Culminated

On 29 April 1999, the Federal Republic of Yugoslavia filed in the Registry of the Court Applications instituting proceedings against Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, Spain, United Kingdom and United States of America for alleged violations of their obligation not to use force against another State. In its Applications against Belgium, Canada, Netherlands, Portugal, Spain and United Kingdom, Yugoslavia referred, as a basis for the jurisdiction of the Court, to Article 36, paragraph 2, of the Statute of the Court and to Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations on 9 December 1948. Yugoslavia also relied upon Article IX of that Convention in its Applications against France, Germany, Italy and United States, but also relied on Article 38, paragraph 5, of the Rules of Court.

On 29 April 1999, Yugoslavia also submitted, in each case, an Application for the indication of provisional measures to ensure that the respondent State concerned “cease immediately its acts of use of force and . . . refrain from any act of threat or use of force” against Yugoslavia. After hearings on the provisional measures from 10 to 12 May 1999, the Court delivered its decision in each of the cases on 2 June 1999. In two of them (Yugoslavia v. Spain and Yugoslavia v. United States of America), the Court, rejecting the Request for the indication of provisional measures, concluded that it manifestly lacked jurisdiction and consequently ordered that the cases be removed from the List. In the eight other cases, the Court declared that it lacked prima facie jurisdiction (one of the prerequisites for the indication of provisional measures) and that it therefore could not indicate such measures.

In each of the eight cases which remained on the List, the Respondents filed preliminary objections to jurisdiction and admissibility.

In its Judgments of 15 December 2004, the Court observed that the question whether Serbia and Montenegro was or was not a State party to the Statute of the Court at the time of the institution of the proceedings was fundamental; for if Serbia and Montenegro were not such a party, the Court would not be open to it, unless it met the conditions prescribed in Article 35, paragraph 2, of the Statute.

The Court therefore had to examine whether the Applicant met the conditions for access to it laid down in Articles 34 and 35 of the Statute before examining the issues relating to the conditions laid down in Articles 36 and 37 of the Statute.

The Court pointed out that there was no doubt that Serbia and Montenegro was a State for the purpose of Article 34, paragraph 1, of the Statute. However, the objection had been raised by certain Respondents that, at the time when the Application was filed, Serbia and Montenegro did not meet the conditions set down in Article 35, paragraph 1, of the Statute, because it was not a Member of the United Nations at the relevant time. After recapitulating the sequence of events relating to the legal position of the applicant State vis-à-vis the United Nations, the Court concluded that the legal situation that obtained within the United Nations during the period 1992-2000 concerning the status of the Federal Republic of Yugoslavia, following the break-up of the Socialist Federal Republic of Yugoslavia, had remained ambiguous and open to different assessments. This situation had come to an end with a new development in 2000. On 27 October of that year, the Federal Republic of Yugoslavia requested admission to membership in the United Nations, and on 1 November, by General Assembly resolution 55/12, it was so admitted. The Applicant thus had the status of membership in the Organization as from 1 November 2000. However, its admission to the United Nations did not have, and could not have had, the effect of dating back to the time when the Socialist Federal Republic of Yugoslavia broke up and disappeared. The Court therefore concluded that the Applicant thus was not a Member of the United Nations, and in that capacity a State party to the Statute of the International Court of Justice, at the time of filing its Application to institute the proceedings in each of the cases before the Court on 29 April 1999. As it had not become a party to the Statute on any other basis, the Court was not open to it at that time under Article 35, paragraph 1, of the Statute.

The Court then considered whether it might have been open to the Applicant under paragraph 2 of Article 35. It noted that the words “treaties in force” in that paragraph were to be interpreted as referring to treaties which were in force at the time that the Statute itself came into force, and that consequently, even assuming that the Applicant was a party to the Genocide Convention when instituting proceedings, Article 35, paragraph 2, of the Statute did not provide it with a basis for access to the Court under Article IX of that Convention, since the Convention only entered into force on 12 January 1951, after the entry into force of the Statute.

In the cases against Belgium and the Netherlands, the Court finally examined the question whether Serbia and Montenegro was entitled to invoke the dispute settlement convention it had concluded with each of those States in the early 1930s as a basis of jurisdiction in those cases. The question was whether the conventions dating from the early 1930s, which had been concluded prior to the entry into force of the Statute, might rank as a “treaty in force” for purposes of Article 35, paragraph 2, and hence provide a basis of access. The Court first recalled that Article 35 of the Statute of the Court concerns access to the present Court and not to its predecessor, the Permanent Court of International Justice (PCIJ). It then observed that the conditions for transfer of jurisdiction from the PCIJ to the present Court are governed by Article 37 of the Statute. The Court noted that Article 37 applies only as between parties to the Statute under Article 35, paragraph 1. As it had already found that Serbia and Montenegro was not a party to the Statute when instituting proceedings, the Court accordingly found that Article 37 could not give it access to the Court under Article 35, paragraph 2, on the basis of the Conventions dating from the early 1930s, irrespective of whether or not those instruments were in force on 29 April 1999, the date of the filing of the Application.

