1102

SEPARATE OPINION OF JUDGE KRECA

TABLE OF CONTENTS

Paragraphs

I. Locus STANDI IN JUDICIO OF SERBIA AND MONTENEGRO

1,
2.

Locus standi and its relationship to jurisdiction ratione per-
sonde

Issue of United Nations membership and locus standi of Ser-
bia and Montenegro

(a) Findings of the Court based on “avoiding position”

(b) Judicial presumptions

(c) Effective and valid seisin

(d) Obiter dictum containing elements or indications of sub-
stantive approach

The legal consequences of the admission of the FRY to the
United Nations

II. THE GROUNDS INVOKED BY THE RESPONDENTS FOR REJECTING THE
APPLICATION IN LIMINE LITIS

1.
2.

4,

Implicit discontinuance as a contradictio in adiecto
The congruence of the statements of facts by the Parties and
the duty of the Court to examine its jurisdiction ex officio

(a) Aspect of the legal logic
(b) Normative aspect
(c) Principle compétence de la compétence

The effect on the dispute of the congruence of views between
the Parties as to jurisdiction

(a) The existence of a dispute as to jurisdiction as a prelimi-
nary condition for the continuation of the proceedings on
preliminary objections

(b) The congruence of views between the Parties as to juris-
diction and the alleged disappearance of the dispute on
the merits

Legal interest of the Applicant in the proceedings

III. THE ISSUE oF THE COMPOSITION OF THE COURT

95

1-2
3-6
7-9
10-15
16

17-23

24-31

32-36

37-39

40
41-44
45-51

52

53-55

56-63
64-66

67-75
1103 LEGALITY OF USE OF FORCE (SEP. OP. KRECA)

Although I agree with the above Judgment as a whole, I wish to make
my position clear in regard not only to certain points with which I fully
agree but also to some reservations which I have as to the reasoning and
the ultimate findings.

Due, on the one hand, to the substantial similarity and, in more than
one issue, identical nature of the arguments forwarded by the respondent
States and, on the other, to the lack of time to do proper justice to the
cases, the text of my opinion is designed to cover mutatis mutandis all
eight cases.

I. Locus STANDI IN JUDICIO OF SERBIA AND MONTENEGRO

1. Locus standi and Its Relationship to Jurisdiction ratione personae

1. In its original meaning!, the expression “locus standi in judicio”
implies the right of a person to appear or to be heard in such-and-such
proceedings (Jowitt’s Dictionary of English Law, 2nd ed., Vol. 2, p. 1115),
or, as regards the present Court, the right of a person Jato sensu to
appear or to be heard in proceedings before the Court.

The right to appear before the International Court of Justice, due to
the fact that it is not a fully open court of law, is a limited right. The
limitations exist in two respects. Primo, the right is reserved for States
(Statute, Art. 34, para. 1). Consequently, it does not belong to other
juridical persons or physical persons. Secundo, as far as States are con-
cerned, only States parties to the Statute of the Court possess the right
referred to, being as Members of the United Nations ipso facto parties
to the Statute of the Court or by accepting conditions pursuant to
Article 35, paragraph 2, of the Statute. States non-parties to the Statute
can acquire this right on condition that they accept the general jurisdiction
of the Court in conformity with Security Council resolution 9 (1946).

From the substantive point of view, this right is a personal privilege
(privilegia favorabile) of the State which, by accepting the Statute of the
Court, has recognized the Court as a judicial body equipped with jus
dicere. It is the consequence of the burden — or privilegia odiosa — con-
sisting in fulfilment of the conditions prescribed.

1 Even in the jurisprudence of the Court the expression is sometimes used as a descrip-
tive one. Exempli causa, in the case concerning Barcelona Traction, Light and Power
Company, Limited, the Court used it to denote right of “a government to protect the
interests of shareholders as such” which was in effect the matter of legal interest inde-
pendent of the right of Belgium to appear before the Court (Preliminary Objections, Judg-
ment, C.J. Reports 1964, p. 45). On the contrary, in the South West Africa cases the
Court has drawn a clear distinction between “standing before the Court itself”, 1.e., locus
standi, and “standing in the ... phase of ... proceedings (South West Africa, Second
Phase, I.C.J. Reports 1966, p. 18, para. 4).

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Locus standi before the Court cannot, however, be taken as synony-
mous to the jurisdiction of the Court. It is, by its nature, a preliminary
condition or presumption for the jurisdiction of the Court or its compe-
tence. In this sense it is appropriate to speak about general jurisdiction
and special jurisdiction or competence of the Court. By possessing locus
standi a State automatically recognizes general jurisdiction of the Court.

In order to be able to speak about special jurisdiction or competence in
casu, however, it is necessary that, besides the right to appear before the
Court, there should exist a specific basis of jurisdiction. And it is on these
grounds that States submit a concrete dispute or type of disputes to the
Court for solution.

