COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

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

(YOUGOSLAVIE c. ÉTATS-UNIS D’AMERIQUE)

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. UNITED STATES OF AMERICA)

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. Etats-Unis d'Amérique},
mesures conservatoires, ordonnance du 2 juin 1999,
C.1.J. Recueil 1999, p. 916

Official citation:
Legality of Use of Force (Yugoslavia v. United States of America),
Provisional Measures, Order of 2 June 1999,
LCJ. Reports 1999, p. 916

N° de vente:
ISSN 0074-4441 Sales number 736
ISBN 92-1-070804-0

2 JUIN 1999

ORDONNANCE

LICEITE DE L’EMPLOI DE LA FORCE
(YOUGOSLAVIE c. ETATS-UNIS D’AMERIQUE)

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

LEGALITY OF USE OF FORCE
(YUGOSLAVIA v. UNITED STATES OF AMERICA)

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

2 JUNE 1999

ORDER
916

INTERNATIONAL COURT OF JUSTICE

YEAR 1999

2 June 1999

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. UNITED STATES OF AMERICA)

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, KOolMANS; 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 United States of
America (hereinafter “the United States”) “for violation of the obligation
not to use force”,
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 917

Makes the following Order:

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

“The subject-matter of the dispute are acts of the United States
of America 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 Prevention
and Punishment of the Crime of Genocide, adopted by the General Assem-
bly 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 United States of America, together with
the Governments of other Member States of NATO, took part in
the acts of use of force against the Federal Republic of Yugoslavia
by taking part in bombing targets in the Federal Republic of Yugo-
slavia. In bombing the Federal Republic of Yugoslavia military 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 damage 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 refin-
eries and chemical plants have had serious environmental effects on
cities, towns and villages in the Federal Republic of Yugoslavia. The
use of weapons containing depleted uranium is having far-reaching
consequences for human life. The above-mentioned acts are deliber-
ately creating conditions calculated at the physical destruction of an
ethnic group, in whole or in part. The Government of the United
States of America 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) 918

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 United States of
America represent a gross violation of the obligation not to use force
against another State. By financing, arming, training and equipping
the so-called ‘Kosovo Liberation Army’, support is given to terrorist
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. 1 of 1977 on the protection of civilians and civilian objects in
time of war have been violated. The obligation to protect the envi-
ronment has also been breached. The destruction of bridges on the
Danube is in contravention of the provisions of Article 1 of the 1948
Convention on free navigation on the Danube. The provisions of the
International Covenant on Civil and Political Rights and of the
International Covenant on Economic, Social and Cultural Rights of
1966 have also been breached. Furthermore, the obligation con-
tained in the Convention on the Prevention and Punishment of the
Crime of Genocide not to impose deliberately on a national group
conditions of life calculated to bring about the physical destruction
of the group has been breached. Furthermore, the activities in
which the United States of America is taking part are contrary to
Article 53, paragraph |, 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 United States of America has acted
against the Federal Republic of Yugoslavia in breach of its obli-
gation 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 United States of America has acted against the Fed-
eral 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 United States of
America has acted against the Federal Republic of Yugoslavia in
breach of its obligation to spare the civilian population, civilians
and civilian objects;
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 919

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

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

by taking part in the bombing of oil refineries and chemical
plants, the United States of America has acted against the Fed-
eral Republic of Yugoslavia in breach of its obligation not to
cause considerable environmental damage;

by taking part in the use of weapons containing depleted
uranium, the United States of America 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 United States of
America has acted against the Federal Republic of Yugoslavia in
breach of its obligation to respect the right to life, the right to
work, the right to information, the right to health care as well as
other basic human rights;

by taking part in destroying bridges on international rivers, the
United States of America 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 United States of America 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 United States of America is responsible for the violation of
the above international obligations;

the United States of America is obliged to stop immediately the
violation of the above obligations vis-a-vis the Federal Republic
of Yugoslavia;

the United States of America is obliged to provide compensation
for the damage done to the Federal Republic of Yugoslavia and
to its citizens and juridical persons”;
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 920

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”:

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

“The United States of America shall cease immediately its acts of

8
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 921

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 United States Government signed
copies of the Application and of the request, in accordance with Article 38,
paragraph 4, and Article 73, paragraph 2, of the Rules of Court; and
whereas he also sent to that Government copies of the documents accom-
panying the Application and the request for the indication of provisional
measures;

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;

