779

SEPARATE OPINION OF JUDGE KOOIJMANS

Reason for adding separate opinion to joint declaration — Issue of prima
facie jurisdiction in 1999 Orders on provisional measures — Position of Yugo-
Slavia in period 1992-2000 not substantiated in Judgment — Implication for
other pending cases in which Applicant is party — Consistency with earlier case
law ignored by the Court.

Options open to the Court — Dismissal in limine litis — Inconsistency of
Applicant’s behaviour with regard to jurisdictional grounds — Application no
longer meets requirement of Article 38, paragraph 2, of Rules of Court —
Inherent powers of the Court to strike case from General List — Judicial policy
and sound administration of justice.

1. With full conviction, I have subscribed to the joint declaration of
seven members of the Court. I strongly feel that the Court, in the present
Judgment, has failed to meet the criteria for a sound judicial policy, as
spelled out in paragraph 3 of the joint declaration, by basing itself on the
argument that Serbia and Montenegro has no access to the Court, and
that the Court consequently lacks jurisdiction ratione personae.

2. My present point of view may seem slightly surprising to those who
remember the separate opinion I appended to the Court’s Orders of
2 June 1999 on provisional measures in the same cases. There, I said that
the Court’s reasoning in basing itself on prima facie lack of jurisdiction
ratione temporis was flawed from a logical point of view (Legality of Use
of Force ( Yugoslavia v. Belgium), Provisional Measures, I.C.J. Reports
1999 (T), p. 173, para. 2).

I was of the view that the decisions taken in 1992 by the competent
organs of the United Nations, with regard to the continued membership
of the Federal Republic of Yugoslavia and the events which had taken
place thereafter, had raised serious doubts as to whether the Federal
Republic of Yugoslavia was capable of accepting the compulsory juris-
diction of the Court as a party to the Statute, and that such doubts as a
matter of logic take precedence over other controversies with regard to
the Court’s jurisdiction. I therefore felt that, in respect of its finding that
it had no prima facie jurisdiction, the Court should have based itself on
the argument that the Applicant had doubtful locus standi, and thus that
there was a lack of jurisdiction ratione personae, rather than on the
ground of lack of jurisdiction ratione temporis. (I agreed with the Court’s
finding that with regard to the Genocide Convention it had no prima

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facie jurisdiction ratione materiae.)

3. The Court took an approach different to the one I had suggested. It
opted for an approach that, in my view, was defensible and legally sound,
even if I preferred another approach from a logical point of view (para-
graph 30 of my opinion). The approach taken by the Court in 1999 has
now been abandoned in favour of the one suggested by me at the time
(see Judgment, para. 44). Far from being elated by this change of
approach, however, I feel concerned for a number of reasons, which are
mentioned in the joint declaration and elaborated upon in the following
paragraphs.

4. First, in 1999, I certainly did not assume that the issue of the
Court’s jurisdiction ratione personae was an open and shut case. I expli-
citly stated: “[nJot for a moment do I contend that the Court already at
the present stage of the proceedings should have taken a definitive stand
on what I called earlier a thorny question” (Legality of Use of Force
( Yugoslavia v. Belgium), Provisional Measures, I.C.J. Reports 1999 (I),
p. 178, para. 21). I went on to refer to the dossier on the Federal Repub-
lic of Yugoslavia’s continued membership of the United Nations as being
full of legal complications, and was of the opinion that a thorough analy-
sis and careful evaluation of the Federal Republic of Yugoslavia’s status
was required at a later stage of the proceedings (ibid, p. 178, paras. 21
and 22). I am, however, not persuaded by the Court’s conclusion in the
present Judgment that this analysis and evaluation have convincingly
demonstrated that the events of 2000 have “clarified the thus far amor-
phous legal situation concerning the status of the Federal Republic of
Yugoslavia vis-a-vis the United Nations” (para. 77). Although this find-
ing is undoubtedly correct as far as the situation after the admission of
the Federal Republic of Yugoslavia to the United Nations is concerned
(this admission did indeed bring to an end its sui generis position vis-a-vis
the United Nations), the Judgment does not make clear what the legal
effects of this “amorphous” situation were in the period 1992-2000. The
reader is left with the statement — in itself not uncontroversial — that
the sui generis position of the Federal Republic of Yugoslavia cannot
have amounted to its membership in the Organization (para. 76).

