INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. CANADA)

ORDER OF 21 FEBRUARY 2001

2001

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

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

(YOUGOSLAVIE c. CANADA)

ORDONNANCE DU 21 FÉVRIER 2001
Official citation:

Legality of Use of Force (Yugoslavia v. Canada),
Order of 21 February 2001, I C.J. Reports 2001, p. 16

Mode officiel de citation:

Licéité de l'emploi de la force (Yougoslavie c. Canada),
ordonnance du 21 février 2001, C.LJ. Recueil 2001, p. 16

Sales number
ISSN 0074-4441 N° de vente: 8 1 0

ISBN 92-1-070910-1

16

COUR INTERNATIONALE DE JUSTICE

ANNÉE 2001

21 février 2001

AFFAIRE RELATIVE À LA LICÉITÉ
DE L'EMPLOI DE LA FORCE

(YOUGOSLAVIE c. CANADA)

ORDONNANCE

Présents: M. Sut, vice-président, faisant fonction de président en l’affaire;
M. GUILLAUME, président de la Cour; MM. ODA, BEDJAOUI,
RANJEVA, HERCZEGH, FLEISCHHAUER, KOROMA, VERESHCHETIN,
M HiGGiNs, MM. PARRA-ARANGUREN, KOOIMANS, REZEK,
AL-KHASAWNEH, BUERGENTHAL, juges; M. COUVREUR, gref-

fier.

La Cour internationale de Justice,
Ainsi composée,
Après délibéré en chambre du conseil,

Vu Particle 48 du Statut de la Cour et les articles 44 et 79 de son Règle-
ment, ;

Vu l’ordonnance du 30 juin 1999, par laquelle la Cour a fixé au 5 jan-
vier 2000 et au 5 juillet 2000 les dates d’expiration des délais pour le
dépôt, respectivement, d’un mémoire de la République fédérale de You-
goslavie et d’un contre-mémoire du Canada,

Vu les exceptions préliminaires d’incompétence et d’irrecevabilité
déposées par le Canada le 5 juillet 2000,

Vu l'ordonnance du 8 septembre 2000, par laquelle le vice-président de
la Cour, faisant fonction de président en l’affaire, a fixé au 5 avril 2001 la
date d’expiration du délai dans lequel la République fédérale de Yougo-

4

2001
21 février
Rôle général
n° 106


                                                                                833

                           DECLARATION OF JUDGE AD HOC GUILLAUME

                 [Translation]

                   I. Case concerning Certain Activities Carried Out by Nicaragua in the Border
                       Area — New submissions presented by Costa Rica at the close of the hearings
                       seeking recognition of its sovereignty over the disputed territory —
                       Submissions belated and hence inadmissible — Nicaragua’s compliance
                       with the Order of 8 March 2011 — Freedom of navigation on the San
                       Juan River — Régime applicable to transboundary harm caused by river
                       dredging.
                  II.	Case concerning Construction of a Road in Costa Rica along the San Juan
                       River — Proven harm to Nicaragua as a result of construction of the road,
                       but no evidence that such harm is significant.

                    1. I agree with a number of the Court’s findings. I should, however,
                 like to present here certain comments, and to explain why I do not agree
                 with some of the points in the Judgment. I will do so by taking each of
                 the joined cases in turn.

                      I. Case concerning Certain Activities Carried Out by Nicaragua in
                                 the Border Area (Costa Rica v. Nicaragua)

                    2. This first case, entitled case concerning Certain Activities Carried
                 Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), initially
                 related only to those activities, and Costa Rica’s pleadings were directed
                 exclusively to seeking a finding that Nicaragua had been in breach of
                 certain of its obligations, in particular by failing to respect Costa Rica’s
                 sovereignty over the northern part of Isla Portillos (see in particular para-
                 graphs 1 and 2 of the Application instituting proceedings). In its final
                 submissions, Costa Rica additionally asked the Court to find that it has
                 sovereignty over the disputed territory (paragraph 2 (a) of its final sub-
                 missions).
                    3. In its decision the Court found :
                 (a) that Costa Rica has sovereignty over the “disputed territory”, as
                       defined by the Court in paragraphs 69 and 70 of its Judgment ;
                 (b) that, by excavating three caños and establishing a military presence
                       on Costa Rica’s territory, Nicaragua had violated the latter’s
                       sovereignty.
                    4. I voted against the first of these findings and in favour of the second.
                 I believe that it would be helpful if I explained my reasons for those votes.
                 In order to do so, I will recall the applicable law and the local geographi-
                 cal situation, before explaining my reasoning.