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

9
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 922

objection 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. Ian Brownlie,

Mr. Paul J. I. M. de Waart,
Mr. Eric Suy,

Mr. Miodrag Mitié,

Mr. Olivier Corten;

On behalf of the United States:

Mr. David Andrews, Agent;
Mr. John Crook,
Mr. Michael Matheson;

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
measure:

[T]he United States of America . . . 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 the United States of America:
“That the Court reject the request of the Federal Republic of
Yugoslavia for the indication of provisional measures”:

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;

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:

10
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 923

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;

a *

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” (Last Timor ( Por-
tugal v. Australia), Judgment, LC.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;

* o*

21. Whereas in its Application Yugoslavia claims, in the first place, to
found the jurisdiction of the Court upon 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 III, shall be submitted to the
International Court of Justice at the request of any of the parties to
the dispute”;

whereas it is not disputed that both Yugoslavia and the United States are
parties to the Genocide Convention; but whereas, when the United
States ratified the Convention on 25 November 1988, it made the follow-
ing reservation:

“That with reference to Article IX of the Convention, before any
dispute to which the United States is a party may be submitted to
the jurisdiction of the International Court of Justice under this
Article, the specific consent of the United States is required in
each case”;

11
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 924

22. Whereas the United States contends that “[its] reservation [to Ar-
ticle IX] is clear and unambiguous”; that “[t]he United States has not
given the specific consent [that reservation] requires [and]. . . will not do
so”; and that Article IX of the Convention cannot in consequence found
the jurisdiction of the Court in this case, even prima facie; whereas the
United States also observed that reservations to the Genocide Conven-
tion are generally permitted; that its reservation to Article IX is not con-
trary to the Convention’s object and purpose; and that, “[sjince . . .
Yugoslavia did not object to the . . . reservation, [it] is bound by it”; and
whereas the United States further contends that there is no “legally suf-
ficient . . . connection between the charges against the United States con-
tained in the Application and [the] supposed jurisdictional basis under
the Genocide Convention”; and whereas the United States further asserts
that Yugoslavia has failed to make any credible allegation of violation of
the Genocide Convention, by failing to demonstrate the existence of the
specific intent required by the Convention to “destroy, in whole or in
part. a national, ethnical, racial or religious group, as such”, which intent
could not be inferred from the conduct of conventional military opera-
tions against another State.

23. Whereas Yugoslavia disputed the United States interpretation of
the Genocide Convention, but submitted no argument concerning the
United States reservation to Article IX of the Convention;

24. Whereas the Genocide Convention does not prohibit reservations;
whereas Yugoslavia did not object to the United States reservation to
Article IX; and whereas the said reservation had the effect of excluding
that Article from the provisions of the Convention in force between
the Parties;

25. Whereas in consequence Article IX of the Genocide Convention
cannot found the jurisdiction of the Court to entertain a dispute between
Yugoslavia and the United States alleged to fall within its provisions;
and whereas that Article manifestly does not constitute a basis of juris-
diction in the present case, even prima facie;

26. 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”;

12
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 925

27. Whereas the United States observes that it “has not consented to
jurisdiction under Article 38, paragraph 5, [of the Rules of Court] and
will not do so”;

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

x %

29, Whereas it follows from what has been said above that the Court
manifestly lacks jurisdiction to entertain Yugoslavia’s Application;
whereas it cannot therefore indicate any provisional measure whatsoever
in order to protect the rights invoked therein; and whereas, within a sys-
tem of consensual jurisdiction, to maintain on the General List a case
upon which it appears certain that the Court will not be able to adjudi-
cate on the merits would most assuredly not contribute to the sound
administration of justice;

* * *

30. 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;

31. 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;

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

33. 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;

34. 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;

13
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 926

IN FAVOUR: Vice-President Weeramantry, Acting President; President
Schwebel: Judges Oda, Bedjaoui. Guillaume, Ranjeva, Herczegh,
Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooïjmans:

AGAINST: Judges Shi, Vereshchetin; Judge ad hoc Kreéa:
(2) By twelve votes to three,

Orders that the case be removed from the List.

IN FAVOUR: Vice-President Weeramantry, Acting President; President
Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,
Fleischhauer, Koroma, Higgins, Kooijmans;

AGAINST: Judges Vereshchetin. Parra-Aranguren:; Judge ad hoc Kreéa.

Done in French and in English, the French text being authoritative, at
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
United States of America, respectively.

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

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.

