933

Il.

IV.

VI.

VU.

21

SEPARATE OPINION OF JUDGE ODA

TABLE OF CONTENTS

Paragraphs

. INTRODUCTION
. THE STATUS OF THE FEDERAL REPUBLIC OF YUGOSLAVIA — A PRELI-

MINARY ISSUE

LACK OF THE Court’s JURISDICTION UNDER ARTICLE 36, PARA-
GRAPH 2, OF THE STATUTE AND ARTICLE 38, PARAGRAPH 5, OF THE
RuLEs OF COURT

(1) No “legal dispute” within the meaning of Article 36, para-
graph 2, of the Statute exists between the Federal Republic
of Yugoslavia and the respondent State

(2) Article 38, paragraph 5, of the Rules of Court

(3) Article 36, paragraph 2, of the Statute of the Court

(4) The optional clause

LACK OF THE COURT'S JURISDICTION UNDER THE 1930 CONVENTION
BETWEEN BELGIUM AND YUGOSLAVIA AND THE 1931 TREATY BETWEEN
THE NETHERLANDS AND YUGOSLAVIA

. LACK OF THE CourT’s JURISDICTION UNDER THE GENOCIDE CON-

VENTION

(1) Preliminary observations

(2) No disputes relating to the Genocide Convention exist
between the Parties

(3) General character of the Genocide Convention

(4) Concluding observations

IN THE PRESENT CIRCUMSTANCES THE REQUESTS FOR THE INDICATION
OF PROVISIONAL MEASURES ARE INADMISSIBLE

REMOVAL OF THE CASES FROM THE GENERAL LIST OF THE COURT
DUE To THE Lack OF JURISDICTION

1-2

3-4

25-29
934 LEGALITY OF USE OF FORCE (SEP. OP. ODA)

I. INTRODUCTION

1. T entirely support the decision of the Court in dismissing the requests
for the indication of provisional measures submitted on 29 April 1999
by the Federal Republic of Yugoslavia against ten respondent States —
Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal,
Spain, the United Kingdom and the United States.

While favouring subparagraph (2) of the operative paragraph in which
the Court ordered that the case be removed from the General List of the
Court in the cases of Spain and the United States, I voted against sub-
paragraph (2) of the operative paragraph in the other eight cases in which
the Court ordered that it “/r/eserves the subsequent procedure for
further decision” because I believe that those eight cases should also be
removed from the General List of the Court.

2. I differ from the Court’s reasoning on some aspects of the cases, not
only on matters concerning the dismissal of the requests but also on some
other matters relating to the Applications filed in the Registry of the
Court by the Federal Republic of Yugoslavia on the same day, namely
29 April 1999. It is difficult, even impossible, for me to give a sufficient
explanation of my position in the extremely limited time — if I may say
so, an unreasonably short period of time, too short to do proper justice
to the cases — that has been made available to the judges for preparing
their opinions. I very much regret that this lack of time has given me no
choice but to cover all ten cases in a single opinion. Certain parts of this
opinion may thus not be relevant to a particular case.

IT. THE STATUS OF THE FEDERAL REPUBLIC OF
YUGOSLAVIA — A PRELIMINARY ISSUE

3. I consider that the Federal Republic of Yugoslavia is not a Member
of the United Nations and thus not a party to the Statute of the Inter-
national Court of Justice.

Following the unrest in Yugoslavia in the early 1990s and the dissolu-
tion of the Socialist Federal Republic of Yugoslavia, some of its former
Republics achieved independence and then applied for membership of
the United Nations. On 22 May 1992, Bosnia and Herzegovina, Croatia
and Slovenia became Members of the United Nations, followed on
8 April 1993 by the former Yugoslav Republic of Macedonia. However,
the claim by the Federal Republic of Yugoslavia (Serbia and Monte-
negro) to continue automatically the membership in the United Nations of
the former Socialist Federal Republic of Yugoslavia was not recognized.

On 22 September 1992 the General Assembly, pursuant to Security
Council resolution 757 (1992) of 30 May 1992 and Security Council reso-
lution 777 (1992) of 19 September 1992, adopted resolution 47/1 stating
that

22
935 LEGALITY OF USE OF FORCE (SEP. OP. ODA)

“the Federal Republic of Yugoslavia (Serbia and Montenegro) can-
not continue automatically the membership of the former Socialist
Federal Republic of Yugoslavia in the United Nations”

and decided that it “should apply for membership in the United Nations”.
The letter addressed to the Permanent Representatives of Bosnia and
Herzegovina and Croatia dated 29 September 1992 from the Under-
Secretary-General, the Legal Counsel of the United Nations, stated that
while the above-mentioned General Assembly resolution neither termi-
nated nor suspended Yugoslavia’s membership in the Organization,

“the General Assembly has stated unequivocally that the Federal
Republic of Yugoslavia (Serbia and Montenegro) cannot automati-
cally continue the membership of the former Socialist Federal Repub-
lic of Yugoslavia in the United Nations”.

In fact, there seems to have been an understanding that this rather
exceptional situation would be resolved by the admission of the Federal
Republic of Yugoslavia to the United Nations as a new Member. How-
ever, no further developments have occurred and the Federal Republic of
Yugoslavia has not been admitted to the United Nations, as a “peace-
loving State[s] which accept[s] the obligations contained in the [United
Nations] Charter” (United Nations Charter, Art. 4).

4, The Court is open to the States parties to its Statute (Art. 35). Only
States parties to the Statute are allowed to bring cases before the Court.
It therefore follows, in my view, that the Federal Republic of Yugoslavia,
not being a Member of the United Nations and thus not a State party to
the Statute of the Court, has no standing before the Court as an appli-
cant State. The Applications presented by the Federal Republic of Yugo-
slavia should therefore be declared inadmissible for this reason alone and
should be removed from the General List of the Court.

However, if I am not correct on this, and assuming, for the sake of
argument, that the Federal Republic of Yugoslavia does in fact have
standing before the Court, I shall now go on to discuss whether the Fed-
eral Republic of Yugoslavia can bring the present Applications on the
basis of certain provisions of the Statute and of the Rules of Court, of the
1930 and 1931 instruments in the cases of Belgium and the Netherlands,
and of the 1948 Genocide Convention.

III. Lack oF THE Court’s JURISDICTION UNDER ARTICLE 36,
PARAGRAPH 2, OF THE STATUTE AND ARTICLE 38, PARAGRAPH 5,
OF THE RULES OF COURT

(1) No “Legal Dispute” within the Meaning of Article 36, Paragraph 2,
of the Statute Exists between the Federal Republic of Yugoslavia and
the Respondent State

5. The Applications of the Federal Republic of Yugoslavia refer to the
acts of the ten respondent States by which the Federal Republic of Yugo-

23
936 LEGALITY OF USE OF FORCE (SEP. OP. ODA)

slavia alleges that they have violated certain obligations as listed in
the section of each Application entitled “Subject of the Dispute”. The
acts which are listed in the section of each Application entitled “Claim”
may have occurred, but the fact alone that a State allegedly committed
these acts or actions as described in the section “Facts upon Which
the Claim is Based” cannot constitute the existence of a “legal dispute”
between two States within the meaning of Article 36, paragraph 2, of the
Statute.

The question of whether certain acts of a State which may infringe
upon the rights and interests of another State should be considered as
justifiable under international law may well be a legitimate issue to be
raised, but not as a “legal dispute” in which both sides are to present
arguments concerning their respective rights and duties under interna-
tional law in their relations with each other. Certainly such a “legal dis-
pute” between Yugoslavia and the respondent States had not existed
when the Federal Republic of Yugoslavia filed the Applications to insti-
tute the proceedings in these cases. What did exist on 29 April 1999 was
simply the action of bombing or armed attacks conducted by the NATO
armed forces in which the military powers of each of the respondent
States were alleged to have participated. The issues — but not the “legal
disputes” — concerning the bombing and armed attacks should properly
be dealt with by the Security Council under Chapters V, VI, VII and VIII
of the Charter or, in some cases, by the General Assembly under Chap-
ter IV. For this reason alone, the Application should, on the basis of
Article 36, paragraph 2, of the Statute be declared inadmissible.

However, for the sake of argument, I shall proceed on the assumption
that there exists between the Parties a “legal dispute” within the meaning
of Article 36, paragraph 2, of the Statute.

(2) Article 38, Paragraph 5, of the
Rules of Court

6. In its Applications against France, Germany, Italy, Spain and the
United States, the Federal Republic of Yugoslavia invokes Article 38, para-
graph 5, of the Rules of Court, in the hope that consent to the jurisdic-
tion of the Court might be given by those States. However, France, Ger-
many, Italy, Spain and the United States have given no such consent to
the Court’s jurisdiction and it is clear from their arguments in the oral
hearings that they will not give it. There is thus no room for the Court to
entertain these five Applications on the basis of Article 38, paragraph 5,
of the Rules of Court. The concept of forum prorogatum does not apply
in these five cases.

