INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
LEGALITY OF USE OF FORCE

(SERBIA AND MONTENEGRO v. CANADA)

PRELIMINARY OBJECTIONS

JUDGMENT OF 15 DECEMBER 2004

2004

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

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

(SERBIE-ET-MONTENEGRO c. CANADA)

EXCEPTIONS PRELIMINAIRES

ARRET DU 15 DECEMBRE 2004
Official citation:

Legality of Use of Force (Serbia and Montenegro v. Canada),
Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 429

Mode officiel de citation:

Licéité de l'emploi de la force (Serbie-et-Monténégro c. Canada),
exceptions préliminaires, arrêt, C.I.J. Recueil 2004, p. 429

Sales number
ISSN 0074-4441 N° de vente: 887
ISBN 92-1-070998-5

15 DECEMBER 2004

JUDGMENT

LEGALITY OF USE OF FORCE
(SERBIA AND MONTENEGRO y. CANADA)

PRELIMINARY OBJECTIONS

LICEITE DE L’EMPLOI DE LA FORCE
(SERBIE-ET-MONTENEGRO c. CANADA)

EXCEPTIONS PRELIMINAIRES

15 DECEMBRE 2004

ARRET
2004
15 December
General List
No. 106

429

INTERNATIONAL COURT OF JUSTICE

YEAR 2004

15 December 2004

CASE CONCERNING
LEGALITY OF USE OF FORCE

(SERBIA AND MONTENEGRO v. CANADA)

PRELIMINARY OBJECTIONS

Case one of eight similar cases brought by the Applicant — Court to consider
arguments put forward in this case as well as any other legal issue, including
issues raised in other seven cases.

*

Contentions by Respondents that case should be dismissed in limine litis as a
result of Applicant’s changed attitude to Court’s jurisdiction in its Observations.

Whether Applicant’s changed attitude amounts to discontinuance — Appli-
cant expressly denied notice of discontinuance and wants the Court to decide
upon its jurisdiction — Court unable to treat Observations as having legal effect
of discontinuance — Court has power, ex officio, to put an end to a case in
interests of proper administration of justice — Not applicable in present case.

Whether Applicant’s position discloses substantive agreement on jurisdiction
resulting in absence of dispute for purposes of Article 36, paragraph 6, of
Statute — Distinction to be drawn between question of jurisdiction and right
of party to appear before the Court under the Statute — Latter not a matter
of consent — Court must reach its own conclusion.

Court cannot decline to entertain case because of a suggestion as to motives
of one of the parties or because its judgment may have influence in another case.
Whether, in light of Applicant’s contention that it was not party to the Geno-

cide Convention until March 2001, the substantive dispute with the Respondent,
in so far as jurisdiction is founded on that Convention, has disappeared — Con-

4
430 LEGALITY OF USE OF FORCE (JUDGMENT)

tention that Applicant has forfeited right of action and is estopped from pur-
suing the proceedings — No withdrawal of claims as to merits — Applicant
cannot be held to have renounced its rights or to be estopped from continuing the
action.

Court cannot dismiss case in limine litis.

*

Questions of jurisdiction — Court’s “freedom to select the ground upon which
it will base its judgment” — Distinction between present proceedings and other
cases — Applicant’s right of access to Court under Article 35, paragraph 1, of
Statute, challenged — If not party to Statute at time of institution of proceed-
ings, subject to application of Article 35, paragraph 2, Applicant had no right to
appear before Court — Court must determine whether Applicant meets condi-
tions laid down in Articles 34 and 35 of Statute before examining conditions in
Article 36 of Statute.

*

Break-up of Socialist Federal Republic of Yugoslavia in 1991-1992 — Dec-
laration of 27 April 1992 and Note of same date from Permanent Representa-
tive of Yugoslavia to the United Nations, addressed to Secretary-General —
Security Council resolution 757 of 30 May 1992 — Security Council resolu-
tion 777 of 19 September 1992 — General Assembly resolution 4711 of 22 Sep-
tember 1992 — Legal Counsel's letter of 29 September 1992 regarding “prac-
tical consequences” of General Assembly resolution 4711 — General Assembly
resolution 47/229 of 29 April 1993.

Complexity and ambiguity of legal position of FRY within and vis-d-vis the
United Nations during the period 1992-2000 — Absence of authoritative deter-
mination by competent United Nations organs.

Different positions taken within United Nations — Positions of Security
Council and General Assembly — Resolution 777 (1992) and resolution 47/1
cannot be construed as conveying an authoritative determination of FRY’s legal
status — Position of FRY — Maintained claim of continuity of legal personal-
ity of SFRY as stated in Note of 27 April 1992 — Position of Secretariat —
Adherence to practice prevailing prior to break-up of SFRY pending authorita-
tive determination of FRY’s legal status.

Reference by Court to “sui generis” position of FRY in Judgment of 3 Feb-
ruary 2003 in Application for Revision case — Term not prescriptive but
merely descriptive of amorphous situation — No conclusion drawn by Court as
to status of FRY vis-à-vis the United Nations in 2003 Judgment nor in inciden-
tal proceedings in other cases including Order on provisional measures in
present case.

FRY’s sui generis position came to end with admission to United Nations on
1 November 2000 — Admission did not have effect of dating back — New devel-

5
431 LEGALITY OF USE OF FORCE (JUDGMENT)

opment clarified amorphous legal situation — Situation faced by Court mani-
festly different from that in 1999 — Applicant was not a Member of United
Nations, hence not party to Statute, on 29 April 1999 when it filed Application.

Court not open to Applicant, at date of filing of Application, under Article 35,
paragraph 1, of Statute.

*

Question whether Court open to Applicant under Article 35, paragraph 2, of
Statute — Contention by certain Respondents that Applicant may not rely on
this text — Appropriate for Court to examine question.

Scope of Article 35, paragraph 2 — Determination by Court in provisional
measures Order of April 1993 in Genocide Convention case that Article IX of
the Genocide Convention “could . .. be regarded prima facie as a special provi-
sion contained in a treaty in force” — Contentions by certain Respondents that
“treaties in force” relates only to treaties in force when Statute came into force.

Natural and ordinary meaning allows two different interpretations: treaties in
force at time when Statute came into force and treaties in force at date of insti-
tution of proceedings — Object and purpose of Article 35 is to define conditions
of access to Court: natural to reserve position in relation to treaties that might
then exist, not to allow States to obtain access to Court by conclusion between
themselves of any special treaty — First interpretation reinforced by examina-
tion of travaux préparatoires — Substantially same provision in PCI] Statute
intended to refer to special provisions in Peace Treaties concluded after First
World War — No discussion in travaux of ICJ Statute to suggest that exten-
sion of access to Court intended.

Genocide Convention came into force after Statute — Not “treaty in force”
within meaning of Article 35, paragraph 2 — Unnecessary to decide whether
Applicant was party to Genocide Convention on 29 April 1999.

*
In view of Court’s conclusion of lack of access to Court under either para-

graph I or paragraph 2 of Article 35 of Statute, unnecessary for Court to con-
sider Respondents’ other preliminary objections.

+ *
Distinction between existence of jurisdiction and compatibility of acts with

international law — Irrespective of whether Court has jurisdiction, Parties
remain responsible for acts attributable to them that violate the rights of other

6
432 LEGALITY OF USE OF FORCE (JUDGMENT)

States — In present case, having no jurisdiction, Court can make no finding on
such matters.

JUDGMENT

Present: President Sui; Vice-President RANJEVA; Judges GUILLAUME, KOROMA,

VERESHCHETIN, HIGGINS, PARRA-ARANGUREN, KoolMANS, REZEK,
AL-KHASAWNEH, BUERGENTHAL, ELARABY, OWADA, TOMKA; Judge ad
hoc Kreéa; Registrar COUVREUR.

In the case concerning legality of use of force,

between

Serbia and Montenegro,
represented by

Mr. Tibor Varady, S.J.D. (Harvard), Chief Legal Adviser at the Ministry
of Foreign Affairs of Serbia and Montenegro, Professor of Law at the
Central European University, Budapest, and Emory University, Atlanta,

as Agent, Counsel and Advocate;

Mr. Vladimir Djeri¢é, LL.M. (Michigan), Adviser to the Minister for Foreign
Affairs of Serbia and Montenegro,

as Co-agent, Counsel and Advocate;

Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Chichele Professor of Public Inter-
national Law (Emeritus), University of Oxford, Member of the Inter-
national Law Commission, member of the English Bar, member of the
Institut de droit international,

as Counsel and Advocate;

Mr. Slavoljub Carié, Counsellor, Embassy of Serbia and Montenegro, The
Hague,

Mr. SaSa Obradovié, First Secretary, Embassy of Serbia and Montenegro,
The Hague,

Mr. Vladimir Cvetkovié, Third Secretary, International Law Department,
Ministry of Foreign Affairs of Serbia and Montenegro,

Ms Marijana Santraë, LL.B., M.A. (Central European University),

Ms Dina Dobrkovié, LL.B.,

as Assistants;

Mr. Vladimir Sreckovi¢é, Ministry of Foreign Affairs of Serbia and Monte-
negro,

as Technical Assistant,

and

Canada,

7
433 LEGALITY OF USE OF FORCE (JUDGMENT)

represented by
Ms Colleen Swords, Legal Adviser to the Department of Foreign Affairs,

as Agent;
Mr. David Sproule, Department of Foreign Affairs,
as Deputy Agent;

Mr. L. Alan Willis, Q.C.,
Ms Ruth Ozols Barr, Department of Justice,

as Counsel and Advocates;

Ms Laurie Wright, Department of Justice,

Ms Sabine Nolke, Department of Foreign Affairs,

Ms Marie-Josée Rhéaume, Department of Foreign Affairs,
Ms Anik Beaudoin, Department of Justice,

as Counsel,

THE Court,

composed as above,
after deliberation,

delivers the following Judgment:

1. On 29 April 1999 the Government of the Federal Republic of Yugoslavia
(with effect from 4 February 2003, “Serbia and Montenegro”) filed in the
Registry of the Court an Application instituting proceedings against the
Government of Canada in respect of a dispute concerning acts allegedly com-
mitted by Canada

“by which it has violated its international obligation banning the use of
force against another State, the obligation not to intervene in the internal
affairs of another State, the obligation not to violate the sovereignty of
another State, the obligation to protect the civilian population and civilian
objects in wartime, the obligation to protect the environment, the obliga-
tion relating to free navigation on international rivers, the obligation
regarding fundamental human rights and freedoms, the obligation not to
use prohibited weapons, the obligation not to deliberately inflict condi-
tions of life calculated to cause the physical destruction of a national

group”.

The Application invoked as a basis of the Court’s jurisdiction Article 36, para-
graph 2, of the Statute of the Court, as well as Article IX of the Convention on
the Prevention and Punishment of the Crime of Genocide, adopted by the
United Nations General Assembly on 9 December 1948 (hereinafter “the
Genocide Convention”).

2. On 29 April 1999, immediately after filing its Application, the Federal
Republic of Yugoslavia also submitted a request for the indication of provi-
sional measures pursuant to Article 73 of the Rules of Court.

3. On the same day, the Federal Republic of Yugoslavia filed Applications

instituting proceedings and submitted requests for the indication of provisional
measures, in respect of other disputes arising out of the same facts, against the

8
434 LEGALITY OF USE OF FORCE (JUDGMENT)

Kingdom of Belgium, the French Republic, the Federal Republic of Germany,
the Italian Republic, the Kingdom of the Netherlands, the Portuguese Repub-
lic, the Kingdom of Spain, the United Kingdom of Great Britain and Northern
Ireland and the United States of America.

4, Pursuant to Article 38, paragraph 4, and Article 73, paragraph 2, of the
Rules of Court, on 29 April 1999 the Registrar transmitted signed copies of the
Application and the request to the Canadian Government.

5. In accordance with Article 43 of the Rules of Court, the Registrar sent the
notification referred to in Article 63, paragraph 1, of the Statute of the Court,
to all States appearing on the list of parties to the Genocide Convention held
by the Secretary-General of the United Nations as depositary; the Registrar
also sent to the Secretary-General the notifications respectively provided for in
Article 34, paragraph 3, and Article 40, paragraph 3, of the Statute of the
Court.

6. Since the Court included upon the Bench no judge of the nationality of
the Parties, each of them exercised its right under Article 31, paragraph 3,
of the Statute to choose a judge ad hoc to sit in the case: the Yugoslav
Government chose Mr. Milenko Kreéa and the Canadian Government
chose Mr. Marc Lalonde. Referring to Article 31, paragraph 5, of the Statute,
the Yugoslav Government objected to the latter choice. The Court, after
deliberating, found that the nomination of a judge ad hoc by Canada was
justified in the provisional measures phase of the case.

7. By Order of 2 June 1999 the Court, after hearing the Parties, rejected the
request for the indication of provisional measures submitted in the present case
by the Federal Republic of Yugoslavia on 29 April 1999. By Orders of the same
date, the Court, after hearing the Parties, also rejected the requests for the indi-
cation of provisional measures in the nine other cases referred to in para-
graph 3 and decided to remove from the List the cases against Spain and the
United States of America.

8. By Order of 30 June 1999 the Court fixed 5 January 2000 as the time-limit
for the filing of a Memorial by the Federal Republic of Yugoslavia and 5 July
2000 as the time-limit for the filing of a Counter-Memorial by Canada. On
4 January 2000, within the prescribed time-limit, the Federal Republic of
Yugoslavia duly filed its Memorial, dated 5 January 2000, explaining that it
had prepared a single Memorial covering this case and the seven other pending
cases concerning Legality of Use of Force.

9. By letter of 5 April 2000 the Agent of Canada informed the Court that his
Government confirmed its choice of Mr. Marc Lalonde to sit as judge ad hoc in
the case. By letter of 24 April 2000 the Agent of the Federal Republic of Yugo-
slavia, referring to Article 31, paragraph 5, of the Statute, indicated that his
Government objected to the presence on the Bench of a judge ad hoc chosen by
Canada.