In other words, having in mind the fact that the Court is not only a
court of law whose jurisdiction is of an optional nature, but, at the same
time, a partly open court, it can be said that double consent of States is
necessary in order for the Court to establish its competence in casu:

(i) consent that the Court is “an organ instituted for the purpose of jus
dicere” (dissenting opinion by Dr. Daxner, Corfu Channel, I. CJ.
Reports 1948, p. 39). This consent is expressed indirectly, by joining
the membership of the United Nations, or directly, by a non-
Member of the United Nations either by adhering to the Statute of
the Court or by accepting the general jurisdiction of the Court in
conformity with Security Council resolution 9 (1946) as a prelimi-
nary condition, and

(ii) consent that the Court is competent to deal with the particular
dispute or type of disputes, which is made through relevant juris-
dictional bases within Article 36 of the Statute as a substantive
but qualified condition?.

2. The notions locus standi in judicio and jurisdiction ratione personae
cannot, despite certain extrinsic similarities, be taken as synonymous.

The element shared in common by these two notions is that they rep-
resent processual conditions on whose existence is dependent the validity

2 As stated by the Court “under the system of the Statute the seising of the Court by
means of an Application is not ipso facto open to all States parties to the Statute, it is only
open to the extent defined in the applicable Declarations” (Nottebohm, Preliminary
Objection, Judgment, I.C.J. Reports 1953, p. 122). It should be noted also that the Court
in the Legality of the Use of Force case found

“[wlhereas 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 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” (Provisional Measures, IL. C.J. Reports 1999 (I),
p. 549, para. 20; emphasis added).

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of the actual proceedings before the Court; both with respect to inci-
dental proceedings and the merits, and with respect to the bringing of
the dispute to the Court’s decisions in the proceedings. And there the
common ground between the two notions essentially ends and room
for differences emerges.

The difference between the two is, first of all, of a conceptual nature.
Locus standi is a condition which has to do with parties, whereas jurisdic-
tion ratione personae — as an element of the jurisdiction of the Court —
is a condition which has to do with the Court itself. Also, the question of
locus standi as of antecedent nature is a pre-preliminary question which
“should be taken in advance of any question of competence” (Northern
Cameroons, I.C.J. Reports 1963, p. 105, separate opinion of Sir Gerald
Fitzmaurice; emphasis in the original), whereas jurisdiction ratione per-
sonae is a question of competence, or special jurisdiction of the Court
stricto sensu. Furthermore, a lack of locus standi cannot, as a rule, be
overcome in the proceedings while a lack of jurisdiction ratione personae
is surmountable since the parties may confer jurisdiction upon the Court
in the course of the proceedings or perfect it (for instance, by expressing
agreement or by forum prorogatum). The difference derives from the fact
that jurisdiction is governed by the law in force between the parties, while
locus standi is governed by objective rules of the Statute having a consti-
tutional nature.

The seemingly identical nature of these two notions is, apparently,
mostly due to a tacit equalization of the processual contact between the
Court and the parties to the dispute — and of the litigious relationship.
As there are no separate, preliminary proceedings for establishing the
existence of processual conditions for the validity of the proceedings
(except the administrative action of the Registry in the case of applica-
tions submitted by non-State subjects), the existence of processual con-
ditions is established during the actual proceedings whose validity depends
on the existence of these conditions. This takes place more often than not
during the proceedings on preliminary objections which is why the rare
cases of locus standi are subsumed under jurisdiction ratione personae.

2. Issue of United Nations Membership and locus standi of Serbia and
Montenegro

3. The locus standi of Serbia and Montenegro in the present proceed-
ings before the Court is closely, and, I would say, organically, linked with
its membership in the United Nations, due to the fact that Serbia and
Montenegro could not be considered as being party to the Statute apart
from being a Member State of the United Nations as well as the fact that
its locus standi cannot be based on conditions set forth in Article 35, para-
graph 2, of the Statute of the Court.

4. In normal circumstances, the legal consequences of admission of a

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State to membership in the United Nations are clear and do not require
special elaboration. At the moment of its admission to membership a
State becomes a bearer of the rights and obligations stipulated in the
United Nations Charter, among which of particular relevance in the
matter at hand is the status of a party to the Statute of the Court. How-
ever, the circumstances surrounding the case at hand could hardly be
termed normal. More precisely, the Applicant, Serbia and Montenegro,
was admitted to membership in the Organization on the basis of the
proper procedure. But this was done without its status in the Organization
being previously established in explicit terms either by the political
organs of the United Nations or by the Court.

5. United Nations General Assembly resolution 47/1 is unclear in sub-
stance and contradictory per se. Assessing its substance in the case con-
cerning Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Mon-
tenegro) (hereinafter referred to as “Genocide Convention”), the Court
found that “the solution adopted is not free from legal difficulties” (Pro-
visional Measures, Order of 8 April 1993, L.C.J. Reports 1993, p. 14,
para. 18). The situation was additionally complicated by the subsequent
practice of the United Nations organs “characterized by pragmatism and
flexibility rather than a strict adherence to the procedures” prescribed by
the Charter (Contributor (Christian Tams) on Article 6 (margin note 25)
in B. Simma (ed.), The Charter of the United Nations, A Commentary,
2nd ed., Vol. I, 2002, pp. 213-214). In 1993 Professor Rosalyn Higgins
wrote that “[t]he outcome has been anomalous in the extreme” (R. Hig-
gins, “The New United Nations and Former Yugoslavia”, International
Affairs, Vol. 69, No. 3 (July 1993), p. 479). It can, therefore, be con-
cluded that, until the admission of Serbia and Montenegro to member-
ship in the Organization on 1 November 2000, the political organs of the
United Nations had not determined the status of Serbia and Montenegro
in the United Nations in a clear and unequivocal manner.