24
937 LEGALITY OF USE OF FORCE (SEP. OP. ODA)
(3) Article 36, Paragraph 2, of the Statute of the Court

7. On 25 April 1999 the Federal Republic of Yugoslavia registered with
the Secretariat of the United Nations its declaration recognizing the com-
pulsory jurisdiction of the Court in accordance with Article 36, paragraph 2,
of the Statute. The main point to be considered, even on the assumption that
the registration of the declaration by the Federal Republic of Yugoslavia on
25 April 1999 was valid, is whether this declaration is valid in connection
with the Applications of the Federal Republic of Yugoslavia against six
respondent States (Belgium, Canada, the Netherlands, Portugal, Spain and
the United Kingdom) which have accepted the Court’s compulsory jurisdic-
tion in their respective declarations under the same provision of the Statute.

8. The cases of Spain and the United Kingdom are different from the
other four cases. In its declaration of 29 October 1990, Spain expressly
excluded from the Court’s jurisdiction “disputes in regard to which the
other party or parties have accepted the compulsory jurisdiction of the
Court less than 12 months prior to the filing of the application bringing
the dispute before the Court” and the United Kingdom in its declaration
of | January 1969 similarly excluded certain disputes from the Court’s
jurisdiction:

“where the acceptance of the Court’s compulsory jurisdiction on
behalf of any other Party to the dispute was deposited or ratified less
than twelve months prior to the filing of the application bringing the
dispute before the Court”.

It is crystal clear that the Court cannot exercise jurisdiction to entertain
these two Applications, one against Spain and the other against the
United Kingdom, on the basis of Article 36, paragraph 2, of the Statute.

9. Belgium, Canada, the Netherlands and Portugal have accepted the
compulsory jurisdiction of the Court in their respective declarations, depos-
ited by Belgium on 17 June 1958, by Canada on 10 May 1994, by the Neth-
erlands on | August 1956 and by Portugal on 19 December 1955. As no
reservation directly relevant to the present issues has been included in the
declarations of the four States mentioned above, it might be argued that the
exercise of the Court’s jurisdiction is justified under Article 36, paragraph 2,
of the Statute in the cases of the Applications addressed to those four
States. Literally interpreted, the declaration of the Federal Republic of
Yugoslavia (assuming that the Federal Republic of Yugoslavia is indeed a
party to the Statute of the Court and that the Federal Republic of Yugo-
slavia’s declaration was legitimately registered) may be claimed as being
valid in relation to other States which have made a similar declaration.
However, I hold the view that acceptance by the Federal Republic of Yugo-
slavia of the Court’s jurisdiction only a matter of days before it filed its
Applications with the Court in these cases is not an act done in good faith
and is contrary to the proper concept of acceptance of the compulsory juris-
diction of the Court under the “optional clause” in the Statute.

25
938 LEGALITY OF USE OF FORCE (SEP. OP. ODA)
(4) The Optional Clause

10. Provisions equivalent to Article 36, paragraph 2, of the Statute of
the International Court of Justice were first introduced in 1920 when the
Permanent Court of International Justice was being planned. In the view
of the Council of the League of Nations, which initiated the drafting of
the Statute of the Permanent Court of International Justice in 1920, the
time was not yet ripe for the international community to accept a general
obligation to be bound by the judicial settlement of disputes. In fact, the
consent of each State to accept such an obligation was deemed to be
absolutely necessary. The arguments surrounding that problem during
the preparation of the Statute of the Permanent Court of International
Justice clearly reflected the still prevalent concept of national sovereignty
as dominant in the international community. It was in that context that
Article 36, paragraph 2, of the Statute was drafted as one of the corner-
stones of the Permanent Court of International Justice. The International
Court of Justice, operating under the United Nations system, inherited it
as what is still Article 36, paragraph 2, now of the Statute of the present
Court.

11. By 1974, the year of the appeal by the United Nations General
Assembly for the revitalization of the Court (United Nations doc. A/RES/
3232 (XXIX)), 45 out of 141 States parties to the Statute had accepted
the compulsory jurisdiction of the Court under the “optional clause”.
Since then, the number of accepting States has not increased significantly,
despite the increased number of States parties to the Statute. As of July
1998, the States parties to the Statute numbered 187. However, only 60
States out of that 187 have declared their acceptance of the compulsory
jurisdiction of the Court. The number of States accepting the compulsory
jurisdiction has never exceeded one-third of the total number of States
that might have at any one time accepted the compulsory jurisdiction of
the Court.

It is also a remarkable fact that, with the exception of the United King-
dom, no permanent member of the Security Council has, at the present
time, accepted the compulsory jurisdiction of the Court. In fact, in Octo-
ber 1985, on the occasion of the loss of its case against Nicaragua (at the
jurisdictional phase), the United States proceeded to withdraw the accept-
ance which it had maintained ever since the Court was set up in 1946.
Earlier, France had withdrawn its acceptance, just after being brought
before the Court by Australia/New Zealand in connection with its nuclear
tests in the atmosphere in the South Pacific in 1973.

12. The making of a declaration is a unilateral act, which, far from
being in the nature of a concession, is in fact to the State’s advantage, in
that it confers a right of action against States in a similar position. How-
ever, as the making of the declaration functions in the same way as an

26
939 LEGALITY OF USE OF FORCE (SEP. OP. ODA)

offer to conclude an agreement and depends on reciprocity, the practical
effectiveness of the system depends on the number of States which are
willing to participate in it and on the relative breadth of the obligations
which they are prepared to accept thereunder. The acceptance is com-
monly hedged with reservations and exclusions.

The United Kingdom in its 1958 declaration (revised in 1963 and 1969)
excluded disputes

“where the acceptance of the Court’s compulsory jurisdiction on
behalf of any other Party to the dispute was deposited or ratified less
than twelve months prior to the filing of the application bringing the
dispute before the Court”.

A similar 12-month exclusion clause is found in the following declara-
tions: Hungary (1992), India (1974), Malta (1966), Mauritius (1968),
New Zealand (1977), Philippines (1972), Poland (1996), Somalia (1963),
Spain (1990). Cyprus has a six-month exclusion clause in its declaration
(1988).

It is obvious that these States would, thanks to either a 12-month or a
six-month exclusion clause, be in a position to withdraw their acceptance
of the compulsory jurisdiction of the Court if faced with an application
that they considered lacking in bona fides.

The United Kingdom’s 1958 declaration also had a clause excluding
“disputes in respect of which any other Party to the dispute has accepted
the compulsory jurisdiction of the International Court of Justice only in
relation to or for the purpose of the dispute”. A similar clause is also now
to be found in New Zealand’s 1977 declaration.

13. The “optional clause” in effect plays a double role: one positive, in
that it may on occasion enable a unilateral application to succeed, and
the other negative, in that it may sometimes result in a respondent being
brought to the Court against its will. Thus a State, by declaring its
acceptance of the compulsory jurisdiction of the Court, may seek to
acquire /ocus standi in a case in which the odds are in its favour, but on
the other hand it may, where it feels placed at a disadvantage, try to
release itself from the compulsory jurisdiction of the Court by the termi-
nation or amendment of its declaration.

It has always been the desire of States, when faced with an application
that in their view clearly lacks bona fides, to escape from their acceptance
of the compulsory jurisdiction of the Court. The fact remains — and this
is what I want to stress — that the judicial settlement of international
disputes still remains in the hands of those States that are genuinely
willing to defer to the International Court of Justice.

14. All of these facts indicate that some States accept the compulsory
jurisdiction of the Court out of their good will but on the understanding
that other States have the same good intentions. If this good faith is lack-

27
940 LEGALITY OF USE OF FORCE (SEP. OP. ODA)

ing, the system of acceptance of the compulsory jurisdiction of the Court
cannot work in the manner in which the drafters of the Statute intended.

Past practice reveals, in cases brought unilaterally in which preliminary
objections made by the respondent States were overcome, that there have
been only a few cases in which the judgments on the merits were properly
complied with. This indicates the reality of judicial settlement in the
world community. If States are brought to the Court against their will,
then no real settlement of the dispute will follow. I feel that, even if a
12-month or similar exclusion clause is not included in a State’s declara-
tion, all States should have the right to refuse to be drawn into a case that
is obviously not brought bona fide.

15. Generally speaking, I also believe that there should be some means
of excluding from the Court’s jurisdiction applications which may not
have bona fide intentions or motives and that some provision should be
made for such exclusion in the basic concept of the declaration of accept-
ance of the compulsory jurisdiction of the Court under Article 36, para-
graph 2, of the Statute. It should be noted that, as a basic concept of
international judiciary, the cornerstone of the granting by sovereign
States of jurisdiction to the International Court of Justice in a dispute has
always been the consent of those States.