10. On 5 July 2000, within the time-limit fixed for the filing of its Counter-
Memorial, Canada, referring to Article 79, paragraph 1, of the Rules, sub-
mitted preliminary objections relating to the Court’s jurisdiction to entertain
the case and to the admissibility of the Application. Accordingly, by Order
of 8 September 2000, the Vice-President of the Court, Acting President, noted
that by virtue of Article 79, paragraph 3, of the Rules, the proceedings on
the merits were suspended, and fixed 5 April 2001 as the time-limit within
which the Federal Republic of Yugoslavia might present a written statement

9
435 LEGALITY OF USE OF FORCE (JUDGMENT)

of its observations and submissions on the preliminary objections made by
Canada.

11. By letter of 18 January 2001 the Minister for Foreign Affairs of the Fed-
eral Republic of Yugoslavia, referring inter alia to certain diplomatic initia-
tives, requested the Court, for reasons stated in that letter, to grant a stay of the
proceedings or to extend by 12 months the time-limit for the submission of
observations by the Federal Republic of Yugoslavia on the preliminary objec-
tions raised by Canada. By letter of 9 February 2001 the Agent of Canada
informed the Court that his Government was not opposed to the request by the
Federal Republic of Yugoslavia.

By Order of 21 February 2001 the Court extended to 5 April 2002 the time-
limit within which the Federal Republic of Yugoslavia might present a written
statement of its observations and submissions on the preliminary objections
made by Canada.

12. By letter of 8 February 2002 the Agent of the Federal Republic of Yugo-
slavia, referring to “dramatic” and “ongoing” changes in Yugoslavia which had
“put the [case] . . . in a quite different perspective”, as well as to the decision to
be taken by the Court in another case involving Yugoslavia, requested the
Court, for reasons stated in that letter, to stay the proceedings or to extend for
a further period of 12 months the time-limit for the submission by the Federal
Republic of Yugoslavia of its observations on the preliminary objections raised
by Canada. By letter of 22 February 2002 the Agent of Canada informed the
Court that his Government was not opposed to the request by the Federal
Republic of Yugoslavia.

By Order of 20 March 2002 the Court extended to 7 April 2003 the time-limit
within which the Federal Republic of Yugoslavia might present a written state-
ment of its observations and submissions on the preliminary objections made
by Canada.

13. On 20 December 2002, within the time-limit as thus extended, the Fed-
eral Republic of Yugoslavia filed a written statement of its observations and
submissions on the preliminary objections in the present case (hereinafter
referred to as its “Observations”) and filed an identical written statement in the
seven other pending cases. By letter of 14 January 2003 the Agent of Canada
presented certain comments of his Government on those Observations.

14. By letter of 5 February 2003 the Ambassador of the Federal Republic of
Yugoslavia to the Netherlands informed the Court that, following the adoption
and promulgation of the Constitutional Charter of Serbia and Montenegro by
the Assembly of the Federal Republic of Yugoslavia on 4 February 2003, the
name of the State of the Federal Republic of Yugoslavia had been changed
to “Serbia and Montenegro”. By letter of 28 February 2003 the Agent of
Serbia and Montenegro presented his Government’s comments on the above-
mentioned letter from the Agent of Canada of 14 January 2003.

15. Pursuant to Article 24, paragraph 1, of the Statute, on 25 November
2003 Judge Simma informed the President that he considered that he
should not take part in the decision in the cases concerning Legality of Use of
Force.

16. At a meeting held by the President of the Court on 12 December 2003
with the representatives of the Parties in the cases concerning Legality of Use of
Force (Serbia and Montenegro v. Belgium) (Serbia and Montenegro v. Canada)
(Serbia and Montenegro v. France) (Serbia and Montenegro v. Germany)
(Serbia and Montenegro v. Italy) (Serbia and Montenegro v. Netherlands)

10
436 LEGALITY OF USE OF FORCE (JUDGMENT)

(Serbia and Montenegro v. Portugal) (Serbia and Montenegro v. United King-
dom) in order to ascertain their views with regard to questions of procedure,
the representatives of the Parties were invited to submit to the Court any obser-
vations which their Governments might wish to make, in particular on the fol-
lowing questions: organization of the oral proceedings; presence on the Bench
of judges ad hoc during the preliminary objections phase; possible joinder of
the proceedings (General List Nos. 105, 106, 107, 108, 109, 110, 111 and 113).
In reply to the questions put by the President of the Court, the representative of
Canada cited her Government’s need to produce new documents, in view of
important developments in the case since the filing of its preliminary objections.
The representative of Canada also reaffirmed her Government’s intention to
exercise its right under Article 31, paragraph 3, of the Statute to choose a judge
ad hoc and further stated that Canada was opposed to the proceedings being
joined. The Agent of Serbia and Montenegro responded that his Government
also considered that it needed to produce new documents. As regards the nomi-
nation of judges ad hoc by those respondent States not having a judge of their
nationality upon the Bench, the Agent of Serbia and Montenegro explained
that his Government no longer maintained its objection; the Agent further
indicated that his Government was in favour of a joinder of all the proceedings
in accordance with Article 47 of the Rules of Court. By letter of 18 December
2003 the Agent of Serbia and Montenegro confirmed the views thus expressed
at the meeting of 12 December 2003.

17. By letter of 23 December 2003 the Registrar informed all the Parties to
the cases concerning Legality of Use of Force of the Court’s decisions on the
issues discussed at the meeting of 12 December 2003. The Agents were informed
that the Court had decided, pursuant to Article 31, paragraph 5, of the Statute,
that, taking into account the presence upon the Bench of judges of British,
Dutch and French nationality, the judges ad hoc chosen by the respondent
States should not sit during the current phase of the procedure in these cases;
it was made clear to the Agents that this decision by the Court did not in any
way prejudice the question whether, if the Court should reject the preliminary
objections of the Respondents, judges ad hoc might sit in subsequent stages of
the cases. The Agents were also informed that the Court had decided that a
joinder of the proceedings would not be appropriate at that stage. Finally, the
Agents were informed that the Court had fixed 27 February 2004 as the time-
limit for the filing of any new documents, and that such documents, which
should only relate to jurisdiction and to admissibility, would be dealt with as
provided for in Article 56 of the Rules of Court.

18. By a joint letter of 27 February 2004 the Agents of the respondent States
in the cases concerning Legality of Use of Force indicated that their Govern-
ments wished to produce new documents pursuant to Article 56 of the Rules.
In the absence of any objection by Serbia and Montenegro, to which the docu-
ments had been communicated in accordance with paragraph 1 of that Article,
the Court decided that they would be added to the file of each case.

19. Pursuant to Article 53, paragraph 2, of its Rules, the Court, having con-

sulted the Parties, decided that copies of the pleadings and documents annexed
would be made accessible to the public on the opening of the oral proceedings.

11
437

LEGALITY OF USE OF FORCE (JUDGMENT)

20. Public sittings were held between 19 and 23 April 2004, at which the
Court heard the oral arguments and replies of:

For Serbia and Montenegro: Mr. Tibor Varady,

Mr. Ian Brownlie,
Mr. Vladimir Djerié.

For Canada: Ms Colleen Swords,

Ms Ruth Ozols Barr,
Mr. L. Alan Willis.

*

21. In the Application, the claims of Serbia and Montenegro were formu-
lated as follows:

12

“The Government of the Federal Republic of Yugoslavia requests the

International Court of Justice to adjudge and declare:
— by taking part in the bombing of the territory of the Federal Republic

of Yugoslavia, Canada has acted against the Federal Republic of
Yugoslavia in breach of its obligation not to use force against another
State;

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

by taking part in attacks on civilian targets, Canada has acted against
the Federal Republic of Yugoslavia in breach of its obligation to spare
the civilian population, civilians and civilian objects;

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

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

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

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

by taking part in killing civilians, destroying enterprises, communica-
tions, health and cultural institutions, Canada has acted against the
Federal Republic of Yugoslavia in breach of its obligation to respect
the right to life, the right to work, the right to information, the right to
438

LEGALITY OF USE OF FORCE (JUDGMENT)

health care as well as other basic human rights;

— by taking part in destroying bridges on international rivers, Canada

has acted against the Federal Republic of Yugoslavia in breach of its
obligation to respect freedom of navigation on international rivers;

— by taking part in activities listed above, and in particular by causing

enormous environmental damage and by using depleted uranium,
Canada has acted against the Federal Republic of Yugoslavia in
breach of its obligation not to deliberately inflict on a national group
conditions of life calculated to bring about its physical destruction, in
whole or in part;

— Canada is responsible for the violation of the above international obli-

gations;

— Canada is obliged to stop immediately the violation of the above obli-

gations vis-a-vis the Federal Republic of Yugoslavia;

— Canada is obliged to provide compensation for the damage done to

the Federal Republic of Yugoslavia and to its citizens and juridical
persons.

The Federal Republic of Yugoslavia reserves the right to submit subse-

quently accurate evaluation of the damage.”

22. In the course of the written proceedings, the following submissions were
presented by the Parties:

On behalf of the Government of Serbia and Montenegro,
in the Memorial:

13

“The Government of the Federal Republic of Yugoslavia requests the

International Court of Justice to adjudge and declare:
— by the bombing of the territory of the Federal Republic of Yugoslavia,

the Respondent has acted against the Federal Republic of Yugoslavia
in breach of its obligation not to use force against another State;

— by using force against the Yugoslav army and police during their

actions against terrorist groups, i.e. the so-called ‘Kosovo Liberation
Army’, the Respondent has acted against the Federal Republic of
Yugoslavia in breach of its obligation not to intervene in the affairs of
another State;

— by attacks on civilian targets, and by inflicting damage, injuries and

losses to civilians and civilian objects, the Respondent has acted against
the Federal Republic of Yugoslavia in breach of its obligation to spare
the civilian population, civilians and civilian objects;

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

by the use of cluster bombs, the Respondent has acted against the
439

LEGALITY OF USE OF FORCE (JUDGMENT)

Federal Republic of Yugoslavia in breach of its obligation not to use
prohibited weapons, i.e. weapons calculated to cause unnecessary
suffering ;

— by the bombing of oil refineries and chemical plants, the Respondent

has acted against the Federal Republic of Yugoslavia in breach of its
obligation not to cause considerable environmental damage;

— by the use of weapons containing depleted uranium, the Respondent

has acted against the Federal Republic of Yugoslavia in breach of its
obligation not to use prohibited weapons and not to cause far-reaching
health and environmental damage;

— by killing civilians, destroying enterprises, communications, health and

cultural institutions, the Respondent has acted against the Federal
Republic of Yugoslavia in breach of its obligation to respect the right
to life, the right to work, the right to information, the right to health
care as well as other basic human rights;

— by destroying bridges on international rivers, the Respondent has

acted against the Federal Republic of Yugoslavia in breach of its obli-
gation to respect State sovereignty;

— by activities listed above, and in particular by causing enormous envi-

ronmental damage and by using depleted uranium, the Respondent
has acted against the Federal Republic of Yugoslavia in breach of its
obligation not to deliberately inflict on a national group conditions of
life calculated to bring about its physical destruction, in whole or in
part;

— by failures to prevent killing, wounding and ethnic cleansing of Serbs

and other non-Albanian groups in Kosovo and Metohija, the Respon-
dent has acted against the Federal Republic of Yugoslavia in breach of
its obligations to ensure public safety and order in Kosovo and Meto-
hija and to prevent genocide and other acts enumerated in Article III
of the Genocide Convention;

— the Respondent is responsible for the violation of the above interna-

tional obligations;

— the Respondent is obliged to stop immediately the violation of the

above obligations vis-a-vis the Federal Republic of Yugoslavia;

— the Respondent is obliged to provide compensation for the damages,

injuries and losses done to the Federal Republic of Yugoslavia and to
its citizens and juridical persons.

The Government of the Federal Republic of Yugoslavia requests the

International Court of Justice to settle the form and amount of the repara-
tion, failing agreement between the Parties and to reserve, for this purpose,
the subsequent procedure in this case.”

On behalf of the Canadian Government,
in the Preliminary Objections:

14

“May it please the Court to adjudge and declare that, for the reasons

advanced in this pleading:
440 LEGALITY OF USE OF FORCE (JUDGMENT)

— It lacks jurisdiction over the proceedings brought by the Applicant
against Canada on 29 April 1999, and

— The claims brought against Canada in the said proceedings are
inadmissible to the extent specified in these preliminary objections.”

On behalf of the Government of Serbia and Montenegro,

in its written statement of 20 December 2002 containing its observations and
submissions on the preliminary objections presented by Canada:

“The Federal Republic of Yugoslavia requests the Court to decide on its
jurisdiction considering the pleadings formulated in these Written Obser-
vations.”

23. At the oral proceedings, the following submissions were presented by the
Parties:

On behalf of the Canadian Government,
at the hearing of 22 April 2004:

“1. The Government of Canada requests the Court to adjudge and
declare that the Court lacks jurisdiction because the Applicant has aban-
doned all the grounds of jurisdiction originally specified in its Application
pursuant to Article 38, paragraph 2, of the Rules and has identified no
alternative grounds of jurisdiction.

2. In the alternative, the Government of Canada requests the Court to
adjudge and declare that:

(a) the Court lacks jurisdiction over the proceedings brought by the
Applicant against Canada on 29 April 1999, on the basis of the pur-
ported declaration of 25 April 1999;

(b) the Court also lacks jurisdiction on the basis of Article IX of the
Genocide Convention ;

(c) the new claims respecting the period beginning 10 June 1999 are
inadmissible because they would transform the subject of the dis-
pute originally brought before the Court; and,

(d) the claims in their entirety are inadmissible because the subject-matter
of the case requires the presence of essential third parties that are not
before the Court.”

