25

OPINION INDIVIDUELLE DE M. ODA, VICE-PRÉSIDENT
[Traduction]

Je suis entièrement d’accord avec la conclusion de l’ordonnance, qui est
de rejeter la demande de la Finlande au motif, suffisant, de l’absence
d'urgence. Il n’y a effectivement pas urgence. En premier lieu, le Dane-
mark a donné des assurances qu’aucune obstruction matérielle du
chenal Est ne se produirait avant la fin de 1994, En second lieu — et c’est
un point qu’il aurait fallu souligner —, bien que les acheteurs éventuels
de navires de forage et de plates-formes pétrolières des chantiers navals
finlandais doivent inévitablement peser le risque que dans l’intervalle la
Cour rende un arrêt défavorable à la prétention finlandaise, ce risque
serait demeuré le même si la Cour avait indiqué les mesures conserva-
toires demandées, car cette indication n’aurait nullement préjugé le fond.
Par conséquent, l’objet de la demande finlandaise me semblait de peu de
consistance. Ce n’est qu’en rendant un arrêt sur le fond que la Cour peut
influer concrètement sur la position de la Finlande et, eu égard aux consé-
quences négatives qui découlent, pour cette position, du non-règlement
du litige, le meilleur service que la Cour puisse rendre est d’en venir à une
décision finale dès que possible.

*

Je suis également d’accord avec l’avertissement qui est adressé au
Danemark dans les termes suivants:

«on ne peut ni ne doit exclure à priori la possibilité d’une décision
judiciaire ordonnant soit de cesser les travaux soit de modifier ou
démanteler les ouvrages » (par. 31).

Cet énoncé ajoute un élément d’équilibre extrêmement important au rejet
de la demande finlandaise. À propos du risque couru par le Danemark, on
observera que l’agent et le conseil du défendeur ont insisté sur la thèse
selon laquelle, si l'exécution du projet de pont sur le chenal Est avait
atteint un stade avancé avant que la Cour ne rende son arrêt et si la Cour
tranchait en fait en faveur de la Finlande, il serait alors légitime d’achever
le pont et d'offrir une indemnisation dans la mesure où la restitution en
nature serait une charge excessive. Ainsi que la Cour l’indique dans son
ordonnance, on ne peut compter qu’elle jugera en définitive que cette voie
pourrait être présentée comme suffisante en droit. Pour réduire au mini-
mum le risque de vaines activités, il est donc d’autant plus souhaitable,
pour le Danemark également, que l’arrêt soit rendu le plus tôt possible.

* *

17
PASSAGE PAR LE GRAND-BELT (OP. IND. ODA) 26

Deux aspects de l’ordonnance me paraissent cependant quelque peu
superflus. Tout d’abord, bien qu'il soit sans aucun doute vrai, comme
l'ordonnance le déclare:

«qu’il revient au Danemark … d’envisager l’incidence qu’un arrêt
faisant droit à [la] revendication [de la Finlande] pourrait avoir sur la
réalisation du projet du Grand-Belt et de décider si et dans quelle
mesure il lui faudrait en conséquence retarder ou modifier ce projet »
(par. 33),

il semble peu justifié que la Cour donne à entendre « de même »:

«qu’il revient … à la Finlande ... de décider s’il convient d'encourager
le réexamen de moyens propres à permettre aux navires de forage et
aux plates-formes pétrolières d'emprunter les détroits danois dans
l'hypothèse où [la Finlande serait déboutée sur le fond]» (par. 34).

Ce que doit faire la Finlande, à ce stade, c’est simplement de prendre
conscience de la possibilité évidente que, dans le cas où elle serait débou-
tée sur le fond, elle doive peut-être abondonner ou modifier tout plan de
construction de navires de forage et de plates-formes pétrolières d’une
hauteur supérieure à 65 mètres.

*

Ensuite, bien que je ne m’oppose aucunement à la relance des négocia-
tions si les Parties en prennent initiative, il s’agit en l’espèce de deux pays
fréres de la région de la Baltique dont on nous assure qu’ils entretiennent
des relations de confiance par des voies diplomatiques en grande mesure
officieuses; on peut donc raisonnablement penser que, si des négocia-
tions pouvaient mener à la solution de leur différend, le recours au proces-
sus judiciaire n’aurait pas été nécessaire. En effet, à quoi bon négocier
maintenant, puisque chacune des Parties doit penser que la force de sa
position est conditionnée par l’affirmation judiciaire de son droit: d’un
côté, le droit de libre passage des navires de forage et plates-formes pétro-
lières de grande hauteur et, de l’autre, le droit d’entreprendre librement
des travaux sur son territoire national, tout en reconnaissant le droit de
passage des navires de forage et des plates-formes pétrolières de moindre
hauteur? Les Parties ne comprennent de la même manière ni le rapport
entre ces droits, ni les règles du droit international qui sont pertinentes
pour les concilier. Aucune d’elles ne peut donc reprocher à l’autre d’être
réticente à négocier à ce stade.