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                                              1. Applicable Law
                    5. Article II of the Treaty of Limits between Costa Rica and Nicara-
                 gua of 15 April 1858 provides that “[t]he dividing line between the two
                 Republics, starting from the Northern Sea, shall begin at the end of Punta
                 de Castilla, at the mouth of the San Juan de Nicaragua River, and shall
                 run along the right bank of the said river up to a point three English miles
                 distant from Castillo Viejo”. Article IV provides that the Bay of San Juan
                 del Norte shall be “common to both Republics”. Article VI further pro-
                 vides that: “[t]he Republic of Nicaragua shall have exclusively the domin-
                 ion and sovereign jurisdiction over the waters of the San Juan River from
                 its origin in the Lake to its mouth in the Atlantic”.
                    6. Those provisions were interpreted as follows in point 1 of the third
                 paragraph of President Cleveland’s Award of 22 March 1888 :

                      “the boundary line between the Republics of Costa Rica and Nicaragua,
                      on the Atlantic side, begins at the extremity of Punta de Castilla at the
                      mouth of the San Juan de Nicaragua River, as they both existed on the
                      15th day of April 1858. The ownership of any accretion to said Punta
                      de Castilla is to be governed by the laws applicable to that subject.”
                   7. Those texts were in turn interpreted by General Alexander, who, in
                 his first Arbitral Award of 30 September 1897, noted the following :
                      (a) “Costa Rica was to have as a boundary line the right . . . bank of
                          the river” ;
                      (b) “this division implied also, of course, the ownership by Nicaragua
                          of all islands in the river and of the left . . . bank and headland” ;

                      (c) “there is but one starting‑point possible for such a line, and that
                          is at the right headland of the bay”, that is to say “the extremity
                          of Punta de Castill[a], at the mouth of the river”, as it was in 1858.
                  However, given that, between 1858 and 1897, the extremity of the head-
                 land had become covered by the sea, General Alexander took as the
                 starting‑point for the delimitation that same headland as it was at the
                  time of his Award. He accordingly decided as follows :
                      “the initial line of the boundary to run as follows :
                         Its direction shall be due northeast and southwest, across the bank
                      of sand, from the Caribbean Sea into the waters of Harbor Head
                      Lagoon. It shall pass, at its nearest point, 300 feet on the northwest
                      side from the small hut now standing in that vicinity. On reaching the
                      waters of Harbor Head Lagoon, the boundary line shall turn to the
                      left, or southeastward, and shall follow the water’s edge around the
                      harbor until it reaches the river proper by the first channel met. Up
                      this channel, and up the river proper, the line shall continue to ascend
                      as directed in the treaty.”

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                    8. In his second Award of 20 December 1897, General Alexander
                 further noted that
                      “the San Juan River runs through a flat and sandy delta in the lower
                      portion of its course and . . . it is obviously possible that its banks
                      will not only gradually expand or contract but that there will be
                      wholesale changes in its channels . . . Today’s boundary line must
                      necessarily be affected in future by all these gradual or sudden changes.
                      But the impact in each case can only be determined by the circum-
                      stances of the case itself, on a case‑by‑case basis in accordance with
                      such principles of international law as may be applicable.”

                 He added that “[t]he proposed measurement and demarcation of the
                 boundary line will not have any effect on the application of those princi-
                 ples”, concluding that “[t]he only effect obtained from measurement and
                 demarcation is that the nature and extent of future changes may be easier
                 to determine”.
                    9. It was in these circumstances that the demarcation was effected, and
                 that its results were recorded on 2 March 1898 (Alexander Proceedings
                 Acta X).
                    10. In his third Award of 22 March 1898, General Alexander further
                 stated that “[b]orders are intended to maintain peace, thus avoiding dis-
                 putes over jurisdiction. In order to achieve that goal, the border should
                 be as stable as possible.” He accordingly concluded that “[f]luctuations in
                 the water level will not alter a position of the boundary line, but changes
                 in the banks or channels of the river will alter it, as may be determined by
                 the rules of international law applicable on a case‑by‑case basis”.

