55

INDIVIDUAL OPINION BY M. ANZILOTTI.
[Translation.]

Although I am in agreement with the Court’s conclusion,
my point of view is widely different. Owing to the impor-
tance of the case and the grave legal problems involved,
I consider it my duty to make use of the right conferred
upon me by the Rules and to state my personal opinion
as briefly as possible, as well as the reasons which have
enabled me to accept the conclusion of the present Advisory
Opinion. |

1.—In the first place, we must consider what is the real
question which the Court was called upon to decide.

The Council asks whether ‘“‘a régime established between
Germany and Austria on the basis and within the limits
of the principles laid down by the Protocol of March roth,
1931,” would “be compatible with Article 88 of the Treaty
of Saint-Germain and with Protocol No. I signed at Geneva
on October 4th, 1922”. | |

Neither Article 88 of the. Treaty of Saint-Germain nor the
Geneva Protocol of October 4th, 1922, imposes upon Austria
any obligations other than to abstain from certain acts
otherwise than with the consent of the Council of the League
of Nations. The régime in question would only be incom-
patible with Article 88 of the Treaty of Saint-Germain or with
the Protocol of Geneva if that consent of the Council were
necessary and Austria failed to obtain it.

Accordingly, the question put to the Court is whether the
conclusion of a Customs Union with Germany on the basis
and within the limits of the Protocol of March roth, 1931, is
among the acts from which Austria must abstain otherwise
than with the consent of the Council of the League of Nations.
It is indeed from this aspect that the question was discussed
before the Court. Germany and Austria maintain that the
proposed Customs Union would not be included among the
acts for which the Treaty of Saint-Germain and the Geneva

22
OPINION BY M. ANZILOTII . 56

Protocol require the consent of the Council, while France,
Italy and Czechoslovakia maintain the contrary.

The dispute upon which the Court is asked to give its
opinion therefore relates to the applicability of the provisions
of Article 88 and the Geneva Protocol to this particular case.
The reply will have the following effect: either the said pro-
visions are not applicable to this case (so-called theory of
compatibility), so that Austria is free to conclude the Customs
Union with Germany; or these provisions or some of them
are applicable to the case (so-called theory of incompatibility),
and Austria must abstain from concluding the Customs Union
with Germany or must apply to the Council for its consent.

2—-When Article 88 of the Treaty of Saint-Germain and -
the Geneva Protocol require Austria to abstain from certain
acts otherwise than with the consent of the Council of the
League of Nations, the purpose is to give effect to the prin-
ciple contained in the first part of the said Article 88: “The
independence of Austria is inalienable otherwise than with
the consent of the Council of the League of Nations.” We
must therefore first of all study the meaning and consequences
of this principle.

The idea that: Austria’s independence is inalienable except
with the consent of the Council of the League of Nations
has its origin in Article 80 of the Treaty of Versailles. That
article imposed upon Germany two obligations: to acknowl-
edge and respect ‘“strictly” the independence of Austria,
within the frontiers which may be fixed in a treaty between
that State and the Principal Allied and Associated Powers ;
and to agree that “this independence shall be inalienable,
except with the consent of the Council of the League of
Nations’. There is little doubt that this provision, which has
no counterpart in the other treaties of peace, was adopted
in order to secure Austria’s existence against the danger of
incorporation within the German Reich.

Article 88 merely repeats and generalizes the principle
already enunciated in the Treaty of Versailles. The idea
underlying this article is that Austria’s existence within the

23
OPINION BY M. ANZILOTTI 57

frontiers fixed for her is an essential element in the political
system created by the peace treaties. The real aim of the
principle contained in the first part of Article 88 is to secure
that existence and to prevent Austria from being absorbed
within another State or coming under the dependence of
another State, unless the Council of the League of Nations,
the sovereign judge of political situations and of the require-
ments of peace, shall so dispose.

We may therefore affirm that this article was not adopted
in the interests of Austria, but in the interests of Europe
as a whole, and thus it will be readily understood that
Article 88, far from granting Austria rights, only imposes
upon her obligations.

3.~We must now define the meaning and scope of the
terms “independence” and “inalienable” in the first part of
Article 88. _

With regard to the former, I think the foregoing obser-
vations show that the independence of Austria within the
meaning of Article 88 is nothing else but the existence of
Austria, within the frontiers laid down by the Treaty of
Saint-Germain, as a separate State and not subject to the
authority of any other State or group of States. Independence
as thus understood is really no more than the normal con-
dition of States according to international law ; it may also be
described as sovereignty (suprema potestas), or external sover-
eignty, by which is meant that the State has over it no
other authority than that of international law.

The conception of independence, regarded as the normal
characteristic of States as subjects of international law, cannot
be better defined than by comparing it which the exceptional
and, to some extent, abnormal class of States known as
“dependent States”. These are States subject to the authority
of one or more other States. The idea of dependence there-
fore necessarily implies a relation between a superior State
(suzerain, protector, etc.) and an inferior or subject State
(vassal, protégé, etc.); the relation between the State which
can legally impose its will and the State which is legally
compelled to submit to that will. Where there is no such
relation of superiority and subordination, it is impossible to
speak of dependence within the meaning of international law.

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OPINION BY M. ANZILOTTI 58

It follows that the legal conception of independence has

nothing to do with a State’s subordination to international
law or with the numerous and constantly increasing states of
de facto dependence which characterize the relation of one
country to other countries.
_It also follows that the restrictions upon a State’s liberty,
whether arising out of ordinary international law or contractual
engagements, do not as such in the least affect its independ-
ence. As long as these restrictions do not place the State
under the legal authority of another State, the former remains
an independent State however extensive and burdensome those
obligations may be.

This is obviously the standpoint of the Treaty of Saint-
Germain when it proclaims the independence of Austria despite
the many serious restrictions it imposes upon her freedom in
the economic, military and other spheres. These restrictions
do not put Austria under the authority of the other contracting
States, which means that Austria is an independent State
within the meaning of international law. This is the inde-
pendence which Article 88 declares to be “inalienable”. What
now is the meaning of that term ?

4.—The idea naturally suggested by the word ‘“alienate” is
the transfer of something from one person to another, but
it seems that the word may also mean: “lose of one’s own
accord’’, “get rid of”, “renounce”, etc. We may question the
possibility of transferring so strictly personal a quality as
a State’s independence ; on the other hand, it will be admitted
that this quality ceases to exist by the will of the State
itself when the latter agrees. to. renounce it in favour. of
another State, for example, by becoming absorbed in the
latter or placing itself under the latter’s authority.

Whatever may be said as to the exact meaning of this
word, the idea that it seems to express is clear enough:
Austria must not voluntarily lose her existence as an inde-
pendent State otherwise than with the consent of the Council
of the League of Nations.

This being so, Article 88 marks a twofold departure from
ordinary international law.