16. In my view, it would be extremely odd to have a situation where
the Court apparently has prima facie jurisdiction only for those States
(Belgium, Canada, the Netherlands and Portugal) that have simply failed
to include in their declarations an exclusion clause protecting their inter-
ests, while Spain and the United Kingdom are, because of their exclusion
clauses, released from the Court’s jurisdiction in the present cases (which
in fact cover exactly the same subject). I accordingly consider, in the light
my finding in paragraph 9 above as to Yugoslavia’s lack of good faith,
that the Applications instituting proceedings against these four States
also (namely, Belgium, Canada, the Netherlands and Portugal) should
likewise be found inadmissible.

IV. LACK OF THE COURT'S JURISDICTION UNDER THE 1930 CONVENTION
BETWEEN BELGIUM AND YUGOSLAVIA AND THE 1931 TREATY BETWEEN THE
NETHERLANDS AND YUGOSLAVIA

17. As late as the second round of oral hearings, which took place on
12 May 1999, the Federal Republic of Yugoslavia supplemented its
Applications against Belgium and the Netherlands by invoking as addi-
tional grounds of jurisdiction of the Court, respectively, Article 4 of the
1930 Convention of Conciliation, Judicial Settlement and Arbitration

28
941 LEGALITY OF USE OF FORCE (SEP. OP. ODA)

between Yugoslavia and Belgium, and Article 4 of the 1931 Treaty of
Judicial Settlement, Arbitration and Conciliation between Yugoslavia
and the Netherlands. Irrespective of the question of whether these instru-
ments still remain valid in the present-day relations between the Federal
Republic of Yugoslavia and the two respondent States, and whether the
Federal Republic of Yugoslavia is entitled to invoke them as a basis of
jurisdiction at such a late stage, I have to say that in my view the reliance
on these instruments by the Federal Republic of Yugoslavia is totally
unfounded.

18. These two instruments were among a number of treaties of a simi-
lar character concluded between a great number of States in the period
after the establishment of the League of Nations: they were intended to
bring together the various means of peaceful settlement of international
disputes, namely judicial settlement, arbitration, conciliation, and other
methods, into a systematized scheme of precedence among these various
procedures. However, these treaties did not impose any new obligations
on the States which became parties to them. Hence, the 1930 and 1931
instruments imposed no new obligations on the Contracting Parties in
connection with the judicial settlement of disputes, over and above resort
to the Permanent Court of International Justice provided for in its Stat-
ute, to which the Contracting Parties of the 1930 and 1931 instruments,
respectively, were already signatories. (Belgium, the Netherlands, and
Yugoslavia had, in their respective declarations, already accepted the
compulsory jurisdiction of that Court.)

The provisions of Article 4 of these two instruments have never been
interpreted as granting compulsory jurisdiction to the then existing Per-
manent Court of International Justice in addition to what had already
been provided for in its Statute. It is also to be noted that, in both of
these instruments, resort to any of the prescribed means of settlement of
disputes could be had only after a dispute had failed to be settled through
the normal diplomatic channels (cf. Article 1 of the respective instru-
ments). ‘

V. LACK OF THE COURT’S JURISDICTION UNDER THE
GENOCIDE CONVENTION

(1) Preliminary Observations

19. The Court’s Statute provides in Article 36, paragraph 1, that “[t]he
jurisdiction of the Court comprises . . . all matters specially provided
for... in treaties and conventions in force”. The 1948 Genocide Conven-
tion is one of these “treaties and conventions in force” and its Article IX
provides that

“[dlisputes between the Contracting Parties relating to the interpre-

29
942 LEGALITY OF USE OF FORCE (SEP. OP. ODA)

tation, application or fulfilment of the present Convention . . . shall
be submitted to the International Court of Justice at the request of
any of the parties to the dispute”.

In all ten of its Applications, the Federal Republic of Yugoslavia,
referring to the alleged breach of the obligation contained in the Geno-
cide Convention, invoked Article IX of that Convention as a legal ground
for jurisdiction of the Court.

I will not deal here with the question of whether the Federal Republic
of Yugoslavia is now a party to the Genocide Convention and whether a
State which is not a State party to the Statute is entitled to /ocus standi by
relying on Article 36, paragraph 1, as quoted at the beginning of this
paragraph.

I note that Portugal became a party to the Genocide Convention with
effect from 10 May 1999. I also note that Spain and the United States
have properly made their respective reservations in respect of Article IX
of the Genocide Convention. Thus the applications of the Federal Repub-
lic of Yugoslavia invoking that Convention should — from the outset —
be dismissed in the cases of Portugal, Spain and the United States.

(2) No Disputes relating to the Genocide Convention Exist between
the Parties

20. The Federal Republic of Yugoslavia, in spite of enumerating vari-
ous claims, did not establish any violation of the Genocide Convention
for which any one of the ten respondent States could be held responsible
as a party to that Convention and indicated no element of genocide as
defined in Article II of the Genocide Convention in the bombing or mili-
tary attacks in Yugoslavia by the NATO armed forces. The question in
general as to whether or not the bombing or the military attack in the
territory of Yugoslavia by the NATO armed forces does in fact constitute
a violation of international law may well be an issue but is irrelevant
when dealing with the Genocide Convention.

21. Even if acts of genocide for which the respondent States may be
deemed to be responsible under the Genocide Convention had taken
place in Yugoslavia, that would not mean that there were disputes
between the applicant State and the respondent States concerning the
interpretation, application or fulfilment of the Convention. The Appli-
cant did not indicate the existence of such a dispute which might be sub-
mitted obligatorily to the Court by application of the Genocide Conven-
tion.

I have previously stated my interpretation of the meaning of the words
“a dispute concerning the interpretation, application or fulfilment of the

30
943 LEGALITY OF USE OF FORCE (SEP. OP. ODA)

Convention” in the declaration I appended to the Court’s Judgment in
the Genocide case and I repeat it here:

“If any dispute were to be unilaterally submitted to the Court by
one of the Contracting Parties to a treaty pursuant to the compro-
missory clause of that treaty, this would mean in essence that the
dispute had arisen because of (i) the alleged failure of another Con-
tracting Party to fulfil the obligations imposed by that treaty — a
failure for which it is responsible — and (ii) the infringement of the
rights bestowed upon the former State by that treaty due to that fail-
ure. The failure of the other State is itself a violation of the treaty
but such a violation alone cannot be interpreted as constituting a
dispute between the applicant State and the respondent State relat-
ing to that treaty unless it can be shown to have infringed such rights
of the former State as are protected thereby.” (Application of the
Convention on the Prevention and Punishment of the Crime of Geno-
cide, Preliminary Objections, Judgment, C.J. Reports 1996 (IT),
pp. 625-626.)

(3) General Character of the Genocide Convention

22. The Genocide Convention cannot be regarded as an orthodox type
of international treaty, as orthodox treaties provide for a right on the
part of one State and a corresponding obligation on the part of another
State. I once described the unique character of the Genocide Convention.
It may be pertinent to quote my previous writing in this respect:

“4. The Genocide Convention is unique in having been adopted
by the General Assembly in 1948 at a time when — due to the suc-
cess of the Nuremburg Trials — the idea prevailed that an interna-
tional criminal tribunal should be established for the punishment of
criminal acts directed against human rights, including genocide; it is
essentially directed nor to the rights and obligations of States but to
the protection of rights of individuals and groups of persons which
have become recognized as universal.

To be sure, the Contracting Parties to the Convention defined
genocide as ‘a crime under international law’ (Art. 1). The Conven-
tion binds the Contracting Parties to punish persons responsible for
those acts, whoever they may be, and is thus directed to the punish-
ment of persons committing genocide and genocidal acts (Art. IV).
The Contracting Parties undertake ‘to enact, in accordance with
their respective Constitutions, the necessary legislation to give effect
to the provisions of the present Convention’ (Art. V).

As persons committing genocide or genocidal acts may possibly
be ‘constitutionally responsible rulers [or] public officials’ (Art. TV),

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32

LEGALITY OF USE OF FORCE (SEP. OP. ODA)

the Convention contains a specific provision which allows ‘[a]ny
Contracting Party [to] call upon the competent organs of the United
Nations to take such action under the Charter of the United Nations
as they consider appropriate for the prevention and suppression of
[those acts]’ (Art. VIII) and contemplates the establishment of an
international penal tribunal (Art. VI).

Genocide is defined as ‘a crime under international law which [the
Contracting Parties] undertake to prevent and punish’ (Art. I). Even
if this general clause (which was subjected to criticism at the Sixth
Committee in 1948 when it was felt by some delegates that it should
have been placed in the preamble, but not in the main text) is to be
interpreted as meaning specifically that the Contracting Parties are
obliged ‘to prevent and to punish’ genocide and genocidal acts, these
legal obligations are borne in a general manner ergu omnes by the
Contracting Parties in their relations with all the other Contracting
Parties to the Convention — or, even, with the international com-
munity as a whole — but are not obligations in relation to any spe-
cific and particular signatory Contracting Party.