                    11. It should be noted that these various awards are not totally consis-
                 tent. Thus the Cleveland Award states that the boundary begins at the
                 extremity of Punta de Castilla at the mouth of the river, as those features
                 were on 15 April 1858. That award accordingly appears to freeze the situ-
                 ation as it was at a precise date. On the other hand, the second and third
                 Alexander Awards do not preclude the possibility of changes in the
                 boundary in the future.

                                   2. The Current Geographical Situation
                    12. As to be expected, the geographical situation has radically changed
                 since 1897 as a result of erosion to the east of the delta and accretion to
                 the west.
                 (a) The headland of Punta de Castilla has been reduced still further, and
                      the initial marker placed there in 1897 is today under the sea.
                 (b) Harbor Head Lagoon has essentially retained its former shape.

                 (c) The Parties disagree regarding the sandbank which partially closed
                     the lagoon in 1897. Costa Rica claims that this feature still exists only

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                      in its eastern part, and that its western part has disappeared. It further
                      contends that the channel referred to in the Alexander Awards has
                      also disappeared (CR 2015/14, p. 31). Nicaragua maintains that this
                      feature still exists and that it remains connected both to San Juan
                      Island and to Punta de Castilla (CR 2015/15, p. 24).

                 (d) The Island of San Juan has, it appears, been reduced in size, but is
                     still shown on the most recent maps.
                 (e) The main channel of the San Juan River has remained comparable
                     to what it was before (with some slight changes). It is, however, diffi-
                     cult to determine at the current time where its actual mouth lies.
                 (f) The Bay of San Juan del Norte is now completely silted up. It has
                     disappeared, as have the Port of Greytown and the lighthouse and
                     facilities constructed by Vanderbilt on San Juan Island.

                                        3. The Judgment of the Court
                    13. Nicaragua recalls that, according to General Alexander’s first
                 Arbitral Award, from the headland of Punta de Castilla the boundary
                 “shall follow the water’s edge around the harbor [at Harbor Head] until
                 it reaches the river proper by the first channel met”. It will then continue
                 “up this channel and up the river proper”. Nicaragua claims that today
                 the first channel met coming from the east is the caño which it dredged,
                 and that the boundary runs along that channel. It accordingly concludes
                 that the activities carried out by it on that caño and a little further north
                 were conducted on Nicaraguan territory and were lawful. Costa Rica
                 denies this.
                    14. The Court has concluded that “the right bank of the caño which
                 Nicaragua dredged in 2010 is not part of the boundary between Costa
                 Rica and Nicaragua” (Judgment, para. 92). I entirely agree with this, and
                 I accordingly consider, like the Court, that in dredging that caño and then
                 excavating two others, and in establishing a military presence in the area,
                 Nicaragua violated Costa Rica’s territorial sovereignty.
                    15. On the other hand, in my view the Court was not entitled to rule
                 on the belated submissions by Costa Rica in which it asked the Court to
                 recognize its sovereignty over the disputed territory, since the latter was
                 not in a position to take such a decision in light of the material in the case
                 file.
                    16. Article 40, paragraph 1, of the Statute provides that the subject of
                 the dispute must be indicated in the application, and this is reiterated in
                 Article 38, paragraph 1, of the Rules. The Court has deemed those provi-
                 sions “essential from the point of view of legal security and the good
                 administration of justice” (Ahmadou Sadio Diallo (Republic of Guinea v.
                 Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports
                 2010 (II), p. 656, para. 38, citing Certain Phosphate Lands in Nauru
                 (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports

