COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A LA LICEITE
DE L’EMPLOI DE LA FORCE

(YOUGOSLAVIE c. PAYS-BAS)

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

ORDONNANCE DU 2 JUIN 1999

1999

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. NETHERLANDS)

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

ORDER OF 2 JUNE 1999
Mode officiel de citation:

Licéité de l'emploi de la force (Yougoslavie c. Pays-Bas),
mesures conservatoires, ordonnance du 2 juin 1999,
CIJ. Recueil 1999, p. 542

Official citation:

Legality of Use of Force (Yugoslavia v. Netherlands),
Provisional Measures, Order of 2 June 1999,
1 C.J. Reports 1999, p. 542

N° de vente:
ISSN 0074-4441 Sales number 732

ISBN 92-1-070800-8

2 JUIN 1999
ORDONNANCE

LICEITE DE L'EMPLOI DE LA FORCE
(YOUGOSLAVIE c. PAYS-BAS)

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

LEGALITY OF USE OF FORCE
(YUGOSLAVIA v. NETHERLANDS)

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

2 JUNE 1999

ORDER
542

INTERNATIONAL COURT OF JUSTICE

YEAR 1999

2 June 1999

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. NETHERLANDS)

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

ORDER

Present: Vice-President WEERAMANTRY, Acting President; President
SCHWEBEL; Judges OpA, BEDJAOUI, GUILLAUME, RANJEVA,
HERCZEGH, Sui, FLEISCHHAUER, KOROMA, VERESHCHETIN,
HIGGINS, PARRA-ARANGUREN, KOOIMANS; Judge ad hoc
KRECA; Registrar VALENCIA-OSPINA.

The International Court of Justice,

Composed as above,
After deliberation,

Having regard to Articles 41 and 48 of the Statute of the Court and to
Articles 73 and 74 of the Rules of Court,

Having regard to the Application by the Federal Republic of Yugo-
slavia (hereinafter “Yugoslavia”) filed in the Registry of the Court on
29 April 1999, instituting proceedings against the Kingdom of the
Netherlands (hereinafter “the Netherlands”) “for violation of the obli-
gation not to use force”,
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 543

Makes the following Order:

1. Whereas in that Application Yugoslavia defines the subject of the
dispute as follows:

“The subject-matter of the dispute are acts of the Kingdom of the
Netherlands by which it has violated its international obligation
banning the use of force against another State, the obligation not to
intervene in the internal affairs of another State, the obligation not
to violate the sovereignty of another State, the obligation to protect
the civilian population and civilian objects in wartime, the obligation
to protect the environment, the obligation relating to free navigation
on international rivers, the obligation regarding fundamental human
rights and freedoms, the obligation not to use prohibited weapons,
the obligation not to deliberately inflict conditions of life calculated
to cause the physical destruction of a national group”;

2. Whereas in the said Application Yugoslavia refers, as a basis for the juris-
diction 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 (hereinafter the “Genocide Convention”);

3. Whereas in its Application Yugoslavia states that the claims sub-
mitted by it to the Court are based upon the following facts:

“The Government of the Kingdom of the Netherlands, together
with the Governments of other Member States of NATO, took part
in the acts of use of force against the Federal Republic of Yugosla-
via by taking part in bombing targets in the Federal Republic of
Yugoslavia. In bombing the Federal Republic of Yugoslavia mili-
tary and civilian targets were attacked. Great number of people were
killed, including a great many civilians. Residential houses came
under attack. Numerous dwellings were destroyed. Enormous dam-
age was caused to schools, hospitals, radio and television stations,
cultural and health institutions and to places of worship. A large
number of bridges, roads and railway lines were destroyed. Attacks
on oil refineries and chemical plants have had serious environmental
effects on cities, towns and villages in the Federal Republic of Yugo-
slavia. The use of weapons containing depleted uranium is having
far-reaching consequences for human life. The above-mentioned acts
are deliberately creating conditions calculated at the physical destruc-
tion of an ethnic group, in whole or in part. The Government of the
Kingdom of the Netherlands is taking part in the training, arming,
financing, equipping and supplying the so-called ‘Kosovo Liberation

5»,

Army’”;
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 544

and whereas it further states that the said claims are based on the follow-
ing legal grounds:

“The above acts of the Netherlands Government represent a gross
violation of the obligation not to use force against another State. By
financing, arming, training and equipping the so-called ‘Kosovo Lib-
eration Army’, support is given to terrorist groups and the secession-
ist movement in the territory of the Federal Republic of Yugoslavia
in breach of the obligation not to intervene in the internal affairs of
another State. In addition, the provisions of the Geneva Convention
of 1949 and of the Additional Protocol No. 1 of 1977 on the protec-
tion of civilians and civilian objects in time of war have been vio-
lated. The obligation to protect the environment has also been
breached. The destruction of bridges on the Danube is in contraven-
tion of the provisions of Article 1 of the 1948 Convention on free
navigation on the Danube. The provisions of the International Cov-
enant on Civil and Political Rights and of the International Cov-
enant on Economic, Social and Cultural Rights of 1966 have also
been breached. Furthermore, the obligation contained in the Con-
vention on the Prevention and Punishment of the Crime of Genocide
not to impose deliberately on a national group conditions of life cal-
culated to bring about the physical destruction of the group has been
breached. Furthermore, the activities in which the Kingdom of the
Netherlands is taking part are contrary to Article 53, paragraph |, of
the Charter of the United Nations”;

4, Whereas the claims of Yugoslavia are formulated as follows in the
Application:

“The Government of the Federal Republic of Yugoslavia requests
the International Court of Justice to adjudge and declare:

— by taking part in the bombing of the territory of the Federal
Republic of Yugoslavia, the Kingdom of the Netherlands has
acted against the Federal Republic of Yugoslavia in breach of its
obligation not to use force against another State;

— by taking part in the training, arming, financing, equipping and
supplying terrorist groups, i.e. the so-called ‘Kosovo Liberation
Army’, the Kingdom of the Netherlands has acted against the
Federal Republic of Yugoslavia in breach of its obligation not to
intervene in the affairs of another State;

— by taking part in attacks on civilian targets, the Kingdom of the
Netherlands has acted against the Federal Republic of Yugosla-
via in breach of its obligation to spare the civilian population,
civilians and civilian objects;
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 545

by taking part in destroying or damaging monasteries, monu-
ments of culture, the Kingdom of the Netherlands has acted
against the Federal Republic of Yugoslavia in breach of its
obligation not to commit any act of hostility directed against
historical monuments, works of art or places of worship which
constitute cultural or spiritual heritage of people;

by taking part in the use of cluster bombs, the Kingdom of the
Netherlands has acted against the Federal Republic of Yugo-
slavia in breach of its obligation not to use prohibited weapons,
i.e. weapons calculated to cause unnecessary suffering;

by taking part in the bombing of oil refineries and chemical
plants, the Kingdom of the Netherlands has acted against the
Federal Republic of Yugoslavia in breach of its obligation not to
cause considerable environmental damage;

by taking part in the use of weapons containing depleted ura-
nium, the Kingdom of the Netherlands has acted against the
Federal Republic of Yugoslavia in breach of its obligation not to
use prohibited weapons and not to cause far-reaching health and
environmental damage;

by taking part in killing civilians, destroying enterprises, commu-
nications, health and cultural institutions, the Kingdom of the
Netherlands has acted against the Federal Republic of Yugosla-
via in breach of its obligation to respect the right to life, the right
to work, the right to information, the right to health care as well
as other basic human rights;

by taking part in destroying bridges on international rivers, the
Kingdom of the Netherlands has acted against the Federal Repub-
lic of Yugoslavia in breach of its obligation to respect freedom of
navigation on international rivers;

by taking part in activities listed above, and in particular by
causing enormous environmental damage and by using depleted
uranium, the Kingdom of the Netherlands has acted against the
Federal Republic of Yugoslavia in breach of its obligation not to
deliberately inflict on a national group conditions of life calcu-
lated to bring about its physical destruction, in whole or in part;

the Kingdom of the Netherlands is responsible for the violation
of the above international obligations;

the Kingdom of the Netherlands is obliged to stop immediately
the violation of the above obligations vis-a-vis the Federal Repub-
lic of Yugoslavia;

the Kingdom of the Netherlands is obliged to provide compensa-

7
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 546

tion for the damage done to the Federal Republic of Yugoslavia
and to its citizens and juridical persons” ;

and whereas, at the end of its Application, Yugoslavia reserves the right
to amend and supplement it;

5. Whereas on 29 April 1999, immediately after filing its Application,
Yugoslavia also submitted a request for the indication of provisional
measures pursuant to Article 73 of the Rules of Court; and whereas that
request was accompanied by a volume of photographic annexes pro-
duced as “evidence”;