The failure of any Contracting Party ‘to prevent and to punish’
such a crime may only be rectified and remedied through (i) resort to
a competent organ of the United Nations (Art. VIII) or (ii) resort to
an international penal tribunal (Art. VI), but mor by invoking the
responsibility of States in inter-State relations before the Interna-
tional Court of Justice. This constitutes a unique character of the
Convention which was produced in the post-war period in parallel
with the emergence of the concept of the protection of human rights
and humanity.

5. In this regard, some explanation of the dispute settlement pro-
vision of the Convention (Art. IX) may be pertinent. It reads as fol-
lows:

‘Disputes between the Contracting Parties relating to the inter-
pretation, application or fulfilment of the present Convention,
including those relating to the responsibility of a State for geno-
cide or for any of the other acts enumerated in article HI, shall be
submitted to the International Court of Justice at the request of
any of the parties to the dispute’

and is unique as compared with the compromissory clauses found in
other multilateral treaties which provide for submission to the Inter-
national Court of Justice of such disputes between the Contracting
Parties as relate to the interpretation or application of the treaties in
question.

The construction of Article IX of the Genocide Convention is very
uncertain as it incorporates specific references to ‘[d]isputes . . . relat-
ing to... fulfilment of the Convention’ and to ‘disputes relating to
the responsibility of a State for genocide or [genocidal acts]’ — ref-
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erences which can hardly be understood in any meaningful sense as
a compromissory clause.

The original draft of the Genocide Convention was drawn up by
an Ad Hoc Committee on Genocide in the ECOSOC in April-May
1948, and contained an orthodox type of compromissory clause
(Official Records of the Economic and Social Council, Third Year,
Seventh Session, Supplement No. 6), which read:

‘Disputes between the High Contracting Parties relating to the
interpretation or application of this Convention shall be submitted
to the International Court of Justice, provided that no dispute
shall be submitted to the International Court of Justice involving
an issue which has been referred to and is pending before or has
been passed upon by a competent international criminal tribunal.’
(Emphasis added.)

When this draft was taken up by the Sixth Committee of the Gen-
eral Assembly in its Third Session in October 1948, the addition of
the two aforementioned references was proposed (Official Records
of the General Assembly, Third Session, Sixth Committee, Annexes,
p. 28: A/C6/258) without, in my view, the drafters having a clear
picture of the new type of convention to be adopted. While some
delegates understood that ‘fulfilment’ would not be different from
‘application’, a proposal to delete ‘fulfilment’ from the additions was
rejected by 27 votes to 10, with 8 abstentions. However, another
deletion of the words ‘including [disputes] relating to the responsi-
bility of a State for genocide or [genocidal acts] was also rejected
but only by 19 votes to 17, with 9 abstentions (Official Records of
the General Assembly, Third Session, Sixth Committee, SR.104,
p. 447). The travaux préparatoires of the Convention seem to con-
firm that there was some measure of confusion among the drafters,
reflecting in particular the unique nature of their task in the prevail-
ing spirit of the times.

How can one then interpret this reference to the ‘responsibility of
a State’? As far as I know such a reference has never been employed
in any other treaty thereafter. It seems to be quite natural to assume
that that reference would not have had any meaningful sense or other-
wise would not have added anything to the clause providing for the
submission to the Court of disputes relating to the interpretation or
application of the Convention, because, in general, any inter-State
dispute covered by a treaty per se always relates to the responsibility
of a State and the singling-out of a reference to the responsibility of
a State does not have any sense with regard to a compromissory
clause.” (Application of the Convention on the Prevention and
946 LEGALITY OF USE OF FORCE (SEP. OP. ODA)

Punishment of the Crime of Genocide, Preliminary Objections,
Judgment, 1.C.J. Reports 1996 (11), declaration of Judge Oda,
pp. 626-628.)

(4) Concluding Observations

23. In order to seise the Court of the present cases, excepting those
concerning Portugal, Spain and the United States as referred to in para-
graph 19 of this opinion, the Federal Republic of Yugoslavia would cer-
tainly have had to show that, applying the Genocide Convention to the
situation in the territory of Federal Republic of Yugoslavia, the respon-
dent States could indeed have been responsible for the failure of the ful-
filment of the Convention in relation to the Federal Republic of Yugo-
slavia. But, more particularly, the Federal Republic of Yugoslavia would
have to show that the respondent States have breached the rights of the
Federal Republic of Yugoslavia as a Contracting Party (which by defini-
tion is a State) entitled to protection under that Convention. This, how-
ever, has not been established in the Applications and in fact the Geno-
cide Convention is not intended to protect the rights of the Federal
Republic of Yugoslavia as a State.

Even if, as alleged, the respondent States are responsible for certain
results of the bombing or armed attacks by NATO armed forces in the
territory of the Federal Republic of Yugoslavia, this fact alone does not
mean that there is a “dispute relating to the interpretation, application or
fulfilment of the Convention”, as the respondent States did not violate
the rights conferred upon the Federal Republic of Yugoslavia by the
Convention. What is protected by the Convention is ñot the particular
rights of any individual State (the Federal Republic of Yugoslavia in this
case) but the status of human beings with human rights and the universal
interest of the individual in general.

What the Federal Republic of Yugoslavia did in its Applications was
to point to certain fucfs allegedly tantamount to genocide or genocidal
acts and to submit claims alleged to have arisen out of these facts. This
cannot be taken to indicate the existence of an inter-State dispute relating
to the responsibility of a State which could have been made a basis for
the Court’s jurisdiction.

I accordingly conclude that the Applications citing the Genocide Con-
vention as a basis of the Court’s jurisdiction should be rejected.

VI. IN THE PRESENT CIRCUMSTANCES THE REQUESTS FOR THE
INDICATION OF PROVISIONAL MEASURES ARE INADMISSIBLE

24, Having made observations on the Court’s jurisdiction, I would like
to make some comments on the institution of provisional measures.

34
947 LEGALITY OF USE OF FORCE (SEP. OP. ODA)

Provisional measures which ought to be taken to preserve the respec-
tive rights of either party may be indicated by the Court “if it considers
that the circumstances so require” (Statute, Art. 41, emphasis added). It
thus falls within the discretion of the Court to grant provisional measures
upon the request of the applicant State.

The items concerning the subject-matter of the dispute, the claim and
the legal grounds on which the claim is based, are virtually identical
throughout the Applications filed by the Federal Republic of Yugoslavia
against the ten respondent States. If provisional measures were to be
granted, but only in relation to certain of the ten respondent States, for
the reason that there existed a prima facie basis of jurisdiction, while in
the case of other respondent States the requests were dismissed totally
because of the lack of the Court’s jurisdiction to entertain the Applica-
tions, this would lead to an unreasonable result. For this reason alone,
the requests for the indication of provisional measures by the applicant
State are inadmissible throughout the ten cases.

VII. REMOVAL OF THE CASES FROM THE GENERAL LIST OF THE COURT
DUE TO THE LACK OF JURISDICTION

25. The Court has reached its decision to dismiss the requests for the
indication of provisional measures in all ten cases on the sole ground that
it lacks a prima facie basis of jurisdiction in these cases. If, at the provi-
sional measures stage, the Court finds that it has prima facie jurisdiction,
then it remains free, irrespective of whether or not it grants provisional
measures, to proceed to the next phase.

26. In the past the Court, even after having affirmed that there could
exist a prima facie basis of jurisdiction, still dismissed the requests for
provisional measures in some cases for various reasons. In the Interhan-
del case, the Passage through the Great Belt case and the case concerning
Questions of Interpretation and Application of the 1971 Montreal Con-
vention arising from the Aerial Incident at Lockerbie, the Court consid-
ered that the circumstances of these cases were not such as to require the
exercise of its power to indicate provisional measures. In the Aegean Sea
Continental Shelf case, the Court did not find such a risk of irreparable
prejudice to rights in issue before it as might require the exercise of its
power to indicate provisional measures. In the 1990 case concerning the
Arbitral Award of 31 July 1989, the Court dismissed the request of the
Republic of Guinea-Bissau on the ground that the alleged rights sought
to be made the subject of provisional measures were not the subject of the
proceedings before the Court on the merits of the case.

Where the Court finds that there is a prima facie basis of jurisdiction,
this does not, of course, necessarily lead it to determine that it eventually
has jurisdiction in the case. In the Anglo-Iranian Oil Co. case and the

35
948 LEGALITY OF USE OF FORCE (SEP. OP. ODA)

Interhandel case, the Court, after granting provisional measures, ulti-
mately found that it had no jurisdiction to be seised of these cases.

