          DISSENTING OPINION OF JUDGE SKOTNIKOV

   1. The Court, in my view, should have used its discretion to refrain
 rom exercising its advisory jurisdiction in the rather peculiar circum-
stances of the present case. Never before has the Court been confronted
with a question posed by one organ of the United Nations, to which an
answer is entirely dependent on the interpretation of a decision taken by
another United Nations organ. What makes this case even more anoma-
 ous is the fact that the latter is the Security Council, acting under Chap-
 er VII of the United Nations Charter. Indeed, in order to give an answer
 o the General Assembly, the Court has to make a determination as to
whether or not the Unilateral Declaration of Independence (UDI) is in
breach of the régime established for Kosovo by the Security Council in
 ts resolution 1244 (1999).

  2. In the past, the Court has deemed it important to emphasize that it
was giving its legal advice in respect of decisions adopted by the request-
ng organ, in order that the latter could benefit from this advice. In the
Namibia Advisory Opinion the Court pointed out that :
         “The request is put forward by a United Nations organ [the Secu-
      rity Council] with reference to its own decisions and it seeks legal
      advice from the Court on the consequences and implications of these
      decisions. This objective is stressed by the preamble to the resolution
      requesting the opinion, in which the Security Council has stated
      ‘that an advisory opinion from the International Court of Justice
      would be useful for the Security Council in its further consideration
      of the question of Namibia and in furtherance of the objectives the
      Council is seeking’.” (Legal Consequences for States of the Con-
      tinued Presence of South Africa in Namibia (South West Africa)
      notwithstanding Security Council Resolution 276 (1970), Advisory
      Opinion, I.C.J. Reports 1971, p. 24, para. 32 ; emphasis added.)
  Clearly, the present case is starkly different.

   3. In its Advisory Opinion on Legal Consequences of the Construction
of a Wall, the Court reaffirmed that “advisory opinions have the purpose
of furnishing to the requesting organs the elements of law necessary for
 hem in their action” (Legal Consequences of the Construction of a Wall
 n the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports
2004 (I), p. 162, para. 60). In the present case, the General Assembly is
not an organ which can usefully benefit from “the elements of law” to be
 urnished by the Court. The Assembly, when it receives the present Advi-

116

sory Opinion, will be precluded, by virtue of Article 12 of the United
Nations Charter, from making any recommendation with regard to the
subject-matter of the present request, unless the Security Council so
requests.
   4. The Security Council itself has refrained from making a determina-
 ion as to whether the UDI is in accordance with its resolution 1244,
although it could have done so by adopting a new resolution or by
authorizing a statement from the President of the Council. Nor has the
Council sought advice from the Court as to whether the issuance of
 he UDI was compatible with the terms of its resolution 1244. That is the
position currently taken by the Council on the issue, which is the subject-
matter of the General Assembly’s request for an advisory opinion from
 he Court.
   5. The Members of the United Nations have conferred distinct respon-
sibilities upon the General Assembly, the Security Council and the Inter-
national Court of Justice and have put limits on the competence of each
of these principal organs. The Court — both as a principal organ of the
United Nations and as a judicial body — must exercise great care in
order not to disturb the balance between these three principal organs, as
has been established by the Charter and the Statute. By not adequately
addressing the issue of the propriety of giving an answer to the present
request, the Court has failed in this duty.

   6. The majority, in an attempt to justify its position, refers to “an
 ncreasing tendency over time for the General Assembly and the Security
Council to deal in parallel with the same matter concerning the mainte-
nance of international peace and security” (Advisory Opinion, para. 41), a
 endency which was noted by the Court in its Advisory Opinion on Legal
Consequences of the Construction of a Wall. However, the present case
simply does not form part of this tendency. It is true that the General
Assembly has also adopted resolutions relating to the situation in Kos-
ovo (ibid., para. 38). However, as is evident from the Advisory Opinion,
none of these resolutions is relevant either to the régime established by
resolution 1244 or to an answer to the question posed by the General
Assembly. The truth is that everything hinges on the interpretation of
Security Council resolution 1244.
   The majority also cites the Namibia Advisory Opinion, as well as the
Advisory Opinions on Certain Expenses of the United Nations and Con-
ditions of Admission of a State to Membership in the United Nations (see
paragraphs 46 and 47 of the Advisory Opinion). None of these cases,
however, is remotely similar to the present one. In the Namibia case, the
requesting organ was the Security Council (see paragraph 2 above). In
 he Certain Expenses Opinion, the Court merely quotes from a number
of Security Council resolutions, in order to note the clear existence of “a
record of reiterated consideration, confirmation, approval and ratifica-
 ion by the Security Council and by the General Assembly of the actions
of the Secretary-General” (Certain Expenses of the United Nations (Arti-

117

cle 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports
1962, p. 176). In the Conditions of Admission Opinion, the Court does
not deal with any Security Council resolutions. In both the Certain
Expenses and Conditions of Admission cases, the Court’s task was to
 nterpret the United Nations Charter and in both cases the General
Assembly, the requesting organ, could have made use of “the elements of
 aw” furnished by the Court. The majority, in addition, refers to the con-
 entious cases of Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie. How-
ever, in these cases, the Court does not interpret any Security Council
resolutions. It only stated that Libya, the United States and the United
Kingdom, as Members of the United Nations, are obliged to accept and
carry out the decisions of the Security Council in accordance with Arti-
cle 25 of the United Nations Charter (see the case concerning Questions
of Interpretation and Application of the 1971 Montreal Convention aris-
 ng from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.
United States of America), Provisional Measures, Order of 14 April 1992,
I.C.J. Reports 1992, p. 126, para. 42 ; and the case concerning Questions
of Interpretation and Application of the 1971 Montreal Convention aris-
 ng from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.
United Kingdom), Provisional Measures, Order of 14 April 1992, I.C.J.
Reports 1992, p. 15, para. 39).

   The majority’s inability to find jurisprudence of any relevance is quite
understandable since the present case, as explained in paragraph 1, is
unprecedented.
   7. The Court’s failure to exercise its discretion to refrain from giving
an answer to the question posed by the General Assembly unfortunately
entails serious negative implications for the integrity of the Court’s judi-
cial function and its role as a principal organ of the United Nations.

  8. In particular, any interpretation of Security Council resolution 1244
which the Court might have given would have been less than authorita-
ive under the circumstances of the present case.
  Indeed, one may recall a dictum by the Permanent Court of Interna-
ional Justice to the effect that “it is an established principle that the right
o giving an authoritative interpretation of a legal rule belongs solely to
he person or body who has power to modify or suppress it” (Jaworzina,
Advisory Opinion, 1923, P.C.I.J., Series B, No. 8, p. 37). This, of course,
eads to the conclusion that :

        “Only the Security Council, or some body authorized to do so by
      the Council, may give an authentic interpretation [of a Security
      Council resolution] in the true sense.” (Michael C. Wood, “The
      Interpretation of Security Council Resolutions”, Max Planck Year-
      book of United Nations Law, Vol. 2, 1998, p. 82.)

118

It is equally obvious that :
        “The I.C.J. and other international tribunals (including those on
      Yugoslavia and Rwanda) may have to interpret SCRs [Security
      Council resolutions] for the purpose of giving effect to what the
      Council has decided.” (Max Planck Yearbook of United Nations
      Law, Vol. 2, 1998, p. 85.)
   In the present case, however, the Court is not interpreting resolu-
 ion 1244 for the purpose of giving effect to what the Council has
decided. The Council has not decided anything on the subject of the
UDI. The Council has not even acknowledged the issuance of the UDI.
The terms of resolution 1244 have remained unaltered since the UDI was
adopted (see paragraphs 91 and 92 of the Advisory Opinion).
   9. It must be borne in mind that Security Council resolutions are
political decisions. Therefore, determining the accordance of a certain
development, such as the issuance of the UDI in the present case, with a
Security Council resolution is largely political. This means that even if a
determination made by the Court were correct in the purely legal sense
 which it is not in the present case), it may still not be the right determi-
nation from the political perspective of the Security Council. When the
Court makes a determination as to the compatibility of the UDI with
resolution 1244 — a determination central to the régime established for
Kosovo by the Security Council — without a request from the Council, it
substitutes itself for the Security Council.