On 16 September 2004, Romania filed an Application instituting proceedings against Ukraine in respect of a dispute concerning “the establishment of a single maritime boundary between the two States in the Black Sea, thereby delimiting the continental shelf and the exclusive economic zones appertaining to them”. The Memorial of Romania and the Counter-Memorial of Ukraine were filed within the time-limits fixed by an Order of 19 November 2004. By an Order of 30 June 2006, the Court authorized the filing of a Reply by Romania and a Rejoinder by Ukraine and fixed 22 December 2006 and 15 June 2007 as the respective time-limits for the filing of those pleadings. Romania filed its Reply within the time-limit thus fixed. By an Order of 8 June 2007, the Court extended to 6 July 2007 the time-limit for the filing of the Rejoinder by Ukraine. The Rejoinder was filed within the time-limit thus extended.

Following public hearings held in September 2008, the Court rendered its Judgment in the case on 3 February 2009. On the basis of established State practice and of its own jurisprudence, the Court declared itself bound by the three-step approach laid down by maritime delimitation law, which consisted first of establishing a provisional equidistance line, then of considering factors which might call for an adjustment of that line and adjusting it accordingly and, finally, of confirming that the line thus adjusted would not lead to an inequitable result by comparing the ratio of coastal lengths with the ratio of relevant maritime areas.

In keeping with this approach, the Court first established a provisional equidistance line. In order to do so, it was obliged to determine appropriate base points. After examining at length the characteristics of each base point chosen by the Parties for the establishment of the provisional equidistance line, the Court decided to use the Sacalin Peninsula and the landward end of the Sulina dyke on the Romanian coast, and Tsyganka Island, Cape Tarkhankut and Cape Khersones on the Ukrainian coast. It considered it inappropriate to select any base points on Serpents’ Island (belonging to Ukraine). The Court then proceeded to establish the provisional equidistance line as follows :

“In its initial segment the provisional equidistance line between the Romanian and Ukrainian adjacent coasts is controlled by base points located on the landward end of the Sulina dyke on the Romanian coast and south-eastern tip of Tsyganka Island on the Ukrainian coast. It runs in a south-easterly direction, from a point lying midway between these two base points, until Point A (with co-ordinates 44° 46′ 38.7ʺ N and 30°58′ 37.3ʺ E) where it becomes affected by a base point located on the Sacalin Peninsula on the Romanian coast. At Point A the equidistance line slightly changes direction and continues to Point B (with co-ordinates 44°44′ 13.4ʺ N and 31°10′ 27.7ʺ E) where it becomes affected by the base point located on Cape Tarkhankut on Ukraine’s opposite coasts. At Point B the equidistance line turns south-south-east and continues to Point C (with co-ordinates 44°02′ 53.0ʺ N and 31°24′ 35.0ʺ E), calculated with reference to base points on the Sacalin Peninsula on the Romanian coast and Capes Tarkhankut and Khersones on the Ukrainian coast. From Point C the equidistance line, starting at an azimuth of 185°23′ 54.5ʺ, runs in a southerly direction. This line remains governed by the base points on the Sacalin Peninsula on the Romanian coast and Cape Khersones on the Ukrainian coast.”

The Court then turned to the examination of relevant circumstances which might call for an adjustment of the provisional equidistance line, considering six potential factors : (1) the possible disproportion between coastal lengths ; (2) the enclosed nature of the Black Sea and the delimitations already effected in the region ; (3) the presence of Serpents’ Island in the area of delimitation ; (4) the conduct of the Parties (oil and gas concessions, fishing activities and naval patrols) ; (5) any potential curtailment of the continental shelf or exclusive economic zone entitlement of one of the Parties ; and (6) certain security considerations of the Parties. The Court did not see in these various factors any reason that would justify the adjustment of the provisional equidistance line. In particular with respect to Serpents’ Island, it considered that it should have no effect on the delimitation other than that stemming from the role of the 12-nautical-mile arc of its territorial sea.

Finally, the Court confirmed that the line would not lead to an inequitable result by comparing the ratio of coastal lengths with the ratio of relevant maritime areas. The Court noted that the ratio of the respective coastal lengths for Romania and Ukraine was approximately 1:2.8 and the ratio of the relevant maritime areas was approximately 1:2.1.

In the operative clause of its Judgment, the Court found unanimously that :

“starting from Point 1, as agreed by the Parties in Article 1 of the 2003 State Border Régime Treaty, the line of the single maritime boundary delimiting the continental shelf and the exclusive economic zones of Romania and Ukraine in the Black Sea shall follow the 12-nautical-mile arc of the territorial sea of Ukraine around Serpents’ Island until Point 2 (with co-ordinates 45°03′ 18.5ʺ N and 30°09′ 24.6ʺ E) where the arc intersects with the line equidistant from Romania’s and Ukraine’s adjacent coasts. From Point 2 the boundary line shall follow the equidistance line through Points 3 (with co-ordinates 44°46′ 38.7ʺ N and 30°58′ 37.3ʺ E) and 4 (with co-ordinates 44° 44′ 13.4ʺ N and 31° 10′ 27.7ʺ E) until it reaches Point 5 (with co-ordinates 44° 02′ 53.0ʺ N and 31° 24′ 35.0ʺ E). From Point 5 the maritime boundary line shall continue along the line equidistant from the opposite coasts of Romania and Ukraine in a southerly direction starting at a geodetic azimuth of 185°23′ 54.5ʺ until it reaches the area where the rights of third States may be affected.”