6. Whereas, in support of its request for the indication of provisional
measures, Yugoslavia contends inter alia that, since the onset of the
bombing of its territory, and as a result thereof, about 1,000 civilians,
including 19 children, have been killed and more than 4,500 have sus-
tained serious injuries; that the lives of three million children are endan-
gered; that hundreds of thousands of citizens have been exposed to poi-
sonous gases; that about one million citizens are short of water supply;
that about 500,000 workers have become jobless; that two million citi-
zens have no means of livelihood and are unable to ensure minimum
means of sustenance; and that the road and railway network has suffered
extensive destruction; whereas, in its request for the indication of provi-
sional measures, Yugoslavia also lists the targets alleged to have come
under attack in the air strikes and describes in detail the damage alleged
to have been inflicted upon them (bridges, railway lines and stations,
roads and means of transport, airports, industry and trade, refineries and
warehouses storing liquid raw materials and chemicals, agriculture, hos-
pitals and health care centres, schools, public buildings and housing
facilities, infrastructure, telecommunications, cultural-historical monu-
ments and religious shrines); and whereas Yugoslavia concludes from
this that:

“The acts described above caused death, physical and mental
harm to the population of the Federal Republic of Yugoslavia; huge
devastation; heavy pollution of the environment, so that the Yugo-
slav population is deliberately imposed conditions of life calculated
to bring about physical destruction of the group, in whole or in
part”;

7. Whereas, at the end of its request for the indication of provisional
measures, Yugoslavia states that

“If the proposed measure were not to be adopted, there will be
new losses of human life, further physical and mental harm inflicted
on the population of the FR of Yugoslavia, further destruction of
civilian targets, heavy environmental pollution and further physical
destruction of the people of Yugoslavia”;
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 547

and whereas, while reserving the right to amend and supplement its
request, Yugoslavia requests the Court to indicate the following measure:

“The Kingdom of the Netherlands shall cease immediately its acts
of use of force and shall refrain from any act of threat or use of force
against the Federal Republic of Yugoslavia”;

8. Whereas the request for the indication of provisional measures was
accompanied by a letter from the Agent of Yugoslavia, addressed to the
President and Members of the Court, which read as follows:

“T have the honour to bring to the attention of the Court the latest
bombing of the central area of the town of Surdulica on 27 April
1999 at noon resulting in losses of lives of civilians, most of whom
were children and women, and to remind of killings of peoples in
Kursumlija, Aleksinac and Cuprija, as well as bombing of a refugee
convoy and the Radio and Television of Serbia, just to mention
some of the well-known atrocities. Therefore, I would like to caution
the Court that there is a highest probability of further civilian and
military casualties.

Considering the power conferred upon the Court by Article 75,
paragraph 1, of the Rules of Court and having in mind the greatest
urgency caused by the circumstances described in the Requests for
provisional measure of protection ] kindly ask the Court to decide
on the submitted Requests proprio motu or to fix a date for a hearing
at earliest possible time”;

9. Whereas on 29 April 1999, the day on which the Application and
the request for the indication of provisional measures were filed in the
Registry, the Registrar sent to the Netherlands Government signed copies
of the Application and of the request, in accordance with Article 38, para-
graph 4, and Article 73, paragraph 2, of the Rules of Court; and whereas
he also sent to that Government copies of the documents accompany-
ing the Application and the request for the indication of provisional
measures;

10. Whereas on 29 April 1999 the Registrar informed the Parties that
the Court had decided, pursuant to Article 74, paragraph 3, of the Rules
of Court, to hold hearings on 10 and 11 May 1999, where they would be
able to present their observations on the request for the indication of pro-
visional measures;

11. Whereas, pending the notification under Article 40, paragraph 3,
of the Statute and Article 42 of the Rules of Court, by transmittal of the
printed bilingual text of the Application to the Members of the United
Nations and other States entitled to appear before the Court, the Regis-
trar on 29 April 1999 informed those States of the filing of the Applica-
tion and of its subject-matter, and of the filing of the request for the
indication of provisional measures;

12. Whereas, since the Court includes upon the bench no judge of

9
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 548

Yugoslav nationality, the Yugoslav Government has availed itself of the
provisions of Article 31 of the Statute of the Court to choose Mr.
Milenko Kreéa to sit as judge ad hoc in the case; and whereas no objec-
tion to that choice was raised within the time-limit fixed for the purpose
pursuant to Article 35, paragraph 3, of the Rules of Court;

13. Whereas, at the public hearings held between 10 and 12 May 1999,
oral observations on the request for the indication of provisional meas-
ures were presented by the Parties:

On behalf of Yugoslavia:

Mr. Rodoljub Etinski, Agent,
Mr. lan Brownlie,

Mr. Paul J. I. M. de Waart,
Mr. Eric Suy,

Mr. Miodrag Mitié,

Mr. Olivier Corten;

On behalf of the Netherlands:
Mr. Johan Lammers, Agent,

14. Whereas, by letter of 12 May 1999, the Agent of Yugoslavia sub-
mitted to the Court a “Supplement to the Application” of his Govern-
ment, which read as follows:

“Using the right reserved by the Application of the Federal Repub-
lic of Yugoslavia against the Kingdom of the Netherlands for viola-
tion of the obligation not to use force, filed to the International
Court of Justice on 29 April 1999, I supplement its part related to
the grounds of jurisdiction of the Court, which should now read as
follows:

‘The Government of the Federal Republic of Yugoslavia invokes
Article 36, paragraph 2, of the Statute of the International Court
of Justice as well as Article IX of the Convention on the Preven-
tion and Punishment of the Crime of Genocide and Article 4 of
the Treaty of Judicial Settlement, Arbitration and Conciliation
between the Kingdom of Yugoslavia and the Netherlands, signed
at The Hague on 11 March 1931 and in force since 2 April 1932’”;

whereas, at the start of the afternoon session of the hearing of 12 May
1999, the Vice-President of the Court, acting President, made the follow-
ing statement:

“In the light of the new bases of jurisdiction invoked today by
Yugoslavia . . . the Court wishes to inform the Parties that it will
give its consideration to any observations of the Netherlands . . . in
regard to the admissibility of the additional grounds invoked”;

and whereas at the said afternoon session of 12 May 1999 the Nether-
lands made various observations on the admissibility of the Yugoslav

10
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 549

“Supplement to the Application”, and on the new basis of jurisdiction
invoked therein;

15. Whereas, in this phase of the proceedings, the Parties presented the
following submissions:

On behalf of Yugoslavia:

“[The Court [is asked] to indicate the following provisional
measure:

[T]he Kingdom of the Netherlands . . . shall cease immediately the
acts of use of force and shall refrain from any act of threat or use of
force against the Federal Republic of Yugoslavia” ;

On behalf of the Netherlands:

“The Netherlands [requests] the Court [to] deny the request for the
indication of a provisional measure made by the Federal Republic of
Yugoslavia” ;

x * x

16. Whereas the Court is deeply concerned with the human tragedy,
the loss of life, and the enormous suffering in Kosovo which form the
background of the present dispute, and with the continuing loss of life
and human suffering in all parts of Yugoslavia;

17. Whereas the Court is profoundly concerned with the use of force
in Yugoslavia; whereas under the present circumstances such use raises
very serious issues of international law;

18. Whereas the Court is mindful of the purposes and principles of the
United Nations Charter and of its own responsibilities in the mainte-
nance of peace and security under the Charter and the Statute of the
Court;

19. Whereas the Court deems it necessary to emphasize that all parties
appearing before it must act in conformity with their obligations under
the United Nations Charter and other rules of international law, includ-
ing humanitarian law;

x * x

20. Whereas the Court, under its Statute, does not automatically have
jurisdiction over legal disputes between States parties to that Statute or
between other States to whom access to the Court has been granted;
whereas the Court has repeatedly stated “that one of the fundamental
principles of its Statute is that it cannot decide a dispute between States
without the consent of those States to its jurisdiction” (East Timor ( Por-
tugal v. Australia), Judgment, I.C.J. Reports 1995, p. 101, para. 26); and
whereas the Court can therefore exercise jurisdiction only between States

11
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 550

parties to a dispute who not only have access to the Court but also have
accepted the jurisdiction of the Court, either in general form or for the
individual dispute concerned;

21. Whereas on a request for provisional measures the Court need not,
before deciding whether or not to indicate them, finally satisfy itself that
it has jurisdiction on the merits of the case, yet it ought not to indicate
such measures unless the provisions invoked by the applicant appear,
prima facie, to afford a basis on which the jurisdiction of the Court might
be established ;

* *

22. Whereas in its Application Yugoslavia claims, in the first place, to
found the jurisdiction of the Court upon Article 36, paragraph 2, of the
Statute; whereas each of the two Parties has made a declaration recog-
nizing the compulsory jurisdiction of the Court pursuant to that provi-
sion; and whereas Yugoslavia’s declaration was deposited with the
Secretary-General of the United Nations on 26 April 1999, and that of
the Netherlands on 1 August 1956;

23. Whereas Yugoslavia’s declaration is formulated as follows:

“T hereby declare that the Government of the Federal Republic of
Yugoslavia recognizes, in accordance with Article 36, paragraph 2,
of the Statute of the International Court of Justice, as compulsory
ipso facto and without special agreement, in relation to any other
State accepting the same obligation, that is on condition of recipro-
city, the jurisdiction of the said Court in all disputes arising or which
may arise after the signature of the present Declaration, with regard
to the situations or facts subsequent to this signature, except in cases
where the parties have agreed or shall agree to have recourse to
another procedure or to another method of pacific settlement. The
present Declaration does not apply to disputes relating to questions
which, under international law, fall exclusively within the jurisdic-
tion of the Federal Republic of Yugoslavia, as well as to territorial
disputes.