25
OPINION BY M. ANZILOTTI ‘ . 59

According to ordinary international law, every country
is free to renounce its independence. and even its existence ;
this rule does not apply to Austria who, under Article 88,
cannot voluntarily lose her independence, still less therefore
her existence, except with the consent of the Courcil of the
League of Nations. |

Similarly, according to ordinary international law, each
country must respect the independence of other countries,
but it is not forbidden to agree to another State’s volun-
tarily renouncing its independence in its favour. This is not
allowed in the case of Austria, as regards the signatory
States to the Treaty of Saint-Germain, except of course with
the consent of the Council of the League of Nations.

5.—I now pass on to the second part of Article 88, which
is. as follows:

“Consequently, Austria undertakes in the absence of
the consent. of the said Council to abstain from any
act which might directly or indirectly or by any means
whatever compromise her independence, particularly, and
until her admission to membership of the League of Nations,
by participation: in the affairs of another Power.”

We must determine—and, as I shall show later, the whole
case turns on this—what acts are contemplated by this pro-
vision. .

The foregoing observations show that the principle con-
tained in the first part of Article 88 of itself creates certain
obligations for Austria and the other. contracting States.
Obligations similar to those of the latter States are expli-
citly imposed upon Germany by Article 80 of the Treaty of
Versailles (supra, No. 2). The second part of Article 88
refers directly to Austria alone and requires her to abstain
from any act which may directly or. indirectly or by any
means whatever compromise her independence, in the absence
of the consent of the Council of the League of Nations.

On the strength of the connection between the second and
first sentences of Article 88 and clearly expressed by the
word “consequently”, the German and Austrian Governments

26
OPINION BY M. ANZILOTTI 60

have argued that the acts from which Austria must abstain —
in the absence of the Council’s consent are acts which
alienate her independence, or which can be assimilated to an
alienation of independence. If I understand their argument
rightly, they say that what Austria is forbidden to do by
the first sentence in Article 88 is to alienate her independ-
ence; since the second sentence merely draws consequences
from the first sentence, the acts from which Austria must
abstain can only be acts of alienation or acts amounting to
alienation.

This argument must be most carefully examined, for the
reply to be given to the Council depends almost entirely
upon this point. If the acts from which Austria must ab-
stain in the absence of the Council’s consent are only acts
of alienation or acts amounting to an alienation of mdepend-
ence, the answer must be in the affirmative; if not, in the
negative. And the efforts of the representatives of the Ger-
man and Austrian Governments have been devoted mainly
to this question. |

6.—In my opinion, the arguments of these Governments do
not hold and for the following reasons.

(a) Undoubtedly the second sentence in Article 88 is connected
with the first by the word “consequently”. But this word
does not necessarily imply that the second sentence merely
draws the logical consequences from the principle laid down
in the first; it may just as well mean that the second
sentence lays down rules the purpose of which is to ensure
effect being given to this principle. Both interpretations are
undoubtedly possible, and therefore we must study the text
itself to see whether the second sentence in Article 88 merely
draws consequences from and applies the first, or whether it
adds further obligations in order to give effect thereto.

(6) It is a fundamental rule of interpretation that words
must be given the ordinary meaning which they bear in their
context unless such an interpretation leads to unreasonable
or absurd results.
OPINION BY M. ANZILOTTI 61

If we give to the words in the second sentence of Article 88
—disregarding for the moment the last clause—the meaning
they normally bear in their context, it is hard to admit that
the acts in question are only acts of alienation or acts amount-
ing to an alienation of independence. The ordinary meaning
of the word “compromise” is certainly not “to alienate”; an
“act which might compromise .... independence”’ is, in the ordin-
ary meaning of the words, an act calculated to place inde-
pendence in danger. If we take the ordinary meaning of the
words in their context, an act may very well compromise a
State’s independence directly or indirectly or by one means
or another, but I do not see how all this can be made to
apply to alienation.

Quite clearly the normal meaning of the words in the con-
text of the second sentence of Article 88 is not the meaning
given to them in the arguments of the German and Austrian
Governments. If we interpret the words according to the
meaning. they would normally bear in their context, the con-
clusion is rather that Austria is obliged to abstain from cer-
tain acts which are not or are not necessarily acts alienating
her independence, but which are calculated to expose that
independence to danger.

Putting aside for the moment a more exact definition of
the acts in question, this interpretation cannot, I think, be
regarded as leading to an unreasonable or absurd result. On
the contrary, it seems to me perfectly intelligible that, in
order to secure Austria’s existence, for important political
reasons, an attempt was made to prevent her, in the absence
of the Council’s consent, from accomplishing certain acts
which, although they left her independence formally intact,
would expose it to danger. Elementary rules of political
foresight would suggest to the authors of the Treaty of Saint-
Germain that they should put the Council in a position to
prevent acts of this kind and to intervene before some final,
_and therefore by that time perhaps inevitable, act was on
the point of accomplishment. Accordingly, the result to

28
OPINION BY M. ANZILOTTI 62

which the natural meaning of the words in their context
leads us being perfectly reasonable, this. is the interpretation
which must be adopted.

(c) The interpretation of the second sentence of Article 88
by the German and Austrian Governments appears to me unac-
ceptable also from another point. of view. Since the obliga-
tion upon Austria not to alienate her independence, either
openly or in a disguised manner, arises out of the first sentence
of the article, the second would be perfectly superfluous if it
merely means that Austria is to abstain in the abserce of the
Council’s consent from any act of overt or covert alienation.
The Austro-German argument really deprives the second sentence
of all importance, and thus it runs counter to a fundamental
rule in the interpretation of legal texts according to which, when
there are two interpretations, one of them attributing a
reasonable meaning to each part of the text and the other
not fulfilling these conditions, the first must be preferred.

(d) It must be observed lastly that Article 88 itself fur-
nishes definite evidence that the acts referred to in the text
include not only acts of alienation of independencé. I would
refer to the last clause of the article where it says: “par-
ticularly, and until her admission to membership of the League
of Nations, by participation in the affairs of another Power”.

I am well aware that the clause was in all probability
the outcome of the incident of Article 61 of the Consti-
tution of Weimar. I might also admit for the sake of argu-
ment, and subject to an express reservation on the point,
that this clause applied only up to the point when Austria
entered the League of Nations and that since that time it
has ceased to be applicable. It is nevertheless true, and this
is what matters, that when Article 88 cites as an example
an act from which Austria is to abstain except with the
consent of the Council of the League of Nations, that example
Is not an act of alienation or one amounting to an act of
alienation; it is merely an act which might expose that

29
OPINION BY M. ANZILOTTI 63

independence to danger. It is difficult to see how this may
be reconciled with the view that this article was intended
to prohibit only acts of alienation of independence.

7.—The conclusion which seems to follow from the fore-
going considerations is that Article 88 of the Treaty of Saint-
Germain contemplates two kinds of acts from which Austria
is to abstain except with the consent of the Council of the
League of Nations.

