718

DISSENTING OPINION OF JUDGE VERESHCHETIN

The extraordinary circumstances in which Yugoslavia made its request
for interim measures of protection imposed a need to react immediately.
The Court should have promptly expressed its profound concern over the
unfolding human misery, loss of life and serious violations of interna-
tional law which by the time of the request were already a matter of pub-
lic knowledge. It is unbecoming for the principal judicial organ of the
United Nations, whose very raison d’être is the peaceful resolution of
international disputes, to maintain silence in such a situation. Even if
ultimately the Court may come to the conclusion that, due to constraints
in its Statute, it cannot indicate fully fledged provisional measures in
accordance with Article 41 of the Statute in relation to one or another of
the respondent States, the Court is inherently empowered, at the very
least, immediately to call upon the Parties neither to aggravate nor to
extend the conflict and to act in accordance with their obligations under
the Charter of the United Nations. This power flows from its responsi-
bility for the safeguarding of international law and from major consid-
erations of public order. Such an authoritative appeal by the “World
Court”, which would also be consistent with Article 41 of its Statute and
Article 74, paragraph 4, and Article 75, paragraph 1, of its Rules, could
have a sobering effect on the Parties involved in the military conflict, un-
precedented in European history since the end of the Second World War.

The Court was urged to uphold the rule of law in the context of large-
scale gross violations of international law, including of the Charter of the
United Nations. Instead of acting expeditiously and, if necessary, proprio
motu, in its capacity as “the principal guardian of international law”, the
majority of the Court, more than one month after the requests were
made, rejected them in a sweeping way in relation to all the cases brought
before the Court, including those where, in my view, the prima facie Juris-
diction of the Court could have been clearly established. Moreover, this
decision has been taken in a situation in which deliberate intensification
of bombardment of the most heavily populated areas is causing unabated
loss of life amongst non-combatants and physical and mental harm to the
population in all parts of Yugoslavia.

For the foregoing reasons, I cannot concur with the inaction of the
Court in this matter, although I concede that in some of the cases insti-

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tuted by the Applicant the basis of the Court’s jurisdiction, at this stage
of the proceedings, is open to doubt, and in relation to Spain and the
United States is non-existent.

*
* *

Apart from the considerations set out in the preceding general state-
ment, I would like to clarify my position with regard to the Applications
by Yugoslavia instituted against Belgium, Canada, the Netherlands and
Portugal.

I have no doubt that the prima facie jurisdiction under Article 36, para-
graph 2, of the Statute of the Court does exist in respect of these States
and, as far as Belgium and the Netherlands are concerned, the Court also
has prima facie jurisdiction under the Agreements signed between Bel-
gium and Yugoslavia on 25 March 1930 and between the Netherlands
and Yugoslavia on 11 March 1931.

The arguments to the contrary advanced by the respondent States and
upheld in the Orders of the Court rest upon two cornerstone proposi-
tions. The first concerns all of the four States recognizing the compulsory
jurisdiction of the Court, the second relates only to Belgium and the
Netherlands. The first proposition is that the text of the Yugoslav decla-
ration accepting the jurisdiction of the Court, and in particular the word-
ing of the ratione temporis reservation contained therein, allegedly does
not grant prima facie jurisdiction to the Court. The second proposition is
that the timing of the presentation by Yugoslavia of the additional bases
for jurisdiction allegedly does not allow the Court to conclude that it has
prima facie jurisdiction in respect of the cases instituted against Belgium
and the Netherlands. I cannot give my support to either of the above
basic propositions, for the following reasons.

As concerns the interpretation of the Yugoslav declaration of accept-
ance of the Court’s jurisdiction, the reasoning of the Court centres upon
the time-limit in the reservation to the above declaration, which stipu-
lates that Yugoslavia recognizes the jurisdiction of the Court “in all dis-
putes arising or which may arise after the signature of the present Dec-
laration, with regard to the situations or facts subsequent to this
signature”. The wording of this reservation is said to exclude even the
prima facie jurisdiction of the Court over the disputes submitted for the
Court’s resolution, since the disputes in question, as well as the situations
and facts generating the disputes, arose at least one month before the
filing of the Applications. It is also suggested that the text of the Yugo-
slav reservation deprives the Court of the plausible consensual element in
the declarations made by the Applicant and by the Respondents which
is indispensable for the indication of provisional measures. | cannot agree
with such an interpretation of the Yugoslav declaration, on a number of
grounds.

It has to be admitted that the wording of the Yugoslav declaration is

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not without ambiguity and, strictly speaking, it excludes from the Court’s
consideration disputes, situations and facts which occurred before the so-
called “critical date”, i.e., 25 April 1999, when the declaration was signed.
On this basis one cannot, however, conclude that each and every dispute
presented for resolution by the Court in the separate Applications of
Yugoslavia must be viewed by the Court as a single dispute or disputes
which existed before 25 April 1999 or, for that matter, that the Court
cannot consider situations and facts relating to these disputes which
arose after that date.