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                 1992, p. 267, para. 69). The subject of a dispute is thus defined by the
                 claims presented in the application. Additional claims are not admissible
                 unless they fall within the scope of that subject ; if not, they must be dis-
                 missed for lateness. The only exception to that rule is if the new claims
                 were implicit in the application, or arose directly out of the question
                 which is the subject‑matter of the application (Ahmadou Sadio Diallo,
                 op. cit., p. 657, para. 41, citing those two criteria as identified by the
                 Court in its preliminary objections Judgment in the case concerning Cer‑
                 tain Phosphate Lands in Nauru (Nauru v. Australia), op. cit., p. 266,
                 para. 67). However, in the present case, the Application concerned certain
                 activities carried out by Nicaragua in the border area, and its subject was
                 not the delimitation of the Parties’ territory. Moreover, Costa Rica’s new
                 claims were not implicit in the Application ; nor did they arise directly out
                 of the question that was the latter’s subject‑matter. They transformed a
                 dispute over State responsibility into a territorial dispute.

                   17. Furthermore, it makes no difference that Nicaragua did not object
                 to Costa Rica’s new submissions, and that one of its counsel even admit-
                 ted that both Parties were asking the Court to rule on the course of the
                 boundary and the resultant territorial sovereignty (CR 2015/15, p. 58). In
                 so doing, Nicaragua did indeed accept the Court’s jurisdiction to rule on
                 Costa Rica’s new submissions. But jurisdiction must not be confused with
                 admissibility. Even if those new submissions fell within the Court’s juris-
                 diction under the forum prorogatum principle, they still had to comply
                 with the procedural rules set out in the Statute and the Rules of Court. It
                 was for the Court to ask itself proprio motu whether Costa Rica’s new
                 submissions were admissible 1.

                   18. This was particularly necessary here, since the Court did not
                 have before it all of the necessary material to enable it to give a clear rul-
                 ing. Moreover, it carefully avoided doing so. Thus, while recognizing
                 Costa Rica’s sovereignty over the disputed territory, it refrained from
                 defining that territory’s limits. It is true that it defined that territory as
                 “the northern part of Isla Portillos . . . between the right bank of the dis-
                 puted caño, the right bank of the San Juan River up to its mouth at the
                 Caribbean Sea and the Harbor Head Lagoon” (Judgment, para. 69).
                 Thus, the Court agreed with the Parties in its recognition of Nicaragua’s
                 sovereignty over the lagoon and over the sandbank marking the latter’s
                 margin. The Court further found that Costa Rica had sovereignty over
                 the disputed territory. However, it also noted that the Parties had
                 expressed differing views on the location of the mouth of the San Juan
                 River where it flows into the Caribbean Sea, and did not address the
                 question of its precise location. It accordingly decided to refrain from rul-
                 ing on that point (ibid., para. 70). It adopted the same reasoning for the

                    1 See to this effect, R. Kolb, La Cour internationale de Justice, Paris, Pedone, 2013,

                 p. 256.

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                 stretch of the Caribbean coast lying between Harbor Head Lagoon and
                 the mouth of the San Juan (Judgment, para. 70).
                    19. I can understand the Court’s scruples on these two latter points.
                 The case file is silent on the first, and incomplete on the second. I note in
                 particular that Professor Thorne, Costa Rica’s expert, does not address
                 this second question in his report. On the other hand, Professor Kondolf,
                 Nicaragua’s expert, states that “[t]he lagoon appears to have a hydrologic
                 connection to Greytown Harbor to the west, via a channel behind the
                 barrier spit” (App. 1, Sec. 2.7, of Nicaragua’s Counter‑Memorial, Vol. I).
                 Furthermore, that channel appears on some of the recent photos. Finally,
                 it is shown on the most reliable of the maps produced by Costa Rica. I
                 would therefore tend to think that Nicaragua’s description of the area is
                 closer to the reality than that claimed by Costa Rica. The Court’s silence
                 nonetheless remains understandable.

                    20. The Court thus took it upon itself to define the disputed territory,
                 and then to decide which State had sovereignty over that territory, with-
                 out completely fixing its boundaries. However, according to the Court’s
                 jurisprudence, “‘to define’ a territory is to define its frontiers” (Territorial
                 Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994,
                 p. 26, para. 52). In acting as it did, the Court ignored that principle, just
                 as it ignored its jurisprudence on the admissibility of new claims. It would
                 have sufficed in this case to find that Nicaragua’s activities had taken
                 place on Costa Rican territory, without ruling on these additional claims.