(A) So-called acts of alienation of independence; or to be
more accurate—acts by which Austria would renounce her
independence in favour of another State, such, for example, as
a treaty by which Austria agreed to be incorporated in the
German Reich, or by which she undertook to join a Federal
State, etc. It will readily be admitted that cases of this
kind, while they are the most serious, are not the most
probable.

(B) Acts which, while leaving Austria her independence,
would have the effect of exposing that independence to danger.
I do not think these acts can be more exactly defined than
by saying that they must be acts which, as far as can be
reasonably foreseen, would endanger that independence. A
treaty by which Austria undertook to intervene in the affairs
of other Powers; the adoption of a constitutional law under
which the head of another State would of right be President
of the Austrian Republic. These seem to be undoubted
examples of this class of acts looked at from a general stand-
point. But it must be added at once that, from their very
nature, acts of this kind are particular instances: an act
which in certain circumstances presents no danger whatsoever
to a State’s independence may well be extremely dangerous in
circumstances of another kind.

It follows that in order to establish the compatibility of the
Austro-German Customs régime with Article 88 of the Treaty
of Saint-Germain, that régime must be neither a so-called act
of alienation of Austria’s independence nor an act which,

30
OPINION BY M. ANZILOTTI 64

' while leaving this independence formally intact, would be
susceptible of exposing it to danger. Both conditions are
equally necessary and on all fours with each other.

8.—I pass now to the Geneva Protocol of October Ath, 1922.

It is above all on this point that I find myself at variance
with the grounds of the present Opinion. The Court’s argu-
ment seems to be as follows: A régime established between
Austria and Germany on the basis and within the limits of
the principles laid down in the Protocol of March rgth, 1931,
is not necessarily incompatible with Article 88 of the Treaty
of Saint-Germain, but is incompatible with the Geneva
Protocol. In my view, on the contrary, that régime can
only be incompatible with the Geneva Protocol if it is
incompatible with Article 88 of the Treaty of Saint-Germain,
since the Geneva Protocol does not impose on Austria, as
regards her independence, any obligation which does not
already ensue from that article.

It is an arguable question whether the States who in 1922
signed the Geneva Protocol. were in a position to modify
inter se the provisions of Article 88, which provisions, as I
have already pointed out (supra, No. 2), form an essential
part of the peace settlement and were adopted not in the
interests of any given State, but in the higher interest of the
European political system and with a view to the main-
tenance of peace. However that may be, I am content to
observe that, as regards the obligations devolving upon
Austria, the Protocol is covered by the provisions of
Article 88. .

I leave on one side the close relation between the first
and second parts of this Protocol, which tends to support
my argument, and I confine myself to the following obser-
vations. . _

As regards the first paragraph of Part II of the Protocol,
it has not been disputed that it corresponds exactly to the
first part of Article 88. Obviously, when this paragraph
speaks of “any negotiations or .... any economic or finan-
cial engagement”, it says nothing that is not covered by the

31
OPINION BY M. ANZILOTTI 65

expression ‘any act” contained in Article 88 The variation
is easily explained if regard be had to the subject matter and
the purpose of the Protocol.

As regards the second paragraph, it seems that the Court’s
opinion is chiefly based on the last part of it. It must
therefore be closely examined.

This part, starting with the words “provided always’, etc.,
follows in the context an enumeration of matters which are
not affected by the obligations devolving upon Austria in
accordance with the terms of the preceding paragraph which
themselves are “in accordance with the terms of Article 88
of the Treaty of Saint-Germain”. If this last part limits
those matters not falling under the scope of Article 88.
obviously it refers back to that article. In fact, Austria is
not obliged not to grant a special régime or exclusive advan-
tages. Her obligation consists in the duty not to violate her
economic independence by granting to any State a “special
régime or exclusive advantages’ calculated to threaten this
independence, and therefore to abstain from any “act cal-
culated to compromise her independence’. The last part
of the second paragraph of Part II of the Protocol thus is
only a particular application of Austria’s obligations under
Article 88 of the Treaty of Saint-Germain.

It is true that the section which we are considering speaks
of “economic independence” and prohibits Austria from granting
a special régime or exclusive advantages calculated to threaten
“this independence’, whereas Article 88 refers to Austria’s
independence without further qualification. It-.seems certain,
however, that if a legal meaning can be attributed to the
expression ‘economic independence”, this meaning must be
“the independence of a State in the economic sphere”. Accord-
ingly, what the last part of the second paragraph of the:
Protocol prohibits Austria from doing is to compromise her
independence in the economic sphere. Here again there is
nothing which is not already covered by the obligations ensuing
from Article 88. ;

It follows that the question raised by this section of the
Protocol, namely whether the Austro-German Customs Union
would constitute a special régime or exclusive advantages

32
OPINION BY M. ANZILOTTI 66

calculated to threaten Austria’s economic independence is
embraced by the more general question which has to be
considered on the basis of Article 88, namely whether the
customs union, though leaving Austria her independence, would
have the effect of endangering that independence.

It follows also that the question whether, having regard to
No. 2 of the first article of the Vienna Protocol, the régime
established by this Protocol is to be regarded as a special
régime or as constituting exclusive advantages, is not of much
importance. In the necessary appraisement of this régime
from the point of view of the dangers to which it might
expose Austria’s independence, due regard must of course
be had to this clause in so far as it is capable of practical
application; the rest is in reality a question of words.

9.—I thus find myself impelled to the conclusion which
I had reached on the basis of Article 88 of the Treaty of
Saint-Germain: the Austro-German Customs régime will
only be compatible with the provisions mentioned in the
Council’s request provided that .

(a) it is not in the nature of a so-called alienation of
* Austria’s independence, and

(6) it is not capable, so far as can reasonably be foreseen,
of exposing that independence to any danger.

With regard to the first point, it is to be noticed that
the régime provided for by the Protocol of March igth, 1931,
is established on a footing of complete legal equality and
reciprocity. Now, though it is no doubt possible that two
States which stand in the relationship of superior and subor-
dinate may contract between them absolutely equal and
reciprocal obligations, it is on the other hand difficult to
conceive how such a relationship can result from a _ treaty
which, being concluded between equals, creates none but reci-
procal obligations.

To my mind, the objection that in this case there would
be two impairments of independence instead of one only,
which impairments would subsist side by side without mutu-
ally cancelling each other and one of which, namely that of
Germany’s independence, would be lawful, whilst the other,
that of Austria’s independence, would be unlawful, confuses

33
OPINION BY M. ANZILOTTI 67

the ideas of independence and of liberty (see supra, No. 3).
If Austria, which is now Germany’s equal, contracts towards
the latter an obligation equal to that which Germany contracts
towards Austria, the legal position of the two States in rela-
tion to each other, in so far as concerns their reciprocal
independence, is not changed, though their liberty is more
restricted than before. Austria’s’ independence would only
be affected by a régime giving Germany a position of legal
superiority ; but such a position cannot ensue from a treaty
which is recognized to have been drawn up on a basis of
absolute legal equality and reciprocity.