5. The Court’s finding does not seem to be based on a thorough analy-
sis and careful evaluation of, inter alia, the legal effects of the statements
made and positions taken by the Federal Republic of Yugoslavia before
2000, in particular its note of 27 April 1992 to the United Nations, in
which it — admittedly on the presumption of the continuity of the “inter-
national personality of Yugoslavia” — unilaterally committed itself to

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fulfil all the rights conferred on, and obligations assumed by, the Socialist
Federal Republic of Yugoslavia in its international relations, including
its membership in all international organizations and participation in
international treaties ratified or acceded to by Yugoslavia. Have these
commitments become meaningless (at least partially), merely as a result
of its admission to the United Nations as a new Member and the nega-
tion of the presumption of continuity implicit therein; and if so, on what
grounds? Have the “thick clouds which have packed around Yugosla-
via’s membership in the United Nations” (an expression I used in my
1999 opinion, para. 27) been fully dissipated by the Federal Republic of
Yugoslavia’s belated decision to act as a successor State to the Socialist
Federal Republic of Yugoslavia, leaving it in a legal vacuum for the
period 1992-2000 as far as its relationship vis-a-vis the United Nations
and thus its participation in certain treaties — in particular the Genocide
Convention — is concerned? In this respect, the Judgment does not give
the reader much by way of clarification.

6. Second, as regards the potential impact of the 1999 Orders on other
cases before the Court, in particular the 1993 case concerning the Appli-
cation of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), it
deserves mention that in 1999 both the Applicant and the Respondents
(with the possible exception of Portugal) considered themselves to be
party to the Genocide Convention, which had been found by the Court in
1996 to be the only basis of jurisdiction in the Genocide Convention case.
An impact of the orders on provisional measures in the instant cases on
the Genocide Convention case was therefore not foreseeable and — to say
the least — not very probable.

7. All this changed, however, when in 2000 a new Government came
into power in Belgrade. This Government no longer considered the Fed-
eral Republic of Yugoslavia to be the continuation of the former Socialist
Federal Republic of Yugoslavia, and it decided to apply for membership
of the United Nations as a successor State. Moreover, it was of the view
that the Federal Republic of Yugoslavia, at the time of its inception in
1992, had not been a party to the Genocide Convention, but only became
a party after its accession to the Convention on 6 March 2001.

8. These new perceptions in Belgrade led the Government to submit
an Application to the Court containing a Request for Revision of the
1996 Judgment on preliminary objections in the Genocide Convention

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case on the basis of the “newly discovered facts” mentioned in the
previous paragraph.

The Court gave its decision rejecting the Federal Republic of Yugosla-
via’s Application for Revision in a Judgment dated 3 February 2003, in
which I did not participate. As recalled in paragraph 10 of the joint dec-
laration, the Court found that “resolution 47/1 did not inter alia affect
the Federal Republic of Yugoslavia’s right to appear before the Court...
under the conditions laid down by the Statute”, and that the Federal
Republic of Yugoslavia’s sui generis position vis-a-vis the United Nations
during the period 1992-2000 cannot have been changed retroactively by
its admission to the United Nations in 2000 (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 ( Yugo-
Slavia v. Bosnia and Herzegovina}, I.C.J. Reports 2003, p. 31, paras. 70
and 71).