On behalf of the Government of Serbia and Montenegro,
at the hearing of 23 April 2004,

“For the reasons given in its pleadings, and in particular in its Written
Observations, subsequent correspondence with the Court, and at the oral
hearing, Serbia and Montenegro requests the Court:

— to adjudge and declare on its jurisdiction ratione personae in the
present cases; and

— to dismiss the remaining preliminary objections of the respondent
States, and to order proceedings on the merits if it finds it has jurisdic-
tion ratione personae.”

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441 LEGALITY OF USE OF FORCE (JUDGMENT)

24. The official title of the Applicant in these proceedings has changed
during the period of time relevant to the present proceedings. On 27 April
1992, the Assembly of the Socialist Federal Republic of Yugoslavia
adopted and promulgated the Constitution of “the Federal Republic of
Yugoslavia”. The State so named claimed to be the continuation of the
Socialist Federal Republic of Yugoslavia, and as such to be entitled to
continued membership in the United Nations. Inasmuch as this latter
claim was not recognized by, inter alia, the Security Council and the
General Assembly of the United Nations, these bodies initially referred
to the Federal Republic of Yugoslavia as “the Federal Republic of Yugo-
slavia (Serbia and Montenegro)”, and this term was also used in certain
previous decisions of the Court. On 1 November 2000 the Applicant was
admitted to membership in the United Nations under the name of “the
Federal Republic of Yugoslavia”; and on 4 February 2003, the Federal
Republic of Yugoslavia officially changed its name to “Serbia and Mon-
tenegro”. In the present judgment, the Applicant will be referred to so far
as possible as “Serbia and Montenegro”, even when reference is made to
a procedural step taken before the change of name; in some instances,
however, where the term in a historical context might cause confusion,
the title in use at the relevant time will be employed.

25. The Court must first deal with a preliminary question that has
been raised in each of the cases, including the present one, brought before
it by Serbia and Montenegro concerning Legality of Use of Force. It has
been argued by the Respondents in these cases that the Court could and
should reject the claims of Serbia and Montenegro in limine litis, by
removing the cases from the List; by a “pre-preliminary” or summary
decision in each case finding that there is no subsisting dispute or that the
Court either has no jurisdiction or is not called upon to give a decision on
the claims; or by declining to exercise jurisdiction. Thus the contention
for rejecting the Application in limine litis has been presented in different
forms by the eight respondent States, and supported by various argu-
ments, in order to achieve the same conclusion that, as a result of the
changed attitude of the Applicant to the question of the Court’s jurisdic-
tion, expressed in its Observations (see paragraph 28 below), the Court is
no longer required to adjudge and declare whether or not those objec-
tions to jurisdiction are well founded, but can simply dismiss the case,
without enquiring further into matters of jurisdiction.

26. In addressing the question whether the case should be dismissed
in limine litis, the Court will consider the arguments put forward in this
case and any other legal issue which it deems relevant to consider with
a view to arriving at its conclusion on this point, including the issues
raised in the other cases referred to in paragraph 3 above.

16
442 LEGALITY OF USE OF FORCE (JUDGMENT)

27. In the original Applications instituting proceedings in this group
of cases, Serbia and Montenegro invoked as the title of jurisdiction of the
Court in each case Article IX of the Genocide Convention; in five cases,
including the present one, it invoked its own acceptance of the jurisdic-
tion of the Court under the optional clause of Article 36, paragraph 2, of
the Statute, together with that of the respondent State; and in two of the
cases, it also invoked a bilateral treaty between the respondent State con-
cerned and the Kingdom of Yugoslavia. The Applications of Serbia and
Montenegro of 29 April 1999 asserted, at least by implication, that the
Court was then open to Serbia and Montenegro, under Article 35, para-
graph 1, of the Court’s Statute, on the basis that it was a Member of
the United Nations and thus a party to the Court’s Statute, by virtue of
Article 93, paragraph 1, of the Charter. Subsequently, this was in
fact expressly stated in the Memorial filed by Serbia and Montenegro.

28. However, in its Observations on the preliminary objections of
each of the respondent States, filed on 20 December 2002, Serbia and
Montenegro claimed that “the acceptance of the Federal Republic of
Yugoslavia as a new member of the United Nations on 1 November
2000” constituted a “new fact”; and on this basis it stated as follows:

“As the Federal Republic of Yugoslavia became a new member of
the United Nations on 1 November 2000, it follows that it was not a
member before that date. Accordingly, it became an established fact
that before 1 November 2000, the Federal Republic of Yugoslavia
was not and could not have been a party to the Statute of the Court
by way of UN membership.”

In addition, as regards the question of jurisdiction of the Court under the
Genocide Convention, Serbia and Montenegro in its Observations drew
attention to its own accession to that Convention in March 2001, and
stated that

“[tlhe Federal Republic of Yugoslavia did not continue the per-
sonality and treaty membership of the former Yugoslavia, and thus
specifically, it was not bound by the Genocide Convention until
it acceded to that Convention (with a reservation to Article IX)
in March 2001”.

In its submissions, however, Serbia and Montenegro did not ask the
Court to rule that it had no jurisdiction but only requested the Court “to
decide on its jurisdiction considering the pleadings in these Written
Observations” (emphasis added).

29. The question whether Serbia and Montenegro was or was not a
party to the Statute of the Court at the time of the institution of the

17
443 LEGALITY OF USE OF FORCE (JUDGMENT)

present proceedings is a fundamental one (see paragraph 45 below).
However, at this initial stage of its judgment, it is necessary for the Court
to decide first on a preliminary question raised by the Respondents,
namely whether in the light of the assertions by the Applicant quoted
above coupled with the contentions of each of the respondent States, the
Court should take a decision to dismiss the case in limine litis, without
further entering into the examination of the question whether the Court
has jurisdiction under the circumstances.

30. A number of arguments have been advanced by different Respon-
dents as possible legal grounds that would lead the Court to take this
course. One argument advanced by some of the respondent States is that
the position of Serbia and Montenegro is to be treated as one that in
effect results in a discontinuance of the proceedings which it has insti-
tuted. Discontinuance of proceedings by the Applicant is provided for in
Article 89 of the Rules of Court, which contemplates the situation in
which “the applicant informs the Court in writing that it is not going on
with the proceedings . . .”. However, Serbia and Montenegro has expressly
denied that its Observations were a notice of discontinuance, and has
emphasized that it did not state that it was “not going on with the pro-
ceedings”, but rather that it was requesting the Court to decide on the
issue of jurisdiction. It has emphasized that it wants the Court to con-
tinue the case and to decide upon its jurisdiction, even though the deci-
sion that it seeks may result in a conclusion that there is no jurisdiction.

31. The role of the Court in a discontinuance procedure, whether by
agreement between the parties (Article 88 of the Rules of Court) or at the
initiative of the Applicant (Article 89) in the absence of any objection by
the Respondent, is “simply to record it and to remove the case from its
list” (Barcelona Traction, Light and Power Company, Limited, Prelimi-
nary Objections, Judgment, I.C.J. Reports 1964, p. 20). It may be true
that the logical consequence of the contention of Serbia and Montenegro
in its Observations could be that the case would go no further; but this
would be the result of the Court’s own finding and not the placing on
record of a withdrawal by Serbia and Montenegro of the dispute from
the Court’s purview. The Court is therefore unable to treat the Obser-
vations of Serbia and Montenegro as having the legal effect of a dis-
continuance of the proceedings instituted by that State.

32. The question has been raised whether there is a procedure open to
the Court itself, whereby the Court has ex officio the power to put an end
to a case whenever it sees that this is necessary from the viewpoint of the
proper administration of justice. Although the Rules of Court do not
provide for such a procedure, there is no doubt that in certain circum-
stances the Court may of its own motion put an end to proceedings in a
case. Prior to the adoption of Article 38, paragraph 5, of the Rules of
Court, in a number of cases in which the application disclosed no sub-
sisting title of jurisdiction, but merely an invitation to the State named as
respondent to accept jurisdiction for the purposes of the case, the Court

18
444 LEGALITY OF USE OF FORCE (JUDGMENT)

removed the cases from the List by order. By Orders of 2 June 1999, it
removed from the List two cases brought by Serbia and Montenegro con-
cerning Legality of Use of Force against Spain and the United States of
America, on the ground that the Court “manifestly lack[ed] jurisdiction”
(C.J. Reports 1999 (II), pp. 773 and 925). The present case does not
however fall into either of these categories.

33. Another argument for the removal of the case from the List which
has been advanced in interpretation of the position of Serbia and Mon-
tenegro is that there is substantive agreement between the Parties on a
“question of jurisdiction that is determinative of the case”, and that as a
result the dispute before the Court has disappeared. The Respondents
have noted that the Court is asked by Serbia and Montenegro to deter-
mine the question of jurisdiction raised in the preliminary objections of
the respondent States, in its exercise of the compétence de la compétence
reflected in Article 36, paragraph 6, of the Statute. They have however
claimed that, in accordance with the well-established jurisprudence of the
Court, “the Court is not compelled in every case to exercise [its] jurisdic-
tion” (Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 29); and
that the Court has the power to decide to dispose of the case in limine litis.
After all, “[t]here are inherent limitations on the exercise of the judicial
function which the Court, as a court of justice, can never ignore” (ibid. ).
It is emphasized in particular that “the Court can exercise its jurisdic-
tion in contentious proceedings only when a dispute genuinely exists
between the parties” (Nuclear Tests ( Australia v. France), Judgment, I.C.J.
Reports 1974, p. 271, para. 57; Nuclear Tests (New Zealand v. France),
Judgment, I.C.J. Reports 1974, p. 477, para. 60; emphasis added).

34. In this argument before the Court, attention has been drawn to the
specific terms of the provision in Article 36, paragraph 6, of the Statute,
whereby “/i]n the event of a dispute as to whether the Court has jurisdic-
tion, the matter shall be settled by decision of the Court” (emphasis
added). It has thus been argued that it is common ground between the
Parties that the Applicant was not a party to the Statute at the time of
institution of the proceedings, and that there is therefore now no “dispute
as to whether the Court has jurisdiction”. On this basis, it has been
suggested that

“[flor the Court to exercise jurisdiction on a basis which has been
abandoned by the Applicant and which was always denied by the
Respondent, would make a mockery of the principle that jurisdic-
tion is founded on the consent of the parties”.

35. On this point, however, it is the view of the Court that a distinc-
tion 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. The question is whether as a matter of law Serbia and

19
445 LEGALITY OF USE OF FORCE (JUDGMENT)

Montenegro was entitled to seise the Court as a party to the Statute at
the time when it instituted proceedings in these cases. Since that question
is independent of the views or wishes of the Parties, even if they were now
to have arrived at a shared view on the point, the Court would not have
to accept that view as necessarily the correct one. The 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 principle that the jurisdiction of the
Court depends on consent.

36. As noted above (paragraph 28), Serbia and Montenegro, after
explaining why in its view it is questionable whether the Court has juris-
diction, has asked the Court simply “to decide on its jurisdiction” con-
sidering the pleadings formulated in its Observations. At the hearings, it
insisted that it “wants the Court to continue the case and to decide upon
its jurisdiction — and to decide on the merits as well, if it has jurisdic-
tion”. Serbia and Montenegro contends that “the position of the FRY
with regard to international organizations and treaties has been a most
intricate and controversial matter”, so that “[o]nly a decision of this
Court could bring clarity”.

37. The function of a decision of the Court on its jurisdiction in a par-
ticular case is solely to determine whether or not the Court may entertain
that case on the merits, and not to engage in a clarification of a contro-
verted issue of a general nature. A decision of the Court should have, in
the words of the Judgment in the Northern Cameroons case, “some prac-
tical consequence in the sense that it can affect existing legal rights or
obligations of the parties, thus removing uncertainty from their legal rela-
tions” (C.J. Reports 1963, p. 34; emphasis added); and that will be the
proper consequence of the Court’s decision on its jurisdiction in the
present case.

38. It may be mentioned here briefly that some of the Respondents
have implied that the attitude of Serbia and Montenegro might be influ-
enced by the existence of a pending case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro ), hereinafter referred
to as “the Genocide Convention case”. It is recalled that Serbia and Mon-
tenegro in 2002 sought a revision of a Judgment of 11 July 1996 on pre-
liminary objections in that case, basing itself on arguments similar to
those which are advanced in the present case concerning its status in rela-
tion to the United Nations (Application for Revision of the Judgment of
11 July 1996 in the Case concerning Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections ( Yugoslavia v. Bos-
nia and Herzegovina), hereinafter referred to as “the Application for
Revision case”). The Court, by its Judgment of 3 February 2003, rejected
this Application for revision of the earlier Judgment, on the ground that
the necessary conditions specified in Article 61 of the Statute for revision

20
446 LEGALITY OF USE OF FORCE (JUDGMENT)

of a judgment were not met in that case. In one of the other cases con-
cerning Legality of Use of Force, the Respondent contends that there is
no dispute between itself and the Applicant on jurisdiction; that if there
is any subsisting dispute to which Serbia and Montenegro is party, it is
the dispute with Bosnia and Herzegovina; and that the current proceed-
ings “cannot be used to procure a favourable opinion [from the Court],
for use in an entirely separate piece of litigation”.

39. In the view of the Court, it cannot decline to entertain a case
simply because of a suggestion as to the motives of one of the parties
or because its judgment may have implications in another case.

40. Yet another argument advanced for reaching the conclusion that
the Court would be justified in summarily disposing of the case without a
jurisdictional decision relates to a proposition that the substantive dis-
pute under the Genocide Convention, rather than the dispute over juris-
diction, has disappeared. It has been argued that Serbia and Montenegro,
by contending that it was not a party to the Genocide Convention until
March 2001, is bound to recognize that the rights which it was asserting
in its Application under that Convention had no legal basis, and that
therefore any legal dispute between itself and the respondent States con-
cerning these rights and obligations under the Convention has ceased to
exist. That dispute is the sole dispute in the cases concerning Legality
of Use of Force in which the only ground of jurisdiction relied on is
Article IX of the Genocide Convention, and thus, in those cases, the
whole dispute would have disappeared. In the present case, this argu-
ment would imply that the Genocide Convention cannot be relied on by
Serbia and Montenegro against Canada.