27. In its past jurisprudence the Court has always found, as in those
cases mentioned above and in spite of its ultimately negative response to
the request for provisional measures, that there existed a prima facie
basis of jurisdiction. There has been no previous case in which the Court
did not recognize even a prima facie basis of jurisdiction, and the present
cases concerning Belgium, Canada, France, Germany, Italy, the Nether-
lands, Portugal and the United Kingdom are the first in the Court’s juris-
prudence in which the Court has dismissed a request for the indication of
provisional measures due to the lack of prima facie jurisdiction.

The Court’s findings at this stage of the present cases that there is not
even a prima facie basis of jurisdiction in all eight of the cases mentioned
above should be interpreted as a ruling that it has no jurisdiction what-
soever to entertain the Applications, without leaving any room to retain
these cases and to deal with the issue of jurisdiction in the future.

28. In its Orders in the cases of Spain and the United States, the Court
finds that the cases against them should be removed from the General
List, as the Court manifestly lacks jurisdiction to entertain these two
Applications. The Court concludes, however, that it should remain seised
of the other eight cases on the ground that its finding that it lacks juris-
diction prima facie to entertain the respective Applications instituting
proceedings against Belgium, Canada, France, Germany, Italy, the Neth-
erlands, Portugal and the United Kingdom in no way prejudges the ques-
tion of jurisdiction in those eight cases.

It is my firm belief that, for all the reasons given above concerning the
Court’s lack of jurisdiction under (i) Article 36, paragraph 2, of the Stat-
ute, (ii) the provisions of the instruments of 1930 and 1931 between
Yugoslavia and Belgium and the Netherlands, respectively, and (iti) the
provisions of the Genocide Convention, and due to my interpretation of
the Court’s finding concerning the lack of prima facie basis of jurisdiction
in the eight cases, as stated in the last sentence of paragraph 27 of this
opinion, the Applications in not only the two cases but in all ten cases
should be removed from the General List.

It would be contrary to judicial propriety to make a distinction between
two groups of States, in what is essentially one case dealing with the same
subject throughout, solely because of the difference in attitudes taken by
the States towards the relevant documents which give the Court jurisdic-
tion.

29. In conclusion I would like to express my sincere hope that the
present situation in the territory of Yugoslavia, in the settlement of which
the International Court of Justice as the principal judicial organ of the

36
949 LEGALITY OF USE OF FORCE (SEP. OP. ODA)
United Nations has no role to play, will be resolved peacefully and in a

way that satisfies all humanitarian aspects raised by this case.

(Signed) Shigeru Opa.

37


29

OBSERVATIONS BY Mr. KELLOGG.

While I agree with the action taken by the Court and
consider that, in view of the unsatisfactory and contra-
dictory provisions of the Special Agreement by which the
Parties have submitted this case to the Court, it is perhaps
the only course by which the Court could, under its Statute,
aid the Parties in arriving’ at a wholly satisfactory solution
of their dispute, nevertheless, in view of certain language used
in the Order, which might be the source of doubt as to the
limits of the jurisdiction of this Court and might serve as a
basis of argument that it is within the competence of this
Court, with the consent of the Parties, to take jurisdiction of
and decide purely political questions upon considerations of
expediency without regard to the legal rights of the Parties,
I feel it incumbent upon me to make the following obser-
vations :

In my opinion the question of the competence of this
Court which has been raised by the present case and a direct
decision of which the Court has avoided, for the moment at
least, by the making of the present Order, is, from the
point of view of the future of this Court and the develop-
ment of the judicial settlement of international disputes, by
far the most important question which has ever been brought
before the Permanent Court of International Justice. I feel,
therefore, that I would be derelict in my duty if I allowed
the question to be passed over in silence or left any doubt
as to my opinion in regard thereto.

Aside from the question of the meaning and legal effect
of paragraph 2 of Article 435 of the Treaty of Versailles upon
the legal rights and obligations of the Parties under the
treaties of 1815 and 1816, which question was decided by
the Court’s. Order of August roth, 1929 (which the Court
has reaffirmed in its present Order), the principal point of
divergence between the positions maintained by the two
Parties in the present phase of the case was as to the inter-
OBSERVATIONS BY Mr. KELLOGG 30

pretation which should be given to the first paragraph of
Article 2 of their Special Agreement, and, in particular, in
regard to the relation to, and the effect upon the present
proceedings, of the finding of the Court in. regard to the
legal rights of the Parties as expressed in its Order which
followed the first phase of the proceedings.

Briefly stated, the position taken by the French Govern-
ment on this point is that, as the Parties in their negotia-
tions for the settlement of the questions involved in the
execution of paragraph 2 of Article 435—in other words in
establishing the régime of the territories in question—were
entirely free to enter into whatever stipulations they might
agree upon, regardless of the former legal rights and obliga-
tions of the Parties, the Court now has an equal freedom in
establishing the new régime of the territories, regardless of
what it may find the legal rights and obligations of the
Parties to be. Stated even more briefly, the French Govern-
ment’s position would seem to be that, as, in agreeing upon
the future régime of the zones, Switzerland might have given
up any or all of her legal rights to the maintenance of the
zones, the Court may, in virtue of the second clause of the
sentence forming the first paragraph of Article 2 of the
Special Agreement, disregard the legal rights of Switzerland, if
in its opinion such is necessary in order to bring the régime
of the zones into line with present conditions.

The position taken by the Swiss Government is, on the
other hand, briefly as follows:

The Court having indicated by its Order of August roth,
1929, that in its opinion paragraph 2 of Article 435, together
with its annexes, of the Treaty of Versailles had not abro-
gated and did not have as its object necessarily to cause
the abrogation of the provisions of the treaties of 1815 and
1816, these provisions, therefore, remain in full force and
effect as between France and Switzerland and the future
régime of the territories must be established by the Court
in strict respect for the legal rights of Switzerland to the
maintenance of the free zones. The Swiss Government admits,
however, that certain changes in the modalities of the
OBSERVATIONS BY Mr. KELLOGG 31

exchange of goods between Switzerland and the free zones may
be necessary in order to bring the régime set up in 1815 into
conformity with existing circumstances, and it is obvious
from an examination of the proposal for judgment submitted
by the Swiss Government that, even though the Court adopt-
ed the view. that it was bound to respect the legal rights
of Switzerland to the maintenance of the zones, it would
nevertheless be called upon to lay down extensive customs and
other regulations governing the exchange of goods and com-
modities between Switzerland and the territories in question.

But little could be usefully added to the language used
in the Order of the Court upon this point. Although it
cannot, perhaps, be stated that, upon its face, the meaning
of the language used in the first paragraph of Article 2 of
the Special Agreement is clear beyond dispute, it cannot in
my opinion be seriously contended that a proper interpreta-
tion of this language would require the Court, in one and
the same judgment, to determine the legal rights of the
Parties and then establish a new customs and economic
régime for the territories in question in disregard of such
legal rights.

If the Court had found that the effect of Article 435 was
to abrogate the treaties of 1815 and 1816, and the Parties
had been unable to agree on the arrangement it should have
been necessary to make to replace the régime created by
these treaties, the sphere of the Court’s action in settling all
the questions involved in the execution of paragraph 2 of
Article 435 of the Treaty of Versailles would have been
greatly extended. However, the Court has not found such to
be the effect of Article 435 of the Treaty of Versailles, and
the holding of the Court as to the effect of the first clause
of the sentence forming the first paragraph of this article
inevitably restricts and limits the mission of the Court under
_ the second clause of the sentence composing the first para-
graph of Article 2 of the Special Agreement. Therefore, if
Article 1 and the first paragraph of Article 2 of the Special
Agreement be construed together with the second paragraph
of Article 435 of the Treaty of Versailles and in the light of
the holding of the Court upon the legal effect of this para-
OBSERVATIONS BY Mr. KELLOGG 32

graph, it is clear in my opinion that the Court would settle
all the questions involved in the execution of the second
paragraph of Article 435, if it determined and gave effect to
the legal rights and obligations of the Parties under this
paragraph.

However, neither of the Parties has taken this position,
and if the Court were to adopt either the French or the
Swiss contention, as to the proper construction of the first
paragraph of Article 2 of the Special Agreement, it is obvious
that the Court would, under this paragraph, be required to
pass upon questions essentially economic and political in
their nature, the decision of which is not to be found in an
interpretation and application of treaties between the two
countries nor in the application of rules and principles of
law. The effect of paragraph 2 of Article 2 is to cause the
Court’s decision of these questions to be dependent upon the
will of the Parties, and the Court has deemed the rendering
of judgment under such conditions incompatible with the
dignity of this Court.