De surcroît, si ce que la Cour souhaite encourager en l’occurrence ce
sont des négociations entre les Parties en ce qui concerne leurs attitudes
ou leurs conduites respectives en attendant l’arrêt sur le fond, il devrait
paraître évident qu'aucune des Parties ne sera disposée à risquer de
compromettre sa cause en faisant des concessions. Tant que la Cour n’a
pas tranché un certain nombre de questions juridiques essentielles, le

18
PASSAGE PAR LE GRAND-BELT (OP. IND. ODA) 27

risque d’une impasse est par conséquent si grand qu’il peut n’étre guère
utile que la Cour oriente les Parties dans cette voie. I] m’est donc difficile
de faire mien le sentiment exprimé par la Cour lorsqu'elle dit:

«en attendant une décision de la Cour sur le fond, toute négociation
entre les Parties en vue de parvenir à un règlement direct et amiable
serait la bienvenue » (par. 35).

La seule direction dans laquelle la Cour peut utilement infléchir ses
efforts est celle qui consiste à veiller «à parvenir à une décision sur le fond
dans les meilleurs délais » (par. 36). De fait, c’est précisément parce que les
Parties sont prêtes à négocier sur la base du droit qu’il est impérieux de
mener la présente affaire à terme avec toute la diligence possible.

(Signé) Shigeru Opa.

19


898

                 DECLARATION OF JUDGE TOMKA

   Two bases of jurisdiction of the Court.
   Objection to the jurisdiction under the Pact of Bogotá — Was the 1928
Treaty in force when the Pact of Bogotá was concluded ? — Alleged manifest
violation of the Constitution as a ground for invalidating the Treaty — Impact
of the subsequent conduct of the Party on its right to invoke the alleged manifest
violation of the Constitution as a ground for invalidating the Treaty.

  The alleged lack of international capacity to conclude treaties during the
occupation by the United States — The alleged coercion in the conclusion of the
1928 Treaty — The Court prevented from deciding on alleged coercion by a
State which is not a party to the proceedings.
  Sovereignty over the islands of San Andrés, Providencia and Santa Catalina
not to be adjudicated at the merits stage.

                                     * * *
   1. I have voted in favour of the Court’s Judgment. Nevertheless, some
aspects of the case and of the present Judgment call for a few observa-
tions.
   2. Nicaragua invoked, in its Application, two bases of jurisdiction of
the Court.
   First, it relies on Article 36, paragraph 1, of the Statute which states,
inter alia, that “[t]he jurisdiction of the Court comprises . . . all matters
specially provided for . . . in treaties and conventions in force”. In Nica-
ragua’s view, the American Treaty on Pacific Settlement, officially known
as the Pact of Bogotá, is such a treaty.
   Second, Nicaragua further relies on Article 36, paragraph 2, of the
Statute arguing that the jurisdiction of the Court also exists by virtue of
the operation of the declaration of Nicaragua dated 24 September 1929
and the declaration of Colombia dated 30 October 1937 recognizing as
compulsory the jurisdiction of the Court.
   3. Colombia denies that the Court has jurisdiction on either of these
two bases.
   4. Colombia refers to Article VI of the Pact of Bogotá, which provides
that the procedures of pacific settlement envisaged in the Pact, including
the judicial procedure before the International Court of Justice, “may not
be applied to matters already settled by arrangement between the
parties . . . or which are governed by agreements or treaties in force on
the date of the conclusion of the present Treaty” ; i.e. in 1948 when the
Pact was concluded. It argues that the Treaty concerning Territorial
Questions at Issue between Colombia and Nicaragua of 24 March 1928

70

899          TERRITORIAL AND MARITIME DISPUTE (DECL. TOMKA)

(hereinafter “the 1928 Treaty”) has been in force since 1930 and that it
governs the matters submitted by Nicaragua to the Court. Therefore, in
Colombia’s view, Article VI of the Pact of Bogotá prevents the applica-
tion of the judicial procedure before this Court in the present case and
the Court should declare itself to be without jurisdiction.
   5. Nicaragua argues that the Treaty was not in force since, in its view,
it was not validly concluded. Nicaragua denies the validity and the entry
into force of the 1928 Treaty, despite the fact that it not only signed a
Protocol of Exchange of Ratifications on 5 May 1930 but also registered
the 1928 Treaty (with the Protocol of Exchange) in 1932 with the League
of Nations.
   6. Nicaragua invokes two grounds for the invalidity of the 1928 Treaty.
First, it alleges that the 1928 Treaty was concluded in manifest violation
of the Nicaraguan Constitution then in force 1. Second, it contends that
the Nicaraguan Government was deprived of its international capacity
during the pertinent period since it could not freely express its consent to
be bound by international treaties (Memorial of Nicaragua, p. 108,
para. 2.102 ; Written Statement of Nicaragua, p. 15).