   10. In some ways, the situation faced by the Court in the present case
 s similar to that which confronted it in respect of the Federal Republic of
Yugoslavia’s (FRY) membership in the United Nations, prior to its
admission in 2000. The Court, when considering, in 1993 and 1996, the
Bosnia and Herzegovina v. Yugoslavia case in incidental proceedings,
refrained from interpreting the relevant resolutions of the General Assem-
bly and the Security Council in order to make a determination as to
whether or not the FRY was a Member of the United Nations and
 pso facto party to the Statute of the Court. It confined itself to the obser-
vation that the solution adopted in the United Nations on the question of
 he continuation of the membership of the Socialist Federal Republic of
Yugoslavia (SFRY) was “not free from legal difficulties” (Application of
 he Convention on the Prevention and Punishment of the Crime of Geno-
cide (Bosnia and Herzegovina v. Yugoslavia), Provisional Measures,
Order of 8 April 1993, I.C.J. Reports 1993, p. 14, para. 18). The Court
did not address this question in its 1996 Judgment on the preliminary
objections (Application of the Convention on the Prevention and Punish-
ment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
Preliminary Objections, Judgment, I.C.J. Reports 1996 (II)). The Court
was clearly not authorized to make a determination on the issue of the
membership of the FRY in the United Nations and it did not do so,
although this was a question of jus standi. Only after the Security Council

119

and the General Assembly brought clarity to the situation by admitting
 he FRY to the United Nations as a new Member did the Court, in the
Legality of Use of Force cases in 2004, come to the conclusion that the
FRY was not a Member of the United Nations or party to the Statute
prior to its admission to the United Nations in 2000. The Court observed
 hat

      “the significance of this new development in 2000 is that it has clari-
      fied the thus far amorphous legal situation concerning the status of
      the Federal Republic of Yugoslavia vis-à-vis the United Nations. It
      is in that sense that the situation that the Court now faces in relation
      to Serbia and Montenegro is manifestly different from that which it
      faced in 1999. If, at that time, the Court had had to determine defini-
      tively the status of the Applicant vis-à-vis the United Nations, its
      task of giving such a determination would have been complicated by
      the legal situation, which was shrouded in uncertainties relating to
      that status. However, from the vantage point from which the Court
      now looks at the legal situation, and in light of the legal conse-
      quences of the new development since 1 November 2000, the Court
      is led to the conclusion that Serbia and Montenegro was not a Mem-
      ber 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 present proceedings before the Court on
      29 April 1999.” (Legality of Use of Force (Serbia and Montenegro v.
      Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004 (I),
      pp. 310-311, para. 79.)

   11. Had the Court made this determination in 1993, 1996 or 1999,
when it considered the request for the indication of provisional measures
 n the Legality of Use of Force cases, it would have both jeopardized the
 ntegrity of its judicial function and compromised its role as a principal
organ of the United Nations.
   This is precisely what is at stake in the present case. Therefore, the
Court’s decision to answer the question is as erroneous as it is regretta-
ble.
   12. Now, however reluctantly, I will have to address the majority’s
attempt to interpret Security Council resolution 1244 with respect to the
UDI. Unfortunately, in the process of doing so, the majority has drawn
some conclusions, which simply cannot be right.

   13. One of these is finding that resolution 1244, which had the over-
arching goal of bringing about “a political solution to the Kosovo crisis”
 resolution 1244, operative paragraph 1), did not establish binding obli-
gations for the Kosovo Albanian leadership (see Advisory Opinion, para-
graphs 117 and 118). The Security Council cannot be accused of such an

120

omission, which would have rendered the entire process initiated by reso-
ution 1244 unworkable. The Permanent Representative of the United
Kingdom stated the obvious at the time of the adoption of resolu-
 ion 1244 :
         “This resolution applies also in full to the Kosovo Albanians,
      requiring them to play their full part in the restoration of normal life
      to Kosovo and in the creation of democratic, self-governing institu-
      tions. The Kosovo Albanian people and its leadership must rise to the
      challenge of peace by accepting the obligations of the resolution, in
      particular to demilitarize the Kosovo Liberation Army (KLA) and
      other armed groups.” (Statement by the Permanent Representative
      of the United Kingdom ; United Nations doc. S/PV.4011, 10 June 1999,
      p. 18 ; emphasis added.)

   14. No less striking is the Court’s finding to the effect that “a political
process designed to determine Kosovo’s future status, taking into account
 he Rambouillet accords” envisaged in resolution 1244 (resolution 1244,
operative paragraph 11 (e)), can be terminated by a unilateral action by
 he Kosovo Albanian leadership (see Advisory Opinion, paragraphs 117
and 118). In other words, the Security Council, in the view of the major-
 ty, has created a giant loophole in the régime it established under resolu-
 ion 1244 by allowing for a unilateral “political settlement” of the final
status issue. Such an approach, had it indeed been taken by the Council,
would have rendered any negotiation on the final status meaningless.
Obviously, that was not what the Security Council intended when adopt-
 ng and implementing resolution 1244. It is useful to recall that operative
paragraph 11 (e) of resolution 1244 refers to the Rambouillet accords
which provide that :

         “Three years after the entry into force of this Agreement, an inter-
      national meeting shall be convened to determine a mechanism for a
      final settlement for Kosovo, on the basis of the will of the people,
      opinions of relevant authorities, each Party’s [Belgrade and Prish-
      tina] efforts regarding the implementation of this Agreement, and
      the Helsinki Final Act . . .” (United Nations doc. S/1999/648,
      7 June 1999, p. 85.)
By no stretch of the imagination can a “unilateral settlement” be read
 nto this clear policy statement endorsed by the Security Council in its
resolution 1244.

   The subsequent practice of the Security Council in respect of resolu-
 ion 1244 is equally clear. When the process for determining Kosovo’s
final status was initiated in 2005, the Members of the Security Council
attached to the letter from its President to the Secretary-General, “for
 his] reference”, the Guiding Principles for a Settlement of the Status of

121

Kosovo agreed by the Contact Group (composed of France, Germany,
Italy, Russia, the United Kingdom and the United States). The Guiding
Principles stated in no ambiguous terms that “[a]ny solution that is uni-
 ateral or results from the use of force would be unacceptable” and that
“[t]he final decision of the status of Kosovo should be endorsed by the
Security Council” (Guiding Principles, annexed to the letter dated
10 November 2005 from the President of the Security Council addressed
 o the Secretary-General, United Nations doc. S/2005/709 ; emphasis
added).
   15. Finally, the authors of the UDI are being allowed by the majority
 o circumvent the Constitutional Framework created pursuant to resolu-
 ion 1244, simply on the basis of a claim that they acted outside this
Framework :
      “the Court considers that the authors of that declaration did not act,
      or intend to act, in the capacity of an institution created by and
      empowered to act within that legal order [established for the interim
      phase] but, rather, set out to adopt a measure [the UDI] the signifi-
      cance and effects of which would lie outside that order” (Advisory
      Opinion, para. 105).
The majority, unfortunately, does not explain the difference between act-
 ng outside the legal order and violating it.
   16. The majority’s version of resolution 1244 is untenable. Moreover,
 he Court’s treatment of a Security Council decision adopted under
Chapter VII of the United Nations Charter shows that it has failed “its
own responsibilities in the maintenance of [international] peace and secu-
rity under the Charter and the Statute of the Court” (Legality of Use of
Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June
1999, I.C.J. Reports 1999 (I), p. 132, para. 18).

  17. There is also a problem with the Court’s interpretation of gen-
eral international law. According to the Advisory Opinion, “general inter-
national law contains no applicable prohibition of declarations of
 ndependence” (para. 84). This is a misleading statement which,
unfortunately, may have an inflammatory effect. General international law
 imply does not address the issuance of declarations of independence,
because
      “declarations of independence do not ‘create’ or constitute States
      under international law. It is not the issuance of such declarations
      that satisfies the factual requirements, under international law, for
      statehood or recognition. Under international law, such declarations
      do not constitute the legal basis for statehood or recognition.”
      (CR 2009/31, p. 46 (Fife, Norway).)

  Declarations of independence may become relevant in terms of general
nternational law only when considered together with the underlying

122

claim for statehood and independence. However, the question posed by
 he General Assembly “is narrow and specific” (Advisory Opinion,
para. 51). “In particular, it does not ask whether or not Kosovo has
achieved statehood.” (Ibid., para. 51.) Therefore, the question as to the
 egality of the UDI simply cannot be answered from the point of view of
general international law. The only law applicable for the purpose of
answering the question posed by the General Assembly is the lex specialis
created by Security Council resolution 1244.