A1. It has also been suggested that Serbia and Montenegro has, by its
conduct, either forfeited or renounced its right of action in the present
case and is in any event now estopped from pursuing the present action
in so far as that right of action is based on the Genocide Convention.
More broadly, it is suggested that, by inviting the Court to find that it
has no jurisdiction, the Applicant can no longer be regarded as pursuing
the settlement by the Court of the substantive dispute.

42. The Court is unable to uphold these various contentions. As
regards the argument that the dispute on jurisdiction has disappeared,
Serbia and Montenegro has not invited the Court to find that it has no
jurisdiction; while it is apparently in agreement with the arguments
advanced by the Respondents in that regard in their preliminary objec-
tions, it has specifically asked in its submissions for a decision of the
Court on the jurisdictional question. This question, in the view of the
Court as explained above, is a legal question independent of the views of
the parties upon it. As to the argument concerning the disappearance of
the substantive dispute, it is clear that Serbia and Montenegro has by no
means withdrawn its claims as to the merits. Indeed, these claims were

21
447 LEGALITY OF USE OF FORCE (JUDGMENT)

extensively argued and developed in substance during the hearings on
jurisdiction, in the context of the question of the jurisdiction of the Court
under Article IX of the Genocide Convention. It is equally clear that
these claims are being vigorously denied by the Respondents. It could not
even be said under these circumstances that, while the essential dispute
still subsists, Serbia and Montenegro is no longer seeking to have its
claim determined by the Court. Serbia and Montenegro has not sought a
discontinuance (see paragraph 31 above); and it has stated that it “wants
the Court to continue the case and to decide upon its jurisdiction — and
to decide on the merits as well, if it has jurisdiction”. In the present cir-
cumstances, the Court is unable to find that Serbia and Montenegro has
renounced any of its substantive or procedural rights, or has taken the
position that the dispute between the Parties has ceased to exist. As for
the argument based on the doctrine of estoppel, the Court does not con-
sider that Serbia and Montenegro, by asking the Court “to decide on its
jurisdiction” on the basis of certain alleged “new facts” about its own
legal status vis-a-vis the United Nations, should be held to have forfeited
or renounced its right of action and to be estopped from continuing the
present action before the Court.

43. For all these reasons, the Court cannot remove the cases concern-
ing Legality of Use of Force from the List, or take any decision putting
an end to those cases in limine litis. In the present phase of the proceed-
ings, it must proceed to examine the titles of jurisdiction asserted by the
Applicant and the objections thereto advanced by the Respondents, and
give its decision with respect to jurisdiction.

44, The Court accordingly turns to the questions of jurisdiction arising
in the present case. The Application filed by Serbia and Montenegro on
29 April 1999 indicated that it was submitted “[oln the basis of Article 40
of the Statute of the International Court of Justice and Article 38 of the
Rules of Court”. On the question of the legal grounds for jurisdiction of
the Court, the Application stated that “[t]he Government of the Federal
Republic of Yugoslavia invokes Article 36, paragraph 2, of the Statute of
the International Court of Justice as well as Article IX of the Convention
on the Prevention and Punishment of the Crime of Genocide”.

45. The Court notes that in several cases it referred to “its freedom to
select the ground upon which it will base its judgment” (Application of
the Convention of 1902 Governing the Guardianship of Infants, Judgment,
1. C.J. Reports 1958, p. 62; Application for Revision and Interpretation of
the Judgment of 24 February 1982 in the Case concerning the Continental
Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jama-
hiriya), Judgment, ILC. J. Reports 1985, p. 207, para. 29; Oil Platforms

22
448 LEGALITY OF USE OF FORCE (JUDGMENT)

(Islamic Republic of Iran v. United States of America), Judgment, I C.J.
Reports 2003, p. 180, para. 37).

By the same token, the Court in the past pointed out that when its
jurisdiction is challenged on diverse grounds, it is free to base its decision
on one or more grounds of its own choosing, in particular “the ground
which in its judgment is more direct and conclusive” (Certain Norwegian
Loans (France v. Norway), Judgment, I C.J. Reports 1957, p. 25; see
also Aerial Incident of 27 July 1955 (Israel v. Bulgaria), Judgment,
LCI. Reports 1959, p. 127; Aegean Sea Continental Shelf (Greece v.
Turkey}, Judgment, I. C.J. Reports 1978, pp. 16-17, paras. 39-40, and
Aerial Incident of 10 August 1999 ( Pakistan v. India), Jurisdiction, Judg-
ment, I.C.J. Reports 2000, p. 24, para. 26).

But in those instances, the parties to the cases before the Court were,
without doubt, parties to the Statute of the Court and the Court was thus
open to them under Article 35, paragraph 1, of the Statute. That is not
the case in the present proceedings in which an objection has been made
regarding the right of the Applicant to have access to the Court. And it is
this issue of access to the Court which distinguishes the present case from
all those referred to above.

As the Court observed earlier (see paragraph 29 above), the question
whether Serbia and Montenegro was or was not a party to the Statute of
the Court at the time of the institution of the present proceedings is fun-
damental ; for if it were not such a party, the Court would not be open to
it under Article 35, paragraph 1, of the Statute. In that situation, subject
to any application of paragraph 2 of that Article, Serbia and Montenegro
could not have properly seised the Court, whatever title of jurisdiction it
might have invoked, for the simple reason that Serbia and Montenegro
did not have the right to appear before the Court.

The Court can exercise its judicial function only in respect of those
States which have access to it under Article 35 of the Statute. And only
those States which have access to the Court can confer jurisdiction upon
it.

It is the view of the Court that it is incumbent upon it to examine first
of all the question whether the Applicant meets the conditions laid down
in Articles 34 and 35 of the Statute and whether the Court is thus open to
it. Only 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
Article 36 of the Statute of the Court (see Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia (Serbia and Montenegro) ), Provisional
Measures, Order of 8 April 1993, L.C.J. Reports 1993, pp. 11 et seq.,
paras. 14 et seq.).

There is no doubt that Serbia and Montenegro is a State for the pur-
pose of Article 34, paragraph 1, of the Statute. However, the objection
was raised by certain Respondents (see paragraphs 48, 50, 92, 95 and 96
below) that Serbia and Montenegro did not meet, at the time of the filing

23
449 LEGALITY OF USE OF FORCE (JUDGMENT)

of its Application on 29 April 1999, the conditions set down in Article 35
of the Statute.

46. No specific assertion was made in the Application that the Court
was open to Serbia and Montenegro under Article 35, paragraph 1, of
the Statute of the Court, but it was later made clear that the Applicant
claimed to be a Member of the United Nations and thus a party to the
Statute of the Court, by virtue of Article 93, paragraph 1, of the Charter,
at the time of filing of the Application. As indicated earlier (paragraph 27
above) this position was expressly stated in the Memorial filed by Serbia
and Montenegro on 4 January 2000 (Memorial, Part III, paras. 3.1.17
and 3.1.18).

47. A request for the indication of provisional measures of protection
was submitted by Serbia and Montenegro on the day of the filing of
its Application in the present case, i.e. 29 April 1999 (see paragraph 2
above). The Court, by its Order of 2 June 1999, rejected this request (see
paragraph 7 above), on the ground that it had no prima facie jurisdiction
to entertain the Application. It did so on the basis of the reasoning that

“Yugoslavia has accepted the Court’s jurisdiction ratione temporis
in respect only, on the one hand, of disputes arising or which may
arise after the signature of its declaration [i.e. 25 April 1999] and, on
the other hand, of those concerning situations or facts subsequent to
that signature” (.C.J. Reports 1999 (I), p. 268, para. 25);

that

“the Court has no doubt... that a ‘legal dispute’ . . . ‘arose’ between
Yugoslavia and the Respondent, as it did also with the other NATO
member States, well before 25 April 1999 concerning the legality of
those bombings as such, taken as a whole” (ibid., p. 269, para. 27),

and that therefore

“the declarations made by the Parties under Article 36, paragraph 2,
of the Statute do not constitute a basis on which the jurisdiction of
the Court could prima facie be founded in this case” (ibid., p. 270,
para. 29).

With regard to the question of jurisdiction under the Genocide Conven-
tion, the Court, after examining the acts imputed by Serbia and Mon-
tenegro to the Respondent, found that it was not in a position to con-
clude, at that stage of the proceedings, that those acts were capable of
coming within the provisions of the Genocide Convention, and therefore
that “Article IX of the Convention, invoked by Yugoslavia, cannot
accordingly constitute a basis on which the jurisdiction of the Court
could prima facie be founded in this case” (ibid., p. 273, para. 40).

24
450 LEGALITY OF USE OF FORCE (JUDGMENT)

48. In the course of the proceedings on this request, however, the
Respondent raised the issue of whether the Applicant was a party to the
Statute of the Court. Referring, inter alia, to Security Council resolu-
tion 777 (1992) of 19 September 1992 and to United Nations General
Assembly resolution 47/1 of 22 September 1992, Canada contended that
“the Federal Republic of Yugoslavia is not a Member of the United
Nations as a successor State” and that “not having duly acceded to the
Organization, it is not in consequence a party to the Statute of the
Court” (ibid., p. 270, para. 30). In Canada’s view therefore “the jurisdic-
tion of the Court cannot be founded prima facie on Article 36, para-
graph 2, of the Statute, since the Yugoslav declaration accepting the
jurisdiction of the Court ‘is a transparent nullity” (ibid. ).

49. Notwithstanding this contention by the Respondent, the Court did
not, in its Order on provisional measures, carry out any examination of
it, confining itself to observing that in view of its finding relating to the
lack of prima facie jurisdiction ratione temporis under Article 36, para-
graph 2, “the Court need not consider this question for the purpose of
deciding whether or not it can indicate provisional measures in the
present case” (ibid., para. 32).

50. Canada subsequently argued as its first preliminary objection to
the jurisdiction of the Court, inter alia, that:

“The Applicant is not a Member of the United Nations and
accordingly is not party to the Statute of the Court . . .” (Preliminary
Objections of Canada, p. 9, para. 32.)

“In order to have access to the Court, the Applicant must be
either be a party to the Statute of the Court, or claim to apply the
exceptional mechanisms provided for in Article 93, paragraph 2, of
the Charter of the United Nations or in Article 35, paragraph 2, of
the Statute. The Applicant meets neither of these requirements.”
(bid., para. 35; original emphasis.)

51. The Court notes that it is, and has always been, common ground
between the Parties that Serbia and Montenegro has not claimed to have
become a party to the Statute on any other basis than by membership in
the United Nations. Therefore the question raised in this first preliminary
objection is simply whether or not the Applicant was a Member of the
United Nations at the time when it instituted proceedings in the present
case.

52. In addressing the question whether Serbia and Montenegro had
access to the Court under Article 35, paragraph 1, of the Statute, the
Court will consider the arguments put forward in this case and any other
legal issue which it deems relevant to consider with a view to arriving at
its conclusion on this point, including the issues raised in the other cases
referred to in paragraph 3 above.

53. The Court will first recapitulate the sequence of events relating to

25
451 LEGALITY OF USE OF FORCE (JUDGMENT)

the legal position of Serbia and Montenegro vis-a-vis the United Nations
— events already examined, so far as was necessary to the Court, in the
context of another case (see Judgment in the case concerning Application
for Revision, I. C.J. Reports 2003, pp. 14-26, paras. 24-53).

54. In the early 1990s the Socialist Federal Republic of Yugoslavia,
made up of Bosnia and Herzegovina, Croatia, Macedonia, Montenegro,
Serbia and Slovenia, began to break up. On 25 June 1991 Croatia and
Slovenia both declared independence, followed by Macedonia on 17 Sep-
tember 1991 and Bosnia and Herzegovina on 6 March 1992. On 22 May
1992, Bosnia and Herzegovina, Croatia and Slovenia were admitted as
Members to the United Nations; as was the former Yugoslav Republic of
Macedonia on 8 April 1993.

55. On 27 April 1992 the “participants of the joint session of the
SFRY Assembly, the National Assembly of the Republic of Serbia and
the Assembly of the Republic of Montenegro” adopted a declaration,
stating in pertinent parts:

“The representatives of the people of the Republic of Serbia and
the Republic of Montenegro,

Expressing the will of the citizens of their respective Republics to
stay in the common state of Yugoslavia,
wish to state in this Declaration their views on the basic, immediate
and lasting objectives of the policy of their common state, and on its
relations with the former Yugoslav Republics.

1. The Federal Republic of Yugoslavia, continuing the state, inter-
national legal and political personality of the Socialist Federal
Republic of Yugoslavia, shall strictly abide by all the commitments
that the SFR of Yugoslavia assumed internationally,

Remaining bound by all obligations to international organiza-
tions and institutions whose member it is . . .” (United Nations
doc. A/46/915, Ann. IT.)

56. An official Note of the same date from the Permanent Mission of
Yugoslavia to the United Nations, addressed to the Secretary-General of
the United Nations, stated inter alia that:

“The Assembly of the Socialist Federal Republic of Yugoslavia, at
its session held on 27 April 1992, promulgated the Constitution of
the Federal Republic of Yugoslavia. Under the Constitution, on the
basis of the continuing personality of Yugoslavia and the legitimate

26
452

LEGALITY OF USE OF FORCE (JUDGMENT)

decisions by Serbia and Montenegro to continue to live together in
Yugoslavia, the Socialist Federal Republic of Yugoslavia is trans-
formed into the Federal Republic of Yugoslavia, consisting of the
Republic of Serbia and the Republic of Montenegro.

