285

             SEPARATE OPINION OF JUDGE OWADA

   Issue of jus standi of the Respondent as objective element of jurisdiction —
Relevance of 2004 Judgment on the Legality of Use of Force cases — Estoppel,
Acquiescence, Good Faith and forum prorogatum all relating to subjective ele-
ment of consent and thus irrelevant — 1996 Judgment did not specifically
address as a matter of fact the issue of jus standi — The Judgment to be con-
strued nonetheless as a matter of law to have finally determined the issue — the
res judicata principle applicable.
   Issue of application of the Genocide Convention to States — No provision of
the Convention including Article I of the Convention capable of creating obliga-
tion upon States not to commit the crime of genocide in the absence of express
stipulation to that effect — The obligation in existence under general interna-
tional law but not under the Convention — Article IX of the Convention
expanded in its scope to give jurisdiction to the Court to entertain claim based
on general international law.

                        I. INTRODUCTORY REMARKS

   1. I concur in general with the conclusions that the Court has reached
in this case as contained in its operative clause (dispositif). This position
of mine applies both to the issue of jurisdiction and to the issues of
merits.
   2. However, I find some parts of the Judgment are not necessarily the
same as my own view in some important respects. I find this to be the
case, especially in relation to the issue of jus standi of the Respondent,
as contained in Section III of the Judgment on “The Court’s jurisdic-
tion”, and in relation to the issue of the application of the Convention
on the Prevention and Punishment of the Crime of Genocide (hereinafter
referred to as the “Genocide Convention”) to the Respondent, as
contained in Section IV of the Judgment on “The applicable law . . .”.
More specifically, it is my view that the Court’s pronouncement on
the issue of jus standi of the Respondent in the present case, to which
I agree, should be elaborated a little further to answer to some of the
points raised by the Parties, whereas the Court’s conclusion on the issue
of the application of the Genocide Convention to the Respondent,
to which I also agree, has been reached on grounds which I cannot
share.
   3. For these reasons, I wish to append to the Judgment my own sepa-
rate opinion, which is confined to these two issues.

246

286      APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

            II. THE ISSUE OF JUS STANDI OF THE RESPONDENT

   4. As the starting point for my examination of this issue, I wish to
make a few preliminary comments. First, I wish to make the point that
the Judgment of the Court in the 2004 Legality of Use of Force cases (see
Legality of Use of Force (Serbia and Montenegro v. Belgium), Prelimi-
nary Objections, Judgment, I.C.J. Reports 2004, pp. 279 et seq.) should
be taken as one important point of reference for our consideration of the
present case, in spite of the fact that it is obviously a different case in the
technical sense. It is the most recent authoritative statement on the legal
position of this Court on a number of points relevant to the present case.
I do not accept as valid the approach advanced by the Applicant to the
effect that the Court in the present case would have to choose between
the two alternatives — (a) to harmonize a “vertical inconsistency”
between the 1996 Judgment on preliminary objections in the present case
and the present Judgment, or (b) to harmonize a “horizontal inconsist-
ency” between the Judgment on preliminary objections in the 2004 Legal-
ity of Use of Force cases and the present Judgment, and that the Court
should choose the first approach. These two, however, are not to be the
alternatives from which to choose one rather than the other. In my view,
the Court should proceed in the present Judgment on the basis that there
is no inconsistency between the 1996 Judgment and the 2004 Judgment.
   5. Second I regard the present phase of the proceedings, not as one
more additional argument on preliminary objections to the “jurisdiction”
— ratione personae — of the Court, but rather as a so far unexplored
phase of the proceedings, in which the Court would have to conduct an
examination into the allegation of some fundamental defect in the appli-
cation of the law of procedure of the Court that might vitiate the basis of
competence of the Court to deal with the present case on the merits. It is
my view that this issue of access to the Court is an issue separate from the
issues of jurisdiction in its specific sense, whether ratione personae, ratione
materiae, or ratione temporis, which are all issues relating to the scope of
the consent given by the parties under the relevant legal instruments (or
the relevant legal act in the case of forum prorogatum) in relation to a
concrete dispute.
   6. Finally, it is my view that for this reason the principle enunciated in
the case concerning the Appeal Relating to the Jurisdiction of the ICAO
Council (hereinafter referred to as “ICAO Council” case) is simply irrele-
vant. I certainly endorse the principle enunciated in that Judgment to the
effect that “always” in this dictum means “always” in the sense of “at any
stage of the proceedings in the case” (Appeal Relating to the Jurisdiction
of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972,
p. 52, para. 13). This, however, is stating the obvious and nothing more,
since the Court is ipso jure mandated, both as of right and as of duty, to
ascertain that it has jurisdiction at any stage of the proceedings, to the
extent that the point at issue has not been raised earlier in the same pro-
ceedings and decided upon by the Court in a way which would constitute

247

287       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

res judicata. On the other hand, I submit that the issue raised in the “Ini-
tiative to the Court to Reconsider ex officio Jurisdiction over Yugosla-
via” (hereinafter referred to as the “Initiative”) of 4 May 2001 by Serbia
and Montenegro is not an issue of “jurisdiction” of such character in its
specific sense in which the term is used in the ICAO Council case.

  7. In the Legality of Use of Force cases, the Court clarified by its 2004
Judgment on preliminary objections the legal character of the “access to
the Court” in the following words :
      “[t]he question [in those cases] is whether as a matter of law Serbia
      and Montenegro was entitled to seise the Court as a party to the
      Statute at the time when it instituted proceedings” (see Legality of
      Use of Force (Serbia and Montenegro v. Belgium), Preliminary
      Objections, Judgment, I.C.J. Reports 2004, p. 295, para. 36 ; empha-
      sis in the original),
and that this was a separate question from the issue of jurisdiction in a
specific case.
  The Court came out with the conclusion that
      “at the time of filing of its Application to institute the present pro-
      ceedings before the Court on 29 April 1999, the Applicant in the
      present case . . . was not a Member of the United Nations, and, con-
      sequently, was not, on that basis, a State party to the Statute of the
      International Court of Justice” (see ibid., p. 314, para. 91).
   8. Contrary to urging from the Applicant that the Court treat this con-
clusion as exceptional and even as something to be disregarded as irrele-
vant to the present case, I do consider it relevant to the present case. It is
proper for the Court not to depart from the position expressed in this
conclusion of the Court and its basic reasoning ; after all the Court has
pronounced a definitive position on this matter. I might add that this is
not one of those cases to which an old adage that “a difficult case makes
a bad law” would apply. The conclusion reached by the Court is the
result of the best efforts on the part of the Court. (It should also be
recalled that in these case all the applicants except France advanced an
argument based on the alleged lack of jus standi of the Applicant as their
principal line of argument.) While obviously this judgment does not tech-
nically constitute a res judicata for other cases including the present one,
to which Article 59 of the Statute applies, what is relevant for the con-
sideration of the Court is the question of whether and to what extent the
legal reasoning enunciated by the Court in arriving at its conclusion in
that judgment is applicable to the present case.

  9. The Applicant has tried to argue that the Respondent is deemed to

248

288       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

have accepted the jurisdiction of the Court in the present case, by invok-
ing the principle of estoppel and/or the principle of acquiescence or
further to rely on the doctrine of forum prorogatum. The basic rationale
for this position would seem to be common in all of these arguments. It
rests on the proposition that the Respondent, by acting as if it did not
contest the jurisdiction of the Court for any other grounds than those
which it had specifically raised as the basis for objection to the jurisdic-
tion of the Court in the preliminary objections phase of the present case,
has to be regarded in law either as having accepted the jurisdiction of the
Court in the present case (the principle of acquiescence), or as having
been barred from raising a new ground which is the subject-matter of the
present démarche of the Respondent (the principle of estoppel), or as
having been deprived of the freedom to act in a different way (the prin-
ciple of good faith). Alternatively the Applicant further argues that the
Respondent has acted in fact in such a way as to be tantamount to con-
senting to the exercise of jurisdiction by the Court in the present case (the
doctrine of forum prorogatum).
   10. These arguments, in a word, are based on one common presuppo-
sition, i.e., whatever lacuna may have existed in the lien of jurisdiction
that would tie the parties to the Court could be filled by the operation of
law or by some actual behaviour of the parties, in such a way as to estab-
lish the consent of the Parties to jurisdiction.

