a statement expressing his
deep distressatthe humanitariantragedytakingplace inKosovo andinthe region,
and urgentlycalled upon the FRY authoritiesto end the campaignof intimidation
and expulsion of the civilian population and to accept the deployment of an
international military force to ensure a secure environment for the return of
refugeesandthe unimpededdeliveryof humanitarianaid.47
2.21 On 6 May 1999in Bonn, ForeignMinistersof the GroupofEight countries
("G8"- Canada, France, Germany, Italy, Japan, Russian Federation, United
41
SPV.3988,pp. 2-4and13.
42 SPV.3988,p. 10.
43 UN Doc.SI19991328(Annex 15).
44
UN Doc.SPV.3989, p. 11(Annex 16).
45 SPV.3989,pp. 6-7.
46 SPV.3989,p. 6.
47
Annex17.Kingdom, United States of Arnerica) agreed a set of principles to resolve the
crisis:
- Irnmediate and verifiableendof violence andrepressioninKosovo;
- Withdrawalfi-omKosovoofmilitary,policeand paramilitary forces;
- Deploymentin Kosovo of effectiveinternational civil andsecurity
presences, endorsed and adopted by the United Nations, capable of
guaranteeingthe achievementofthecommonobjectives;
- Establishmentof an interimadministrationforKosovoto be decided
by the Security Council of the United Nationsto ensure conditions for a
peacefulandnormal lifefor al1inhabitantsinKosovo;
- The safe and fiee rem of al1refugeesand displaced personsand
unimpededaccessto Kosovoby humanitarian aidorganisations;
-
A political process towardsthe establishmentof an interim political
framework agreement providing for a substantial self-government for
Kosovo,taking full accountof the Rambouilletaccords and the principles
of sovereignty and territorial integrity of the Federal Republic of
Yugoslaviaand the othercountriesofthe region,andthe demilitarisationof
theKLA;
- Comprehensive approach to the economic development and
48
stabilisationofthecrisisregion.
2.22 On 14May 1999,the Security Counciladoptedresolution 1239(1999) on
humanitarian aspectsof the cri si^.T^^e Council expressed"grave concernat the
humanitarian catastrophe in and around Kosovo," and emphasised that the
humanitariansituationwould continue to deterioratein the absenceof a political
solution to the crisis consistent with the principles adoptby the G8 Foreign
Ministerson 6May 1999and urgedal1concernedtoworktowardsthis aim.
48 UNDoc. Sl19991516.
49 Annex18.2.23 On 27 May 1999, the ICTY announcedthe indictment of FRY President
Milosevic, Serbian President Milutinovic, FRY Vice-President Sainovic,FRY
Chief of Defence Staff Ojdanic and FRY Interior Minister Stojilkovic for crimes
againsthumanity andviolationsof the lawsandcustomsofwar in Kosovo.
2.24 On 3 June 1999,the FRY President agreedto the proposals presentedby
EuropeanUnion specialenvoyAhtisaariandRussianenvoy Chernomyrdin,which
were based on the G8 principles(para.2.21above). Following the signatureon 9
June of aMilitary TechnicalAgreementby the YugoslavArmy Chief of General
Staff, Colonel GeneralMarjanovic,Lieutenant-GeneralStevanovicand theKFOR
Commander, Lieutenant-GeneralSirMichael Jackson,the withdrawal ofFRY and
Serbian security forces began on 10 June 1999. Air strikes were suspendedby
NATO on 10June 1999.
2.25 Onthe sameday,the Security Council,by fourteenvotes to none, with one
abstention, adopted SCR 1244 (1999).~' The resolution welcomed the general
principles ona settlementlaid downby the G8on 6 May 1999(para. 2.21 above),
which were attached as annex 1 to the resolution. The points of agreement
between the FRY and the EU and Russian envoys (para. 2.24 above) were
attachedas annex 2to the resolution.
2.26 In SCR 1244,the Security Council authorized MemberStates and relevant
internationalorganizationsto establian international securitypresence (para.7),
involvingsubstantialNATOparticipationandunderunified comrnandand control
(annex2,point4). The responsibilitiesgivento the internationalsecurity presence
were:
"(a) Deterring renewed hostilities, maintainingand where necessary
enforcing a cease-fire, and ensuring the withdrawal and preventingthe
50 Annex2. return into Kosovo of Federal and Republic military, police and
paramilitaryforces,exceptasprovided inpoint6 of annex2;
(b) Demilitarisingthe KosovoLiberationArmy (KLA)and other armed
KosovoAlbaniangroups,asrequiredinparagraph 15below;
(c) Establishing asecure environmentin which refugeesand displaced
persons can return home in safety, the international civil presencecan
operate, a transitional administrationcan be established,and humanitarian
aid canbe delivered;
Ensuringpublic safetyand orderuntilthe international civil presence
cantakeresponsibilityforthistask;
(e) Supervising demining untilthe international civil presence cm, as
appropriate,take overresponsibilityfor thistask;
(f) Supporting,as appropriate, and coordinatingcloselywith the work
ofthe internationalcivilpresence;
(g) Conductingborder monitoring duties as required;
(h) Ensuring the protection and fieedom of movement of itself, the
international civilpresence,andother internationalorganisations"(para.9).
2.27 The Security Council also authorized the Secretary-General, with the
assistanceof relevant internationalorganizations,to establishan international civil
presencein Kosovo -
"in orderto provide an interim administrationfor Kosovounder which the
people of Kosovo can enjoy substantial autonomy within the Federal
Republic of Yugoslavia,and which will provide transitional administration
while establishing and overseeing the development of provisional
democratic self-governinginstitutions to ensure conditions for a peaceful
andnormallife foral1inhabitantsof Kosovo"(para. 10).
Theresponsibilitiesgivento the international civilpresencewere:
"(a) Promoting the establishment, pending a final settlement, of
substantial autonomy and self-governmentin Kosovo, taking full account
of annex2 and oftheRambouilletaccords(SI19991648); (b) Performingbasic civilianadministrative finctions where andas long
asrequired;
(c) Organising and overseeing the development of provisional
institutions for democratic and autonomous self-government pending a
politicalsettlement,includingtheholding of elections;
(d) Transferring, as these institutions are established, its administrative
responsibilities while overseeing and supporting the consolidation of
Kosovo's local provisionalinstitutionsand otherpeace-building activities;
(e) Facilitating a political process designed to determine Kosovo's
futurestatus,taking into accountthe Rambouilletaccords(Sl19991648);
(f) In a final stage, overseeingthe transfer of authority fiom Kosovo's
provisional institutions to institutions established under a political
settlement;
(g) Supporting the reconstruction of key infrastructure and other
economicreconstruction;
(h) Supporting, in coordination with international humanitarian
organisations, humanitarianand disasterrelief aid;
(i) Maintaining civil law and order, including establishinglocal police
forces and meanwhile through the deployment of international police
personnelto servein Kosovo;
(j) Protectingandpromoting hurnanrights;
(k) Assuringthe safe andunimpededreturnof al1refugeesand displaced
personsto their homesin Kosovo"(para. 11).
The Security Council also requested the Secretary-General to appoint, in
consultation withthe Security Council, aSpecial Representative"to control the
implementationofthe internationalcivilpresence" and "to coordinatecloselywith
the internationalsecurity presence to ensure that both presences operate towards
the samegoalsand in a mutuallysupportivemanner"(para. 6).2.28 The Secretary-General's report of 12 June 199g51set out proposed
arrangements for the international civilpresence, the United Nations Interim
AdministrationMission inKosovo ("UNMIK"). UNMIKwouldhave pillarsrun
by the United Nations (interim civil administration)U , NHCR (humanitarian
affairs), OSCE (human rights, democratisationand institution-building)and the
EuropeanUnion (reconstruction).
2.29 The international security presence,the Kosovo Force ("KFOR"), was
deployed to Kosovo on 12 June 1999. The nurnber of States which make up
KFOR varies fkomtime to time. As at 31 May 2000 the followingthi.rty-nine
States were contributing to KFOR: Argentina, Austria, Azerbaijan, Belgium,
Bulgaria, Canada, Czech Republic,Denmark,Estonia,Finland,France, Georgia,
Germany, Greece, Hungary, Iceland, Ireland, Italy, Jordan, Latvia, Lithuania,
Luxembourg, Morocco, Netherlands,Norway, Poland, Portugal, Romania,
Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey,
Ukraine,United Arab Emirates,UnitedKingdomand United Statesof Arnerica. It
was agreed with al1participants, includingthe Russian Federation, thatKFOR
would have a unified NATO chain of command and that there would be
consultationson theconductofthe operationwith thosenon-NATOcountrieswho
wishedto participate. Suchconsultationshavebeenheldon a regularbasis.
2.30 The Secretary-General'sreport of 12 July 1999 set out the measures
UNMIK was taking in cooperation with KFOR "aimed at restraining Kosovo
Albaniansand reassuringKosovoSerbs". The reportexpressedparticular concern
about the "continued harassmentand lack of security of minority groups in
Kosovo" and identifiedthefull deploymentof UNMIKand KFORpersonnelas a
majorcontributionto addressingthis problem. 52
51 UN Doc.SI1999167(Annex19).
52 UN Doc.Sl1999177paras26and120.2.31 The Secretary-General'sreport of 16 September 1999noted that violence
against'Culnerableminorities"remaineda "major~oncern".~~ Thatreportalsoset
out UNMIK'seffortsto createmulti-ethnicgovernrnentalstructuresto includethe
Kosovo Serbs. Thesewere intendedto build onthe Kosovo Transitional Council,
which brings togetheral1major political partiesandethnicgroupsinKosovo.
2.32 The Secretary-General's reportof 23 December 1999 set out Mer steps
taken to protect minorities. An inter-agency Ad Hoc Task Force on Minorities
was coordinating fürther steps aimed at protecting and assisting minorities,
includingsteps to reinforcehome security and establishmentof a hotline between
agencies,KFOR and UNMM police.54
2.33 Thejoint statementby the SpecialRepresentativeof the Secretary-General
and the KFOR Commander of 18 August 1999 set out some of the special
measures that KFOR was taking, including: round-the-clockpatrolling; soldiers
living in apartment blocks to provide protection to those at risk; and escorts to
work and to school for minority cornmunitiesand individuals. It also noted that
UNMIK and KFORwere continuallyreviewingthe security situation andseeking
ways toimprovetheirresponse. 55
2.34 As required in SCR 1244, the NATO Secretary-Generalhas provided
regularreports to the UnitedNations Secretary-GeneralonKFOR'sactivities.The
report circulated by the United Nations Secretary-General on 8 July 1999,
coveringthe penod 17to 30 June 1999,noted that there hadbeen "many reported
incidents of reprisa1attacks against Serbs and their property. KFORis taking a
firm line against these disturbances within its resources". 56
The next report,
53
UNDoc. S/1999/9 87,.4.
54 UN Doc.S/1999/1250.
55
The UnofficialTranscriptof theUNMIK Press Br18August1999whichincludesthe text
ofthejoint statementvailabahttp://www.un.org~peace/kosovo/pres (sn/ex280).99.htm
56 UN Doc.S/1999/7 67,.3.circulatedon 10August 1999,coveringthe period 1to 27 July 1999,confmed
that sincethe deploymentof KFOR "the initial exodusof Serbshas beenreduced
as the result of KFOR effortsto providea secureenvironment. Themain aims of
KFOR have beenthe restorationof law and order and the protection of the Serb
and otherminorities ....57
2.35 The report circulated by the United Nations Secretary-Generalon 15
October 1999, covering the penod 30 August to 27 September 1999,noted that
responsibilityfor police functionswas transferred fiom KFOR to UNMIKat the
end ofAugust 1999. It added:
"...KFOR still conducts security patrolsin al1major urban areasand in the
countrysideto detercrimeand instill a senseof persona1safetyin civilians.
Approximately half of KFOR's total available manpower is directly
9,58
comrnittedto currentprotectiontasks .
The next report, circulated on 18 November 1999 and covering the period 27
Septemberto 26 October 1999,confirmedthis figure, notingthat "KFOR troops
provide a permanent presence in Serbtowns, villages, neighbourhoodsand even
individualh~uses".~'The reportcirculatedon 20December 1999and coveringthe
period27 Octoberto 23November 1999,recorded asimilarlevelof activity."
2.36 The first report of 2000, dated23 January 2000 and covering the period
fkom24Novemberto 14December 1999,notedthat:
"KFOR ..continuesto attachthe highest priority to the protection of ethnic
minorities, and approximately50 per cent of its personnel is assigned to
this task......KFOR is followingan overall strategy that aims at reducing
the amount of ethnicallymotivatedviolence in Kosovo. This includes the
establishmentofjoint security working groups, escorts for individualsand
57 UN Doc.Sl19991868p,ara19.
58
UN Doc.S11999t1062p,ara.9.
59 UN Doc.SI199911185para.3.
60 UN Doc.Sl199911266. groupswhen necessary,escorts for humanitarianaid convoys,high-profile
patrols and static checkpointsin and around ethnic minoritypockets .and
operations to fmd and confiscate illegaVunauthorized weapons and
munitionsthroughoutKosovo."
Thereport alsonotedthat:
"Since June 1999, the number of murders and other violentacts in the
province has decreased graduallyand significantly,despite occasional set-
backs. KFOR's presence has resulted in a reduction in the number of
reportedmajor offences, fromover300in the lastweek of Juneto lessthan
50inthe lastweek of~ovember."~~
2.37 Subsequent reports confirm that KFOR and UNMIK continue to make
everyeffortto protectminoritiesin ~osovo.~~Whilethe situationinKosovois far
fi-omideal, the United Kingdom contingentdoes everythingthat it can to ensure
the securityof al1personsin Kosovo, especiallythosemostatrisk.
61 UN Doc.S/2000/50,paras.4 and5.
62 UNDoc. S/2000/152;UN Doc. S/2000/235;UNDoc.S/2000UN1Doc.S/2000/489. PART3
THECOURTLACKSJURISDICTIONRATIONEPERSONAE
3.1 The United Kingdom submits that the Court does not have jurisdiction
ratione personae, because the FRY is not qualified to bring these proceedings.
The FRY is a new State that came into existence in 1992 (paras. 3.2 to 3.12
below). TheFRY is not a party to the Statute of the Court, since it is neither a
Memberofthe UnitedNationsnor a non-MemberStatethat has become apartyto
the Statuteunder Article 93(2) of the Charter (paras. 3.13 to 3.26 below). The
FRY hasnot claimedto be entitledto bring these proceedings by virtueof Article
35(2)ofthe Statute,nor couldit do so(paras.3.27to 3.34below).
3.2 The creation of the FRY was the result of the events of 1991 and 1992.
Priortothoseevents,theterritoryknownasYugoslavia consistedof a singleState,
the Socialist Federal Republic of Yugoslavia (SFRY), which comprised six
republics (Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia,
Slovenia). In 1991 Croatia and Slovenia declared independence. On 29
November 1991, the Arbitration Commission of the Peace Conference on
~u~oslavia~~ gaveits opinion:
"- that the Socialist Federal Republic of Yugoslavia is in the process of
dissolution;
63 TheArbitrationCommissionwasestablishedbyajoint statementon Yugoslaviaadoptedat an
exîraordinarymeetingofMinistersin thecontextofEuropeanPolitical Cooperationon27 August 1991,
and was acceptedbythe six YugoslavRepubliopeningofthe Peace Conferenceon7 September
1991: seeInterlocutory Decision (OpinionsNoIO)92 ILR194. - that it is incumbentupon the Republicsto settle suchproblemsof State
succession as may arise fiom this processin keepingwiththe principles
and rules of international law,with particular regard for human rights
and the rights ofpeoplesandminorities;
- that it is up to those Republicsthat so wish, to work togetherto forma
new association endowed with the democratic institutions of their
choi~e."~~
3.3 TheRepublics of Croatiaand Sloveniawere admittedto the United Nations
on 22May 1992.~'The Republic of Bosnia andHerzegovinawas admittedto the
UnitedNations on 22 May 1992.~~The Republic of Macedoniawas adrnittedto
the UnitedNations on 8 April 1993(underthe provisional designation"the former
99 67
YugoslavRepublic ofMacedonia ).
3.4 On 27 April 1992the Republic of Serbiaand the Republicof Montenegro
formedthe FRY, of whichtheywere the onlyconstituentrepublicsundera federal
constitution. In a declaration,of the same date, annexedto a letterto the United
Nations Secretary-General,the FRYstatedthat:
"The Federal Republic of Yugoslavia, continuingthe State, international
legal and political personality of the Socialist Federal Republic of
Yugoslavia, shall strictly abide by al1the commitmentsthat the SFR of
Yugoslaviaassumedinternati~nall~".~~
3.5 On 30 May 1992the SecurityCouncil adopted SCR 757 (1992),in which
the Councilnoted -
64
OpinionNo. 1,92ILR 162.
65 Security Council resolution753 (1992) and GeneralAssembly resolution461238 (Croatia);
SecurityCouncil resolut754 (1992)andGeneralAssemblyresolution46/236(Slovenia).
66
SecurityCouncilresolution755(1992)andGeneralAssembly resolu461237.
67 Security Councirlesolution817(1993)andGeneralAssembly resolution 471225.
68 UNDoc.Al461915(Annex21). "that the claim by the Federal Republic of Yugoslavia (Serbia and
Montenegro) to continue automatically the membership of the former
Socialist Federal Republic of Yugoslavia in the United Nations has not
beengenerally a~ce~ted".~~
3.6 On 4 July 1992, the Arbitration Commissionof the Peace Conferenceon
Yugoslaviagave its opinion that the process of dissolutionof the SFRY was now
cornpleteand that the SFRY no longer existed." The Arbitration Commission
also statedthat the FRY was a new State, notthe continuationof the old SFRY.~'
In another opinion of the same date, the Arbitration Commission concluded that
none of the successor States ofthe SFRYwas entitledto claimfor itselfalonethe
membership rights previously enjoyed by the SFRY in international
3.7 On 19 September 1992, the Security Council adopted SCR777 (1992),
which reads:
"TheSecuriwCouncil,
Reafirming its resolution 713(1991)of 25 September 1991 and al1
subsequentrelevantresolutions,
Consideringthat the State fonnerly known as the Socialist Federal
Republicof Yugoslaviahas ceasedto exist,
Recallingin particularitsresolution757(1992)which notesthat ''the
claim by the Federal Republic of Yugoslavia (Serbia and Montenegro)to
continue automatically the membership of the former SocialistFederal
69 Annex22.
70
OpinionNo. 8,92 ILR 199.