   18. In conclusion, it should be said that the purport and scope of the
Advisory Opinion is as narrow and specific as the question it answers.
The Opinion does not deal with the legal consequences of the UDI. It
does not pronounce on the final status of Kosovo. The Court makes it
clear that it
      “does not consider that it is necessary to address such issues as
      whether or not the declaration has led to the creation of a State or
      the status of the acts of recognition in order to answer the question
      put by the General Assembly” (ibid., para. 51).
The Court also notes that
      “[d]ebates regarding the extent of the right of self-determination and
      the existence of any right of ‘remedial secession’ . . . concern the
      right to separate from a State . . . and that issue is beyond the scope
      of the question posed by the General Assembly” (ibid., para. 83).

   In no way does the Advisory Opinion question the fact that resolu-
 ion 1244 remains in force in its entirety (see paragraphs 91 and 92 of the
Advisory Opinion). This means that “a political process designed to
determine Kosovo’s future status” envisaged in this resolution
 para. 11 (e)) has not run its course and that a final status settlement is
yet to be endorsed by the Security Council.

                                           (Signed) Leonid SKOTNIKOV.

123


181

DISSENTING OPINION OF VICE-PRESIDENT
WEERAMANTRY

Unlike the majority of the Court I take the view that the Court has
prima facie jurisdiction in this case. As for the issue of provisional
measures, it is a case where “circumstances so require” (Article 41 of the
Statute).

I view this case as one of such seminal importance as to necessitate a
somewhat extended statement of my views, despite the extreme con-
straints of time within which this opinion has had to be prepared.

The situation complained of is one where lives are being lost daily, vast
numbers of people including women, children, the aged and the infirm
are continuously exposed to physical danger and suffering, and property
damage on a most extensive scale is a regular occurrence. Whatever the
reason for the aerial bombing which is now in progress, and however well
intentioned its origin, it involves certain fundamentals of the interna-
tional legal order — the peaceful resolution of disputes, the overarching
authority of the United Nations Charter and the concept of the interna-
tional rule of law. It is upon these fundamental principles that the ensu-
ing opinion is based.

The applicability of these principles, whether individually or in combi-
nation, produces a situation in which at least a prima facie case has been
made out of the existence of circumstances justifying the issue of interim
measures, pending a fuller consideration by the Court of the complex
legal issues involved.

This Application highlights in classic form one of the most ancient and
valued attributes of the judicial process — the power and obligation of a
court to do what lies within its power to promote the peaceful settlement
of disputes by such interim measures as may be necessary pending the
final determination of the case before the Court. It is also a time-
honoured attribute of the judicial mission that courts should, within the
limits of the judicial function, do what they can to prevent the escalation
of the conflict between the litigating parties.

In domestic law a court seeing violence between two litigating parties
relating to the subject-matter of a pending action would, however
righteous be the motive of one or other of the parties, have no hesitation
in issuing an enjoining order restraining such violence. The rationale
for such action is twofold: it is essential that the rights of parties be
preserved intact pending their determination by the Court and it is essen-

61
182 LEGALITY OF USE OF FORCE (DISS. OP. WEERAMANTRY)

tial that there be no escalation of the dispute pending litigation. The
nature of the judicial function is no different when it is transposed into the
international plane, especially when the Court concerned is the principal
judicial organ of the United Nations, functioning under a Charter which
ranks the peaceful resolution of disputes among its prime Purposes and
Principles.

It is no argument to the contrary that the Court lacks the means to
enforce its measures. The voice of the Court as the principal judicial
organ of the United Nations may well be the one factor which, in certain
situations, can tilt the balance in favour of a solution of disputes accord-
ing to the law.

It is my view that the Court should have issued provisional measures
on both Parties to desist from acts of violence of any sort whatsoever,
subject to appropriate safeguards for keeping the peace as suggested later
in this opinion.

SOME GENERAL OBSERVATIONS

This case is one of ten simultaneously filed by Yugoslavia against ten
different NATO Members.

The jurisdictional issues involved in all these cases are not the same
and hence the Court’s decisions on the various matters involved are not
identical.

In two of the ten cases — those against Spain and the United States —
I agree with the Court’s decision that there is a manifest absence of Juris-
diction to deal with them. These two cases should therefore be taken off
the Court’s register of pending cases, and I concur in the Court’s decision
to this effect.

In four of the remaining eight cases — the cases against France, Ger-
many, Italy and the United Kingdom — while agreeing with the majority
of the Court, I have some comments to offer, which I do in each case in
a declaration.

In the remaining four cases — those against Belgium, Canada, the
Netherlands and Portugal — I differ from the majority of my colleagues
in that it is my view that provisional measures should be indicated. I have
hence filed dissenting opinions in these cases. My position is set out in my
dissenting opinion in Yugoslavia v. Belgium, and my opinions in the
other three cases, which are identical mutatis mutandis, refer back to that
opinion.

On the question whether these last eight cases should remain on the
Court’s General List I concur in the Court’s decision that they should so
remain, reserving the subsequent procedure for further decision.

62
183 LEGALITY OF USE OF FORCE (DISS. OP. WEERAMANTRY)
PARTICULAR SIGNIFICANCE OF THIS CASE
This case raises human rights issues of the gravest nature on both sides.

On the one hand the Respondents allege against the Applicant the
massacre of ethnic Albanians in Kosovo and the expulsion of ethnic
Albanians from their homes and habitations on a scale that can be
described as truly colossal. What is alleged is no less than the forcible
expulsion of nearly a million persons, the murder of several thousands
and the destruction of innumerable homes and villages in an ongoing
process which is allegedly continuing to this day. All this is alleged to be
part of a scheme which is said to be of such magnitude as to attract the
repellent description of “ethnic cleansing”.

If the allegations made are substantiated, this would constitute one of
the severest violations of human rights and dignity that have occurred
since the conclusion of World War II. Human rights violations on this
scale are such as to throw upon the world community a grave responsi-
bility to intervene for their prevention and it is well-established legal doc-
trine that such gross denials of human rights anywhere are everyone’s
concern everywhere. The concept of sovereignty is no protection against
action by the world community to prevent such violations if they be of
the scale and nature alleged.

On the other hand, however well intentioned the air strikes that have
been launched by the NATO powers as a means of preventing this, there
are assertions by the Applicant that this use of force lacks United
Nations sanction and authority and overlooks express Charter provi-
sions. There are also allegations of violations of the provisions of the
Geneva Convention of 1949 and of the Additional Protocol No. 1 of
1977 on the protection of civilians and civilian objects in time of war.

These assertions raise substantial questions of law that need careful
examination. Yugoslavia asserts that there have been over a thousand
deaths of civilians including women and children, the aged and the
infirm, 4,500 cases of serious bodily injuries to civilians, the destruction
of thousands of civilian houses, the loss of several hundred thousand jobs
and the destruction of industrial enterprises, schools, telecommunica-
tions, airports, hospitals, and cultural institutions, monuments, religious
shrines and historical monuments. One million citizens are said to be
short of water supply and the Applicant also alleges that serious environ-
mental damage has been caused and is continuing to be caused by the
bombing of oil refineries and chemical plants, and the use of bombs con-
taining depleted uranium and that the prohibition against the use of
weapons calculated to cause unnecessary suffering is violated by the use
of cluster bombs.

63
184 LEGALITY OF USE OF FORCE (DISS. OP. WEERAMANTRY)

Such is the background to the matter now before the Court, a situation
which has no precedent in the annals of this Court or indeed of any
other, for the Court is being asked to do no less than to prevent or miti-
gate the severities of a major military operation. This is thus a seminal
moment in judicial history and I cannot permit it to pass without some
suggestions which, though I am in a minority, may still, I hope, be of
some utility.

THE POSITION OF THE APPLICANT

In this case the Applicant requests the Court to issue provisional meas-
ures requiring the Respondent to stop immediately the violation of vari-
ous obligations towards Yugoslavia which Yugoslavia alleges are being
violated.

The Respondent on the other hand claims that its actions are taken
with purely humanitarian intent to prevent gross violations of human
rights extending to genocide which have been perpetrated in Kosovo by
the Applicant and still continue to be perpetrated. In this context it
invokes the “clean hands” principle, a principle of equity and judicial
procedure, well recognized in all legal systems, by which he who seeks the
assistance of a court must come to the court with clean hands. He who
seeks equity must do equity.

It is not for the Court to pronounce at this stage upon the merits of the
allegations on either side. It is patently clear however that it is a precon-
dition to the granting of any relief to the Applicant that if the Applicant
is engaged on a course of violence relevant to the subject-matter of the
Application, that violence should immediately cease.

It is clear that the Court in indicating provisional measures can indi-
cate measures other than those proposed by the Applicant (S. Rosenne,
The Law and Practice of the International Court, 1920-1996, 1997,
Vol. III, p. 1457) and that the Court may also issue measures proprio
motu, a practice which excludes the non ultra petita rule (ibid. ).