6. From 1993 onwards the Court was faced with the question of
Serbia and Montenegro’s membership in the United Nations a number of
times. The relevant findings of the Court relating to this particular ques-
tion can, generally, be divided into: primo, findings of the Court which,
by their formal, extrinsic characteristics, could be qualified as “avoiding
positions” and, secundo, the obiter dicta of the Court which contain cer-
tain elements or indications of a substantive approach to the matter at
hand.

(a) Findings of the Court based on “avoiding position”

7. In its Order of 2 June 1999 the Court stated that it “need not con-
sider this question for the purpose of deciding whether or not it can indi-
cate provisional measures in the present case” (Z C.J. Reports 1999 (I),
p. 553, para. 33). What we have here is a slightly modified formulation

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expressing “avoiding position” of the Court with regard to the question
of “whether or not Yugoslavia is a Member of the United Nations, and as
such a party to the Statute of the Court” (Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia (Serbia and Montenegro) ), Provisional Meas-
ures, Order of 8 April 1993, LC.J. Reports 1993, p. 14, para. 18) which
the Court used several times in the disputes to which Serbia and Mon-
tenegro is a party in the proceedings before the Court. The correctly inter-
preted formulation, regardless of modification in the specific cases, sug-
gests the conclusion that the Court reserved the right to state its definitive
position on the relevant question in the later phases of the proceedings.

It is easy to conclude that such a finding of the Court represents a
delay of the answer to the question “whether or not Yugoslavia is a
Member of the United Nations, and as such a party to the Statute of the
Court” (ibid. ). However, the question appears which are, in the circum-
stances of the case, the intrinsic meanings of the delay.

8. On the basis of the Application of the Federal Republic of Yugo-
slavia (hereinafter referred to as the “FRY”) filed in the Registry of the
Court on 29 April 1999, the Court was seised and on the basis of a
request for the indication of provisional measures the Court instituted
the proper proceedings. Was the Court, in the light of the relevant pro-
visions of the Statute, in a position to be seised? Furthermore, was it ina
position to institute proceedings for the indication of provisional meas-
ures, if the Federal Republic of Yugoslavia had not been a Member of
the United Nations in the relevant period? Nor indeed had the FRY
accepted the general jurisdiction of the Court in conformity with Security
Council resolution 9 (1946) pursuant to Article 35, paragraph 2, of the
Statute of the Court.

The answer to this question is obviously in the negative, having in
mind that, in the optic of a court of law with limited access, it is essential
to fulfil the relevant preliminary condition — to acquire locus standi — as
a prerequisite for taking litigious actions before the Court.

9. The Court was thus faced with a choice among possible solutions in
view of the fact that there existed at least a doubt regarding the legal posi-
tion of Yugoslavia diagnosed already in 1993 (Application of the Conven-
tion on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia (Serbia and Montenegro) ), Provisional
Measures, Order of 8 April 1993, I C.J. Reports 1993, p. 14, para. 18):

(i) to ask for an authentic interpretation of resolution 47/1 from the
General Assembly as the competent organ of the United Nations;

(ii) to make its own interim determination of the matter either by
directing, on the basis of paragraph 2 of Article 38 of the Rules
of Court, that the first pleading should be addressed to the

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matter? or by instituting pre-judicatory proceedings on the basis
of Article 48 of the Statute; and

(ili) to resort to the judicial presumption of the right of Yugoslavia to
appear before the Court.

And the Court made the choice to rely on the presumption that Yugosla-
via was a Member of the United Nations and as such entitled to appear
before the Court (see dissenting opinion of Judge Vereshchetin appended
to the Judgment of 3 February 2003 in the case concerning Application
for Revision of the Judgment of 11 July 1996 in the Case concerning
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
Objections ( Yugoslavia v. Bosnia and Herzegovina), Judgment, I CJ.
Reports 2003, p. 41, para. 4 (hereinafter referred to as the “Application
for Revision”); separate opinion of Judge Koroma, ibid., p. 36, para. 9).

(b) Judicial presumptions
10. Judicial presumption, along with legal presumption‘, is one of the

3 In the Order of 30 June 1999 the Court noted Belgium requested

“that the question of the jurisdiction of the Court and of the admissibility of the
Application in this case should be separately determined before any proceedings on
the merits” (Legality of Use of Force (Yugoslavia v. Belgium), Order of 30 June
1999, I C.J. Reports 1999 (IT), p. 989).