By resolution ES-10/14, adopted on 8 December 2003 at its Tenth Emergency Special Session, the General Assembly decided to request the Court for an advisory opinion on the following question :

“What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the Report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions ?”

The resolution requested the Court to render its opinion “urgently”. The Court decided that all States entitled to appear before it, as well as Palestine, the United Nations and subsequently, at their request, the League of Arab States and the Organization of the Islamic Conference, were likely to be able to furnish information on the question in accordance with Article 66, paragraphs 2 and 3, of the Statute. Written statements were submitted by 45 States and four international organizations, including the European Union. At the oral proceedings, which were held from 23 to 25 February 2004, 12 States, Palestine and two international organizations made oral submissions. The Court rendered its Advisory Opinion on 9 July 2004.

The Court began by finding that the General Assembly, which had requested the advisory opinion, was authorized to do so under Article 96, paragraph 1, of the Charter. It further found that the question asked of it fell within the competence of the General Assembly pursuant to Articles 10, paragraph 2, and 11 of the Charter. Moreover, in requesting an opinion of the Court, the General Assembly had not exceeded its competence, as qualified by Article 12, paragraph 1, of the Charter, which provides that while the Security Council is exercising its functions in respect of any dispute or situation the Assembly must not make any recommendation with regard thereto unless the Security Council so requests. The Court further observed that the General Assembly had adopted resolution ES-10/14 during its Tenth Emergency Special Session, convened pursuant to resolution 377 A (V), whereby, in the event that the Security Council has failed to exercise its primary responsibility for the maintenance of international peace and security, the General Assembly may consider the matter immediately with a view to making recommendations to Member States. Rejecting a number of procedural objections, the Court found that the conditions laid down by that resolution had been met when the Tenth Emergency Special Session was convened, and in particular when the General Assembly decided to request the opinion, as the Security Council had at that time been unable to adopt a resolution concerning the construction of the wall as a result of the negative vote of a permanent member. Lastly, the Court rejected the argument that an opinion could not be given in the present case on the ground that the question posed was not a legal one, or that it was of an abstract or political nature.

Having established its jurisdiction, the Court then considered the propriety of giving the requested opinion. It recalled that lack of consent by a State to its contentious jurisdiction had no bearing on its advisory jurisdiction, and that the giving of an opinion in the present case would not have the effect of circumventing the principle of consent to judicial settlement, since the subject-matter of the request was located in a much broader frame of reference than that of the bilateral dispute between Israel and Palestine, and was of direct concern to the United Nations. Nor did the Court accept the contention that it should decline to give the advisory opinion requested because its opinion could impede a political, negotiated settlement to the Israeli-Palestinian conflict. It further found that it had before it sufficient information and evidence to enable it to give its opinion, and empha- sized that it was for the General Assembly to assess the opinion’s usefulness. The Court accordingly concluded that there was no compelling reason precluding it from giving the requested opinion.

Turning to the question of the legality under international law of the construction of the wall by Israel in the Occupied Palestinian Territory, the Court first determined the rules and principles of international law relevant to the question posed by the General Assembly. After recalling the customary principles laid down in Article 2, paragraph 4, of the United Nations Charter and in General Assembly resolution 2625 (XXV), which prohibit the threat or use of force and emphasize the illegality of any territorial acquisition by such means, the Court further cited the principle of self-determination of peoples, as enshrined in the Charter and reaffirmed by resolution 2625 (XXV). In relation to international humanitarian law, the Court then referred to the provisions of the Hague Regulations of 1907, which it found to have become part of customary law, as well as to the Fourth Geneva Convention of 1949, holding that these were applicable in those Palestinian territories which, before the armed conflict of 1967, lay to the east of the 1949 Armistice demarcation line (or “Green Line”) and were occupied by Israel during that conflict. The Court further established that certain human rights instruments (International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, United Nations Convention on the Rights of the Child) were applicable in the Occupied Palestinian Territory.

The Court then sought to ascertain whether the construction of the wall had violated the above-mentioned rules and principles. Noting that the route of the wall encompassed some 80 per cent of the settlers living in the Occupied Palestinian Territory, the Court, citing statements by the Security Council in that regard in relation to the Fourth Geneva Convention, recalled that those settlements had been established in breach of international law. After considering certain fears expressed to it that the route of the wall would prejudge the future frontier between Israel and Palestine, the Court observed that the construction of the wall and its associated régime created a “fait accompli” on the ground that could well become permanent, and hence tantamount to a de facto annexation. Noting further that the route chosen for the wall gave expression in loco to the illegal measures taken by Israel with regard to Jerusalem and the settlements and entailed further alterations to the demographic composition of the Occupied Palestinian Territory, the Court concluded that the construction of the wall, along with measures taken previously, severely impeded the exercise by the Palestinian people of its right to self-determination and was thus a breach of Israel’s obligation to respect that right.