The aforesaid obligation is accepted until such time as notice may
be given to terminate the acceptance”;

and whereas the declaration of the Netherlands reads as follows:

“I hereby declare that the Government of the Kingdom of the
Netherlands recognizes, in accordance with Article 36, paragraph 2,
of the Statute of the International Court of Justice, with effect from
6 August 1956, as compulsory ipso facto and without special agree-
ment, in relation to any other State accepting the same obligation,
that is on condition of reciprocity, the jurisdiction of the said Court
in all disputes arising or which may arise after 5 August 1921, with

12
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 551

the exception of disputes in respect of which the parties, excluding
the jurisdiction of the International Court of Justice, may have
agreed to have recourse to some other method of pacific settlement.

The aforesaid obligation is accepted for a period of five years and
will be renewed by tacit agreement for additional periods of five
years, unless notice is given, not less than six months before the
expiry of any such period, that the Government of the Kingdom of
the Netherlands does not wish to renew it.

The acceptance of the jurisdiction of the Court founded on the
declaration of 5 August 1946 is terminated with effect from 6 August
1956”.

24. Whereas the Netherlands contends that the Court lacks jurisdic-
tion in the case on the basis of Article 36, paragraph 2, of the Statute of
the Court; whereas it points out that Yugoslavia’s declaration limits
ratione temporis its acceptance of the compulsory jurisdiction of the
Court to “disputes arising or which may arise after the signature of the
present Declaration, with regard to the situations or facts subsequent to
this signature”; and whereas the Netherlands maintains that the dispute
between Yugoslavia and the Netherlands clearly arose before the date of
signature of the Yugoslav declaration and therefore falis outside the
scope of the jurisdiction of the Court;

25. Whereas, according to Yugoslavia, “[t]he issue before the Court is
that of interpreting a unilateral declaration of acceptance of its jurisdic-
tion, and thus of ascertaining the meaning of the declaration on the basis
of the intention of its author”; whereas Yugoslavia contends that the text
of its declaration “allows all disputes effectively arising after 25 April
1999 to be taken into account”; whereas, referring to bombing attacks
carried out by NATO member States on 28 April, | May, 7 May and
8 May 1999, Yugoslavia states that, “[i]n each of these cases, which are
only examples, [it] denounced the flagrant violations of international law
of which it considered itself to have been the victim”, and the “NATO
member States denied having violated any obligation under international
law”; whereas Yugoslavia asserts that “each of these events therefore
gave rise to ‘a disagreement on a point of law or fact’, a disagreement . . .
the terms of which depend in each case on the specific features of the
attack” in question; whereas Yugoslavia accordingly concludes that,
since these events constitute “instantaneous wrongful acts”, there exist “a
number of separate disputes which have arisen” between the Parties
“since 25 April relating to events subsequent to that date”; and whereas
Yugoslavia argues from this that “[t]here is no reason to exclude prima
facie the Court’s jurisdiction over disputes having effectively arisen after
25 April, as provided in the text of the declaration”; and whereas Yugo-
slavia adds that to exclude such disputes from the jurisdiction of the
Court “would run entirely counter to the manifest and clear intention of
Yugoslavia” to entrust the Court with the resolution of those disputes;

13
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 552

26. Whereas Yugoslavia has accepted the Court’s jurisdiction ratione
temporis in respect only, on the one hand, of disputes arising or which
may arise after the signature of its declaration and, on the other hand, of
those concerning situations or facts subsequent to that signature (cf.
Right of Passage over Indian Territory, Merits, Judgment, L C.J. Reports
1960, p. 34); whereas, in order to determine whether the Court has juris-
diction in the case, it is sufficient to decide whether, in terms of the text of
the declaration, the dispute brought before the Court “arose” before or
after 25 April 1999, the date on which the declaration was signed;

27. Whereas Yugoslavia’s Application is entitled “Application of the
Federal Republic of Yugoslavia against the Kingdom of the Netherlands
for Violation of the Obligation Not to Use Force”; whereas in the Appli-
cation the “subject of the dispute” (emphasis added) is described in gen-
eral terms (see paragraph | above): but whereas it can be seen both from
the statement of “facts upon which the claim is based” and from the
manner in which the “claims” themselves are formulated (see para-
graphs 3 and 4 above) that the Application is directed, in essence, against
the “bombing of the territory of the Federal Republic of Yugoslavia”, to
which the Court is asked to put an end;

28. Whereas it is an established fact that the bombings in question
began on 24 March 1999 and have been conducted continuously over a
period extending beyond 25 April 1999; and whereas the Court has no
doubt, in the light, inter alia, of the discussions at the Security Council
meetings of 24 and 26 March 1999 (S/PV.3988 and 3989), that a “legal
dispute” (East Timor (Portugal v. Australia), LC.J. Reports 1995,
p. 100, para. 22) “arose” between Yugoslavia and the Respondent, as it
did also with the other NATO member States, well before 25 April 1999
concerning the legality of those bombings as such, taken as a whole;

29. Whereas the fact that the bombings have continued after 25 April
1999 and that the dispute concerning them has persisted since that date is
not such as to alter the date on which the dispute arose; whereas each
individual air attack could not have given rise to a separate subsequent
dispute; and whereas, at this stage of the proceedings, Yugoslavia has
not established that new disputes, distinct from the initial one, have
arisen between the Parties since 25 April 1999 in respect of subsequent
situations or facts attributable to the Netherlands;

30. Whereas, as the Court recalled in its Judgment of 4 December
1998 in the case concerning Fisheries Jurisdiction (Spain v. Canada),

“It is for each State, in formulating its declaration, to decide upon
the limits it places upon its acceptance of the jurisdiction of the
Court: ‘[tJhis jurisdiction only exists within the limits within which
it has been accepted’ (Phosphates in Morocco, Judgment, 1938,
P.CLJ. Series AIB, No. 74, p. 23)" (LCJ. Reports 1998, p. 453,
para. 44);

and whereas, as the Permanent Court held in its Judgment of 14 June

14
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) $53

1938 in the Phosphates in Morocco case (Preliminary Objections), “it is
recognized that, as a consequence of the condition of reciprocity stipu-
lated in paragraph 2 of Article 36 of the Statute of the Court”, any limi-
tation ratione temporis attached by one of the Parties to its declaration of
acceptance of the Court’s jurisdiction “holds good as between the Parties”
(Phosphates in Morocco, Judgment, 1938, P.C.L.J., Series AlB, No. 74,
p. 10); whereas, moreover, as the present Court noted in its Judgment of
11 June 1988 in the case concerning the Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria), “[a]s early as
1952, it held in the case concerning Anglo-Iranian Oil Co. that, when dec-
larations are made on condition of reciprocity, ‘jurisdiction is conferred
on the Court only to the extent to which the two Declarations coincide in
conferring it’ (C.J. Reports 1952, p. 103)” (LC.J. Reports 1998, p. 298,
para. 43); and whereas it follows from the foregoing that the declarations
made by the Parties under Article 36, paragraph 2, of the Statute do not
constitute a basis on which the jurisdiction of the Court could prima facie
be founded in this case;

*

31. Whereas, referring to United Nations Security Council resolutions
757 (1992) of 30 May 1992 and 777 (1992) of 19 September 1992, and to
United Nations General Assembly resolutions 47/1 of 22 September 1992
and 48/88 of 20 December 1993, the Netherlands also contends that the
Court has no jurisdiction in the case, even prima facie, on the basis of
Article 36, paragraph 2, of the Statute, because Yugoslavia is neither a
Member of the United Nations nor a party to the Statute of the Court,
and could not, therefore, validly make the declaration provided for in Ar-
ticle 36, paragraph 2; and whereas the Netherlands further contends that
Yugoslavia has not satisfied the conditions laid out in Security Council
resolution 9 of 15 October 1946 for acceptance of the Court’s jurisdiction
by a State that is not a party to the Statute;