For,

“the fact that the various provisions regulating the incidental jurisdiction are included
in the Statute . . . serves to supply a general consensual basis, through a State’s being
a party to the Charter and Statute, which are always part of the title of jurisdiction
and always confer rights and impose obligations on its parties in relation to the Court
and it’s activities. But if it is obvious that the Court lacks all jurisdiction to deal with
the case on the merits, then it automatically follows that it will lack all incidental
jurisdiction whatsoever.” (Shabtai Rosenne, The Law and Practice of the Interna-
tional Court 1920-1996, Vol. II, 1997, pp. 598-599; emphasis added.)

4 Better known than judicial presumptions, legal presumptions (praesumptio juris) are
widely applied in international law. International tribunals are used to resort to proof by
inferences of fact (présomption de fait) or circumstantial evidence (Corfu Channel, Mer-
its, Judgment, I.C.J. Reports 1949, p. 18). For legal presumption in the practice of the
Inter-American Court of Human Rights, see T. Buergenthal, R. Norris and D. Shelton,
Protecting Human Rights in the Americas, Selected Problems, 2nd ed., 1986, pp. 130-132
and pp. 139-144. The practice of international courts abounds in presumptions based on
general principles of international law, whether positive as presumption of good faith
(exempli causa, Mavrommatis Jerusalem Concessions, Judgment No. 5, 1925, P.C.LJ.,
Series A, No. 5, p. 43) or negative as presumption of abuse of right (Certain German
Interests in Polish Upper Silesia, Merits, Judgment No. 7, 1926, P.C.I.J., Series A, No. 7,
p. 30; Free Zones of Upper Savoy and the District of Gex, Second Phase, 1930, P.C.LJ.,
Series A, No. 24, p. 12; Corfu Channel, Merits, Judgment, 1949, IL C.J. Reports 1949,
p. 119, dissenting opinion of Judge Ecer). The special weight they possess in the interpre-
tation of treaties since the function of interpretation of treaties is to discover “what was,
or what may reasonably be presumed to have been, the intention of the parties to a treaty
when they concluded it” (Harvard Law School, Research in International Law, Part ITT,
Law of Treaties, Art. 19, p. 940; emphasis added).

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1109 LEGALITY OF USE OF FORCE (SEP. OP. KRECA)

main sorts of presumption in international law. It means that a certain
fact or state of affairs, even though it has not been proved, is taken by an
international tribunal as truthful. As such it does not necessarily coincide
with, or is not equivalent to, the fact or the state of affairs.

As far as the reasoning of the existence of judicial presumption is con-
cerned, considerations of a practical nature are prevalent.

Judicial presumption is a weapon to avoid waiting to get to know pre-
cisely the facts and situation on which is dependent the existence, content
or cessation of the right that would have adverse consequences for inter-
ested subjects or that would render difficult due course of legal proceed-
ings.

The law, however much it tends to establish the truth and to be truth-
ful, actually pays more attention to finding useful and suitable solutions
for the given situations rather than allowing, in an attempt to establish
truth as such, the rights and obligations that exist to fall through or to be
harmed.

11. Asa sort of presumption, the judicial presumption bears some spe-
cific features differing it from legal presumption (praesumptio juris).

Two principal features of judicial presumption should be mentioned in
that regard.

Primo, judicial presumption is, as a rule, a natural, factual presump-
tion (praesumptio facti vel homine) having no basis in the particular
rules that constitute the law of the international tribunal or the law it is
applying. It is an inherent element of the legal reasoning of the interna-
tional tribunal in the interpretation and application of the rules of law.

Secundo, in contrast to legal presumption which can be irrefutable
(praesumptio juris et de jure), the judicial presumption as a natural or
factual one is, by definition, of refutable nature. Their refutable nature is,
however, a specific one.

Bearing in mind that it is a part of the reasoning of the international
tribunal, it cannot be refutable in the sense in which that is the case of
legal presumption. Judicial presumption, as such, is in fact capable of
being abandoned or replaced by the international tribunal.

In its legal reasoning the international tribunal abandons it, or replaces
it, by other presumption. In the strict sense, only those findings or deci-
sions of the international tribunal that are based on judicial presump-
tions are refutable. However, they lose the ratio of their existence when
the international tribunal identifies the controversial matter which con-
stitutes the subject of judicial presumption. Then they drop by themselves
because they are deprived of their subject. But even then, it is the duty of
the international tribunal to refute, in the proper proceedings, its own
finding or decision based on a presumption.

12. So-called “prima facie jurisdiction” is, in fact, a good illustration

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of judicial presumptions. The expression “prima facie jurisdiction” is a
somewhat artificial combination of the modal-prima facie and of the
object-jurisdiction. The modal is, in the particular context, also the quali-
tative, having in mind that “prima facie” in the legal reasoning of the
Court implies “not conclusive”, “not definitively”. In its grammatical
meaning the expression “prima facie jurisdiction” suggests the existence
of a distinct jurisdiction, that is, as reflecting a division of the jurisdiction
of the Court. Understood in this sense, the division of jurisdiction has no
foundation in the Statute or Rules of Court, or in the legal logic, for that
matter. The expression “prima facie ascertainment of jurisdiction” seems
to be more appropriate. Basically, it means a prima facie case, a case
established by prima facie evidence. On that basis the Court assumed
jurisdiction reserving the subsequent procedure for further, including the
conclusive, decision.