The Court then went on to consider the impact of the construction of the wall on the daily life of the inhabitants of the Occupied Palestinian Territory, finding that the construction of the wall and its associated régime were contrary to the relevant provisions of the Hague Regulations of 1907 and of the Fourth Geneva Convention and that they impeded the liberty of movement of the inhabitants of the territory as guaranteed by the International Covenant on Civil and Political Rights, as well as their exercise of the right to work, to health, to education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights and in the Convention on the Rights of the Child. The Court further found that, coupled with the establishment of settlements, the construction of the wall and its associated régime were tending to alter the demographic composition of the Occupied Palestinian Territory, thereby contravening the Fourth Geneva Convention and the relevant Security Council resolutions. The Court then considered the qualifying clauses or provisions for derogation contained in certain humanitarian law and human rights instruments, which might be invoked inter alia where military exigencies or the needs of national security or public order so required. The Court found that such clauses were not applicable in the present case, stating that it was not convinced that the specific course Israel had chosen for the wall was necessary to attain its security objectives, and that accordingly the construction of the wall constituted a breach by Israel of certain of its obligations under humanitarian and human rights law. Lastly, the Court concluded that Israel could not rely on a right of self-defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall, and that such construction and its associated régime were accordingly contrary to international law.

The Court went on to consider the consequences of these violations, recalling Israel’s obligation to respect the right of the Palestinian people to self-determination and its obligations under humanitarian and human rights law. The Court stated that Israel must put an immediate end to the violation of its international obligations by ceasing the works of construction of the wall and dismantling those parts of that structure situated within Occupied Palestinian Territory and repealing or rendering ineffective all legislative and regulatory acts adopted with a view to construction of the wall and establishment of its associated régime. The Court further made it clear that Israel must make reparation for all damage suffered by all natural or legal persons affected by the wall’s construction. As regards the legal consequences for other States, the Court held that all States were under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction. It further stated that it was for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination be brought to an end. In addition, the Court pointed out that all States parties to the Fourth Geneva Convention were under an obligation, while respecting the Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention. Finally, in regard to the United Nations, and especially the General Assembly and the Security Council, the Court indicated that they should consider what further action was required to bring to an end the illegal situation in question, taking due account of the present Advisory Opinion.

The Court concluded by observing that the construction of the wall must be placed in a more general context, noting the obligation on Israel and Palestine to comply with international humanitarian law, as well as the need for implementation in good faith of all relevant Security Council resolutions, and drawing the attention of the General Assembly to the need for efforts to be encouraged with a view to achieving a negotiated solution to the outstanding problems on the basis of international law and the establishment of a Palestinian State.

On 9 December 2002, the Republic of the Congo filed an Application instituting proceedings against France, seeking the annulment of the investigation and prosecution measures taken by the French judicial authorities further to a complaint concerning crimes against humanity and torture allegedly committed in the Congo against individuals of Congolese nationality filed by various human rights associations against the President of the Republic of the Congo, Mr. Denis Sassou Nguesso, the Congolese Minister of the Interior, General Pierre Oba, and other individuals including General Norbert Dabira, Inspector-General of the Congolese armed forces, and General Blaise Adoua, Commander of the Presidential Guard.

In its Application, the Congo indicated that it sought to found the jurisdiction of the Court, pursuant to Article 38, paragraph 5, of the Rules of Court, “on the consent of the French Republic, which [would] certainly be given”. In accordance with that provision, the Congo’s Application was transmitted to the French Government and no action was taken in the proceedings. By a letter dated 8 April 2003, France indicated that it “consent[ed] to the jurisdiction of the Court to entertain the Application pursuant to Article 38, paragraph 5”, and the case was thus entered in the Court’s List. It was the first time, since the adoption of Article 38, paragraph 5, of the Rules of Court in 1978, that a State thus accepted the invitation of another State to recognize the jurisdiction of the Court to entertain a case against it.

The Application of the Congo was accompanied by a request for the indication of a provisional measure seeking “an order for the immediate suspension of the proceedings being conducted by the investigating judge of the Meaux Tribunal de grande instance”, and hearings on that request were held on 28 and 29 April 2003. In its Order of 17 June 2003, the Court concluded that no evidence had been placed before it of any irreparable prejudice to the rights in dispute and that, consequently, circumstances were not such as to require the exercise of its power to indicate provisional measures.

Hearings were scheduled to open in the case on 6 December 2010, when, by a letter dated 5 November 2010, the Agent of the Congo, referring to Article 89 of the Rules of Court, informed the Court that his Government was “withdraw[ing] its Application instituting proceedings” and requested the Court “to make an Order officially recording the discontinuance of the proceedings and directing the removal of the case from the List”. A copy of that letter was immediately communicated to the French Government, which responded in a letter dated 8 November 2010 that it had no objection to the discontinuance of the proceedings by the Congo. Accordingly, by an Order of 16 November 2010, the Court placed on record the discontinuance of the proceedings by the Congo and ordered that the case be removed from the List.

On 3 May 2002, Benin and Niger, by joint notification of a Special Agreement signed on 15 June 2001 at Cotonou and which entered into force on 11 April 2002, seised the Court of a dispute concerning “the definitive delimitation of the whole boundary between them”. Under the terms of Article 1 of that Special Agreement, the Parties agreed to submit their frontier dispute to a Chamber of the Court, formed pursuant to Article 26, paragraph 2, of the Statute, and each to choose a judge ad hoc. By an Order of 27 November 2002, the Court unanimously decided to accede to the request of the two Parties for a special Chamber of five judges to be formed to deal with the case.