   11. However, it must be pointed out that while all these principles may
be relevant to the issue of legal relationship inter partes before the Court,
the issue raised in the present phase of the proceedings is a different one
in its essential character. And this issue, as a matter of principle, has been
the subject of the decision by the Court in its 2004 Judgment on the
Legality of Use of Force cases. As the Court so unequivocally stated in
that Judgment
      “it is the view of the Court that a distinction has to be made between
      a question of jurisdiction that relates to the consent of a party and
      the question of the right of a party to appear before the Court under
      the requirements of the Statute, which is not a matter of consent”
and
      “[t]he function of the Court to enquire into the matter and reach its
      own conclusion is thus mandatory upon the Court irrespective of the
      consent of the parties and is in no way incompatible with the prin-
      ciple that the jurisdiction of the Court depends on consent” (see
      Legality of Use of Force (Serbia and Montenegro v. Belgium), Pre-
      liminary Objections, Judgment, I.C.J. Reports 2004, p. 295, para. 36).

This position of the Court has to be accepted as an authoritative state-
ment of the law in dealing with the present case.
  12. For this reason, all these arguments advanced by the Applicant to

249

289       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

justify the exercise of jurisdiction by the Court in the face of a new
attempt of the Respondent based on its claim of the lack of jus standi
access to the Court should be rejected. On this point, I am in agreement,
with the conclusion reached by the Judgment (paras. 102-103).
   13. However, the Applicant has also tried to argue that in any case the
1996 Judgment on preliminary objections in its entirety constitutes res
judicata in the present case and thus prevents the Respondent from rais-
ing the issue of the access to the Court/jurisdiction ratione personae, as
contained in the new “Initiative” of the Respondent, at this stage of the
proceedings. It is my view, however, that an assertion of the principle of
res judicata with such a sweeping and general application cannot be
accepted as a valid construction of the principle of res judicata in inter-
national law.
   14. Article 60 of the Statute is generally regarded to be the provision in
the Statute that gives expression to the principle of res judicata as applied
to the International Court of Justice.
   The statement contained in Article 60 of the Statute has been inter-
preted as the practical embodiment within the Statute of the rule of res
judicata as “a general principle of law recognized by civilized nations”.
Thus, during the discussion in the Advisory Committee of Jurists con-
tracted with the task of drafting the Statute of the Permanent Court of
International Justice, it was suggested by one member of the Committee
(Lord Philimore) that

      “the general principles referred to in [the present Article 38] were
      these which were accepted by all nations in foro domestico, such as
      certain principles of procedure, the principle of good faith, and the
      principle of res judicata, etc.” (PCIJ, Advisory Committee of Jurists,
      Procès-Verbaux of the Proceedings of the Committee, 1920, p. 335).
Nevertheless, the jurisprudence of this Court, especially in its Advisory
Opinion in the case concerning the Effect of Awards of Compensation
Made by the United Nations Administrative Tribunal (hereinafter referred
to as the “Effects of Awards” case), makes it quite clear that the principle
contained in Article 60 of the Statute cannot be considered as an absolute
rule in relation to an international tribunal. The Court stated in that
Advisory Opinion that
      “[t]his rule . . . cannot . . . be considered as excluding the Tribunal
      from itself revising a judgment in special circumstances when new
      facts of decisive importance have been discovered” (Effects of Awards
      of Compensation Made by the United Nations Administrative Tribu-
      nal, Advisory Opinion, I.C.J. Reports 1954, p. 55).

  15. This is particularly true with an international jurisdiction in which
the competence of the tribunal is not a priori determined by the legal sys-
tem itself within which the tribunal operates but is subject to the juris-

250

290       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

dictional framework set by the parties to the dispute. For this reason
Judge Jessup, in his dissenting opinion in the 1966 South West Africa
case, emphasized the relative nature of res judicata in international law
by stating that “the Court is always free, sua sponte, to examine into its
own jurisdiction” (South West Africa, Second Phase, Judgment, I.C.J.
Reports 1966, p. 333). Thus he concluded as follows :

         “Various pronouncements in the jurisprudence of the two Courts
      [i.e., the PICJ and the ICJ], in various separate opinions and in the
      ‘teachings of the most highly qualified publicists’ do not provide an
      automatic test to determine what is within and what is without the
      res judicata rule.” (Ibid.)
In applying the res judicata rule, it is indeed essential that we avoid an
automatic application of the rule and try to determine the scope of what
has been decided as res judicata in the concrete context of the case.

   16. Specifically in relation to the present case, the critical question in
issue is whether the problem of access to the Court, argued by the
Respondent extensively at the present phase of the proceedings on the
basis of its “Initiative” of 2001, is something which has been disposed of
by the Court in its 1996 Judgment dealing with preliminary objections to
the jurisdiction of the Court and should thus be regarded as falling within
the scope of res judicata — “that which has already been judged” — for
the purposes of the present case.
   17. It must be emphasized that in the present case the question of jus
standi of the Respondent/access of the Respondent to the Court was, as
a matter of fact, never an issue before the Court at the time of the 1996
Judgment — neither raised by the Applicant nor by the Respondent. In
the proceedings on preliminary objections, the Respondent raised seven
preliminary objections relating to the jurisdiction of the Court but did
not refer to this issue of access to the Court. On the basis of the argu-
ments of the parties, the 1996 Judgment made no mention of this aspect
of the problem of “jurisdiction” lato sensu, i.e., the problem of the “com-
petence” of the Court to entertain the case. The dispositif of the Judg-
ment was confined to specifically rejecting all six — one out of the seven
having been withdrawn — preliminary objections and on this basis pro-
ceeded to a finding that “on the basis of Article IX of the [Genocide]
Convention, [the Court] has jurisdiction to adjudicate upon the dispute”
(Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
Objections, Judgment, I.C.J. Reports 1996 (II), p. 623, para. 47 (2)
(a) (dispositif)).
   18. This makes a conspicuous contrast to the language of the Court in
its earlier Order of 8 April 1993 on the Request for the Indication of Pro-
visional Measures. In that Order the Court drew the attention of the
parties to the point that

251

291       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

      “Article 35, paragraph 1, of the Statute of the Court provides that
      ‘The Court shall be open to the States parties to the present Statute’,
      and Article 93, paragraph 1, of the United Nations Charter that ‘All
      Members of the United Nations are ipso facto parties to the Statute
      of the International Court of Justice’ ; and . . . it is maintained in the
      Application that ‘As Members of the United Nations Organization,
      the Republic of Bosnia and Herzegovina and Yugoslavia (Serbia
      and Montenegro) are parties to the Statute’ ; . . . however in the
      Application Bosnia-Herzegovina indicates that the ‘continuity’ of
      Yugoslavia with the former Socialist Federal Republic of Yugosla-
      via, a Member of the United Nations, ‘has been vigorously contested
      by the entire international community, and [sic] including by the
      United Nations Security Council . . . as well as by the General
      Assembly’, and reference is there made to (inter alia) Security
      Council resolution 777 (1992) and General Assembly resolution 47/1”
      (Application of the Convention on the Prevention and Punishment of
      the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
      Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993,
      p. 12, para. 15).

  After reviewing the contents of Security Council resolution 777 (1992)
and General Assembly resolution 47/1, as well as the letter of the Under-
Secretary-General and Legal Counsel of the United Nations of 29 Sep-
tember 1992 in which he stated the “considered view of the United
Nations Secretariat regarding the practical consequences of the adoption
by the General Assembly of resolution 47/1” (ibid., p. 13, para. 17), the
Court declared that

      “while the solution adopted [in the United Nations as of that time] is
      not free from legal difficulties, the question whether or not Yugosla-
      via is a Member of the United Nations and as such a party to the
      Statute of the Court is one which the Court does not need to deter-
      mine definitively at the present stage of the proceedings” (ibid., p. 14,
      para. 18 ; emphasis added).