Moreover since both Parties are under an implied obligation until the
Court has reached its decision to refrain from any steps which might have
a prejudicial effect on the execution of the Court’s decision (Rosenne, op.
cit., p. 1458) the applicant who comes to a court for interim relief is itself
under a special obligation to desist immediately from all action which has
any semblance of aggravating or extending the dispute.

The Court in this case is entitled to act on these principles with special
stringency and my view is that it is a strict precondition to any interim
provisions the Court may order against the Respondent that the Appli-

64
185 LEGALITY OF USE OF FORCE (DISS. OP. WEERAMANTRY)

cant itself should desist immediately from any act of interference with the
rights of the people of Kosovo. A violation of this precondition in any
shape or form would immediately destroy the basis of any order the
Court may make.

I stress in this context that there can be no affirmative finding of any
sort on this matter at this stage and that all that has been said is without
any attempt at prejudgment of any of the issues before the Court.

I set out at the end of this opinion some thoughts regarding the pro-
visional measures which I think the Court could have issued, and which
I consider appropriate, but I would lay down the requisite set out above
as an essential precondition to the continuing applicability of any provi-
sional measures that might be issued in circumstances such as these.

ADMISSIBILITY AND JURISDICTION

Turning next to the questions of admissibility and jurisdiction of
Yugoslavia’s Application, objection has been taken to Yugoslavia’s status
to make this Application. This objection is based on Yugoslavia’s mem-
bership status in the United Nations.

The majority of the Court have held that the Court need not consider
this question for the purpose of deciding whether or not it can indicate
provisional measures in this case and I respectfully agree.

I come now to the question of the Court’s prima facie jurisdiction.

The jurisdiction necessary for the issue of provisional measures is
based by the Applicant on three grounds — Article 36, paragraph 2, of
the Statute, Article IX of the Genocide Convention and Article 4 of the
Convention of Conciliation, Judicial Settlement and Arbitration, 1930,
between Belgium and the Kingdom of Yugoslavia.

Article 36, paragraph 2, of the Statute is, in my view, sufficient to con-
fer prima facie jurisdiction for the purposes of provisional measures and
for this reason I do not think it necessary to examine the other grounds
further.

JURISDICTION RATIONE TEMPORIS

I do not share the view of the majority of the Court in regard to the
lack of jurisdiction under Article 36, paragraph 2, and note that the main
reason why the majority have concluded that prima facie jurisdiction is
not available is that the Yugoslav declaration under Article 36, para-
graph 2, is limited to disputes arising or which may arise after 25 April
1999,

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186 LEGALITY OF USE OF FORCE (DISS. OP. WEERAMANTRY}

(a) Inappropriateness of Reference Back to Time of Planning

The question for decision is whether the temporal restriction defeats
the entire declaration, so far as concerns the subject-matter of the present
Application, in view of the fact that the NATO air operations, the sub-
ject-matter of the Applicant’s complaint, began on 24 March 1999, thus
pre-dating 25 April, the date specified in Yugoslavia’s declaration. Is the
declaration thus inoperative in terms of the very restriction that Yugo-
slavia itself laid down?

I think not.

A vast enterprise may be planned and conceived at a particular time
and date but it does not follow that every major operation conducted
within that enterprise over the ensuing months, if it gives rise to a claim
at law, dates back to the conception of the entire enterprise. The cam-
paign may involve several breaches of vastly different State obligations
such as environmental obligations, human rights obligations, obligations
under the Convention against Torture, obligations under Conventions
relating to civil aviation, the law of the sea or conduct in war. All of these
operations may have been separately and individually planned on differ-
ent dates. It seems to be difficult to maintain that all such breaches of
obligation occurred when the initial plan was conceived.

(b) Meaning of “Dispute”

I wish to say a word here about the meaning of the term “dispute”.

A dispute may remain at an abstract level, as where one party alleges
that it has a particular right and the other party disputes it. A dispute
may on the other hand, as in most instances, assume a practical form, as
where one party causes damage to another by some wrongful act and
that other party asserts a violation of its rights and makes a claim for
compensation. There is then a dispute as to whether a wrongful act has
been done and a claim to damages exists. Both types of dispute fall
within the accepted definition in the Court’s jurisprudence namely, “a
disagreement on a point of law or fact, a conflict of legal views or inter-
ests between parties” (East Timor (Portugal v. Australia), Judgment,
LC J. Reports 1995, p. 99, para. 22).

Clearly the allegations of wrongful acts of the varied descriptions set
out in the Application and the resulting claims based upon them are all
“disputes” within the meaning of that term in the Court’s jurisprudence.

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187 LEGALITY OF USE OF FORCE (DISS. OP. WEERAMANTRY)
(c) Differences in Obligations Breached

When in a bombing campaign a bridge over an international river is
blown up, a chemicals factory destroyed, a prohibited weapon used or a
hospital demolished, each of these acts, if wrongful, would be the subject
of a different dispute and a distinct claim. These claims may involve the
violation of different types of rights and different rules of law — naviga-
tion rights, environmental rights, human rights, humanitarian rules and
rules under the Geneva Conventions.

In this case, as I understand it, the Court is faced with a number of
such acts, separately executed and separated in time. In my view it strains
the rules of legal interpretation to conclude that all of these constitute
one dispute which was complete when the bombing campaign was decided
upon. Disputes at law are not confined to disputes at such an abstract
and theoretical level. It is of the nature of judicial proceedings and litiga-
tion at every level that disputes both abstract and practical are brought
before courts for determination.

It is relevant to note in this connection that the claim as stated in the
Application asserts the violation of different legal obligations in respect
of the different categories of damage. Among these are violations of obli-
gations not to use prohibited weapons, obligations not to cause far-
reaching health and environmental damage, obligations respecting the
right to information, obligations to respect freedom of navigation on
international rivers and obligations not to commit any act of hostility
towards historical monuments, works of art or places of worship.

To take some specific examples the disputes arising from the bombing
of an embassy, from the bombing of a TV station, from the bombing of
a passenger train, a school or a power station all arise when those acts in
fact take place and not before the acts were done. To hold otherwise
would be unrealistic and contrary to legal principle.

A major campaign may even take years and this does not mean that
every act of wrongdoing that may be committed in the course of that
campaign — even though those acts are years apart — dates back in law
to the time when it was decided to commence hostilities.

(d) Maturation of a Legal Claim

A legal principle well recognized in all legal systems is that an act of
wrongdoing is completed when the wrong is done, not when it was

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planned. To take an analogy from domestic law, such an act of wrong-
doing would be dated, for purposes of statutes of limitation or otherwise,
as from the date when the wrongful act is committed. Until such commis-
sion the cause of action would not be complete. A plan or an intention to
cause damage does not ripen into a justiciable claim until the physical act
is done which causes the damage. In the well-known learning of the
Roman law relating to damnum injuria datum, damnum needs to be
datum before it grounds a claim at law.

In this view of the matter the fact that the bombing campaign as a
whole was conceived before the material date, namely 25 April 1999, can-
not carry the implication that acts of wrongdoing committed and perhaps
even individually planned subsequent to that date must be taken as relat-
ing back in law to the date of conception of the entire scheme. They are
committed in law when they are committed in fact and not when they are
planned, just as any act in law attracts liability not as from the date when
it is conceived but when it is executed.

(e) International Law Commission’s Draft Articles
on State Responsibility

The limitation ratione temporis thus does not seem to me to be a satis-
factory basis on which to hold that the Court lacks even prima facie
jurisdiction. The fact that the matter cannot be so simply dealt with as
the Court has chosen to do is borne out also by the International Law
Commission’s Draft Articles on State Responsibility dealing with
breaches of State responsibility which are part of a series. Article 25
which deals with the matter points out that the time of commission of a
breach extends over the entire period during which the act continues and
that in the case of a series of acts or omissions the breach of international
obligation occurs at the moment when the particular act or omission is
accomplished.

(f) Intention of Author of Reservation

Moreover, the construction adopted does not adequately consider the
intention of the author of the reservation, which is an important factor to
be taken into account in construing the overall meaning of a declaration
(see Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court,
Judgment, I. C.J. Reports 1998, p. 454, para. 49). Yugoslavia, in drafting
its declaration, could not have intended to exclude from the Court’s juris-
diction the very incidents of which it was complaining and which it had
made the subject-matter of its Application. Such a self-defeating inten-

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189 LEGALITY OF USE OF FORCE (DISS. OP. WEERAMANTRY)

tion can scarcely be imputed to the author of such an important docu-
ment.