71 Zbid. See also OpinioIO,92 ILR206.
72
OpinionNo.9,92 ILR203. Republic of Yugoslavia in the United Nations has not been generally
accepter,
1. Considers that the Federal Republic of Yugoslavia (Serbia and
Montenegro) cannot continue automaticallythe membershipof the former
Socialist Federal Republic of Yugoslavia in the United Nations; and
therefore recommends to the General Assembly that it decide that the
Federal Republic of Yugoslavia(Serbia and Montenegro) should applyfor
membership in the United Nations and that it shall not participate in the
work of the GeneralAssembly;
2. Decides to considerthe matter again beforethe end of the main part
ofthe forty-seventhsessionofthe General~ssembl~".~~
3.8 On 22 September 1992,the GeneralAssemblyadopted resolution4711,in
which the Assembly, after notingthat it had received the recommendationof the
SecurityCouncilin SCR777(1992),considered -
"that the Federal Republicof Yugoslavia (Serbia andMontenegro)cannot
continue automatically the membership of the former Socialist Federal
Republic of Yugoslaviain the United Nations; and therefore decides that
the Federal Republicof Yugoslavia(Serbia and Montenegro)should apply
for membershipin the UnitedNations andthat it shallnot participatein the
work of the General~ssembl~"."
Immediately following the adoptionof this resolution,the FRY Prime Minister,
Mr MilanPanic, announcedinthe GeneralAssembly:
"1 herewith fonnally request membershipin the United Nations on behalf
ofthe new Yugoslavia,whoseGovernment1represent."75
Thisrequestwas not, however,followedupby theFRY.
73 Annex23.
l4
Annex24. Theresolutionwasadoptedbyvote,with127infavour,6 againstand26 abstentions.
75 UN Doc.Al47PV.7, pp. 141to 196atp. 149(Annex25).3.9 On 28 April 1993,the SecurityCouncil adoptedSCR 821(1993),in which,
after noting that the SFRYhad ceased to exist, it reaffirmed that the FRY could
not continue automaticallythe membership of the SFRY in the United Nations,
andtherefore recomrnendedto the General Assemblythat the FRY should not be
allowedto participate in the workof the Economic and Social ~ouncil.~~ On 29
April 1993, the General .Assemblyadopted resolution 471229, in which, after
notingthat it had received the recomrnendationof the Security Council in SCR
821 (1993), the Assemb1.ydecided that "the Federal Republic of Yugoslavia
(Serbia and Montenegro) shall not participatein the work of the Economic and
Social~ouncil".~~
3.10 On 9 April 1996,the Presidencyof the EuropeanUnion issued a statement
referringto a FRY-Macedoniaagreement signedon 8April and continuing:
"This development .......opens the way to recognition by the Member
States, in accordance with their respective procedures, of the Federal
Republic of Yugoslavia as one of the successor States to the Socialist
FederalRepublicof ~u~oslavia".~~
3.11 The United Kingdomrecognizedthe FRY as an independentState in April
1996.~~On 10April 1996the Secretaryof State for Foreign and Commonwealth
Affairssent a messageto theFRYPresident, which commencedas follows:
- -
76 Annex 26. The Security Councilhas consistently declinedto treat the FRYrepresentativein the
samewayas the representative of a Member State.Thus,for example,at the 3988&meetingthe President
of the Council made alear distinction betweenMemberStates invited "to participatein the discussion,
withouttherightto vote, inaccordancewith the relevant provisions of the Charter and rule 37 of the
Council'sprovisional rules of procedure" andMr Jovanovié,who was simply invited "to address the
Councilin the courseof its discussionof the item before it", witof the Statehe represented:
UNDocSPV. 3988,pp.2and 13(Annex14).
77 Annex27. Thevotewas 107to O,with 11abstentions.
BritishYearBookofInternationalLaw 1996,p.707 (emphasis added).
79 StatementonUKrecognitionofthe Federal Republicof Yugoslavia of 9 April1996issuedbythe
Foreignnd CommonwealthOffice,BritishYearBookofInternationalLaw 1996,pp.706-7. to place on record that the British Government formally
recognizesthe Federal Republicof Yugoslaviaas an independent sovereign
tat te".*^
3.12 Asof the dateof thesePreliminaryObjectionsthe FRYhas not followedup
the announcedintentionof its Prime Minister(seepara. 3.8 above)and submitted
an application for membership in the United Nations in due and proper form
pursuantto Article 4 of the Charter andrule 134of the Rules of Procedureof the
GeneralAssembly. Nor has the SecurityCouncil recornrnendedthat the FRY be
admittedto UnitedNationsmembership.
(2) TheFRY isnotaparty totheStatuteofthe Court
3.13 Article93 ofthe Charterreads asfollows:
"1. Al1 Members of the United Nations are ipso facto parties to the
Statuteofthe InternationalCourtof Justice.
2. A Statewhich is not a Memberof the United Nationsmay becomea
party to the Statuteof the InternationalCourt of Justiceon conditions tobe
deterrnined in each case by the General Assembly upon the
recornrnendationof the Security Council."
Article93 is to be read withArticle35(1)and (3)ofthe Statute:
"1. The Court shall be opento the States parties to the present Statute.
m . .
3. Whena Statewhich is not aMember ofthe UnitedNations is aparty
to a case, the Court shall fix the arnountwhich thatparty is to contribute
towards the expenses of the Court. This provision shall not apply if such
Stateis bearing ashareof the expensesof the Court."
-
80 British YearBookofInternationalLaw 1996,p.708.
30It follows fromthese provisions thatthere are onlytwo circurnstancesin which a
Statecanbe a partyto the Statuteof the Court. It must either be a Memberof the
United Nations or it must have become a partyto the Statute under conditions
determinedin its case by the General Assembly uponthe recommendationof the
SecurityCouncil. The FRY meetsneither of these conditions. The position was
accurately statedby the four other successor States (Bosnia and Herzegovina,
Croatia, Macedonia, Slovenia)in the communication receivedby the Secretary-
General on 28 May 1999, in which they concluded that the FRY'Spurported
declaration acceptingthe jurisdiction of the Court under Article 36(2) of the
Statutewas nul1andvoid."
TheFRYis not a party to the Statute underArticle 93.1 since it is
(a)
nota Memberofthe UnitedNations
3.14 As explained in paragraphs 3.2 to 3.12 above, the FRY is a new State
which cameinto beinguponthe dissolutionofthe SFRY. As a new Statethe FRY
maybecome a Memberofthe UnitedNations only in accordancewithArticle 4 of
the Charter, that is to Say, by a decision of the General Assembly upon the
recomrnendation of the Security Council. The Security Council, in SCR
777(1992), and the General Assembly, in resolution 47/1, invited the FRY to
apply for membership. The FRY Prime Minister announced in the General
Assemblyhis State'srequest for membership(para. 3.8 above). Rule 134 of the
Rules of Procedureof the General Assemblyprovides that an applicationshall be
submitted to the Secretary-General,and shall contain a declaration, made in a
forma1instrument,that the Statein question accepts the obligationscontained in
the Charter. No applicationfor membershiphasyet been madeby the FRY.
81 MultilateralTreaties Deposited withthe SecretapGeStatus as ut 31December1999,
VolumeI, pp.301note73 (Annex28).3.15 Instead,the FRY now claims,in itsMemorial, to bethe continuationof the
SFRY. This assertion appears first to have been made in the declaratien of 27
April 1992at the time of the adoption of the FRY ~onstitution.~~The claimhas
not been acceptedby any of the other four successor Statesto the SFRY(Bosnia
and Herzegovina,Croatia, Macedonia, love nia) o,rby States generally,84 or by
the political organsof the United ~ations,~~orby theUnited~in~dom.*~
3.16 On the contrary, the FRY'Sclaim to be the continuationof the SFRYhas
been widely rejected within the international community. In particular, the
politicalorgansofthe UnitedNations have rejected theFRY'Sclaimto "continue"
the SFRY'smembershipin the UnitedNations. Thetrueposition isthat the FRY,
despite its assertion, is not the continuationof theSFRY, butis one of five equal
successor States. Like the other four successor States, the FRY is not the
continuing Stateof the SFRY (the same international legalperson) but is a new
Stateestablishedinpart of the territory ofthe formerSFRY.
3.17 As a new Statethe FRY cannot automatically continuethe UnitedNations
membershipof the SFRY,but should - if it wishes to becomea Member - apply
for membershipin accordancewith the United NationsCharter. This is what the
Czech Republicand Slovakiadid in early 1993upon the dissolutionof the Czech
and SlovakFederal Republic on 31December 1992.~'It is also what the political
82 See para.3.4above.
83 See,for example,the communicationreferredto at note81above.
84 See, e.g., the European Union's statementthat the FRY is one of the successor States,para.3.10
above, and Opinions Nos. 8 and 10 of the ArbitrationCommissionof the Peace Conference,notes 70 and
71 above.
85 Seeparas.3.53.7, 3.8 and 3.9above.
86 Seepara.3.11above.
87 UN Docs. SI25046 (Slovak Republic); SI25045 (Czech Republic); see also Security Council
resolution800(1993) and 801(1993) of 8 January 1993 and GeneralAssembly resolutions471220and
471222of 19January 1993.organs of the United Nations, which have responsibilityunder the Charter for
detenniningquestionsof membership, have calleduponthe FRYto do.88
3.18 The analysis in Part 3.1 of the FRY Memorial proceeds fiom a false
premise. It is not the case that prior to the adoption of SCR 777 (1992) and
General Assemblyresolution4711the FRYwas a UnitedNations Member, whose
membershipcould be terrninatedby the GeneralAssembly under Article 6 of the
Charter. Nor is it the case, as is suggested in paragraph 3.1.2 of the FRY
Memorial,that some Statesproposed that theFRY "shouldbe excluded,formally
or de facto, fi-ommembershipin the UnitedNations". The FRY has never been a
Member of the United Nations. The predecessor State - the SFRY - was an
original Memberof the United Nations in accordancewith Article3. None of its
five successorStateswas entitledautomaticallyto continuethat membership. The
Security Council and the General Assembly made thatclear on more than one
occasion. Those in power in Belgrade, however, did notwant to acceptthat fact
(and,indeed,still settheir face againstit).
3.19 The language of SCR 777(1992) and General Assembly resolution4711is
consistent onlywith the position that the FRY is not a United Nations Member.
The statements that the FRY "cannot continue automatically the membershipof
the former SFRY" and "therefore should apply for membership" 89 are
incompatible with the assertion in the FRY Memorial that the FRY was and
remainsa Memberofthe UnitedNationsthroughout.
3.20 Turningto the practice of the Secretariat,the letterfiom the United Nations
Legal Counsel of 29 September 1992" in response to a letter fi-omBosnia and
~
88
Seeparas.3.7 to 3.8 above.
89 SCR 777(1992)(Annex 23) andGAR4711 (Annex24) andparas.3.to3.8above.
90 UNDoc.Ai471485(Annex29).Herzegovina and Croatia is likewise clear. It correctly States that the only
practical consequence drawnby the GeneralAssembly inresolution474 was that
the FRY should not participate in the work ofthe ~ssembl~.~' Moreover, the
Legal Counsel was right to Say that resolution 47/1 "neither terminates nor
suspends Yugoslavia's membership in the Organisation". It is significant,
however,that the Legal Counsel here refersto "Yugoslavia",whereasthe rest of
his letter refers to "the Federal Republicof Yugoslavia." The letter correctly
concludes by saying that "the admission to the United Nations of a new
Yugoslavia under Article 4 of the Charterwill terminatethe situation createdby
resolution47/1".
3.21 The legal opinionof the ActingDirectorofthe Officeof theLegalCounsel,
copiedto the PermanentMissionof Yugoslaviaon 15December 1997,''reiterates
the interpretation given by the Legal Counselof the practical consequencesof
GeneralAssembly resolution47/1. Moreover,his opinion notes that the resolution
itself was subsequently "recalled by the Security Council, and recalled and
reaffirmed by the General Assembly (resolutions47/229 and 48/88) withoutany
criticismof suchinterpretation".
3.22 Nevertheless,the practice ofthe Secretariat(which cannotof coursein any
event bind the political organs or Member States), and the occasional practiceof
the Assembly itself,reflects some ambiguityarising fiom any UnitedNations
membership of the FRY but fiom the fact thatthe SFRY'smembershiphas not
unambiguously been declared extinguished. Thus, for example the Secretary-
General, in his capacity as depositary of multilateral treaties, continues to list
"Yugoslavia" asa memberof the UnitedNations. Butit cannot be deducedfiom
91 And,later,inresolution471229,that it shouldnot participateinthe workofECOSOC.
92 Amex No. 167to thFRY Memorial.this practice, as suggested in paragraph 3.1.8 of the FRY Memorial, that "the
Secretary-Generalconsidersthat the Federal Republicof Yugoslaviais a Member
State of the United Nations". On the contrary, as the United Nations Legal
Counsel rightly stated in a letter of 31 January 1994 to the Perrnanent
Representativeof Slovenia,referredto inthe Acting Director's legalopinion(para.
3.21 above),the Secretary-Generalas depositaryis not in a positionto decide such
a question. After reciting this view, the Acting Director explains the practice in
the followingterms:
"Consequently,the Secretary-Generalmaintainsthe status quo with regard
totreaty actionsand referencesinpublicationsto Yugoslavia."
3.23 Nor is there any basisonwhichto concludethat the General Assembly has,
in its decisions on budgetary assessments Yreated the Federal Republic of
Yugoslavia as a Member State", as suggested in paragraph 3.1.7 of the FRY
Memorial. The FRYs assertionthat the Assembly's assessmentof contributions
on "Yugoslavia", anditspayment,on occasions,of suchassessments, are evidence
of the FRY'Sstatus as a Memberof the United Nationshas no basis in fact or in
law. The assessment of'contributions on "Yugoslavia" maybe regarded as
attributable to the anomalous position of Yugoslavia. There are indeed certain
functions,not amountingto UNmembership,which are currentlyexercisedby the
FRY Missionat the UN (egpersona1participationof Mr JovanoviCin the work of
the Security Council, the receiving and circulation of documents, etc). The
General Assemblyhas, in another context,referredto the "de facto working status
of Serbiaand ~ontene~ro".~~ The assessmentof a contributionon "Yugoslavia",
and suchpayment asthe FRYhas made,may be understoodon that basis. Inany
event, such decisions can have no legal bearing on the question of FRY
-- -
93 General Assembly resolu48/88of20December 1993,para19.
35membershipof the United Nations, which is a matter for forma1decisionby the
SecurityCouncilandthe GeneralAssembly underArticle4 oftheCharter.
3.24 The question of the FRY'Snon-membership of the United Nations was
expresslyleft open at the ProvisionalMeasures stage of the present proceedings.
The Court held that, in view of its finding that the Optional Clause declaration
manifestly couldnot constitute a basisofjurisdiction -
"the Court need notconsiderthis question [whether the FRYis a member
of the United Nations] forthe purpose of deciding whetheror not it can
indicateprovisional measuresinthe present case;"."
3.25 The question was addressed in some of the separate opinions at the
provisional measures stage of the present proceedings. Judge Oda held, in
paragraph 4 ofhis separateopinion,that -
"the Federal Republicof Yugoslavia, notbeing a Member of the United
Nations and thus not a State party to the Statute of the Court, has no
standingbeforethe Courtas an applicantState. The Applications presented
by the Federal Republic of Yugoslavia should therefore be declared
inadmissible for this reasonalone and shouldbe removedfiom the General
List ofthe Court."
Judge Kooijmans dealt with the question at paragraphs 4 to 29 of his separate
opinion,concluding -
"25. ..there are strong reasons for doubt as to whether the Federal
Republic of Yugoslavia is a full-fledged, fùlly qualified Member of the
United Nations and as such capable of accepting the cornpulsory
jurisdiction ofthe Courtas a partyto the Statute.
94
Orderof2 June1999,para.28. TheCourtsimilarlyleftthematteropenitsOrderof 8 April
1993inthecaseconcemingApplicationof theConventiononthePreventionandPunishmentofthe Crime
ofGenocide(BosniaandHenegovinav Yugoslavia(Serbia andMontenegro)I), JReports1993,p.atp.
11etseq(paras. 141). That meansthat there is a probability,which is far fiom negligible, that the
Court after a thorough analysisof the legal issues involved willfmdthat is
withoutjurisdiction because ofthe invalidityof Yugoslavia's declaration of
acceptance.
26. The disputed validity of that declarationtouches the very basis ofthe
Court's jurisdictionand, therefore,takes precedence over other issues,like
eg., limitationsrationetemporis,rationernateriaeandrationepersonae. In
view of the doubts and the controversieswith regard to this questionthe
Court would have found itself on safe ground if it had concluded thatthe
uncertaintiesabout the validity of Yugoslavia'sdeclaration preventit fiom
assurningthat ithasjurisdiction, evenprima facie."
(b) The FRY is not a party to the Statute underArticle 93(2) of the
Charter
3.26 As a non-Member State,the onlyroute by which the FRY couldbecomea
partyto the Statuteis that referredto in Article 93(2) of the Charter. Thiswould
require a specific determination by the General Assembly (upon the
recornmendationof the Security Council)of the conditionsonwhich theFRYmay
become a party to the Statute, as was done in the cases of ~witzerland,~~
~iechtenstein,~~ ~a~an," San ~arino~' and au ru.^ ^ o such determination has
beenmade in the case of theFRY. Indeed,the FRY does not claimto be a party
to the Statuteunder Article93(2)and couldnot do so consistently withits claimto
be a Memberofthe United Nations.
95 GeneralAssemblyresolution9l(I), 11December1946.
96
GeneralAssemblyresolution363(IV), 1December1949.
97 GeneralAssemblyresolution 805(VIII),9December1953.
98 GeneralAssemblyresolution806(VIII),9 December1953.
99 GeneralAssemblyresolution42121, 18November1987. TheFRY has not claimed to be entitled tobringtheseproceedings by virtue
(3)
ofArticle 35(2) of theStatute, nor could it do so
3.27 Whena State isnot apartyto the Statuteofthe Court,the onlyotherway in
which it could have the capacityto institute legal proceedings beforethe Court is
if the Courtis open to it byvirtueof Article35(2)ofthe Statuteofthe Court. That
is not the case here.
3.28 Article35(2) ofthe Statuteprovidesas follows:
"The conditions under which the Court shall be opento other States shall,
subjectto the special provisions containedin treatiesin force, belaid down
by the Security Council, but in no case shall such conditions place the
parties in a positionof inequalitybeforethe Court."