Similarly, no importance attaches to the observation that
though the obligations ensuing from the proposed Customs
Union are equal and reciprocal, in practice this reciprocity
would not operate in such a way that the impairment of
Austria’s liberty would be offset by the impairment of Ger-
many’s liberty. This contingency, which I consider extremely
probable, may be of importance when appraising the danger to
which the conclusion of the Customs Union would expose
Austria’s independence; but it is irrelevant to the question
whether reciprocity of obligations is compatible with alienation
of independence.

I do not think it necessary to dwell on this point. The
arguments whereby it has been sought to show that certain
clauses of the Protocol of Vienna are in the nature of an
alienation of Austria’s independence, appear to be based on a
conception of this independence different from that of
Article 88; accordingly, a reference to this conception (supra,
No. 3) will suffice to show that these arguments cannot be
regarded as sound.

10.—The question whether the Austro-German Customs
Union contemplated by the Vienna Protocol must. be con-
sidered as an act susceptible of endangering Austria's independ-
ence is to my mind quite a different question and a much
more important one.

While the question discussed above relates to the legal
consequences which would ensue from the Vienna Protocol
and is accordingly purely a question of law, the one with
which I am now concerned is a question of fact. In accord-

24
OPINION BY M. ANZILOTTI 68

ance with what has been said above (supra, No. 7), the
question amounts to asking whether, in view on the one hand
of the respective positions of Austria and Germany, and in
view, on the other hand, of the consequences which the
Customs Union would have on Austria’s economic life, it
can reasonably be foreseen that a dangerous situation would
ensue for the independence of Austria.

We are therefore definitely concerned with a particular:
instance and, J must add, an instance which derives all its
importance from the fact that we are dealing with the
relations between Germany and Austria. It is quite probable
that a similar customs union, or even a closer union between
Austria and Czechoslovakia, would not have raised the
slightest difficulty. It is not Austria’s right to enter into
customs unions in general with which we are concerned. In
my view, this right is unquestionable, and I freely admit
that it was recognized by the Council in its Resolution of
December gth, 1925. But we are concerned with this Customs
Union and this Customs Union alone.

Before going on to deal with the question I have just
raised, I must make the following observations.

Everything points to the fact that the answer depends on
considerations which are for the most part, if not entirely,
of a political and economic kind. It may therefore be asked
‘whether the Council really wished to obtain the Court’s
opinion on this aspect of the question and whether the
Court ought to deal with it.

As regards the first point, it seems to follow from the
observations repeatedly set forth above, and especially from
Nos. 1 and 7, that it is scarcely possible to answer the
Council’s question as to the applicability of Article 88 of the
Treaty of Saint-Germain to the case before us without also
resolving both the question of law indicated in No. 9 and
the question of fact mentioned in No. 10, These two
questions are on all fours, and the compatibility of the
contemplated customs régime with Article 88 cannot be
established unless they have both been resolved.

This being the case, the conclusion at which I have arrived
after much careful reflection is that the Court must either
refuse to give the opinion asked for, or it must give it on

5 | 35
OPINION BY M. ANZILOTTI 69

the question as a whole. I grant that the Court may refuse
to give an opinion which would compel it to depart from
the essential rules governing its activity as a tribunal (Advis-
ory Opinion No. 5, p. 29), but I am unable to admit that
the Court can answer a question other than that which has
been put to it or confine itself to answering a part of that
question. To my mind that would be an abuse of its powers.
It must now be asked what would be the relation of the
Court’s opinion on the question of fact mentioned above to
the jurisdiction conferred on the Council of the League of
Nations by Article 88 of the Treaty of Saint-Germain.

It has already been observed (supra, No. 1) that the ques-
tion on which the Court’s opinion is asked relates to the
applicability of Article 88. That question is therefore a
preliminary question as regards the Council’s jurisdiction
under that article. The question put to the Court is intend-
ed to establish whether, if the act in question falls under
the scope of Article 88, Austria is bound either to abstain
from it or to place the Council in a position in which it
can exercise the discretionary powers conferred upon it by
that article. It is therefore quite a different question from
that which the Council would have to resolve if, that incom-
patibility being admitted, Austria were to ask for its consent.

On the other hand, there seems to me no doubt that the
right of the Council under Article 88 to grant or withhold its
consent also includes the right to decide whether the act it is
called upon to authorize is really calculated to endanger
Austria’s independence. It would conflict with the meaning
and the spirit of Article 88 if the Council were on this point
bound by the opinion of any other body.

Accordingly, the only result of the Court’s opinion on the
above-mentioned question of fact—supposing of course that
it was accepted by the Council—would be to settle the ques-
tion of the applicability of Article 88 to the case in point.
It would, however, in no way restrict the Council’s discre-
tionary powers, and Austria would remain free to use any
means she might think fit in order to prove to the Council

36
OPINION BY M. ANZILOTTI 70

that the proposed customs régime is not calculated to endanger
her independence.

The Court’s conclusion on this point is therefore of a pro-
visional nature.

11.—The answer to the question whether the customs régime
contemplated in the 1931 Protocol is, owing to its reasonably
probable consequences, calculated to endanger Austria’s inde-
pendence, depends in my opinion upon the following consider-
ations.

In the first place, account must be taken of the movement
already in existence in Germany and Austria, the aim of
which is to effect the political union of the two countries.
Here we are confronted with a well-known fact and one there-
fore which the Court could take into consideration even if it
had not been advanced by the interested Parties. This fact
was, however, invoked on several occasions, and I do not think
it was contested. Moreover, it is at the root of Article 80 of
the Treaty of Versailles and Article 88 of the Treaty of Saint-
Germain : indeed these articles were only adopted to check the
movement towards the union of Germany and Austria, a move-
ment which showed signs of very rapid development after
the War.

This movement, which is based upon community of race,
language and culture, and thus upon a very strong sentiment
of common nationality, is further strongly encouraged by
the difficult situation in which Austria was placed by the
treaties of peace and which impelled her to seek the possi-
bility of existence and development in union with other
countries. Here again we are dealing with facts well known
to all and established in the present proceedings.

It is in the light of these facts that we must ask what
reasonably probable effects the Customs Union would have
upon Austria’s independence.

In view of the great disproportion in the economic strengths
of Germany and Austria, it must be regarded as reasonably
probable that Austria’s economic life would sooner or later
become dependent upon Germany’s. Even if, in the absence
of reliable information (and I must admit that insufficient
light has been thrown on this aspect of the question), we

37
OPINION BY M. ANZILOTTI 7L

leave this point on one side, the Customs Union would beyond
all dispute assimilate the economic life of these two countries,
and its effect would therefore be to conform and strengthen
the movement towards the. incorporation of Austria within
a single big German State. This movement would be supported
by one of the strongest forces in social life, namely economic _
solidarity. I admit that economic union does not necessarily
lead to political union, but its influence is very decidedly
in that direction. Accordingly, if the tendency towards
political} unity already exists and is as active and powerful as
it is in Germany and Austria, it seems to me quite reasonable
to suppose that so close an economic union as that which
would follow from a system of free trade between two coun-
tries surrounded by formidable customs barriers would be
likely to turn the scales in favour of that movement. From
this point of view, the Austro-German Customs Union must,
in my opinion, be considered a fact which might compromise
Austria’s independence within the meaning of Article 88 of
the Treaty of Saint-Germain.