32. Whereas Yugoslavia, referring to the position of the Secretariat, as
expressed in a letter dated 29 September 1992 from the Legal Counsel of
the Organization (doc. A/47/485), and to the latter’s subsequent practice,
contends for its part that General Assembly resolution 47/1 “[neither] ter-
minate[d] nor suspend[ed] Yugoslavia’s membership in the Organiza-
tion”, and that the said resolution did not take away from Yugoslavia
“lits] right to participate in the work of organs other than Assembly
bodies” ;

33. Whereas, in view of its finding in paragraph 30 above, the Court
need not consider this question for the purpose of deciding whether or
not it can indicate provisional measures in the present case;

15
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 554

34. Whereas in its Application Yugoslavia claims, in the second place,
to found the jurisdiction of the Court on Article IX of the Genocide Con-
vention, which provides:

“Disputes between the Contracting Parties relating to the interpre-
tation, application or fulfilment of the present Convention, including
those relating to the responsibility of a State for genocide or for any
of the other acts enumerated in article III, shall be submitted to the
International Court of Justice at the request of any of the parties to
the dispute”;

and whereas in its Application Yugoslavia states that the subject of the
dispute concerns inter alia “acts of the Kingdom of the Netherlands by
which it has violated its international obligation . . . not to deliberately
inflict conditions of life calculated to cause the physical destruction of a
national group”; whereas, in describing the facts on which the Applica-
tion is based, Yugoslavia states: “The above-mentioned acts are deliber-
ately creating conditions calculated at the physical destruction of an eth-
nic group, in whole or in part”; whereas, in its statement of the legal
grounds on which the Application is based, Yugoslavia contends that
“the obligation . . . not to impose deliberately on a national group con-
ditions of life calculated to bring about the physical destruction of the
group has been breached”; and whereas one of the claims on the merits
set out in the Application is formulated as follows:

“by taking part in activities listed above, and in particular by caus-
ing enormous environmental damage and by using depleted ura-
nium, the Kingdom of the Netherlands has acted against the Federal
Republic of Yugoslavia in breach of its obligation not to deliberately
inflict on a national group conditions of life calculated to bring
about its physical destruction, in whole or in part”;

35. Whereas Yugoslavia contends moreover that the sustained and
intensive bombing of the whole of its territory, including the most heavily
populated areas, constitutes “a serious violation of Article II of the
Genocide Convention”; whereas it argues that “the pollution of soil, air
and water, destroying the economy of the country, contaminating the
environment with depleted uranium, inflicts conditions of life on the
Yugoslav nation calculated to bring about its physical destruction”;
whereas it asserts that it is the Yugoslav nation as a whole and as such
that is targeted; and whereas it stresses that the use of certain weapons
whose long-term hazards to health and the environment are already
known, and the destruction of the largest part of the country’s power
supply system, with catastrophic consequences of which the Respondent
must be aware, “impl[y] the intent to destroy, in whole or in part, the
Yugoslav national group as such;

36. Whereas for its part the Netherlands contends that the Court

16
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 555

could have prima facie jurisdiction on the basis of Article IX of the Con-
vention, if the party invoking such jurisdiction were in a position to pro-
duce “at least some evidence that a question relating to the interpretation,
application or fulfilment of the 1948 Genocide Convention has arisen”;
whereas according to the Netherlands, Yugoslavia’s Application fails to
refer to the conditions that form the core of the crime of genocide under
the Convention, namely the “intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such”, and whereas, in the
view of the Netherlands, the Court accordingly lacks jurisdiction ratione
materiae on the basis of Article IX;

37. Whereas it is not disputed that both Yugoslavia and the Nether-
lands are parties to the Genocide Convention without reservation; and
whereas Article IX of the Convention accordingly appears to constitute a
basis on which the jurisdiction of the Court might be founded to the
extent that the subject-matter of the dispute relates to “the interpretation,
application or fulfilment” of the Convention, including disputes “relating
to the responsibility of a state for genocide or for any of the other acts
enumerated in article II” of the said Convention;

38. Whereas, in order to determine, even prima facie, whether a dis-
pute within the meaning of Article IX of the Genocide Convention exists,
the Court cannot limit itself to noting that one of the Parties maintains
that the Convention applies, while the other denies it; and whereas in the
present case the Court must ascertain whether the breaches of the Con-
vention alleged by Yugoslavia are capable of falling within the provisions
of that instrument and whether, as a consequence, the dispute is one
which the Court has jurisdiction ratione materiae to entertain pursuant
to Article IX (cf. Oil Platforms (Islamic Republic of Iran v. United States
of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II),
p. 810, para. 16);

39. Whereas the definition of genocide set out in Article II of the
Genocide Convention reads as follows:

“In the present Convention, genocide means any of the following
acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b} Causing serious bodily or mental harm to members of the
group,

(c) Deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group”;

40. Whereas it appears to the Court, from this definition, “that [the]
essential characteristic [of genocide] is the intended destruction of ‘a
national, ethnical, racial or religious group’” (Application of the Conven-
tion on the Prevention and Punishment of the Crime of Genocide, Provi-

17
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 556

sional Measures, Order of 13 September 1993, I.C.J. Reports 1993,
p. 345, para. 42); whereas the threat or use of force against a State can-
not in itself constitute an act of genocide within the meaning of Article II
of the Genocide Convention; and whereas, in the opinion of the Court, it
does not appear at the present stage of the proceedings that the bombings
which form the subject of the Yugoslav Application “indeed entail the
element of intent, towards a group as such, required by the provision
quoted above” (Legality of the Threat or Use of Nuclear Weapons, Advi-
sory Opinion, I CT. Reports 1996 (I), p. 240, para. 26);

41. Whereas the Court is therefore not in a position to find, at this
stage of the proceedings, that the acts imputed by Yugoslavia to the
Respondent are capable of coming within the provisions of the Genocide
Convention; and whereas Article IX of the Convention, invoked by
Yugoslavia, cannot accordingly constitute a basis on which the jurisdic-
tion of the Court could prima facie be founded in this case;

ko

42. Whereas after it had filed its Application Yugoslavia further
invoked, as basis for the Court’s jurisdiction in this case, Article 4 of the
Treaty of Judicial Settlement, Arbitration and Conciliation between the
Netherlands and the Kingdom of Yugoslavia, signed in The Hague on
Il March 1931; whereas Yugoslavia’s “Supplement to the Application”,
in which it invoked this new basis of jurisdiction, was presented to the
Court in the second round of oral argument (see paragraph 14 above);
whereas Yugoslavia gave no explanation of its reasons for filing this
document at this stage of the proceedings; and whereas Yugoslavia
argues that, although the procedure provided for in Article 4 of the 1931
Treaty has not been strictly followed, “the Court, like its predecessor, the
Permanent Court of International Justice, has always had recourse to the
principle according to which it should not penalize a defect in a pro-
cedural act which the Applicant could easily remedy”;

43. Whereas the Netherlands objects to the late presentation by Yugo-
slavia of this basis of jurisdiction; whereas the Netherlands argues that
the Treaty of Judicial Settlement, Arbitration and Conciliation of
11 March 1931 is no longer in force between the Netherlands and Yugo-
slavia; whereas the Netherlands observes that it is not a party to the 1978
Vienna Convention on the Succession of States in respect of Treaties and
that, in contrast with a number of other bilateral treaties concluded with
the former Socialist Federal Republic of Yugoslavia, no provisional
mutual agreement has been reached on the continued validity of the 1931
Treaty; whereas the Netherlands further argues that Yugoslavia has not
complied with the procedural requirements of Article 4 of the Treaty, in
particular the period of notice of one month;

44. Whereas the invocation by a party of a new basis of jurisdiction in
the second round of oral argument on a request for the indication of pro-

18
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 557

visional measures has never occurred in the Court’s practice; whereas
such action at this late stage, when it is not accepted by the other party,
seriously jeopardizes the principle of procedural fairness and the sound
administration of justice; and whereas in consequence the Court cannot,
for the purpose of deciding whether it may or may not indicate provi-
sional measures in the present case, take into consideration the new title
of jurisdiction which Yugoslavia sought to invoke on 12 May 1999;

* *

45. Whereas the Court has found above that it had no prima facie
jurisdiction to entertain Yugoslavia’s Application, either on the basis of
Article 36, paragraph 2, of the Statute or of Article IX of the Genocide
Convention; and whereas it has taken the view that it cannot, at this
stage of the proceedings, take account of the additional basis of jurisdic-
tion invoked by Yugoslavia; and whereas it follows that the Court can-
not indicate any provisional measure whatsoever in order to protect the
rights claimed by Yugoslavia in its Application;

46. Whereas, however, the findings reached by the Court in the present
proceedings in no way prejudge the question of the jurisdiction of the
Court to deal with the merits of the case or any questions relating to the
admissibility of the Application, or relating to the merits themselves; and
whereas they leave unaffected the right of the Governments of Yugo-
slavia and the Netherlands to submit arguments in respect of those
questions;