3.29 The Security Council laid down such conditions in SCR 9 (1946) of
15October 1946,which provides,inrelevant part:
"1. The InternationalCourt of Justice shallbe opento a Statewhich is not
a party to the Statute of the International Court of Justice, upon the
following condition, namely, that such State shall previously have
deposited with the Registrar of the Court a declarationby which it accepts
thejurisdiction of the Court, in accordancewith the Charterof the United
Nations and with the terrns andsubject to the conditionsof the Statuteand
Rules of the Court, and undertakes to comply in good faith with the
decision or decisions of the Court and to accept al1the obligations of a
Memberof theUnited NationsunderArticle94 ofthe Charter;
2. Such declaration may be either particular or general. A particular
declarationisoneacceptingthejurisdiction ofthe Court inrespectonlyof a
particular dispute or disputes which have already arisen. A general
declaration is one accepting the jurisdiction generally in respect of al1
disputes or of a particular class or classesof disputes whichhave already
arisen or which may arise in the future. A State,in makingsuch a general
declaration,may, inaccordance with Article36,paragraph 2,of the Statute,
recognize as compulsory, ipso facto and without special agreement the jurisdiction ofthe Court,provided,however, thatsuch acceptancemay not,
without explicit agreement, be relied upon vis-à-vis States parties to the
Statute which have made the declaration in conformity with Article 36,
paragraph2, ofthe Statuteof the International Courtof Justice;".
3.30 The FRY has not deposited a declarationwith the Registrar of the Court
pursuant to SCR9 (1946), and does not claimto have done so. The declaration,
dated 25 April 1999,by whichthe FRY purportedto acceptthejurisdiction ofthe
Court under Article 36(2) of the Statute is not and cannot be treated as such a
declaration. Evenif the FRY had depositedsuch a declaration,it could not bring
proceedings againstthe UnitedKingdomwithoutthe latter's"explicit agreement",
whichhas not been given.
3.31 In additionto providing, as a generalrule, that the conditionsunder which
the Courtshallbe opento Statesnotpartiesto the Statuteshallbe laiddownby the
SecurityCouncil, Article 35(2) refers to an exceptional case: the general rule is
"subjectto the specialprovisionscontainedintreatiesin force"(in the French text,
"sous réserve des dispositions particulièresdes traités en vigueur"). This
exception originatedin, and is identical to, the corresponding provisionin the
Statuteofthe PermanentCourtof InternationalJustice.
3.32 An illuminating surnrnary of the background and drafting history of this
provision isprovidedby Roseme:
"The expression in paragraph 2 of the Statute of the Permanent Court
subject to the specialprovisions of treaties inforce apparentlywas intended
to refer to the Peace Treaties after the First World War. They contained
several provisions giving the Permanent Courtjurisdiction over disputes
arising fiom them, and they were in force before that Statutewas adopted.
Article35,paragraph2, made itpossible forlitigationto take place withthe
former enemy Powers despite the fact that at the time the Protocol of
Signature was adopted, they were not qualified to become parties to that
instrument. Accordingly, 'inforce' meant thatthe treaty had to be in force on the date of entry into force of the Statuteof the PermanentCourt(taken
as 1September1921). ,9100
That the phrase "treaties in force"was intended to have a limitedmeaningwas
confirmed by Judges Anzilotti and Huber at the time the Rules of Court were
reviewed in 1926.1°' Suchan interpretation also accords better withthe system of
jurisdiction createdbythe United NationsCharterandthe Statuteof the Court,for
to allow any treaty in force between two or more Statesto establish jurisdiction
ratione personae for the parties to that treaty would be to place them in a
privileged position by giving them access tothe Court withoutrequiringthem to
meetthe conditionsnormally imposedas a prerequisiteto accessto the Court.
3.33 The present Court has not had occasionto determinethe meaning of the
expression"treatiesin force", nor dothe Rulesof the Court coverthe matter. The
Court briefly adverted to this question in its Order of 8 April 1993 in the case
conceming the Application of the Convention onthe Prevention andPunishment
of the Crimeof Genocide Case (Bosniaand Herzegovinav Yugoslavia(Serbia and
Montenegro)). The Court, citingthe Wimbledoncase,saidthat -
"a compromissoryclausein a multilateral convention,suchas Article IXof
the GenocideConvention reliedon by [the applicant]could ..be regarded
primafacie as a specialprovisioncontained in a treatyin force."lo2
It therefore found that it had prima facie jurisdiction ratione personae over
anotherpartyto that treaty sufficientto enableit to indicate provisional measures.
However,inthat casetheRespondent didnotquestionthejurisdictionofthe Court
'O0 TheLaw and Practiceof theInternational Court,1920-1996, Vol.II,p.629.
'O'
PCIJ,SeriesD,No.2 (Add.),pp.104and106.
'O2 ICJReports1993,p.3,atpara.19.on this ground. Moreover,as Rosennerightly observes, "that provisionalfinding
is not conclusiveofthematter 7,.03
3.34 It is clear that there are no treaties in force,in the sense intendedin Article
35(2) of the Statute, between the United Kingdom and the FRY. It follows that
that provision cannotgivethe FRY accessto the Court.
3.35 Since,therefore,the FRY isneither a partyto the Statuteofthe Court,nor a
State which is entitled to access to the Court on any other basis,jurisdiction
rationepersonae has notbeen establishedin thepresent case.
'O3 TheLawandPractice ofthe InternationalCourt,1920-1996,vol.II,p. 630.
41 PART4
ARTICLE 36(2 ) F THESTATUTEDOESNOTPROVIDE
JURISDICTIONRATIONEMATERUE IN THEPRESENTCASE
4.1 Theprincipal basis on which the FRY seeks, in its Memorial,to found the
jurisdiction of the Court are the declarations made by the FRY and the United
Kingdorn underArticle36(2)ofthe statute'O4
4.2 The United Kingdom declaration, deposited on 1 January 1969,reads as
follows:
"1. 1have the honour,by direction of Her Majesty'sPrincipal Secretary
of State forForeignand CommonwealthAffairs, to declareonbehalfof the
Governmentof the United Kingdom of Great Britain and NorthernIreland
that they accept as compulsoryipsfacto and without special convention,
on condition of reciprocity, the jurisdiction of the International Court of
Justice, in conformitywith paragraph 2 of Article 36 of the Statute of the
Court, until such time as notice may begiven to terminatethe acceptance,
overal1disputesarisingafier 24 October 1945,with regardto situationsor
factssubsequent tothe sarnedate,otherhan:
(i) anydispute whichthe UnitedKingdom
(a) has agreedwith the other Party or Parties thereto to settle by
some other methodofpeacefùlsettlement;or
(b) has already submittedto arbitration by agreement with any
State which hadnot at the time of submission acceptedthe
compulsoryjurisdiction of the InternationalCourtofJustice;
104 Memorial,Part3.2. (ii) disputes with the government of any other country which is a
Member of the Commonwealthwith regard to situations or facts
existingbefore 1January 1969;
disputes in respect of which any other party to the dispute has
(iii)
accepted the compulsory jurisdiction of the International Court of
Justice only in relationto or for the purposeof the dispute;orwhere
the acceptance of the Court's compulsoryjurisdiction on behalf of
any other Party to the dispute was deposited or ratified lessthan
twelve months prior to the filing of the applicationbringing the
disputebeforethe Court.
2. The Governmentof the UnitedKingdomalsoreservethe rightat any
time, by means of a notificationaddressedto the Secretary-Generalof the
United Nations, and with effect as kom the moment ofsuch notification,
either to add to, arnend or withdraw any of the foregoing reservations,or
anythatmay hereafterbe added."
4.3 On 26 April 1999,the FRY purportedto deposit a declaration(signed on
25 April 1999) accepting thejurisdiction of the Court under Article 36(2). This
declarationwas in the followingterms:
"1 hereby declare that the Government of the Federal Republic of
Yugoslavia recognizes, in accordancewith Article 36, paragraph 2, of the
Statute of the InternationalCourt of Justice, as compulsoryipsf oacto and
without special agreement, inrelationto any otherStateacceptingthe sarne
obligation, that is on condition of reciprocity,the jurisdiction of the said
Court in al1disputes arising or which may arise after the signatureof the
present Declaration,with regardto the situations or facts subsequentto this
signature, except in cases where the parties have agreed or shall agree to
have recourse to another procedure or to another method of pacific
settlement. The present Declaration does not apply to disputesrelating to
questions which, under international law, fa11exclusively within the
jurisdiction of the Federal Republic of Yugoslavia,as well asto territorial
disputes. The aforesaid obligationis accepteduntil such time as noticemay be given
to terminatethe acceptance."
4.4 In its Order at the ProvisionalMeasuresstageofthe present case,the Court
held that"the declarationsmade bythe PartiesunderArticle36,paragraph2 ofthe
Statutemanifestlycannot constitutea basis ofjurisdictionin the presentcase, even
" 'O5
prima facie . The Court reached that conclusion because it found that
jurisdiction was clearly excluded by the second part of subparagraph (iii) of
paragraph 1of the UnitedKingdomdeclaration("the twelve-monthclause").
4.5 It is evident, however,fkomthe Court'sreasoninginthe Ordersin the cases
brought bythe FRY against Belgium, Canada,the Netherlands and Portugal, that
the Court also considered that, prima facie,jurisdiction could not be founded on
Article 36(2) of the Statute, because the dispute which the FRYsought to bring
before the Court had arisen before 25 April 1999 andwas therefore excludedby
the terms of the FRY declaration and the operation of the principle of
reciprocity 'O6
4.6 Notwithstanding the terms of the Court's decision at the Provisional
Measures stage, the FRY has again attempted, in its Memorial, to found the
jurisdiction of the Court on the declarations under Article 36(2) of the Statute.
The FRY contends that the twelve-month clause in the United Kingdom
declarationwill not present an obstacle to the jurisdiction of the Court provided
that the oral hearings are held after 25 April 2000.'~' It also argues thatafter the
'O5 Order of 2 June1999,para.25.
106
1999,paras.25-29; YugosIaviav. Netherlands,Orderof2 June1999,paras.26-30;Yugoslaviav. Portugal,
Orderof2 June 1999,paras.25-29.
'O7 Memorial,paras.3.2.21-22.Courtgave itsOrderinthe Provisional Measuresstageof the case on2 June 1999,
there were a number of developmentswhich - so the FRY submits - mean that a
disputearosebetweenthe FRYandtheUnitedKingdomafter25 April 1999. 'O8
4.7 The United Kingdomdoes not acceptthese arguments.Contraryto what is
asserted by the FRY, it is clear that Article36(2) of the Statute cannot provide a
basis forthejurisdictionofthe Courtinthepresent casefora numberof reasons:
(1) the Court has already dismissed Article 36(2) as a basis for
jurisdiction in the present case andthe FRY is not, therefore,entitled
to rely upon it in the present phaseof the proceedings(paras. 4.8 to
4.18below);
(2) the FRYhas not made a valid declarationunder Article 36(2) of the
Statute(paras. 4.19to 4.20 below);
(3) the conditions on which the United Kingdom accepted the
jurisdiction of the Court under Article 36(2) have not been met
(paras.4.21to 4.27below);
(4) the conditions on which the FRY has purported to accept the
jurisdiction of the Court under Article 36(2) have not been met
(paras.4.28to 4.47below).
108 Mernorial,aras.3.2-16.
45 (1) The FRY is not entitled to rely upon Article 36(2)following the
Court's Order of 2June 1999
4.8 In its Orderof 2 June 1999,the Courtheldthatthe declarations madeby the
FRY and the United Kingdomunder Article 36(2)of the StatutemanfestZy could
not constitute abasis for thejurisdiction of theCourt. By contrast,whenthe Court
considered Article IX of the Genocide Convention, the Court held that that
provisiondid notprovideaprimafacie basis forjurisdictioninthe present case.
4.9 The Courtconcludedthat-
"...the findingsreached by the Court in the present proceedingsin no way
prejudgethe question of thejurisdiction of the Courtto deal with the merits
of the case under ArticleLX of the GenocideConvention, or any questions
relating to the admissibility of the Application, or relatingto the merits
themselves; and ...they leave unaffected theright of the Governmentsof
Yugoslavia and the United Kingdom to submit argumentsin respect of
those questions".'O9
It is clearfromthe italicisedwords in this passagethat the Court regardedthe case
as being possibly capable of continuing (even to the stage of a hearing on
preliminary objections) only under Article IX of the Genocide Conventionand
that, if the Article 36(2) declarations had been the only basis for jurisdiction
advanced by the FRY, the Court would have orderedthat the case be removed
fromthe GeneralList.
4.10 That was the course whichthe Court followed inthe case brought by the
FRY against Spain. In that case, it was held that Article IX was nota possible
basis for jurisdiction because of Spain's reservation to the Genocide
109 Orderof2 June1999para.38 (emphasisadded).
461 on vent ion S.p^in's declaration under Article 36(2) of the Statute is
substantially the sarne as that of the United Kingdom. The Court found, in
language identicalto that used initsOrderin the caseagainsttheUnitedKingdom,
that the declarations of the FRY and Spain under Article 36(2) of the Statute
manifestly could not constitute a basisfor the jurisdiction of the COLU?."' The
Courttherefore concluded,in the case against Spain, that, in these circumstances,
'30 maintain on the General List a case upon which it appears certain that the
Court will not be able to adjudicate on the merits would most assuredly not
97112
contributeto the soundadministrationofjustice .
4.11 That the Court treated thecase against the United Kingdom under Article
36(2) in the sarne way as the case against Spainis also clear if one compares
paragraph 38of the OrderintheUnitedKingdomcasewith the relevant passagein
the Court's Orders in the cases against Belgiurn,Canada, the Netherlands and
Portugal. In those cases, the Court left open for the next phase of the case the
question whether Article 36(2) could provide a basis for the jurisdiction of the
~0urt.l'~ That is in sharpcontrastto the terms of paragraph38 of the Orderin the
case against the United ~in~dom,"~ in which the Court expressly left open the
questionofjurisdiction onlyunderArticleIX ofthe GenocideConvention.
4.12 It follows that the Court clearly considered that it was certain that the
declarationsmade by the FRYandthe UnitedKingdomunder Article 36(2)of the
"O
Yugoslaviav. Spain, Orderof2 June 1992,para. 33.
111 Yugoslaviav. Spain, Orderof2 June 1992,para.25.
Il2 Yugoslaviav.Spain, Orderof2 June 1992,para. 35(emphasisadded).
YugoslaviaV.Belgium, Order,of 2 June 1999,para. 46; Yugoslaviav. Canada, Order of 2 June
1999,para. 42; Yugoslavia v. The Netherlands, Order of 2 June 1999,para. 46; Yugoslavia v. Portugal,
Order of2 June 1999,para.45.
114 Quotedinpara.4.9 above.Statute would not enable the Court to adjudicate on the merits. The only reason
whythe caseagainstthe UnitedKingdomwasnot alsoremovedfiom the General
List was because the Court did not definitively decide that Article IX of the
Genocide Conventioncould not provide a basis for the jurisdiction of the Court.
Accordingly,it left open to the Parties theopportunityto submit arguments,in a
laterphase ofthe proceedings,onwhether ArticleIX did in factprovide a basisfor
the jurisdiction of the Court. Witheffect fi-om2 June 1999, therefore, the FRY
case againstthe UnitedKingdomwas maintainedon the Court's GeneralList only
as a case in which jurisdiction was said to be founded upon the Genocide
Convention. The legalposition was thus exactly the same as if the Application
brought by the FRY against the United Kingdom had relied only upon the
Genocide Conventionasthebasis forjurisdiction.
4.13 The FRY maintains,however, that this defect is one only of form, not of
substance. It contends that, after 25 April 2000, the FRY could make a fresh
Application againstthe United Kingdom without facing an obstacle based upon
the twelve-monthclause of the United Kingdom declarationunder Article 36(2).
It relies upon a passage in the Court's decision in thGenocide Convention case
between Bosnia and Herzegovina andthe FRY, to the effect that the Genocide
Conventioncould constitute abasis for the jurisdictionof the Court even if it had
not entered into forcebetweenBosniaand Herzegovina andthe FRY until afterthe
dateonwhichBosnia'sApplicationwas submittedto the~ourt."~ For the reasons
set outinparas.4.22to 4.26below,the argumentcannotbe sustained. TheUnited
'15 Applicationof the Conventionfor thePreventionand Punishmentof the Crime of Genocide
(BosniaandHerzegovina. Yugoslavia)(Preliminay Objections),ICJReports1996,p. 595, at paras.24to
26.Kingdom submits, however, that the Court'sOrder of 2 June 1999precludes the
FRYfi-omreopeningthe questionof whether Article36(2)applies.
4.14 It is true that the Court has, in certain circumstances,permitted a Stateto
rely in its Memorial upon a ground ofjurisdiction whichit did not advancein its
Application. Inthe case concerning Militaryand Paramilitary Activitiesin and
against Nicaragua, the Court noted that Article 38 of the Rules of the Court
requiredthat an ApplicationspeciQ as far as possiblethe legal groundson which
thejurisdiction ofthe Courtis saidto be based,but added:
"An additional ground of jurisdiction may however be brought to the
Court's attentionlater, and the Court may take it into accountprovidedthe
Applicant makes it clear that it intends to proceed upon thatbasis ...and
provided also that the result is not to transformthe disputebroughtbefore
the Court b3,116 application into another dispute which is different in
character.
4.15 That is, of course, quite differentfi-oma casein whichthe alleged basis for
jurisdiction was included in the Applicationbut was dismissedbythe Court atan
earlier stage in the proceedings. Moreover, the passagejust quoted makes clear
that the Court does not allow an Applicant an unlimited discretionto amend its
Application so as to add anything which might be made the subject of a fiesh
Applicationto the ~o~rt.ll' That an Applicantdoesnot have anunlimitedright to
amend its Application so as to introduce new grounds of jurisdiction was
emphasisedby the Court in the GenocideConventioncase, in which it stated that
"the Applicant cannot, simply by reserving 'the right to revise, supplementor
amend'its Application ...confer on itself a rightto invoke additionalgrounds of
Il6 Military and Paramilitary Actions in and against Nicaragua (Nicaraguav. United States of
America)(PreliminaryObjections),ICJReports1984,p.392, atpara.80.
Il7
Rosenne,TheLawandPractice ofthe International CourtofJus1920-1996vol.III,p. 1237.jurisdicti~n"."~ The additionof fiesh groundsofjurisdiction ispermissibleonlyif
the effectis not to transform the characterofthe dispute beforethe Court.