   7. Nicaragua takes the view that the Court cannot pronounce itself, at
this stage of the proceedings, whether the Treaty was validly concluded
and has been in force, since those issues belong to the merits of the dis-
pute. In Nicaragua’s view, Colombia’s preliminary objection to the juris-
diction of the Court on the basis of the Pact of Bogotá does not possess
an exclusively preliminary character.
   8. It would have been all too convenient for the Court to defer its deci-
sion on Colombia’s objection to the Court’s jurisdiction under the Pact
of Bogotá. But in a situation where the issue of the validity of the 1928
Treaty and its entry into force has been determined by the Court as not
constituting the subject-matter of the dispute (which consists of sover-
eignty over the disputed islands and other maritime features, and of mari-
time delimitation), and the Court has at its disposal sound legal grounds
to rule on the objection, the proper administration of justice and pro-
cedural economy justify the Court upholding or rejecting the objection
already at this stage.
   9. I concur with the view of the Court that Nicaragua, for an extended
period of more than 50 years, has treated the 1928 Treaty as valid and

   1 It may be noted that it is not the first time that Nicaragua has argued the alleged

violation of its Constitution as a ground for invalidating an international treaty it had
concluded. Thus in the arbitration with Costa Rica, Nicaragua invoked, among others,
this argument in support of its claim that the 1858 Treaty of Limits with Costa Rica was
invalid. The arbitrator in his Award of 22 March 1888 found that the 1858 Treaty of Lim-
its was valid. See H. La Fontaine, Pasicrisie internationale 1794-1900, Histoire documen-
taire des arbitrages internationaux, 1902 (repr. by Martinus Nijhoff Publishers, The
Hague 1997, pp. 299-301), J. B. Moore, International Arbitrations To Which the United
States Has Been a Party, Vol. II, 1898, pp. 1964-1967.

71

900        TERRITORIAL AND MARITIME DISPUTE (DECL. TOMKA)

never contended that it was not bound by it (Judgment, para. 79). Nica-
ragua, by its conduct over those years, must be considered as having
acquiesced in the validity of the 1928 Treaty and its maintenance in force.
Therefore it may no longer invoke the alleged manifest violation of its
Constitution of 1911 as a ground for invalidating the 1928 Treaty.

   10. The second ground for the invalidity of the 1928 Treaty invoked
by Nicaragua is that its government was deprived of its international
capacity during the pertinent period, since it could not freely express its
consent to be bound by international treaties. Although mentioned in the
Judgment, this argument receives a rather cryptic response from the
Court. It seems that it has been dealt with in the same way as the argu-
ment based on the manifest violation of the Nicaraguan Constitution. In
fact, there is a common response to both of these arguments in the Judg-
ment (paras. 78, 79 and 80). While I have concurred with the view of the
majority as far as the first ground of invalidity is concerned, I consider
that the second ground requires a different response in view of the dif-
ference in nature between the two grounds invoked. The International
Law Commission, in its commentary to what has become Article 45 of
the 1969 Vienna Convention, excluded the case of coercion from the
application of the principle that the State may, on account of its subse-
quent conduct, lose a right to invoke the invalidity of a treaty. It stated
that in the case of coercion “a consent so obtained must be treated as
absolutely void in order to ensure that the victim of the coercion should
afterwards be in a position freely to determine its future relations with the
State which coerced it” (Yearbook of the International Law Commission,
1966, Vol. II, p. 239 ; emphasis added).
   11. The argument advanced by Nicaragua is not without difficulties. If
it is to be understood broadly, generally, then it would run counter to the
other basis of the Court’s jurisdiction invoked by Nicaragua, i.e., the
optional clause declaration under Article 36, paragraph 2, of the Statute.
Nicaragua made such a declaration in 1929, exactly in the pertinent
period when its government, as it is now alleged, was deprived of its inter-
national capacity. When in 1984 Nicaragua instituted proceedings in the
Military and Paramilitary Activities in and against Nicaragua (Nicara-
gua v. United States of America) case, the Court treated its declaration
as valid and in force (see I.C.J. Reports 1984, p. 442, para. 113 (1)).