* * *

47. Whereas there is a fundamental distinction between the question
of the acceptance by a State of the Court’s jurisdiction and the compat-
ibility of particular acts with international law; the former requires con-
sent; the latter question can only be reached when the Court deals with
the merits after having established its jurisdiction and having heard full
legal arguments by both parties;

48. Whereas, whether or not States accept the jurisdiction of the
Court, they remain in any event responsible for acts attributable to them
that violate international law, including humanitarian law; whereas any
disputes relating to the legality of such acts are required to be resolved
by peaceful means, the choice of which, pursuant to Article 33 of the
Charter, ts left to the parties;

49. Whereas in this context the parties should take care not to aggra-
vate or extend the dispute;

50. Whereas, when such a dispute gives rise to a threat to the peace,
breach of the peace or act of aggression, the Security Council has special
responsibilities under Chapter VII of the Charter;

19
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 558

51. For these reasons,
THE Court,
(1) By eleven votes to four,

Rejects the request for the indication of provisional measures submit-
ted by the Federal Republic of Yugoslavia on 29 April 1999;

IN FAVOUR: President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva,
Herczegh, Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans;:

AGAINST: Vice-President Weeramantry, Acting President; Judges Shi, Veresh-
chetin; Judge ad hoc Kreéa;

(2) By fourteen votes to one,

Reserves the subsequent procedure for further decision.

IN FAVOUR: Vice-President Weeramantry, Acting President; President
Schwebel; Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,
Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Kooijmans; Judge ad hoc Kreéa;

AGAINST: Judge Oda.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this second day of June, one thousand nine
hundred and ninety-nine, in three copies, one of which will be placed in
the archives of the Court and the others transmitted to the Government
of the Federal Republic of Yugoslavia and the Government of the King-
dom of the Netherlands, respectively.

(Signed) Christopher G. WEERAMANTRY,
Vice-President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.

Judge Koroma appends a declaration to the Order of the Court.

Judges Opa, HIGGINS, PARRA-ARANGUREN and KOOIMANS append
separate opinions to the Order of the Court.

20
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 559

Vice-President WEERAMANTRY, Acting President, Judges Sui and

VERESHCHETIN, and Judge ad hoc KRECA append dissenting opinions to
the Order of the Court.

(Initialled) C.G.W.
(Initialled) E.V.O.

21


34

DISSENTING OPINION OF SIR CECIL HURST.

I am unable to agree with the decision of the Court on the
Belgian counter-claim.

The first submission of that counter-claim relates to the
Borgharen barrage. I am not able to regard the construction
of this barrage by the Netherlands Government otherwise than
as a violation of the Treaty of 1863.

Article IV of the Treaty provided that a certain quantity
of water was to be withdrawn by the new intake constructed
under the provisions of Article I. The quantity varied accord-
ing to the level of the river. When the level of the water
in the river stood at.or below a certain point on the gauge
at the bridge at Maestricht, the ten cubic metres per second
was to be reduced to 74 cubic metres, or to 6 cubic metres,
according to the season of the year.

The level of the Meuse so fixed as the determining factor in
deciding whether the larger or the smaller quantity of water
was to be withdrawn from the Meuse is stated in the Treaty
itself (Art. IV, para. 2) to correspond to a minimum depth of
water between Maestricht and Venlo. This shows that the
purpose which the Treaty had in view was that the quantity
of water to be withdrawn from the Meuse should depend on
the depth of water in the sections of the river below Maes-
tricht. It is therefore permissible to draw the deduction that
the intention of the framers of the Treaty was that the
maximum of ten cubic metres per second should only be
withdrawn from the river when there was a certain depth
_of water in the river below Maestricht and down to Venlo.

The effect of the construction of the Borgharen barrage is
twofold :—firstly, the level of the water at the mouth of the
intake and at the bridge at Maestricht stands permanently
so high that the ten cubic metres per second is at all times
being withdrawn by the new intake; secondly, the level of
the water at the gauge at the bridge at Maestricht has ceased
to correspond with a particular depth of water in the Meuse
between Maestricht and Venlo. The depth of water in the
river between Maestricht and Venlo has in fact ceased to be the
factor upon which depended ultimately the amount of water
to be withdrawn from the Meuse under the Treaty of 1863.

The Treaty does not make express mention of the fact, but
it seems clear that this provision as to the depth of water in

34
A./B. 70 (WATER FROM THE MEUSE).—OP. HURST 35

the river between Maestricht and Venlo had reference to the
interests of navigation. It was only in connection with navi-
gation that the depth of water in the river between Maestricht
and Venlo was of importance.

The action of the Netherlands Government in constructing
the Borgharen barrage has had the effect of excluding alto-
gether the application of a provision in the Treaty which must
be regarded as having been intended to safeguard the interests
of navigation on the Meuse between Maestricht and Venlo.
Such action is incompatible with the Treaty, and for that
reason the first submission in the Belgian counter-claim should
be admitted.

The provision in the second paragraph of Article V enabling
the Netherlands Government to increase its share of the water
withdrawn from the Meuse at Maestricht affords no justifica-
tion for the construction of the Borgharen barrage. There is
nothing to show that it was with a view to the exercise of its
tights under that Article that the barrage was constructed.

The second submission in the Belgian counter-claim relates
to the Juliana Canal.

It is to the effect that the canal being a canal below Maes-
tricht within the meaning of Article I of the Treaty is subject
as regards the supply of water to it to the same provisions as
the canals on the left bank.

From the wording of the second and third submissions in the
Reply of the Netherlands Government, one may infer that it
is not disputed by that Government that the Juliana Canal is
a canal below Maestricht within the meaning of that Article.
It is merely submitted that the canal is not as regards its
water supply subject to the same provisions as the canals on
the left bank, and that the feeding of the canal is not and
has not been inconsistent with the Treaty of 1863, as also
that the mere fact that it would be possible for the Nether-
lands to use certain locks on this canal in a manner incon-
sistent with the Treaty does not in itself involve a breach of
the Treaty.

The questions how the Juliana Canal has been supplied with
water in the past and how it is being supplied at present are
questions of fact. If it is maintained on behalf of the Belgian
Government that the Juliana Canal has been and is being supplied
with water from the Meuse in breach of the Treaty of 1863, the
burden of proof lies on that Government. No sufficient evi-
dence has been submitted on behalf of the Belgian Government
that the Juliana Canal is or has been fed with water from the
Meuse. On the contrary the evidence submitted by the Nether-
lands Government shows that it was not with Meuse water
that the Juliana Canal was gradually filled as soon as its
construction was completed, and that it is not fed with water

5 35
A./B. 70 (WATER FROM THE MEUSE).—OP, HURST 36

from the Meuse at present. A finding to that effect would in
my opinion have been sufficient to dispose of the case as
regards the Juliana Canal, and to justify the rejection of the
Belgian submission. The question whether or not the Juliana
Canal is a canal below Maestricht within the meaning of
Article I need not in that case have been considered.

The judgment of the Court proceeds upon the basis that, as
the new intake constructed in accordance with Article I of
the Treaty was situated on the left bank of the river, and
therefore cannot have been intended to feed canals on the
right bank, canals on the right bank cannot come under the
régime of water supply instituted by the Treaty.

There is no doubt that in 1863 the canals situated below
Maestricht were all situated on the left bank of the river, and
there is nothing to show that at that date any such canal as
the Juliana Canal had been thought of. It does not follow,
however, that it was the intention of the Treaty that the pro-
hibition contained in Article I of the Treaty was not intended
to apply to a canal on the right bank.

The Treaty was certainly intended to introduce a limitation .
on the withdrawal of water from the Meuse for feeding canals.
In 1863 navigation on the river below Maestricht was of import-
ance, and such navigation was bound to suffer if the with-
drawals of water were excessive. Despite the fact therefore that
the new intake was situated on the left bank, and that the
canals as to which difficulties had arisen before 1863 were also
situated on the left bank, there can be no sufficient reason for
reading into the Treaty of 1863 a supposed intention to
restrict its operation to the left bank if the plain language of
the text is broad enough to cover canals on the right bank,

The phrase used in Article I “‘pour tous les canaux situés
en aval de cette ville” is quite general: it covers canals on the
right bank as much as canals on the left bank, and it is in
that sense in my view that it must be interpreted.

It is unnecessary to attempt a precise definition of the term
“en aval de Maestricht”. The Parties are in agreement that
the prohibition in Article I extended not only to canals which
existed in 1863, but to canals which might be constructed at a
later date. Though they were not agreed as to the exact mean-
ing of the term, it is impossible to conceive any interpretation
of the term which would not cover a great waterway such as
the Juliana Canal, which is in direct connection with the Meuse
and is situated only a few kilometres below Maestricht.