4.16 In the present case the effect would indeedbe to transformthe characterof
the disputebefore the Court. AlthoughArticle 36(2)of the Statutewas mentioned
inthe FRY'SApplication, the characterof the disputeas itstoodafterthe Orderof
2 June 1999was confined to a possible dispute which mightfa11within the scope
of Article IX of the Genocide Convention, for it was only in respect of that
claimed dispute that the Court permitted the case to remain on the GeneralList.
The scope of a case in which jurisdiction is founded upon Article IX of the
Genocide Convention is strictly confined to "disputes ... relating to the
interpretation, application or fulfilment"of that Convention. If the FRY were to
add, as what would now be a new ground of jurisdiction, Article 36(2) of the
Statute, it would transform that dispute into one which embraced allegationsof
violations of the law on the use of force, the laws of armed conflict, the law
relating to navigation on the River Danube and a host of other international
agreements and rules of customaryinternationallaw.
4.17 While it is undoubtedly the case that the Court"is not bound to attachto
matters of form the same degree of importance which they might possess in
municipallaw,"'19to allow thetransformationof the disputeinthis way wouldnot
be a matter of form. Nor would it,to adoptthe languageused by the Court inits
Orderinthe case brought against Spain,"contributeto the soundadministrationof
'18
Application of the Convention on the Prevention and Punishmentof the Crime of Genocide
(Bosnia and Herzegovinav. Yugoslavia(Serbia and Montenegro))(Furtherrequestsfor the indicationof
ProvisionalMemures), ICJReports 1993,p. 325, atpara.28.
'19 Mmommatis Palestine (:oncessionscase,PCIJ,SeriesA, No. 2, p. 34.internationaljustice".120 The only distinction betweenthe position of Spain and
that of the United Kingdom in the casesbroughtby the FRY was that the United
Kingdomaccepted the jurisdiction of the Courtunder Article IXof the Genocide
Convention and Spain did not. To allow the FRY at this stage to reintroduce
Article 36(2) as a basis for jurisdiction against the United Kingdom, having
dismissedthe action againstSpain,wouldbe inequitable andcontraryto principle.
In effect, it would meanthat the possibility, however remote, thatthe Courtmight
have jurisdiction betweenthe FRY and the United Kingdom over a restricted
dispute under the Genocide Convention was sufficient to keep alive an action
whichthe FRYcould latertransform into a disputeof an infinitelybroaderscope.
4.18 The decision of the Court in the preliminary objections phase of the
Genocide Conventioncase,12'on which the FRY places great reliance, does not
suggest a different conclusion. In that case the Courthad held, at the Provisional
Measures stage, 122that the GenocideConvention constituted aprimafacie basis
for jurisdictionand the proceedings continuedon that basis. This is in marked
contrastto the Court's clear rejectionof the Article 36(2) declarationsas a basis
forjurisdictioninthe Provisional Measuresstageofthepresentcase.
(2) The FRY hasnotmadea validdeclarationunderArticle36(2)of the
Statute
4.19 Accordingto Article36(2)ofthe Statute,only "the Statespartiestothe
120
Yugoslaviav. Spain,Orderof2 June1999,para. 35.
12' Applicationof the Comention on thePrevention andPunishmentof the Crime of Genocide
(Bosniaand Herzegovv. Yugoslavia)(PreliminaryObjecti, JReports 1996,p. 595atp. 613.
12*
ICJ Reports1993p. 3, atp. 16.present Statute" may make declarations recognizingthe jurisdiction of the Court
underthatprovision. Forthe reasons givenin Part 3above,the FRY isnot aparty
to the statute.lL3Nor, forthe reasons givenin paragraph3.30 above can the FRY
rely upon SCR 9 (1946) (quotedin para.3.29 above). The FRYcannot,therefore,
make a valid declarationunderArticle36(2). Moreover,even if, contraryto what
is arguedin Part 3 above,theFRYwere able to rely upon SCR9 (1946) as a basis
for establishingits accessto theCourt,that wouldnot sufficeto createjurisdiction
ratione materiae under Article 36(2) of the Statute as between the United
Kingdomand the FRY. Paragraph2 of SCR 9 (1946)provides that a declaration
accepting the jurisdiction of the Court under Article 36(2) made by a State not
partyto the Statuteof the Court:
"...may not, without explicit agreement, berelied upon vis-à-vis States
parties to the Statutewhich havemade the declarationin conformity with
Article36,paragraph2, ofthe Statuteofthe InternationalCourt ofJustice."
TheUnitedKingdomhas givenno suchagreement, explicitorothenvise.
4.20 It follows that the instrumentby which the FRY purported to accept the
jurisdiction of the Court under Article 36(2) of the Statute is not a valid
declaration andcannotbe relieduponagainsttheUnitedKingdom.
(3) The conditions on which the United Kingdom accepted the
jurisdiction of the CourtnderArticle 36(2)have notbeen met
4.21 Even if, contraryto what hasbeen submittedabove,the FRY is considered
to have madea valid declarationunderArticle36(2)on whichit canrely, that fact
lZ3 Onthatbasis,BosniaandHerzegovi, roatia,MacedoniaandSloveniahave forobjected
tothe declaratnhichtheRY haspurportetomake;seepara.3.13 aboveandAnnex28.
52will not conferjurisdiction upon the Court in respect of the present proceedings.
As the Court has repeatedly stated, Article 36(2) confers jurisdiction in
proceedings betweentwo Statesonly withinthe limitswithin which both ofthose
Stateshave acceptedthe cornpulsoryjurisdictionof the court.12' Accordingly,the
Court will have jurisdiction under Article 36(2) in the present case only if the
requirementsof both the United Kingdomand the FRY declarationsare satisfied.
In fact,neitherset ofrequirementsis satisfied.
4.22 Asnoted above,the UnitedKingdom's acceptanceof thejurisdictionof the
Court expresslyexcludesdisputes -
"...where the acceptanceof the Court's compulsory jurisdictionon behalf
of any other Party to the disputewas depositedor ratified less than twelve
months rPor to the filing of the applicationbringing the dispute beforethe
court."'
It is manifestthat, as the Court held in its Order of 2 June 1999,the requirement
laiddownin this part of the United Kingdom's declaration has nob teenmet inthe
presentcase. The FRY declaration, evenif it can be treated as a valid instrument,
was signedonly fourdays beforethe Application wasfiledwith the Court.
4.23 In its Mernorial, however,the FRY seeks to brush this requirementaside,
arguing that the jurisdictional defect (which it now admits) will be cured with
effect fkomthe first anniversary of the FRY declaration and suggeststhat the
requirements of the United Kingdom declaration "will be satisfied if the oral
124
See, e.g., Phosphates in Morocco, PCIJ,Series AB, No. 74, p. 23 and Fisheries Jurisdiction
(Spainv. Canada),Judgmen4oDecember1998,para.44.
12' UnitedKingdomDeclaration,para.l(iii); para.4.2 above. 9,126
hearings on the merits starts after 25 April 2000,which is very likely. This
argumentis fatallyflawedintworespects.
4.24 First, the FRY'Sargument ignoresthe importanceof the principle that the
jurisdiction of the Court must normally be establishedat the date on which the
Application is filed.12' The Genocide Conventioncase,12*on which the FRY
relies, qualifiesthat principleonly incircumstanceswhich are very different fiom
those of the present case. The treatyon which theApplicant relied in that case -
the Genocide Convention - is a treaty of a special character for the obligations
which it creates are obligations erga omnes. The Court had held that the
Convention was in force for both Bosnia and Herzegovina and the FRY. The
passage in the Court's judgment on which the FRY relies deals only with the
possibilitythat the Convention might(the Court foundit unnecessaryto decidethe
issue) not have been in force as between Bosnia and Herzegovina and the FRY
until a later date, because at the time the Applicationwas lodged the FRY did not
recognize Bosnia and Herzegovinaas a State, notwithstanding that Bosnia and
Herzegovinawas a Memberofthe UnitedNationsby that date.
4.25 By contrast, in the present casethe instrumenton which the FRY seeksto
establishjurisdiction - Article 36(2) of the Statute - is not concerned with the
creationof obligationserga omnesbutprovidesthe means by which one State,by
makinga declaration,may incurobligationsregardingthejurisdiction of theCourt
lZ6 Memonal,para.3.2.22.
lZ7 Questionsof InterpretationandApplicationof the 1971 MontrealConvention arisingfiom the
Aerial Incidentut Lockerbie (LibyanJamahir&a V. UnitedKingdom)(PreliminaryObjections),ICJ
Reports1998,p.9, atpara.38.
lZ8
Application of the Conventionon thePrevention and Punishmentof the Crime of Genocide
(BosniaandHerzegovinav. Yugoslavia)(PreliminaryObject,CJReports1996,p. 595, atp.613.towardsanother Statewhich makes a similardeclaration. Therewas, as the Cout
has held, manifestlyno bilateralbasis forjurisdiction as betweenthe FRY andthe
United Kingdom at the date on which the Application was lodged. Moreover,
unlikethe position in the Genocide Convention case,where the Court had treated
the Conventionas providing aprima facie basis forjurisdictionat the Provisional
Measuresstage,the Court had reachedthe oppositeconclusioninthe presentcase.
4.26 Secondly,the FRY'Sargumentignoresthe clear language andeffect of the
UnitedKingdom declaration. Paragraph 1 (iii) of that declarationunarnbiguously
statesthat the UnitedKingdomdoesnot acceptthejurisdiction of the Courtunder
Article36(2)of the Statutevis-à-visanother Stateif "the acceptanceof the Court's
compulsoryjurisdiction [by that other State] was deposited or ratified less than
twelve monthsprior to theJiling ofthe application bringing the dispute before the
Court" (emphasis added). It follows, as the Court recognizedin its Order of 2
June 1999, that Article 36(2) manifestly cannot constitute a basis for exercising
jurisdiction overthe United Kingdom unless the Applicant's declarationunder
Article36(2)had beenin force for at leasttwelve monthsbefore thatStatefiledits
Application. Either this requirementis satisfiedwhenthe Applicationis filedor it
cannotbe satisfied at all. The passage of time afterthe Applicationhas been filed
cannotmakeany difference.
4.27 Moreover, the United Kingdom declaration expressly excludes fi-omits
acceptance of jurisdiction "disputes in respect of which any other party to the
dispute has accepted the compulsory jurisdiction of the International Court of
Justice only in relation to or for the purpose of the dispute". Although it is
ostensibly couchedin generalterms, the FRY declaration wasin reality deposited
forthepurpose of the presentdispute. Thatis clear fi-omthe attemptto accept thejurisdiction of the Courtwith regard to the militaryactionby the UnitedKingdom
and other Respondentswhile excludingfiom thejurisdiction of the Court theFRY
actionsto whichthat was a response,as well as fiom the delay of only three days
between the deposit of the declaration and the filing of the Application in the
present case. Furthemore, counsel forthe FRYexpresslystatedat the Provisional
Measures stage that the purpose of the FRY was to accept the jurisdiction of the
Courtforthe present dispute.129
(4) The conditions on whichthe FRY accepted thejurisdiction of the
Court underArticle 36(2)havenot beenmet
4.28 It is alsowell establishedin thejurisprudence of both the present Courtand
its predecessorthat declarationsunder Article 36(2) of the Statute are subjectto
the principleof reciprocity,with the result that the Courtwill not havejurisdiction
unless the conditions on which the Applicant accepted the jurisdiction of the
Court, as well as those contained in the Respondent's declaration, have been
satisfied.130In the present case, the FRY accepted the jurisdiction of the Court
onlysubjectto certain conditions. Thoseconditions havenot been satisfied.
4.29 Accordingto the terms of its declaration,the FRY accepted thejurisdiction
of the Court only in respect of "al1disputes arising or which mayarise after the
signature of the present Declaration, with regard to the situations or facts
lZ9 M. Corten,CR99/25,p. 18.
Interhandelcase,ICJ Reports 1959,p. 5, at p. 23; ElectriciîyCompany ofSofia and Bulgaria,
PCIJ,SeriNB, No. 77,p. 81.subsequent to this signature."13' The FRY'Sacceptance of the jurisdiction is
expresslyconfinedto adisputewhichmeetstwo conditions:
(a) the disputemustarise after25April 1999;and
(b) the dispute must be with regardto situationsor facts subsequentto
25 April 1999.
These conditions are cumulative,not alternative. The effectof the formula is,
therefore, that a dispute falls outside the scope of the FRY'Sacceptance of the
jurisdiction of the Court if the disputehas arisenprior to 25 April 1999or, even
though the dispute arises after 25 April 1999, if it is a dispute with regardto
situationsor facts beforethat date.
4.30 It is well established that States may limit their acceptance of the
jurisdiction of the Court underArticle 36(2)in this way andthe formula hasbeen
considered by the Court on previous oc~asions."~ The limitations which the
formula imposes are thus well known. For the FRY to foundthe jurisdiction of I
the Court, as between itself and the United Kingdom, upon Article 36(2),
therefore, it must show, first, that the disputewhich it seeksto bring before the m
Court did not arise until after25 April 1999and, secondly,that it is a dispute with
I
regard to situationsor factsafterthat date. TheFRY has failedto satisQ either of
theserequirements.
131
Thisis oftenreferredto asthe"doubleexclusionformula". Rosenne htsrmedit the"double
formula type(ii)":heLawandPracticeofthe InternationalCourtofJustice1920-1996, vol.II,p.786.
13' Phosphates in Morocco, PCIJ,SeriesAB, NO.74, p. 22; Electrici~,Company of Sofia and
Bulgaria,PCIJ,SeriesAB, No. 77,p. 81.4.31 The first limb of the double exclusion formulahas not been satisfied,
because the dispute which the FRY seeks to bring before the Court arose well
before 25 April 1999. According to the well known definitionof a disputein the
MavrommatisPalestine Concessionscase,a "disputeis a disagreementon a point
of law or fact, aconflict of legal views or of interests betweentwo persons 3,.33
This definition has beenapplied in numerous subsequentcases by this Court and
the PermanentCourt of International ~ustice.'~'In the Right ofPassage case, the
Court held that a dispute arose when "al1its constituentelements had come into
existence 3,.35
4.32 In the present case, which has the title of "Legality of Use of Force", the
Application accuses the United Kingdom of violating Article 2(4) of the United
Nations Charterand other noms relatingto the use of force, the principleof non-
intervention and various rules relating to the conduct of hostilities and the
protection of the environmentby embarkingupon military operations against the
FRY. Thosemilitary operationsbegan on 24 March 1999,over onemonthbefore
the FRY purportedto deposit itsdeclaration. The disagreement betweenthe FRY
and the United Kingdomregarding the legalityof that operation was clear on that
date.
4.33 On 24 Mach 1999, and again on 26 March 1999, the operation was the
subject of debate in the United Nations SecurityCouncil. The FRY there set out
its argumentsregardingthe factsand strenuouslycontendedthat the operation was
133 PCIJ,SeriesA,No.2, p. 11.
134
Amongstthe more recent cases,see,e.g.,EastTimor(Portugalv.Australia),ICJ Re1995,p.
89 at p99,and Questionsof InterpretationandApplicationofthe 1971MontrealConventionarisingfi-om
theAerialIncidentat Lockerbie (LibyanArabJamahiriyaUnite Kdingdom),ICJReports1998,p. 9, atp.
17.
135 RightofPassage overIndianTerritov (Portugv.India),ICJReports1960,p. 6, at34.illegal. The United Kingdommade clear its disagreement,as did other members
ofthe Council. Thus, inthe debateon24 March 1999,Mr JovanoviC,representing
the FRY,statedthat -
"The decisionto attack an independent countryhas been taken outsidethe
SecurityCouncil,the solebodyresponsible,underthe Charterofthe United
Nations, for maintaining international peace and security. This blatant
aggressionis a flagrant violationof the basicprinciples ofthe Charterof the
United Nations ...
By bombing massively and indiscriminately the cities and towns of the
Federal Republic of Yugoslavia, NATO has become the air force and
mercenaryof the terroristKosovoLiberationArmy (KLA).""~
The UnitedKingdomrepresentativewas equally explicit in rejectingthe charges
of illegalit-
"The action beingtaken is legal. It isjustified as an exceptional measure to
prevent an ovenvhelming humanitarian catastrophe. Under present
circumstances in Kosovo, there is convincing evidence that such a
catastropheis imminent. Renewed acts of repression by the authoritiesof
the Federal Republicof Yugoslavia wouldcause fiirtherloss of civilian life
and would lead to displacementof the civilianpopulation on a large scale
andin hostile condition^."'^^
4.34 The debate held on 26 March 1999 also clearly demonstrated the legal
positionstaken by the FRY and the NATO States. The Council had before it a
draft resolution sponsoredby Belanis, India and the Russian ~ederati0n.l~~That
drafiresolution invitedthe Councilto expressits deep concernat theNATO action
and to affm "that such unilateral use of force constitutesa flagrantviolation of
136
SPV.3988, pp. 14-15(Annex14).
'37 SPV.3988, p. 12(Annex14):see para.2.18 above.
138
UNDoc. SI19991328(Annex15).the UnitedNations Charter, inparticular Articles 2(4), 24 and 53"and demanded
an immediatecessationof operations. The draftresolution was rejectedby twelve
votes (Argentina, Bahrain, Brazil, Canada, France, Gabon, Garnbia, Malaysia,
Netherlands, Slovenia,United Kingdom, United States of America) to three
(China,Namibia,RussianFederation).
4.35 In the course of the debate, Mr Jovanoviécomplained thatthe FRY "has
been a victim of the brutal unlawful aggression of the North Atlantic Treaty
Organization(NATO)"and statedthat -
"Trampingupon each andeveryprinciple of internationalrelations,defying
the authority of the Securiîy Council of the United Nations and its
resolutionsand outperformingeven the Nazis in its animositytowards and
hatred of the Serbian and Montenegrin people, NATO, led by the United
States of America, has engaged in a mad orgy of destruction and havoc
againstonesmall andpeace-lovingcountry. ...
The aggression and the massive and reckless bombing campaign is not
limitedto the so-calledmilitary targets alone, but brings deathto hundreds
of civilians and destroysproperty. ...
Their aggression is unjust, illegal, indecent and unscrupulous. The
aggressordisplaysarrogantcontempt for theUnited Nationsand its Charter
and arrogatesthe prerogativesof the SecurityCouncil as the only organin
,9139
chargeofmaintaininginternationalpeace andsecurity.