Judges Sut, KOROMA and VERESHCHETIN append declarations to the
Order of the Court.

Judges ODA 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.


541

SEPARATE OPINION OF JUDGE KOROMA

Issue of procedural default in relation to breach — Court's findings — Mis-
givings — Orders for provisional measures under the Court's Statute binding —
Need for caution not to cast doubt on previous orders issued.

1.

Although I support the Court’s findings in this case, there are one

or two conclusions about which I have some misgivings, in particular to
the extent that they are also embodied in the operative paragraph of the
Judgment.

2. Germany has asked the Court to adjudge and declare

“that the United States, by applying rules of its domestic law, in
particular the doctrine of procedural default, which barred Karl
and Walter LaGrand from raising their claims under the Vienna
Convention on Consular Relations, and by ultimately executing
them, violated its international legal obligation to Germany under
Article 36, paragraph 2, of the Vienna Convention to give full
effect to the purposes for which the rights accorded under Article 36
of the said Convention are intended”.

. In paragraph 125 of the Judgment, the Court states that it

“can determine the existence of a violation of an international obli-
gation. /f necessary, it can also hold that a domestic law has been the
cause of this violation. In the present case the Court has made its
findings of violations of the obligations under Article 36 of the
Vienna Convention when it dealt with the first and second submis-
sion of Germany. But it has not found that a United States law,
whether substantive or procedural in character, is inherently incon-
sistent with the obligations undertaken by the United States in the
Vienna Convention.” (Emphasis added.)

But then, the Court goes on to say that:

“In the present case the violation of Article 36, paragraph 2, was
caused by the circumstances in which the procedural default rule was
applied, and not by the rule as such.” (Emphasis added.)

Earlier in the Judgment, the Court had stated as follows:

79

“Under these circumstances, the procedural default rule had the
542 LAGRAND (SEP. OP. KOROMA)

effect of preventing ‘full effect [from being] given to the purposes for
which the rights accorded under this article are intended’” (para. 91;
emphasis added).

4. Article 36, paragraph 2, of the Vienna Convention provides that:

“The rights referred to in paragraph 1 of this article shall be exer-
cised in conformity with the laws and regulations of the receiving
State, subject to the proviso, however, that the said laws and regu-
lations must enable full effect to be given to the purposes for which
the rights accorded under this article are intended.”

The paragraph thus sets out how the rights referred to in paragraph | are
to be exercised and the conditions for their application.

5. Among the rights set out in Article 36, paragraph 1, are the follow-
ing: the right to request the competent authorities of the receiving State
to inform the relevant consular post without delay of an arrest or deten-
tion; the right to have any communication addressed by a detained or
arrested person forwarded to the relevant consular post by the receiving
State authorities without delay; and the right of the sending State that its
nationals be informed without delay of their right to consular notifica-
tion. In my opinion, these rights are the rights referred to in Article 36,
paragraph 2, of the Convention and they are obligations for the receiving
State. For them to be violated therefore, the competent authorities of the
receiving State must have failed to comply with them. Clearly, the breach
of the obligation that occurred in the present case was caused neither by
the procedural default rule nor by its application. It was not because of
the procedural default rule that the LaGrand brothers were not informed
in a timely manner of their rights to consular protection or assistance. In
my view, neither the rule nor its application can be held in this regard
to have violated Article 36, paragraph 2, of the Convention, as it was
not the rule which prevented full effect being given to the rights under
Article 36, paragraph 1. Indeed, as the Court itself has held, the doctrine
of procedural default is not inherently inconsistent with the obligations
assumed by the United States under the Convention. On the other hand,
it is both inconsistent and unsustainable to hold that the violation of
Article 36, paragraph 2, in the present case was caused by its application,
and not by the rule as such, Having thus formulated its conclusion, the
Court would appear to be saying that the rule is simultaneously both
consistent and inconsistent with the United States obligations under the
Convention. If, as the Court would appear to hold, the rule is a proper
part of the United States criminal justice system, the Court cannot at the
same time hold that its application on this occasion is the cause of the
violation of the United States obligations. The point which the Court
should have determined, in my view, was not whether aspects of the
criminal process were the cause of the breach of the obligations, which
they were not, but rather whether the obligations assumed under the
Convention were breached as a result of the non-observance of the rele-

80
543 LAGRAND (SEP. OP. KOROMA)

vant provisions. In other words, the breach of the relevant obligations
would still have occurred to the extent that the relevant provision of the
Convention had not been complied with irrespective of the criminal pro-
cess.