36
A./B. 70 (WATER FROM THE MEUSE).—OP. HURST 37

For these reasons, the Juliana Canal would in my opinion
fall within the prohibition prescribed by Article I of the Treaty
if it was fed with water from the Meuse. It is merely because
of lack of proof as to this point that the Belgian submission

should be rejected.
(Signed) CEciL J. B. Hurst.

37


262

DECLARATION OF JUDGE KRECA

Although I voted in favour of the operative parts of the Court’s Order,
I shall also make some observations on and amplifications to some aspects
of the concept of a counter-claim and its application to this particular case.

1. The Order essentially qualifies a counter-claim as “independent”,
“an autonomous legal act” (para. 27) though, it seems to me, this is with
a certain amount of caution (reservatio mentalis). That is to say, the
Court states that the “counter-claim is independent of the principal claim
in so far as it constitutes a separate ‘claim’” (ibid.). The fact that the
Applicant’s claim is being qualified as the “principal” claim determines
the counter-claim, by the logic of argumentum a contrario, as a non-
principal claim, a lesser claim. It follows that the counter-claim is a
response or, to put it another way, a secondary claim. Such qualification
is exact in a very limited sense only.

It is created by the fact that the Respondent submits the claim against
the Applicant in the litigation which had already been instituted against
the Respondent. Therefore, the counter-claim (if we view the litigation
exclusively as a series of acts which, according to a certain logic, follow
each other, at certain time intervals), looks like a non-autonomous act, a
secondary claim. However, if we consider the litigation in the only cor-
rect way, as a tripartite relationship in which all participants in the pro-
ceedings — the Applicant, the Respondent and the Court — have certain
rights and obligations (Bulgarus: Processus est actus trium personarum
— actoris, rei judicus), then we inevitably come to the conclusion that the
counter-claim represents an autonomous claim made by the Respondent
which, in the circumstances of the procedure in the case, is strongly con-
nected to the claim. This link is the basis for the integration of two pro-
ceedings into one single proceeding.

The fact that the counter-claim is submitted after the establishment of
the basic jurisdictional link does not mean, ipso facto, that the “counter-
claim” is merely the reaction to the “claim” which established that link.
The proof of that assertion lies in the very fact that the “counter-claim”
changes the positions in the litigation of the parties to the dispute — the
Respondent becomes the Applicant and vice versa. The very nature of
the counter-claim — a claim which may be joined to the original claim or
which amounts to the presentation of a fresh claim — implies the very
opposite. In fact, as a rule a counter-claim has not a defensive but an
offensive character except in cases of claims for compensation or prelimi-
nary claims.

23
263 APPLICATION OF GENOCIDE CONVENTION (DECL. KRECA)

Therefore, it seems to me that the autonomous nature of the counter-
claim (its other characteristic being self-sufficiency) suggests that in rela-
tion to the counter-claim, the Applicant’s claim is not the “principal”
claim, but simply the initial or original claim.

2. It seems to me that the Court has been trying to pinpoint the rele-
vant issues of a conceptual nature as a result of the incompleteness and
lack of precision of Article 80 of the Rules of Court.

2.1. Article 80 of the Rules of Court tacitly proceeds from the assump-
tion that a counter-claim is a general legal notion. One cannot explain in
any other way the fact that neither the Statute of the International Court
of Justice nor the Rules of Court define counter-claims; moreover, the
text of the Statute does not contain the word “counter-claim” at all.
Examining the notion of counter-claim in the light of Article 40 of the
Rules of Court of 1922, Anzilotti says:

“There is a notion of counter-claims which is, essentially, common
to all legal systems, even if the rules used to implement that notion
differ in each of those legal systems: from a whole set of rules which
are distinct as to their form, but have a common content, it is quite
possible to distil that common content into a concept which may
then be implemented in the form of rules particular to another
legislative system.” (D. Anzilotti, “La demande reconventionnelle
en procédure internationale”, Journal du droit international, Vol. 57,
1930, p. 867.) / Translation by the Registry. ]

This concise wording expresses the substance of the philosophie juridique
synthétique according to which legal notions have two aspects: logical
and extensive. The logical aspect or the generic notion means a general
notion which is familiar to all branches of law, On the other hand, the
extensive side or the extensive notion is reduced to a set of legal prescrip-
tions (praescriptiones) which makes the general notion specific within
the limits of a given legal order (see T. Givanovitch, Systéme de la
philosophie juridique synthétique, 1927, 1970).

The logical and the extensive aspects of the legal notion are in a state
of dynamic unity — by adopting specific rules (praescriptiones) one
enriches and crystallizes the logical, generic part of a legal notion which
serves as a model and guiding rule for specific rules in appropriate
branches of the law.

However, it seems to me that the concretization of the general notion
in Article 80 of the Rules of Court has not been correctly carried out.

Article 80 of the Rules of Court deals with the abstract term “counter-
claim”. The interpretation of the wording in Article 80 allows for the
conclusion that every claim made by the Respondent is a counter-claim.
For instance, paragraph 1 of Article 80, stipulates:

24
264 APPLICATION OF GENOCIDE CONVENTION (DECL. KRECA)

“A counter-claim may be presented provided that it is directly con-
nected with the subject-matter of the claim of the other party and
that it comes within the jurisdiction of the Court.” (Emphasis added.)

It follows that there are two types of counter-claim: counter-claims
which “may be presented” and counter-claims which “may not be pre-
sented”. In other words, every claim made by the Respondent may repre-
sent a counter-claim, with the only difference being that while a counter-
claim which fulfils the conditions set out in that provision “may be
presented”, those which do not fulfil them “may not be presented”. As an
abstract term, the expression “counter-claim” used in Article 80 unites
procedural and material meanings of the counter-claim. Contrary to Ar-
ticle 80 of the Rules of Court, the proposition put forward by four mem-
bers of the Court (Judges Negulesco, Wang, Schücking and Fromageot)
at the private meeting held by the Court on 29 May 1934 elegantly
removed that dichotomy. That proposition, as quoted by the then Presi-
dent from a document circulated by Judges Negulesco, Wang, Schticking
and Fromageot (see P.C.L.J., Series D, No. 2, 4th Add., p. 263) reads:

“No claim may be included in the Counter-Case as a counter-
claim unless it is directly connected with the subject of the applica-
tion filed by the other party, and unless it comes within the jurisdic-
tion of the Court.”

Certain elements of that dichotomy are not alien to this Order either.
Paragraph 26 of the Order reads

“it is now necessary to consider whether the Yugoslav claims . . .
constitute ‘counter-claims’ within the meaning of Article 80 of the
Rules of Court and, if so, whether they fulfil the conditions set out in
that provision”.

Does that mean that the “Yugoslav claims in question constitute ‘counter-
claims’” before it has been established whether “they fulfil the conditions
set out in that provision”?

2.2. In this connection, two relevant questions emerge:

(1) If the Respondent’s claim fulfils the conditions stipulated in para-
graph 1 of Article 80 of the Rules of Court, is it ipso facto a counter-
claim within the meaning of Article 80 of the Rules of Court, 1.e., is it
automatically joined to the original claim or does the Court deliber-
ate upon its joinder?

Article 80 of the Rules of Court has been built upon the notion of per-
missive joinder. Such a conclusion indisputably follows from the wording
of paragraph 1 of the Article which stipulates that “[a] counter-claim may
be presented” provided that the counter-claim fulfils two conditions:

25
265 APPLICATION OF GENOCIDE CONVENTION (DECL. KRECA)

(a} that it is directly connected with the subject-matter of the claim of
the other party, and (5) that it comes within the jurisdiction of the
Court. Therefore, the Respondent is entitled to submit a counter-claim,
the submission of which is subject to the aforementioned conditions. It
may be concluded from this that a claim made by the Respondent which
fulfils the conditions stipulated in paragraph 1 of Article 80 of the Rules
of Court is ipso facto a counter-claim within the meaning of Article 80,
and that it is automatically joined to the original proceedings. This is also
suggested by the wording of paragraph 2 of Article 80 which provides
that “[a] counter-claim shall be made in the Counter-Memorial . . . and
shall appear as part of the submissions of that party” (emphasis added).

Is that conclusion also valid in cases covered by paragraph 3 of
Article 80 of the Rules of Court?

From the interpretation of the wording, it appears that, in the event of
doubt as to the connection between the questions presented by way of
counter-claim and the subject-matter of the claim of the other party, join-
der of the counter-claim to the original proceedings is not automatically
carried out, but is to be decided upon by the Court. The Court would
therefore not be obliged to decide to join the claim of the Respondent to
the original proceedings even if the conditions stipulated in paragraph 1
of Article 80 of Rules of Court were fulfilled, i.e., if the “direct connec-
tion” were not in doubt.

That option is hardly acceptable. Essentially, there is a possibility that
some undetermined and, from the procedural point of view, unarticu-
lated notion of doubt may alter the legal nature of the counter-claim
incorporated into the basis of Article 80 of the Rules of Court.