Following public hearings held in March 2005, the Chamber delivered its Judgment on 12 July 2005. After briefly recalling the geographical and historical context of the dispute between these two former colonies, which had been part of French West Africa (FWA) until their accession to independence in August 1960, the Chamber considered the question of the law applicable to the dispute. It stated that this included the principle of the intangibility of the boundaries inherited from colonization, or the principle of uti possidetis juris, whose “primary aim is . . . securing respect for the territorial boundaries at the moment when independence is achieved”. The Chamber found that, on the basis of this principle, it had to determine in the case the boundary that had been inherited from the French administration. It noted that “the Parties agreed that the dates to be taken into account for this purpose were those of their respective independence, namely 1 and 3 August 1960”.

The Chamber then considered the course of the boundary in the River Niger sector. It first examined the various regulative or administrative acts invoked by the Parties in support of their respective claims and concluded that “neither of the Parties has succeeded in providing evidence of title on the basis of [those] acts during the colonial period”. In accordance with the principle that, where no legal title exists, the effectivités “must invariably be taken into consideration”, the Chamber then proceeded to examine the evidence presented by the Parties regarding the effective exercise of authority on the ground during the colonial period, in order to determine the course of the boundary in the River Niger sector and to indicate to which of the two States each of the islands in the river belonged, in particular the island of Lété.

At the end of that examination, the Chamber concluded that the boundary between Benin and Niger in that sector follows the main navigable channel of the River Niger as it existed at the dates of independence, it being understood that, in the vicinity of the three islands opposite Gaya, the boundary passed to the left of those islands. Consequently, Benin had title to the islands situated between the boundary thus defined and the right bank of the river and Niger had title to the islands between that boundary and the left bank of the river.

In order to determine the precise location of the boundary line in the main navigable channel, namely the line of deepest soundings, as it existed at the dates of independence, the Chamber relied on a report prepared in 1970, at the request of the Governments of Dahomey (the former name of Benin), Mali, Niger and Nigeria, by the firm Netherlands Engineering Consultants (NEDECO). In its Judgment, the Chamber specified the co-ordinates of 154 points through which the boundary between Benin and Niger passes in that sector. It stated, inter alia, that Lété Goungou belongs to Niger. Finally, the Chamber concluded that the Special Agreement also conferred jurisdiction upon it to determine the boundary line on the bridges between Gaya and Malanville. It found that the boundary on those structures follows the course of the boundary in the River Niger.

In the second part of its Judgment, dealing with the western section of the boundary between Benin and Niger, in the sector of the River Mekrou, the Chamber proceeded to examine the various documents invoked by the Parties in support of their respective arguments. It concluded that, notwithstanding the existence of a legal title of 1907 relied on by Niger in support of its claimed boundary, it was clear that,

“at least from 1927 onwards, the competent administrative authorities regarded the course of the Mekrou as the intercolonial boundary separating Dahomey from Niger, that those authorities reflected that boundary in the successive instruments promulgated by them after 1927, some of which expressly indicated that boundary, whilst others necessarily implied it, and that this was the state of the law at the dates of independence in August 1960”.

The Chamber concluded that, in the River Mekrou sector, the boundary between Benin and Niger was constituted by the median line of that river.

On 29 April 1999, the Federal Republic of Yugoslavia filed in the Registry of the Court Applications instituting proceedings against Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, Spain, United Kingdom and United States of America for alleged violations of their obligation not to use force against another State. In its Applications against Belgium, Canada, Netherlands, Portugal, Spain and United Kingdom, Yugoslavia referred, as a basis for the jurisdiction of the Court, to Article 36, paragraph 2, of the Statute of the Court and to Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations on 9 December 1948. Yugoslavia also relied upon Article IX of that Convention in its Applications against France, Germany, Italy and United States, but also relied on Article 38, paragraph 5, of the Rules of Court.

On 29 April 1999, Yugoslavia also submitted, in each case, an Application for the indication of provisional measures to ensure that the respondent State concerned “cease immediately its acts of use of force and . . . refrain from any act of threat or use of force” against Yugoslavia. After hearings on the provisional measures from 10 to 12 May 1999, the Court delivered its decision in each of the cases on 2 June 1999. In two of them (Yugoslavia v. Spain and Yugoslavia v. United States of America), the Court, rejecting the Request for the indication of provisional measures, concluded that it manifestly lacked jurisdiction and consequently ordered that the cases be removed from the List. In the eight other cases, the Court declared that it lacked prima facie jurisdiction (one of the prerequisites for the indication of provisional measures) and that it therefore could not indicate such measures.

In each of the eight cases which remained on the List, the Respondents filed preliminary objections to jurisdiction and admissibility.

In its Judgments of 15 December 2004, the Court observed that the question whether Serbia and Montenegro was or was not a State party to the Statute of the Court at the time of the institution of the proceedings was fundamental; for if Serbia and Montenegro were not such a party, the Court would not be open to it, unless it met the conditions prescribed in Article 35, paragraph 2, of the Statute.

The Court therefore had to examine whether the Applicant met the conditions for access to it laid down in Articles 34 and 35 of the Statute before examining the issues relating to the conditions laid down in Articles 36 and 37 of the Statute.