(g) The Question of Divisibility

On the question of divisibility, I agree with the contention that a dis-
pute is not infinitely divisible into a multitude of separate fragmentary
events such as the firing of every individual bullet. Such analogies are
however totally distinguishable. Fragmentary acts of this nature cannot
be equated to events which are major incidents in themselves such as the
accidental bombing of a train or a hospital or an embassy.

(h) Inadequacy of Temporal Limitation to Defeat
Prima Facie Jurisdiction

In short, whichever way one looks at it, there is certainly a prima facie
case that there is jurisdiction ratione temporis. At the very least the mat-
ter is debatable, and hence there is no adequate reason for refusing to
consider this matter on the basis of a lack of prima facie jurisdiction.

In reaching this conclusion I apply the tests which are well recognized
in the jurisprudence of the Court. The Court should be able to hold
“should it be only provisionally, that it was competent to hear the case
on the merits” (Rosenne, op. cit., p. 1444).

Enough has been said to indicate that the prima facie jurisdiction
which is sufficient to support an order for provisional measures does exist
in this case. It is clearly not a case where it could be assumed a priori that
the claims of Yugoslavia “fall completely outside the purview of the
Court’s jurisdiction” (Nuclear Tests (Australia v. France), Interim Pro-
tection, Order of 22 June 1973, I. C.J. Reports 1973, p. 103, para. 23;
Nuclear Tests (New Zealand v. France), Interim Protection, Order of
22 June 1973, LC.J. Reports 1973, p. 140, para. 24; Rosenne, op. cit.,
p. 1448).

APPROPRIATENESS

Granted then that the Application is admissible and that the Court has
prima facie jurisdiction I move now to a consideration of the appropri-
ateness of the issue of provisional measures in this case.

(a) Urgency

A prerequisite to the issue of provisional measures is urgency.

The circumstances of this case leave no doubt regarding the satisfac-
tion of this condition. All over Yugoslavia lives are being lost every day,
people are seriously injured and maimed and property loss of various
descriptions is being sustained.

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190 LEGALITY OF USE OF FORCE (DISS. OP. WEERAMANTRY)

This Court acts urgently when the circumstances require it and this
case is one such.

The Court is so sensitive to considerations of urgency especially where
they concern the possible loss of human life that it has moved within
a week (Vienna Convention on Consular Relations (Paraguay v. United
States of America)) or indeed within a day (LaGrand (Germany
v. United States of America)) to issue provisional measures where a
single human life was involved. Without needing to elaborate upon the
factual details of the deaths and damage alleged by the Applicant to
have been caused by the bombing of Yugoslavia by NATO forces and with-
out elaborating on the allegations of continuing human rights violations
committed and continuing to be committed by the Applicant in Kosovo
as alleged by the Respondent, it is clear that great urgencies exist in the
present case. These urgently call for the issue of appropriate provisional
measures preserving the rights of both Parties, preventing the escalation
of the disputes and allaying the human suffering referred to in the alle-
gations of both Parties. I do not think that the complexity of the issues
takes away from the need to act with urgency in a matter of urgency —
particularly where the urgencies are as telling as in the matter now before
the Court.

(b) Seminal Nature of the Issues Involved

This case raises certain issues which reach through to the core of the
United Nations Charter. They will of course come up for determination
at the appropriate stage. At this provisional measures stage one needs to
go no further than to determine whether an arguable issue exists. This
criterion is more than satisfied in the present case.

One such issue is whether, assuming the entirely laudable nature of
NATO?’s object of protecting the refugees from Kosovo, that intention
could be given effect otherwise than in conformity with the provisions of
the United Nations Charter.

There are Charter provisions which have a direct bearing on this sub-
ject namely Article 2 (3), Article 2 (4) and Article 53 (1). They contain a
clear rule that international disputes should be settled by peaceful means,
a Clear prohibition of the use of force against the territorial integrity of
any State and a clear prohibition of enforcement action without the
authorization of the Security Council.

The Respondent has not been heard upon these matters and if the
Court finds affirmatively that it has jurisdiction to hear this Application
it will consider them. All that is necessary at the present stage of provi-
sional measures is to determine whether there is a justiciable issue within
the Court’s prima facie jurisdiction that awaits determination. Indeed the
Court indicates no less when in its Judgment it refers to the complex
issues relating to legality that arise in connection with the military actions
of NATO.

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191 LEGALITY OF USE OF FORCE (DISS. OP. WEERAMANTRY)

This issue is a serious one going to the roots of international order, for
disregard of the Charter, if such indeed be the case, can have long-term
effects on the stability of the international community itself and on the
international rule of law. It is an arguable one and lies at the heart of the
dispute before the Court. There are also issues relating to the alleged and
continuing violation of the Geneva Convention of 1949, the Additional
Protocol No. 1 of 1949 relating to the protection of civilians and civilian
objects in time of war and of the rules against the use of prohibited weap-
ons and of the laws of war. All these are principles so important to inter-
national order that their alleged violations involve a special degree of
urgency. They are thus additional factors indicative of the appropriate-
ness of provisional measures if the Court should have prima facie
jurisdiction.

Issues have thus been raised which are so serious as, granted jurisdic-
tion, would warrant the issue of provisional measures pending their
determination.

(c) Centrality of the Notion of Peaceful Resolution of Disputes

The peaceful resolution of disputes is a cornerstone of the United
Nations Charter. I do not need to elaborate on this point. It ranks high
among the Purposes and Principles of the United Nations and finds its
place at the very forefront of the United Nations Charter in Article | (1).
War, its antithesis, is mentioned in the very first preambular paragraph of
the Charter as the scourge from which the peoples of the United Nations
are determined to save succeeding generations.

These matters of highest concern to the international community are
the bedrock on which the Charter is built and the Court is par excellence
the judicial institution which has been structured, in furtherance of these
resolves, for the peaceful resolution of disputes. Fashioned as an embodi-
ment of the rule of law which was to replace force as the arbiter of inter-
national disputes, the Court is charged with the highest responsibilities in
upholding the peaceful resolution of disputes, and the judicial implemen-
tation of the principles of the Charter. Where there is an allegation of a
violation of this basic principle there is an issue which awaits the serious
and urgent consideration of the Court thus making out a further reason
for the issue of provisional measures until this matter is resolved.

Article 2, paragraph 3, sets out as a fundamental principle that all
Members shall settie their disputes by peaceful means in such a manner
that international peace and security, and justice, are not endangered.
Authoritative treatises on the Charter characterize the principle of the
peaceful settlement of disputes as a cornerstone of the contemporary
world order (Bruno Simma, The Charter of the United Nations, A Com-
mentary, 1994, p. 99). Article 2, paragraph 3, has been described as by no
means a mere recommendatory provision compliance with which would

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192 LEGALITY OF USE OF FORCE (DISS. OP. WEERAMANTRY)

be within the discretion of States, but rather as a principle which gives
rise to a legal obligation (Simma, op. cit., p. 101). Indeed “the peaceful
settlement of disputes is the cornerstone of the edifice whose main pillar
is constituted by the prohibition of the use of force” (ibid., p. 100).

So well accepted was the principle embodied in Article 2 (3) that, as a
writer on the topic has observed (Hans Blix, “The Principle of Peaceful
Settlement of Disputes”, in Legal Principles Governing Friendly Rela-
tions and Co-operation among States, 1966, p. 51), the principle laid
down in Article 2, paragraph 3, “was echoed” in many other interna-
tional documents of the time both multilateral and bilateral. Among the
documents he mentions are the Treaty of Friendship, Co-operation and
Mutual Assistance of 1955 (the Warsaw Treaty), the North Atlantic
Treaty, 1949, and the Bandung Declaration, 1955. The first two embody
this principle in their very first article!.

Reference should also be made in this context to the primacy accorded
to the prohibition of force and the peaceful settlement of disputes in the
Declaration of Friendly Relations and Co-operation amongst States in
Accordance with the Charter of the United Nations adopted by acclama-
tion in the General Assembly on the 25th Anniversary of the Organiza-
tion. Marking the culmination of ten years of deliberations on the basic
principles of international law and the Charter, this declaration under-
scored the importance attached to these principles by the community of
nations. An allegation of non-compliance with these principles and of
resulting loss of life and damage on a continuing basis cannot but mark
out such a case as appropriate for the issue of provisional measures,
granted of course that the Court has prima facie jurisdiction.

' Article 1 of the Warsaw Treaty reads as follows:

“The Contracting Parties undertake, in accordance with the Charter of the United
Nations. . . to settle their international disputes by peaceful means.” (UNTS, Vol. 219,
p. 26.)