6. But lest there be a misunderstanding of my position, I strongly sub-
scribe to the position that everyone is entitled to benefit from judicial
guarantees, including the right to appeal a conviction and sentence, and
this position is universally shared by States. For me, the main issue which
the Court is required to determine is whether the United States conduct,
in not informing Germany and the LaGrand brothers promptly of their
rights under the Convention, was inconsistent with the United States
obligation to Germany under the Convention, as well as the appropriate
remedies for that breach.

7. I also cannot concur entirely with the reasoning of the Court
regarding its finding on Article 41 of the Statute. The real issue is whether
the Order for provisional measures issued by the Court on 3 March 1999
was binding on the United States, and not the interpretation of Article 41
of the Statute which the Court decided to undertake. I do not think its
jurisprudence on this matter was in doubt. Nor do I subscribe to the
theory of the linguistic ambiguity of the said provision. In my view the
meaning of the provision is clear and objective and there can be no fun-
damental misunderstanding as to its purpose and meaning. It is also part
of the Statute of the Court. The object and purpose of an order for pro-
visional measures is to preserve and protect the rights and interests of the
parties in a dispute before the Court, pending the final decision of the
Court. It is for the Court to grant or reject a request for an order. It fol-
lows that, when an order is granted in accordance with the Statute, it is
binding. Otherwise, there would be no purpose in making an order, or
the purpose would be defeated. This is how I have understood the provi-
sion and this Judgment should be seen in that light and not as casting
doubt, albeit unwittingly, on previous orders for provisional measures
issued by this Court.

8. Finally, with regard to operative paragraph 128 (7) of the Judgment
and as I have stated above, it is my understanding that everyone, irre-
spective of nationality, is entitled to the benefit of fundamental judicial
guarantees, including the right of appeal or review against conviction and
sentence, irrespective of nationality. In other words the judicial process
must be fair and regular.

(Signed) Abdul G. Koroma.

81


                            INTERNATIONAL COURT OF JUSTICE

                                            YEAR 2022
                                                                                2022
                                                                                24 June
                                                                                General List
                                                                                No. 177
                                            24 June 2022

           GUATEMALA’S TERRITORIAL, INSULAR AND MARITIME CLAIM

                                   (GUATEMALA/BELIZE)

                                              ORDER

Present:   President DONOGHUE; Vice-President GEVORGIAN; Judges TOMKA, ABRAHAM,
           BENNOUNA, YUSUF, XUE, SEBUTINDE, BHANDARI, ROBINSON, SALAM, IWASAWA,
           NOLTE, CHARLESWORTH; Judges ad hoc MCRAE, COUVREUR; Registrar GAUTIER.

      The International Court of Justice,

      Composed as above,

      After deliberation,

      Having regard to Article 48 of the Statute of the Court and to Articles 44 and 46 of the Rules
of Court,

      Having regard to the “Special Agreement between Guatemala and Belize to submit
Guatemala’s territorial, insular and maritime claim to the International Court of Justice” of
8 December 2008 (hereinafter the “Special Agreement”) and the Protocol thereto of 25 May 2015
(hereinafter the “Protocol”),

                                                -2-

      Having regard to the Order of 18 June 2019, whereby the Court, referring to Article 3,
paragraph 2, of the Special Agreement and to Article 3 of the Protocol, fixed 8 June 2020 and 8 June
2021, respectively, as the time-limits for the filing of the initial pleadings in the case, namely a
Memorial by the Republic of Guatemala and a Counter-Memorial by Belize,

      Having regard to the Order of 22 April 2020, whereby the Court extended to 8 December 2020
and 8 June 2022 the respective time-limits for the filing of the Memorial of the Republic of
Guatemala and of the Counter-Memorial of Belize;

      Whereas the Memorial and the Counter-Memorial were filed within the time-limits thus
extended;

      Whereas, under Article 3, paragraph 2, subparagraphs (c) and (d), of the Special Agreement,
the Parties agreed that:

     “(c) The Government of Guatemala may submit a Reply within six months of the date
          on which it was notified of the submission and contents of the Counter-Memorial;

      (d) The Government of Belize may submit its Rejoinder within six months of the date
          on which it was notified of the submission and contents of Guatemala’s Reply”;

       Whereas at a meeting held by the President of the Court with the representatives of the Parties
on 20 June 2022, pursuant to Article 31 of the Rules of Court, each of the Parties confirmed the need
for a second round of written pleadings as envisaged in the Special Agreement, to be filed within the
time-limits provided for therein, namely, six months from the date of the filing of the
Counter-Memorial by Belize for the submission of a Reply by the Republic of Guatemala and
six months from the date of the filing of that Reply for the submission of a Rejoinder by Belize;

      Taking into account the agreement of the Parties,

      Fixes the following time-limits for the filing of the subsequent pleadings in the case:

      8 December 2022 for the Reply of the Republic of Guatemala;

      8 June 2023 for the Rejoinder of Belize; and

      Reserves the subsequent procedure for further decision.