It is thus clear that the Court in this 1993 Order consciously refrained
from pronouncing its position on this crucial issue, while implicitly
reserving the matter for future “definitive determination”.
   19. In spite of this background, the Court in its 1996 Judgment, while
it could not have been unaware of this problem concerning the legal situ-
ation surrounding the legal status of the Respondent (jus standi) vis-à-
vis the Court, made no mention of this aspect of the problem of “jurisdic-
tion” lato sensu, and decided that

      “on the basis of Article IX of the Convention on the Prevention and
      Punishment of the Crime of Genocide, it has jurisdiction to adjudi-
      cate upon the dispute” (Application of the Convention on the Preven-

252

292       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

      tion and Punishment of the Crime of Genocide (Bosnia and Herze-
      govina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J.
      Reports 1996 (II), p. 623, para. 47 (2) (a) (dispositif) ; emphasis
      added).
More specifically, in paragraphs 41 and 42 of the 1996 Judgment, the
Court stated as follows :
        “41. It follows from the foregoing that the Court is unable to
      uphold any of the additional bases of jurisdiction invoked by the
      Applicant and that its only jurisdiction to entertain the case is on the
      basis of Article IX of the Genocide Convention.
        42. Having ruled on the objections raised by Yugoslavia with
      respect to its jurisdiction, the Court will now proceed to consider the
      objections of Yugoslavia that relate to the admissibility of the Appli-
      cation.” (Ibid., p. 621.)
This passage can only be interpreted as signifying that the Court was
focusing its attention with regard to jurisdiction exclusively upon the
issues raised by the parties. The language of the Judgment strongly sug-
gests that in making that statement and those that followed, including
paragraph 46 and the dispositif subparagraph 2 (a), the Court was
addressing to those issues of jurisdiction stricto sensu which had been
raised by the Respondent, without going into examination of the issue of
access, an issue which, in its nature, was independent from the argument
of the parties and which was to be determined by the Court as an objec-
tive question.
   20. It should be clear from this background of facts surrounding the
1996 Judgment that what is at issue here is not the question of whether
the principle of res judicata as incorporated in Article 60 of the Statute is
to be honoured or not. It is clear that this is a principle to be honoured
by this Court, though with all the caveats that I have discussed earlier on
as a legal principle. Neither is it the question of whether the principle
applies to the decision of the Court on the merits only or extends to its
decision on procedural issues, including the issues of jurisdiction. Clearly
the principle should be applicable to both. It is not even the question of
whether the 1996 Judgment as a general proposition constitutes res judi-
cata either. It does certainly constitute res judicata. On all these points, I
endorse the position taken by the Court in the present Judgment.

   21. The sole and crucial question is what is to be regarded as the exact
element of this 1996 Judgment that constitutes res judicata for the pur-
poses of the present Judgment.
   22. It could be said in this context that perhaps it was unfortunate that
in 2001 Serbia and Montenegro brought this very issue before the Court
in the form of an application for revision of the 1996 Judgment (Applica-
tion for Revision of the Judgment of 11 July 1996 in the Case concerning
Application of the Convention on the Prevention and Punishment of the

253

293      APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
Objections (Yugoslavia v. Bosnia and Herzegovina) (hereinafter referred
to as the “Revision of the 1996 Judgment” case), rather than in the form
of a request for interpretation of the 1996 Judgment. As the former was
strictly the question of the application of Article 61 of the Statute, the
Court — quite correctly in my view — gave its 2003 Judgment strictly
within the confines of the conditions set out in Article 61. If the issue had
been raised as a new dispute concerning the interpretation of the 1996
Judgment as to whether the Judgment covered the question of access of
the Respondent to the Court, i.e., as a “dispute as to the meaning or
scope of the judgment” under Article 60, the Court could have had the
opportunity in 2003 to address the present issue before the Court.
   23. Be that as it may, it would seem difficult to establish against the
background as reviewed above, that the Court in 1996, while fully aware
of the problem which it had already acknowledged in its Order of 8 April
1993 to exist and chosen to avoid to answer, did go, as a matter of fact,
into an examination of that issue, though without pronouncing upon it
expressis verbis in the Judgment, and came out with the “definitive deter-
mination” on that issue in the form of such dispositif. If that had been the
case, the conclusion would certainly be warranted that this specific aspect
of the problem would certainly be covered automatically by the appli-
cation of the res judicata principle.
   24. Under the actual circumstances of 1996 as revealed through the
examination of the factual background, however, I find it difficult to
accept the argument of the Applicant that the Court did decide, as a mat-
ter of fact, the issue of access to the Court and that therefore the issue
automatically falls within the purview of the 1996 Judgment as constitut-
ing an integral part of res judicata established by the 1996 Judgment and
is thus a priori precluded from the Court’s consideration at this stage.
   25. In fact, all these points are reflected in the conclusions that the
Court has drawn in its 2004 Judgment. In this sense what is stated above
represents nothing more than a reconfirmation of the points enunciated
by the Court in its 2004 Judgment.
   26. Having thus stated my basic position, nevertheless I have to pro-
ceed to point out that there is yet one more element which would require
further consideration by the Court on this question in the specific context
of the present case. And I believe that this element constitutes the critical
factor in distinguishing the present case from the 2004 Judgment on the
Legality of Use of Force cases. The essential element for distinguishing
the present case from the Legality of Use of Force cases in my view lies in
the difference in the time-frame in which the Court has to look at the
same problem of jus standi/access to the Court of Serbia and Montenegro
in the Legality of Use of Force cases and in the present case.
   27. In the Legality of Use of Force cases, the filing of the Application
took place on 29 April 1999, and on that day a request for the indication
of provisional measures of protection was submitted by the Applicant in
that case, Serbia and Montenegro. The Court, by its Order of 2 June

254

294       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

1999, rejected this request on the ground that it had no prima facie juris-
diction to entertain the cases (I.C.J. Reports 1999 (I), p. 134, para. 26).
Nothing further came about in the proceedings of the Court on these
cases until well after 2000, when Serbia and Montenegro was admitted to
the United Nations. It was in 2004 that the Court had the opportunity,
for the first time on the occasion of its Judgment on Preliminary Objec-
tions in these cases, to engage in an overall examination of the question
of jurisdiction in relation to these cases, including the issue of the access
of the Applicant to the Court.
   28. Under these circumstances, the Court, for the first time in 2004,
was in a position to engage in an examination of the issue of jus standi of
the Applicant in the context of the issue of the legal status of the then
Federal Republic of Yugoslavia (hereinafter referred to as “the FRY”)
from the viewpoint of whether the Applicant (i.e., Serbia and Montene-
gro) satisfied the conditions laid down in Articles 34 and 35 of the Statute
and whether the Court was open to the Applicant. In the Judgment itself
the Court declared for the first time in 2004 that
      “[o]nly if the answer to that question is in the affirmative will the
      Court have to deal with the issues relating to the conditions laid
      down in Articles 36 and 37 of the Statute of the Court” (see Legality
      of Use of Force, Preliminary Objections, Judgment, I.C.J. Reports
      2004, p. 299, para. 46).
Based on a detailed examination of facts and law involved as they were
known to the Court as of that time, the Court came out with the conclu-
sion that the Applicant had not been a member of the United Nations
during the critical period between 1999-2000 and thus did not satisfy the
conditions laid down in Article 35 of the Statute. It thus followed that the
Applicant could not have access to the Court, with the consequent result
that the Court did not have jurisdiction to entertain these cases.
   29. In coming to this conclusion, the Court was clearly aware that the
Applicant in these cases, the FRY (Serbia and Montenegro), had in 2003
in the Revision of the 1996 Judgment case, put forward essentially the
same argument that the Respondent in the instant cases was invoking,
i.e., that the FRY had not been a party to the Statute at the date of insti-
tution of the proceedings in the Genocide Convention case in 1993.
Against this, the Respondent in the Revision of the 1996 Judgment case,
Bosnia and Herzegovina, argued, inter alia, that the 1996 Judgment on
preliminary objections in the Genocide Convention case had the force of
res judicata (cf. Written Observations of Bosnia and Herzegovina of
3 December 2001 on the Revision of the 1996 Judgment case, para. 5.36) ;
that Serbia and Montenegro had acquiesced in the Court’s jurisdiction
on the basis that it was a Member of the United Nations and party to the
Statute and could not retract that position (ibid., paras. 4.4-4.7) ; that
Serbia and Montenegro was precluded, whether on the basis of estoppel
or of the general principle of good faith, from invoking its own mistake
in interpreting the legal situation (ibid., para. 4.19). It also argued that

255

295       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

the Court would have jurisdiction under Article 35, paragraph 2, of the
Statute (Revision of the 1996 Judgment, paras. 5.1-5.27).