Article 1 of the North Atlantic Treaty reads as follows:

“The Parties undertake, as set forth in the Charter of the United Nations, to settle
any international dispute in which they may be involved by peaceful means in such a
manner that international peace and security and justice are not endangered. and to
refrain in their international relations from the threat or use of force in any manner
inconsistent with the purposes of the United Nations.” (UNTS, Vol. 34, p. 244:
NATO basic documents, 1981, p. 10.)

? For an analysis of the discussions in the General Assembly on the importance of these
principles see further V. S. Mani, Busic Principles of Modern International Law, 1993.

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193 LEGALITY OF USE OF FORCE (DISS. OP. WEERAMANTRY)

The principle of peaceful settlement thus enshrined in the Charter and
widely accepted by the international community, acquires its binding
character in international law not merely by virtue of its embodiment in
the Charter but also because it is binding on every State as a rule of cus-
tomary international law (Simma, op. cit., p. 100; H. Blix, “The Principle
of the Peaceful Settlement of Disputes”, in The Legal Principles Govern-
ing Friendly Relations and Co-operation among States, 1966, p. 45; The
International Society as a Legal Community, 1980, p. 227; H. Thierry et
al., Droit international public, 1984, p. 570). This view has also the
endorsement of this Court in the Nicaragua case (Military and Paramili-
tary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, .C.J. Reports 1986, p. 145, para. 291).

So pivotal is the peaceful settlement of international disputes to the
international legal order that a distinguished former judge of this Court
has observed that:

“The settlement of disputes is the key factor in deciding whether
international society is functioning as a community governed by the
rule of law.” (H. Mosler, The International Society as a Legal Com-
munity, 1980, p. xvi.)

The settlement of disputes within the legal framework of international
society is thus elevated to the level of a hall-mark of the existence of the
international rule of law. The Applicant’s assertions thus place us in the
presence of an issue which is fundamental to the existence of an ordered
international society. A corollary to this proposition is that in the absence
of an ordered mode of settlement there is here a justiciable issue of car-
dinal importance and its violation for however brief a period can work
lasting damage to the fabric of that society. This itself makes attention to
this problem of staying the present violence on both sides a matter of
great urgency.

It is not necessary to elaborate on the other Charter provisions referred
to, except to stress their centrality to the matters which the Court will
have to consider at the appropriate stage, and that they raise issues of
considerable complexity as the Court itself has stressed. They are not
issues which are easily decided but since they go to the heart of the Appli-
cant’s claims cannot at this stage be discounted when the Court is con-
sidering the appropriateness of provisional measures.

Against so strong a legal background relating to the peaceful settle-
ment of disputes, when the Court is confronted with a case involving the
use of force, where continuing events of a major nature involving loss of
human life and other serious damage occur from day to day the need for
provisional measures becomes ever more compelling until the legal issues
are resolved.

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194 LEGALITY OF USE OF FORCE (DISS. OP. WEERAMANTRY)

Till such time the course dictated by the jurisprudence of the centuries,
where human tragedy and loss of life are involved, is for the Court to
issue provisional measures preserving the rights of the parties and pre-
venting the escalation of the conflict. Such a course would also be in
accordance with the primordial principles underlying the Charter and the
Statute.

Whatever the genesis of the present matter, I think it would be inap-
propriate for the Court to respond negatively when its jurisdiction is
invoked in such a situation.

It may be that for jurisdictional reasons the Court is totally unable to
respond in the majority of the ten cases that have been brought before it.
But in the cases where the Court can respond — be it in only one —
I believe it should, because the issues involved are central to international
order and the international rule of law, and when defined and applied by
the Court will have their influence beyond the confines of the particular
case.

(d) Involvement of a Political Element

I wish to deal here with the argument that the Court must not per-
mit itself to be “politicized” or used as a political instrument — an
argument which was addressed to the Court at some length. This is an
argument which has been addressed to the Court in some other cases
as well and I believe it is necessary to record some thoughts on the
subject.

It should be clear that many, if not the vast majority, of the cases that
are brought before the Court involve a political element. The fact that a
political element is involved does not mean that there are no legal ele-
ments involved. Where legal elements are involved it is in my view inap-
propriate to suggest that merely because a political element 1s also
involved, the pressure of that political element would in some manner
deprive the Court of its right and indeed its duty to consider the legal
element of a dispute which is rightly brought before it in its capacity as
the principal judicial organ of the United Nations. If parties cannot bring
such a dispute before the Court merely because a political element is
involved they would be deprived of an essential right and relief which
they enjoy under the United Nations system.

Making orders and delivering opinions in legal matters is the proper
function and judicial responsibility of the Court and when the Court
properly discharges its obligations in this regard the Court’s determina-
tion will naturally have its repercussions in many spheres including the
political.

Sir Hersch Lauterpacht, in referring to the distinction between legal
and political disputes, has observed that it has become an obstacle in the
way of legal progress and that “the doctrine is untenable in theory and

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harmful in practice” (The Function of Law in the International Commu-
nity, 1929, p. 435.)

I wish to place on record my rejection of the contention that the
involvement of a political element in the dispute somehow causes the
legal elements therein to vanish from the vision of the Court or in some
way to become irrelevant. Involvement with a political element does not
represent a vanishing point of the jurisdiction of the Court.

Once jurisdiction is established even prima facie, and the urgency and
importance of the matter are apparent, it seems to me to follow inexor-
ably that this is an appropriate case for the issue of provisional measures
if ever there was one.

(f) Lack of a Specific Allegation against the Respondent

It is true that there is no single specific allegation of any act for which
the respondent State is directly responsible. Yet it is on the basis of the
joint and several responsibility of the member States of NATO for the
actions of NATO that this Application has been filed.

The absence of any facts specifically imputed to the Respondent is thus
no legal barrier to the present Application.

SCOPE OF THE COURT’S POWERS IN RELATION
TO PROVISIONAL MEASURES

Having reached the conclusion that the Court should issue provisional
measures in terms of the Rules of Court relating to interim protection
(Arts. 73-78), I now proceed to consider the scope of those provisional
measures, and what sort of orders it would be within the Court’s jurisdic-
tion to make.

It is my view that the Court should in this case go beyond the mere
issue of provisional measures. Such a course is eminently within the func-
tion of a court faced with circumstances of this nature, where loss of life
has become a daily feature of the ongoing dispute.

(a) Complementarity of the Court with Other Organs of the
United Nations in Relation to Peaceful Settlement

Apart from such specific provisions as may be contained in the Rules
of Court relating to provisional measures, the Court also has an inherent
Jurisdiction arising from its judicial function, to lend such assistance as it
can towards the process of peaceful settlement. The Court is the principal
judicial organ of the United Nations whose purposes as set out in the
very first article of its Charter include:

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196 LEGALITY OF USE OF FORCE (DISS. OP. WEERAMANTRY)

“to bring about by peaceful means, and in conformity with the prin-
ciples of justice and international law, adjustment or settlement of
international disputes or situations which might lead to a breach of
the peace”.

The Security Council has special responsibilities in this regard but so
has the Court, within the parameters of the judicial function; and assist-
ing parties to this end is an inherent part of that function. One recalls in
this connection the words of Judge Lachs in his separate opinion in the
Aegean Sea Continental Shelf case (Judgment, 1 C.J. Reports 1978, p. 53)
regarding the “compatibility and complementarity of all means of peace-
ful settlement as enumerated in Article 33 of the Charter of the United
Nations”.

(b) Role of the Court in Facilitating Negotiation between the Parties

As early as 1929 in the Free Zones case the Permanent Court under the
presidency of Judge Anzilotti gave expression to this concept of the
Court’s judicial function when it observed

“Whereas the judicial settlement of international disputes, with a
view to which the Court has been established, is simply an alterna-
tive to the direct and friendly settlement of such disputes between
the Parties; as consequently it is for the Court to facilitate, so far
as is compatible with the Statute, such direct and friendly settle-
ment.” (Free Zones of Upper Savoy and the District of Gex, Order
of 19 August 1929, P.C.LJ., Series A, No. 22, p. 13; emphasis
added.)

This aspect of the Court’s functions has been highlighted and used in
the subsequent jurisprudence of the Court (see for example the reference
to this passage in the case concerning the Frontier Dispute (Burkina
Fasol Republic of Mali) (LC.J. Reports 1986, p. 577, para. 46).