9. The arguments made by Serbia and Montenegro in the Application
for Revision case and in the present cases are virtually identical, and thus
establish a close link between the Genocide Convention case and the
present cases. Such a link did not exist in previous phases of the proceed-
ings in these cases. It is, therefore, all the more remarkable that, in spite
of the fact that this link is now undeniable, the Court, in its present Judg-
ment, has chosen an approach which is not in line with the approach
taken in 1999 and 2003 and which inevitably has implications for the
Genocide Convention case.

The Court’s statement that it “cannot decline to entertain a case
simply . . . because its judgment may have implications in another case”
(Judgment, para. 38) may be correct in general terms, but must be
deemed to lack the prudence and care which are called for in situations
where a variety of options exists.

10. Third, the decisions taken by the Court in the 1999 Orders on pro-
visional measures and in the 2003 Judgment in the Application for Revi-
sion case and its reasoning therein are part of the Court’s case law. As we
say in the joint declaration: “[cJonsistency is the essence of legal reason-
ing”. In my view, this consistency in reasoning in the Court’s case law is
of paramount importance and dwarfs any misgivings I personally may
have or may have had with regard to each and every argument used, as
long as I do not consider them legally untenable.

11. Although I do not consider the Court’s reasoning in the instant
cases legally untenable, I have, in some respects, serious doubts as to its
correctness; moreover, I find it judicially unsound for the reasons given
in the joint declaration and in the preceding paragraphs. What seemed to
me to be a logical ground for determining lack of prima facie jurisdiction

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does not automatically qualify as a proper ground for the definitive deter-
mination of the issue of jurisdiction.

« Ÿ +

12. The views expressed in my separate opinion appended to the 1999
Orders on provisional measures and my perception of them in the light of
today’s circumstances are, however, not the only reason why I deemed it
necessary to add a separate opinion to the joint declaration. I also wish
to indicate which of the options open to the Court and referred to in
paragraph 2 of the joint declaration would, in my view, have been the
better one.

13. These options were three in number. The first is the one chosen by
the Court in its Judgment and is based on its jurisdictional considerations
ratione personae. The second is the approach followed by the Court in
1999, which was founded on a lack of prima facie jurisdiction ratione
temporis and ratione materiae.

The third option would have been dismissal of the case in limine litis.
This option is explicitly rejected in the Judgment, but it would have
been my preference. I therefore find it useful to set out my views; they
are not necessarily shared by other colleagues who have signed the joint
declaration and who might have chosen the second option, which is
also plausible and conceivable for good reasons but with regard to
which the Court has not explicitly expressed itself.

14. The option of dismissal in limine litis logically precedes the other
two and it is therefore with good reason that the Court has dealt with it
first. Similarly, the relevant question has correctly been defined as

“whether in the light of the assertions by the Applicant . . . 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” (Judgment,
para. 28).

15. I do not intend to deal with all the arguments given by the Court
in the relevant part of the Judgment (paras. 26-42), which contain mainly
a reply to the contentions of the Respondents. In a number of respects, I
agree with what is said by the Court; that is true particularly when it
states: “in certain circumstances the Court may of its own motion put an
end to proceedings in a case” (para. 31). I am, however, of the view that
the Court has refrained from exercising this proprio motu competence in
a well-considered way, and regrettably has confined itself first and fore-
most to responding to the arguments of the Parties in order to ultimately

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conclude that “[flor all these reasons, [it] cannot remove the cases...
from the [General] List, or take any decision putting an end to those
cases in limine litis” (para. 42). Though the Court explicitly stated that,
apart from the arguments of the Parties, it would also consider “any
other legal issue which it deems relevant” (para. 25), there is hardly any
evidence that it has done so. In the following, I will try to demonstrate
that such an approach would nevertheless have been the most appro-
priate one.

16. In its final submissions, Serbia and Montenegro asked the Court to
“adjudge and declare on its jurisdiction ratione personae in the present
cases” (CR 2004/23, p. 38). Such a request is highly unusual. Normally,
the applicant asks the Court to find that it has jurisdiction, not whether it
has jurisdiction.