It is primarily to avoid the necessity of asking the Parties
whether or not they would accept the judgment rendered
by it that the Court has made its present Order, providing,
in substance, that the Parties shall be allowed a period of
some eight months, expiring July 31st, 1931, in which to
reach an agreement upon the questions referred to in para-
graph 2 of Article.2 of the Special Agreement and any
other points concerning the régime of the territories contem-
plated by Article 435, paragraph 2, of the Treaty of
Versailles with which they may see fit to deal.

I am of the opinion, however, that even had there been
no such limitation upon the power of the Court as that
contained in paragraph 2 of Article 2 of the Special Agree-.
ment, the Court would not, under its Statute, which forms
the fundamental law governing its jurisdiction, be competent
to decide such questions as those presented by the task of
setting up a special and complicated customs régime between
two sovereign States; and, as indicated above, it is my
desire that there should be no misunderstanding as to my
opinion upon this most important question of the competence
of the Court that has led me to make these observations.
OBSERVATIONS BY MY. KELLOGG __. 33

The French Government cited the Hague Tribunal, the
Behring Sea Arbitration and the North Coast Fisheries Arbi-
tration as authorities for the. proposition that it is within
the competence of the Court to frame an entirely new régime.
As to the authority of these precedents, it is . sufficient to
say that they were arbitrations pure and simple, and that the
competence of an Arbitral Tribunal specially set up to settle a
specific difference or series of differences between two or more
States has as the sole limit of its jurisdiction and competence
the provisions of the arbitration agreement to which it owes
its existence. This Court—a permanent Court: of international
justice—has, in its Statute, a fundamental Jaw defining the
limits of the jurisdiction. it may exercise. As aptly remarked,
in the argument, by the Agent of the French Government
(in connection with another point, it is true), there are certain
articles of the Court’s Statute against which the provisions of
the Special Agreement . of the Parties cannot avail. Every
Special Agreement submitting a case to this Court must be
considered to have, as tacitly appended clauses. thereto, all
the pertinent articles : of .the Court’s Statute and must, in
case of. doubt as to its meaning, be interpreted in the light
of such’ provisions of .the Statute of the Court. The Agent
of the French Government also cited the case of the Serbian
‘Loans (Judgment No. 14) where the Special Agreement provided
that, after the decision of the Court upon the legal question
as to the manner in which the bonds should be repaid, nego-
tiations were to follow to determine whether or not considera-
tions of equity did not require that certain concessions be
made by the Party in whose favour the Court gave its deci-
sion on the legal questions; and in the event of failure of
the negotiations, this question was to be decided, mot by the
Court, but by a special arbitral tribunal set up by the Parties.

It is evident from a consideration of the circumstances
which called for the creation of this Court and the history
of its organization, as well as from a careful examination
of the Court’s Statute, framed by a special committee of
jurists appointed by the Council of the League of Nations,
that this tribunal is a Court of justice as that term is known
and understood in the. jurisprudence of civilized nations.
The judges should be learned in the law, should be selected
OBSERVATIONS BY Mr. KELLOGG 34

without regard to their nationality and should, in their
administration of justice, be governed solely by the special
or general rules or principles of law applicable to the case
in hand. At the time this Court was created, it was felt
that the setting up of a special- arbitral tribunal for the
solution of disputes of a juridical nature was an unneces-
sarily cumbersome and on the whole unsatisfactory manner of
deciding such questions ; and it was desired that there should
be an international court whose jurisdiction or competence
should correspond to the common understanding of a Court
of justice. It was desired that this Court should be perm-
anent, and ready, at any moment, to hear and decide the
legal differences of the nations. In view of the need this
Court was created to fulfil, and of the circumstances surround-
ing its organization, it is scarcely possible that it was intend-
ed that, even with the consent of the Parties, the Court
should take jurisdiction of political questions, should exer-
cise the function of drafting treaties between nations or
decide questions upon grounds of political and economic
expediency.

At the time the Committee of Jurists met at The Hague
for the purpose of drawing up a draft of the Court’s Statute
pursuant to instructions from the Council of the League, and
to aid this body in the execution of Article 14 of the League
Covenant, the idea of a Court of International Justice, as
opposed to a Court of Arbitration, was by no means a novel
conception. The jurists had before them schemes for such
a Court drawn up by various conventions and conferences,
by representatives of various nations and bodies for the study
and advancement of legal science, as well as the writings of
numerous jurists and publicists, which schemes and writings
made a clear distinction between a Court of arbitration and
a Court of justice.

As stated by Mr. James Brown Scott, Director of the
Division of International Law of the Carnegie Endowment
and’ Legal Assistant to Mr. Root during the work of the
Jurists Committee at The Hague in 1920, in his book
entitled: The Status of the International Court of Justice,
OBSERVATIONS BY Mr. KELLOGG 35

published by this Endowment in 1916 (p. 24): “The object
of international arbitration is declared to be ‘the settlement
of differences between States by judges of their own choice,
and on the basis of respect for law’. The object of judicial
decision, on the contrary, is the decision of differences by
judges, not necessarily chosen by the Parties in controversy, by
an application of principles of law, not on the basis of respect
for law.” Again (pp. 25-26) the same author stated: “It
is very difficult for one man to have two functions, and to
draw a clean-cut line of distinction between their exercise.
The executive, the legislative and the judicial powers are
separated in constitutional countries, and it is believed that
the experience of nations should not be lost upon arbi-
trators. It should be clearly known that they act either
as diplomats and reach a compromise, as is proper in the
case of diplomatic adjustment, or that they are judges and
reach a judicial decision, as becomes judges. Until this is
done, uncertainty exists; and uncertainty, it is submitted,
either will or should prevent a resort to that form of pro-
cedure from which it is not excluded.” As stated by the same
authority in an address delivered August Ist, 1907 (Actes et
Documents de la Deuxième Conférence internationale de la
Paix, vol. IT, pp. 313-321): “To decide as a judge, and
according to law, it is evident that a Court should be con-
stituted, and it is also evident that the Court should sit
as a judicial, not as a diplomatic or political, tribunal...
The Court is not a branch of the Foreign Office, nor is it a
chancellery. Questions of a political nature should … be
excluded, for a Court is neither a deliberative nor a legis-
lative assembly. It neither makes laws nor determines a
policy. Its supreme function is to interpret and apply the
law to a concrete case.”

Chief among the previous schemes for the establishment
of an international Court of justice, which the Jurists Com-
mittee had before it and upon which it relied for inspiration,
was that elaborated by the Hague Conference of 1907, which
failed in the establishment of such a Court only because of
its inability to reach an agreement as to the method of

5
OBSERVATIONS BY Mr. KELLOGG 36

election of judges. Mr. Elihu Root, who was one of the leading
spirits in the work of the Jurists Committee, was at that
time Secretary of State of the United States of America,
and his instructions to the American delegates to the Hague
Conference are of the greatest importance as throwing light
upon the question of what was expected to be the nature
of the Court which it was hoped this Conference would
establish. The material part of these instructions reads as
follows :

“The method in which arbitration can be made more
effective, so that nations may be more ready to have
recourse to it voluntarily and to enter into treaties by which
they bind themselves to submit to it, is indicated by obser-
vation of the weakness of the system now apparent. There
can be no doubt that the principal objection to arbitration
rests not. upon the unwillingness of nations to submit their
controversies to impartial arbitration, but upon an apprehen-
sion that the arbitrations to which they submit may not be
impartial; it has been a very general practice for arbitrators
to act, not as judges deciding questions of fact and law upon
the record before them under a sense of judicial responsibility,
but as negotiators effecting settlements of the questions brought
before them in accordance with the traditions and usages
and subject to all the considerations and influences which
affect diplomatic agents. The two methods are radically differ-
ent, proceed upon different standards of honorable obligation,
and frequently lead to widely differing results. It very fre-
quently happens that a nation which would be very willing
to submit its differences to an impartial judicial determination
is unwilling to subject them to this kind of diplomatic pro-
cess. If there could be a tribunal which would pass upon
questions between nations with the same impartial and
impersonal judgment that the Supreme Court of the United
States gives to questions arising between citizens of the
different States, or between foreign citizens and thé citizens
of the United States, there can be no doubt that nations
would be much more ready to submit their controversies to
its decision than they are now to take the chances of arbi-
tration. It should be your effort to bring about in the Second
Conference a development of the Hague tribunal into a perm-
anent tribunal composed of judges who are judicial officers
and nothing else, who are paid adequate salaries, who have
no other occupation, and who will devote their entire time
to the trial and decision of international causes by judicial
methods and under a sense of judicial responsibility. These
OBSERVATIONS BY MT. KELLOGG 37

judges should be so selected from the different countries that
the different systems of law and procedure and the principal
languages shall be fairly represented. The Court should be
made of such dignity, consideration and rank that the best and
ablest jurists will accept appointment to it, and that the
whole world will have absolute confidence in its judgments.”’