                    21. I also agreed with the Judgment’s finding that, “by excavating two
                 caños in 2013 and establishing a military presence in the disputed terri-
                 tory, Nicaragua has breached the obligations incumbent upon it under
                 the Order indicating provisional measures issued by the Court on
                 8 March 2011” (point 3 of the operative clause). I would add that, con-
                 trary to what Costa Rica claims, Nicaragua did comply with the Order’s
                 other provisions, as the Court implicitly recognizes.

                   22. Point 4 of the operative clause concerns certain incidents cited by
                 Costa Rica. It calls for certain additional comments on my part. The two
                 incidents mentioned in paragraph 135 of the Judgment undoubtedly
                 involved a violation by Nicaragua of Costa Rica’s rights of navigation
                 under the 1858 Treaty, as interpreted by the Court in favour of inhabit-
                 ants of the right bank of the river. On the other hand, the three other
                 instances mentioned by Costa Rica, and not accepted by the Court, did
                 not involve such a violation (Judgment, para. 136). The first of them con-
                 cerns a teacher who was allegedly prevented from reaching his school by
                 boat in the absence of a letter of authorization from Nicaragua. However,
                 the only evidence was from press articles, and the incident was not proved.
                 The same applies to another incident involving two Costa Rican resi-
                 dents, who, according to a statement by a Costa Rican police officer who
                 received the complaint, were made to pay a departure tax at a Nicara-

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                 guan army post. The last incident concerned journalists who were not
                 allowed to travel to Isla Portillos. However, they were not engaged in
                 commerce on the San Juan, nor were they inhabitants of the river’s right
                 bank ; thus their travel was not covered by the provisions of the
                 1858 Treaty as interpreted by the Court. In sum, the two proven incidents
                 are clearly regrettable, but one is bound to note that these were two iso-
                 lated incidents over a period of five years, from which no general conclu-
                 sions can be drawn regarding the overall conduct of the Nicaraguan
                 authorities.

                    23. Costa Rica further complained of the manner in which Nicaragua
                 was carrying out dredging works on the San Juan River. The Court
                 rejected Costa Rica’s submissions for reasons with which I am entirely in
                 agreement. In particular, it took the view that, in the absence of any
                 transboundary harm as a result of the dredging programme, it was unnec-
                 essary for it to determine the responsibility régime applicable in the mat-
                 ter (Judgment, para. 119). The Court thus refrained from deciding
                 whether or not the rules governing responsibility for this type of harm
                 under the 1858 Treaty had been modified as a result of developments in
                 international customary law.
                    24. In this regard I would recall that, according to point 6 of the third
                 paragraph of President Cleveland’s Arbitral Award of 22 March 1888 :

                         “The Republic of Costa Rica cannot prevent the Republic of Nic-
                      aragua from executing at her own expense and within her own terri-
                      tory such works of improvement, provided such works of improvement
                      do not result in the occupation or flooding or damage of Costa Rica
                      territory, or in the destruction or serious impairment of the navigation
                      of the said River or any of its branches at any point where Costa Rica
                      is entitled to navigate the same. The Republic of Costa Rica has the
                      right to demand indemnification for any places belonging to her on
                      the right bank of the River San Juan which may be occupied without
                      her consent, and for any lands on the same bank which may be
                      flooded or damaged in any other way in consequence of works of
                      improvement.”
                    25. It is clear from this passage that, to quote what the Court said in
                 its Judgment of 13 July 2009 :
                      “Nicaragua may execute [at its own expense] such works of improve-
                      ment [of navigation] as it deems suitable, provided that such works
                      do not seriously impair navigation on tributaries of the San Juan
                      belonging to Costa Rica” (Dispute regarding Navigational and Related
                      Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009,
                      p. 269, para. 155).
                   26. Furthermore, according to the Cleveland Award, works of
                 improvement conducted for purposes of navigation on the San Juan must

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                 be carried out without resulting in the occupation or flooding or damage
                 of Costa Rican territory. The Award further states that Costa Rica is
                 entitled to be indemnified on account of any such damage.