13. In the substantive meaning, the so-called avoiding position of the
Court in the light of the relevant circumstances of the case is something
more than, and different from, simply delay. The avoiding position of the
Court could not be reduced to delay considering, first of all, the fact that
the question of the FRY’s status vis-a-vis the United Nations and the
Statute of the Court concerns its very ability to appear before the Court.
It is hard to imagine that the Court, as the guardian of its Statute, in
responding to this crucial question, could have been content with simply
delay. The avoiding position of the Court has two aspects: the intrinsic
or substantive one, reflected in the presumption regarding the FRY’s
membership in the United Nations, and the extrinsic, formal one which
boils down to a delay.

14. The presumption of membership of Yugoslavia in the United
Nations in the circumstances that existed prior to 1 November 2000 pro-
vided the only possible basis for seisin of the Court.

The right of a party to appear before the Court is the prerequisite of a
valid seisin. Seisin of the Court is not, nor can it be, an automatic con-
sequence of the act of a State taken with the objective of its seisure (such
an act would be more appropriate to term “seising”; see Sir Gerald Fitz-
maurice, The Law and Procedure of the International Court of Justice,
Vol. II, 1986, p. 440, footnote 2). If, arguendo, one would accept the
opposite view, it is unclear why the Court would not be seised also in the
case of acts taken by other persons — physical or juridical — who, pur-
suant to the Statute, are not entitled to appear before the Court.

An effective seisin of the Court is the condition short of which the
Court can hardly exercise the powers conferred upon it by the Statute.
These powers the Court must exercise

“whenever it has been regularly seised and whenever it has not been
shown, on some other ground, that it lacks jurisdiction or that the

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claim is inadmissible” (Nottebohm, Preliminary Objection, Judg-
ment, I.C.J. Reports 1953, p. 122; emphasis added).

The Court, in fact, would not be able to deal with the claim if it were
not regularly seised. As the Court stated:

“When an Application is filed at a time when the law in force
between the parties entails the compulsory jurisdiction of the Court
... the filing of the Application is merely the condition required to
enable the clause of compulsory jurisdiction to produce its effects in
respect of the claim advanced in the Application. Once this condition
has been satisfied, the Court must deal with the claim; it has jurisdic-
tion to deal with all its aspects, whether they relate to jurisdiction, to
admissibility or to the merits.” (Nottebohm, Preliminary Objection,
Judgment, I.C.J. Reports 1953, p. 123; emphasis added.)

15. Judicial presumptions, being refutable per definitionem, are subject
to verification. In principle, such presumptions as to locus standi of the
parties are verified by the Court ex officio or upon objection of the party.

In this (these) particular case(s) it should be pointed out that the pre-
liminary objections of all the respondent States regarding the jurisdiction
of the Court ratione personae are of a specific nature. Although mainly
named as objections to the jurisdiction ratione personae, they in fact chal-
lenged the validity of the seisin of the Court. Moreover, four of the
respondent States (namely, Portugal, Germany, the Netherlands and
Italy) requested, in similar terms, the Court in their final submissions to
adjudge and declare that Yugoslavia “has no locus standi before the
Court” or that “the FRY is not entitled to appear before the Court”. In
other words, they called in question the very existence of the “case”
before the Court.

(c) Effective and valid seisin

16. It appears that a distinction has to be made between an “effective
seisin” and a “valid seisin” of the Court.

Effective seisin of the Court is, as a rule, based on prima facie appre-
ciation of the right of the party or parties to appear before the Court.

The prima facie appreciation of the right of the party or parties to
appear before the Court, in contrast to the appreciation of the basis of
jurisdiction, seems to be relaxed due primarily to the fact that today
almost all States are Members of the United Nations. Accordingly, it
appears that in the practice of the Court it is assumed that the fulfilment
of the conditions specified in Article 38, paragraphs 1, 2 and 3, and
Article 39, paragraphs 1 and 2, of the Rules of Court enables effective
seisin of the Court.

The effective seisin is, in the absence of separate proceedings designed
to deal with conditions for the validity of the proceedings, including the
question of locus standi, before the very institution of a proceeding, a

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necessary procedural step enabling the Court to deal, inter alia, with the
validity of its seisin.

In contrast, valid seisin in regard to the question of locus standi means
that it is conclusively established by the Court that parties to a dispute
have fulfilled the necessary precondition to be entitled to appear before
the Court, 1.e., that they have recognized in the proper way — by being a
party to the Statute of the Court or by the declaration pursuant to resolu-
tion 9 (1946) of the Security Council — the general jurisdiction of the
Court. It is that relevant point in time in which parties to a dispute
become parties to the dispute before the Court.

In that regard, the relationship between effective seisin and valid seisin
could be compared with the relationship between the so-called prima
facie jurisdiction and jurisdiction considered as conclusively established.