After the beginning of the bombardment of Yugosiavia by the NATO
military alliance the dispute as a whole was treated and is being treated at
various political levels, including the United Nations Security Council, as
a dispute between Yugoslavia and NATO or as a dispute between Yugo-
slavia and all the 19 member States of NATO. The resolution of this gen-
eral political dispute transcends the scope of the Court’s competence. The
Court is dealing with the specific legal disputes of Yugoslavia with the
individual respondent States. Each of these separate disputes may have
the same origin but they became distinct bilateral legal disputes between
individual States only after they had been presented as “the claim of one
party ... positively opposed by the other” (South West Africa, Prelimi-
nary Objections, Judgment, 1 C.J. Reports 1962, p. 328). In the cases
under consideration, it coincided with the filing of the Applications by
Yugoslavia against ten individual States. This individualization of the
disputes, which occurred after “the critical date”, was recognized by the
Court when it affirmed the right of those respondent States whose
nationals were not permanently represented on the bench to appoint
judges ad hoc.

From a different perspective, even after “the critical date” Yugoslavia
has, with good reason, complained of a number of new major breaches of
international law by the NATO States. Each of these alleged new major
breaches, whose existence was denied by the NATO States, may be seen
as constituting specific disputes between the Parties concerned, disputes
which clearly occurred after 25 April 1999.

The possibility of distinguishing between a “dispute of a general nature”
on the one hand, and “specific disputes” on the other, was admitted by
the Court in one of its recent cases (Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom),
Preliminary Objections, Judgment, L C.J. Reports 1998, p. 21, para. 29).
Nothing in the jurisprudence of the Court justifies the suggestion that a
specific legal dispute between the Parties may not be considered by the

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Court solely on the ground that it is linked with, or part of, a dispute
excluded from the Court’s jurisdiction.

Another ground on which I disagree with the majority is their complete
disregard of the clear intention of Yugoslavia. Quite recently the Court
had occasion to reiterate its position on the necessity to take into account
the intention of a State making a declaration. In the Fisheries Jurisdiction
(Spain v. Canada) case the Court interpreted the relevant words of the
declaration in question “having due regard to the intention of the State
concerned at the time when it accepted the compulsory jurisdiction of the
Court” (Judgment, 1 C.J. Reports 1998, p. 454, para. 49; see also Temple
of Preah Vihear, LC.J. Reports 1961, p. 31).

In its Orders in the present cases, the Court, by refusing to take into
account the clear intention of Yugoslavia, has taken an approach to the
Yugoslav declaration which could lead to the absurd conclusion that
Yugoslavia intended by its declaration of acceptance of the Court’s juris-
diction to exclude the jurisdiction of the Court over its Applications insti-
tuting proceedings against the Respondents.

In relation to Belgium and the Netherlands, apart from the jurisdiction
under Article 36, paragraph 2, of the Court’s Statute, Yugoslavia invoked
additional grounds of jurisdiction, namely the Convention on Concilia-
tion, Judicial Settlement and Arbitration signed on 25 March 1930 by
Yugoslavia and Belgium and the Treaty of Judicial Settlement, Arbitra-
tion and Conciliation signed on 11 March 1931 by Yugoslavia and the
Netherlands.

Both instruments provide for the right of the parties, under certain
conditions, to apply unilaterally to the Permanent Court of International
Justice for the resolution of their disputes. Moreover, the Agreements
stipulate that if the question on which the parties differ arises out of acts
already committed or on the point of being committed, the Permanent
Court of International Justice “shall indicate within the shortest possible
time the provisional measures to be adopted” (Art. 30 of the Convention
between Belgium and Yugoslavia; Art. 20 of the Treaty between the
Netherlands and Yugoslavia). Also, significantly, the Agreements pro-
vide that they “shall be applicable between the High Contracting Parties
even though a third power has an interest in the dispute” (Art. 35 and
Art. 21 respectively). Finally, the Agreements contain a clause whereby
disputes relating to their interpretation shall be submitted to the Perma-
nent Court of International Justice (Art. 36 and Art. 22 respectively).

In the course of the hearings, a number of objections were raised by
the respondent States against reliance on these agreements by the Court
in order to establish its jurisdiction. I propose to deal only with the prin-
cipal objection finally upheld by the majority of the Court. It concerns
the timing of the invocation by Yugoslavia of the additional bases of
jurisdiction.

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It will be noted that, in filing its Applications, Yugoslavia reserved the
right to amend and supplement them. Such a reservation to an applica-
tion instituting proceedings is standard, and in relation to grounds of
jurisdiction has for a long time been interpreted by the Court as permit-
ting the addition of a basis of jurisdiction, provided that the Applicant
makes it clear that it intends to proceed upon that basis, and also pro-
vided that the result is not to transform the dispute brought before the
Court by the Application into another dispute, different in character. The
above approach to the additional grounds of jurisdiction ts clearly
expressed in the following pronouncements of the Court.