Strictly respecting the continuity of the international personality
of Yugoslavia, the Federal Republic of Yugoslavia shall continue to
fulfil all the rights conferred to, and obligations assumed by, the
Socialist Federal Republic of Yugoslavia in international relations,
including its membership in all international organizations and
participation in international treaties ratified or acceded to by Yugo-
slavia.” (United Nations doc. A/46/915, Ann. I.)

57. On 30 May 1992, the Security Council adopted resolution 757
(1992), in which, inter alia, it noted that “the claim by the Federal
Republic of Yugoslavia (Serbia and Montenegro) to continue automati-
cally the membership of the former Socialist Federal Republic of Yugo-
slavia in the United Nations has not been generally accepted”.

58. On 19 September 1992, the Security Council adopted resolution 777
(1992) which read as follows:

27

“The Security Council,

Reaffirming its resolution 713 (1991) of 25 September 1991 and all
subsequent relevant resolutions,

Considering that the state formerly known as the Socialist Federal
Republic of Yugoslavia has ceased to exist,

Recalling in particular resolution 757 (1992) which notes that ‘the
claim by the Federal Republic of Yugoslavia (Serbia and Monte-
negro) to continue automatically the membership of the former
Socialist Federal Republic of Yugoslavia in the United Nations
has not been generally accepted’,

1. Considers that the Federal Republic of Yugoslavia (Serbia and
Montenegro) cannot continue automatically the membership of
the former Socialist Federal Republic of Yugoslavia in the United
Nations; and therefore recommends to the General Assembly that it
decide that the Federal Republic of Yugoslavia (Serbia and Mon-
tenegro) should apply for membership in the United Nations and
that it shall not participate in the work of the General Assembly;

2. Decides to consider the matter again before the end of the
main part of the forty-seventh session of the General Assembly.”
(United Nations doc. S/RES/777.)
453 LEGALITY OF USE OF FORCE (JUDGMENT)

The resolution was adopted by 12 votes in favour, none against, and
3 abstentions.

59. On 22 September 1992 the General Assembly adopted resolu-
tion 47/1, according to which:

“The General Assembly,

Having received the recommendation of the Security Council of
19 September 1992 that the Federal Republic of Yugoslavia (Serbia
and Montenegro) should apply for membership in the United
Nations and that it shall not participate in the work of the General
Assembly,

1. Considers that the Federal Republic of Yugoslavia (Serbia and
Montenegro) cannot continue automatically the membership of the
former Socialist Federal Republic of Yugoslavia in the United
Nations; and therefore decides that the Federal Republic of Yugo-
slavia (Serbia and Montenegro) should apply for membership in the
United Nations and that it shall not participate in the work of the
General Assembly;

2. Takes note of the intention of the Security Council to con-
sider the matter again before the end of the main part of the
forty-seventh session of the General Assembly.” (United Nations
doc. A/RES/47/1.)

The resolution was adopted by 127 votes to 6, with 26 abstentions.

60. On 25 September 1992, the Permanent Representatives of Bosnia
and Herzegovina and Croatia addressed a letter to the Secretary-General,
in which, with reference to Security Council resolution 777 (1992) and
General Assembly resolution 47/1, they stated their understanding as fol-
lows: “At this moment, there is no doubt that the Socialist Federal
Republic of Yugoslavia is not a member of the United Nations any more.
At the same time, the Federal Republic of Yugoslavia is clearly not yet a
member.” They concluded that “[t]he flag flying in front of the United
Nations and the name-plaque bearing the name ‘Yugoslavia’ do not rep-
resent anything or anybody any more” and “kindly request[ed] that [the
Secretary-General] provide a legal explanatory statement concerning the
questions raised” (United Nations doc. A/47/474).

61. In response, on 29 September 1992, the Under-Secretary-General
and Legal Counsel of the United Nations addressed a letter to the
Permanent Representatives of Bosnia and Herzegovina and Croatia,
in which he stated that the “considered view of the United Nations
Secretariat regarding the practical consequences of the adoption by the
General Assembly of resolution 47/1” was as follows:

“While the General Assembly has stated unequivocally that the
Federal Republic of Yugoslavia (Serbia and Montenegro) cannot

28
454 LEGALITY OF USE OF FORCE (JUDGMENT)

automatically continue the membership of the former Socialist
Federal Republic of Yugoslavia in the United Nations and that the
Federal Republic of Yugoslavia (Serbia and Montenegro) should
apply for membership in the United Nations, the only practical con-
sequence that the resolution draws is that the Federal Republic
of Yugoslavia (Serbia and Montenegro) shall not participate in
the work of the General Assembly. It is clear, therefore, that represen-
tatives of the Federal Republic of Yugoslavia (Serbia and Mon-
tenegro) can no longer participate in the work of the General
Assembly, its subsidiary organs, nor conferences and meetings con-
vened by it.

On the other hand, the resolution neither terminates nor suspends
Yugoslavia’s membership in the Organization. Consequently, the
seat and nameplate remain as before, but in Assembly bodies repre-
sentatives of the Federal Republic of Yugoslavia (Serbia and Mon-
tenegro) cannot sit behind the sign ‘Yugoslavia’. Yugoslav missions
at United Nations Headquarters and offices may continue to func-
tion and may receive and circulate documents. At Headquarters, the
Secretariat will continue to fly the flag of the old Yugoslavia as it is
the last flag of Yugoslavia used by the Secretariat. The resolution
does not take away the right of Yugoslavia to participate in the
work of organs other than Assembly bodies. The admission to the
United Nations of a new Yugoslavia under Article 4 of the Charter
will terminate the situation created by resolution 47/1.” (United
Nations doc. A/47/485; original emphasis.)

62. On 29 April 1993, the General Assembly, upon the recommenda-
tion contained in Security Council resolution 821 (1993) (couched in
terms similar to those of Security Council resolution 777 (1992)), adopted
resolution 47/229 in which it decided that “the Federal Republic of
Yugoslavia (Serbia and Montenegro) shall not participate in the work of
the Economic and Social Council”.

63. As is clear from the sequence of events summarized in the above
paragraphs (paragraphs 54-62), the legal position of the Federal Republic
of Yugoslavia within the United Nations and vis-a-vis that Organization
remained highly complex during the period 1992-2000. In fact, it is the
view of the Court that the legal situation that obtained within the United
Nations during that eight-year period concerning the status of the Fed-
eral Republic of Yugoslavia, after the break-up of the Socialist Federal
Republic of Yugoslavia, remained ambiguous and open to different
assessments. This was due, inter alia, to the absence of an authoritative
determination by the competent organs of the United Nations defining
clearly the legal status of the Federal Republic of Yugoslavia vis-a-vis the
United Nations.

29
455 LEGALITY OF USE OF FORCE (JUDGMENT)

64. Within the United Nations, three different positions were taken on
the issue of the legal status of the Federal Republic of Yugoslavia. In the
first place, there was the position taken by the two political organs con-
cerned. The Security Council, as an organ of the United Nations which
under the Charter is vested with powers and responsibilities as regards
membership, stated in its resolution 777 (1992) of 19 September 1992 that
it “consider[ed] that the state formerly known as the Socialist Federal
Republic of Yugoslavia has ceased to exist” and that it “[clonsider[ed]
that the Federal Republic of Yugoslavia (Serbia and Montenegro) can-
not continue automatically the membership of the Socialist Federal
Republic of Yugoslavia in the United Nations”.

65. The other organ which under the Charter is vested with powers
and responsibilities as regards membership in the United Nations is the
General Assembly. In the wake of this Security Council resolution, and
especially in light of its recommendation to the General Assembly that “it
decide that the Federal Republic of Yugoslavia (Serbia and Montenegro)
should apply for membership in the United Nations”, the Assembly took
the position in resolution 47/1 of 22 September 1992 that it “[cJon-
sider[ed] that the Federal Republic of Yugoslavia (Serbia and Monte-
negro) cannot continue automatically the membership of the former
Socialist Federal Republic of Yugoslavia in the United Nations”. On that
basis, it “decide[d] that the Federal Republic of Yugoslavia (Serbia and
Montenegro) should apply for membership in the United Nations”.

66. While it is clear from the voting figures (see paragraphs 58 and 59
above) that these resolutions reflected a position endorsed by the vast
majority of the Members of the United Nations, they cannot be con-
strued as conveying an authoritative determination of the legal status of
the Federal Republic of Yugoslavia within, or vis-a-vis, the United
Nations. The uncertainty surrounding the question is evidenced, inter
alia, by the practice of the General Assembly in budgetary matters during
the years following the break-up of the Socialist Federal Republic of
Yugoslavia.

67. The following were the arrangements made with regard to the
assessment of the Federal Republic of Yugoslavia for annual contribu-
tions to the United Nations budget, during the period between 1992 and
2000. Prior to the break-up of the Socialist Federal Republic of Yugo-
slavia, the rate of assessment for that State for 1992, 1993 and 1994 had
been established in 1991 as 0.42 per cent (General Assembly resolu-
tion 46/221 of 20 December 1991). On 23 December 1992, the General
Assembly, on the recommendation of the Fifth Committee, decided to
adopt the recommendations of the Committee on Contributions that,
inter alia, for 1992, Bosnia and Herzegovina, Croatia and Slovenia

30
456 LEGALITY OF USE OF FORCE (JUDGMENT)

should pay seven-twelfths of their rates of assessment for 1993 and 1994,
and that “their actual assessment should be deducted from that of Yugo-
slavia for that year” (United Nations doc. A/47/11, para. 64). By resolu-
tion 48/223 of 23 December 1993, the General Assembly determined that
the 1993 rate of assessment of the former Yugoslav Republic of Macedo-
nia, admitted to membership in the United Nations in 1993, should be
deducted from that of Yugoslavia. The General Assembly also decided
that the rate of assessment of the former Yugoslav Republic of Macedo-
nia should be deducted from that of Yugoslavia for 1994. Following this
practice, the rate of assessment for the contribution of Yugoslavia to the
regular budget of the United Nations for the years 1995, 1996 and 1997
was determined to be 0.11, 0.1025 and 0.10 per cent respectively (General
Assembly resolution 49/19 B of 23 December 1994), and for the next tri-
ennial period, the rate of assessment of Yugoslavia for the years 1998,
1999 and 2000 was determined to be 0.060, 0.034 and 0.026 per cent
respectively (General Assembly resolution 52/215 A of 20 January 1998).
(See further 1 C.J. Reports 2003, pp. 22-23, paras. 45-47.)

68. Secondly, the Federal Republic of Yugoslavia, for its part, main-
tained its claim that it continued the legal personality of the Socialist
Federal Republic of Yugoslavia. This claim had been clearly stated in the
official Note of 27 April 1992 from the Permanent Mission of Yugoslavia
to the United Nations addressed to the Secretary-General of the United
Nations (see paragraph 56 above). It was sustained by the Applicant
throughout the period from 1992 to 2000 (see, for example, Memorial,
Part III, paras. 3.1.3 and 3.1.17).

69. Thirdly, another organ that came to be involved in this problem
was the Secretariat of the United Nations. In the absence of any authori-
tative determination on the legal status of the Federal Republic of Yugo-
slavia within, or vis-à-vis, the United Nations, the Secretariat, as the
administrative organ of the Organization, simply continued to keep to
the practice of the status quo ante that had prevailed up to the break-up
of the Socialist Federal Republic of Yugoslavia in 1992, pending such a
determination. This is illustrated by the practice of the Secretariat in its
role in the preparation of the budget of the Organization for considera-
tion and approval by the General Assembly. The “considered view of the
United Nations Secretariat regarding the practical consequences of the
adoption by the General Assembly of resolution 47/1” (United Nations
doc. A/47/485), issued by the Under-Secretary-General and Legal Coun-
sel on 29 September 1992 (see paragraph 61 above), should probably also
be understood in the context of this continuation of the status quo ante.

70. By the same token, the position of the Secretary-General as reflected
in the “Summary of Practice of the Secretary-General as Depositary of
Multilateral Treaties”, prepared by the Treaty Section of the Office of

31
457 LEGALITY OF USE OF FORCE (JUDGMENT)

Legal Affairs and published at the beginning of 1996, was scrupulously to
maintain the approach of following the existing practice on the basis of
the status quo ante. As originally issued, that Summary contained a para-
graph (paragraph 297) on the practice of the Secretariat on the break-up
of a State party to a multilateral convention of which the Secretary-
General was the depositary. It was there stated, inter alia, that “[t]he
independence of the new successor State, which then exercises its
sovereignty on its territory, is of course without effect as concerns the
treaty rights and obligations of the predecessor State as concerns its
own (remaining) territory”. The example was given of the Union of
Soviet Socialist Republics, and the text continued:

“The same applies to the Federal Republic of Yugoslavia (Serbia
and Montenegro), which remains as the predecessor State upon
separation of parts of the territory of the former Yugoslavia.
General Assembly resolution 47/1 of 22 September 1992, to the effect
that the Federal Republic of Yugoslavia could not automatically
continue the membership of the former Yugoslavia in the United
Nations . . ., was adopted within the framework of the United
Nations and the context of the Charter of the United Nations,
and not as an indication that the Federal Republic of Yugoslavia
was not to be considered a predecessor State.” (United Nations
doc. ST/LEG/8; see also .C. J. Reports 2003, p. 19, para. 38.)

This passage could be read as lending support to the claims of the
Federal Republic of Yugoslavia. It was deleted by the Secretariat in
response to the objections raised by a number of States that the text was
contrary to the relevant Security Council and General Assembly resolu-
tions and the pertinent opinions of the Arbitration Commission of the
International Conference for Peace in Yugoslavia (see United Nations
docs. A/50/910-S/1996/231, A/51/95-S/1996/251, A/50/928-S/1996/263 and
A/50/930-S/1996/260).