   30. Nevertheless, in its Judgment on the Revision of the 1996 Judg-
ment case the Court did not pronounce on any of these contentions for
the simple reason that the Court decided that the task of the Court was
to confine itself to the examination of the question whether a “new fact”
had been adduced to satisfy the conditions required under Article 61 of
the Statute. The Court, solely on that basis, rejected the application for
revision of the Applicant, Serbia and Montenegro, as not satisfying the
conditions under Article 61. It was during this same period following the
new developments of 2000, which definitively clarified the legal status of
FRY in and vis-à-vis the United Nations, that the Court in 2004 for the
first time had the opportunity to address the issue of its competence to
entertain the cases brought by the FRY as the Applicant, including the
issue of the Applicant’s access to the Court. In light of the circumstances
which had come to be clarified in the post-2000 period, the Court came to
its well-known conclusion that it lacked jurisdiction because the Appli-
cant lacked the jus standi to appear before the Court in light of the facts
available to it as of that time.
   31. By contrast, the legal situation surrounding the 1996 Judgment on
preliminary objections in the present case was quite different. As already
stated, in its Order of 8 April 1993 on the request for the indication of
provisional measures, the Court determined that
      “while the solution adopted [in the United Nations as of that time] is
      not free from legal difficulties, the question whether or not Yugosla-
      via is a Member of the United Nations and as such a party to the
      Statute of the Court is one which the Court does not need to deter-
      mine definitively at the present stage of the proceedings” (Application
      of the Convention on the Prevention and Punishment of the Crime of
      Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional
      Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 14, para. 18 ;
      emphasis added).
It was in 1996, well before 2000, that the Court, in its Judgment on Pre-
liminary Objections made the finding that
      “on the basis of Article IX of the Convention on the Prevention and
      Punishment of the Crime of Genocide, it has jurisdiction to adjudi-
      cate upon the dispute” (I.C.J. Reports 1996 (II), para. 47 (2) (a)
      (dispositif), p. 623).
  32. This means that if we accept that this Judgment did dispose of all
the issues relating to jurisdiction stricto sensu raised by the Respondent
and declared that “it has jurisdiction to adjudicate upon the dispute”,
then this decision could only mean as a matter of law that every process
to be completed before the Court could proceed to the examination of
the merits of the case had been completed in 1996, long before the legal

256

296      APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

situation regarding the status of the FRY became finally clarified in a
new light in 2000. And this to my mind is the decisive difference that dis-
tinguishes the 1996 Judgment from the 2004 Judgment, both relating to
the preliminary objections on jurisdiction.
   33. It is true that the 1996 Judgment did not make any express refer-
ence, nor any express “definitive determination” by the Court with regard
to the issue of the legal status of the Respondent vis-à-vis the Statute of
the Court. Nevertheless, it is simply impossible to think that the Court
was unaware of the issue surrounding the legal status of the Respondent
(the issue of jus standi/access to the Court) which had already been iden-
tified and expressly referred to in its Order of 1993. Under such circum-
stances, the conclusion is inescapable that whatever the view of the Court
may have been at the time of this 1996 Judgment on the issue of the legal
status of the FRY during the relevant period between 1993 and 1996, the
Court at the time of its 1996 Judgment at least did not put in question the
capacity of the FRY to have access to the Court under the Statute. Since
the issue of the capacity of a party to have the legal standing to appear
before the Court has to be regarded as a question which logically pre-
cedes the issues relating to jurisdiction stricto sensu — i.e., the issues
relating to jurisdiction ratione personae, ratione materiae and ratione
temporis under the relevant legal instruments that afford the basis for
jurisdiction of the Court in a concrete case — it would be impossible to
argue as a matter of law that the Court itself, when it pronounced in its
1996 Judgment that “it had jurisdiction to adjudicate upon the dispute”
— and not just prima facie jurisdiction but jurisdiction ratione personae,
ratione materiae and ratione temporis — should be deemed to have left
undecided, and kept open, what is the logical premise for such a pro-
nouncement — i.e., the premise that the Respondent had the legal stand-
ing to appear before the Court, on whatever ground that might be. In
other words, this Judgment has to be regarded in law as amounting to the
“definitive determination” as referred to in its Order of 1993, as far as the
present case is concerned.
   34. It should be emphasized that this position is strictly to be distin-
guished from the one based on “tacit acceptance” or “implied accept-
ance” of jurisdiction. The only context in which this logic prevails is that
the Court itself, by legal construction, must be deemed in law to have
settled the issue of access to the Court, an issue which constitutes the
logical prerequisite that the Court has to satisfy before it can proceed to
the conclusion that it has jurisdiction ratione personae, ratione materiae,
and ratione temporis. Without addressing that problem, the Court simply
could not have proceeded to the examination of jurisdiction stricto sensu.
   35. Furthermore, it would follow from this conclusion as long as we
accept that the Court by legal construction has to be deemed to have
made such “definitive determination”, though without specifically
addressing it in the Judgment, the issue of access to the Court has to be
regarded also as coming into the ambit of issues that constitute res judi-
cata of the 1996 Judgment.

257

297      APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

   36. It might further be added that a case could be made that the
parties, as well as the Court itself, until 2000 long after the 1996 Judg-
ment, had been acting in reliance on the conclusion, induced by the
Court itself, that the Respondent did indeed have the capacity to appear
before the Court, and that this fact in itself constitutes an objective legal
situation which can no longer be ignored at this stage by the parties and
by the Court.
   37. In a nutshell, my view on this question is that the Court itself, and
not the Respondent, is precluded now from taking a different position at
this stage which would be diametrically opposed to the one that the
Court itself is deemed in law to have so definitively determined in the
present case. The principle of consistency as an essential prerequisite for
the stability of legal relations should support such an approach.

 III. THE NATURE OF OBLIGATIONS UNDER THE GENOCIDE CONVENTION

   38. The Court, in paragraph 179 of the present Judgment, concludes
that
      “[i]t affirms that the Contracting Parties are bound by the obligation
      under the Convention not to commit, through their organs or per-
      sons or groups whose conduct is attributable to them, genocide and
      the other acts enumerated in Article III” (Judgment, para. 179 ;
      emphasis added).
   39. I agree with this finding of the Court in its present general formu-
lation, and on this basis have voted in favour of the items of the dispositif
relating to this point (dispositif, sub-paras. (2) to (5)).
   40. At the same time, however, I wish to register here my position that
while I accept the conclusion of the Court that the Respondent “through
[its] organs or persons or groups whose conduct is attributable to [it]”
(Judgment, para. 179) may not only incur international responsibility for
acts of genocide or the other acts enumerated in Article III committed by
such organs or persons or groups under international law, but also can be
held to account before this Court for such internationally wrongful acts
as falling within the jurisdiction of the Court under Article IX the Geno-
cide Convention, I cannot agree with the legal ground on which the Judg-
ment has arrived at this conclusion, inasmuch as the Judgment is pri-
marily based on its finding on the scope of Article I of the Convention.

  41. In the most crucial part of the Judgment which discusses this point
of direct responsibility of the State for genocide, the Judgment declares as
follows :
       “Under Article I [of the Genocide Convention] the States parties
     are bound to prevent such an act, which it describes as ‘a crime
     under international law’, being committed. The Article does not

258

298       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

      expressis verbis require States to refrain from themselves committing
      genocide. However, in the view of the Court, taking into account the
      established purpose of the Convention, the effect of Article I is to
      prohibit States from themselves committing genocide. Such a prohi-
      bition follows, first, from the fact that the Article categorizes geno-
      cide as ‘a crime under international law’ : by agreeing to such a
      categorization, the States parties must logically be undertaking not
      to commit the act described. Secondly, it follows from the expressly
      stated obligation to prevent the commission of acts of genocide.
      That obligation requires the States parties, inter alia, to employ the
      means at their disposal, in circumstances to be described more spe-
      cifically later in this Judgment, to prevent persons or groups not
      directly under their authority from committing an act of genocide or
      any of the other acts mentioned in Article III. It would be paradoxi-
      cal if States were thus under an obligation to prevent, so far as
      within their power, commission of genocide by persons over whom
      they have a certain influence, but were not forbidden to commit such
      acts through their own organs, or persons over whom they have such
      firm control that their conduct is attributable to the State concerned
      under international law. In short, the obligation to prevent genocide
      necessarily implies the prohibition of the commission of genocide.”
      (Judgment, para. 166 ; emphasis added.)