   In fact, in all proceedings involving Nicaragua before the Court in the
past, its optional clause declaration of 1929 was relied on as a basis of the
Court’s jurisdiction (see, for example, Arbitral Award Made by the King
of Spain on 23 December 1906 (Honduras v. Nicaragua), Judgment,
I.C.J. Reports 1960, p. 194 ; Border and Transborder Armed Actions
(Nicaragua v. Honduras), Judgment, I.C.J. Reports 1988, p. 71, para. 1,
p. 82, para. 25 ; Territorial and Maritime Dispute between Nicaragua and
Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment,

72

901        TERRITORIAL AND MARITIME DISPUTE (DECL. TOMKA)

I.C.J. Reports 2007, p. 664, para. 1). Such a broadly construed argument
cannot be accepted, since it is contradicted by the findings made by the
Court in previous cases involving Nicaragua.

   12. Nicaragua itself admits that it was not prevented from concluding
international treaties in general (CR 2007/19, p. 11, para. 13). But then it
is difficult to accept its contention that the Nicaraguan Government was
deprived of its international capacity during the relevant period. Nicara-
gua therefore specifies that while it was under occupation by the United
States, it was prevented from concluding treaties that ran against the
interest of the United States and from rejecting the conclusion of treaties
that the United States demanded it to conclude. The interests of a third
State, even its demand to conclude a treaty, do not render such a treaty
null and void ab initio. That could only be a consequence if a State was
coerced to conclude a treaty by the threat or use of force in violation of
the principles of international law. It seems that that is what Nicaragua
suggests when it refers to Article 52 of the Vienna Convention on the
Law of Treaties, which provides that “[a] treaty is void if its conclusion
has been procured by the threat or use of force in violation of the prin-
ciples of international law embodied in the Charter of the United
Nations”.
   13. The issues raised by Nicaragua in its argument are complex. They
relate both to facts and law, including the law of treaties applicable at the
time of the conclusion of the 1928 Treaty. Nicaragua acknowledged that,
when it observed that “the 1928 Treaty ‘must be appreciated in the light
of the law contemporary with it’ and that Law as expressed in the 1969
[Vienna] Convention has no retroactive effect” (Memorial of Nicaragua,
p. 116, para. 2.124). Perhaps these issues could have been further eluci-
dated if the Court had decided to join the consideration of the prelimi-
nary objection to the merits stage. But one fundamental problem of
Nicaragua’s contention would still have remained. The Court would not
have been able to reach a decision about the alleged coercion without
examining the lawfulness of the United States conduct, when that State is
not a party to these proceedings. A conclusion by the Court that there
was coercion by the United States would be tantamount to a finding that
this third State, which is not before the Court, had acted unlawfully.
Principles governing the exercise of the Court’s jurisdiction prevent the
Court from making such a finding. Even if the Court had jurisdiction, it
would not have been able to exercise it (see East Timor (Portugal v. Aus-
tralia), Judgment, I.C.J. Reports 1995, p. 105. para. 35).

  14. Nicaragua also pursues another line of argument when it contends
that Colombia “took advantage of the US occupation to extort from her
the conclusion of the 1928 Treaty” (Memorial of Nicaragua, p. 98,
para. 2.82 ; CR 2007/19, pp. 10-11). It is sufficient to observe that the
main principles of that Treaty were already discussed by Colombia with
the Nicaraguan Government which was inaugurated on 1 January 1925,

73

902        TERRITORIAL AND MARITIME DISPUTE (DECL. TOMKA)

as Nicaragua admits, after “an election that had not been controlled by
the United States” (Memorial of Nicaragua p. 76, para. 2.41). A draft
Treaty was presented to Nicaragua’s Foreign Minister by Colombia’s
Ambassador in Managua in March 1925. It appears from the case file
that Nicaragua actively participated in the negotiation of that Treaty. It
was Nicaragua which, after the signing of the 1928 Treaty, suggested an
understanding about the geographical scope of the Archipelago of San
Andrés (see paragraph 64 of the Judgment). That agreed understanding
was recorded in the 1930 Protocol of Exchange.

  15. Accordingly, I concur with the Court that the issue of sovereignty
over the islands of San Andrés, Providencia and Santa Catalina is not to
be adjudicated at the merits stage.

                                               (Signed) Peter TOMKA.

74


LAGRAND (ARRÊT) 517

transmis respectivement au Gouvernement de la République fédérale
d'Allemagne et au Gouvernement des Etats-Unis d'Amérique.

Le président,
{ Signé) Gilbert GUILLAUME.

Le greffier,
(Signé) Philippe COUVREUR.

M. GUILLAUME, président, fait la déclaration suivante:

L’alinéa 7) du dispositif de l’arrêt de la Cour envisage le cas où, malgré
l'engagement des Etats-Unis dont la Cour a pris acte à l’alinéa 6), des
ressortissants allemands seraient condamnés à une peine sévère sans que
les droits qu'ils tiennent de l'alinéa b) du paragraphe | de l’article 36 de
la convention de Vienne sur les relations consulaires aient été respectés.
La Cour dit qu’en pareille hypothèse «les Etats-Unis devront, en mettant
en œuvre les moyens de leur choix, permettre le réexamen et la revision
du verdict de culpabilité et de la peine en tenant compte de la violation
des droits prévus par la convention».