                   27. The Parties disagree on the interpretation of this latter provision.
                 Nicaragua maintains that, in the event of any damage as a result of
                 improvement works on the river, Costa Rica is not entitled to have those
                 works halted, but can only claim compensation for any damage suffered.
                 Costa Rica disagrees.
                   28. For my part, I observe that the first and the second sentences of
                 point 6 of the third paragraph of the Cleveland Award differ in scope.
                 Thus, Costa Rica’s right to indemnification is recognized in the second
                 sentence solely in the event of damage to its territory and not in the case
                 of serious impairment of navigation. Moreover, incidental damage to
                 Costa Rican territory as a result of works carried out on the San Juan
                 requires indemnification on account of the damage suffered. This, it seems
                 to me, is a case of transboundary harm covered by a régime of objective
                 responsibility (for a comparable case, see the Arbitral Awards of
                 16 April 1938 and 11 March 1941 in the Trail Smelter case (United
                 Nations, Reports of International Arbitral Awards (RIAA), Vol. 3,
                 pp. 1905-1982)). In my view that responsibility régime is still applicable.
                 The 1858 Treaty and the Cleveland Award give Nicaragua wide freedom
                 of action in relation to works on the San Juan River. The counterpart of
                 that freedom is an obligation to indemnify Costa Rica for damage caused
                 to its territory, irrespective of whether such damage is significant. This
                 special régime, which forms a single whole, remains applicable, and I see
                 no reason to restrict Costa Rica’s right to be compensated, any more than
                 Nicaragua’s right to act. The two rights are indissolubly linked.

                    29. Finally, I agree entirely with the Court’s rejection of all of Costa
                 Rica’s submissions regarding reparation for such damage as it may have
                 suffered, with the exception of material damage caused by Nicaragua’s
                 wrongful acts on Costa Rican territory, that is to say, any damage result-
                 ing from the construction of the caños. Such damage is plainly modest,
                 and it is to be hoped that the two States can succeed in evaluating it by
                 joint agreement.

                      II. Case concerning Construction of a Road in Costa Rica along
                                the San Juan River (Nicaragua v. Costa Rica)

                    30. As regards the second case, I agree with the Court’s decision that,
                 in constructing Route 1856, Costa Rica was in breach of its procedural
                 obligations by not carrying out a prior environmental impact study.
                 Nicaragua further contended that the construction of the road had had a
                 significant harmful impact on the San Juan River. The Court rejected
                 those claims. I agreed with that finding with a certain amount of hesita-

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                 tion, and would now like to provide some additional clarification in this
                 regard.
                    31. There is no doubt that this road, constructed in haste by a variety
                 of undertakings, without prior technical planning or proper supervision,
                 suffered from numerous defects, which to date have not been remedied,
                 or only remedied in part, and sometimes temporarily.
                    32. The Parties agree that the construction of the road resulted in an
                 increase in the sedimentary load of the San Juan River. They disagree on
                 the quantity of sediment involved.
                    According to Professor Kondolf, it amounts to 190,000 to 250,000 tonnes
                 per year (Judgment, para. 182). In the view of Professor Thorne, it
                 amounts, at most, to 75,000 tonnes per year (ibid., para. 183). The experts
                 further debated the proportion of those sediment totals deposited on the
                 bed of the river to those remaining suspended. The former, according to
                 the estimates, varies from 5 to 18 per cent.
                    On the other hand, both Parties consider that 90 per cent of the waters
                 of the San Juan flow into the sea via the Colorado River, and 10 per cent
                 via the Lower San Juan (ibid., para. 198). They further agree that 16 per cent
                 of the suspended sediments and 20 per cent of the coarse load are carried
                 by the San Juan, with the remainder being carried by the Colorado (ibid.).
                    On the basis of these figures, Nicaragua states that 22,192 tonnes of
                 sediment reach the Lower San Juan each year, including 7,600 tonnes of
                 coarse sediment (CR 2015/10, p. 13). Costa Rica contends that the latter
                 only amounts to some 750 to 1,500 tonnes per year (see, inter alia, the
                 report by Professor Thorne in the Appendix to Costa Rica’s Rejoinder,
                 Vol. I, para. 4.100).
                    33. On the other hand, the Parties agree that the sedimentary load of
                 the San Juan is already very high. Costa Rica estimates it at
                 12,678,000 tonnes per year, while Nicaragua’s expert mentions a figure of
                 13,700,000 tonnes (Judgment, para. 193). Thus, the average annual sedi-
                 mentary load attributable to the road is estimated at from 0.6 percent to
                 2 per cent of the total (ibid., paras. 186 and 194).
                    34. It therefore appears to me clearly established that the increase in
                 the river’s sedimentary load as a result of the construction of the road has
                 inevitably led to additional dredging works on the Lower San Juan, and
                 thus caused harm to Nicaragua.
                    35. Does that amount to significant transboundary harm ? That is open
                 to question, given the sedimentary load already carried by the San Juan.
                 Nicaragua indeed claims that the additional sedimentary load produced
                 by the construction of the road, although marginal, has created serious
                 obstacles to navigation over the first 3 km of the lower part of the river.
                 While not excluding such a possibility, I am bound to note that Nicara-
                 gua has provided no evidence of this, and that its submissions on this
                 point must accordingly be rejected.