Adopting this standpoint, I cannot attach great importance
to the clauses in the Vienna Protocol which seek to loosen
the bonds between the two countries and especially to safe-
guard Austria’s right to withdraw from the Union. I quite
agree that this Customs Union has had all possible regard
for the independence of the two countries, and there is no
doubt that the authors of the Protocol had this aim in view.
Man’s will, however, has only a limited influence over social
forces like those which are urging Austria towards fusion with
Germany, and in all probability the consequences of the
union would ensue despite the precautions taken in the
Protocol.

It is quite another question whether the danger to Austria’s
independence could not be eliminated by conditions placed
upon its conclusion: in my opinion, for example, the danger
would disappear or would be very much reduced as soon as
Germany and Austria ceased to be the sole members. This
consideration, however, does not apply in the present stage

38
OPINION BY M. ANZILOTTI 72

of the proceedings when we have only to determine whether
the régime as it stands comes within the scope of Article 88,

although it might play a part in any subsequent proceedings
before the Council.

Arguing still from the same standpoint, I find it difficult
to attach importance to the fact that other customs unions
have been regarded as perfectly compatible with the inde-
pendence of States and have in fact exercised no appreciable
influence over that independence. Everything depends upon
the situation of the States which contracted these unions and,
as these situations are never the same, the utmost. care has
to be taken in arguing from one case to another. The only
pertinent historic precedent would appear to be the German
Zollverein, owing to the analogy between the present situation
of Germany and Austria and the situation of the various
German States in the xixth century. I do not wish to
exaggerate its importance, but it seems to me that the Zoll-
verein played a by no means unimportant part in paving
the way for German unity.

It may be asked whether there is not some contradiction
in requiring that a State should exist and at the same time
putting it in a position which makes its existence extremely
difficult. I do not dispute that, but my duty as a judge is
to take Article 88 and to apply it as it stands according to
its letter and its spirit. And when I consider the real
danger threatening Austria’s independence against which this
article is especially directed, and when I consider that, in
order to avert this danger, Article 88 requires Austria, in
the absence of the consent of the Council of the League of
Nations, to abstain from ‘any act which might directly or
indirectly or by any means whatever compromise her inde-
pendence’, it is, I confess, difficult for me to admit that
an act such as the Customs Union contemplated in the
Vienna Protocol does not come within the scope of this
provision, and that it can be accomplished without the
Council’s authority. Further, I would ask what value and

39
OPINION BY M. ANZILOTTI 73

relevance the second sentence in Article 88 would retain
if it did not apply in this case.

12.—For these reasons, I have come to the conclusion that
the Austro-German Customs régime, provided for in the
Vienna Protocol of March roth, 1031, would be incompatible
with Article 88 of the Treaty of Saint-Germain, because it
would be an act coming within the scope of the second
sentence of that article, and that Austria is therefore obliged
to abstain from it or to ask the consent of the Council
of the League of Nations.

This being said, I have no hesitation in admitting that
the said régime would also be incompatible with the Protocol
of Geneva, which only applies the provisions of Article 88
to the matters there in issue.

-From this point of view, and from this point of ‘view only,
I find it possible to accept the conclusion of the present
Opinion.

(Signed) D. ANZILOTTI.

40


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

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

(YOUGOSLAVIE c. ALLEMAGNE)

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

ORDONNANCE DU 2 JUIN 1999

1999

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. GERMANY)

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

ORDER OF 2 JUNE 1999
Mode officiel de citation:

Licéité de l'emploi de la force (Yougoslavie c. Allemagne),
mesures conservatoires, ordonnance du 2 juin 1999,
C.LJ. Recueil 1999, p. 422

Official citation:

Legality of Use of Force (Yugoslavia v. Germany),
Provisional Measures, Order of 2 June 1999,
LCS. Reports 1999, p. 422

N° de vente:
ISSN 0074-4441 Sales number 730
ISBN 92-1-070798-2

2 JUIN 1999

ORDONNANCE

LICEITE DE L'EMPLOI DE LA FORCE
(YOUGOSLAVIE c. ALLEMAGNE)

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

LEGALITY OF USE OF FORCE
(YUGOSLAVIA v. GERMANY)

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

2 JUNE 1999

ORDER
422

INTERNATIONAL COURT OF JUSTICE

YEAR 1999 1999
2 June
General List
2 June 1999 No. 108

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. GERMANY)

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

ORDER

Present: Vice-President WEERAMANTRY, Acting President; President
SCHWEBEL; Judges ODA, BEDJAOUI, GUILLAUME, RANJEVA,
HERCZEGH, SHI, FLEISCHHAUER, KOROMA, VERESHCHETIN,
HIGGINS, PARRA-ARANGUREN, KOOIJMANS; Judge ad hoc KRECA;
Registrar VALENCIA-OSPINA.

The International Court of Justice,

Composed as above,

After deliberation,

Having regard to Articles 41 and 48 of the Statute of the Court and to
Articles 73 and 74 of the Rules of Court,

Having regard to the Application by the Federal Republic of Yugo-
slavia (hereinafter “Yugoslavia’”) filed in the Registry of the Court on
29 April 1999, instituting proceedings against the Federal Republic of
Germany (hereinafter “Germany”) “for violation of the obligation not to
use force”,

Makes the following Order:
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 423

1. Whereas in that Application Yugoslavia defines the subject of the
dispute as follows:

“The subject-matter of the dispute are acts of the Federal Repub-
lic of Germany by which it has violated its international obligation
banning the use of force against another State, the obligation not to
intervene in the internal affairs of another State, the obligation not
to violate the sovereignty of another State, the obligation to protect
the civilian population and civilian objects in wartime, the obligation
to protect the environment, the obligation relating to free navigation
on international rivers, the obligation regarding fundamental human
rights and freedoms, the obligation not to use prohibited weapons,
the obligation not to deliberately inflict conditions of life calculated
to cause the physical destruction of a national group”;

2. Whereas in the said Application Yugoslavia refers, as a basis for the
jurisdiction of the Court, to Article IX of the Convention on the Preven-
tion and Punishment of the Crime of Genocide, adopted by the General
Assembly of the United Nations on 9 December 1948 (hereinafter the
“Genocide Convention’), and to Article 38, paragraph 5, of the Rules of
Court;

3. Whereas in its Application Yugoslavia states that the claims sub-
mitted by it to the Court are based upon the following facts:

“The Government of the Federal Republic of Germany, together
with the Governments of other Member States of NATO, took part
in the acts of use of force against the Federal Republic of Yugosla-
via by taking part in bombing targets in the Federal Republic of
Yugoslavia. In bombing the Federal Republic of Yugoslavia mili-
tary and civilian targets were attacked. Great number of people were
killed, including a great many civilians. Residential houses came
under attack. Numerous dwellings were destroyed. Enormous dam-
age was caused to schools, hospitals, radio and television stations,
cultural and health institutions and to places of worship. A large
number of bridges, roads and railway lines were destroyed. Attacks
on oil refineries and chemical plants have had serious environmental
effects on cities, towns and villages in the Federal Republic of Yugo-
slavia. The use of weapons containing depleted uranium is having
far-reaching consequences for human life. The above-mentioned acts
are deliberately creating conditions calculated at the physical destruc-
tion of an ethnic group, in whole or in part. The Government of the
Federal Republic of Germany is taking part in the training, arming,
financing, equipping and supplying the so-called ‘Kosovo Liberation
Army’”;
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 424

and whereas it further states that the said claims are based on the follow-
ing legal grounds:

“The above acts of the Government of the Federal Republic of
Germany represent a gross violation of the obligation not to use
force against another State. By financing, arming, training and equip-
ping the so-called ‘Kosovo Liberation Army’, support is given to ter-
rorist groups and the secessionist movement in the territory of the
Federal Republic of Yugoslavia in breach of the obligation not to
intervene in the internal affairs of another State. In addition, the
provisions of the Geneva Convention of 1949 and of the Additional
Protocol No. | of 1977 on the protection of civilians and civilian
objects in time of war have been violated. The obligation to protect
the environment has also been breached. The destruction of bridges
on the Danube is in contravention of the provisions of Article | of
the 1948 Convention on free navigation on the Danube. The provi-
sions of the International Covenant on Civil and Political Rights
and of the International Covenant on Economic, Social and Cul-
tural Rights of 1966 have also been breached. Furthermore, the obli-
gation contained in the Convention on the Prevention and Punish-
ment of the Crime of Genocide not to impose deliberately on a
national group conditions of life calculated to bring about the physi-
cal destruction of the group has been breached. Furthermore, the
activities in which the Federal Republic of Germany is taking part
are contrary to Article 53, paragraph 1, of the Charter of the United
Nations”;

4. Whereas the claims of Yugoslavia are formulated as follows in the
Application:

“The Government of the Federal Republic of Yugoslavia requests
the International Court of Justice to adjudge and declare:

— by taking part in the bombing of the territory of the Federal
Republic of Yugoslavia, the Federal Republic of Germany has
acted against the Federal Republic of Yugoslavia in breach of its
obligation not to use force against another State;

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

— by taking part in attacks on civilian targets, the Federal Repub-
lic of Germany has acted against the Federal Republic of Yugo-
slavia in breach of its obligation to spare the civilian population,
civilians and civilian objects;
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 425

by taking part in destroying or damaging monasteries, monu-
ments of culture, the Federal Republic of Germany has acted
against the Federal Republic of Yugoslavia in breach of its obli-
gation not to commit any act of hostility directed against histori-
cal monuments, works of art or places of worship which consti-
tute cultural or spiritual heritage of people;

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

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

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

by taking part in killing civilians, destroying enterprises, commu-
nications, health and cultural institutions, the Federal Republic
of Germany has acted against the Federal Republic of Yugosla-
via in breach of its obligation to respect the right to life, the right
to work, the right to information, the right to health care as well
as other basic human rights;

by taking part in destroying bridges on international rivers, the
Federal Republic of Germany has acted against the Federal
Republic of Yugoslavia in breach of its obligation to respect
freedom of navigation on international rivers;

by taking part in activities listed above, and in particular by
causing enormous environmental damage and by using depleted
uranium, the Federal Republic of Germany has acted against the
Federal Republic of Yugoslavia in breach of its obligation not to
deliberately inflict on a national group conditions of life calcu-
lated to bring about its physical destruction, in whole or in part;

the Federal Republic of Germany is responsible for the violation
of the above international obligations;

the Federal Republic of Germany is obliged to stop immediately
the violation of the above obligations vis-a-vis the Federal Repu-
blic of Yugoslavia;

the Federal Republic of Germany is obliged to provide compen-

7
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 426

sation for the damage done to the Federal Republic of Yugosla-
via and to its citizens and juridical persons”;

and whereas, at the end of its Application, Yugoslavia reserves the right
to amend and supplement it;

5. Whereas on 29 April 1999, immediately after filing its Application,
Yugoslavia also submitted a request for the indication of provisional
measures pursuant to Article 73 of the Rules of Court; and whereas that
request was accompanied by a volume of photographic annexes pro-
duced as “evidence”:

6. Whereas, in support of its request for the indication of provisional
measures, Yugoslavia contends inter alia that, since the onset of the
bombing of its territory, and as a result thereof, about 1,000 civilians,
including 19 children, have been killed and more than 4,500 have sus-
tained serious injuries; that the lives of three million children are endan-
gered; that hundreds of thousands of citizens have been exposed to poi-
sonous gases; that about one million citizens are short of water supply;
that about 500,000 workers have become jobless; that two million citi-
zens have no means of livelihood and are unable to ensure minimum
means of sustenance; and that the road and railway network has suffered
extensive destruction; whereas, in its request for the indication of provi-
sional measures, Yugoslavia also lists the targets alleged to have come
under attack in the air strikes and describes in detail the damage alleged
to have been inflicted upon them (bridges, railway lines and stations,
roads and means of transport, airports, industry and trade, refineries and
warehouses storing liquid raw materials and chemicals, agriculture, hos-
pitals and health care centres, schools, public buildings and housing
facilities, infrastructure, telecommunications, cultural-historical monu-
ments and religious shrines); and whereas Yugoslavia concludes from
this that:

“The acts described above caused death, physical and mental
harm to the population of the Federal Republic of Yugoslavia; huge
devastation; heavy pollution of the environment, so that the Yugo-
slav population is deliberately imposed conditions of life calculated
to bring about physical destruction of the group, in whole or in
part”;

7. Whereas, at the end of its request for the indication of provisional
measures, Yugoslavia states that

“If the proposed measure were not to be adopted, there will be
new losses of human life, further physical and mental harm inflicted
on the population of the FR of Yugoslavia, further destruction of
civilian targets, heavy environmental pollution and further physical
destruction of the people of Yugoslavia”:
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 427

and whereas, while reserving the right to amend and supplement its
request, Yugoslavia requests the Court to indicate the following measure:

“The Federal Republic of Germany shall cease immediately its
acts of use of force and shall refrain from any act of threat or use of
force against the Federal Republic of Yugoslavia”;

8. Whereas the request for the indication of provisional measures was
accompanied by a letter from the Agent of Yugoslavia, addressed to the
President and Members of the Court, which read as follows:

“T have the honour to bring to the attention of the Court the latest
bombing of the central area of the town of Surdulica on 27 April
1999 at noon resulting in losses of lives of civilians, most of whom
were children and women, and to remind of killings of peoples in
Kursumlija, Aleksinac and Cuprija, as well as bombing of a refugee
convoy and the Radio and Television of Serbia, just to mention
some of the well-known atrocities. Therefore, I would like to caution
the Court that there is a highest probability of further civilian and
military casualties.