17. The first time that Serbia and Montenegro asked the Court to
decide on its jurisdiction was when it submitted its Written Observations
on the preliminary objections of the Respondents on 20 December 2002.
In its Observations, Serbia and Montenegro summarily stated that, at the
time of the filing of its Applications in 1999, it had neither been a party to
the Statute nor to the Genocide Convention, thereby implying that the
Court could not base its jurisdiction on either Article 36, paragraph 2, of
the Statute or Article IX of the Genocide Convention, which were the
bases of jurisdiction it had invoked in its 1999 Applications.

18. Serbia and Montenegro explicitly stated in a letter to the Court,
dated 28 February 2003, that its Written Observations did not represent
a notice of discontinuance, and reiterated its request to decide on the
Court’s jurisdiction “considering the pleadings formulated in the Written
Observations”. What is striking — although perhaps not surprising in
view of the litigation tactics of Serbia and Montenegro with regard to the
various cases before the Court in which it is a party, as either applicant or
respondent — is that these Observations did not in any way refer to an
alternative basis of jurisdiction replacing the ones presented in 1999 but
no longer maintained by the Applicant.

19. It was only during the oral pleadings that the Applicant raised the
“key question” whether the sui generis position vis-a-vis the United
Nations (mentioned by the Court in the Judgment in the Application for
Revision case of 3 February 2003 and thus three weeks before the sending
of the letter to the Court) could have provided the link between the new
State and international treaties, in particular the Statute of the Court and
the Genocide Convention. In this respect, it is noteworthy that the Agent
for Serbia and Montenegro did not give any suggestion as to how this
could have happened. He merely stated that the question required a
definitive answer and that only a decision of the Court could bring
clarity. “A judgment on jurisdiction based on the elucidation of the
position of the Federal Republic of Yugoslavia between 1992 and 2000
could create an anchor point of orientation.” (CR 2004/14, pp. 26-27,

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paras. 63-64; emphasis added.)

20. Article 38, paragraph 2, of the Rules of Court states, inter alia,
that “[t]he application shall specify as far as possible the legal grounds
upon which the jurisdiction of the Court is said to be based” (emphasis
added). The Applications of 29 April 1999 met this requirement by
explicitly mentioning Article 36, paragraph 2, of the Statute and
Article IX of the Genocide Convention (supplemented in the cases
against Belgium and the Netherlands by letter of 12 May 1999, referring
to compromissory clauses in two bilateral conventions of 1930 and
1931 respectively).

In its Written Observations, filed on 20 December 2002, the Applicant
abandoned these jurisdictional grounds as being pertinent at the date the
Applications were filed without replacing them by another basis for the
Court’s jurisdiction (the Observations were silent as regards the two
bilateral treaties).

21. Therefore, Serbia and Montenegro’s Applications, as supplemented
by its Written Observations of 20 December 2002, no longer meet the
first requirement of Article 38, paragraph 2, of the Rules of Court. That
fact in itself, however, does not provide the Court with a ground to
remove the cases from the List. The provision that the Application shall
specify the legal grounds of jurisdiction was included in 1936; in order to
distinguish the requirements of paragraph 2 from those of paragraph 1,
which were prescribed by the Statute itself, the words “as far as possible”
were used (see G. Guyomar, Commentaire du Réglement de la Cour
internationale de Justice, 1983, pp. 234 et seq.). In contrast to the require-
ments of paragraph 1, non-compliance with those of paragraph 2 does
not lead eo ipso to non-admissibility. These requirements “were imposed
on the Parties by the Court simply because they were helpful to it, but
represented a mere recommendation” (ibid., p. 235 {translation by the
Registry ]). Likewise, Rosenne is of the view that “an application will not
be rejected in limine only because such specification [of the jurisdictional
grounds] is omitted” (The Law and Practice of the International Court
1920-1996, 1997, p. 705).