                                                -3-

      Done in French and in English, the French text being authoritative, at the Peace Palace,
The Hague, this twenty-fourth day of June, two thousand and twenty-two, in three copies, one of
which will be placed in the archives of the Court and the others transmitted to the Government of the
Republic of Guatemala and the Government of Belize.

                                                           (Signed)    Joan E. DONOGHUE,
                                                                            President.

                                                           (Signed)    Philippe GAUTIER,
                                                                            Registrar.

                                           ___________


46

SEPARATE OPINION OF VICE-PRESIDENT
NAGENDRA SINGH

While endorsing the majority decision and voting, therefore, for the
Judgment in this case, I hold that there are certain aspects which need to be
emphasized in the overall interests of administering justice, particularly in
the context of settlement of inter-State disputes in respect of which the
Court has a distinct role to play in the service of the international commu-
nity. These aspects which weigh with me to the extent that they need to be
specially brought out are briefly stated below:

I

The Court has undoubtedly chosen the right path in the adjudication of
the jurisdictional issues arising out of the case when it has given over-riding
priority to the examination of the Greek reservation as duly invoked by
Turkey excluding disputes pertaining to “territorial status” from the juris-
diction of the Court. It is the effectiveness or otherwise of this reservation
which becomes the key pivotal issue in the search for the Court’s juris-
diction because if the General Act of 1928 was ever to be considered as at
all valid, then the Greek reservation would be decisive in its application to
either open or bar access to the Court. On the other hand, if the Act itself
was invalid, it could not obviously provide the necessary basis for the
Court’s jurisdiction. The Court therefore rightly undertook the examina-
tion of the Greek reservation “at once”, i.e., before anything else, and
found that it did effectively bar access to the Court and thus rendered
unnecessary its decision on the General Act as a treaty in force. In the
circumstances, the Court has rightly refrained from pronouncing on the
validity of the General Act of 1928 in this case. In so doing, the Court has
also given no less than two valid reasons for the adoption of the aforesaid
course in paragraph 40 of the Judgment.

While endorsing this approach of the Court in its Judgment, I wish to
add a third reason in its favour. This additional reason is to the effect that
in accordance with the principle of judicial propriety, a court of law is
required to pronounce upon those issues alone which are so directly
involved in the decision-making process as to require detailed scrutiny
followed by a regular judgment from the Court. In short, in the proper
discharge of its judicial function, a court is not required to pronounce on
those aspects of the case which do not call for a decision in the task of
accomplishing the adjudication of the dispute. No tribunal could ever
undertake an exercise in futility. This particular principle of judicial

47
47 AEGEAN SEA (SEP. OP. NAGENDRA SINGH)

propriety needs to be emphasized as it should find a nghtful place in the
Court’s jurisprudence since a tribunal indulging in unnecessary pro-
nouncements, by making them when not legally required to do so, could
easily undermine its judicial character. This would particularly apply in the
context of administering inter-State law wherein the Court’s observations,
despite Article 59 of the Statute, could easily create implications in the
relations between States including even those not before the Court. A
tribunal has to be ever mindful of that aspect.