The Court pointed out that there was no doubt that Serbia and Montenegro was a State for the purpose of Article 34, paragraph 1, of the Statute. However, the objection had been raised by certain Respondents that, at the time when the Application was filed, Serbia and Montenegro did not meet the conditions set down in Article 35, paragraph 1, of the Statute, because it was not a Member of the United Nations at the relevant time. After recapitulating the sequence of events relating to the legal position of the applicant State vis-à-vis the United Nations, the Court concluded that the legal situation that obtained within the United Nations during the period 1992-2000 concerning the status of the Federal Republic of Yugoslavia, following the break-up of the Socialist Federal Republic of Yugoslavia, had remained ambiguous and open to different assessments. This situation had come to an end with a new development in 2000. On 27 October of that year, the Federal Republic of Yugoslavia requested admission to membership in the United Nations, and on 1 November, by General Assembly resolution 55/12, it was so admitted. The Applicant thus had the status of membership in the Organization as from 1 November 2000. However, its admission to the United Nations did not have, and could not have had, the effect of dating back to the time when the Socialist Federal Republic of Yugoslavia broke up and disappeared. The Court therefore concluded that the Applicant thus was not a Member of the United Nations, and in that capacity a State party to the Statute of the International Court of Justice, at the time of filing its Application to institute the proceedings in each of the cases before the Court on 29 April 1999. As it had not become a party to the Statute on any other basis, the Court was not open to it at that time under Article 35, paragraph 1, of the Statute.

The Court then considered whether it might have been open to the Applicant under paragraph 2 of Article 35. It noted that the words “treaties in force” in that paragraph were to be interpreted as referring to treaties which were in force at the time that the Statute itself came into force, and that consequently, even assuming that the Applicant was a party to the Genocide Convention when instituting proceedings, Article 35, paragraph 2, of the Statute did not provide it with a basis for access to the Court under Article IX of that Convention, since the Convention only entered into force on 12 January 1951, after the entry into force of the Statute.

In the cases against Belgium and the Netherlands, the Court finally examined the question whether Serbia and Montenegro was entitled to invoke the dispute settlement convention it had concluded with each of those States in the early 1930s as a basis of jurisdiction in those cases. The question was whether the conventions dating from the early 1930s, which had been concluded prior to the entry into force of the Statute, might rank as a “treaty in force” for purposes of Article 35, paragraph 2, and hence provide a basis of access. The Court first recalled that Article 35 of the Statute of the Court concerns access to the present Court and not to its predecessor, the Permanent Court of International Justice (PCIJ). It then observed that the conditions for transfer of jurisdiction from the PCIJ to the present Court are governed by Article 37 of the Statute. The Court noted that Article 37 applies only as between parties to the Statute under Article 35, paragraph 1. As it had already found that Serbia and Montenegro was not a party to the Statute when instituting proceedings, the Court accordingly found that Article 37 could not give it access to the Court under Article 35, paragraph 2, on the basis of the Conventions dating from the early 1930s, irrespective of whether or not those instruments were in force on 29 April 1999, the date of the filing of the Application.

On 24 April 2001, Yugoslavia filed an Application for a revision of the Judgment delivered by the Court on 11 July 1996 on the preliminary objections raised in the case instituted against it by Bosnia and Herzegovina. By that Judgment of 11 July 1996, the Court had declared that it had jurisdiction on the basis of Article IX of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, and had dismissed the additional bases of jurisdiction relied on by Bosnia and Herzegovina, finding that the Application filed by the latter was admissible. Yugoslavia contended that a revision of the Judgment was necessary, since it had now become clear that, before 1 November 2000 (the date on which it was admitted as a new Member of the United Nations), it did not continue the international legal and political personality of the Socialist Federal Republic of Yugoslavia, was not a Member of the United Nations, was not a State party to the Statute of the Court and was not a State party to the Genocide Convention. Yugoslavia therefore requested the Court to adjudge and declare that there was a new fact of such a character as to call for revision of the 1996 Judgment under Article 61 of the Statute.

After the filing, by Bosnia and Herzegovina, of its written observations on the admissibility of the Application, public hearings were held from 4 to 7 November 2002. In its Judgment on the admissibility of the Application, delivered on 3 February 2003, the Court noted in particular that, under Article 61 of the Statute, an application for revision of a judgment may be made only when it is “based upon the discovery” of a “new” fact which, “when the judgment was given”, was unknown. Such a fact must have been in existence prior to the judgment and have been discovered subsequently. On the other hand, the Court continued, a fact which occurred several years after a judgment had been given was not a “new” fact within the meaning of Article 61, irrespective of the legal consequences that such a fact might have.

Hence, the Court considered that the admission of Yugoslavia to the United Nations on 1 November 2000, well after the 1996 Judgment, could not be regarded as a new fact capable of founding a request for revision of that Judgment.

In the final version of its argument, Yugoslavia claimed that its admission to the United Nations and a letter of 8 December 2000 from the Organization’s Legal Counsel simply “revealed” two facts which had existed in 1996 but had been unknown at the time, namely, that it was not then a party to the Statute of the Court and that it was not bound by the Genocide Convention. On that point, the Court considered that, in so arguing, Yugoslavia was not relying on facts that existed in 1996 but “in reality, base[d] its Application for revision on the legal consequences which it [sought] to draw from facts subsequent to the Judgment which it [was] asking to have revised”. Those consequences, even supposing them to be established, could not be regarded as facts within the meaning of Article 61 and the Court therefore rejected that argument of Yugoslavia.

The Court indicated that at the time when the Judgment of 1996 was given, the situation obtaining was that created by General Assembly resolution 47/1. That resolution, adopted on 22 September 1992, stated inter alia :

“The General Assembly . . . considers that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations ; and therefore decides that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly.”