22. Serbia and Montenegro’s contention that only discontinuance in
conformity with Articles 88 and 89 of the Rules of Court may yield a
removal of a case from the List without a judgment on jurisdiction or on
the merits (CR 2004/14, p. 18, para. 29) is, however, not correct. The fact
that the Rules only speak of removing a case from the List by unilateral
action of the applicant (Art. 89) or joint action by the parties (Art. 88)
cannot deprive the Court of its inherent power, as master of its own pro-
cedure, to strike proprio motu a case from the List. This is also recog-
nized by Rosenne who, in this respect, refers to the general powers of the
Court under Articles 36 and 48 of the Statute (op. cit., p. 1478). This

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power is not related to the intention of the parties but to the judicial task
of the Court. This is borne out by the Court’s reasoning in the Orders in
the cases brought by the Federal Republic of Yugoslavia against Spain
and the United States of America, where it said that

“within a system of consensual jurisdiction, to maintain on the
General List a case upon which it appears certain that the Court
will not be able to adjudicate on the merits would most assuredly
not contribute to the sound administration of justice” (Legality of
Use of Force ( Yugoslavia v. Spain), Provisional Measures, I.C.J.
Reports 1999 (II), p. 773, para. 35; emphasis added).

Such power has to be used sparingly and only as an instrument of judicial
policy to safeguard the integrity of the Court’s procedure. The present
cases, however, are without precedent and can truly be called excep-
tional.

23. The Court was, in my opinion, perfectly entitled to issue such an
order in the instant cases on the basis of the fact that the Applicant has
not provided the Court with any plausible information as to the basis of
its jurisdiction. It is not for the Court to ascertain in the preliminary
phase of a case whether it has jurisdiction if the applicant fails to sub-
stantiate in any persuasive manner what the basis for that jurisdiction
could be, and after it has explicitly admitted that the initial grounds it
invoked are no longer valid. Nor is it the Court’s task to provide a party,
which asks for the elucidation of an observation made by the Court in a
judgment in another case to which it was also a party, with “an anchor
point of orientation”, as this would be tantamount to rendering an advi-
sory opinion or giving an interpretation of a judgment in circumstances
and under conditions not warranted by the Statute.

24. It is incompatible with the respect due to the Court for a party not
to provide it with any substantive argument for the speculation that it
might have jurisdiction while explicitly withdrawing the previously
adduced jurisdictional grounds. It is not in conformity with judicial pro-
priety and a sound judicial policy to render a fully reasoned judgment on
jurisdiction when the Applicant bases its request to do so on grounds
which can only be called inadequate. The Applicant can, therefore, be
held to its statement that there are no recognized or generally accepted
grounds of jurisdiction.

25. In the second round of the oral pleadings, the Agent for France
stated that

“the party against whom the application is brought is not required
to prove that there is no basis for jurisdiction, which would require
it — and it would be absurd to ask this of it — as a matter of course
to examine all possible bases” (CR 2004/21, p. 13, para. 22).

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What is true for the Respondent is also true for the Court and even more
so. The fact that the Court has the duty under certain circumstances to
ascertain proprio motu that it has jurisdiction cannot, by a contrario
reasoning, be turned into an obligation to explore grounds for its juris-
diction which have not been invoked by the Applicant. As Rosenne
states:

“There can be no doubt that the choice of a title of jurisdiction is
as much a political act as a decision to institute proceedings, and the
Court is following its usual attitude when faced with political ques-
tions of that character not to substitute itself for the party con-
cerned. It is for this reason that a principle such as curia jura novit
cannot appropriately be applied by the Court proprio motu to sub-
stitute a title of jurisdiction which has not been invoked for
another .. .” (Op. cit., p. 956.)

Neither does the Court have to rule on a title of jurisdiction which has
not been claimed.

26. In view of the fact that the Applicant has failed to demonstrate,
and has not even made an effort to demonstrate, that the Court has juris-
diction, I am of the opinion that the Court should have decided in limine
litis to remove the eight cases from the General List.

(Signed) Pieter H. KOOIMANS.

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