   42. In my view, there could be no question that under the general law
of State responsibility international responsibility could certainly be
incurred on the part of a State if an individual or an entity, acting as an
organ of that State or in any other matter which makes the act attribut-
able to the State, should be held responsible for this internationally
wrongful act.
   43. I also have no difficulty in accepting the proposition that the
underlying basic principle of the Genocide Convention is that genocide
as defined in the Convention is a heinous “crime under international law”
(Art. I), which the States members of the international community, col-
lectively as community and severally in their individual capacity, are obli-
gated to prevent and punish, and a fortiori to forego its commission by
themselves.
   44. But I do not believe that it follows from this general proposition
that the Convention, as such, therefore should by necessary implication
be deemed to impose upon States parties an obligation under Article I
that the State parties undertake not to commit an act of genocide and to
accept direct international responsibility for such an act and be held to
account under the Convention, despite the fact that the article does not
contain any provision imposing such an obligation upon the States
parties. The issue is not whether such an obligation on the part of States
exists in contemporary international law or not ; the issue is what is the

259

299       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

source of such obligation if it exists, for the purposes of the present
case.
   45. It seems to me absolutely clear from the very title and the whole
structure of the Convention that the object and purpose of the Conven-
tion is to make a solemn compact among the States parties to the Con-
vention to “confirm that genocide [as defined by the Convention] is a
crime under international law” and to “undertake to prevent and to pun-
ish” this international crime (Art. I), primarily focusing, as the concrete
means to carry out this undertaking, on prosecuting individuals who are
the actual culprits of the crime. We find no provisions in the Convention
which prescribe an undertaking on the part of the States parties that they
bind themselves to the obligation not to commit an act of genocide them-
selves and to assume direct responsibility directly for a breach of such
obligation under the Convention. Since the Convention is a solemn com-
pact among sovereign States, I do not believe that one can simply pre-
sume that such an undertaking is implicitly assumed by the States parties
to the Convention when the Convention itself is totally silent on that
point.
   46. As the Permanent Court of International Justice declared in its
famous dictum, it is one of the fundamental principles accepted in the
contemporary international legal order that :
         “International law governs relations between independent States.
      The rules of law binding upon States therefore emanate from their
      own free will as expressed in conventions or by usages generally
      accepted as expressing principles of law and established in order to
      regulate the relations between these co-existing independent commu-
      nities or with a view to the achievement of common aims. Restric-
      tions upon the independence of States cannot therefore be presumed.”
      (“Lotus”, Judgment No. 9, 1927, P.C.I.J., Series A, No. 10, p. 18 ;
      emphasis added.)
  47. In the same vein, the same Court stated, in the context of a case in
which the question at issue was whether the extent of autonomy granted
by one of the parties under a treaty could be inferred when the treaty in
question was silent, as follows :
      “the exercise of the [autonomous] powers necessitates the existence
      of a legal rule which cannot be inferred from the silence of the instru-
      ment from which the autonomy is derived, or from an interpretation
      designed to extend the autonomy by encroaching upon the operation
      of the sovereign power” (Interpretation of the Statute of the Memel
      Territory, Merits, Judgment, 1932, P.C.I.J., Series A/B, No. 49,
      p. 313 ; emphasis added).
   48. Moreover, even if such a presumption were to be permissible in the
present context, it would certainly be a rebuttable presumption. And it
can indeed be rebutted in light of the legislative history of the Conven-
tion, as I am going to demonstrate in a moment.

260

300      APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

   49. Needless to say, in making this point I do not mean to suggest for
a moment that under the current state of international law States are left
free to commit an act of genocide. Nothing could be further from my
own position on this question. The point is simply that the object and
purpose of the Convention is to pursue the question of preventing and
punishing the heinous act of genocide, which the international commu-
nity is unanimous in abhorring and condemning, through an approach of
treating it as an international crime and holding to account the individuals
who are actual culprits of genocide for their criminal responsibility.
   50. It is to be emphasized that this approach is also in line with the
approach adopted by the International Military Tribunal at Nuremberg,
which formed the crucial background for the Genocide Convention. The
Tribunal famously stated that “crimes against international law are com-
mitted by men, not by abstract entities” (Judgment of the International
Military Tribunal, Trial of Major War Criminals, 1947, Vol. 1, p. 223)
and went on to punish the individuals involved, rather than the State as
such.
   51. Needless to say, there is no question that a State, as a legal entity,
always acts in its name through individuals who are its organs and that
such acts of these individuals constitute in law acts of the State. As a
result, an act of such individuals acting as an organ of the State is to be
identified as an act of the State in whose name they are acting, and could
incur the international responsibility of the State concerned, if the act in
question is something which can be characterized as an internationally
wrongful act. Precisely for this reason, the Convention addresses that
very issue in its Article IV.
   52. But the issue here is a different one. Even granting that in a great
number of cases of genocide, it is the State which is the real culprit
behind the act even when the act in question is perpetrated as an act of
the individual involved acting as an organ of that State, the question to
ask in relation to the Convention is whether the Convention in its actual
structure takes the approach of directly holding the State to account for
the act which is declared to be an international crime under the Conven-
tion. In my view, the question to ascertain is which of the following three
approaches the Convention, in dealing with the act of genocide, is adopt-
ing as the effective means of achieving the object and purpose of the Con-
vention to prevent and punish genocide :

(a) an approach of holding the individual who actually had a hand in
    the act in question to account for a crime of genocide, which
    requires the existence of dolus specialis on the part of the culprit as
    a matter of criminal law ;
(b) an approach of holding the State, in whose name the individual has
    committed the act, to account for an internationally wrongful act,
    under the international law of State responsibility ; or
(c) an approach of holding both the individual and the State to account
    consecutively.

261

301       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

   In any case it is clear that the Convention has rejected yet another pos-
sibility, i.e., (d) an approach to hold the State directly to account for an
international crime of genocide, on the ostensible ground that a State
cannot commit a crime in the penal sense.
   53. On the basis of a natural interpretation of the provisions of the
Convention having regard to the object and purpose of the Convention
as reflected in its structure, and reinforced by its legislative history as
demonstrated by the travaux preparatoires, I am persuaded by the con-
clusion that — setting aside for the moment the legal implication which
came later to be introduced into the picture by an amendment to the
language of Article IX (a point I am going to deal with later in this
opinion) — all the evidence available to us points to the direction
that the Convention in its original scheme followed the approach (a),
i.e., the approach to pursue the goal of preventing and punishing and
thus banishing genocide as an “international crime”, primarily through
prosecuting the individuals who have committed the criminal act with
dolus specialis, whether acting in the capacity as organs of State or other-
wise. The provisions of Article IV clearly testify to this approach. Also
the emphasis on dolus specialis as one essential constituent element of
genocide as a crime specified in Article II also tends to confirm this inter-
pretation.
   54. It must be noted in this connection that there is nothing in this
approach of the Convention which would logically contradict or exclude
the proposition contained in the approach (b). As is stated above
(paras. 41 et seq.), if an act committed by an individual, acting in his
capacity as an organ of a State, amounts to an internationally wrongful
act in the eyes of international law, the law of State responsibility
attributes this act in question to the State for whom the individual has
acted as its organ, thus incurring international responsibility of the State
for that act. This, however, is a legal situation arising under the rules of
general international law and is separate from the question of the scope
of the obligations under the Convention as represented by the substantive
provisions of the Convention (i.e., Arts. I-VII). In other words, the
approach (b) would certainly be viable, based on the legal link that
could exist under general international law between the rights of the State
that suffers injury through its nationals who are victims of the crime of
genocide to seek remedy for this internationally wrongful act on the one
hand, and the obligations of the State for this internationally wrongful
act on the other.
   55. As a general proposition of the law on this legal nexus, I have no
disagreement with the position enunciated in the Judgment when it pro-
nounces as the following :

        “The Court observes that that duality of responsibility [i.e., the
      responsibility of an individual and the responsibility of the State on
      whose behalf the individual has acted, both existing side by side]
      continues to be a constant feature of international law. This feature

262

302       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

      is reflected in Article 25, paragraph 4, of the Rome Statute for the
      International Criminal Court, now accepted by 104 States : ‘No pro-
      vision in this Statute relating to individual criminal responsibility
      shall affect the responsibility of States under international law’. The
      Court notes also that the ILC’s Articles on the Responsibility of
      States for Internationally Wrongful Acts . . . affirm in Article 58 the
      other side of the same coin : ‘These articles are without prejudice to
      any question of the individual responsibility under international law
      of any person acting on behalf of a State’ . . .” (Judgment, para. 173).