In Passage through the Great Belt (Finland v. Denmark) (LCI.
Reports 1991, p. 20, para. 35), this passage was cited and used for the
purpose of encouraging a settlement between the parties, although the
Court declined to issue provisional measures. The Court there observed
that “pending a decision of the Court on the merits, any negotiation
between the Parties with a view to achieving a direct and friendly settle-
ment is to be welcomed”.

The provisional measures were refused and just over a year later the
Court made an Order incorporating a message from the Agent of one of
the Parties, which referred to the Court’s earlier Order and informed the
Court that a settlement of the disputes between the Parties had been
attained. This was a practical illustration of the value of such an approach.

Apart from practical applications such as those cited above, this
approach to the Court’s role in aiding the peaceful settlement of disputes

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has eminent judicial support from a conceptual point of view. In his sepa-
rate opinion in the United States Diplomatic and Consular Staff in
Tehran case, Judge Lachs observed

“I can only repeat the deep-rooted conviction I have expressed on
other occasions, that, while the Court is not entitled to oblige parties
to enter into negotiations, its Judgment should where appropriate
encourage them to do so, in consonance with its role as an institu-
tion devoted to the cause of peaceful settlement.” (1. C.J. Reports
1980, p. 49.)

I recite these circumstances in order to substantiate the principle that
the Court can lend its good offices and encouragement towards the
settlement of a dispute by the Parties themselves. Such procedure also
has a proven value, as indicated above. This assumes great practical
significance especially in the context of a dispute involving the daily loss
of life where at the same time diplomatic initiatives are afoot for the settle-
ment of the dispute.

(c) Inherent Powers of the Court to Assist the Parties towards
Peaceful Settlement and Peace

When Article 41 of the Statute gave the Court power to indicate pro-
visional measures it did not do so to the exclusion of universal principles
relating to powers which are inherent in judicial proceedings. As a
learned writer on provisional measures has observed, regarding the indi-
cation by the Permanent Court in the Electricity Company of Sofia and
Bulgaria case (P.C.LJ., Series AlB, No. 79, p. 199),

“The last provision is thus presented by the Permanent Court as
an aspect of a universal principle of which the Statute is an appli-
cation, so it may be regarded either as a restatement of something
which in the Permanent Court’s view was inherent in judicial pro-
cedures, or as something which was implied in Article 41 of the
Statute.” (H. W. A. Thirlway, “The Indication of Provisional Meas-
ures by the International Court of Justice”, in R. Bernhard (ed.),
Interim Measures Indicated by International Courts, 1993, p. 13.)

Possessed as it is of such inherent jurisdiction, the Court can indeed go
further and indicate some guidelines relating to the applicable law, which
may provide a framework within which the Parties can negotiate. This
can be of assistance to both Parties, and was the mode resorted to in the
Gabüikovo-Nagymaros case. Disputes hitherto considered intractable can
be considerably assisted towards settlement in this fashion.

A recent case in which, for humanitarian reasons, the Court went
beyond the traditional framework of an advisory opinion was the Advi-

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sory Opinion concerning the Threat or Use of Nuclear Weapons (LCI.
Reports 1986, p. 226). In that Opinion the Court spoke of the obligation
of States to pursue and to conclude negotiations in good faith in regard
to nuclear disarmament (ibid., p. 264, para. 99) — advice which went
beyond the traditional scope of an advisory opinion regarding the legality
of such weapons. This the Court was clearly entitled to do as an organi-
zation functioning within the framework of the United Nations and pur-
suing the common aim of peace. Here again was a clear illustration of the
Court acting in its inherent jurisdiction in pursuit of the ideal of peace.

The case concerning the Gabëikovo-Nagymaros Project (.C.J. Reports
1997, p. 76) is indeed a recent example par excellence of this wider view
of the Court’s rule.

In that case the Court settled certain disputed questions of law that
were involved in the case as for example by holding that a Treaty of 1977
was still in force and governed the relationship between the Parties. But
within the legal guidelines laid down by the Court, it left it open to the
Parties to negotiate between themselves and indeed encouraged them to
do so. For example it encouraged the Parties to look afresh at the effects
on the environment of the power plant in question and in particular
encouraged them to find a satisfactory solution for the release of water
into the old bed of the Danube and its side-arms (ibid., para. 141). In
view of the fact that bilateral negotiations were to be held after the deliv-
ery of the Judgment it left (ibid, para. 143) it open to the Parties to agree
otherwise, suggested the restoration of a certain régime for the works on
the river (ibid., para. 144). It suggested the establishment of co-operative
administration of what remained of the Project as an indication of what
the Parties might do, suggesting certain possibilities that were open to
them (para. 150).

I may add that the fact that a particular method of assistance towards
peaceful settlement is not referred to or provided for in the Rules of
Court is no argument against resort to such a method, for this is part of
the inherent jurisdiction of the Court, following from the terms of the
United Nations Charter and the Court’s Statute, and the purposes of the
United Nations as stated in this composite of documents. Nowhere in the
Charter or Statute or indeed in the Rules of Court is such a procedure
prohibited or indicated to be inappropriate and indeed such helpfulness
towards the parties in achieving their own settlement is, as indicated
above, part of the inherent attributes of the judicial process as well as a
part of the jurisprudence of the Court.

I reinforce this further by observing that the International Court of
Justice, constituted as it is to embody the representation of the main
forms of civilization and of the principal legal systems of the world, is

* Statute of the Court, Art. 9.
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heir to the judicial traditions of many civilizations, and that the concept
of judicial assistance towards the peaceful resolution of disputes is heav-
ily embedded in these traditions. I note in particular that in the philoso-
phies of the East, as in the Buddhistic tradition, the peaceful resolution of
disputes lies at the heart of the judicial function as understood in those
cultures*. This is based inter alia on the rationale that peaceful resolution
averts the rancour and the lasting bitterness of victory and defeat, which
breed animosities against the winner and frustrations for the loser, and
lead eventually to violence, further disputes, escalating violence and
wars®. This teaching, which has particular relevance to the world of inter-
national relations, comes from one of the world’s major cultural tradi-
tions relating to peace, which can significantly enrich the jurisprudence of
this Court®.

For all these reasons I am of the view that the Court, drawing upon the
richness and variety of the powers available to it and in consequence of
its complementarity, in the cause of peaceful settlement, to all the organs
of the United Nations, should have issued provisional measures and that
such measures should have been so worded as to encourage negotiations
between the Parties and to provide some legal guidelines towards this
end.

CENTRALITY OF NOTIONS OF PEACE AND CONFLICT PREVENTION

In my dissenting opinions in the provisional measures requests in the
cases concerning Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom) (Libyan Arab Jamahir-
iva v. United States of America), 1 made the following observation:

“A great judge once observed that the laws are not silent amidst
the clash of arms. In our age we need also to assert that the laws are

4 See J. Wigmore, A Panorama of the World's Legal Systems, 1928, Vol. 2, pp. 489 et
seg.; K. N. Jayetilleke, “The Principles of International Law in Buddhist Doctrine”,
Recueil des cours (1967), Vol. 120, p. 447: L. P. N. Perera, Buddhism and Human Rights,
1991, pp. 40-41.

> See Dhammapada, verse 201: Kunäla Jätaka, The Jätaka, Vol. V, pp. 412-414. The
conceptual basis of this Buddhist stress on peaceful settlement is encapsulated in verse 201
of the Dhammapada:

“One who defeats others creates enemies for himself
One who is defeated by others feels sad and frustrated
One who defeats the inner need to defeat others remains happy and satisfied at all
times.”

6 See generally €. G. Weeramantry, “Some Buddhist Perspectives on International
Law”, in Boutros Boutros-Ghali; Amicorum Discipulorumque Liber, 1999, pp. 775, 804-
805.

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not powerless to prevent the clash of arms. The entire law of the
United Nations has been built up around the notion of peace and
the prevention of conflict. The Court, in an appropriate case, where
possible conflict threatens rights that are being litigated before it, is
not powerless to issue provisional measures conserving those rights
by restraining an escalation of the dispute and the possible resort to
force. That would be entirely within its mandate and in total con-
formity with the Purposes and Principles of the United Nations and
international law. Particularly when situations are tense, with danger
signals flashing all around, it seems that this Court should make a
positive response with such measures as are within its jurisdiction. If
the conservation of rights which are sub judice comes within the
jurisdiction of the Court, as I have no doubt it does, an order
restraining damage to those rights through conflict must also lie
within that province. If international law is to grow and serve the
cause of peace as it is meant to do, the Court cannot avoid that
responsibility in an appropriate case.” (1 C.J. Reports 1992, pp. 70
and 180-181.)