In its Judgment of 2003, the Court observed that

“the difficulties which arose regarding the FRY’s status between the adoption of that resolution and its admission to the United Nations on 1 November 2000 resulted from the fact that, although the FRY’s claim to continue the international legal personality of the former Yugoslavia was not ‘generally accepted’ . . . , the precise consequences of this situation were determined on a case-by-case basis (for example, non-participation in the work of the General Assembly and ECOSOC and in the meetings of States parties to the International Covenant on Civil and Political Rights, etc.)”.

The Court specified that resolution 47/1 did not affect Yugoslavia’s right to appear before the Court or to be a party to a dispute before the Court under the conditions laid down by the Statute, nor did it affect the position of Yugoslavia in relation to the Genocide Convention. The Court further stated that resolution 55/12 of 1 November 2000 (by which the General Assembly decided to admit Yugoslavia to membership of the United Nations) could not have changed retroactively the sui generis position which that State found itself in vis-à-vis the United Nations over the period 1992 to 2000, or its position in relation to the Statute of the Court and the Genocide Convention. From the foregoing, the Court concluded that it had not been established that Yugoslavia’s Application was based upon the discovery of “some fact” which was “when the judgment was given, unknown to the Court and also to the party claiming revision” and accordingly found that one of the conditions for the admissibility of an application for revision laid down by Article 61, paragraph 1, of the Statute had not been satisfied.

On 14 April and 5 June 1972, respectively, the United Kingdom and the Federal Republic of Germany instituted proceedings against Iceland concerning a dispute over the proposed extension by Iceland, as from 1 September 1972, of the limits of its exclusive fisheries jurisdiction from a distance of 12 to a distance of 50 nautical miles. Iceland declared that the Court lacked jurisdiction, and declined to be represented in the proceedings or file pleadings. At the request of the United Kingdom and the Federal Republic, the Court in 1972 indicated, and in 1973 confirmed, provisional measures to the effect that Iceland should refrain from implementing, with respect to their vessels, the new regulations regarding the extension of the zone of its exclusive fishing rights, and that the annual catch of those vessels in the disputed area should be limited to certain maxima. In Judgments delivered on 2 February 1973, the Court found that it possessed jurisdiction ; and in Judgments on the merits of 25 July 1974, it found that the Icelandic regulations constituting a unilateral extension of exclusive fishing rights to a limit of 50 nautical miles were not opposable to either the United Kingdom or the Federal Republic, that Iceland was not entitled unilaterally to exclude their fishing vessels from the disputed area, and that the Parties were under mutual obligations to undertake negotiations in good faith for the equitable solution of their differences.

On 29 April 1999, the Federal Republic of Yugoslavia filed in the Registry of the Court Applications instituting proceedings against Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, Spain, United Kingdom and United States of America for alleged violations of their obligation not to use force against another State. In its Applications against Belgium, Canada, Netherlands, Portugal, Spain and United Kingdom, Yugoslavia referred, as a basis for the jurisdiction of the Court, to Article 36, paragraph 2, of the Statute of the Court and to Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations on 9 December 1948. Yugoslavia also relied upon Article IX of that Convention in its Applications against France, Germany, Italy and United States, but also relied on Article 38, paragraph 5, of the Rules of Court.

On 29 April 1999, Yugoslavia also submitted, in each case, an Application for the indication of provisional measures to ensure that the respondent State concerned “cease immediately its acts of use of force and . . . refrain from any act of threat or use of force” against Yugoslavia. After hearings on the provisional measures from 10 to 12 May 1999, the Court delivered its decision in each of the cases on 2 June 1999. In two of them (Yugoslavia v. Spain and Yugoslavia v. United States of America), the Court, rejecting the Request for the indication of provisional measures, concluded that it manifestly lacked jurisdiction and consequently ordered that the cases be removed from the List. In the eight other cases, the Court declared that it lacked prima facie jurisdiction (one of the prerequisites for the indication of provisional measures) and that it therefore could not indicate such measures.

In each of the eight cases which remained on the List, the Respondents filed preliminary objections to jurisdiction and admissibility.

In its Judgments of 15 December 2004, the Court observed that the question whether Serbia and Montenegro was or was not a State party to the Statute of the Court at the time of the institution of the proceedings was fundamental; for if Serbia and Montenegro were not such a party, the Court would not be open to it, unless it met the conditions prescribed in Article 35, paragraph 2, of the Statute.

The Court therefore had to examine whether the Applicant met the conditions for access to it laid down in Articles 34 and 35 of the Statute before examining the issues relating to the conditions laid down in Articles 36 and 37 of the Statute.