4.36 Speaking in the same debate, the representative of the United Kingdom
again rejected the accusation of illegality and repeated the view of the United
Kingdom that "military intervention is justified as an exceptional measure to
preventan ovenvhelminghumanitariancatastrophe. 9,140 Other Respondents spoke
'39 SPV.3989, p. 11(Annex 16).
140
SPV.3989, p.7 (Annex 16). I l i
in similarterms.14'Thetwo debatesthus manifestedthe clearestpossible instance
of "a disagreementon a point of lawor fact, a conflictof legalviews" ofthe kind Y
envisaged by the Permanent Court in the Mavrommatis case.'" It is clear,
therefore,that the disputehad arisenby this date. Indeed,the FRYitself states, in m
itsMemorial,that -
"The disputearoseinthe discussionsatthe Secu. Council meetingsof 24
and 26 March 1999 between Yugoslavia andthe Respondentsbefore 25
April 1999 concerningthe legality ofthose bombings as such, taken as a
~hole."'~~
4.37 By the time, therefore, that the FRY signed its declarationunder Article
36(2) on 25 April 1999, the conflicting views of the Parties on the military
operations hadbeen made abundantly clear bothwithin the SecurityCounciland
outside. All the constituent elementsof the disputehad come into existenceand
the inescapableconclusionwas that the disputewhich the FRYthen soughtto put
beforethe Courthad already arisenwellbeforethe date ofthe declaration. That is
inmarkedcontrastto the Righo tfPassagecase,wherethe Court heldthat,priorto
the criticaldate "certain incidentshad occurred,but they didnot leadthe partiesto
adopt clearly-defmed legal positions as against each other 9.144 The military
campaigncontinued,of course,after 25 April 1999but no new disputearose,only
a continuation ofthe disputewhichhad alreadyarisen.
14' See,e.g., Canada (p2-3)Netherlands(p.4), UnitedStatesof America(pp.4-5) and France(p.
7).
14'
PCIJ,SeriesA, No.2,p. 11.
143 Memorialp, ara..2.16.
'44
RightofPassage overIndianTerritory(Portugalv.India),ICJReports1960,p. 6 atp. 34.4.38 Indeed, the FRY Memorial itself confirms this conclusion by making no
attemptto distinguish between the military operations occurringbefore 25 April
1999 and those which occurred after that date. On the contrary, the "Facts"
section of the Memorial simply covers the whole period, despitethe fact thatthe
terrns of the FRY declarationmake clear that the FRY's purported acceptanceof
the jurisdiction of the Court excludesdisputes regarding any "situationsor facts"
beforethatdate.
4.39 The second limb of the "double exclusion formula" employedin the FRY
declaration 14'also operatesto excludethe present case. This second limb plainly
excludesfiom the FRY's acceptanceof the jurisdiction of the Court any dispute
regardingsituations or facts before 25 April 1999. It is clear,however, fiom the
consistentjurisprudence of both the present Court and the Permanent Courtof
International Justice that the second limb of the formula goes further than that.
Themerefactthat situationsor factsalso occurafter the criticaldate is not enough
to satis@the requirements of the "double exclusion formula". According to the
Permanent Court, onlyif those situations or facts constitute "the source of the
dispute",its "real cause" 146 and are not "merely the confirmationor development
of earliersituationsor facts constitutingthe real causes of the dispute" 14' will the
second limb of the formula be satisfied andjurisdiction be established.14*In the
present case, the events which occurredafter 25 April 1999were clearly not the
14' Seepara.4.29above.
146 Electrici~,Companyof SofiaandBulgaria,PCIJ,SeriesA/B,No. 77,p.82.
147 PhosphatesinMorocco,PCIJ,SeriesAIB,No. 74,p.24.
148 SeealsoRightof Passage overIndianTerritory (Portugv.India),ICJReports1960,p.6 at p.
35."source" or "real cause" ofthe dispute whichthe FRY seeks to bring before the
Court.
4.40 The use by the FRY ofthe double exclusion formulameansthat the case is
differentfiom the humanrights casesin whichjurisdictionwas acceptedonlywith
regard to facts occurring after a particular date (see, e.g., the decisions of the
European Court of HumanRights in Yagci andSarginv. Turkey 14'andLoizidou
v. Turkey 150and the United Nations Hurnan Rights Cornmittee in Gueye v.
rance'^ a^d Simwck v. Czech~e~ublic'~~)T . he terms of the instrumentsof
acceptance in those cases excludedjurisdiction only in respect of facts occurring
prior to a particular date,with the result thatjurisdictionexisted in respect of that
part of a continuing violation occurring after the date of acceptance. The double
exclusion formula in declarations under Article 36(2) of the Statute, as has been
seen, goes further and meansthat jurisdiction is excludedunlessthe dispute itself
has arisen since the date of the declarationand has its sourcein facts or situations
OCCU~~~ after that date.
4.41 It was for that reasonthat the Court concluded atthe Provisional Measures
phase that the dispute fell outside the scope of the FRY declaration and that that
declaration couldnot afford aprimafacie basis forthejurisdiction of the Court in
the cases against Belgium, Canada,the Netherlandsand Portugal. As the Court
explainedin its Orderof 2 June 1999in Yugoslaviav.Belgium:
'49
Judgmentof 8 June1995,SeriesA,No. 319, atpara.40.
150 Judgmentof 23 March1995,SeriesA,No. 310,paras.102-5andJudgmentof 18December1996,
ReportsofJudgmentsandDecisions1996-VI,p. 2216,atparas.34-47.
151
CommunicationNo. 19611985,114ILR312.
152 CommunicationNo. 51611992,UNDoc. Ai50140,p.89. "28. Whereasit is anestablishedfact thatthe bombingsin questionbegan
on 24 March 1999 and have been conducted continuouslyover a period
extending beyond 25 April 1999;and whereas the Court has no doubt, in
the light, inter alia, of the discussionsat the Security Council meetingsof
24 and 26 March 1999(SPV.3988 and 3989),that a "legal dispute" (East
Timor (Portugal v. Australia), I.C.J. Reports 1995, p. 100, para. 22)
"arose" between Yugoslaviaand the Respondent,as it did also with the
otherNATO memberStates,wellbefore 25 April concerningthe legaliiyof
thosebombings as such,taken as a whole;
29. Whereas the fact that the bombings have continued after25 April
1999 and that the dispute concerning them has persistedsince that date is
not such as to alter the date on which the dispute arose; whereas each
individual air attack could not have given rise to a separate subsequent
dispute; andwhereas, at this stage of the proceedings, Yugoslavia hasnot
established that new disputes, distinct fiom the initial one, have arisen
betweenthe Parties since 25 April 1999 inrespect of subsequent situations
or facts attributableto Belgium;
30. .. and whereas it follows fiom the foregoingthat the declarations
made by the Parties under Article 36, paragraph 2,of the Statute do not
constitute a basis on which the jurisdiction of the Court couldprima facie
be foundedinthis case."
4.42 In its Memorial, the FRY has not soughtto challengethe reasoningof the
Court, which it must therefore be consideredto have accepted. Insteadit has
attemptedto arguethat:
"After the Orders of the Court, dated 2 June 1999,the dispute aggravated
and extended. It got new elementsconcerning failuresof the Respondents
to fùlfill their obligations establishedby Security Council resolution 1244
and by the 1948 Convention on the Prevention and Punishment of the
Crime of Genocide. New elementsare related to killings, wounding and
expulsionof Serbsand othernon-Albanian groupsin Kosovo and Metohija,
after 10June 1999."153
-- -
'53 Memorial,para.3.2.11.The FRYdoes not therefore baseits caseon eventsinthe military campaign which
continueduntil 10 June 1999. That is not surprising,since nothing occurred in
that campaign between the dateof the Court's Orders on 2 June 1999 and the
adoptionof SCR 1244(1999) on 10June 1999which was qualitativelydifferent
fiom what had occurred beforeand which might be regarded as giving rise to a
newdispute.
4.43 Instead the FRY relies solely on developments after 10 June 1999. It
accusesthe United Kingdom,as one of the contributorStatesof KFOR, of failing
to prevent attacks by the KLA on Serbs and others in Kosovo and of various
violations of the mandate conferredby the Security Council in SCR 1244. The
FRYtherefore concludesthat:
"Whereas some ofthe elementsof the dispute appearedafter 10June 1999
[the date on which SCR1244was adopted], the dispute, which started to
arise before 25 April 1999has arisen in full after 10June 1999. So, it is
within the compulsory jurisdiction of the Court, established by the
Yugoslavdeclarationof 25 April 1999."lS4
4.44 It is noticeablethat the FRY doesnot attemptto arguethat the eventssince
10June 1999have givenrise to a new disputebut that theyhave "aggravatedand
extended" the dispute describedin the FRY'SApplication of 28 April 1999. By
taking this approach, the FRY seeks to persuade the Court that events since the
suspensionof operationson 10June 1999have somehowhad the effect that the
entire dispute regarding the use of force prior to that date now fallswithin the
jurisdiction of the Court. TheFRY even appearsto Saythat this disputedid not in
factarise untilthese events after10June 1999occurred.
- - -
154 Mernorial,ara3.2.14.
654.45 That is an extraordinary argument. Taken at face value it means that no
disputehad actually arisen at al1at the time that the FRY filed its Application or
even atthe dateof the Court'sOrderof 2 June 1999. That is in marked contrastto
what issaid in the Application andto what the FRY submitted at the provisional
measuresstage.lS5It also means that a dispute whichis described by the FRY in
the Application andthe Memorial (and by the Court in the title of the case) as
concerning"legality of use of force" is now said by the FRY to have come into
existenceonlywhenthe use of forceceased.
4.46 Moreover,this argument completelyignoresthe effect of SCR 1244(1999).
The UnitedKingdom action before the adoption of that resolution was taken as
part of a NATO operation. The operations of KFOR since 10 June 1999have
been conducted under a specific mandate from the Security Council. KFOR
currentlyhas thirty-ninecontributingstates.lS6KFOR is present in Kosovo on the
basis of a mandatoryChapter VI1decision of the Security Council. Its presence
has also been accepted by the FRY Government. The complaints raised in the
FRY Memorialabout KFOR are separate and distinct from the dispute regarding
the operationswhich occurredbetween 24 March and 10June 1999. Accordingly,
ifthey wereto giverise to a disputebetweenthe FRY and the United Kingdomat
all, it would be an entirely separate dispute fiom the one described in the
Applicationand could not have the effect of alteringthe date at which the former
dispute arose.
15' TheMemorialitselfmakescontradictory statementshnispoint. Inparagra3.2.16 itis stated
thatthe"disputearosienthediscussionsat theurityCouncilmeetingsof 24 and26 Marc1999 ..But,
after10June 1999,newdisputedmattersappearedwhich originatefiom illegaluseof force,andso they
becamenew elements inthedispute."Thepassageconcludesthat thedisputethereforearosea25April
1999.Thisconclusionis Bonsequituand noattemptismadeinthe Memorial teoxplainit.
lS6 Seeparagraph2.29 above.4.47 For reasonswhich are developedin Part 6 below,the FRY cannotaddwhat
is in substance a wholly new dispute which would transformthe nature of the
issuesbefore the Court. Moreover,an Application against theUnitedKingdomin
respectof the activitiesof KFOR and UNMIKwouldbe inadmissiblebecausethe
rights and obligations of other States not before the Court and of the United
Nationswould forrnthe very subject-matterofthe dispute.
4.48 For al1the above reasons,the United Kingdomsubmitsthat the declaration
made by the United Kingdom under Article 36(2) and the declaration which the
FRY has purported to make under that provision cannot provide a basis for the
jurisdictionof the Court inthe present case. PART5
ARTICLE IXOF THEGENOCIDECONVENTIONDOESNOT
PROVIDEJURISDICTIONRATIONEMATERMEINTHEPRESENT
CASE
5.01 Other than Article 36(2) of the Statute, the only basis for jurisdiction
advanced in the Application and the Memorial is Article IX of the Genocide
Convention, which providesthat:
"Disputes between the Contracting Parties relating to the interpretation,
applicationor fulfilmentof the present Convention, includingthoserelating
to the responsibility of a State for genocide or for any of the other acts
enurneratedin Article III, shallbe submittedto the International Courtof
Justiceatthe request ofany ofthepartiesto the dispute."
5.02 Even if, contraryto what is maintainedin Part 3 above,the Courtpossessed
jurisdiction ratione personae, its jurisdiction ratione materiae under Article IX
would be limited to disputes "relating to the interpretation, application or
fulfilmentof the [Genocide]Convention"which might exist between the United
Kingdomand the FRY. JurisdictionunderArticleIXwould not extendto disputes
regarding alleged violation of other rules of international law, such as the
provisions of the United Nations Charter relating to the use of force and the
GenevaConventions and Additional Protocolsof 1997relating to the conductof
armed~0nflict.l~~
''' SeetheOrderof the Court of13September1993ontheRequest forFurther Provisional Measures
in the case concerningApplicationof theConventionon thePrevention andPunishmentof the Crimeof
Genocide (BosniaandHerzegovinav. Yugoslavia),ICJ Reports 1993,p. 325 at para. 36 et seq. and the
decisionofthe Courtat the PreliminaryObjectionsstage ofthat case,ICJ Reports1996,p. 595at para.37
et seq.. Seealsothe separateopinion of JudgeadhocSirElihuLauterpacht:
"The Court can only act in a case if the parties,both applicantand respondent, have conferred
jurisdictionuponitby somentaryactof cons..Whateverfom theconsentmaytake,the5.03 Yet it is plain fiom the Application andthe Memorial that the Genocide
Conventionis not what this case is about. Inthe letter fiom the Federal Minister
for Foreign Affairs of the FRYto thePresidentof the Court,which is attachedto
the Application,the case isdescribedas one "concerningBreachof the Obligation
Not to Use or ce". 'he'Applicationthen goes on to ask the Court to adjudge
and declare that the United Kingdomis in violation of the obligation notto use
force, the obligation not to intervene in the affairs of another State, various
obligations arising under the laws of anned conflict, the law relating to the
environment,the law of human andeconomicand socialrights and the obligation
to respect fieedom of navigationon internationalrivers. An allegation thatthe
United Kingdom has violated the Genocide Conventionis added almost as an
afterth0~~ht.l~~The Memoriallikewiseconcentrateson allegationsof violationof
rules otherthanthose laiddown intheGenocide on vent ion.'^^
5.04 It follows that most of the complaints madeby the FRY in its Application
and Memorial cannot, on any basis, be brought within any jurisdiction which
might bederived fiom Article IX ofthe Genocide Convention. Onlya very small
part of the FRY'S claim is even potentially capable of coming within any
jurisdictionwhich mightbe derivedfiomArticleIX.
5.05 In reality, however, none of the claim falls within the scope of ArticIX.
For the Courtto havejurisdictionunderthat provisionin respectof anypart of the
present case it is not sufficient forthe FRYto note that the Genocide Convention
range of matters that the Court can then deal with is limited to the matters coveredby that
consent."(ICJ Reports 1993,p. 412).
15' Letterdated 26 April 1999;PartII ofthe documentscomprisingtheApplication.
lS9
Application,Part III,"Claim; see also"LegalGroundson whichthe claim isbased".
''O See,e.g.,the Submissionsat pp. 351-352.is in forcebetween itselfand the UnitedKingdomandto makeallegationsthat the
UnitedKingdom hasviolatedtheConvention.
5.06 As the Courtheld inthe OilPlatformscase,wherea claimantStateseeksto
foundthejurisdiction of the Courton a treaty provision whichconfersjurisdiction
only in respect of disputes concerning the interpretation or application of that
treaty, the Court "cannot limititselfto noting thatone ofthe Parties maintains that
such a dispute exists, and theotherdeniesit." Instead, the Court must, evenat the
preliminary objections stage, "ascertain whether the violations of the [treaty]
pleaded ... do or do not fa11withinthe provisionsof the [treaty]and whether,as a
consequence,the dispute is one which the Courthasjurisdictionrationemateriae
to entertain"pursuantto the relevant provisionof thattreaty.161The Court applied
the sameprinciple inthe Genocide Convention case.'62
5.07 In its Order of 2 June 1999inthepresent case, the Courtheldthat:
"...in order to determine, even prima facie, whether a dispute within the
meaning of Article IX of the Genocide Convention exists,the Court cannot
limit itself to noting that one of the Parties maintains thatthe Convention
applies, while the otherdeniesit; and ...in the present casethe Court must
ascertain whetherthebreachesofthe Conventionallegedby Yugoslaviaare
capableof fallingwithinthe provisionsof that instrumentand whether,as a
consequence, the dispute is one which the Court has jurisdiction ratione
materiaeto entertainpursuanttoArticleIX."'~~
5.08 The Court concluded that, prima facie, the conduct to which the FRY
referred did not satisQ this test because it did not entai1the element of intent
161
OilPlatforms(IslamicRepublicofIranv. UnitedStatesofAmerica),PreliminObjections,ICJ
Reports1996,p. 803,para.16.
'62 Application ofthe Conventionon the Preventionand Punishmentof the Crime of Genocide
(BosniaandHerzegovinav. Yugoslavia),PreliminaObjections,ICJReports1996,p.595,para.30.
163 Orderof 2 June1999,para.33.required by the Genocide onv vent ion ,'d that Article IX did not, therefore,
provideaprima facie basisfor thejurisdictionofthe Court.
5.09 Whilethe test at the Provisional Measuresstage of a case is whether there
is a prima facie basis for jurisdiction, the jurisprudence of the Court and, in
particular,the decisionin the Oil Platforms case,makesclear that this standardis
not sufficient at the stage of preliminaryobjections. At this stage the Applicant
must demonstrate that the Court has - not that it might have - jurisdiction. A
detailed analysis of the claims and the treaty on which the Applicant seeks to
foundjurisdictionis required.165
5.10 Although the provisions in question are well known, it is worthwhile
recalling exactly what must exist for conduct to fa11within the scope of the
GenocideConvention. ArticleII ofthe Conventionprovidesthat:
"In the present Convention, genocide means any of the following acts
committedwith intent tu destroy, in whole or inpart, a national, ethnical,
racial or religiousgroup, as such:
(a) killingmembersofthe group;
(b) causing seriousbodily or mental harm to members of
the group;
(c) deliberately inflictingon the group conditions of life
calculated to bring about its physical destruction in
whole orinpart;
(d) irnposing measures intended to prevent births within
the group;
lM Ibid., para.35.