   56. However, I submit that this argument, while certainly valid, misses
the point. The point at issue is not whether international law recognizes
this “duality of responsibility” (ibid.), which it clearly does, but whether
the Genocide Convention is based on such an approach based on “duality
of responsibility” (ibid.) by holding the State to account directly under
the Convention for its internationally wrongful act, as well as holding the
individual to account for his crime of genocide as defined under the Con-
vention. In my view the Convention leaves this first aspect relating to the
direct responsibility of the State as falling outside the scope of the Con-
vention, as far as the substantive provisions of the Convention are con-
cerned. The Convention as such does not touch on this legal link and
leaves the matter to general international law.

  57. In this connection, it is to be noted that the Judgment states that
      “[t]he jurisdiction of the Court is founded on Article IX of the Con-
      vention, and the disputes subject to that jurisdiction are those ‘relat-
      ing to the interpretation, application or fulfilment’ of the Conven-
      tion, but it does not follow that the Convention stands alone”,

and then goes on to say that :
        “In order to determine whether the Respondent breached its obli-
      gations under the Convention, as claimed by the Applicant, and if a
      breach is committed, to determine its legal consequences, the Court
      will have recourse not only to the Convention itself, but also to the
      rules of general international law on treaty interpretation and on
      responsibility of States for internationally wrongful acts.” (Judg-
      ment, para. 149.)
   58. However, it has to be pointed out with regard to this approach of
the Judgment that the issue of the rules of general international law on
State responsibility is a separate issue of substance which is independent
of the scope of Article I of the Convention in the present context, in the
sense that the question of whether a certain act of a State constitutes a
violation of the obligation undertaken by the State under Article I the
Convention is one thing, while the question of whether the same act con-
stitutes an internationally wrongful act under general international law is

263

303      APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

quite another, In deciding on the former issue, the latter question cannot
be brought into play. In my view the question of State responsibility in
this sense, which could certainly be brought into existence under general
international law as a result of the commission of the crime of genocide
by an individual, would be a distinct issue of responsibility of the State
arising out of the link of attribution of the act in question to the State
and not arising directly out of Article I of the Convention. Therefore it
could come under the jurisdiction of the Court under Article IX of the
Convention, only if it can be established that this aspect of State respon-
sibility under general international law is brought into the ambit of the
operation of Article IX, not as a matter of “interpretation, application or
fulfilment of the Convention” but through some mechanism for incorpo-
rating this issue by reference into the scope of the jurisdiction of the
Court. I do not believe that the Court can extend its jurisdiction to this
issue of general international law automatically as if it were a logical
sequence that can be incorporated into the scope of the jurisdiction of the
Court through the process of interpretation on specific obligations pro-
vided for under the Convention.
   59. In considering the matter in the present context, therefore, we have
to examine the precise scope of the jurisdictional framework, within
which the Court operates in the present case, as set by Article IX of the
Convention. In this respect, the standard formula that one normally finds
in a compromissory clause in many treaties — and indeed the formula
that had been adopted in the original compromissory clause of the
present Convention — would not allow us to go into this area of issues of
general international law — i.e., the issues relating to international respon-
sibility of a State for an internationally wrongful act emanating under
general international law, but not under specific provisions of the treaty
in issue. The issue would not fall within the operational scope of such
compromissory clause which limits the jurisdiction of the Court to issues
relating to “interpretation and application of the present Convention”.

  60. The crucial question therefore is whether the added language in
Article IX has changed this legal situation, especially from the viewpoint
of the scope of the jurisdiction of the Court in such a way as to include
within the ambit of the Convention the issue of State responsibility under
general international law for internationally wrongful acts arising out of
the commission of the crime of genocide by individuals specifically pro-
vided for under the Convention.

  61. In order to ascertain this point, a close examination of the travaux
preparatoires on the legislative history of this article would seem to be
indispensable, given the fact that in particular the amended language of
Article IX is so ambiguous as to render it “[devoid of] any meaningful
sense” according to some. (See, e.g., the declaration of Judge Oda in the
1996 Judgment, I.C.J. Reports 1996 (II), p. 628, para. 5) In other words,
here we are faced with a situation in which “the interpretation according

264

304       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

to [the general rule of interpretation in accordance with] Article 31 :
(a) leaves the meaning ambiguous or obscure ; or (b) leads to a result
which is manifestly absurd or unreasonable.” (Vienna Convention on the
Law of Treaties, Art. 32.)
   62. As is well known, the particular language in question in Article IX,
consisting, inter alia, of the addition of the phrase “including disputes
relating to the responsibility of a State for any of the acts enumerated in
Articles II and IV [present Article III]” was proposed by way of an
amendment to Article X (present Article IX) of the original draft Con-
vention by Belgium and the United Kingdom (United Nations doc. A/
C.6/258).
   This proposal for amendment was made in the course of the delibera-
tion on the draft Convention in the Sixth Committee of the United
Nations General Assembly, and was accepted by a narrow margin of
19 votes to 17, with 9 abstentions (United Nations, Official Records of
the General Assembly, Third Session, Sixth Committee, Summary Record
of the 104th meeting, p. 447).

  63. However, in order properly to understand the scope of this amend-
ment, it is necessary to go back to the pre-history to this development.
Originally the United Kingdom had earlier proposed the following
amendment to Article V (present Article IV) :
         “Criminal responsibility for any act of genocide as specified in
      articles II and IV shall extend not only to all private persons or asso-
      ciations, but also to States, governments, or organs or authorities of
      the State or government, by whom such acts are committed. Such
      acts committed by or on behalf of States or governments constitute
      a breach of the present Convention.” (United Nations doc. A/C.6/
      236 ; emphasis added.)

  This proposal, while supported by Belgium, was met with a strong
challenge from a number of delegations, including France, the United
States, Canada and others, mainly on the ground that it was an attempt
to apply the concept of criminal responsibility to States, and was rejected
by 24 votes to 22.
  64. The United Kingdom tried to reintroduce the same idea of direct
responsibility of State in the form of an amendment to Article VI
(present Article V) in the following words :
         “Where the act of genocide as specified by articles II and IV is, or
      is alleged to be the act of the State or government itself or of any
      organ or authority of the State or government, the matter shall, at
      the request of any other party to the present Convention, be referred
      to the International Court of Justice, whose decision shall be final
      and binding. Any acts or measures found by the Court to constitute
      acts of genocide shall be immediately discontinued or rescinded and

265

305      APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

      if already suspended shall not be resume or reimposed.” (United
      Nations doc. A/C.6/236 and Corr.)

   It is not at all clear whether this amendment purported to deal with
criminal responsibility of a State for its own commission of the crime of
genocide — which seems to be the implication from the general context
of the proposal — or tortious liability of a State for an act of genocide
committed by the State — which seems to be the implication from its ref-
erence to the International Court of Justice — in this somewhat confused
formulation. In any case, it seems clear from the language of the amend-
ment that the same idea of holding a State to account for its own com-
mission of the crime of genocide was retained, whereas the sponsor of the
amendment would no longer seem to have intended to pursue criminal
responsibility of a State, seeing that this time the amendment was pro-
posed on the basis that the matter be referred to the International Court
of Justice which by its Statute could not charge a State for its criminal
responsibility.
   65. Belgium, along the same line of approach, proposed an amend-
ment to this United Kingdom text, which included the provision that
“[t]he Court shall be competent to order appropriate measures to bring
about the cessation of the imputed acts or to repair the damage caused to
the injured persons or communities” (United Nations doc. A/C.6/252),
presumably with the intention of making the purport of this amendment
clear.
   66. However, the United States raised a strong objection to this new
proposal on the ground that the substance of the issue had already been
debated and decided during the consideration of Article IV. Faced with
this objection, Belgium and the United Kingdom withdrew their amend-
ments ; they instead developed a further new proposal, this time in the
form of an amendment to Article X (present Article IX), which later
became the basis for the present wording of Article IX.
   67. It should be noted that throughout the whole debate on this issue,
the focus was on whether a State could be held to account for the crime
of genocide which was the focus of the Convention. The contention of the
United Kingdom in its original position would seem to have been that in
principle the State could and should be held to account for its own com-
mission of the crime of genocide. The United Kingdom delegate made the
remarks in the discussion to the effect that the United Kingdom, recog-
nizing the reality that the domestic criminal procedure of a State simply
could not be expected to be effective vis-à-vis its own State in a situation
of the commission of genocide by the State itself, and emphasizing that
there was no prospect whatsoever for an international tribunal to come
into existence in the foreseeable future, thought it essential to provide for
a recourse to the International Court of Justice, the only international
court in existence at that juncture. It seems reasonable to infer from these

266

306      APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

remarks that the United Kingdom delegate tried in this new proposed
amendment to Article X to find a hook to hang on to for achieving the
objective that he had persistently pursued of holding a State to account
for its own act of genocide, through devising a formula of linking this
problem with the compromissory clause already in existence in the draft
Convention for the reference of disputes to the International Court of
Justice. It should be noted, however, that this jurisdictional clause con-
tained in Article X (present Article IX) in its original form had been
meant to be no more than a standard compromissory provision for the
reference of a dispute relating to the interpretation and application of the
provision of the Convention to the International Court of Justice, and as
such would not be available for creating a new obligation of a substan-
tive nature, where no such obligation had been incorporated in the sub-
stantive provisions of the Convention.