Il

While the Court has come to the valid finding that the Brussels Commu-
niqué of 31 May 1975 could not actually operate to constitute by itself a
binding agreement creating forthwith an immediate access to the Court,
there can be no doubt that the parties had taken recourse to the said
Communiqué with the definite intention of ultimately taking the dispute to
the Court for a judicial settlement. If the Brussels Communiqué symbol-
ized that intention and clear will of the parties, then it would appear that
the Court would not be transgressing its judicial limits if it were to point to,
though not decree, the obligations which flow from the Communiqué,
namely to move further in the direction of negotiations. A tribunal could
not ever advise parties as to the exercise of a choice “amongst the various
courses” or options available to them as was pointed out in the Haya de la
Torre case UI.C.J. Reports 1951, pp. 78-79). However, the Court could deal
with the relationship of the Communiqué vis-a-vis the parties and their
respective duties to resolve the dispute by peaceful means in accordance
with Article 33 of the United Nations Charter, which obligation remains
unimpaired. If the Court could not, on its own, go so far as to conclude that
the Brussels Communiqué constitutes a legal obligation on both States to
proceed to complete the agreement on the modalities necessary for the
submission of the case to the Court, it could, nevertheless, consistent with
its judicial character, point to the need for further negotiations to be
undertaken by both sides in good faith and in the interests of peaceful
resolution of the dispute. To proceed to pronounce thus far would be
consistent with the basic role of the Court in the international community.
Again, it would be neither inconsistent with its judicial function, nor in
derogation of its judicial character. In this connection, it would be perti-
nent to cite the observations of the Court in the Fisheries Jurisdiction case
(LCJ. Reports 1974, p. 32, para. 74) where the Court said:

“The obligation to negotiate thus flows from the very nature of the
respective rights of the Parties; to direct them to negotiate is therefore
a proper exercise of the judicial function in this case. This also
corresponds to the Principles and provisions of the Charter of the
United Nations concerning peaceful settlement of disputes. As the
Court stated in the North Sea Continental Shelf cases:

48
48 AEGEAN SEA (SEP. OP. NAGENDRA SINGH)

‘.. this obligation merely constitutes a special application of a
principle which underlies all international relations, and which is
moreover recognized in Article 33 of the Charter of the United
Nations as one of the methods for the peaceful settlement of
international disputes’ (I.C./. Reports 1969, p. 47, para. 86).”

There can be no question, therefore, of the incompatibility of negotia-
tions with judicial settlement at ariy stage in the course of the dispute. The
Court, having gone thus far in its Judgment, could have taken the next step
forward by pronouncing on the need of further meaningful negotiations
thereby not only emphasizing the due importance of this particular method
in the peaceful settlement of disputes, but also indicating the path leading
to completion of those necessary details which are still left incomplete in
the Brussels Communiqué of 31 May 1975.

HI

In the international field the paramountcy of the doctrine of consent lies
at the root not only of the law as enacted, but also of the jurisdiction of the
tribunal which administers that law. In the aforesaid context of sover-
eignty of States no international tribunal could afford to overlook today
the fact that the Applicant seeks the protection of law and, refraining from
taking recourse to other means, moves the Court for redress of its grie-
vances and thus acts as a law-abiding member of the community. The
Court has come to the correct conclusion following its decision in the
Norwegian Loans case (I.C.J. Reports 1957) that, since the Greco-Turkish
Treaty of Friendship, Neutrality, Conciliation and Arbitration of 30 Octo-
ber 1930 has not been invoked by the Applicant as a basis of the Court’s
jurisdiction, it does clearly dispense the Court from entering any further
into the question posed by the existence of that Treaty. It would, however,
appear to be still necessary to indicate that the door of the Court is in no
way permanently closed to the Applicant as if leaving him without a
judicial remedy forever. It is noteworthy that both Greece and Turkey have
accepted the aforesaid Treaty of 1930 as a treaty in force which still binds
the parties today. If in future, therefore, the parties were to agree to comply
with the prescribed treaty requirements relating to conciliation, they could
find means of achieving an amicable settlement to the present dispute.

(Signed) NAGENDRA SINGH.

49


10

OPINION DISSIDENTE DE M. MOROZOV
[Traduction]

J'ai voté pour la désignation d’un juge ad hoc par le Royaume du
Maroc en la présente affaire et j'ai voté, pour la même raison, en faveur
de la désignation d’un juge ad hoc par la République islamique de Mauri-
tanie. Je considère en effet que celle-ci a le même droit de choisir un juge
ad hoc que le Royaume du Maroc et que la participation de ce juge
faciliterait également l'élaboration de l’avis consultatif objectif demandé
par l’Assemblée générale.

Pour la même raison, je n’ai pu appuyer la deuxième partie de l’avant-
dernier des alinéas où sont énoncés les motifs, à partir des mots: «que
cependant, aux fins de la présente question préliminaire. », car ce texte
ne décrit pas avec exactitude la position du Gouvernement de la Répu-
blique islamique de Mauritanie et contredit le passage pertinent de son
exposé écrit ainsi que la plaidoirie présentée par son conseil lors de la
procédure orale.

{Signé} Platon Morozov.