                                                             (Signed) Gilbert Guillaume.

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383

IT.

IV.

VI.

VII.

24

SEPARATE OPINION OF JUDGE ODA

TABLE OF CONTENTS

Lack OF THE Court’s JURISDICTION UNDER ARTICLE 36, PARA-

GRAPH 2, OF THE STATUTE AND ARTICLE 38, PARAGRAPH 5, OF THE

RULES OF COURT

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

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

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

(4) The optional clause

LAcK OF THE COURT’S JURISDICTION UNDER THE 1930 CONVENTION
BETWEEN BELGIUM AND YUGOSLAVIA AND THE 1931 TREATY BETWEEN
THE NETHERLANDS AND YUGOSLAVIA

. LACK OF THE COURT'S JURISDICTION UNDER THE GENOCIDE CONVEN-

TION

(1) Preliminary observations

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

(3) General character of the Genocide Convention

(4) Concluding observations

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

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

Paragraphs
INTRODUCTION 1-2

. THE STATUS OF THE FEDERAL REPUBLIC OF YUGOSLAVIA — A PRELI-
MINARY ISSUE 3-4

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

I. INTRODUCTION

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

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

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

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

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

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

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

“the Federal Republic of Yugoslavia (Serbia and Montenegro) can-

25
385 LEGALITY OF USE OF FORCE (SEP. OP. ODA)

not continue automatically the membership of the former Socialist
Federal Republic of Yugoslavia in the United Nations”

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

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

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

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

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

III. LACK OF THE COURT'S JURISDICTION UNDER ARTICLE 36,
PARAGRAPH 2, OF THE STATUTE AND ARTICLE 38, PARAGRAPH 5,
OF THE RULES OF COURT

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

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

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

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

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

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

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

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

27
387 LEGALITY OF USE OF FORCE (SEP. OP. ODA)
(3) Article 36, Paragraph 2, of the Statute of the Court

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

8. The cases of Spain and the United Kingdom are different from the
other four cases. In its declaration of 29 October 1990, Spain expressly
excluded from the Court’s jurisdiction “disputes in regard to which the
other party or parties have accepted the compulsory jurisdiction of the
Court less than 12 months prior to the filing of the application bringing
the dispute before the Court” and the United Kingdom in its declaration
of 1 January 1969 similarly excluded certain disputes from the Court’s
jurisdiction:

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

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

9. Belgium, Canada, the Netherlands and Portugal have accepted the
compulsory jurisdiction of the Court in their respective declarations, depos-
ited by Belgium on 17 June 1958, by Canada on 10 May 1994, by the Neth-
erlands on 1 August 1956 and by Portugal on 19 December 1955. As no
reservation directly relevant to the present issues has been included in the
declarations of the four States mentioned above, it might be argued that the
exercise of the Court’s jurisdiction is justified under Article 36, paragraph 2,
of the Statute in the cases of the Applications addressed to those four
States. Literally interpreted, the declaration of the Federal Republic of
Yugoslavia (assuming that the Federal Republic of Yugoslavia is indeed a
party to the Statute of the Court and that the Federal Republic of Yugo-
slavia’s declaration was legitimately registered) may be claimed as being
valid in relation to other States which have made a similar declaration.
However, I hold the view that acceptance by the Federal Republic of Yugo-
slavia of the Court’s jurisdiction only a matter of days before it filed its
Applications with the Court in these cases is not an act done in good faith
and is contrary to the proper concept of acceptance of the compulsory juris-
diction of the Court under the “optional clause” in the Statute.