Accordingly, if the expression “effective seisin” or “regular seisin” is
used to denote validity of the seisin of the Court, it should be understood
as relating to the formal aspect of its validity only, not to the substantive
one.

(d) Obiter dictum containing elements or indications of substantive
approach

17. In the Application for Revision case the Court, considering Gen-
eral Assembly resolution 55/12 of 1 November 2000, points out, inter
alia, that it

“cannot have changed retroactively the sui generis position which
the FRY found itself in vis-à-vis the United Nations over the period
1992 to 2000, or its position in relation to the Statute of the Court
and the Genocide Convention. Furthermore, the letter of the Legal
Counsel of the United Nations dated 8 December 2000 cannot have
affected the FRY’s position in relation to treaties.” (Judgment,
1. C.J. Reports 2003, p. 31, para. 71.)

It is easy to go along with the findings that, as a rule, General Assembly
resolutions, including the resolution in question, do not have retroactive
effect. But this finding of the Court can hardly be said to be very useful.
Because of the object of the exclusion of retroactive effect of General
Assembly resolution 55/12 in the aforementioned obiter — i.e. a “sui
generis position which the FRY found itself in vis-à-vis the United
Nations over the period 1992 to 2000 . . .” — which is obviously unclear
and vague. In the quoted formulation the phrase “sui generis” is linked
to the substantive “position” which, in this particular context, has a
highly unclear and technical meaning. Has it been used as a synonym or
a substitute for the word “membership” or the term “membership rights
and obligations” or, to express, for that matter, the factual relationship
between the Applicant and the Organization? If it has the meaning of
“sui generis’ membership, it is difficult to fathom which elements of

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membership from the abstract point of view, or which concrete elements
of presumed membership of the Federal Republic of Yugoslavia, would
provide the basis of the qualification that what is involved here is “sui
generis” membership? Namely, it is worth noting that the United Nations
Charter makes no mention of “sui generis” membership, obviously a
kind of amalgamation of “membership” and “non-membership”. So, the
terms such as this one represent rather an attempt of sorts to conceptu-
alize something that is non-existent as a notion, and not an appropriate
expression of positive legal substance — the more so, if one has in mind
the absence of a limine or exempli causa elements of “membership” or
non-membership” in the world Organization.

It is true, however, that in paragraph 70 of the Judgment of 3 February
2003 in the Application for Revision case it is stated that

“Resolution 47/1 did not inter alia affect the FRY’s right to
appear before the Court . . . under the conditions laid down by the
Statute. Nor did it affect the position of the FRY in relation to the
Genocide Convention.” (Judgment, L.C.J. Reports 2003, p. 31,
para. 70.)

This particular dictum seems to be an assertion rather than a proper legal
reasoning. More specifically, it is unclear what is actually the legal basis,
in the light of the controversy regarding the status of the Applicant in the
United Nations, for “the FRY’s right to appear before the Court”
(ibid. ). Is it based on its being a United Nations Member State which is
ipso facto a party to the Statute of the Court, or under the conditions
specified in Article 35, paragraph 2, of the Statute of the Court and Secu-
rity Council resolution 9 (1946)?

18. It is unclear how the obiter about the “sui generis position” of the
FRY vis-a-vis the United Nations came to find a place in the Court’s
Judgment in the Application for Revision case. In that case the Court was
faced with the issue whether the admission of the FRY to the United
Nations as such is a “new fact” in the sense of Article 61 of the Statute.
The Court itself stressed that:

“In reality, [the FRY] bases its Application for revision on the
legal consequences which it seeks to draw from facts subsequent to
the Judgment which it is asked to have revised. Those consequences,
even supposing them to be established, cannot be regarded as facts
within the meaning of Article 61. The FRY’s argument cannot
accordingly be upheld.” (Application for Revision of the Judgment of
11 July 1996 in the Case concerning Application of the Convention
on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections
( Yugoslavia v. Bosnia and Herzegovina), Judgment, I. C.J. Reports
2003, p. 30, para. 69; emphasis added.)

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What is striking is that the Court formulated its obiter after almost ten
years of the “avoiding position” approach to the issue, although the issue
of membership of the FRY in the United Nations was ab initio of fun-
damental importance for the jurisdiction of the Court in all disputes in
which the FRY is involved as a party before the Court. Having that in
mind, it could hardly be objected to by the Court that, throughout that
period, it found it necessary, in any of the proceedings unfolding before it
successively, to make interim determination upon the issue in explicit
terms for the purposes of the pending proceedings. However, the Court
failed to do so until the admission of the FRY to the United Nations,
when the matter was resolved definitely. That comes as a surprise in
itself.

19. The objective meaning of the insistence on the sui generis position
of Serbia and Montenegro vis-a-vis the United Nations in the period
from 1992 to 2000, as considered in paragraph 70 of the Judgment in the
Application for Revision case, amounts in the existing circumstances to
an attempt to revise the decision taken by the main political organs of the
United Nations. Or in terms of legal notions, it amounts to the creation
of a fictio leges.