“In the event of doubt” — is the doubt sufficient? Here we can distin-
guish two basic situations:

(a) when the Court evaluates, proprio motu, the existence of a “connec-
tion”, doubt appears to be the psychological motive for the Court to
assess the existence of the connection and to adopt a corresponding
decision;

(b) where there is doubt on the Applicant’s side in the original proceed-
ings, that is obviously not sufficient on its own. It represents only
the psychological, mental basis for the initiation of an appropriate
action in the litigation. In substance, that is an objection, although
the form in which it appears and the name given to it by the Appli-
cant are not important. The importance lies in the material nature of
the Applicant’s reaction to the Respondent’s “counter-claim”. In
this particular case, the Applicant set out its approach to the admis-
sibility of the “counter-claim” in the form of “observations”,
although they were in fact objections. For, if the Applicant has a
“doubt”, and does not express that doubt in an appropriate way,
then the doubt itself is legally irrelevant. 1 understand the true

26
266 APPLICATION OF GENOCIDE CONVENTION (DECL. KRECA)

meaning of paragraph 3 of Article 80 to be that it suspends the auto-
matic joinder of the Respondent’s claim to the original proceedings
until the doubt as to the relevant connection between the question
presented by way of counter-claim and the subject-matter of the
initial Applicant’s claim is removed. Objections may be raised to
this interpretation that it does not accord with the wording of para-
graph 3 according to which “the Court shall . . . decide whether or
not the question thus presented shall be joined to the original pro-
ceedings”. This failure to accord may prove relevant if the decision
of the Court that “the question thus presented shall be joined to the
original proceedings” is understood as a decision which has a
declaratory effect only. It seems to me that this is a way to preserve
the original nature of the counter-claim, which is essentially the
Respondent’s right to increase the dimensions of a lawsuit by having
his claims included in it under certain conditions. A contrario, from
a right of the Respondent, the counter-claim is transformed into a
question which the Court decides in its sole discretion, indepen-
dently of the conditions stipulated in paragraph | of Article 80 of the
Rules of Court. Such transformation reduces the complex character
of the counter-claim to a question of procedural economy. It hardly
needs saying that the very nature of the counter-claim does not
allow such a reduction. The right to make a counter-claim derives
from the principle of the equality of the parties on the one hand and
the principle of material truth on the other hand. A counter-claim
however does not only allow for better administration of justice in
respect of procedural economy, but also in respect of the complex
solution of conflicting relations between the Parties and the preven-
tion of different trials (ne variae judicetur ).

Such interpretation of paragraph 3 of Article 80 of the Rules of Court
has a direct influence on the subject of the Court’s decision in the event of
a doubt as to the connection between the question presented by way of
counter-claim and the subject-matter of the claim of the other party. Ifa
claim made by the Respondent which fulfils the “direct connection” con-
dition ‘stipulated in paragraph 1 of Article 80 of the Rules of Court is
qualified ipso facto as a counter-claim, then the Court, in proceedings
instituted according to paragraph 3 of Article 80, could not decide upon
the admissibility of the counter-claim, but only upon the existence of a
direct connection between counter-claims submitted by the Respondent
and the subject-matter of the Applicant’s claims. If it finds that there
exists such a connection, then this means, as was stated by the Permanent
Court in the Factory at Chorzéw case (Merits, Judgment No. 13, 1928,
P.C.4J., Series A, No. 17, p. 38), that the material condition required by
the Rules as regards counter-claims is fulfilled, which implies joinder of
the counter-claim to the original proceedings.

27
267 APPLICATION OF GENOCIDE CONVENTION (DECL. KRECA)

(li) Is the Court fully master of the proceedings conducted on the basis
of paragraph 3 of Article 80 of the Rules of Court?

This question results from the fact that, in this particular case, the
Court did not hear the Parties. The decision of the Court not to conduct
hearings seems rational to me, because it rests upon the founded belief
that, through the written observations of the Parties, it obtained a com-
plete picture of all relevant matters, which enabled it to exercise its juris-
diction, on the basis of Article 80 of the Rules of Court.

Unfortunately, it should be said in the interest of truth that para-
graph 3 of Article 80 of the Rules of Court does not favour such rational
determination by the Court.

Paragraph 3 of Article 80 stipulates in imperative wording that, inter
alia, “the Court shall, after hearing the parties, decide whether or not the
question thus presented shall be joined to the original proceedings”
(emphasis added). It is highly doubtful whether the exchange of written
statements by the parties may be a substitute for “hearing”, since “hear-
ing” as a term of the procedure before the Court denotes, in the sense of
Article 43, paragraph 5, and Article 51 of the Statute, oral proceedings
before the Court. The exchange of written statements by the parties
would suffice for hearing the parties under Article 68 of the 1972 Rules of
Court which, instead of the phrase “after hearing the parties”, contained
the phrase “after due examination”, a phrase leaving room for liberal
interpretation. It appears that paragraph 3 of Article 80 of the Rules of
Court does not permit liberal interpretation.

For as Rosenne says, the phrase “after hearing the parties” means
that:

“in future there will always be some oral proceedings in the event of
doubt .. . as to the connection between the question presented by
way of counter-claim and the subject-matter of the claim of the
other party” (S. Rosenne, Procedure in the International Court. A
Commentary on the 1978 Rules of the International Court of Justice,
1983, p. 171).

There are reasonable grounds for assuming that in future the Court
may find itself in a situation where it has to choose between submission
to rigid rules or flexibility, which opens the path to better administration
of justice. Consequently, a revision of paragraph 3 of Article 80 of the
Rules of Court seems desirable to me, in order that the rational deter-
mination of the Court might not be at variance with the, in this case
unnecessarily, rigid rule of procedure.

3. In proceedings based on paragraph 3 of Article 80 of the Rules of
Court the question of “direct connection” is of the utmost importance.

The term “direct connection” itself firmly establishes Anzilotti’s thesis
that “the principal claim and the counter-claim are independent, though
locked in the same procedural relationship” (D. Anzilotti, “La demande

28
268 APPLICATION OF GENOCIDE CONVENTION (DECL. KRECA)

reconventionnelle en procédure internationale”, Journal du droit interna-
tional, Vol. 57, 1930, p. 875 [translation by the Registry). Although
somewhat broad and vague, it obviously does not mean identity or co-
incidence of the subject-matter of the application and the subject-matter
of the counter-claim. For such a qualification, the meaning of the word
“connection” is of basic importance (in this phrase, the word “direct” is
only a condition of qualification, a factor which defines the quality of
“connection”, as the main element of the phrase). A “connection” in the
sense of a relationship or link may exist only between things which exist
separately, in themselves, things having the properties of autonomy and
apartness. A contrario, the question of either direct or indirect “connec-
tion” may not even be asked, for there are no such things between which
the relationship or link is established. One thing cannot have a “connec-
tion” with itself, for in that case it would not be a separate thing, but just
a relationship between things.

In qualifying the meaning of the term “direct connection” the Court
has, in accordance with widespread opinion, assumed that “direct con-
nection” represents connection in law and in fact. The Order determines,
inter alia, that “as a general rule, the degree of connection between the
claims must be assessed both in fact and in law” (para. 33). However,
what is particularly significant is the fact that the Court, in weighing the
relevance of “connection in law” and “connection in fact”, gives tacit
preponderance to “connection in law”. The Court states inter alia that

“it emerges from the Parties’ submissions that their respective claims
rest on facts of the same nature; whereas they form part of the same
factual complex since all those facts are alleged to have occurred on
the territory of Bosnia and Herzegovina and during the same period”
(para. 34).

That means that the Court found that there was a direct connection
between Yugoslavia’s counter-claim and Bosnia and Herzegovina’s ori-
ginal claim, despite the fact that Yugoslavia did not rely on identical
facts in its counter-claim.

In my opinion, such a standpoint of the Court is valid and justified. It
is possible to assume that in some cases, the links between the “claim”
and the “counter-claim” in fact and in law are not equal, therefore one
may ask the question whether the link in law is sufficient to constitute a
“direct connection” in the sense of Article 80, and vice versa? In other
words, whether we could, conditionally speaking, establish a certain kind
of hierarchy in the mutual relationship between “connection in law” and
“connection in fact”, meaning that one of these “connections” is more
important, that it is preponderant over the other. Logicaily speaking,
“connection in law” should be preponderant, if for no other reason than
that, out of a single event, parties may initiate actions which are not com-

29
269 APPLICATION OF GENOCIDE CONVENTION (DECL. KRECA)

plementary. In fact, “connection in law” may appear as differentia speci-
fica between “counter-claim” and “cross-claim”.

The standpoint that legal connection can always be considered to be a
direct connection between the subject-matter of the claim and that of the
counter-claim has support in the case-law of the Court. In the case
concerning the Diversion of Water from the Meuse (1937), the Belgian
counter-claim concerned questions different from those initiated by the
Netherlands in its claim.