In the Judgment of 26 November 1984 in the Nicaragua case, the
Court observed that:

“The Court considers that the fact that the 1956 Treaty was not
invoked in the Application as a title of jurisdiction does not in itself
constitute a bar to reliance being placed upon it in the Memorial.
Since the Court must always be satisfied that it has jurisdiction
before proceeding to examine the merits of a case, it is certainly
desirable that ‘the legal grounds upon which the jurisdiction of the
Court is said to be based’ should be indicated at an early stage in the
proceedings, and Article 38 of the Rules of Court therefore provides
for these to be specified ‘as far as possible’ in the application. An
additional ground of jurisdiction may however be brought to the
Court’s attention later, and the Court may take it into account pro-
vided the Applicant makes it clear that it intends to proceed upon
that basis (Certain Norwegian Loans, .C.J. Reports 1957, p. 25),
and provided also that the result is not to transform the dispute
brought before the Court by the application into another dispute
which is different in character (Société Commerciale de Belgique,
P.CLJ., Series A/B, No. 78, p. 173).” (Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States
of America), Jurisdiction and Admissibility, LC.J. Reports 1984,
pp. 426-427, para. 80.)

In its Order dated 13 September 1993 in the Genocide case, the Court
pointed out that:

“Whereas the Applicant cannot, simply by reserving ‘the right to
revise, supplement or amend’ its Application or requests for provi-
sional measures, confer on itself a right to invoke additional grounds
of jurisdiction, not referred to in the Application instituting proceed-
ings; whereas it will be for the Court, at an appropriate stage of the
proceedings, to determine, if necessary, the validity of such claims;
whereas however, as the Court has recognized, ‘An additional ground
of jurisdiction may ... be brought to the Court’s attention’ after the
filing of the Application,

‘and the Court may take it into account provided the Applicant
makes it clear that it intends to proceed upon that basis . . . and

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provided also that the result is not to transform the dispute
brought before the Court by the application into another dispute
which is different in character . . .” (Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States
of America), Jurisdiction and Admissibility, Judgment, CJ.
Reports 1984, p. 427, para. 80);

whereas the Court thus concludes that, for the purposes of a request
for indication of provisional measures, it should therefore not exclude
a priori such additional bases of jurisdiction from consideration, but
that it should consider whether the texts relied on may, in all the cir-
cumstances, including the considerations stated in the decision
quoted above, afford a basis on which the jurisdiction of the Court
to entertain the Application might prima facie be established.”
(Application of the Convention on the Prevention and Punishment of
the Crime of Genocide, 1 C.J. Reports 1993, pp. 338-339, para. 28.)

In my view, the conditions set out by Article 38 of the Rules of Court
and in its jurisprudence are fully satisfied in the present cases. The juris-
prudence of the Court clearly shows that for the purposes of a request for
indication of provisional measures additional grounds of jurisdiction may
be brought to the Court’s attention after filing of the Application. In such
a case, the Court should be primarily concerned with determining objec-
tively whether the additional grounds of jurisdiction “afford[s] a basis on
which the jurisdiction of the Court to entertain the Application might
prima facie be established”.

The legitimate concern of the Court over the observance of “the prin-
ciple of procedural fairness and the sound administration of justice” can-
not be stretched to such an extent as to exclude a priori the additional
basis of jurisdiction from its consideration, solely because the respondent
States have not been given adequate time to prepare their counter-
arguments. Admittedly, it cannot be considered normal for a new basis
of jurisdiction to be invoked in the second round of the hearings. How-
ever, the respondent States were given the possibility of presenting their
counter-arguments to the Court, and they used this possibility to make
various observations and objections to the new basis of jurisdiction. If
necessary, they could have asked for the prolongation of the hearings. In
turn, the Applicant may reasonably claim that the belated invocation of
the new titles of jurisdiction was caused by the extraordinary situation in
Yugoslavia, in which the preparation of the Applications had been
carried out under conditions of daily aerial bombardment by the Res-
pondents. It will also be recalled that it is for the Court to determine
the validity of the new basis of jurisdiction, which at this stage of the
proceedings may not and should not be decided conclusively.

The refusal of the majority to take into consideration the new bases of
jurisdiction clearly goes contrary to Article 38 of the Rules of Court and

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its jurisprudence. The refusal to have due regard to the intention of a
State making a declaration of acceptance of the Court’s jurisdiction is
also incompatible with the case-law of the Court and customary rules of
interpreting legal instruments. In my view, all the requirements for the
indication of provisional measures, flowing from Article 41 of the Court’s
Statute and from its well-established jurisprudence, have been met, and
the Court should undoubtedly have indicated such measures so far as the
above four States are concerned.

(Signed) Vladlen S. VERESHCHETIN.

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