20. The qualifications of the status of the Applicant in the United
Nations as “sui generis membership”, “de facto working status”, etc., are
deprived of legal substance in terms of the Charter. The Charter of the
United Nations does not recognize such forms of “membership” or “non-
membership” or a mixture thereof. These syntagmas constitute rather an
attempt — based on analogy with membership in terms of the Charter —
of a notional conceptualization of observer status of a non-Member
based on Article 2, paragraph 6, and Article 35, paragraph 2, of the
Charter, or of the status of non-State entities, such as national liberation
movements, or of observer status of regional organizations and groups of
States pursuant to Article 52, paragraph 1, of the Charter of the United
Nations. In the qualitative sense, the meaning of the syntagmas such as
“sui generis membership” or “de facto working status” would mean, in
fact, reduced membership rights or the privileged position of some
non-Members.

Such a meaning can hardly be brought in accordance either with the
provisions of the Charter of the United Nations which regulate member-
ship rights and obligations, or with the fundamental principle of sover-
eign equality of States enshrined in Article 2, paragraph 1, of the Charter
of the United Nations.

The provisions of the Charter, as far as the relationship of the Organi-
zation vis-a-vis States is concerned, have been formulated in terms of the
dichotomy Member States/non-Member States. Tertium quid simply does
not exist. Chapter II of the United Nations Charter (“Membership”)
points out only the division into the original Members of the United

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Nations and the subsequently admitted Members of the Organization, a
division which has no substantive meaning in terms of membership rights
and duties, but only that of historical record.

Article 2 of the Charter of the United Nations, setting out the prin-
ciples on which the Organization and its Members are based and shall
act, provides in paragraph 1 that “[t]he Organization is based on the prin-
ciple of the sovereign equality of all its Members”.

The principle contained in Article 2, paragraph 1, of the Charter con-
stitutes ratione materiae a narrow application of the “basic legal concept
of State sovereignty in customary international law” (Military and Para-
military Activities in and against Nicaragua (Nicaragua v. United States
of America), Merits, Judgment, I.C.J. Reports 1986, p. 111, para. 212;
hereinafter referred to as “Nicaragua”), with legal force equal to that of
the principle expressed in paragraph 2 of the same Article determined by
the Court as being “not only a principle of customary international law
but also a fundamental or cardinal principle of such law” (ibid., p. 100,
para. 190).

The principle of the sovereign equality of States as a universal principle
belonging to corpus juris cogentis operates with the United Nations
Charter on two levels:

(i) in the relationship between the Member States, with the exception of
the permanent members of the Security Council, as the principle of
equal membership rights and obligations, and

(ii) in the relationship between non-Member States and the Organiza-
tion, as the principle of equal rights and obligations non-Members
before the appropriate organs of the Organization as stipulated by
Article 35, paragraph 2, of the Charter.

In other words, the peremptory nature of the principle of sovereign
equality of States would not suffer a reduction in the corpus of rights and
obligations of an individual Member in relation to the corpus of rights
and obligations of a Member State as such on the basis of the Charter;
nor indeed would it entail enlarged rights and obligations of an indi-
vidual non-Member State over and above the extent of the rights and
obligations of non-Member States envisaged by the Charter.

The fact that the exercise of certain membership rights by a Member
State may be suspended on the basis of Article 5 of the Charter is another
matter. The suspension of membership rights and privileges on the basis
of Article 5 does not encroach upon the principle of equal membership
rights and privileges in view of the fact that it leaves unaffected both the
legal basis, and the membership rights and privileges, restricting only the
exercise of the membership rights and privileges until the removal of sus-
pension. However, the suspension of membership rights may, in special
circumstances, lead to a violation of the fundamental principle of equal-
ity of Member States in the proceedings before the Court (for instance, if
a suspended Member is precluded from taking part in the work of organs
of the Organization, or in the procedures established, whose findings or

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statements serve as evidence in the proceedings before the Court).

The disappearance of a Member State as a subject of international law
leads ipso facto to the cessation of membership in the Organization of the
United Nations. Since membership rights and obligations are a substan-
tive effect of membership in the Organization, there exists an equal sign
between the disappearance of a State and the cessation of all its member-
ship rights and obligations. (An exception to this are the rights and obli-
gations embodied in the Charter which have an erga omnes or a peremp-
tory character and which, from the legal aspect, are not membership
rights and obligations.)

21. The proper judicial presumption has been applied by the Court in
the proceedings for the indication of provisional measures.

Namely, the finding of the Court that “the declarations made by the
Parties under Article 36, paragraph 2, of the Statute do not constitute a
basis on which the jurisdiction” was grounded in the limitation ratione
temporis contained in Yugoslavia’s declaration recognizing the compul-
sory jurisdiction of the Court (Legality of Use of Force (Yugoslavia
v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J. Reports
1999 (I), p. 135, para. 30). Consequently, the Court did not call in ques-
tion the validity of Yugoslavia’s declaration recognizing the compulsory
jurisdiction of the Court pursuant to Article 36, paragraph 2, of the
Statute, as such, but the temporal modality of its application in the
light of the reciprocity condition.