71. A further example of the application of this approach is afforded
by the way in which the Secretariat treated the deposit of the declaration
by the Federal Republic of Yugoslavia recognizing the compulsory juris-
diction of the International Court of Justice dated 25 April 1999. On
30 April 1999 the Secretary-General issued a Depositary Notification
informing Member States of that deposit (C.N.311.1999. TREATIES-1).
Although on 27 May 1999 the Permanent Representatives of Bosnia and
Herzegovina, Croatia, Slovenia and the former Yugoslav Republic of
Macedonia sent a letter to the Secretary-General, questioning the validity
of the deposit of the declaration recognizing the compulsory jurisdic-
tion of the International Court of Justice by the Federal Republic of
Yugoslavia (United Nations doc. A/53/992), the Secretariat adhered to

32
458 LEGALITY OF USE OF FORCE (JUDGMENT)

its past practice respecting the status quo ante and simply left the matter
there.

72. To sum up, all these events testify to the rather confused and com-
plex state of affairs that obtained within the United Nations surrounding
the issue of the legal status of the Federal Republic of Yugoslavia in the
Organization during this period. It is against this background that the
Court, in its Judgment of 3 February 2003, referred to the “sui generis
position which the FRY found itself in” during the period between 1992
and 2000.

73. It must be stated that this qualification of the position of the Fed-
eral Republic of Yugoslavia as “sui generis”, which the Court employed
to describe the situation during this period of 1992 to 2000, is not a pre-
scriptive term from which certain defined legal consequences accrue; it is
merely descriptive of the amorphous state of affairs in which the Federal
Republic of Yugoslavia found itself during this period. No final and
definitive conclusion was drawn by the Court from this descriptive term
on the amorphous status of the Federal Republic of Yugoslavia vis-a-vis
or within the United Nations during this period. The Court did not com-
mit itself to a definitive position on the issue of the legal status of the
Federal Republic of Yugoslavia in relation to the Charter and the Statute
in its pronouncements in incidental proceedings, in the cases involving
this issue which came before the Court during this anomalous period.
For example, the Court stated in its Order of 2 June 1999 on the request
for the indication of provisional measures in the present case as follows:

“Whereas Canada also contends that the jurisdiction of the Court
cannot be founded prima facie on Article 36, paragraph 2, of the
Statute, since the Yugoslav declaration accepting the jurisdiction
of the Court ‘is a transparent nullity’; whereas Canada, referring
to United Nations Security Council resolution 777 (1992) dated
19 September 1992 and to United Nations General Assembly
resolution 47/1 of 22 September 1992, argues that ‘the Federal
Republic of Yugoslavia is not a Member of the United Nations
as a successor State’, and that, not having duly acceded to the
Organization, it is not in consequence a party to the Statute of the
Court;

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

33
459 LEGALITY OF USE OF FORCE (JUDGMENT)

Whereas, in view of its finding in paragraph 29 above, the Court
need not consider this question for the purpose of deciding whether
or not it can indicate provisional measures in the present case.”
(C.J. Reports 1999 (I), p. 270, paras. 30-32.)

74. This situation, however, came to an end with a new development
in 2000. On 24 September 2000, Mr. Koëtunica was elected President of
the Federal Republic of Yugoslavia. In that capacity, on 27 October 2000
he sent a letter to the Secretary-General requesting admission of the
Federal Republic of Yugoslavia to membership in the United Nations,
in the following terms:

“In the wake of fundamental democratic changes that took
place in the Federal Republic of Yugoslavia, in the capacity of
President, I have the honour to request the admission of the Fed-
eral Republic of Yugoslavia to membership in the United Nations
in light of the implementation of Security Council resolution 777
(1992).” (United Nations doc. A/55/528-S/2000/1043; emphasis
added.)

75. Acting upon this application by the Federal Republic of Yugo-
slavia for membership in the United Nations, the Security Council on
31 October 2000 “recommend{ed] to the General Assembly that the Fed-
eral Republic of Yugoslavia be admitted to membership in the United
Nations” (United Nations doc. S/RES/1326). On 1 November 2000, the
General Assembly, by resolution 55/12, “/hjaving received the recom-
mendation of the Security Council of 31 October 2000” and “/h/aving
considered the application for membership of the Federal Republic of
Yugoslavia”, decided to “admit the Federal Republic of Yugoslavia to
membership in the United Nations”.

76. As the letter of the President of the Federal Republic of Yugo-
slavia quoted above demonstrates, this action on the part of the Federal
Republic of Yugoslavia signified that it had finally decided to act on
Security Council resolution 777 (1992) by aligning itself with the position
of the Security Council as expressed in that resolution. Furthermore the
Security Council confirmed its own position by taking steps for the
admission of the Federal Republic of Yugoslavia as a new Member of the
United Nations, which, when followed by corresponding steps taken by
the General Assembly, completed the procedure for the admission of a
new Member under Article 4 of the Charter, rather than pursuing any
course involving recognition of continuing membership of the Federal
Republic of Yugoslavia in the United Nations.

77. This new development effectively put an end to the sui generis
position of the Federal Republic of Yugoslavia within the United Nations,
which, as the Court has observed in earlier pronouncements, had been

34
460 LEGALITY OF USE OF FORCE (JUDGMENT)

fraught with “legal difficulties” throughout the period between 1992 and
2000 (cf. Application of the Convention on the Prevention and Punishment
of the Crime of Genocide ( Bosnia and Herzegovina v. Yugoslavia (Serbia
and Montenegro) ), Provisional Measures, Order of 8 April 1993, LC J.
Reports 1993, p. 14, para. 18). The Applicant thus has the status of mem-
bership in the United Nations as from 1 November 2000. However, its
admission to the United Nations did not have, and could not have had,
the effect of dating back to the time when the Socialist Federal Republic
of Yugoslavia broke up and disappeared; there was in 2000 no question
of restoring the membership rights of the Socialist Federal Republic of
Yugoslavia for the benefit of the Federal Republic of Yugoslavia. At the
same time, it became clear that the sui generis position of the Applicant
could not have amounted to its membership in the Organization.

78. In the view of the Court, the significance of this new development
in 2000 is that it has clarified the thus far amorphous legal situation con-
cerning the status of the Federal Republic of Yugoslavia vis-à-vis the
United Nations. It is in that sense that the situation that the Court now
faces in relation to Serbia and Montenegro is manifestly different from
that which it faced in 1999. If, at that time, the Court had had to deter-
mine definitively the status of the Applicant vis-à-vis the United Nations,
its task of giving such a determination would have been complicated by
the legal situation, which was shrouded in uncertainties relating to that
status. However, from the vantage point from which the Court now
looks at the legal situation, and in light of the legal consequences of the
new development since 1 November 2000, the Court is led to the conclu-
sion that Serbia and Montenegro was not a Member of the United
Nations, and in that capacity a State party to the Statute of the Interna-
tional Court of Justice, at the time of filing its Application to institute the
present proceedings before the Court on 29 April 1999.

79. A further point to consider is the relevance to the present case of
the Judgment in the Application for Revision case, of 3 February 2003.
There is no question of that Judgment possessing any force of res judi-
cata in relation to the present case. Nevertheless, the relevance of that
judgment to the present case has to be examined, inasmuch as Serbia and
Montenegro raised, in connection with its Application for revision, the
same issue of its access to the Court under Article 35, paragraph 1, of the
Statute, and the judgment of the Court was given in 2003 at a time when
the new development described above had come to be known to the
Court.

80. On 20 March 1993, the Government of the Republic of Bosnia and
Herzegovina filed in the Registry of the Court an Application instituting
proceedings against the Government of the Federal Republic of Yugo-
slavia in respect of a dispute concerning alleged violations of the Conven-
tion on the Prevention and Punishment of the Crime of Genocide. The

35
461 LEGALITY OF USE OF FORCE (JUDGMENT)

Application invoked Article IX of the Genocide Convention as the basis
of the jurisdiction of the Court.

81. On 30 June 1995, the Federal Republic of Yugoslavia, referring to
Article 79, paragraph 1, of the Rules of Court, raised preliminary objec-
tions concerning the admissibility of the Application and the jurisdiction
of the Court to entertain the case. The Court, in its Judgment on Pre-
liminary Objections of 11 July 1996, rejected the preliminary objections
raised by the Federal Republic of Yugoslavia, and found inter alia that
“on the basis of Article IX of the Convention on the Prevention and Pun-
ishment of the Crime of Genocide, it has jurisdiction to adjudicate upon
the dispute” (.C.J. Reports 1996 (II), p. 623). The question of the status
of the Federal Republic of Yugoslavia in relation to Article 35 of the
Statute was not raised and the Court saw no reason to examine it.

82. However, in the wake of the new development in the legal status of
the Federal Republic of Yugoslavia in 2000 mentioned above (para-
graphs 74-76), the Federal Republic of Yugoslavia filed a new Applica-
tion dated 23 April 2001 instituting proceedings, whereby, referring to
Article 61 of the Statute of the Court, it requested the Court to revise
the above-mentioned Judgment of 11 July 1996. In its Application the
Federal Republic of Yugoslavia contended the following:

“The admission of the FRY to the United Nations as a new
Member on 1 November 2000 is certainly a new fact. It can also be
demonstrated, and the Applicant submits, that this new fact is of
such a nature as to be a decisive factor regarding the question of
jurisdiction ratione personae over the FRY.

After the FRY was admitted as new Member on 1 November
2000, dilemmas concerning its standing have been resolved, and it
has become an unequivocal fact that the FRY did not continue the
personality of the SFRY, was not a Member of the United Nations
before 1 November 2000, was not a State party to the Statute, and
was not a State party to the Genocide Convention ...

The admission of the FRY to the United Nations as a new
Member clears ambiguities and sheds a different light on the issue
of the membership of the FRY in the United Nations, in the Statute
and in the Genocide Convention.” (Judgment of 3 February 2003,
1. C.J. Reports 2003, p. 12, para. 18.)

83. In its oral argument however, the Federal Republic of Yugoslavia
explained that it did not invoke its admission to the United Nations in
November 2000 as a decisive “new fact”, within the meaning of Article 61
of the Statute, capable of founding its request for revision of the 1996
Judgment. In this context, the Federal Republic of Yugoslavia referred to
that admission and a letter of 8 December 2000 from the Under-Secre-
tary-General and Legal Counsel of the United Nations to the Minister
for Foreign Affairs of the Federal Republic of Yugoslavia, expressing the

36
462 LEGALITY OF USE OF FORCE (JUDGMENT)

view that in respect of multilateral treaties deposited with the Secretary-
General, “the Federal Republic of Yugoslavia should now undertake
treaty actions, as appropriate, . . . if its intention is to assume the relevant
legal rights and obligations as a successor State”. The Federal Republic
of Yugoslavia contended that its admission to the United Nations “as a
new Member” as well as the Legal Counsel’s letter of 8 December 2000
were

“events which . . . revealed the following two decisive facts:
(1) the FRY was not a party to the Statute at the time of the Judg-
ment; and

(2) the FRY did not remain bound by Article IX of the Genocide
Convention continuing the personality of the former Yugo-
slavia”.

84. In the proceedings on that Application instituted under Article 61
of the Statute, it was for the Federal Republic of Yugoslavia to show,
inter alia, the existence of a fact which was, “when the judgment was
given” on the preliminary objections of the Federal Republic of Yugo-
slavia, i.e. on 11 July 1996, “unknown to the Court and also to the party
claiming revision”, this being one of the conditions laid down by
Article 61 of the Statute for the admissibility of an application for
revision. The Court was at this stage concerned simply to establish
whether the Federal Republic of Yugoslavia’s Application for revision
was admissible in conformity with the provisions of Article 61 of the
Statute. If it had found that it was admissible, it would have given a
judgment “expressly recording the existence of the new fact” in accord-
ance with Article 61, paragraph 2, of the Statute, and further pro-
ceedings would have been held, in accordance with Article 99 of the
Rules of Court, “on the merits of the application”.

85. In the Judgment in the Application for Revision case, the Court
found the Application for revision inadmissible. It is to be noted that the
Court observed specifically that:

“In advancing this argument, the FRY does not rely on facts that
existed in 1996. In reality, it bases its Application for revision on the
legal consequences which it seeks to draw from facts subsequent to
the Judgment which it is asking to have revised. Those conse-
quences, even supposing them to be established, cannot be regarded
as facts within the meaning of Article 61. The FRY’s argument
cannot accordingly be upheld.” (LC. J. Reports 2003, pp. 30-31,
para. 69; emphasis added.)

86. Thus the Court did not regard the alleged “decisive facts” specified
by Serbia and Montenegro as “facts that existed in 1996” for the purpose
of Article 61. The Court therefore did not have to rule on the question
whether “the legal consequences” could indeed legitimately be deduced
from the later facts; in other words, it did not have to say whether it was

37
463 LEGALITY OF USE OF FORCE (JUDGMENT)

correct that Serbia and Montenegro had not been a party to the Statute
or to the Genocide Convention in 1996. It is for this reason that the
Court included in its Judgment the words now italicized in the above
quotation.

87. In its Judgment the Court went on to state that:

“Resolution 47/1 did not inter alia affect the FRY’s right to
appear before the Court or to be a party to a dispute before the
Court under the conditions laid down by the Statute .. . To ‘termi-
nate the situation created by resolution 47/1’, the FRY had to sub-
mit a request for admission to the United Nations as had been done
by the other Republics composing the SFRY. All these elements
were known to the Court and to the FRY at the time when the
Judgment was given. Nevertheless, what remained unknown in July
1996 was if and when the FRY would apply for membership in the
United Nations and if and when that application would be accepted,
thus terminating the situation created by General Assembly resolu-
tion 47/1.” (Ibid, p. 31, para. 70.)

On the critical question of the Federal Republic of Yugoslavia’s admis-
sion to the United Nations as a new Member, the Court emphasized that

“General Assembly resolution 55/12 of 1 November 2000 cannot
have changed retroactively the sui generis position which the FRY
found itself in vis-à-vis the United Nations over the period 1992 to
2000, or its position in relation to the Statute of the Court and the
Genocide Convention” (ibid., para. 71).