   68. A perusal of the debate in the Sixth Committee in this confused
situation makes me wonder whether the essential nature and the legal
implications of the Belgium/United Kingdom amendment, seen within
the framework of the basic object and purpose of the Convention which
was to criminalize genocide committed by individuals and to create the
obligations on the part of States to prevent and punish the crime of geno-
cide, were sufficiently precisely conceived by the co-sponsors of the Bel-
gium/United Kingdom amendment, and its impact upon the essential
character and the scope of the Convention fully grasped by the delegates
who voted for the amendment. It is interesting to note in this context that
a great majority of the delegates who participated in the debate were in
general consensus that this new formulation should not be aimed at
criminalizing a State as such for perpetrating the act of genocide. It is
however doubtful whether many of them (a notable exception being the
delegate of the United States) gave enough thought to the question of
compatibility of this approach with the essential character of the Conven-
tion as the legal instrument to penalize the crime of genocide committed
by individuals on the international level.
   69. As a result of this ambiguity brought into the present Article IX,
some of them would seem to have interpreted the formula only to be
declaratory of the traditional principle of State responsibility on the
breach of specific treaty obligations, whereby a State is held responsible
for its own breach of the obligations arising under the substantive pro-
visions of the Convention. According to this interpretation, in a conven-
tion which dealt essential with criminal responsibility of individuals for
genocide, as well as the specific obligation of the contracting States to
prevent and punish the commission of genocide by such individuals
within their jurisdiction, the reference to State responsibility in Article IX
can only relate to the traditional sense of responsibility arising out of the
breach of such obligation of State to prevent and punish under Article I.
Thus, for example, the President of the United States, in presenting the
Genocide Convention for advice and consent of the Senate on 16 June

267

307       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

1949, proposed such understanding as follows :

         “I recommend that the Senate give its advice and consent to rati-
      fication of the Convention —
         ‘with the understanding that article IX shall be understood in the
         traditional sense of responsibility to another state for injuries sus-
         tained by nationals of the complaining state in violation of prin-
         ciples of international law, and shall not be understood as mean-
         ing that a state can be held liable in damages for injuries inflicted
         by it on its own nationals’ ” (Department of State Bulletin, 4 July
         1949).
   70. Others would appear to interpret this formula as being constitutive
of a new international legal norm whereby a State by its own action and
in its own name can commit an internationally wrongful act of genocide,
whether one calls it an “international crime”, an “international delict” or
otherwise, for which it should be held internationally responsible. In this
view, the Convention has established that a State can commit a crime of
genocide by its own action, but the institutions for holding the State to
account under the Convention are somewhat restricted. Apart from the
political organs like the Security Council of the United Nations, the only
international judicial organ available for holding a State committing
genocide to account is the International Court of Justice, and it can do so
only in a limited sense that it can hold the State to account for this act of
genocide only in the form of civil/tortious liability, and not in the form of
criminal responsibility. It is presumably with such interpretation in mind
that the United Kingdom delegate spoke of the tenet of the proposed
amendment on behalf of the co-sponsors as follows :

        “The delegations of Belgium and the United Kingdom [have]
      always maintained that the Convention would be incomplete if no
      mention were made of the responsibility of States for the acts enu-
      merated in articles II and IV.” (United Nations, Official Records of
      the General Assembly, Third Session, Sixth Committee, p. 430.)
   71. Whatever may be the correct reading of the legislative history, it
must be accepted that the travaux preparatoires are totally inconclusive
in shedding a definitive light on the precise legal scope of the State
responsibility which came to be declared to fall within the jurisdiction of
the Court. Based on the analysis of this extremely confused state of leg-
islative history concerning Article IX in this respect, one can safely say
that it seems hardly possible to come to a positive conclusion that the
general intention of the parties who participated in the drafting of this
Convention was to enact into the Convention, through this technical

268

308      APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

amendment to Article IX, a new substantive norm under the Convention,
in addition to those enumerated therein, by which a State should be held
to account for the act of genocide of its own commission, whether it be
categorized as an “international crime” or “international delict”. Thus an
interpretation is to be discounted that purports to suggest that under this
new formula, a State can be held to incur direct responsibility in its own
name as the perpetrator of genocide, even though the jurisdictional limit
of the International Court of Justice makes the justiciability of this act of
genocide by a State before the Court somewhat less than criminal respon-
sibility for jurisdictional reasons.

   72. On the other hand, the principle of interpretation expressed in the
maxim ut res magis valeat quam pereat, often referred to as the rule of
effectiveness would seem to dictate that we give to this amended language
of Article IX its proper and rational meaning. Against the background of
the legislative history, confused as it may be, and the professed motives
of the co-sponsors for the proposed amendment to the extent that they
seem to have been accepted or at any rate not contradicted by those who
voted for it, it would seem reasonable to conclude that this amended lan-
guage of Article IX has had the effect of somehow enlarging the scope of
jurisdiction of the Court under the Convention. In my interpretation,
what it has done by adding the words “including those [i.e., disputes]
relating to the responsibility of a State for genocide or for any of the
other acts enumerated in article III” to the standard formula used for a
compromissory clause of a similar kind is to bring into the Convention,
albeit through a jurisdictional backdoor of Article IX, the justiciability of
the question of State responsibility under general international law for an
internationally wrongful act of genocide, classified as an international
crime of individuals under the Convention, within the scope of the juris-
diction of the Convention. As a result, it is my conclusion that the Court
is now competent to consider this issue of general international law as an
issue under the Convention, provided that the act in question of the indi-
vidual can be attributable to the State as its own act through the doctrine
of attribution in the law of State Responsibility.

  73. In light of the foregoing analysis, it is my position that the scope of
the Convention in relation to the act of genocide should be as follows :

 (i) Article I prescribes the crime of genocide as an international crime
     to be punished by national courts and competent international tri-
     bunals on the basis of individual perpetrators, as well as lays down
     the legal obligation upon the contracting parties to prevent and
     punish such crime of genocide.
(ii) The Convention excludes from its scope the issue of direct respon-
     sibility of a State for the commission of genocide as an international
     crime of the State even in its generic sense. This concept of direct

269

309       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. OWADA)

      responsibility of a State for genocide has to be rejected as being alien
      to the object and purpose of the Convention and thus as being out-
      side the scope of the Convention. Even with the new formula incor-
      porated in Article IX, a State cannot be held directly accountable
      for the perpetration of an act of genocide committed in its own
      name, whether that act of genocide may be categorized as a crime of
      the State or as an international delict of the State.

(iii) However, the addition in Article IX of the new language to include
      the issue of “the responsibility of a State for any of the acts enumer-
      ated in Article III” within the scope of the jurisdiction of the Court
      is constitutive of a new mandate for the Court, though not a new
      substantive obligation for the contracting States, under the Conven-
      tion. This is so to the extent that it had the effect of introducing an
      additional scope to the compromissory clause of Article IX, since
      the issue of accountability of a State arising under the law of State
      responsibility in general international law resulting from the criminal
      act of genocide committed by an individual or a group of individuals
      now falls within the compulsory jurisdiction of the Court.

  Article IX, as a compromissory clause, cannot create new substantive
obligations to the contracting States in addition to those which are pro-
vided in substantive articles (Arts. I-VIII). It can however create a new
procedural scope to the jurisdiction of the Court by including within the
Court’s purview the obligations which it would not otherwise have, i.e.,
the obligations flowing to the State parties under general international
law from the acts of individuals contemplated as punishable under the
Convention.
  It is my view that it is on this basis, and not on the basis of Article I of
the Convention, which forms a source of substantive obligations of the
Contracting Parties, as the Judgment asserts, that the Court can proceed
to examine the issue of State responsibility of the Respondent arising out
of alleged acts of genocide committed by individuals and groups as well
as entities, whose action can be attributable to the Respondent under the
law of State responsibility.