28
388 LEGALITY OF USE OF FORCE (SEP. OP. ODA)
(4) The Optional Clause

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. LACK OF THE CouRT’s JURISDICTION UNDER THE 1930 CONVENTION
BETWEEN BELGIUM AND YUGOSLAVIA AND THE 1931 TREATY BETWEEN THE
NETHERLANDS AND YUGOSLAVIA

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

31
391 LEGALITY OF USE OF FORCE (SEP. OP. ODA)

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

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

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

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

(1) Preliminary Observations

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

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

32
392 LEGALITY OF USE OF FORCE (SEP. OP. ODA)

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

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

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

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

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

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

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

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

33
393 LEGALITY OF USE OF FORCE (SEP. OP. ODA)

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

“If any dispute were to be unilaterally submitted to the Court by
one of the Contracting Parties to a treaty pursuant to the compro-
missory clause of that treaty, this would mean in essence that the
dispute had arisen because of (i) the alleged failure of another Con-
tracting Party to fulfil the obligations imposed by that treaty — a
failure for which it is responsible — and (ii) the infringement of the
rights bestowed upon the former State by that treaty due to that fail-
ure. The failure of the other State is itself a violation of the treaty
but such a violation alone cannot be interpreted as constituting a
dispute between the applicant State and the respondent State relat-
ing to that treaty unless it can be shown to have infringed such rights
of the former State as are protected thereby.” (Application of the
Convention on the Prevention and Punishment of the Crime of Geno-
cide, Preliminary Objections, Judgment, 1. C.J. Reports 1996 (11),
pp. 625-626.)

(3) General Character of the Genocide Convention

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

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

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

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

34
394

35

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

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

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

The failure of any Contracting Party ‘to prevent and to punish’
such a crime may only be rectified and remedied through (i) resort to
a competent organ of the United Nations (Art. VIII) or (ii) resort to
an international penal tribunal (Art. VI), but not by invoking the
responsibility of States in inter-State relations before the Interna-
tional Court of Justice. This constitutes a unique character of the
Convention which was produced in the post-war period in parallel
with the emergence of the concept of the protection of human rights
and humanity.

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

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

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

The construction of Article IX of the Genocide Convention is very
uncertain as it incorporates specific references to ‘[d]isputes . . . relat-
ing to . .. fulfilment of the Convention’ and to ‘disputes relating to
the responsibility of a State for genocide or [genocidal acts]’ — ref-
395

36

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

erences which can hardly be understood in any meaningful sense as
a compromissory clause.

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

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

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

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

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

(4) Concluding Observations

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

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

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

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

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

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

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

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

VIT. REMOVAL OF THE CASES FROM THE GENERAL LisT OF THE COURT
DUE TO THE LACK OF JURISDICTION

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

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

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

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

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

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

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

It is my firm belief that, for all the reasons given above concerning the
Court’s lack of jurisdiction under (1) Article 36, paragraph 2, of the Stat-
ute, (ii) the provisions of the instruments of 1930 and 1931 between
Yugoslavia and Belgium and the Netherlands, respectively, and (ili) the
provisions of the Genocide Convention, and due to my interpretation of
the Court’s finding concerning the lack of prima facie basis of jurisdiction
in the eight cases, as stated in the last sentence of paragraph 27 of this
opinion, the Applications in not only the two cases but in all ten cases
should be removed from the General List.

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

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

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United Nations has no role to play, will be resolved peacefully and in a

way that satisfies all humanitarian aspects raised by this case.

(Signed) Shigeru ODA.

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