The distinction between the function and object of a
Court of justice and a Court of arbitration, as understood
by the American delegates to the Hague Conference, is clearly
put in the report made by the American delegation to the
Secretary of State in connection with the Hague Conference
of 1907 in the following language :

‘Jt is obvious that such a court, acting under a sense of
judicial responsibility, would decide, as a court, according to
international law and equity, a question submitted to it, and
that the idea of compromise hitherto so inseparable from
arbitration should be a stranger to this institution.”

It was most certainly a Court of this nature, and not a
branch of a foreign office nor a chancellery, of which the
Jurists Committee drafted the Statute when they met at
The Hague.

At the time of the framing of the Statute of the Court
there already existed special arbitral tribunals, as well as a
general Court of Arbitration, organized by the Conventions
of the Hague of 1899 and 1907, to which the nations were
always at liberty to submit their political disputes for settle-
ment. It was provided, in the first article of its Statute, that
this Court was to be in addition to these Courts of Arbi-
tration.

It may be contended that the language used in Article 36
of the Court’s Statute opens the Court to any and all disputes
voluntarily submitted to it by the Parties, regardless of the
nature of the questions involved. Read alone, the provisions
of this article might be deemed sufficiently broad to extend
the jurisdiction of the Court to political as well as legal
questions ; but when these provisions are viewed in the proper
perspective of the frame of the Court’s Statute and are
OBSERVATIONS BY Mr. KELLOGG 38

construed in conjunction with the provisions of Article 38,
it is deemed impossible to avoid the conclusion that this
Court is competent to decide only such questions as are
susceptible of solution by the application of rules and prin-
ciples of law. |

Article 38 of the Court’s Statute provides that, in the
decision of disputes :

“The Court shall apply:

1. International conventions, whether general for partic-
ular, establishing rules expressly recognized by the con-
testing States ;

2. International custom, as evidence of a general
practice accepted as law;

3. The general principles of law recognized by civilized
nations ;

4. Subject to the provisions of Article 59, judicial
decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means
for the determination of rules of law.

. This provision shall not prejudice the power of the
Court to decide a. case ex æguo et bono, if the Parties
agree thereto.”

In other words, the Court is competent to construe and
apply treaties between the nations and decide questions
susceptible of solution by the application of well recognized
rules and principles of international law or domestic law
where such law is applicable to the question in hand. These
are the same principles as those which, within the domain
of domestic law, form the basis of the jurisdiction of Courts
generally throughout the civilized world and are recognized
by the jurisprudence of all civilized countries. A suit based
upon a contract or ‘upon a right recognized by the general
principles of the law of a country may be brought in a
domestic Court, but it is not the function of Courts to create
contract rights between the Parties, except in so far as the
rendering of a judgment may transform an unliquidated
claim into a judicial contract. While Courts may well be
called upon at times to lay down rules and regulations in
accordance with which the legal rights of the Parties are to
be enforced and enjoyed, their exercise of this function is
OBSERVATIONS BY Mr. KELLOGG 39

based upon the existence of rights recognized by the. law
and determined by the Court; and such regulations as the
Court may make are merely for the enforcement and enjoy-
ment of the existing legal rights and obligations of the Parties.
The mission which the French Government’s thesis, as to the
interpretation of the Special Agreement, would have the
Court fulfil is not that of laying down regulations for the
enforcement of legal rights; for France has no such right to
the creation of a new régime, if the provisions of the treaties
of 1815 and 1816 continue to remain in force. The Court is,
rather, called upon to create new rights and obligations for
the Parties, and not to draw up regulations for the enforce-
ment and enjoyment of their existing legal rights and obli-
gations.

It is scarcely possible that the rules found in Article 38
of the Statute would have been laid down, had it been
understood that this Court. would be at liberty, not only
to disregard the legal rights and obligations of the Parties,
but to engage in exercising a power which is exclusively
within the competence of the treaty-making authority of a
sovereign State, the exercise of which must result in an
alteration of the legal ‘rights and obligations of the Parties.

The Agent of the French Government points to the second
paragraph of Article 38 of the Court’s Statute as empowering
the Court to substitute itself for the Parties and, in effect,
draw up a new agreement between them, if the French
interpretation of the Special Agreement is adopted. This
paragraph provides that the foregoing “provision shall not
prejudice the power of the Court to decide a case ex æquo
et bono, if the Parties agree thereto”. While this Court has
never expressly passed upon the meaning of this provision,
it is significant that, in all the cases decided by it, the Court
has never attempted to exercise a jurisdiction extending
beyond that of deciding legal questions between nations,
or the giving of advisory opinions on such questions to
the Council of the League.
‘OBSERVATIONS BY Mr. KELLOGG 40

The authority given to the Court to décide a case ex æquo
et bono merely empowers it to apply the principles of equity
and justice in the broader signification of this latter word. In
‘drafting Article 38 the framers of. the Court’s Statute were
laying down rules for the decision of questions coming before
the Court. International conventions must, of course, be
construed ; international customs taken as evidence of general
practice accepted as law form another means of determining
what constitutes international law; general principles of law
recognized by civilized nations might include, not only inter-
national law, but such rules of domestic law. as would be
applicable to the decision of the case in hand. The article
further provides that, in the determination of the rules of
law, the Court may consider “judicial decisions and the
teachings of the most highly qualified publicists of the various
nations’. It is then provided that the Court may apply,
in the decision of a case, the principles of equity and justice.
For the purpose of the present case, it might be - sufficient
to point out that the Parties have not agreed that the Court
should decide the questions involved ex æquo et bono. But
had the Assembly of the League, which added, practically
without discussion, this provision to the draft of the Statute,
which had been prepared and debated at length by the Com-
mittee of Jurists, intended that this addition to the ‘Statute
should throw open the doors of the Court to questions
involving the making of agreements between nations and the
decision of disputes of a purely political nature, in accord-
ance with considerations of political and economic. expedi-
ency, it is most improbable that this language. would have
been deemed sufficient or have been used. This provision was
not in the Statute of the World Court submitted by the
Committee of Jurists appointed by the League of Nations.
It was added by a Committee of the Assembly and finally
adopted by the League and submitted to the various govern-
ments. Neither in the records of the proceedings of ‘this
Committee nor in its report to the League, is there a sugges-
tion that this provision of the Statute was intended to give
the Court jurisdiction of political and economic questions
which the Court might settle without regard to treaty rights
or principles of law and equity. In fact, quite the contrary.
OBSERVATIONS BY MI. KELLOGG 41

The provision was suggested by M. Fromageot of France,
who simply desired to add to Article 38 (Article 35 of the
jurists’ Draft) that the Court might decide on principles of
“law and justice’, which would have resulted in simply
adding the word ‘‘justice’’ to sub-division 3. To express this
view the clause was adopted authorizing the Court to decide
matters ex æquo et bono. But M. Fromageot stated that this
“clause” did not imply that the Court might disregard exist-
ing rules, and the existing rules were those laid down in
Article 38, whereby the Court was to base its decision of
questions upon treaties and conventions between nations and
upon principles of law.

What is a political question? It is a question which is
exclusively within the competence of a sovereign State.
The making of tariff regulations, the regulation of immigra-
tion, the imposition of taxes and, in short, the exercise. of
all governmental power necessarily inherent in a sovereign
State, involve questions of this nature. In passing upon a
political question there is no rule or principle of law, no
norm of equity, justice or even good conscience, which the
Court can apply; for, unless limited by treaties, the power
of a State in this domain is unlimited.

In view of these considerations, it is not, in my opinion,
possible to hold that the provision contained in Article 36
of the Statute of the Court to the effect that the Court’s
jurisdiction ‘comprises all cases which the Parties refer to it”
authorizes this Court to take jurisdiction of purely poli-
tical questions and decide them upon considerations of politi-
cal and economic expediency as an amiable compositeur or
conciliator.

It must, therefore, be taken that the words “all cases’
and ‘‘all matters” used in Article 36 mean all cases and all
matters susceptible of solution by the application of the rules
and principles set forth in Article 38. This might, in a
given case, include questions which, in the absence of treaty
OBSERVATIONS BY MI. KELLOGG | 42

provisions forming conventional law between the Parties, would
otherwise be “political questions’ or questions exclusively
within the competence of the States themselves. It certainly
does not, however, include cases for the solution of which
there exist absolutely no rules or principles of law, and which
the Court must decide solely upon the basis of its conception
of political or economic: expediency.