                                               (Signed) Hisashi OWADA.

270


470

SEPARATE OPINION OF PRESIDENT SCHWEBEL

Reservations to declarations accepting the Court's jurisdiction under the
optional clause may exclude measures and actions by the declarant that may be
illegal under international law — Canadian reservation 2 (d), not being a “self-
judging” reservation inconsistent with Article 36, paragraph 6, of the Statute,
has permitted the Court to freely consider whether it has jurisdiction — Con-
trary to argument of Spain’s counsel, the Canadian reservation cannot be inter-
preted as a “nullity” applicable to “nothing” — However, arguendo, were it so
interpreted, the result would be that reservation 2 (d), but for which Canada
would not have introduced a new declaration, cannot be severed from the dec-
laration as a whole — If reservation 2 (d) falls or fails, so does the whole of the
Canadian declaration, thus depriving the Court of any basis of jurisdiction in the
case.

1. I am in agreement with the reasoning as well as the conclusion of
the Court’s Judgment. I feel bound, however, to add the following obser-
vations, in view of arguments which have found a place in Spain’s exposi-
tion.

2. A principal contention of Spain in these proceedings is that the res-
ervation set out in paragraph 2 (d) of the Canadian declaration of
10 May 1994, as interpreted by Canada to be, in Spain’s words, “the sole
authentic interpretation of its reservation” (Memorial of Spain, para. 39),
is incompatible with the Statute of the Court. In its Memorial, Spain con-
cludes that there are or may be “not just anti-statutory reservations;
there are also anti-statutory interpretations of certain reservations”
(para. 39). A counsel for Spain in the oral hearings thus maintained that
the Court

“would only need to find that there is incompatibility with . . . Ar-
ticle 36, paragraph 6 [of the Statute], ... Article 2, paragraph 4 [of
the Charter], to reject not the validity of the reservation, which we
have never called for, but the strictly unilateral interpretation Canada
makes of it” (CR 98/13, p. 64 [translation by the Registry ]).

Another counsel of Spain at the same sitting argued that,

“Canada’s subjective intent does not have to correspond with the
objective requirements of international law. If those requirements
indicate that acts of interference with the freedom of the seas can
never properly be classified as being ‘conservation and management
measures’, it follows that the Canadian reservation is pro tanto a

42
471 FISHERIES JURISDICTION (SEP. OP. SCHWEBEL)

nullity. It did not achieve what it had set out to achieve — for the
simple reason that the words it used are impossible to use in their
context consistent with international law.” (CR 98/13, p. 37.)

Spain’s counsel continued:

“(2) The Canadian reservation has no objective reality or validity
under international law, and should not be given effect by the
Court to block Spain’s application unless such objective valid-
ity or reality can be given to it

The “conservation reservation’ therefore excludes nothing, since it
can apply to nothing. It is inappropriate for Canada to demand that
its subjective intent control the Court. That intent may be important
if not conclusive on the question of the object and purpose of a res-
ervation in the ‘mind’ of a declarant State. But to follow Canada’s
argument so far as to make that subjective intent controlling . . .
would ... violate Article 36, paragraph 6, of the Statute.” (CR 98/13,
p. 48, para 61.)

3. I find the foregoing arguments of Spain — which may not be wholly
consistent — unpersuasive for the following reasons.

4, If Spain means to maintain that a reservation is ineffective in so far
as it excludes measures or actions by the declarant State that are illegal
under international law, I cannot agree. As the Court’s Judgment
acknowledges, the very purpose, or one of the purposes, of States in mak-
ing reservations may be to debar the Court from passing upon actions of
the declarant State that may be or are legally questionable. If States by
their reservations could withhold jurisdiction only where their measures
and actions are incontestably legal, and not withhold jurisdiction where
their measures or actions are illegal or arguably illegal, much of the
reason for making reservations would disappear.

5. For the reason also stated in the Judgment of the Court, the conten-
tion of Spain that Canada’s reservation as Canada interprets it deprives
the Court of the authority to decide whether the Court has jurisdiction,
and hence violates Article 36, paragraph 6, of its Statute, is without
merit. The proceedings in the Court and the resultant Judgment more
than amply demonstrate that the Court has freely considered whether it
has jurisdiction. The Court has concluded, for the reasons meticulously
set out in the Judgment which have nothing to do with “self-judging” res-
ervations, that it has not.

6. Nor can I agree that reservation 2 (d), as interpreted by Canada to
apply (as its terms provide) to “disputes arising out of or concerning con-

43
472 FISHERIES JURISDICTION (SEP. OP. SCHWEBEL)

servation and management measures taken by Canada with respect to
vessels fishing in the NAFO Regulatory Area, as defined . . . and the
enforcement of such measures” can, as a counsel for Spain contended,
“apply to nothing”. Those measures, as explained in the Court’s Judg-
ment, are no less measures of conservation and management because
they are meant to apply, and by their terms and the regulations imple-
menting those terms, do apply, “in the NAFO Regulatory Area...” not
only to vessels that are stateless or flying flags of convenience but to other
foreign vessels.

7. But if it were to be accepted, arguendo, that the foregoing conten-
tions of Spain are correct, and that, by reason of Canada’s interpreting
its reservation to apply to any vessel fishing in the NAFO Regulatory
Area, the reservation lacks validity and is “a nullity” and “can apply
to nothing”, it does not follow that the Court has jurisdiction over
Spain’s cause of action. On the contrary, it follows that the Court is
altogether without jurisdiction since the nullity or ineffectiveness of
reservation 2 (d) entails the nullity or ineffectiveness of the Canadian
declaration as a whole.

8. Before filing its current declaration of 10 May 1994, Canada was
bound by an anterior declaration of 10 September 1985. That declaration
contained the following clause, which is reproduced in the declaration of
10 May 1994:

“(3) The Government of Canada also reserves the right at any
time, by means of a notification addressed to the Secretary-General
of the United Nations, and with effect as from the moment of such
notification, either to add to, amend or withdraw any of the fore-
going reservations, or any that may hereafter be added.”

9. In implementation of the foregoing reservation, Canada added to
its declaration of 10 September 1985 what appears in its declaration of
10 May 1994, namely and solely, reservation 2 (d). But it did not do this
by way of transmitting an amendment to the earlier declaration which
remained in force. Rather, in paragraph 1 of its declaration of 10 May
1994, Canada gave notice of termination of its acceptance of the Court’s
compulsory jurisdiction made on 10 September 1985. In paragraph 2, it
declared the acceptance by Canada of the Court’s jurisdiction over all
disputes other than those specified.in subparagraphs (a), (b), (c) and
(d). Since subparagraphs (a), (b) and (c) are found in exactly the same
terms in the 1985 declaration, it is clear that the only reason of Canada
for terminating that declaration, and for making a new declaration, was
to add the provisions of subparagraph (d). Moreover, those provisions
do not comprise routine recitations, such as “without special agreement”

44
473 FISHERIES JURISDICTION (SEP. OP. SCHWEBEL)

and “on condition of reciprocity”, which duplicate those of the Statute.
Subparagraph 2 {d) introduces an entirely new, specific and purpose-
ful reservation. It follows that the reservation contained in sub-
paragraph 2 (d) is not only an important but an essential provision of
Canada’s declaration, but for which, or without which, no new dec-
laration would have been made.

10. The Court has accepted “the close and necessary link that always
exists between a jurisdictional clause and reservations to it” (Aegean Sea
Continental Shelf, Judgment, I.C.J. Reports 1978, p. 33). Yet there may
be cases of jurisdictional adherence where that link may be severed. One
such has been suggested above, where a provision is redundant. Sever-
ability has been applied by other courts or committees in respect of cer-
tain human rights conventions. While venturing no opinion on the ten-
ability of severability in such circumstances, those are not the circum-
stances now before the Court. When, as in this case, the reservation has
been treated by the declarant State as an essential one but for which — or
without which — the declaration would not have been made, the Court is
not free to treat the reservation as invalid or ineffective, while treating the
remainder of the declaration to be in force. If reservation 2 (d) falls or
fails, so must the Canadian declaration of 10 May 1994 fall or fail. If the
Spanish argument is accepted on the results to be attached to Canada’s
interpretation of the reservation, it follows that there is no basis whatever
in this case for the jurisdiction of the Court.

(Signed) Stephen M. SCHWEBEL.

45