These statements cannot however be read as findings on the status of
Serbia and Montenegro in relation to the United Nations and the Geno-
cide Convention; the Court had already implied that it was not called
upon to rule on those matters, and that it was not doing so.

88. In the immediately following paragraph of the Judgment, the
Court stated:

“It follows from the foregoing that it has not been established that
the request of the FRY is based upon the discovery of ‘some fact’
which was ‘when the judgment was given, unknown to the Court
and also to the party claiming revision’. The Court therefore con-
cludes that one of the conditions for the admissibility of an applica-
tion for revision prescribed by paragraph 1 of Article 61 of the
Statute has not been satisfied.” (/bid., para. 72.)

The Court thus made its position clear that there could have been no
retroactive modification of the situation in 2000, which would amount

38
464 LEGALITY OF USE OF FORCE (JUDGMENT)

to a new fact, and that therefore the conditions of Article 61 were not
satisfied. This, however, did not entail any finding by the Court, in the
revision proceedings, as to what that situation actually was.

89. Given the specific characteristics of the procedure under Article 61
of the Statute, in which the conditions for granting an application for
revision of a judgment are strictly circumscribed, there is no reason to
treat the Judgment in the Application for Revision case as having pro-
nounced upon the issue of the legal status of Serbia and Montenegro
vis-à-vis the United Nations. Nor does the Judgment pronounce upon
the status of Serbia and Montenegro in relation to the Statute of the
Court.

90. For all these reasons, the Court concludes that, at the time of filing
of its Application to institute the present proceedings before the Court on
29 April 1999, the Applicant in the present case, Serbia and Montenegro,
was not a Member of the United Nations, and, consequently, was not, on
that basis, a State party to the Statute of the International Court of Jus-
tice. It follows that the Court was not open to Serbia and Montenegro
under Article 35, paragraph 1, of the Statute.

« Ÿ +

91. The Court will now consider whether it might be open to Serbia
and Montenegro under paragraph 2 of Article 35, which provides that:

“The conditions under which the Court shall be open to other
States [i.e. States not parties to the Statute] shall, subject to the
special provisions contained in treaties in force, be laid down by
the Security Council, but in no case shall such conditions place
the parties in a position of inequality before the Court.”

The conditions of access provided for in this text were laid down by the
Security Council in resolution 9 (1946); but Serbia and Montenegro has
not invoked that resolution, nor brought itself within the terms laid down
therein.

92. The Court notes that the Applicant, in the present case, has not in
fact claimed that the Court is open to it under paragraph 2 of Article 35,
but has based its right of access to the Court solely on paragraph 1 of the
Article. However, in some of the cases concerning Legality of Use of
Force, including the present one, the Respondent has in its preliminary
objections, or in oral argument, raised the question of the possible appli-
cation of paragraph 2, in order to contend that Serbia and Montenegro
may not rely upon that text. In this context, reference has been made
to an Order of the Court in another case, in which the provisional view
was expressed that Article IX of the Genocide Convention could be
considered as a special provision contained in a treaty in force. The
Court is therefore of the view that in the circumstances of this case it is

39
465 LEGALITY OF USE OF FORCE (JUDGMENT)

appropriate for it to examine the possible application of paragraph 2 of
Article 35.

93. In its Order of 8 April 1993 in the Genocide Convention case, the
Court, after quoting paragraph 2 of Article 35, stated that

“the Court therefore considers that proceedings may validly be insti-
tuted by a State against a State which is a party to such a special
provision in a treaty in force, but is not party to the Statute, and
independently of the conditions laid down by the Security Council
in its resolution 9 of 1946 (cf. S.S. “Wimbledon”, 1923, P.C.LJ.,
Series A, No. 1, p. 6); whereas a compromissory clause in a multi-
lateral convention, such as Article IX of the Genocide Convention
relied on by Bosnia-Herzegovina in the present case, could, in the
view of the Court, be regarded prima facie as a special provision
contained in a treaty in force; whereas accordingly if Bosnia-
Herzegovina and Yugoslavia are both parties to the Genocide
Convention, disputes to which Article [X applies are in any event
prima facie within the jurisdiction ratione personae of the Court”
(C.J. Reports 1993, p. 14, para. 19; emphasis added).

In the further proceedings in that case, however, this point was not pur-
sued; the Court rejected the preliminary objections raised by the Respon-
dent in that case, one of them being that the Republic of Bosnia and
Herzegovina had not become a party to the Genocide Convention. The
Respondent however did not raise any objection on the ground that it
was itself not a party to the Genocide Convention, nor to the Statute of
the Court since, on the international plane, it had been maintaining its
claim to continue the legal personality, and the membership in inter-
national organizations including the United Nations, of the Socialist
Federal Republic of Yugoslavia, and its participation in international
treaties. The Court, having observed that it had not been contested
that Yugoslavia was party to the Genocide Convention (Z C.J. Reports
1996 (IT), p. 610, para. 17) found that it had jurisdiction on the basis of
Article IX of that Convention.

94. As in respect of the questions of dismissal of the case in limine litis
and access under paragraph 1 of Article 35 (see paragraphs 26 and 52
above), the Court will consider the arguments put forward in this case
and any other legal issue which it deems relevant to consider, including
the issues raised in the other cases referred to in paragraph 3, with a view
to arriving at its conclusion regarding the possible access to the Court by
Serbia and Montenegro under Article 35, paragraph 2, of the Statute.

95. A number of Respondents contended in their pleadings that the
reference to the “treaties in force” in Article 35, paragraph 2, of the Stat-

40
466 LEGALITY OF USE OF FORCE (JUDGMENT)

ute relates only to treaties in force when the Statute of the Court entered
into force, i.e. on 24 October 1945. In respect of the observation made by
the Court in its Order of 8 April 1993, quoted in paragraph 93 above, the
Respondents pointed out that that was a provisional assessment, not
conclusive of the matter, and considered that “there [were] persuasive
reasons why the Court should revisit the provisional approach it adopted
to the interpretation of this clause in the Genocide Convention case”
(Preliminary Objections of Belgium, p. 73, para. 222). In particular they
referred to the “evident focus of the clause in question on the peace trea-
ties concluded after the First World War”, and argued that to construe
the phrase of Article 35, paragraph 2, of the Statute, “the special provi-
sions contained in treaties in force”, as meaning “jurisdictional clauses
contained in treaties in force” (i.¢e., any treaties whatever) would “funda-
mentally undermine the scheme of the Statute and the distinction between
access to the Court and the jurisdiction of the Court in particular cases”.
Such interpretation would, according to Belgium, “place States not party
to the Statute in a privileged position as they would have access to the
Court without any assumption of the obligations . . . required of States to
which the Court is open” (Preliminary Objections of Belgium, p. 73,
para. 223), or according to the United Kingdom “would . . . place them
in a privileged position by giving them access to the Court without
requiring them to meet the conditions normally imposed as a prerequisite
to access to the Court” (Preliminary Objections of the United Kingdom,
p. 40, para. 3.32).

96. During the oral proceedings these arguments were maintained and
reiterated by certain Respondents. Belgium argued that “[t]he Applica-
tion instituting proceedings . . . fell comprehensively outside the jurisdic-
tional framework of the Court under Articles 35, 36 and 37 of the Statute
at the point at which the proceedings were instituted”. It elaborated
further that “[iln the Genocide Convention case, the controlling consid-
eration is that the FRY did not contest jurisdiction on the ground that it
was not a Member of the United Nations” and continued that Serbia and
Montenegro “cannot rely on its acquiescence as respondent in one case in
order to found jurisdiction as Applicant in this case”. Belgium concluded
that it “relie[d] on both the letter and the spirit of Article 35 of the
Statute” and “[did] not acquiesce to the bringing of a claim against it
by an applicant for whom the Court was not open at the relevant time”
(emphasis added).

Italy observed that

“the question is still whether the Court could . . . regard itself as
having jurisdiction ratione personarum pursuant to Article 35, para-
graph 2, because Serbia and Montenegro was allegedly a party to a
‘treaty in force’ laying down the jurisdiction of the Court”.

41
467 LEGALITY OF USE OF FORCE (JUDGMENT)

Italy recalled the arguments on this issue in its second preliminary objec-
tion, and emphasized that,

“[ijn particular, Italy maintained that the mere presence of a clause
conferring jurisdiction in a treaty in force between two States, one of
which, the Applicant, is not at the same time a party to the Statute,
could not give that State the right to appear before the Court, unless
it met the conditions laid down by the Security Council in its resolu-
tion No. 9 of 15 October 1946. This Serbia and Montenegro has not
done and does not claim ever to have done.”

97. The Court notes that the passage quoted above (paragraph 93)
from the 1993 Order in the Genocide Convention case was addressed to
the situation in which the proceedings were instituted against a State the
membership of which in the United Nations and status of a party to the
Statute was unclear. Bosnia and Herzegovina in its Application in that
case maintained that “the Federal Republic of Yugoslavia (Serbia and
Montenegro)” was a Member of the United Nations and a party to the
Statute and at the same time indicated in the Application that the “con-
tinuity” of Yugoslavia with the former Socialist Federal Republic of
Yugoslavia, a Member of the United Nations, “has been vigorously con-
tested by the entire international community, . . . including by the United
Nations Security Council . . . as well as by the General Assembly” (7. C.J.
Reports 1993, p. 12, para. 15). The Order of 8 April 1993 was made in a
different case; but as the Court observed in a previous case in which
questions of res judicata and Article 59 of the Statute were raised, “[t]he
real question is whether, in this case, there is cause not to follow the
reasoning and conclusions of earlier cases” (Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary
Objections, Judgment, I. C.J. Reports 1998, p. 292, para. 28).

98. The Order of 8 April 1993 was made on the basis of an examina-
tion of the relevant law and facts in the context of incidental proceedings
on a request for the indication of provisional measures. It would there-
fore now be appropriate for the Court to make a definitive finding on the
question whether Article 35, paragraph 2, affords access to the Court in
the present case, and for that purpose, to examine further the question of
its applicability and interpretation.

99. The Court will thus proceed to the interpretation of Article 35,
paragraph 2, of the Statute, and will do so in accordance with customary
international law, reflected in Article 31 of the 1969 Vienna Convention
on the Law of Treaties. According to paragraph 1 of Article 31, a treaty
must be interpreted in good faith in accordance with the ordinary mean-
ing to be given to its terms in their context and in the light of the treaty’s
object and purpose. Interpretation must be based above all upon the text

42
468 LEGALITY OF USE OF FORCE (JUDGMENT)

of the treaty. As a supplementary measure recourse may be had to means
of interpretation such as the preparatory work of the treaty and the cir-
cumstances of its conclusion.

100. Article 35, paragraph 2, refers to “the special provisions con-
tained in treaties in force”, in the context of the question of access to the
Court. Taking the natural and ordinary meaning of the words “special
provisions”, the reference must in the view of the Court be to treaties that
make “special provision” in relation to the Court, and this can hardly be
anything other than provision for the settlement of disputes between the
parties to the treaty by reference of the matter to the Court. As for the
words “treaties in force”, in their natural and ordinary meaning they do
not indicate at what date the treaties contemplated are to be in force, and
thus they may lend themselves to different interpretations. One can con-
strue those words as referring to treaties which were in force at the time
that the Statute itself came into force, as was contended by certain
Respondents; or to those which were in force on the date of the institu-
tion of proceedings in a case in which such treaties are invoked. In favour
of this latter interpretation, it may be observed that the similar expression
“treaties and conventions in force” is found in Article 36, paragraph 1, of
the Statute, and the Court has interpreted it in this sense (for example,
Questions of Interpretation and Application of the 1971 Montreal Con-
vention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United Kingdom), Preliminary Objections, Judgment,
1 C.J. Reports 1998, p. 16, para. 19). The expression “treaty or conven-
tion in force” in Article 37 of the Statute has also been read as meaning
in force at the date proceedings were instituted (Barcelona Traction,
Light and Power Company, Limited, Preliminary Objections, Judgment,
LCI. Reports 1964, p. 27).

101. The object and purpose of Article 35 of the Statute is to define
the conditions of access to the Court. While paragraph 1 of that Article
opens it to the States parties to the Statute, paragraph 2 is intended to
regulate access to the Court by States which are not parties to the Stat-
ute. The conditions of access of such States are, “subject to the special
provisions contained in treaties in force”, to be determined by the Secu-
rity Council, with the proviso that in no case shall such conditions place
the parties in a position of inequality before the Court. The Court con-
siders that it was natural to reserve the position in relation to any rele-
vant treaty provisions that might then exist; moreover, it would have
been inconsistent with the main thrust of the text to make it possible in
the future for States to obtain access to the Court simply by the conclu-
sion between themselves of a special treaty, multilateral or bilateral, con-
taining a provision to that effect.

102. The first interpretation, according to which Article 35, para-
graph 2, refers to treaties in force at the time that the Statute came into
force, is in fact reinforced by an examination of the travaux préparatoires
of the text. Since the Statute of the Permanent Court of International

43
469 LEGALITY OF USE OF FORCE (JUDGMENT)

Justice contained substantially the same provision, which was used as
a model when the Statute of the present Court was drafted, it will be
necessary to examine the drafting history of both Statutes. The text pro-
posed by the 1920 Committee of Jurists (as Article 32 of its draft)
was as follows:

“The Court shall be open of right to the States mentioned in the
Annex to the Covenant, and to such others as shall subsequently
enter the League of Nations.

Other States may have access to it.

The conditions under which the Court shall be open of right or
accessible to States which are not Members of the League of Nations
shall be determined by the Council, in accordance with Article 17 of
the Covenant.” (League of Nations, Permanent Court of Internatio-
nal Justice, Documents concerning the action taken by the Council of
the League of Nations under Article 14 of the Covenant and the adop-
tion by the Assembly of the Statute of the Permanent Court, p. 78.)