Cet alinéa du dispositif répond à certaines conclusions de l'Allemagne
et statue de ce fait exclusivement sur les obligations des Etats-Unis dans
le cas où des ressortissants allemands seraient condamnés à des peines
sévères.

L’alinéa 7) ne se prononce donc pas sur la situation des ressortissants
d’autres pays ou sur celle de personnes condamnées à des peines n’ayant
pas un caractère sévère. En vue cependant d'éviter toute ambiguïté, il
convient de préciser qu'il ne saurait faire l’objet d’une interprétation a
contrario.

(Signé) Gilbert GUILLAUME.

M. Sut, vice-président, joint à l’arrêt l'exposé de son opinion indivi-
duelle: M. Opa, juge, joint à l’arrêt l'exposé de son opinion dissidente;
MM. Koroma et PARRA-ARANGUREN, juges, joignent à l’arrét les exposés
de leur opinion individuelle; M. BUERGENTHAL, juge, joint à l’arrêt
l'exposé de son opinion dissidente.

(Paraphé) G.G.
(Paraphé) Ph.C.

55


278

IT.

IV.

VI.

VI.

23

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

I. INTRODUCTION

1. Lentirely 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.

II. 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 recog-
nized.

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-

24
280 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, I shall now go on to discuss whether the Fed-
eral Republic of Yugoslavia can bring the present Applications on the
basis of certain provisions of the Statute and of the Rules of Court, of the
1930 and 1931 instruments in the cases of Belgium and the Netherlands,
and of the 1948 Genocide Convention.

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

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

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

25
281 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.

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282 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
compulsory jurisdiction of the Court in accordance with Article 36, para-
graph 2, of the Statute. The main point to be considered, even on the
assumption that the registration of the declaration by the Federal Repub-
lic 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 Nether-
lands, Portugal, Spain and the United Kingdom) which have accepted
the Court’s compulsory jurisdiction 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,
deposited by Belgium on 17 June 1958, by Canada on 10 May 1994, by
the Netherlands 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 Yugoslavia’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 Yugoslavia 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 con-

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cept of acceptance of the compulsory jurisdiction of the Court under the
“optional clause” in the Statute.

(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

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

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
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 locus 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

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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-
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 foilow. 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). 1 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-

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tional grounds of jurisdiction of the Court, respectively, Article 4 of the
1930 Convention of Conciliation, Judicial Settlement and Arbitration
between Yugoslavia and Belgium, and Article 4 of the 1931 Treaty of
Judicial Settlement, Arbitration and Conciliation between Yugoslavia
and the Netherlands. Irrespective of the question of whether these instru-
ments still remain valid in the present-day relations between the Federal
Republic of Yugoslavia and the two respondent States, and whether the
Federal Republic of Yugoslavia is entitled to invoke them as a basis of
jurisdiction at such a late stage, I have to say that in my view the reliance
on these instruments by the Federal Republic of Yugoslavia is totally
unfounded.

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

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

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

(1) Preliminary Observations

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

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“[dlisputes between the Contracting Parties relating to the interpre-
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 II of the Genocide Convention in the bombing or mili-
tary attacks in Yugoslavia by the NATO armed forces. The question in
general as to whether or not the bombing or the military attack in the
territory of Yugoslavia by the NATO armed forces does in fact constitute
a violation of international law may well be an issue but is irrelevant
when dealing with the Genocide Convention.

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

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

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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 — à
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 (IT),
pp. 625-626.)

(3) General Character of the Genocide Convention

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

“4. The Genocide Convention is unique in having been adopted
by the General Assembly in 1948 at a time when — due to the suc-
cess of the Nuremburg Trials — the idea prevailed that an interna-
tional criminal tribunal should be established for the punishment of
criminal acts directed against human rights, including genocide; it is
essentially directed not to the rights and obligations of States but to
the protection of rights of individuals and groups of persons which
have become recognized as universal.

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

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

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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 vor 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 (1) resort to
a competent organ of the United Nations (Art. VID) 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 II, shall be
submitted to the International Court of Justice at the request of
any of the parties to the dispute’

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

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

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

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

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

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

ishment of the Crime of Genocide, Preliminary Objections, Judg-
ment, LC.J. Reports 1996 (IT), 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 claims alleged to have arisen out of these facts. This
cannot be taken to indicate the existence of an inter-State dispute relating
to the responsibility of a State which could have been made a basis for
the Court’s jurisdiction.

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

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

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

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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.