Considering the power conferred upon the Court by Article 75,
paragraph 1, of the Rules of Court and having in mind the greatest
urgency caused by the circumstances described in the Requests for
provisional measure of protection I kindly ask the Court to decide
on the submitted Requests proprio motu or to fix a date for a hearing
at earliest possible time”;

9, Whereas on 29 April 1999, the day on which the Application and
the request for the indication of provisional measures were filed in the
Registry, the Registrar sent to the German Government signed copies of
the Application and of the request, in accordance with Article 38, para-
graph 4, and Article 73, paragraph 2, of the Rules of Court; and whereas
he also sent to that Government copies of the documents accompanying
the Application and the request for the indication of provisional meas-
ures;

10. Whereas on 29 April 1999 the Registrar informed the Parties that
the Court had decided, pursuant to Article 74, paragraph 3, of the Rules
of Court, to hold hearings on 10 and 11 May 1999, where they would be
able to present their observations on the request for the indication of pro-
visional measures ;

11. Whereas, pending the notification under Article 40, paragraph 3,
of the Statute and Article 42 of the Rules of Court, by transmittal of the
printed bilingual text of the Application to the Members of the United
Nations and other States entitled to appear before the Court, the Regis-
trar on 29 April 1999 informed those States of the filing of the Applica-
tion and of its subject-matter, and of the filing of the request for the
indication of provisional measures;
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 428

12. Whereas, since the Court includes upon the bench no judge of
Yugoslav nationality, the Yugoslav Government has availed itself of the
provisions of Article 31 of the Statute of the Court to choose Mr.
Milenko Kreéa to sit as judge ad hoc in the case; and whereas no objec-
tion to that choice was raised within the time-limit fixed for the purpose
pursuant to Article 35, paragraph 3, of the Rules of Court;

13. Whereas, at the public hearings held between 10 and 12 May 1999,
oral observations on the request for the indication of provisional meas-
ures were presented by the following:

On behalf of Yugoslavia:

Mr. Rodoljub Etinski, Agent,
Mr. Jan Brownlie,
Mr. Paul J. I. M. de Waart,
Mr. Eric Suy,
Mr. Miodrag Mitic,
Mr. Olivier Corten;
On behalf of Germany:
Mr. Gerhard Westdickenberg, Agent,
Mr. Reinhard Hilger, Co-Agent;

14, Whereas, in this phase of the proceedings, the Parties presented the
following submissions:

On behalf of Yugoslavia:

“(T]he Court [is asked] to indicate the following provisional meas-
ure:

[T]he Federal Republic of Germany . . . shall cease immediately
the acts of use of force and shall refrain from any act of threat or use
of force against the Federal Republic of Yugoslavia”:

On behalf of Germany:

“That the Court decline to indicate the provisional measures
requested by the Federal Republic of Yugoslavia”;

x * x
15. Whereas the Court is deeply concerned with the human tragedy,
the loss of life, and the enormous suffering in Kosovo which form the
background of the present dispute, and with the continuing loss of life
and human suffering in all parts of Yugoslavia:

16. Whereas the Court is profoundly concerned with the use of force
in Yugoslavia; whereas under the present circumstances such use raises
very serious issues of international law;

10
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 429

17. Whereas the Court is mindful of the purposes and principles of the
United Nations Charter and of its own responsibilities in the mainte-
nance of peace and security under the Charter and the Statute of the
Court;

18. Whereas the Court deems it necessary to emphasize that all parties
appearing before it must act in conformity with their obligations under
the United Nations Charter and other rules of international law, includ-
ing humanitarian law;

%
* *

19. Whereas the Court, under its Statute, does not automatically have
jurisdiction over legal disputes between States parties to that Statute or
between other States to whom access to the Court has been granted;
whereas the Court has repeatedly stated “that one of the fundamental
principles of its Statute is that it cannot decide a dispute between States
without the consent of those States to its jurisdiction” (East Timor ( Por-
tugal v. Australia), Judgment, I.C.J. Reports 1995, p. 101, para. 26); and
whereas the Court can therefore exercise Jurisdiction only between States
parties to a dispute who not only have access to the Court but also have
accepted the jurisdiction of the Court, either in general form or for the
individual dispute concerned;

20. Whereas on a request for provisional measures the Court need not,
before deciding whether or not to indicate them, finally satisfy itself that
it has jurisdiction on the merits of the case, yet it ought not to indicate
such measures unless the provisions invoked by the applicant appear,
prima facie, to afford a basis on which the jurisdiction of the Court might
be established;

*k  *

21. Whereas in its Application Yugoslavia claims in the first place to
found the jurisdiction of the Court on Article IX of the Genocide Con-
vention, which provides:

“Disputes between the Contracting Parties relating to the interpre-
tation, application or fulfilment of the present Convention, including
those relating to the responsibility of a State for genocide 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 whereas in its Application Yugoslavia states that the subject of the
dispute concerns inter alia “acts of the Federal Republic of Germany by
which it has violated its international obligation . . . not to deliberately
inflict conditions of life calculated to cause the physical destruction of a

11
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 430

national group”; whereas, in describing the facts on which the Applica-
tion is based, Yugoslavia states: “The above-mentioned acts are deliber-
ately creating conditions calculated at the physical destruction of an
ethnic group, in whole or in part”; whereas, in its statement of the legal
grounds on which the Application is based, Yugoslavia contends that
“the obligation . . . not to impose deliberately on a national group con-
ditions of life calculated to bring about the physical destruction of the
group has been breached”; and whereas one of the claims on the merits
set out in the Application is formulated as follows:

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

22. Whereas Yugoslavia contends moreover that the sustained and
intensive bombing of the whole of its territory, including the most heavily
populated areas, constitutes “a serious violation of Article II of the
Genocide Convention”; whereas it argues that “the pollution of soil, air
and water, destroying the economy of the country, contaminating the
environment with depleted uranium, inflicts conditions of life on the
Yugoslav nation calculated to bring about its physical destruction”;
whereas it asserts that it is the Yugoslav nation as a whole and as such
that is targeted; and whereas it stresses that the use of certain weapons
whose long-term hazards to health and the environment are already
known, and the destruction of the largest part of the country’s power
supply system, with catastrophic consequences of which the Respondent
must be aware, “impl[y] the intent to destroy, in whole or in part, the
Yugoslav national group as such;