'65 SeparateOpinionof JudgeHigginsinthOilPlatformscase,ICJReports1996atp. 855, para.
29. (e) forcibly transferring childrenof the group to another
group.w166
5.11 It is manifest that the Convention addresses conductof a characterwholly
different fiom that which is necessarily involved in the conduct of military
operations and that, as the Court held in the present case, "the threat or use of
force against a State cannot in itself constitute an act of genocide within the
meaning of Article II of the Genocide onv vent ion." T'hat limitation follows
inevitablyfiom the originsandpurpose of the Convention. As the Court statedin
its AdvisoryOpiniononResewations:
"The originsof the Conventionshowthat it was the intentionof the United
Nations to condemn and punish genocide as "a crime under international
law" involving a denialof the right of existenceof entire hurnan groups, a
denial which shocks the conscienceof mankind and results in great losses
to humanity, and which iscontraryto moral law andto the spirit and aims
ofthe United Nations (Resolution 96(I)ofthe General~ssembl~)."'~~
5.12 Accordingly, what distinguishes genocidefiom al1other instances of the
use of force,whichis an inevitable featureof armedconflict, is the requirementof
a specific,or special,intentto destroy,inwholeor in part, anational,ethnic,racial
or religious groupas such. It is the presence of this intent which the Court has
described, in the Genocide Conventioncase, as "the essential characteristic"of
genocide underthe convention. 16'
'66 Annex1;emphasisadded.
167
Orderof 2 June1999,para.35.
16* ICJReports1951,p. 15 atp.23.
169
(BosniaandHerzegovinav. Yugoslavia),ProvisionalMeasures,ICJReports1993,p.325atpara.42.ocide5.13 Theimportanceofthis elementof special intention has also been stressed in
the jurisprudence of the International Criminal Tribunals for Rwanda and the
Former Yugoslavia(the Statutesof which incorporate the provisionsof ArticleII
of the Genocide onv vent ion).'^' Thus, the International Criminal Tribunal for
Rwanda heldinProsecutorv.Akayesuthat -
"Genocide is distinct fiom other crimes inasmuchas it embodies a special
intentor dolusspecialis. Specialintent of a crimeis the specificintention,
required as a constitutive element of the crime, which demands that the
perpetrator clearlyseek to produce the act charged. The special intent in
the crime of genocide lies in 'the intent to destroy, in whole or in part, a
777171
national,ethnical,racial orreligiousgroup,as such .
As the Tribunal explainedin anotherpart of thejudgment:
"In concrete terms, for any of the acts-chargedunder Article 2(2) of the
Statute to be a constitutiveelement of genocide, the act must have been
cornmitted against one or several individuals, because such individuals
were membersof a specific group, and specificallybecausethey belonged
to this group. Thus, the victim is chosen not because of his individual
identity,but rather on accountof his being amemberof a national, ethnical,
racial or religiousgroup. The victim of the act is therefore amemberof a
group targeted as such; hence the victim of the crime of genocide is the
groupitselfandnot the individual alone.
The perpetration of the act charged therefore extends beyond its actual
commission, for example, the murder of a particular individual, for the
realization of an ulterior motive, which is to destroy inwhole or part, the
groupofwhichthe individualisjust oneelement. ,9172
170 Statute of the InternationalCriminalTribunal for the Former Yugoslavia,(UNtiDoc.
SI25704(1993));Statuteofthe InternationalCriminalTribunalforRwanda,Article2 (SCR955 (1994)).
l7'
ProsecutoV.Akayesu,Case ICTR-96-4(2 September1998),para. 498. See also Prosecutorv.
Kambanda,CaseICTR-97-23(4 September1998),para. 16.
'72 Ibid.,paras.521-522.5.14 Similarly, in the case of Prosecutor v. Kayishema, the International
CriminalTribunal forRwandaheld that:
"A distinguishing aspect of the crime of genocide is the specific intent
(dolusspecialis) to destroy a groupin whole orin part. ...It is this specific
intentthat distinguishes the crime of genocide fiom the ordinarycrime of
,9173
murder.
5.15 TheInternationalCriminal Tribunalfor the FormerYugoslaviahas adopted
the same approach. In acquitting Goran Jelisic of genocide, the Trial Chamber
heldthat:
"It is in fact the mens rea which gives genocide its speciality and
distinguishes it fkom an ordinary crime and other crimes against
internationalhumanitarian law. The underlying crimeor crimes must be
characterizedas genocidewhen committedwith intentto destroy ,in whole
or in part, a national, ethnical, racial or religious group as such. Stated
othenvise, 'the prohibited act must be committed againstan individual
becauseof his membershipin a particular group and as an incrementalstep
in the overall objectiveof destroyingthe group'. Twoelementswhichmay
thereforebe drawnfi-omthe specialintentare:
- thatthe victimsbelongedtoan identifiedgroup;
- that the allegedperpetratormust havecommittedhis crimesas part of a
wider planto destroythegroupas such.99174
and:
"Apart fiom its discriminatory character,the underlying crime is also
characterisedby the fact that it is part of a wider planto destroy,in whole
or in part, the group,as such. As indicatedby the ILC, 'theintentionmust
be to destroy the group"as such", meaningas a separateand distinct entity,
and not merely some individuals because of their membership in a
'73
Prosecutorv. Kayishema andRuzindana,CaseICTR-95-1and 96-10(21May 1999),para. 91.
'74 Prosecutorv. Jelisic,CaseIT-95-10 (14 December1999),para.66, quotingthe InternationalLaw
CommissionDraftCodeofCrimes,UN Doc. A/51/10(1996),p. 88. particular group.' By killing an individualmember of the targeted group,
the perpetrator does not thereby only manifesthis hatred of the group to
which his victim belongsbut also knowingly cornmitshis act as part of a
wider-rangingintentionto destroythe national,ethnical,racial or religious
groupof whichthe victim isa member."175
5.16 It is the existenceof such an intentionwhichthe FRY must demonstrateif
it is to bring any part of its case withinthe scope of the Convention and thus
establish the jurisdiction of the Court under Article IX. In its Order of 2 June
1999, the Court found that the FRY had failed, evenprima facie, to meet this
requirement. In its Memorial,theFRYclaims thatit hasnow submittedsufficient
evidence of that intent to bring the casewithin the scope of Article IX and thus
establishthejurisdictionof the In fact,ithas signally failedtodo so.
5.17 The realityis that the FRY Memorialscarcely addressesthe questionat all.
In a pleading ofover 350pages,the FRYdevotestwopagesto whatit describesas
"facts relatedto the existenceof an intentto commitgenocide 7.177 In its treatrnent
of the law,there is less than a page onthe Conventionandthat doesnothing more
than quote the texts of Articles 1, II and IX.'~~In its treatment of jurisdiction
questions, the FRY gives over two and one half pages to quotation fiom the
Court'sOrder of 2 June 1999inthe caseof Yugoslaviav.Belgium andthen makes
the baldassertionthat it hasnow providedthe necessaryevidence.
5.18 The FRY fails consistently to identiQ the "national, ethnical, racial or
religiousgroup" whichit accusesthe United Kingdomof intendingto destroy. In
Ibid.,para. 79.
176 Memorial,para. 3.4.3.
17' Memorial, pp. 282-284.
178 Memorial,p. 326.places, the FRY appears to be suggesting that the relevant group was the
inhabitants of the FRY as a wh01e.I~~ Elsewhere, however, it appears to be
suggestingthat the relevantgroup was the Serbethnicorracial gro~~.~~~
5.19 Most importantly,the FRYMemorialcomesnowhere near evenidentieing
the possible existence of the constituent elements of the crime of genocide.
Neitherin the Application,nor inthe Memorial,nor inits oral presentationsto the
Courtonthe request for provisionalmeasures,has the FRYproduced anyshredof
evidenceof an intentto commitgenocideonthe part of the UnitedKingdom. The
UnitedKingdomnever had any intention to destroy any"national, ethnical,racial
or religious group,as such" in the FRY. On the contrary, the United Kingdom
repeatedly made clear that it did not intend to attack, let alone to destroy, the
civilian populationof any part of the FRYbut intendedto use onlythe minimum
forcenecessaryto avert an ovenvhelming humanitariancatastrophe.
5.20 TheFRY adducesno statementof anykind whichgives even ahint that the
UnitedKingdomhad the intentnecessary tofounda charge of genocide. Instead,
the FRY relies, in its Memorial, on inferences whichit invites the Courtto draw
from certain actions,which it makes no attempt to link to the United Kingdom.
The decisionof the InternationalCriminalTribunal for the Former Yugoslaviain
Prosecutorv. Jelisic makes clearthat "the intention necessaryfor the commission
of a crimeof genocide may not bepresumedeven in the case wherethe existence
of a groupis at least in part threatened".181Whereintent has been inferred,it has
'79
Memorial,p.352. See alsoProfessorBrownlie,QC, atCR99/25, p. 14.
''O Memorial,para.1.6.1.3.
'''
ProsecutorVJelisic,CaseIT-95-10(14December1999),para.78.been fi-omclear evidence of "a pattern of purposeful action",ls2which clearly
pointedto the existenceof suchan intention.lS3
5.21 The only basis on which the FRY suggests that such an intent can be
inferred in the present case is the use of depleted uranium ammunitionand the
attackson chemicalindustryplants, especiallyat ~ancevo.'~'Apartfromthesetwo
allegations,nothing isofferedat al1as a basisonwhich the Courtcan inferthatthe
United Kingdom intended to commit the most heinous crime known to
international law. Neither element, however, comes anywhere near sustainingthe
inferencewhichthe FRYinvitesthe Courtto drawfromit.
5.22 With regard to the use of depleted uranium ammunitionduring the air
carnpaign,the FRY Memorial makes no specific allegation regardingthe use of
this ammunitionagainstany oftheRespondents and,so far asthe UnitedKingdom
is concerned,no such allegation wouldbe credible. The UnitedKingdomdidnot
use depleted uranium ammunition duringthe conflict.
5.23 The FRY argues thatthe characteristicsof this ammunitionare suchthatthe
intent to destroy a group as such can be inferred fi-omthe mere fact that it was
used at a11.lS5The FRY relies, in particular, on what it alleges to be the longer
term effectsof such ammunition.
5.24 This argumentcannotbe sustained. Depleted uranium ammunition is not a
weapon of mass destruction. Itis employedbecause of the ability of a depleted
lS2 Prosecutorv. Kayishemaand Ruzinda, ase ICTR-9-and96-10(21May1999),para.93.
18'
See Prosecutor v. Akayesu, Case ICTR-96-4(2 September1999).The comment5of the
InternatioCriminalTribunalfor theFormerYugoslaviainProsecutorv.Nikolic(61),108ILR21,
para.34, andProsecutv.KaradzicandMladic(Rule61),108ILR85,para.94, adoptasimilarapproach.
lS4 Memorial,Section1.6.
lS5 Memorial,para.1.6.1.4.uranium round of ammunition to pierce arrnour and other protective shields.
Depleted uranium has a level of chemical toxicity thatis similar to that of other
heavy metals,such as lead, andthe healthrisks fiom exposureto it are assessed as
very low. Its use is not prohibited under any international agreements and the
International Cornmittee on Radiation Protectiondoes not list depleted uranium
ammunitionas a healthhazard. Itis absurdto suggest thatan intentionto commit
genocide canbe inferredfiomthemere factthat sucharnrnunitionhas been used.
5.25 The Court rejected a similar argumentto the effectthat the intent necessary
for genocidecan be inferred fiomthe factthat a Stateuses a particular weapon in
its Advisory Opinion on Legality of the Threator Useof Nuclear Weapons. The
Courttherestated:
"It was maintainedbeforethe Courtthat the number of deaths occasioned
by the use of nuclearweapons wouldbe enormous; that the victims could,
in certain cases, include personsof a particular national, ethnic, racial or
religious group; and that the intention to destroy such groups could be
inferred from the fact that the user of the nuclear weapon would have
omitted to take account of the well-known effects of the use of such
weapons. ,3186
The Court, however, rejectedthe notion that the intent to destroy such a group
could be inferred fiom the mere fact that a nuclear weapon was used and
consideredthat:
"the prohibition of genocide wouldbe pertinentin this case ifthe recourse
to nuclear weaponsdid indeedentai1the elementof intent,towards a group
as such,requiredby the provision quotedabove. In the view of the Court,
it would only be possibleto arrive at such a conclusionafter having taken
,9187
dueaccountof the circumstancesspecificto eachcase.
lS6 ICJReports1996,p. 226atpara.26.
'" Ibid., para.26 (emphasisadded).5.26 Since, as the Court has stated, the use of nuclear weapons does not
necessitatethe inferencethat the user intends to destroya group as such, then the
sarne istrue afortiori for the use of depleted uranium ammunition. Even on the
basis of the very limited material advanced by the FRY, it is clear that depleted
uraniumammunitionis far less destructivethan nuclear weapons.
5.27 With regard to the attacks on the chemical plants, the FRY Memorial
contendsthat:
Genocidal intention of the responsible individuals for the
strikes against chemical industry facilities in Yugoslaviais
clearly impliedby destructionof this industryin Pancevo. In
this town, not only is there a high concentrationof chemical
plants,which, if destroyedor damaged,pose a greatdanger in
themselves, but also al1the three factories were in the first
strikes completely incapacitated for any further productive
activity. The responsibleindividuals were certainlyaware of
this, since their first attacks had been directed towardsvital
parts of the factories,us incapacitatingtheirproduction.
1.6.1.3 Therefore, if the aim was to disrupt production in those
factories, that aim was completely achievedduring the first
attacks. my did new devastating strikesfollow afterwards?
The only possible explanation can be found that the
responsible individuals hadgenocidal intention, andin order
to perpetrate genocide, they continuedwith air strikesagainst
chemical industryplants intendingto expose a large nurnber
of inhabitants of Yugoslaviato extensivedestruction. As we
have already argumentatively explained,it was the Serbs that
were primaril meant under the term "population of
~u~oslavia."'*B
5.28 The argumentadvanced in the Memorial is, to Saythe least, tenuous. No
indicationis given, here or elsewhere in the Memorial, of large-scale casualties
lS8 Emphasisintheoriginal.resulting fiom the later attacks on the plants at Pancevo. The military utilityof
industrial chemicals is such that they can be a legitimate military target under
international humanitarian law and theyhave in fact regularly been attackedin
modern conflicts. The Memorial confines itself to the assertion that "the
responsibleindividuals ofthe Respondentsshould have knownthat strikes against
such facilities may incur an additionalrisk to the population. 7,189 The allegation
that someone shouldhave knownthat a particular attackcarrieda risk of collateral
casualtiesis far removed fiom evidence that thatperson, or anyoneelse, intended
to destroy a national or racial group as such. There is no basis for drawingan
inference that an attack upon such a target must have been intended to destroy
sucha group.
5.29 The Memorial suggests,however,that the later attacksuponthese facilities
were motivated by such an intention, on the ground that no military advantage
could be gained by such attacks. The accounts in the Memorial of the later air
attackson Pancevo,however,do not supportthe assertionthat therewas no longer
anything of military value to be attacked, let alone that those who ordered the
attacks knew that that was the case, still less that, by ordering the attacks, they
intended to destroy a national orracial group as such. The suggestionthat the
specialintent which is an essential element of genocidecan be inferred fiom the
use of depleted uranium ammunition orthe attacks onPancevoissimplyfancifui.
5.30 Moreover, the evaluation of the FRY'Sassertion that an intent to commit
genocide can be inferred fiom the use of depleted uraniumammunition and the
attackson Pancevo - evenif that assertionhad any credibilitytakenby itself - has
to takeaccountof other evidenceregardingthe intentionsof thosewho orderedthe
Ia9 Memorial,para.1.6.1.1,(emphasisadded).attacks upon the FRY. As stated above, so far fiom there being an intent on the
part of the United Kingdom or the other NATO States to destroy the Yugoslav
nation orthe Serbs, the intention, ofien repeated,was to achieve a limited set of
goals in relation to ending the atrocitiesbeing comrnittedby the FRY in Kosovo
and ensuringthe safereturn of refugeeswhile causingas little damageas possible
to the civilian population of the FRY. These statements,the care taken to avoid
civilian casualties and even the numbers of dead and wounded suggestedin the
Memorial (which have not been verified) are al1inconsistent withthe allegation
that the United Kingdom had the special intent necessary for the crime of
genocide. lgO
5.31 Although paragraph 3.4.3 of the Memorial suggests thatthe FRY has now
producedevidenceof an intentto commit genocideduringthe aircampaignwhich
was not before the Court at the ProvisionalMeasuresstage, the reality is that the
FRYhad made exactlythe sameassertionthat the intentrequiredby the Genocide
Convention can be inferred fiom the attacks on chemical plants andthe use of
depleteduranium ammunitionin the oral hearingsin May 1999.19'The argument
is asweaknow as the Court founditto be then.
5.32 The only new element in the FRY'S arguments regarding the Genocide
Convention is the assertion in the Memorial that the United Kingdom is
responsiblefor a violationof the Conventionwhich theFRY claimsoccurredafter
the entryof KFORtroops into Kosovounder the termsof SCR 1244(1999). The
Memorialalleges that the United Kingdom is responsible,eitheras accompliceof
It is notable,that the ICTY Prosecutorconcludedthat there was no basis for openingan
investigationintoanyof the allegationsor into otherincidentsrelatedto theNATObombingconceming
genocide (Arti4 oftheStatuteofthe Tribul,NDoc. S/25704).ndAnnex3). Thosecrimes include
I9l CR 99/14,p.30,para.4.1 etseq.the KLA or for failing to take adequate steps to prevent attacks on the non-
AlbanianpopulationinKosovosince 10June 1999.
5.33 For the reasonsset outin Part 6 of thesePreliminaryObjections,the United
Kingdom maintains that this new claimis inadmissible. However, evenif that is
not the case, the United Kingdom submits thatthis claim does not fa11within the
jurisdiction ofthe CourtunderArticleIXofthe Genocide Convention.
5.34 The allegations in the Mernorial are a travesty of the truth. The violence
which has been directed against Serbs and other non-Albaniansin Kosovo is a
directresult of the atrocitiesperpetratedby the FRY againstthe Albanianmajority
in Kosovo priorto the adoptionof SCR 1244(1999). KFORand UNMIK, whose
activities cannot be separated in respect of this question,192have consistently
condernnedal1ethnic violencein Kosovo andhave doneeverythingthey couldto
preventit sinceenteringKosovopursuantto SCR 1244(1999).