[ repeat those observations here with the added emphasis that in the
present case there is not merely a possible resort to force but an actual
and continuing use of force. In a world legal order based upon the pur-
suit of peace and peaceful settlement, the message that law can and
should be used for avoiding the use of force is one which reverberates
with special strength.

In situations where force is already being used there is always a par-
ticular danger of escalation, with resulting damage to the rights of both
patties.

I believe the responsibility lies very heavily upon the Court in such a
situation to take such steps as it can within its legal powers to halt the
continuance of violence and the escalation of the conflict. This case offers
the occasion par excellence for the Court so to act, in accordance with
the principles I have outlined earlier in this opinion.

PROVISIONAL MEASURES REQUIRED BY THE PRESENT SITUATION

While there are some elements of the Court’s Order with which I read-
ily agree, such as that the Parties should take care not to aggravate or
extend the dispute, I believe it does not go far enough to complete the
mission of the Court as an international court and more particularly as
the principal judicial organ of the United Nations and upper guardian of
the legal norms underpinning the structure of the international commu-
nity.

I believe the correct resolution of the legal problems presented to the
Court in this case would have required the use of a balanced formula

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designed to terminate as speedily as possible the use of force on either
side and the return of refugees to Kosovo. The Court’s power to act pro-
prio motu gives it the authority to take into consideration the situation
alleged to be occurring in Kosovo.

Without any finding whatsoever at this stage on any of the substantive
matters awaiting determination at the merits phase of the case, I believe
the Court would be entitled to draw the attention of the Applicant to the
need for the immediate cessation of all action by the security forces
affecting the civilian population in Kosovo as contemplated by resolution
1199 of 1998 of the Security Council. Likewise the Court would be
entitled to draw the attention of the Respondent to the requirements
of the United Nations Charter and the need, pending the fuller considera-
tion of the issues involved, for the cessation of the use of force within the
territory of the Federal Republic of Yugoslavia.

The attention of both Parties should also have been drawn to the rele-
vant provisions of the Universal Declaration of Human Rights and
related human rights instruments and to the importance of compliance
with them in all actions related to the present crisis.

It is essential to the balance of this formula that the rights of the Kos-
ovo Albanians and all who live in Kosovo to remain without let or hin-
drance in their homes and habitations should be strictly respected and the
rights of refugees from Kosovo and all displaced persons to return un-
hindered and resettle in their homes and habitations should likewise be
strictly respected and should be facilitated in terms of Security Council
resolution 1199 of 1998.

Such an indication would be incomplete without a recognition also of
the rights of the people of Kosovo and all returning refugees and dis-
placed persons to international safeguards, under the auspices of the
United Nations, for their continuing protection, and an indication of the
need for arrangements to be set in train immediately for the provision of
such safeguards.

In the Anglo-franian Oil Co. case (Interim Protection, Order of 5 July
1951, L CJ. Reports 1951, p. 89), the Court in issuing provisional meas-
ures went further than merely indicating that parties should not take
action prejudicing the rights of either party or extending or aggravating
the dispute but laid down arrangements for a provisional régime for the
oil industry in Iran. It specified how a board of supervision should be
established and what its duties should be. In the present case, in my view,
it would have been within the competence of the Court, if it had issued
provisional measures, to make some specific provisions relating to the
return of the refugees and their continuing protection after their return. It
is not for the Court to set out these details but for the Parties to work out
an acceptable arrangement to this end, and the Parties should, in my
view, have been encouraged to negotiate the necessary working arrange-

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ments towards achieving this objective. As Sir Hersch Lauterpacht has
observed (The Development of International Law by the International
Court, 1982, p. 256) it is within the province of the Court, while issuing
provisional measures, to indicate the substance of those measures. Atten-
tion could in this regard have been drawn to the relevant provisions of
Security Council resolutions relating to this matter.

The Court would have jurisdiction to direct both Parties to take all
measures necessary to prevent an aggravation of the situation and for the
restoration and maintenance of international peace and security in the
region.

The Court would also have significantly advanced the complementarity
of its judicial role to that of all the other organs of the United Nations in
seeking the peaceful settlement of disputes if it had in the concluding part
of such an order also indicated that the measures prescribed are guide-
lines laid down within the law applicable and that the Parties are urged to
negotiate towards the immediate cessation of all uses of force in all parts
of Yugoslavia and that the guidelines are interlinked and to be of simul-
taneous application.

The concluding part of such an order could also indicate that the meas-
ures prescribed are interlinked and to be given simultaneous application.

The Court was entitled further to encourage the Parties to pursue all
efforts through diplomatic channels and otherwise to achieve a speedy
settlement of the dispute within the legal guidelines indicated above. Fur-
nishing such an indication would be well within the jurisprudence of this
Court and the traditional attributes of the judicial process. The good
offices of the Court would continue to be available to facilitate this pro-
cess.

Having outlined these areas of dissent J associate myself completely
with the reference in the Court’s Order to the deep concern felt by the
Court with the human tragedy, the heavy loss of life and the suffering in
Kosovo which form the background to this dispute and with the continu-
ing loss of life and human suffering in all parts of Yugoslavia. 1 also
respectfully endorse the Court’s observation that the use of force in
Yugoslavia raises under the present circumstances very serious issues of
international law.

I express my concern, in common with the Court that all parties
appearing before the Court should act in conformity with their obliga-
tions under international law including humanitarian law.

In common with the Court I am mindful of the Court’s own responsi-
bilities for the maintenance of peace and security. I venture to observe
here that there is an intimate conceptual linkage between the notions of
peace and international law. Peace is not merely a moral idea but a legal

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one. In Lauterpacht’s felicitous words (Lauterpacht, The Function of
Law in the International Community, op. cit., p. 438), “Peace is pre-emi-
nently a legal postulate. Juridically it is a metaphor for the unity of the
legal system.” The Court’s responsibilities in relation to peace are thus of
a particularly onerous nature.

It is in regard to this last aspect that I feel the Court should have gone
further than it has done and issued provisional measures on the lines
indicated above.

It is my view that even if the Court did not order provisional measures
it was within its power to have issued an appropriate communication to
both Parties on the lines indicated above — a procedure envisaged by
Judge Lachs in his separate opinion in the Aegean Sea Continental Shelf
case. Judge Lachs there observed

“The Court does not, to my way of thinking, arrogate any powers
excluded by its Statute when, otherwise than by adjudication, it
assists, facilitates or contributes to the peaceful settlement of dis-
putes between States, if offered the occasion at any stage of the pro-
ceedings.

While it would not be proper specifically to advise Greece and
Turkey ‘as to the various courses’ they should follow (C.J. Reports
1951, p. 83), the Court, acting proprio motu, should, even while not
indicating interim measures, have laid greater stress on, in particu-
lar, the need for restraint on the part of both States and the possible
consequences of any deterioration or extension of the conflict. In
going further than it has, the Court, with all the weight of its judicial
office, could have made its own constructive, albeit indirect, contri-
bution, helping to pave the way to the friendly resolution of a
dangerous dispute. This would have been consonant with a basic
role of the Court within the international community.” (Aegean Sea
Continental Shelf, Interim Protection, Order of 11 September 1976,
ILC J. Reports 1976, p. 20.)

My views as stated above are based on a conception of the judicial
function which has been recognized in the jurisprudence of the Court and
indeed in the time-honoured conception of the judicial function in the
world’s main forms of civilization and principal legal systems as more
fully explained earlier in this opinion.

This role requires the Court to do all within its power in accordance
with the law for the peaceful settlement of disputes and for assistance to
and guidance of that process. This dovetails into the principle of peaceful
resolution of disputes already referred to as a cornerstone of the United
Nations Charter and the Statute of the International Court of Justice.

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Needless to say, all that has been said in this opinion in no way
involves any views whatsoever upon the merits (see Land and Maritime
Boundary between Cameroon and Nigeria, Provisional Measures, Order
of 15 March 1996, LC.J. Reports 1996 (1), p. 23, paras. 43, 44) and

“the indication of such measures in no way prejudges the question of
the jurisdiction of the Court to deal with the merits of the case and
leaves unaffected the right of the Respondent to submit arguments
against such jurisdiction” (Anglo-Iranian Oil Co., Interim Protec-
tion, Order of 5 July 1951, LCJ. Reports 1951, p. 93).

*
* *

Within these limitations the Court would then have played a positive
role in strengthening and stabilizing the international rule of law through

the exercise of the judicial function — a role for which, of all the organs
of the United Nations, the Court alone was pre-eminently designed.

(Signed) Christopher G. WEERAMANTRY.

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