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

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

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

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

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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 (i) Article 36, paragraph 2, of the Stat-
ute, (ii) the provisions of the instruments of 1930 and 1931 between
Yugoslavia and Belgium and the Netherlands, respectively, and (iii) 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

38
294 LEGALITY OF USE OF FORCE (SEP. OP. ODA)
United Nations has no role to play, will be resolved peacefully and in a

way that satisfies all humanitarian aspects raised by this case.

(Signed) Shigeru ODA.

39


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
CERTAIN PHOSPHATE LANDS IN NAURU

(NAURU v. AUSTRALIA)

ORDER OF 29 JUNE 1992

1992

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE CERTAINES TERRES
A PHOSPHATES A NAURU

(NAURU c. AUSTRALIE)

ORDONNANCE DU 29 JUIN 1992
Official citation:

Certain Phosphate Lands in Nauru (Nauru v. Australia),
Order of 29 June 1992, I.C.J. Reports 1992, p.345

Mode officiel de citation :

Certaines terres à phosphates à Nauru (Nauru c. Australie),
ordonnance du 29 juin 1992, C.I.J. Recueil 1992, p. 345

Sales number 6 1 7
N° de vente :

ISBN 92-1-070675-7

1992
29 June
General List
No. 80

345

INTERNATIONAL COURT OF JUSTICE

YEAR 1992

29 June 1992

CASE CONCERNING
CERTAIN PHOSPHATE LANDS IN NAURU

(NAURU v. AUSTRALIA)

ORDER

The President of the International Court of Justice,

Having regard to Article 48 of the Statute of the Court and to
Articles 31, 44 and 79 of the Rules of Court,

Having regard to the Application filed by the Republic of Nauru in the
Registry of the Court on 19 May 1989, instituting proceedings against the
Commonwealth of Australia in respect of a “dispute ... over the rehabili-
tation of certain phosphate lands [in Nauru] worked out before Nauruan
independence”,

Having regard to the Order made by the Court on 18 July 1989 by
which, inter alia, 21 January 1991 was fixed as the time-limit for the filing
of the Counter-Memorial of the Commonwealth of Australia,

Having regard to the preliminary objections filed by the Common-
wealth of Australia in the Registry of the Court on 16 January 1991,
whereby it asked the Court to adjudge and declare “that the Application
by Nauru is inadmissible and that the Court lacks jurisdiction to hear the
claims made by Nauru”,

Having regard to the Order made by the Court on 8 February 1991, by
which 19 July 1991 was fixed as the time-limit for the presentation by
Nauru of a written statement of its observations and submissions on the
preliminary objections made by the Commonwealth of Australia, which
was duly filed within the time-limit so fixed;

4
346 PHOSPHATE LANDS IN NAURU (ORDER 29 VI 92)

Whereas the Court, by its Judgment of 26 June 1992, has found: that it
has jurisdiction to entertain the Application and that the said Application
is admissible; and that the claim concerning the overseas assets of the
British Phosphate Commissioners, made by Nauru in its Memorial of
20 April 1990, is inadmissible;

Whereas a meeting between the President and the Agents of the Parties
for the purpose of ascertaining their views on the further proceedings was
held on 29 June 1992;

Whereas a time-limit has now to be fixed for the Counter-Memorial of
the Commonwealth of Australia,

Fixes 29 March 1993 as the time-limit for the filing of the Counter-
Memorial of the Commonwealth of Australia; and
Reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this twenty-ninth day of June, one thousand
nine hundred and ninety-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 Nauru and the Government of the Commonwealth of
Australia, respectively.

(Signed) R. Y. JENNINGS,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.


70

DISSENTING OPINION BY LORD FINLAY.

I regret that I am unable to concur in the judgment that
has just been delivered. I think that question II ought not
to have been put to the experts and am further unable to
agree with what is said in the judgment as to the principles
governing the assessment of the indemnity.

1.

In its Mémoire, Chapter II, $ 2 at page 13, the German
Government renounced its claim to restitution of the under-
taking in the following terms:

“Le Gouvernement allemand, qui, au commencement, avait
demandé la restitution en nature de l’entreprise exproprice,
s'est convaincu, au cours des négociations, que la restitution
n'entre pas en cause, étant donné que l’usine, qui a été exploi-
tée par l'État polonais pendant presque cinq années et qui a
été soustraite aux soins et au développement de l'entrepreneur
primitif pour être adaptée aux besoins de son exploiteur actuel,
n'est plus, dans son état actuel, au point de vue juridique et
économique, le même objet qu’elle était à la date de la reprise,
et que, par conséquent, elle n’est pas propre à être restituée.”