The Court pointed out that there was no doubt that Serbia and Montenegro was a State for the purpose of Article 34, paragraph 1, of the Statute. However, the objection had been raised by certain Respondents that, at the time when the Application was filed, Serbia and Montenegro did not meet the conditions set down in Article 35, paragraph 1, of the Statute, because it was not a Member of the United Nations at the relevant time. After recapitulating the sequence of events relating to the legal position of the applicant State vis-à-vis the United Nations, the Court concluded that the legal situation that obtained within the United Nations during the period 1992-2000 concerning the status of the Federal Republic of Yugoslavia, following the break-up of the Socialist Federal Republic of Yugoslavia, had remained ambiguous and open to different assessments. This situation had come to an end with a new development in 2000. On 27 October of that year, the Federal Republic of Yugoslavia requested admission to membership in the United Nations, and on 1 November, by General Assembly resolution 55/12, it was so admitted. The Applicant thus had the status of membership in the Organization as from 1 November 2000. However, its admission to the United Nations did not have, and could not have had, the effect of dating back to the time when the Socialist Federal Republic of Yugoslavia broke up and disappeared. The Court therefore concluded that the Applicant thus was not a Member of the United Nations, and in that capacity a State party to the Statute of the International Court of Justice, at the time of filing its Application to institute the proceedings in each of the cases before the Court on 29 April 1999. As it had not become a party to the Statute on any other basis, the Court was not open to it at that time under Article 35, paragraph 1, of the Statute.

The Court then considered whether it might have been open to the Applicant under paragraph 2 of Article 35. It noted that the words “treaties in force” in that paragraph were to be interpreted as referring to treaties which were in force at the time that the Statute itself came into force, and that consequently, even assuming that the Applicant was a party to the Genocide Convention when instituting proceedings, Article 35, paragraph 2, of the Statute did not provide it with a basis for access to the Court under Article IX of that Convention, since the Convention only entered into force on 12 January 1951, after the entry into force of the Statute.

In the cases against Belgium and the Netherlands, the Court finally examined the question whether Serbia and Montenegro was entitled to invoke the dispute settlement convention it had concluded with each of those States in the early 1930s as a basis of jurisdiction in those cases. The question was whether the conventions dating from the early 1930s, which had been concluded prior to the entry into force of the Statute, might rank as a “treaty in force” for purposes of Article 35, paragraph 2, and hence provide a basis of access. The Court first recalled that Article 35 of the Statute of the Court concerns access to the present Court and not to its predecessor, the Permanent Court of International Justice (PCIJ). It then observed that the conditions for transfer of jurisdiction from the PCIJ to the present Court are governed by Article 37 of the Statute. The Court noted that Article 37 applies only as between parties to the Statute under Article 35, paragraph 1. As it had already found that Serbia and Montenegro was not a party to the Statute when instituting proceedings, the Court accordingly found that Article 37 could not give it access to the Court under Article 35, paragraph 2, on the basis of the Conventions dating from the early 1930s, irrespective of whether or not those instruments were in force on 29 April 1999, the date of the filing of the Application.

On 21 September 1999, the Islamic Republic of Pakistan filed an Application instituting proceedings against the Republic of India in respect of a dispute concerning the destruction, on 10 August 1999, of a Pakistani aircraft. By letter of 2 November 1999, the Agent of India notified the Court that his Government wished to submit preliminary objections to the jurisdiction of the Court, which were set out in an appended note. On 19 November 1999, the Court decided that the written pleadings would first address the question of the jurisdiction of the Court and fixed time-limits for the filing of the Memorial of Pakistan and the Counter-Memorial of India, which were duly filed within the time-limits so prescribed. Public hearings on the question of the jurisdiction of the Court were held from 3 to 6 April 2000.

In its Judgment of 21 June 2000, the Court noted that, to establish the jurisdiction of the Court, Pakistan had relied on Article 17 of the General Act for Pacific Settlement of International Disputes, signed at Geneva on 26 September 1928, on the declarations of acceptance of the compulsory jurisdiction of the Court made by the Parties and on Article 36, paragraph 1, of the Statute. It considered those bases of jurisdiction in turn.

The Court pointed out first that, on 21 May 1931, British India had acceded to the General Act of 1928. It observed that India and Pakistan had held lengthy discussions on the question whether the General Act had survived the dissolution of the League of Nations and whether, if so, the two States had become parties to that Act on their accession to independence. Referring to a communication addressed to the United Nations Secretary-General of 18 September 1974, in which the Indian Government indicated that, since India’s accession to independence in 1947, they had “never regarded themselves as bound by the General Act of 1928 . . . whether by succession or otherwise”, the Court concluded that India could not be regarded as party to the said Act on the date the Application had been filed by Pakistan and that the Convention did not constitute a basis of jurisdiction. The Court then considered the declaration of acceptance of the compulsory jurisdiction of the Court made by the two States. It noted that India’s declaration contained a reservation under which “disputes with the government of any State which is or has been a member of the Commonwealth of Nations” was barred from its jurisdiction. The Court recalled that its jurisdiction only existed within the limits within which it had been accepted and that the right of States to attach reservations to their declarations was a recognized practice. Consequently, Pakistan’s arguments to the effect that India’s reservation was “extra-statutory” or was obsolete could not be upheld. Pakistan being a member of the Commonwealth, the Court concluded that it did not have jurisdiction to deal with the Application on the basis of the declarations made by the two States.

Considering, thirdly, the final basis of jurisdiction relied on by Pakistan, namely Article 36, paragraph 1, of the Statute, according to which “the jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations”, the Court indicated that neither the United Nations Charter nor Article 1 of the Simla Accord of 2 July 1972 between the Parties conferred jurisdiction upon it to deal with the dispute between them.

Lastly, the Court explained that there was “a fundamental distinction between the acceptance by a State of the Court’s jurisdiction and the compatibility of particular acts with international law” and that “the Court’s lack of jurisdiction [did] not relieve States of their obligation to settle their disputes by peaceful means”.