5.35 Far from "conniving"at attacksby theKLAon Serbinhabitantsof Kosovo,
KFOR andUNMIKhave repeatedly calledonal1groupsto haltacts ofviolence.lg3
Stepshave beentaken to disarmthe KLAandal1othergroups.194
5.36 In addition, KFOR military personneland UNMiK civil police have taken
extensive measures to protect the Serb and other non-Albanian minorities in
Kosovo, including, for example,putting soldiers in apartment blocksto provide
round-the-clock protection.'95 These are not the acts of persons conniving at
Iq2 Seeparas.2.25-2.37above,andparas.6.23-6.27below.
lq3
SeeAnnex20 andUNDoc.Sf19991767; UN Doc.Sf1999177andUNDoc Sf19991868;
lq4 Seeparas.2.25-2.36above.
19'
See, e.g., the Joint Statemtye SpecialRepresentativeof the Secretary-Generaalnd the
KFOR Commander (Annex20)andtheother Reports consiatparas.2.31-2.37above.ethnicviolence,let alone actively participatingin or encouragingit. The contrast
with the behaviourof the FRY military,paramilitaryand police forces in Kosovo
up to 10 June 1999 (in respect of which the ICTY Prosecutor has indicted
PresidentMilosevic and otherFRY leaders lg6couldnot be more marked.
5.37 It is true that these measures have not prevented al1attacks on the Serb
inhabitantsof Kosovo. TheUnited Kingdom greatly regrets that its attempts to
protect non-Albanians in those parts of Kosovo where its forces have been
stationedhave not always been successful. There are, however, clearsigns that
the security and law and order position in the province has improved and the
UnitedKingdomis doingeverythingpossibleto ensurethe safetyof al1inhabitants
of Kosovo.
5.38 Moreover, evenif forthe sake of argumentit were to be assumed thatthe
attacksperpetrated against non-Albanianssince 10June 1999constitutegenocide
by those canying them out (which is not admitted), the fact that KFOR and
UNMIK were unable to prevent those attacks despite their endeavoursto do so
does not even begin to amount to a case that the United Kingdom or any other
KFOR contributor Stateha violated the Genocide Convention.
5.39 Genocideisthe mostseriouscrimeknownto internationallaw, orindeedto
any otherlaw. It is clearly distinguishedfiom violationsof the law onthe use of
force or violationsof the law of armedconflict. The attempt by the FRY to rely
upon the Genocide Conventionas a bais for jurisdiction in the present case is
wholly unfoundedand a cynical abuseof the processof the Court. In reality,the
FRY is trying to use the Genocide Conventionas a convenientmeans of bringing
before the Court allegations whichhave no real connection with that Convention.
'% Seepara.2.23above.In doing so, it trivializes a treaty the importance of which the Court and the
internationalcornmunityas a whole havealwaysemphasised. PART6
THECLAIMSAREINADMISSIBLE
6.1 In addition to its objections to the jurisdiction of the Court, which have
been set out in Parts 3 to 5 above, the United Kingdom also submits that the
claims advanced by the FRY in its Memorial are inadmissible. This
inadmissibilityderivesfiom the followingconsiderations:
(1) the claim advancedby the FRY in its Memorial regarding the
period since the adoption of SCR 1244(1999) on 10June 1999 is
inadmissiblebecause it is an entirely new claim which, if the Court
were to entertain it,would transform the nature ofthe disputebefore
the Court(paras.6.2to 6.8);
(2) the claim relating to the period fiom 24 March to 10 June
1999is inadmissiblebecausethe legal interestsofotherStateswhich
are not before the Court (either in the present case or in the other
proceedings brought by the FRY) would form the very subject-
matterof the decisionrequestedby the FRY(paras.6.9to 6.22);
(3) the claim advancedby the FRY in its Memorial regardingthe
period since the adoption of SCR 1244(1999) on 10June 1999is
inadmissible because the legal interests of other States and of the
United Nations would forrn the very subject-rnatterof the decision
requestedby the FRY @aras. 6.23to 6.27);and
(4) the FRYhas not actedin good faith(paras.6.28to 6.40).
Eachof thesepointswillbe consideredinturn. (1) The claim advanced by the FRY in its Memorial regarding the
period since the adoptionof SCR 1244 (1999)on IOJune 1999 is
inadmissiblebecauseit is an entirelynew claimwhich, ifthe Court
were to entertain it, would transformthenatureof thedispute before
the Court
6.2 Article 40(1) of the Statute of the Court provides that the "subject of the
dispute"must be indicated in the Application. Article38(2)of the Rulesrequires
that the ApplicationspeciQ "the precisenature ofthe claim". Theserequirements
are not mere matters of form but, as the Court has emphasised, provisions
"essential fiom the point of view of legal securityand the good administrationof
justice."197It is for these reasons that aState is not permittedto add wholly new
claimswhich would transform the subjectof the dispute originallybrought before
the Court.
6.3 Both the Permanent Court of International Justiceand the present Court
have consistently and repeatedly insisted upon this principle. In the Société
commercialedeBelgique case,the PermanentCourtheldthat:
"It is to be observedthat the liberty accordedto the parties to amendtheir
submissions up to the end of the oral proceedings must be construed
reasonablyand withoutinfï-ingingthe termsof Article40 of the Statuteand
Article 32 paragraph 2, of the Rules which provide that the Application
must indicatethe subjectof the dispute. ...The Courtcannot,in principle,
allow a dispute brought before it by application to be transformed by
amendments,9198he submissionsinto another dispute whichis different in
character.
Similarly, in the Prince von Pless case, the Permanent Court held that an
Applicant may,in its Memorialand subsequentpleadings,"elucidatethe termsof
lg7 Certain Phosphate Lanh in Nauru (Nauru v.Australia), Prelimina~ Objections,ICJReports
1992,p.267, para.69.
Ig8
PCIJ,SeriesAB, No. 78,p. 173.the Application" butinsistedthat an Applicantwas not entitledto "go beyond the
limits ofthe claim"as set out inthe App1i~ation.l~~
The same principle was appliedby the present Court in the Nauru case,
6.4
when it held that "an additional claim must have been implicit in the application
... or must arise 'directlyout of the questionwhich is thesubject-matterof that
Application. ,,,200It was not enough thatthe new claim was connectedwith the
claimsinthe Application. The Court thereforeheldthat Nauru'sadditionalclaim
regarding the overseas assets of the former British Phosphate Cornmissioners,
which was introduced for the first time in the Memorial,was inadmissible since
"the subject of the dispute on which it would ultimately haveto pass would be
necessarilydistinct fiom the subject of the dispute originally submittedto it in the
~~~lication."~~' Even more recently, the Court has said, in the Fisheries
Jurisdiction (Spainv. Canada)case,that:
"Paragraph 1of Article 40 of the Statute of the Court requires moreover
thatthe "subject of the dispute" be indicatedin the Application; and,for its
part, paragraph 2 of Article 38 of the Rules of Courtrequires "the precise
nature of the claim" to be specified in the Application. In a numberof
instancesin the past the Courthas had occasionto referto theseprovisions.
It has characterized them as "essential from the point of view of legal
securityand the good administrationofjustice" and, on this basis,has held
inadmissible new claims, formulated during the course of proceedings,
which, if they had beenentertained,wouldhave transformedthe subjectof
the dispute originallybrought before it under the tenns of the Application
(Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary
Objections,Judgment,ICJ Reports 1992,pp. 266-267;see alsoPrince von
PlessAdministration, Orderof 4 February 1933,PCIJ SeriesA/B, No. 52,
p. 14 and Société co,9202ialede Belgique, Judgment,1939,PCIJ Series
dB, No. 78,p. 173).
'99 PrincevonPlessAdministration,PCIJ,SeriesAB, No.52,p. 14.
200 ICJReports1992,p.266,para.67.
'O'
ICJReports1992,p.266,.para.68.
202 Judgment, December 1998,para.29. In the case broughtby the FRY against Belgiurn,the Court itself identified
6.5
the subjectof the dispute indicatedinthe Applicationinthe followingterms:
"Whereas Yugoslavia'sApplicationis entitled "Applicationof the Federal
Republic of Yugoslaviaagainst the Kingdom of Belgium for Violation of
the ObligationNot to Use Force"; whereas in the Applicationthe "subject
of the dispute" .. is describedin general terms ... but whereas it can be
seenboth fiom the statementof "facts uponwhich the claim is based" and
fiom the manner in which the "claims" themselves are formulated ...that
the Applicationis directed,in essence, againstthe "bombingof the territory
of the Federal Republicof Yugoslavia",to which the Court is asked to put
an end."203
TheApplicationinthepresentcaseis identicalinthis respect.
6.6 The FRY'S claims regarding events in Kosovo since 10 June 1999 are
radicallydifferent in characterfiom those in the Application. As demonstratedin
Part2 above,the new claimsinvolvethe activityofthe UnitedNations andof a far
wider group of States (currentlythirty-nine) than those involved in the military
action. The new claims are based upon analleged failure to maintain law and
order in parts of Kosovo. Law and orderin Kosovosince 10June 1999has been
the responsibility of bodies createdby, or under the authority of, the Security
Council. The new claimsthus entai1 a challengeto the authority of the Security
Counciland the way in whichUNMIKand KFORare dischargingtheir mandates
fiom the Council (a matter Mer consideredin paragraphs 6.23 to 6.27 below).
By contrast,the Applicationis concemed exclusively withthe use of force against
the FRY by the UnitedKingdomandotherNATO States.
6.7 Althoughthere are "linksof a generalnature" betweenthe new claims and
the claimsmade in the Application,thenew claimscannotbe saidto have been
203 Yugoslaviav. Belgium,Orderof 2 June1999,para.27. Substantiallyplaragrapsppear
intheOrdersinthecases broughtagainstCanada,NetherlandsandPortugal. Thereasonwhy no similar
passageappearsinthe Orderin Yugoslav.UnitedKingdom is thattheCourtfounda manifestlackof
jurisdictionunderArticle36(2) oftheStatute;seeparas.4.8-4.12 above.implicit in those made in the Application, nor do they arise directly out of the
questions which were the subject-matter of the ~~~lication.~~~ A dispute
regarding peace-keepingin the aftermath of a conflict is of an entirely different
characterfiom a dispute regardingthe initiation or conductof the conflict itself. If
the new claims were to be entertained,the Court wouldbe required to consider
matters which ratione temporis and ratione materiae are entirely different from
thoseraised in the Application. The resultwouldbe to transformthe natureof the
dispute beforethe Court.
6.8 Quiteapartfiomany other groundonwhicha preliminary objectionmaybe
taken, therefore, it is submitted that the claims relating to the period after the
adoption of SCR 1244(1999) are inadmissiblebecause they infiinge this well-
establishedprincipleregarding the administrationofjustice.
The claim relating to theperiodpom 24 March to 10 June 1999 is
(2)
inadmissible because the legal interests of other States which are not
before the Court (either in the present caseor in the other proceedings
brought by the FRY) would form the very subject-matter of the decision
requestedby theFRY
6.9 In the Monetary Gold case,205the Court laid down for the fint time a
principle which has subsequently become well-establishedn ,amely that it cannot
exercisejurisdiction in a case if the legalinterestsof a Statewhich was not a party
to the proceedingswould form the verysubject-matterof the decision. That case
concerned proceedings institutedby Italy againstFrance,the UnitedKingdomand
the United States of Americawith regard to title to a quantityof gold held by the
three Respondentsand to which bothItaly and Albania laid claim. Albania was
not apartyto theproceedings.
'O4
Certain Phosphate LandsinNauru,ICJReports1p.266, para.67.
896.10 The Courtheldthat it couldnot -
"...decide such a dispute without the consent of Albania. But it is not
contended by any Party that Albania has given herconsent in this case
either expressly or by implication. To adjudicate upon the international
responsibilityof Albania withouther consent wouldrun counterto a well-
establishedprinciple of internationallaw embodied inthe Court's Statute,
narnely, that the Court can only exercisejurisdiction over a Statewith its
The Courtcontinued:
"In the present case, Albania'slegalinterests would notonlybe affectedby
a decision,but would formthe very subject-matterof the decision. In such
a case, the Statute cannot be regarded, by implication, as authorizing
proceedings tobe continuedinthe absenceof~lbania."~'~
The Courttherefore concludedthat it couldnot exercisethejurisdictionwhich the
Partieshad soughtto conferupon it.
6.11 This principle has recently been applied in a different context in the East
Timorcase.2o8In that case, the Courtheldthat, notwithstandingthe existenceof a
jurisdictional link betweenthe Applicant,Portugal,andthe Respondent,Australia,
by virtue of the declarations of the two States under Article 36(2) of the Statute,
the Courtcouldnot exercisejurisdictionbecause -
"... the very subject-matter of the Court's decisionwould necessarilybe a
detemination whether, having regard to the circumstances in which
Indonesia entered and remained in East Timor, it could or could nothave
acquiredthe power to enter into treatieson behalfof East Timor relating to
the resources of its continental shelf. The Court could notmake such a
detemination in the absenceof the consentofIndonesia. ~~209
205 ICJReports 1954,p. 19.
206
ICJReports 1954,p. 32.
207 ICJReports 1954,p. 32.
208
ICJReports 1995,p. 90.
2w ICJReports 1995,p. 102,para. 28.6.12 There are three different rationales forthis principle. First, as the passages
quotedabovemake clear, it is a necessary corollaryof the principlethat the Court
cannot determine the rights and obligations of a State unless that State has
consentedto thejurisdiction ofthe Court. Inthat respect,the principle protectsthe
rights ofthe Stateor Statesnotbeforethe Court.
6.13 Secondly, the principle serves to protect the judicial function of the
~ourt.~'~ The integrity of the judicial functionwould be impaired if the Court
were to exercise jurisdiction in a case between two Stateswhen that necessarily
involvedit in determiningthe rightsor obligationsofa State whichwas not before
the Court.
6.14 Finally,the principle is necessary in some cases toprotect the rights of the
States which are parties to the proceedings. This rationale is particularly
importantwhere the Statewhich is the Respondent cannot adequatelydefendthe
case against it because it is the State not before the Court, rather than the
Respondent,whichhasthe evidencenecessarytomountthat defence.
6.15 It is,of course,the casethat theMonetav Goldprinciplehasbeenqualified
in other cases. Thus, in the Military and ParamilitaryActivities in and against
Nicaragua case,the Court rejected an argumentadvancedby the United Statesof
America that the Monetav Gold principle barred the Court fiom considering a
caseinwhich thelegalinterestsofa Statenot before the Court were affe~ted.~"
6.16 Similarly, in the Phosphate Landsin Nauru case, the Court held that it
could exercisejurisdiction in proceedingsbetweenNauru and Australia regarding
phosphate mining on Nauru during the time when it was administeredas a trust
territoryby Australia,New Zealandandthe UnitedKingdom,notwithstandingthat
'1° See,e.g.,Thirlway,British YearBookof Znternatio1996,at p52.
'" Military and Paramilitav Activities in and against Nicaragua (Nicaraguav. United States of
America)(Jurisdictionandddmissibilityl, ICJRe1984p. 431para.88.New Zealand andthe UnitedKingdomwere not beforethe Court. The Courtheld
that -
"...the interestsofNew Zealand andtheUnitedKingdomdonot constitute
the very subject-matter of the judgment to be rendered on the merits of
Nauru's Application ... [Tlhe determinationof the responsibility of New
Zealand orthe United Kingdomis not a prerequisite forthe determination
ofthe responsibilityof Australia,the onlyobjectofNauru'sclaims. 7,212
Neither in Nicaragua nor in Nauru, however,did the Courtquestionthe principle
in Monetary Gold. Onthe contrary,inboth cases,the Court upheld thecontinuing
importanceofthat principle.
6.17 It appears,therefore, that the factthat ajudgment would necessarily affect
the legalinterestsof Statesnot beforethe Courtdoesnot, in and of itself,preclude
the exercise of jurisdiction (although there may be circurnstances in which to
exercisejurisdiction in sucha casewouldinvolvesucha manifestinjustice thatthe
Court would decide, as a matter of discretion,not to exerciseitsjurisdiction). If,
however, the legal interestsof a Statenot before the Court would form the vev
subject-matterof thejudgment, or if,to adoptthe formulationin the Nauru case, a
determinationof the responsibilityof such a Statewould be a prerequisiteto the
determination of the responsibilityof one of the parties to the proceedings,then
the Courtcannotexercisejurisdiction.
6.18 The UnitedKingdomsubmitsthatthe presentcasefalls squarelywithinthe
Monetaiy Goldprinciple. The FRY has made noattemptto show that the United
Kingdom itself carried out the military operationson which it bases any aspectof
its case. Instead, it maintainsthat each and everyNATO State is responsiblefor
each and every aspectof the military operationswhich occurred. The only basis
for responsibility advancedagainst the United Kingdomis that it is jointly liable
212 ICJReports1992,p.261,para.55.
92for what occurred. Yet eleven of the nineteen NATO States are not beforethe
Court.
6.19 For an Applicant to base its submissions entirely on the alleged joint
liabilityofnineteen Stateswhen it is maintaining proceedings againstonly eight of
those States is wholly incompatiblewith the principle enunciated in Monetary
Gold. The FRY has chosen to frarne its case in the way it has. It cannotnow
escapethe consequencesof thatdecision.
6.20 Moreover, it is comrnon ground that the State which was by far the most
heavily engagedin those military operations wasthe United Statesof America.
The United States of America staged approximately65%of the air sortiesduring
the period 24 March to 10 June 1999. Moreover, the FRY itself consistently
accusedthe United States of America of taking the leading role. Forexarnplein
the debatein the Security Council on 26 March 1999, Mr JovanoviCspeakingon
behalf of the FRY referred on more than one occasion to "NATO, ledby the
9,213
United Statesof America .
6.21 The essence of the present case is the legality of the militaryactionstaken
duringthe period 24 March to 10June 1999. The majorityof those actions were
taken by the United Statesof America, overwhomthe Court hasalreadyheldthat
it has no jurisdiction. The Court cannot decide the present case without
determiningthe legality of those actions - indeed,that is precisely whatthe FRY
isaskingitto do. It follows,therefore,thatthe legalityofthe actionsof theUnited
Statesof Americawouldform"thevery subject-matter"ofthejudgmentandthat a
determination of the legality or otherwise of those actions would be a logical
prerequisiteto any ruling on the responsibilityof the United Kingdom or any of
the Respondentsin the otherproceedings.