The Party who has been disposséssed has a choice of rem-
edies. He may claim restitution of the property taken. This
is what is meant by vestitutio in integrum. He may on the
other hand abandon any claim to restitution of the actual
property and claim damages instead. The German Govern-
ment abandoned its claim to restitution, possibly under the
impression—which may have been correct—that the alterations
were not of a nature “which would harmonize with the use
to which the German Government intended that the property
should be put. If the German Government had obtained
restitutio in integrum, it would have got the property itself
and any enhanced value which it had reached would neces-
sarily go to the German Government with the property. But
since the claim to restitution is abandoned, the only claim is
for damages for the wrongful act. A Party who has given up
JUDGMENT No. I3.—-DISSENTING OPINION BY LORD FINLAY 7I

his right to restitutio in iniegrum is not entitled to claim dam-
ages on the footing that it is right that he should have the
enhanced value, if any: that he would have got if he had
pressed his claim for restitution. The German Government
having renounced restitution cannot make good a claim to
recover an amount representing the value of the property which
would have to be restored. It has given up restitution and
elected. to take damages and these damages must be assessed
according to the general rule as at the time of the wrong.

There is no trace of anything from which it could be implied
that on giving up the right to restitutio in integrum, Germany
should be entitled in lieu thereof to get damages on a higher
scale than that on which the damages for a wrongful taking
would by law be assessed. If the Parties had intended this
they would have said so. Germany and Poland merely
agreed that the claim for restitution had been abandoned,
and that left matters exactly as if that claim had never been
put forward. To construe this transaction as involving an
agreement that the damages should be assessed in any but
the usual way is to make a new agreement for the Parties.
What the Parties did was merely to abandon restitution with
the consequence that Germany took the right to damages to
be assessed in the usual way. |

In my opinion, according to the general principle of inter-
national law, these damages should be assessed upon the basis
of the value of the undertaking at the time of the seizure,
that is the 3rd July, 1922, together with a fair rate of inter-
est on that value from that date until the date of payment ;
and in addition any other damage directly consequent upon
the seizure. |

It may be that damages so assessed will amount to no
more than the amount which the Polish Government would
have had to pay if it had been able to expropriate the
undertaking in conformity with the terms of the Geneva
Convention: but this is immaterial. Germany has selected
as the form of reparation ‘for the wrong done to her at inter-
JUDGMENT No. I3.—-DISSENTING OPINION BY LORD FINLAY 72

national law a pecuniary indemnity corresponding to the loss
sustained by her nationals. It is immaterial whether the
result of this selection is to put Germany and the German
Companies in a better or worse position than that in which
they would otherwise have been.

It is said that the general rule as to assessment of damages
cannot here be applied and that some distinction must be
made between the consequences of a wrongful expropriation
and those of a lawful expropriation in accordance with the
provisions of the Geneva Convention. The fact that Poland,
had she expropriated in accordance with the Geneva Conven-
tion, would have been bound to pay an indemnity equal to
the amount of the damages, if the damages are assessed
according to the general rule of international law, does not
affect the matter. The question is what was the loss inflicted
on the two Companies by the seizure.

It is argued that it would not be equitable that the liability
of a mere wrongdoer should be no greater than that of one
who had expropriated the property in accordance with the
terms of the Geneva Convention. | |

Expropriation in accordance with those terms was at the
time impossible, in the absence of recognition by the Mixed
Commission that this measure was indispensable for the
maintenance of the working of the undertaking (Article 7).
No special provision is made in the Convention as to what
is to happen if the Government takes property in contra-
vention of these provisions: that is left to the general law.
It is now however argued that it is not equitable that the
general law should apply in such a case, and an effort is made
to modify it so as to prevent the Government which has so
acted being financially in no worse position than one which
has acted under the provisions of the Geneva Convention.

It seems to me that it is entirely beyond the province of
the Court in effect to introduce provisions of this nature, in
the absence of agreement in treaty or convention to that effect.
JUDGMENT No. 13.—DISSENTING OPINION BY LORD FINLAY 73

IT.

If the relevant time for determining the value of the under-
taking is the time of the seizure, it follows that the value
of the undertaking at the present time, had it remained in
the hands of the Oberschlesische and the Bayerische, is
irrelevant except in so far as it may give some assistance in
determining the value at the time of the seizure. It is not
necessary to refer to the experts any question directed to
the value at the present time. I think therefore that ques-
tion II is unnecessary.

That question is in the following terms:

“Quelle: serait la valeur exprimée en Reichsmarks actuels,
. à la date du présent arrêt, de ladite entreprise de
Chorzéw, si cette entreprise (y compris les terrains, bâti-
ments, outillage, stocks, procédés disponibles, contrats de
fourniture et de livraison, clientèle et chances d'avenir),
étant restée entre les mains des Bayerische et Oberschle-
sische St. W., soit était demeurée essentiellement en l’état
de 1922, soit avait recu, toutes proportions gardées, un
développement analogue a celui d’autres entreprises du
méme genre, dirigées par la Bayerische, par exemple,
l’entreprise dont l’usine est sise a Piesteritz ?”