The Netherlands Government asked the Court to adjudge and declare
that:

“{a) the construction by Belgium of works which render it possible
for a canal situated below Maestricht to be supplied with
water taken from the Meuse elsewhere than at that town is
contrary to the Treaty of May 12th, 1863;

(b) the feeding of the Belgian section of the Zuid-Willemsvaart, of
the Campine Canal, of the Hasselt branch of that canal and of
the branch leading to Beverloo Camp, as also of the Turnhout
Canal, through the Neerhaeren Lock with water taken from
the Meuse elsewhere than at Maestricht, is contrary to the said
Treaty;

(c) Belgium’s project of feeding a section of the Hasselt Canal
with water taken from the Meuse elsewhere than at Maestricht
is contrary to the said Treaty;

(d) Belgium’s project of feeding the section of the canal joining
the Zuid-Willemsvaart to the Scheldt between Herenthals
(Viersel) and Antwerp with water taken from the Meuse else-
where than at Maestricht is contrary to the said Treaty”
(P.C.LJ., Series A/B, No. 70, Judgment, 1937, pp. 5-6).

In its Counter-Memorial the Belgian Government asserted (1) that the
Netherlands Government had committed a breach of the Treaty of 1863
by constructing the Bogharen barrage on the Meuse below Maastricht;
(2) that the Juliana Canali constructed by the Netherlands alongside the
Meuse below Maastricht from Limmel to Maasbracht was subject, as
regards its water supply, to the same Treaty.

Therefore, there were two independent claims. What made those claims
directly connected for the purpose of the Court procedure was their legal
basis. All questions arising from the Netherlands’ claim and from Bel-
gium’s counter-claim directly concerned the interpretation and applica-
tion of the Treaty of 12 May 1863 or, to be precise, whether various
actions of the Parties were in accordance with the relevant provisions of
the Treaty. This fact led the Court to conclude that the counter-claim “is
directly connected with the principal claim” and that “it was permissible
to present it in the Counter-Memorial” (P.C1.J., Series A/B, No. 70,
p. 28).

30
270 APPLICATION OF GENOCIDE CONVENTION (DECL. KRECA)

The Court’s reasoning was limited to that framework also in the Fac-
tory at Chorzéw case (Merits), the Asylum case and in the provisional
measures phase of the case concerning United States Diplomatic and
Consular Staff in Tehran.

A preponderance of the “connection in law” over the strictly under-
stood “facts of case” (if the word “fact” is meant in /ato sensu, it includes
law as well) is, in my opinion, a normal consequence of the relativity of
the facts of the case. It is therefore justified to pose the question whether
it has to do with “facts” or subjective perceptions of facts. Another well-
respected authority on the counter-claim issue, Miaya de la Muela, justly
observes:

“La reconvencion se basa en unos hechos constitutivos diferentes
con los alegados por el actor para su pretension, aunque con el
grado de conexidad entre ambos conjuntos de hechos que exija el
sistema procesal respectivo. Su diferencia de la excepcion esta en que
la ultima se basa en hechos, casi siempre no alegados por el actor,
pero que pretenden ser impeditivos o extintivos de los efectos pro-
ducidos por los alegados en la demanda.”! (A. Miaja de la Muela,
“La reconvenciôn ante el Tribunal internacional de Justicia”, Estu-
dios de derecho procesal en honor de Niceto Alcald-Zamora y Cas-
tillo, Boletin mejicano de derecho comparado, No. 24, 1975, p. 757.)

This is why, what are usually called the “facts” of the case should be
understood as a “factual complex” or the “factual background” as an
objective basis, the main features of which are represented as the facts of
the case by the parties.

4. In this particular case, the existence of a “connection in law” is
obvious. It results directly from the findings of the Court in the Judgment
adopted on the occasion of the Respondent’s preliminary objections. By
its Judgment on the preliminary objections, the Court established the
legal relationship between the Respondent and the Applicant on the one
hand, and the Genocide Convention, on the other. The preliminary
objections represented, according to their legal nature, a kind of counter-
claim — a “preliminary” counter-claim —- the basic purpose of which
was to establish a relevant legal relationship between the parties in the
litigation.

Questions initiated both in the Memorial and the Counter-Memorial
are organically and inseparably connected to the Genocide Convention.

' “The counter-claim is based on some constituent facts differing from those alleged by
the claimant in his claim, though with the degree of connection between both sets of
facts required by the particular procedural system. It differs from the objection in
that the latter is based on facts hardly ever alleged by the claimant, but which are
advanced as being impédimental or extinctive to the effects produced by the allega-
tions of the claim.” / Translation by the Registry. ]

31
271 APPLICATION OF GENOCIDE CONVENTION (DECL. KRECA)

The sedes materiae of the dispute between Bosnia and Herzegovina and
the Federal Republic of Yugoslavia resides in the qualification of the acts
ascribed by the Parties to each other, from the standpoint of the relevant
provisions of the Convention. Moreover, in contrast to the factographic
side of the case of the Diversion of Water from the Meuse, in which Bel-
gium put forward questions of fact different from those mentioned by the
Netherlands in its claim, there exists, in this particular case, a partial
coincidence regarding the factual questions set out in the claim of Bosnia
and Herzegovina, and in the counter-claim of the Federal Republic of
Yugoslavia, but the Parties interpret them in different, in fact in diametri-
cally opposed, ways.

As regards the form and reasoning, there are no substantial differences
between the Memorial and the Counter-Memorial. Even a prima facie
assessment shows that there is a substantial similarity regarding the form
and content of the Memorial and Counter-Memorial, which frequently
coincide, so that phenomenologically, regardless of the order of the sub-
mission of the documents, one could describe the Counter-Memorial as
the inversion of the Memorial, and vice versa.

In such a state of affairs, Yugoslavia’s counter-claim exceeds the usual
framework of counter-claims encountered by the Court. That is to say,
the substantial concentration of the Memorial and Counter-Memorial on
the relevant event — the armed conflict in Bosnia and Herzegovina, and
its consequences, and the opposing claims of the Parties which derive
from different assessments of the factual and legal sides of that event,
makes it possible to conclude that there is genuinely no distinction
between the Applicant and the Respondent. The positions of the Parties
in this dispute could be compared to the positions of parties in the case of
a territorial dispute, both parties putting forward rival claims. So that, as
was pointed out by the arbitrator Max Huber in the /slund of Palmas
case (1928) “each party is called upon to establish the arguments on
which it relies in support of its claim . . . over the object in dispute”
(Reports of International Arbitral Awards, Vol. IL, p. 837).

(Signed) Milenko KRECA.

32


84
OBSERVATIONS BY LORD FINLAY.

I agree with the conclusions at which the Court has arrived, and
the following observations are directed merely to some of the
reasons given for one of these conclusions.

I had intended to deliver a dissenting judgment based on the
view that, first, Poland is entitled to the benefit of the Armistice,
and, second, that the first clause of the Protocol of Spa nullified
the transfer by the Reich of the Chorzôw factory.

In preparing my judgment I reviewed the evidence bearing on
this part of the case. The result of this fresh examination has been
to confirm my view on the first of these two points, but not on the
second.

(x) It was common knowledge that if the Allies succeeded, the
independence of Poland would be one of the terms of peace. All
Parties to the Armistice must have contracted with this present
to their minds, and it must have been intended that Poland, whose
army had been fighting on the side of the Allies as an autonomous
army, should be bound by the terms of the Armistice and,
when she came into existence as a recognized State, have the benefit
of them. This would be a jus questium, a right acquired for the new
State as soon as it should come into existence. In business it is a
matter of every-day practice through the machinery of trusts or
otherwise to make contracts on behalf of companies not yet in-
corporated which take effect upon incorporation, and in my view
the Allied States made the Armistice on behalf of Poland, which
was about to become a State, as well as on their own behalf.

(2) But on the second of these points, the result of my further
consideration has been to change my view. The paragraph in the
Protocol providing for nullity of any disposition contrary to its
terms is at the end of the first clause, and it should, I think, be
read with reference to the language of the earlier part of that clause,
which says in terms that the German Government was not to take
any measure which might diminish in any way the value of the
German domaine, ‘‘gage commun des Alliés pour le recouvrement
des réparations auxquelles tls ont droit”.
OBSERVATIONS BY LORD FINLAY 85

The provision that any measure to the contrary should be
considered as nulle et non avenue should be read as nullifying such
dispositions only so far as the purpose expressed in the earlier part
of the clause is concerned, viz. the preservation of the Allies’ secur-
ity for the payment of the amounts due for reparation. If this
is so, it can have no effect for the purposes of the present case upon
the transfer from the Reich to the Oberschlesische Company.

I therefore agree with the conclusion at which the Court has
arrived upon this portion of the case; though not with the whole
of the reasoning on which that conclusion is based.

(Signed) FINLAY.