103. During the consideration of this text by the Sub-Committee of
the Third-Committee of the First Assembly Meeting of the League of
Nations it was pointed out “that under the Treaties of Peace the Central
Powers would often be Parties before the Court” and that “[t]he text of
the draft does not take sufficient account of this fact” and it was pro-
posed suppressing the first two paragraphs of the Article (ibid., p. 141).

A question was raised “whether the Council might place conditions on
the admission of Germany before the Court, for example in the case men-
tioned in Article 380 of the Treaty of Versailles” to which a negative
response was given. Then the Chairman proposed to entrust a small com-
mittee with the task of drafting a new formula for Article 32 which

“should act upon the three following principles, upon which the
Sub-Committee was agreed:

1. The Council shall have the power of determining conditions for
the admission before the Court of States which are not Members
of the League of Nations.

2. The rights of the Parties before the Court are equal.

3. Account shall be taken of Parties who may present themselves
before the Court by virtue of the Treaties of Peace.” (Ibid.
p. 141; emphasis added.)

104. The Sub-Committee received from the three delegates entrusted
with this task a proposal for a new text of Article 32 as follows:

“Article 32

lst paragraph: No change.

The conditions under which the Court shall be open to other
States shall, subject to special provisions contained in treaties in
force, be laid down by the Council.

When a State which is not a Member of the League of Nations is

44
470 LEGALITY OF USE OF FORCE (JUDGMENT)

a party to a dispute, the Court will fix the amount which that party
shall contribute towards the expenses of the Court.”

105. The Court notes that it is here that for the first time in the legis-
lative history of what later became Article 35, paragraph 2, the phrase
“subject to the special provisions contained in treaties in force” appeared.
It may safely be assumed that this phrase was inserted into the text as a
response to principle 3 referred to above.

106. When the text was presented to the Sub-Committee, the Chair-
man recalled the proposal made at the previous meeting, to add to
Article 32 a provision stating that, as far as party rights are concerned,
all States are equal before the Court. In order to meet this objection
of the Chairman and of the author of that proposal, one of the three co-
authors of the proposed text of Article 32 suggested making the follow-
ing addition to the second paragraph of Article 32:

“The conditions under which the Court shall be open to other
States shall, subject to the special provisions contained in treaties in
force, be laid down by the Council, but in no case shall such provi-
sion place the parties in a position of inequality before the Court.”
(League of Nations, op. cit., p. 144.)

The second paragraph thus amended was adopted without any further
discussion.

107. In the report presented to the Assembly by the Third Committee,
it was stated that:

“The wording of this Article [i.e. the original draft Article 32]
seemed lacking in clearness, and the Sub-Committee has re-cast it in
an effort to express clearly [that]

The access of other States to the Court will depend either on the
special provisions of the Treaties in force (for example the provisions

of the Treaty of Peace concerning the right of minorities, labour,
etc.) or else on a resolution of the Council.” (/bid, p. 210.)

108. Before the Permanent Court of International Justice, the issue
arose on two occasions. In the S.S. “Wimbledon” case (1923, P.C.LJ.,
Series A, No. 1, p. 6) the jurisdiction of the Court was founded on
Article 386 of the Treaty of Versailles of 28 June 1919. When the pro-
ceedings were instituted in that case against Germany, that State was
not a Member of the League of Nations nor was it mentioned in the
Annex to the Covenant. A declaration by Germany accepting the juris-
diction of the Court was not considered as necessary, in light of the
reservation contained in Article 35, paragraph 2, of the Statute which
was intended, as shown above (paragraphs 103-105), to cover special
provisions in the Peace Treaties.

In the case concerning Certain German Interests in Polish Upper

45
471 LEGALITY OF USE OF FORCE (JUDGMENT)

Silesia (1925, P.C.I.T., Series A, No. 6), the proceedings were instituted
by Germany, before its admission to the League of Nations, against
Poland on the basis of Article 23 of the Convention relating to Upper
Silesia of 15 May 1922 and brought into force on 3 June 1922. The Court
noted that Poland “[did] not dispute the fact that the suit has been duly
submitted to the Court in accordance with Articles 35 and 40 of the
Statute” (ibid, p. 11). The Court, before rendering its judgment, con-
sidered the issue and

“was of the opinion that the relevant instruments when correctly inter-
preted (more especially in the light of a report made by M. Hagerup
at the First Assembly of the League of Nations) authorized it in
accepting the German Government’s application without requiring
the special declaration provided for in the Council Resolution”
(Annual Report of the Permanent Court of International Justice
(1 January 1922-15 June 1925), P.C.L.J., Series E, No. 1, p. 261).

Further, it is to be noted that when the Court was discussing amend-
ments of its Rules of Court a year later, two judges expressed the view
that the exception in Article 35 “could only be intended to cover situa-
tions provided for by the treaties of peace” (Acts and Documents (1926),
P.C.LJ., Series D, No. 2, Add., p. 106). One of them explained that, in
the case concerning Certain German Interests in Polish Upper Silesia,

“the question then related to a treaty — the Upper Silesian Conven-
tion — drawn up under the auspices of the League of Nations which
was to be considered as supplementary to the Treaty of Versailles.
It was therefore possible to include the case in regard to which
the Court had then to decide in the general expression ‘subject to
treaties in force’, whilst construing that expression as referring to
the peace treaties. . .” (Jbid., p. 105.)

No other interpretation of the phrase at issue was advanced by any
Member of the Court when in 1926 it discussed the amendment of its
Rules.

109. When the Charter of the United Nations and the Statute of the
Court were under preparation, the issue was first discussed by the United
Nations Committee of Jurists. In the debate, some confusion apparently
arose regarding the difference between a non-Member State which may
become party to the Statute and one which may become party to a case
before the Court. Some delegates did not make a clear distinction between
adherence to the Statute and access to the Court. The debate mostly con-
centrated on the respective roles of the General Assembly and the Secu-
rity Council in that context: there was some criticism that the Assembly
was excluded from action under paragraph 2 of Article 35 (Documents of
the United Nations Conference on International Organization, Vol. XIV,
pp. 141-145). A proposal was made to adopt paragraph 2 as it stood,
but some delegates continued to argue for a role of the Assembly to

46
472 LEGALITY OF USE OF FORCE (JUDGMENT)

be recognized in that paragraph. The United Kingdom suggested
that there might be inserted in paragraph 2, after the words “Security
Council”, the phrase “in accordance with any principles which may
have been laid down by the General Assembly”.

A proposal was then again made to adopt the Article as contained in
the draft. Thereupon the delegate of France observed that “it lay within
the power of the Council to determine conditions in particular cases but
the actual practice had not given cause for criticism”. He then continued:

“The Council could not restrict access to the Court when the
Assembly permitted it, but the Council could be more liberal in par-
ticular cases. The decision of the Assembly was actually the more
important, and the Council could not go against it. The Council
furthermore would have to take into account any existing treaties,
and it could not prevent access to the Court when a State had a
treaty providing for compulsory jurisdiction.” (Documents of the
United Nations Conference on International Organization, Vol. XIV,
p. 144.)

He then proposed that Article 35 be adopted as it stood; no further sub-
stantive discussion followed, and Article 35 was adopted.

110. The report on the draft of the Statute of an International Court
of Justice submitted by the United Nations Committee of Jurists to the
United Nations Conference on International Organization at San Fran-
cisco noted in respect of Article 35 merely that:

“Aside from the purely formal changes necessitated by references
to The United Nations Organization instead of to the Covenant of
the League of Nations, Article 35 is amended only in that, in the
English text of paragraph 2, the word ‘conditions’ is substituted for
the word ‘provisions’ and in paragraph 3, the word ‘case’ is substi-
tuted for the word ‘dispute’ which will assure better agreement with
the French text.” (bid, p. 839.)

Since the draft Statute of this Court was based on the Statute of the
Permanent Court of International Justice, the report did not indicate
any change in respect of the scope of the applicability of Article 35,
paragraph 2.

111. At the San Francisco Conference, the question here examined
was not touched upon; the discussion of draft Article 35 focused mainly
on a proposal by Egypt to insert a new paragraph 2 stating “[t]he condi-
tions under which states not members may become parties to the Statute
of the Court shall be determined in each case by the General Assembly
upon recommendation of the Security Council” (ibid., Vol. XIII, p. 484).
In the debate in Committee IV/1 of the Conference,

“[ilt was pointed out that the question as to what states are to be
parties to the Statute should be decided in the Charter, while the

47
473 LEGALITY OF USE OF FORCE (JUDGMENT)

question as to what states may appear before the Court in the case,
once the Court is established, should be determined by the Statute”
(Documents of the United Nations Conference on International
Organization, Vol. XIII, p. 283).

The Egyptian proposal was not pursued but the essence of it was reflected
in Article 93, paragraph 2, of the Charter.

112. The Court considers that the legislative history of Article 35,
paragraph 2, of the Statute of the Permanent Court demonstrates that it
was intended as an exception to the principle stated in paragraph 1, in
order to cover cases contemplated in agreements concluded in the after-
math of the First World War before the Statute entered into force. How-
ever, the travaux préparatoires of the Statute of the present Court are less
illuminating. The discussion of Article 35 was provisional and somewhat
cursory; it took place at a stage in the planning of the future interna-
tional organization when it was not yet settled whether the Permanent
Court would be preserved or replaced by a new court. Indeed, the records
quoted in paragraphs 109 to 111 above do not include any discussion
which would suggest that Article 35, paragraph 2, of the Statute should
be given a different meaning from the corresponding provision in the
Statute of the Permanent Court. It would rather seem that the text was
reproduced from the Statute of the Permanent Court; there is no indica-
tion that any extension of access to the Court was intended.

Accordingly Article 35, paragraph 2, must be interpreted, mutatis
mutandis, in the same way as the equivalent text in the Statute of the Per-
manent Court, namely as intended to refer to treaties in force at the date
of the entry into force of the new Statute, and providing for the jurisdic-
tion of the new Court. In fact, no such prior treaties, referring to the
jurisdiction of the present Court, have been brought to the attention of
the Court, and it may be that none existed. In the view of the Court,
however, neither this circumstance, nor any consideration of the object
and purpose of the text, nor the travaux préparatoires, offer support to
the alternative interpretation that the provision was intended as granting
access to the Court to States not parties to the Statute without any condi-
tion other than the existence of a treaty, containing a clause conferring
jurisdiction on the Court, which might be concluded any time subse-
quently to the entry into force of the Statute. As noted above (para-
graph 101), this interpretation would lead to a result quite incompatible
with the object and purpose of Article 35, paragraph 2, namely the regu-
lation of access to the Court by States non-parties to the Statute. In the
view of the Court therefore, the reference in Article 35, paragraph 2, of
the Statute to “the special provisions contained in treaties in force”
applies only to treaties in force at the date of the entry into force of the
Statute, and not to any treaties concluded since that date.

113. The Court thus concludes that, even assuming that Serbia and
Montenegro was a party to the Genocide Convention at the relevant

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date, Article 35, paragraph 2, of the Statute does not provide it with a
basis to have access to the Court, under Article IX of that Convention,
since the Convention only entered into force on 12 January 1951, after
the entry into force of the Statute (see paragraph 112 above). The Court
does not therefore consider it necessary to decide whether Serbia and
Montenegro was or was not a party to the Genocide Convention on
29 April 1999 when the current proceedings were instituted.

« Ÿ +

114. The conclusion which the Court has reached, that Serbia and
Montenegro did not, at the time of the institution of the present proceed-
ings, have access to the Court under either paragraph 1 or paragraph 2 of
Article 35 of the Statute, makes it unnecessary for the Court to consider
the other preliminary objections filed by the Respondents to the jurisdic-
tion of the Court (see paragraph 45 above).

* * *

115. Finally, the Court would recall, as it has done in other cases and
in the Order on the request for the indication of provisional measures in
the present case, the fundamental distinction between the existence of the
Court’s jurisdiction over a dispute, and the compatibility with interna-
tional law of the particular acts which are the subject of the dispute (see
Legality of Use of Force ( Yugoslavia v. Canada), Provisional Measures,
Order of 2 June 1999, I. C.J. Reports 1999 (I), p. 273, para. 43). Whether
or not the Court finds that it has jurisdiction over a dispute, the parties
“remain in all cases responsible for acts attributable to them that violate
the rights of other States” (see Fisheries Jurisdiction (Spain v. Canada),
Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 456, paras. 55-
56; Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction,
Judgment, I. C.J. Reports 2000, p. 33, para. 51). When, however, as in the
present case, the Court comes to the conclusion that it is without jurisdic-
tion to entertain the claims made in the Application, it can make no find-
ing, nor any observation whatever, on the question whether any such
violation has been committed or any international responsibility incurred.

116. For these reasons,

THE CourRT,

Unanimously,

Finds that it has no jurisdiction to entertain the claims made in the
Application filed by Serbia and Montenegro on 29 April 1999.

Done in English and in French, the English text being authoritative, at

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475 LEGALITY OF USE OF FORCE (JUDGMENT)

the Peace Palace, The Hague, this fifteenth day of December, two thou-
sand and four, in three copies, one of which will be placed in the archives
of the Court and the others transmitted to the Government of Serbia and
Montenegro and the Government of Canada, respectively.

(Signed) Sut Jiuyong,
President.

(Signed) Philippe COUVREUR,
Registrar.

Vice-President RANJEVA and Judges GUILLAUME, HIGGINS, KOOIMANS,
AL-KHASAWNEH, BUERGENTHAL and ELARABY append a joint declaration
to the Judgment of the Court; Judge Koroma appends a declaration to
the Judgment of the Court; Judges Hiccins, KOOïIMANS and ELARABY

and Judge ad hoc Kre¢ca append separate opinions to the Judgment of
the Court.

(Initialled) J.Y.S.
(Initialled) Ph.C.

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