[Translation.] :

“What would be the value at the date of the present
judgment, expressed in Reichsmarks current at the present
time, of thé same undertaking (Chorzéw) if that undertak-
ing (including lands, buildings, equipment, stocks, avail-
able processes, supply and delivery contracts, goodwill and
future prospects) had remained in the hands of the Baye-
rische and Oberschlesische Stickstoffwerke, and had either
remained substantially as it was in 1922, or been devel-
oped proportionately on lines similar to those applied in
the case of other undertakings of the same kind, con-
trolled by the Bayerische, for instance, the undertaking
of which the factory is situated at Piesteritz ?”

Further, I consider this question unsatisfactory in itself.
It is directed to two values under hypothetical conditions.
The first of those values is dependent upon the hypothesis. that
the undertaking remained substantially in the condition in
which it was in 1922. It would be difficult to say what the
present day value of the undertaking in such an obsolete
JUDGMENT No. 13.—DISSENTING OPINION BY LORD FINLAY 74

condition would be. The second of those values is dependent
upon a hypothetical development of the undertaking. The
development which the question assumes is one. “proportion-
ately on lines similar to” the development which has taken
place in what are alleged to be parallel undertakings. It
would be difficult to determine the proportions of development
applicable. The question of what undertakings may be. taken
into consideration for this purpose seems to be one for the
experts themselves, and I think that question II would present
great difficulty in the working.

It is on these two points only that I am unable to concur
in the judgment of the Court in this case; but they are of
vital importance.

(Signed) FINLAY.


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA r. FRANCE)

ORDER OF 8 SEPTEMBER 2000

2000

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS.
AVIS CONSULTATIFS ET ORDONNANCES

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

(YOUGOSLAVIE c. FRANCE)

ORDONNANCE DU 8 SEPTEMBRE 2000
Official citation:

Legality of Use of Force ( Yugoslavia v. France),
Order of 8 September 2000, EL C.J. Reports 2000, p. 155

Mode officiel de citation:

Licéité de l'emploi de la force ( Yougoslavie c. France),
ordonnance du 8 septembre 2000, C.LJ. Recueil 2000, p. 155

Sales number
ISSN 0074-444] N° de vente: 194
ISBN 92-1-070870-9

8 SEPTEMBER 2000

ORDER

LEGALITY OF USE OF FORCE
(YUGOSLAVIA y. FRANCE)

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

8 SEPTEMBRE 2000

ORDONNANCE
155

COUR INTERNATIONALE DE JUSTICE

ANNÉE 2000

8 septembre 2000

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

(YOUGOSLAVIE c. FRANCE)

ORDONNANCE

Le vice-président de la Cour internationale de Justice, faisant fonction
de président en l'affaire,

Vu l’article 48 du Statut de la Cour et les articles 31 et 79 de son Régle-
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 de la République française:

Considérant que, le 5 juillet 2000, la France a déposé certaines excep-
tions préliminaires d'incompétence et d’irrecevabilité:

Considérant qu'en conséquence, en vertu des dispositions du para-
graphe 3 de l'article 79 du Règlement de la Cour, la procédure sur le fond
est suspendue et qu'il échet de fixer un délai dans lequel la Partie adverse
pourra présenter un exposé écrit contenant ses observations et conclu-
sions sur les exceptions préliminaires;

Considérant que, au cours d’une réunion que le vice-président, faisant
fonction de président en l'affaire, a tenue avec les agents des Parties le
6 septembre 2000, la Yougoslavie a indiqué qu'elle aurait besoin de neuf
mois pour la préparation de cet exposé écrit; et considérant que la France
n'a pas fait objection à ce qu'un tel délai soit fixé, tout en soulignant
qu'elle attendait de la Yougoslavie que celle-ci réponde spécifiquement
aux exceptions préliminaires soulevées par le Gouvernement français,

2000
8 septembre
Rôle général
n° 107
LICÉITÉ DE L'EMPLOI DE LA FORCE (ORD. 8 IX 00) 156

Compte tenu des vues des Parties et des circonstances particulières de
l'espèce,

Fixe au 5 avril 2001 la date d'expiration du délai dans lequel la Répu-
blique fédérale de Yougoslavie pourra présenter un exposé écrit conte-

nant ses observations et conclusions sur les exceptions préliminaires sou-
levées par la République française:

Réserve la suite de la procédure.

Fait en anglais et en français, le texte anglais faisant foi, au Palais de la
Paix, à La Haye, le huit septembre deux mille, en trois exemplaires, dont
Pun restera déposé aux archives de la Cour et les autres seront transmis
respectivement au Gouvernement de la République fédérale de Yougo-
slavie et au Gouvernement de la République française.

Le vice-président,
(Signé) Sui Jiuyong.
Le greffier,
{ Signé) Philippe COUVREUR.