213
SffV.3989,p. 12(Anne16). =
6.22 The case is thus quitedifferentfiom eitherthe Nauru or Nicaragua cases.
In the present case,the Statewhichcarriedout the majorityof the air operationsis m
not before the Court. In the Nicaragua case, on the other hand, it was the
Respondent, the United States of America, which had played the leading role I
throughoutthe operationswhichformedthe subjectof the disputein that case. In
the Nauru case, although the trusteeship had been allocated to Australia, New lli
Zealand and the United Kingdom, it was Australia which had actually
m
administered theterritory on behalf of the three governments.he importanceof
this factorwas emphasisedbythe Court inthe followingpassageinthejudgment:
m
"As a matter of fact, the Administratorwas at al1times appointedby the
Australian Governmentand was accordinglyunder the instructionsof that
Government. His "ordinances,proclamations andregulations"were subject
to confirmation or rejection by the Governor-Generalof Australia. The
other Governments, in accordance with the Agreement, received such
decisionsforinformation~nl~."~'~
It was the responsibility of Australiawhich was the subject-matterof the action
and the prerequisite to the establishmentof any responsibilitywhich might exist
on the part of New Zealand and the United Kingdom. Nauru's actionwas based
uponthe conductof Australia;joint responsibilitywas not raisedby Nauru. Inthe
presentcase, however,theFRY'Sclaimrelies entirelyon anargument basedupon
joint responsibility. While the United Kingdom regards that argument as
misconceived,the way the FRY has put its case has the inevitableconsequence
that the Application is inadmissibleunder the principle enunciatedin Monetary
Goldandthe laterdecisionsofthe Courtreferredto above.
214 ICJReport1992p. 257,para.43.
94 (3) The claimadvancedby the FRY in its Memorial regarding the period
since thz adoption of SCR 1244 (1999) on 10 June 1999 is inadmissible
becausethe legal interestsof otherStates and of the UnitedNations would
form theverysubject-matter ofthedecisionrequested bytheFRY
6.23 Theapplicationof theMonetary Goldprinciple is,if anything,even clearer
in relation to the FRY'Snew claims regarding theperiod since the adoption of
SCR 1244(1999).
6.24 As described in Part 2 above, SCR 1244 (1999) provided for the
establishment in Kosovo of international civil and security presences. The
responsibilities given to the international civil presence (UNMIK) and the
internationalmilitary presence (KFOR) are closely related.215 Although the
United Kingdom is a major contributorto KFOR, it is one of thirty-nine States
which currently contributes toKFOR.~'~ Neitherthe United Kingdomnor NATO
has any control over UNMIK, which is a United Nations subsidiary organ,
answerableto the Security Council.
6.25 It follows that the subject-matterof any judgment whichthe Court might
give regardingthe FRY'Sclairnsconcerningthe period since 10June 1999would
be the legalinterestsofotherStatesandofthe UnitedNations itself.
6.26 Althoughthe FRY has tried to avoidthis obviousfact in its submissionsto
the Court, it has not done so elsewhere. That the FRY is fully cognisant of the
true position is evident fiom its innumerable complaintsto the Security Council
about what it claims is happening in Kosovo. To take but one example, in a
memorandumof 15May 2000,the FRYcomplainedto the SecurityCouncilthat -
'15 Seeparas. 2.26-2.28above.
'16 Seepara. 2.29 above. "KFOR and UNMIK bearsole responsibilityfor massive violations
of human rights in Kosovo and Metohija, lawlessness, chaosand
breaches of the provisions of Security Council resolution 1244
(1999) relating to the preservation of the multi-ethnic, multi-
religious and multi-cultural characterof Kosovo and Metohija by
becomingoutrightaccessoryto ethniccleansingandgenocide,"217
andthat -
"Albanianterror and violence,the ethnic cleansing of, and genocide
against non-Albanians,primarily Serbs and Montenegrins,but also
the Roma, Muslims, Turks, Goranci and other non-Albanians, the
destructionof their homes,usurpation and destructionof private and
Statepropertyandrampantcrime and chaos in Kosovoand Metohija
continueunabateddespitethe presenceof severaldozenthousandof
well-anned members of KFOR and more than 2,000 UNMIK
policemen. These provide convincing evidence of the failure of
KFOR and UNMIK to fùlfil their basic obligations under the
mandate, particularly in terms of guaranteeing full persona1 and
propertysecurityand safetyto al1residentsof Kosovoand Metohija,
Serbs and Montenegrins in particular, the victims of ethnic
cleansing,terror,killingand abduction.
The Governrnentof the FR of Yugoslaviademandsfiom KFORand
UNMIK to fùlfil without delay al1their obligations and to create
conditions for a safe return of al1expelled persons to Kosovo and
Metohija.,9218
Elsewherein that memorandum, theFRY complainsof violationsby the Security
Councilof its
6.27 In the preliminary objections phase, it would not be appropriate for the
United Kingdomto commenton the substanceof these allegations. However, the
fact that the FRY has made them and has done so in the terms quoted above,
demonstratesmore clearlythan anythingthat the legalinterestsandthe questionof
theresponsibilityof the UnitedNations,the SecurityCounciland al1of the KFOR
217 UN DOC.Sl20001428,.10.
*'' Ibidp.6.
219 Ibidp.2.States necessarily formthe essential subject-matter of this part of the FRY'S
claims,which isaccordinglyinadmissibleunderthe MonetaryGoldprinciple.
(4) TheFRYhas notacted ingoodfaith
6.28 It is a well establishedgeneralprincipleof law that Statesmust act in good
faith. The central position of good faith in international law is manifested in
Article 2(2) ofthe Charterof the UnitedNations, whichstatesthat -
"Al1Members, in order to ensure to al1of them the rights and benefits
resulting fiom membership, shall fûlfil in good faith the obligations
assumedby them in accordancewiththe presentCharter."
As the Court stated in the Nuclear Testscases, "one of the basic principles
governing the creation and performance of legal obligations, whatever their
source, is the principle of good faith."220 In the words of one of the leading
internationallaw commentaries, "the significanceof this principle touches every
aspectof internationalla~."~~lIn particular,it has an important bearingupon the
law of treaties, as is made clear by Article 26 of the Viema Convention on the
Law ofTreaties, 1969.
6.29 Respect for the principle of good faith is an essential feature of the
interpretation andapplication of the Statuteand of the Charter of which it forms
part. This isnowhere moreimportantthan in the interpretation and applicationof
Article 36(2) of the Statute. The Courthas repeatedlystated that, in the present
condition of international law, its jurisdiction is dependent upon the consent,
fieely expressed,of the partiesto a case. A Statewhichmakesa declarationunder
Article36(2)is givingthat consent inadvanceof a disputearising,withregardto a
220 Nuclear Tests (Australiav. France), ICJ Reports 1974, p. 268, para. 46. N(Newar Tests
ZeaIandv. France),ICJ Reports 1974,p. 473, para.49. SeealsoBorder andTransborderArmed Actions
(Nicaraguav.Honduras)(JurisdictionandAdmissibility)I,CJ Reports1988,p. 105,para.94.
221 Jennin ndWatts,Oppenheim'sInternationalLaw(9" ed., 1992),vol.1,p. 38.wide range of disputes the content of which it cannot be in a position to foresee
and with respect not only to those States which have already made a similar
cornmitment butalso those which maymakesuch a commitrnentin the future.As
the Courthas recentlyexplainedin the FisheriesJurisdiction case:
"A declaration of acceptance of the compulsoryjurisdiction of the Court,
whether there are specified limits set to that acceptance or not, is a
unilateral act of State sovereignty. At the same time, it establishes a
consensual bond and the potential for a jurisdictionallink with the other
Stateswhichhave madedeclarationspursuantto Article36,paragraph2, of
the Statute and "makes a standing offer to the other States party to the
Statute which have not yet deposited a declarationof acceptance" (Land
and Maritime Boundary between Cameroonand Nigeria (Cameroonv.
Nigeria),PreliminaryObjections,ICJReports,1998,para.25)."222
6.30 A Statewhich makessuch a declarationis entitled, therefore,to expect that
any other State whichpurportsto acceptthat "standingoffer"will act, andwill be
required by the Court to act, in good faith. The Court recognizedthe role which
good faith plays in the Optional Clause system whenit said, in the jurisdiction
phase of theNicaraguacase,that -
"In the establishmentof this network ofengagements,which constitutesthe
Optional-Clause system,the principle of good faith plays an important
r01e."~~~
As Rosennehas said -
"It follows fiom the express wording of Article 36, paragraph 2, of the
Statute that by accepting the compulsoryjurisdiction, a State takes upon
itself an international obligation,and like al1international obligationsits
interpretation and application are governed by the principle of good
faitl~."~~~
222 FisheriesJurisdiction(Spainv. Canada),Judgrnentof 4 December1998,para.46.
223 Military and Paramilitary Activities in and against Nicaragua (Nicaraguav. United States of
America) (JurisdictionandAdmissibiICJyReports 1984,p. 418,para.60.
224 Law and Practice oftheInternationalCourtofJu1920-1996vol.II,pp. 822-823.6.31 In the present case, however, the FRY has not acted in good faith in
depositing what purports to be its declarationunder Article 36(2) of the Statute
and then irnrnediatelyfiling its Application. The FRY declarationwas signed on
25 April 1999 and depositedthe following day. The FRY filed its Application
three days later. The FRY has made no secret of the fact that it purported to
accept the cornpulsory jurisdiction of the Court in order to bring proceedings
against the United Kingdom and the other Respondents regardingthe military
actions conceming ~osovo.~~' Yet the FRY declaration is carefully and
deliberatelyworded so as to excludethe CourtForn any inquiryinto the atrocities
perpetratedby the FRY in Kosovobefore 25 April 1999in violation of numerous
international agreements, rules of customary international law and binding
decisionsof the SecurityCouncil.
6.32 The FRY has sought so to limit its acceptance of the jurisdiction as to
enable it to bring a claim in respect of one aspect of what happenedin Kosovo
while avoiding any judicial inquiryinto its own conduct to which the rnilitary
actionby the United Kingdom and her allieswas a response. For reasons which
have been developed in Part 4 above, the United Kingdom subrnits that, on any
interpretation of the declarationof 25 April 1999,the FRY has failedto establish
thejurisdiction of the Court overthe disputewhich it wishes to make the subject
of these proceedings. Nevertheless,the UnitedKingdornsubrnits thatthe atternpt
is itselfa clearviolationofthe principleof goodfaithand shouldbe condernnedas
such. As Judge Oda recognizedin the ProvisionalMeasuresstage of the present
case,226no State shouldbe permittedto abusethe machinerycontainedin Article
36(2) - and thereby abusethe process oftheCourt - inthisway.
225 See the statementbycounselfor the FRY,M.Corten,CR 99/25,pp. 17to 18.
226 Order of 2 June 1999,SeparateOpinionof JudgeOda,para.9.6.33 Even if, contraryto what is submittedabove,the FRY declarationcan be
regardedas formallyvalid,the UnitedKingdomtherefore submits thatthe breach
of the fundamentalrequirements of good faith renders the attempt to use that
declarationin thepresentcase inadmissible.
6.34 The lack ofgood faithon the part of the FRY, however,goes furtherthan
the attemptto abusethe system createdby Article36(2) of the Statuteofthe Court
andrendersthe entireApplication inadmissible.
6.35 The Applicationin the present case concerns a military operationwhich
was undertakenin direct responseto the situationin Kosovo. Whilethe FRY has
attemptedto invokethe jurisdiction of the principaljudicial organ of the United
Nations in relation to the response, it has flatly refused to comply with its
obligations towardsthe United Nationswith respectto the underlying situationin
Kosovo.
6.36 Concem for that situationled the SecurityCouncil, as longago as March
1998,to urge theProsecutorof the International CriminalTribunal for theFormer
Yugoslavia "to begin gathering information relateto the violencein Kosovothat
may fa11within its jurisdiction"and to note that the FRY authorities "have an
obligation to cooperatewith the ~ribunal."~~'In September 1998 the Security
Council again called upon the authorities in the FRY to cooperate with the
~rosecutor.~~' Thisdecisionwasrepeatedin October1998.~~~
6.37 Notwithstandingthese decisionsof the Council,the FRY refused even to
allow the Prosecutor and herstaff to enter Kosovo. That refusalwas condemned
by the Security Councilin SCR 1207 (1998) in November 1998~~' and in a
'"
SCR1160(1998),para.17(Annex4).
"' SCR1199(1998),para.13(Annex6).
229 SCR1203(1998),para.14(Annex7).
230 Annex8.Presidential Statementissuedon 19January 1999."' Therewas no changein the
attitudeof theFRY.
6.38 On 22 May 1999the Prosecutorof the InternationalCriminalTribunal for
the Former Yugoslavia indictedthe President of the FRY, Slobodan Milosevic,
and a number of other senior FRY officiais for war crimes and crimes against
humanitywhich the indictment accused themof having cornmittedin Kosovo in
the firstpart of 1999.~'~That indictrnent wasconfirmedby ajudge of the Tribunal
on 24 May 1999. To date, the FRY has refused to take any stepsto execute the
ordersfor the arrest of the accusedorto cooperatein anyway withthe Tribunalin
respect of the investigations into war crimes and crimes against hurnanity in
~osovo.~~~
6.39 The FRY cannot be allowed to defi the authority of the United Nations
Security Council and the International Criminal Tribunal established by the
Council with regardto the allegations of serious violations of international law
cornmitted in Kosovo while, at the sarne time, seeking the protection of the
principal judicial organ of the United Nations with regard to the international
responseto those violations. Its attemptto do so manifests a complete absenceof
goodfaith andis a seriousabuseoftheprocessof the Court.
6.40 Consequently,quite apart fiom the othergrounds on whichthejurisdiction
of the Court and the adrnissibilityof the Application are challenged, the United
Kingdorn submits that the Application shouldbe declared inadmissible on the
groundthat the FRYhas acted,andiscontinuingto act, in badfaith.
231 S/PRST/1999/2(Annex9).
232 See para.2.23above.
233 See Statementofthe Prosecutor,SPV.4150,p. 3 (Annex3). CONCLUDINGSUBMISSIONS
Forthe reasons advancedabove,theUnitedKingdomrequeststhe Court to
adjudgeanddeclarethat:
it lacksjurisdictionoverthe claimsbroughtagainstthe UnitedKingdomby
theFederalRepublicofYugoslavia
theclaims brought againstthe UnitedKingdomby the FederalRepublicof
Yugoslaviaare inadmissible.
20June2000 MichaelC Wood
Agent ofthe UnitedKingdom
of GreatBritain
andNorthernIreland LISTOFANNEXES
TheAnnexesto the United Kingdom's Preliminary Objectiosre setoutin a
singlevolume,inthe orderin whichthey firstappearinthe Preliminary
Objections.
Annex TitleandReference
Number
1 ConventiononthePreventionandPunishmentof the Crimeof
Genocide, 9 December1948,78 UnitedNationsTreatySeries277.
2 UNDoc. S/RES/1244(1999):SecurityCouncilresolution1244
(1999).
3 UNDoc. SPV.4 150:ProvisionalVerbatimrecord ofthe 4150~
meetingofthe SecurityCouncil,pp. 1to 6.
4 UNDoc. S/RES/1160(1998):Security Council resolution 160
(1998).
5 UNDoc. S/PRST/1998/25:Statementby the Presidentofthe
SecurityCouncil.
6 UNDoc,.S/RES/1199(1998): Security Council resolution199
(1998).
UNDoc. SRES11203(1998): Security Council resolution 1203
7
(1998).
UNDoc. SRES11207(1998): Security Council resolution1207
8
(1998). Annex TitleandReference
Number
UNDoc. SPRSTl199912:Statementby the Presidentofthe Security
Council.
UNDoc. SlPRSTl199915: StatementbythePresident ofthe Security
Council.
ExecutivesummaryofthereportKosovo/Kosova:AsSeen,As Told,
publishedbythe OSCE,November 1999andavailableat
http:llwww.osce.orglkosovo/reportsIhr/index.htm.
BriefingbyMrs SadakoOgata,UnitedNationsHigh Cornrnissioner
forRefugees,to the SecurityCouncil,5May 1999.
NATO Press Release (1999)040,23 March 1999:Press Statement
by Dr Javierolana,Secretary-GeneralofNATO.
UNDoc. SPV.3988: Provisional Verbatimrecord ofthe 3988~
meetingofthe Security Council.
UNDoc. Sl19991328:draft SecurityCouncilresolution
CO-sponsoredby Belanis,India and theRussianFederation.
UNDoc. SPV.3989: Provisional Verbatimrecord of the 3989~
meetingofthe Security Council.
Press ReleaseGlSW6952 of 9 April 1999:Press Releaseofthe
Secretary-General. TitleandReference
Annex
Number
UNDoc. SIRES11239(1999): SecurityCouncilresolution 1239
(1999).
UNDoc. Sl19991672,12June 1999:reportof the Secretary-General
pursuanttoparagraph 10of SecurityCouncilresolution 1244
(1999).
Unofficial TranscriptoftheNMlKPressBriefing,includingthe
text ofthejoint statementby the SpecialRepresentative ofthe
Secretary-Generalandthe KFORCommander,of 18August 1999,
availableathttp://www.un.org/peace/kosovo/press/br180899.htm.
UNDoc.A/46/915 :Letterdated6May 1992fi-omthe Chargé
d'affairesa.i.ofthe PermanentMissionof Yugoslaviaaddressedto
the Secretary-General.
UNDoc. S/RES/757(1992):SecurityCouncilresolution757
(1992).
UNDoc. S/RES/777(1992): SecurityCouncilresolution777
(1992).
UNDoc.A/RES/47/1 :GeneralAssemblyresolution4711(1992).
UNDoc.M47PV.7: GeneralAssembly,47" Session,Provisional
Verbatirnrecordofthe 7" plenarymeeting,pp. 141to 196.
UNDoc. S/RES/821(1993):SecurityCouncilresolution821
(1993).
UNDoc.A/RES/47/229:General Assemblyresolution471229
(1993). Annex Titleand Reference
Number
28 Communicationfiom the GovernmentsofBosniaandHerzegovina,
the Republic ofCroatia,the Republicof Sloveniathe former
YugoslavRepublicofMacedoniareceivedby the Secretary-General
on28 May 1999,as setout innote 73 onpages 30to 31of
MultilateralTreatiesDepositedwiththeSecretary-General:Status
as at 31December 1999, Volume1.
29 UNDoc.A/47/485:Letterfiomthe UnitedNationsLegal Counsel,
dated29 September1992.
Preliminary Objections of the United Kingdom of Great Britain and Northern Ireland