23. Whereas for its part Germany contends that Article [X of the
Genocide Convention does not constitute a basis of jurisdiction in this
case, because the subject-matter of the claims brought by Yugoslavia
does not relate to “the interpretation, application or fulfilment of the
Convention, including disputes relating to the responsibility of a State for
genocide or for any of the other acts enumerated in Article HI of the
Convention”; and whereas Germany also maintains that even if true, the
breaches of international obligations alleged by Yugoslavia in its Appli-
cation do not enter the definition of Article II of the Genocide Conven-
tion;

24. Whereas it is not disputed that both Yugoslavia and Germany are
parties to the Genocide Convention without reservation; and whereas
Article 1X of the Convention accordingly appears to constitute a basis on
which the jurisdiction of the Court might be founded to the extent that
the subject-matter of the dispute relates to “the interpretation, applica-

12
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 431

tion or fulfilment” of the Convention, including disputes “relating to the
responsibility of a State for genocide or for any of the other acts enumer-
ated in article III” of the said Convention;

25. Whereas, in order to determine, even prima facie, whether a dis-
pute within the meaning of Article IX of the Genocide Convention exists,
the Court cannot limit itself to noting that one of the Parties maintains
that the Convention applies, while the other denies it; and whereas in the
present case the Court must ascertain whether the breaches of the Con-
vention alleged by Yugoslavia are capable of falling within the provisions
of that instrument and whether, as a consequence, the dispute is one
which the Court has jurisdiction ratione materiae to entertain pursuant
to Article 1X (cf. Oil Platforms (Islamic Republic of Iran v. United States
of America), Preliminary Objection, Judgment, 1 C.J. Reports 1996 (11),
p. 810, para. 16);

26. Whereas the definition of genocide set out in Article II of the
Genocide Convention reads as follows:

“In the present Convention, genocide means any of the following
acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the
group;

(c) Deliberately inflicting on the group conditions of life calculated
to bring about its physical] destruction in whole or in part;

(d} \mposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group”;

27. Whereas it appears to the Court, from this definition, “that [the]
essential characteristic [of genocide] is the intended destruction of ‘a
national, ethnical, racial or religious group’” (Application of the Conven-
tion on the Prevention and Punishment of the Crime of Genocide, Provi-
sional Measures, Order of 13 September 1993, LCJ. Reports 1993,
p. 345, para. 42); whereas the threat or use of force against a State can-
not in itself constitute an act of genocide within the meaning of Article II
of the Genocide Convention; and whereas, in the opinion of the Court, it
does not appear at the present stage of the proceedings that the bombings
which form the subject of the Yugoslav Application “indeed entail the
element of intent, towards a group as such, required by the provision
quoted above” (Legality of the Threat or Use of Nuclear Weapons, Advi-
sory Opinion, LC.J. Reports 1996 (1), p. 240, para. 26):

28. Whereas the Court is therefore not in a position to find, at this
stage of the proceedings, that the acts imputed by Yugoslavia to the
Respondent are capable of coming within the provisions of the Genocide
Convention; and whereas Article IX of the Convention, invoked by

13
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 432

Yugoslavia, cannot accordingly constitute a basis on which the jurisdic-
tion of the Court could prima facie be founded in this case;

ex

29. Whereas in its Application Yugoslavia claims, in the second place,
to found the jurisdiction of the Court on Article 38, paragraph 5, of the
Rules of Court, which reads as follows:

“5. When the applicant State proposes to found the jurisdiction of
the Court upon a consent thereto yet to be given or manifested by
the State against which such application is made, the application
shall be transmitted to that State. It shall not however be entered in
the General List, nor any action be taken in the proceedings, unless
and until the State against which such application is made consents
to the Court’s jurisdiction for the purposes of the case”;

30. Whereas Germany contends that Article 38, paragraph 5, of the
Rules of Court is without effect in this case, because Germany does not
accept Yugoslavia’s proposal to found the jurisdiction of the Court upon
a consent to be given in accordance with that Article;

31. Whereas it is quite clear that, in the absence of consent by Ger-
many, given pursuant to Article 38, paragraph 5, of the Rules, the Court
cannot exercise jurisdiction in the present case, even prima facie;

xO

32. Whereas it follows from what has been said above that the Court
lacks prima facie jurisdiction to entertain Yugoslavia’s Application; and
whereas it cannot therefore indicate any provisional measure whatsoever
in order to protect the rights invoked therein;

33. Whereas, however, the findings reached by the Court in the present
proceedings in no way prejudge the question of the jurisdiction of the
Court to deal with the merits of the case under Article IX of the Geno-
cide Convention, or any questions relating to the admissibility of the
Application, or relating to the merits themselves; and whereas they leave
unaffected the right of the Governments of Yugoslavia and Germany to
submit arguments in respect of those questions;

x * x

34. Whereas there is a fundamental distinction between the question
of the acceptance by a State of the Court’s jurisdiction and the compat-
ibility of particular acts with international law; the former requires con-
sent; the latter question can only be reached when the Court deals with
the merits after having established its jurisdiction and having heard full
legal arguments by both parties;

14
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 433

35. Whereas, whether or not States accept the jurisdiction of the
Court, they remain in any event responsible for acts attributable to them
that violate international law, including humanitarian law; whereas any
disputes relating to the legality of such acts are required to be resolved
by peaceful means, the choice of which, pursuant to Article 33 of the
Charter, is left to the parties;

36. Whereas in this context the parties should take care not to aggra-
vate or extend the dispute;

37. Whereas, when such a dispute gives rise to a threat to the peace,
breach of the peace or act of aggression, the Security Council has special
responsibilities under Chapter VII of the Charter;

38. For these reasons,
THE Court,
(1) By twelve votes to three;

Rejects the request for the indication of provisional measures submit-
ted by the Federal Republic of Yugoslavia on 29 April 1999;
IN FAVOUR: Vice-President Weeramantry, Acting President: President
Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh,
Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans;

AGAINST: Judges Shi, Vereshchetin; Judge ad hoc Kre¢a;
(2) By fourteen votes to one;

Reserves the subsequent procedure for further decision.

IN FAVOUR: Vice-President Weeramantry, Acting President: President
Schwebel; Judges: Bedjaoui, Guillaume, Ranjeva, Herezegh, Shi,
Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooij-
mans; Judge ad hoc Kreéa;

AGAINST: Judge Oda.

Done in French and in English, the French text being authoritative, ai
the Peace Palace, The Hague, this second day of June, one thousand nine
hundred and ninety-nine, in three copies, one of which will be placed in
the archives of the Court and the others transmitted to the Government
of the Federal Republic of Yugoslavia and the Government of the Fed-
eral Republic of Germany. respectively.

(Signed) Christopher G. WEERAMANTRY,
Vice-President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 434
Vice-President WEERAMANTRY, Acting President, and Judges Sui,

Koroma and VERESHCHETIN append declarations to the Order of the
Court.

Judges Opa and PARRA-ARANGUREN append separate opinions to the
Order of the Court.

Judge ad hoc KRECA appends a dissenting opinion to the Order of the
Court.

(Initialled) C.G.W.
(Initialled) E.V.O.

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