While the importance of the settlement, by pacific means,
of all disputes between nations should in no way be minim-
ized, it is of the greatest importance that the prestige and
influence of this Tribunal and the confidence which it should
inspire among the nations as an impartial judicial body,
wholly detached from political influence, should not be
decreased or jeopardized, as would be the inevitable result of
its assumption of jurisdiction over matters exclusively within
the domain of the political power of a State. It seems to me
incontestable that nothing could be more fatal to the prestige
and high character of a great International Court of Justice
than for it to become involved in the political disputes pend-
ing between nations, questions which may arise because of
economic rivalry or racial, social or religious prejudices. No
principle of law can be invoked for the settlement of such
questions. That these political questions often lead to conflict
and that the nations are pledged by the Pact of Paris to
séttle all differences by pacific means is undoubtedly true ;
but there is ample machinery for the adjustment of these
questions ; diplomacy, conciliation commissions and general
arbitration are available for this purpose, whenever nations
are willing to submit their sovereign rights to arbitration.
But these questions of political or economic policy are within
the sovereign jurisdiction of every independent State and
should not and cannot be submitted to the International
Court of Justice. There is also the League of Nations, which
is a political conciliation body to which all the Members may
appeal. There is no need to impose upon the Court any such
political questions destructive of its influence as a Court of
justice.
OBSERVATIONS BY MI. KELLOGG | - 43

The Parties to this case are at liberty to submit the
political questions involved therein to arbitration before arbi-
trators specifically chosen for the purpose, if other means of
settlément fail. |
~The question of jurisdiction can always be raised at any
stage of the proceeding. It is not even necessary that it be
raised by one of the litigant Parties. It may and should be
raised by the Court on its own initiative, as was done in the
Eastern Carelia case.

It is my opinion, therefore, that the competence of the
Court in this case extends only to the determination of the
legal rights of the Parties, and that it could not, even with
their consent and at their request, settle such political ques-
tions as may be involved in the execution of paragraph 2 of
Article 435 of the Treaty of Versailles.

(Signed) Frank B. KELLocc.


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE
AERIAL INCIDENT OF 3 JULY 1988

(ISLAMIC REPUBLIC OF IRAN y. UNITED STATES
OF AMERICA)

ORDER OF 22 FEBRUARY 1996

1996

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE L’INCIDENT AERIEN
DU 3 JUILLET 1988

(REPUBLIQUE ISLAMIQUE D'IRAN c. ÉTATS-UNIS
D’AMERIQUE)

ORDONNANCE DU 22 FEVRIER 1996
Official citation:
Aerial Incident of 3 July 1988 (Islamic Republic of Iran
v. United States of America), Order of 22 February 1996,
I C.J. Reports 1996, p. 9

Mode officiel de citation:

Incident aérien du 3 juillet 1988 ( République islamique d’Iran
c. Etats-Unis d’Amérique), ordonnance du 22 février 1996,
C.I.J. Recueil 1996, p. 9

Sales number
ISSN 0074-4441 N° de vente: 674
ISBN 92-1-070737-0

1996
22 February
General List
No. 79

INTERNATIONAL COURT OF JUSTICE

YEAR 1996

22 February 1996

CASE CONCERNING THE
AERIAL INCIDENT OF 3 JULY 1988

(ISLAMIC REPUBLIC OF IRAN y. UNITED STATES
OF AMERICA)

ORDER

The President of the International Court of Justice,

Having regard to Article 48 of the Statute of the Court and to
Article 88 of the Rules of Court,

Having regard to the Application filed by the Islamic Republic of Iran
in the Registry of the Court on 17 May 1989 instituting proceedings
against the United States of America in respect of a dispute concerning
the interpretation and application of the 1944 Convention on Interna-
tional Civil Aviation and the 1971 Convention for the Suppression of
Unlawful Acts Against the Safety of Civil Aviation, which arose from the
destruction of an Iranian aircraft, and the killing of its 290 passengers
and crew, on 3 July 1988,

Having regard to the notifications addressed, respectively, to the Inter-
national Civil Aviation Organization, pursuant to Article 34, para-
graph 3, of the Statute, and to the parties to the aforementioned
Conventions, pursuant to Article 63, paragraph 1, of the Statute,

Having regard to the Order made by the Court on 13 December 1989
fixing 12 June 1990 as the time-limit for the filing of the Memorial of the
Islamic Republic of fran, and 10 December 1990 as the time-limit for the
filing of the Counter-Memorial of the United States of America,

Having regard to the Order made by the President of the Court on
12 June 1990 extending to 24 July 1990 and 4 March 1991 the time-limits
for the filing of the Memorial and the Counter-Memorial, respectively,

4
10 AERIAL INCIDENT OF 3 VIE 88 (ORDER 22 IT 96)

Having regard to the Memorial filed by the Islamic Republic of Iran
and the preliminary objections to the jurisdiction of the Court filed by the
United States of America, within those extended time-limits,

Having regard to the Order made by the Court on 9 April 1991 fixing
9 December 1991 as the time-limit within which the Islamic Republic of
Iran might present a written statement of its observations and submis-
sions on the preliminary objections raised by the United States of
America,

Having regard to the Orders made by the President of the Court on
18 December 1991 and 5 June 1992 extending successively to 9 June and
9 September 1992 the time-limit within which the Islamic Republic of
Iran might present such a written statement,

Having regard to the written statement of the observations and sub-
missions of the Islamic Republic of Iran on the preliminary objections,
filed within that extended time-limit,

Having regard to the written observations submitted by the Inter-
national Civil Aviation Organization on 4 December 1992 within the
time-limit fixed by the President of the Court for that purpose, pursuant
to Article 69, paragraph 3, of the Rules of Court,

Having regard to the letter of 8 August 1994 by which the Agents of
the two Parties jointly informed the Court that their Governments had
“entered into negotiations that may lead to a full and final settlement of
[the] case” and requested the Court “[to postpone] sine die the opening of
the oral proceedings”, for which it had fixed the date of 12 September
1994;

Whereas by a letter dated 22 February 1996, filed in the Registry on
the same day, the Agents of the two Parties jointly notified the Court that
their Governments had agreed to discontinue the case because they had
entered into

“an agreement in full and final settlement of all disputes, differences,
claims, counterclaims and matters directly or indirectly raised by or
capable of arising out of, or directly or indirectly related to or con-
nected with, this case”,

Places on record the discontinuance, by agreement of the Parties, of
the proceedings instituted on 17 May 1989 by the Islamic Republic of
Iran against the United States of America; and

Directs that the case be removed from the list.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this twenty-second day of February, one
thousand nine hundred and ninety-six, in three copies, one of which will

5
1] AERIAL INCIDENT OF 3 VII 88 (ORDER 22 II 96)

be placed in the archives of the Court and the others transmitted to the
Government of the Islamic Republic of Iran and the Government of the

United States of America, respectively.

(Signed) Mohammed BEDJAOUI,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.


103

OPINION INDIVIDUELLE DE M. FORSTER

J'ai souscrit à l’avis consultatif, en date du 16 octobre 1975, de la Cour
internationale de Justice, en ce qu’il:

déclare que « le Sahara occidental (Rio de Oro et Sakiet El Hamra) n’était
pas un territoire sans maitre (terra nullius) au moment de la colonisation par
l'Espagne »;

constate que les éléments et renseignements portés à la connaissance de la
Cour:

a) montrent l’existence, au moment de la colonisation espagnole, de liens
juridiques d’allégeance entre le sultan du Maroc et certaines des tribus
vivant sur le territoire du Sahara occidental;

b) montrent également l’existence de droits y compris certains droits relatifs
à la terre, qui constituaient des liens juridiques entre l’ensemble maurita-
nien, au sens où la Cour l’entend, et le territoire du Sahara occidental.

Mais la s’arréte mon adhésion a laquelle succéde cette expresse réserve: je
cesse de partager l’avis consultatif lorsque la Cour conclut que les éléments et
renseignements portés à sa connaisance n’établissent l'existence d’aucun lien
de souveraineté territoriale entre le territoire du Sahara occidental d’une part,
le Royaume du Maroc ou l’ensemble mauritanien d’autre part.

Je ne suis plus d’accord, car cette conclusion minimise, à l'excès, l’excep-
tionnelle importance du contexte local, social et temporel du problème. Il
s’agit du Sahara occidental, à l’époque de la colonisation espagnole, c’est-à-
dire aux environs de 1884. Il s’agit de l’Afrique ancienne, dont on ne saurait
exiger, arbitrairement, que ses institutions soient un authentique décalque des
institutions européennes, car, à ce compte-là, le continent africain tout entier
(ou presque) devrait être déclaré territoire sans maître. Il s’agit aussi du
Maroc et de l’ensemble mauritanien, aux structures spécifiques et aux
systèmes traditionnels. C’est dans cette optique qu’il convient de confronter
les «liens juridiques » reconnus dans l’avis consultatif avec les notions
classiques que recouvrent les expressions Etat et souveraineté.

Pour ma part j'estime que les «liens juridiques», ceux d’allégeance
notamment, décrits dans l’avis consultatif dénotent l’existence d’un pouvoir
étatique et l'exercice d’une administration politique analogues à un lien de
souveraineté s’exerçant dans un Sahara difficile d’accès et sur des tribus les
unes nomades, les autres sédentaires.

{ Signé) 1. FORSTER.

95