It appears that Judge Kooijmans was right in noting that:

“How can the Court say that there is no need to consider the ques-
tion of the validity of Yugoslavia’s declaration whereas at the same
time it concludes that this declaration, taken together with that of
the Respondent, cannot constitute a basis of jurisdiction? This con-
clusion surely is based on the presumption of the validity of Yugosla-
via’s declaration, at least for the present stage of the proceedings. If
such a presumption does not exist, the Court should at least have
said that it accepts that validity purely arguendo since, even if it had
been valid, it would not have had the capability to confer jurisdic-
tion on the Court in view of the limitation ratione temporis in the
Applicant’s declaration.” (Legality of Use of Force (Yugoslavia
v. Belgium), Provisional Measures, Order of 2 June 1999, LCJ.
Reports 1999 (I), p. 177, para. 16, separate opinion of Judge Kooïj-
mans; emphasis added.)

Reciprocity has nothing to do with the validity of a declaration as a juris-
dictional instrument, having in mind that it is limited in its effect to the
temporal scope of the obligation covered by the declaration. It is capable
of producing effect only limiting jurisdiction to the common ground

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accepted by both parties, as stated by the Court in the /nterhandel
case:

“Reciprocity enables the State which has made the wider accept-
ance of the jurisdiction of the Court to rely upon the reservations to
the acceptance laid down by the other Party. There the effect of reci-
procity ends.” (Preliminary Objections, Judgment, I.C.J. Reports
1959, p. 23; emphasis added.)

Having in mind the provisions of Article 36, paragraph 2, of the Statute
of the Court, and considering that Yugoslavia did not accept the jurisdic-
tion of the Court on the basis of Security Council resolution 9 (1946), it
transpires that the presumption of the validity of Yugoslavia’s declara-
tion only ratione materiae is a narrowed presumption of the membership
of Yugoslavia in the United Nations.

22. The Court furthermore resorted to the presumption of the legal
identity and continuity of the FRY when referring to the Genocide Con-
vention, and found that it lacks jurisdiction due to the fact that genocidal
intent on the part of the respondent States has not been proved.

In other words, the Court found that, in casu, there exists, at least,
prima facie jurisdiction ratione personae — on the basis of the con-
tractual nexus between the Applicant and the Respondent in the frame-
work of the Genocide Convention — and the lack of jurisdiction ratione
materiae on the basis of the Convention was ascribed by the Court to
the fact that genocidal intent, as an element of the crime of genocide,
has not been made probable.

It is obvious that the finding of the Court regarding the FRY as a
party to the Genocide Convention was based in the formal declaration of
the FRY of 22 April 1992, confirmed in an official Note of 27 April 1992
from the Permanent Mission of Yugoslavia to the United Nations
addressed to the Secretary-General to the effect that:

“The Federal Republic of Yugoslavia, continuing the State,
international legal and political personality of the Socialist Federal
Republic of Yugoslavia, shall strictly abide by all the commitments
that the Socialist Federal Republic of Yugoslavia assumed inter-
nationally.” (Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia), Preliminary Objections, Judgment, IC.J. Reports
1996 (IT), p. 610, para. 17.)

The rules of interpretation of unilateral acts of States, accurately and
clearly set out in the Fisheries Jurisdiction (Spain v. Canada) case as
“declarations ... are to be read as a whole” and “interpreted as a unity”
(Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 454, para. 47;
p. 453, para. 44), indicate that unilateral acts “must be interpreted as
[they stand], having regard to the words actually used” (Anglo-Iranian

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Oil Co., Preliminary Objection, Judgment, I C.J. Reports 1952, p. 105),
with “certain emphasis on the intention of the . . . State” (Fisheries Juris-
diction (Spain v. Canada), Jurisdiction of the Court, Judgment, I. CJ.
Reports 1998, p. 454, para. 48).

It is difficult, on the basis of these rules of interpretation of unilateral
acts of States, or even on the basis of any of them taken individually, to
draw a conclusion that the intention of Yugoslavia was to “strictly abide
by all the commitments that the Socialist Federal Republic of Yugoslavia
assumed internationally” (Application of the Convention on the Preven-
tion and Punishment of the Crime of Genocide ( Bosnia and Herzegovina
v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II),
p. 610, para. 17) without reliance on, or on some other basis, except the
legal identity and continuity with the Socialist Federal Republic of Yugo-
slavia (hereinafter referred to as the “SFRY”). (It is also disputable
whether the declaration of 27 April 1992 could be taken as a unilateral
act creating legal obligations at all. As the Court clearly stated in the
Nuclear Tests cases “[w]hen it is the intention of the State making the
declaration that it should become bound according to its terms, that
intention confers on the declaration the character of a legal undertaking”
(Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974,
p. 267, para. 43; Nuclear Tests (New Zealand v. France), Judgment,
1. C.J. Reports 1974, p. 472, para. 46). Thus all depends on the intention
of the State and it is up to the Court to “form its own view of the mean-
ing and scope intended by the author of a unilateral declaration which
may create a legal obligation” (Nuclear Tests (Australia v. France),
Judgment, I.C.J. Reports 1974, p. 269, para. 48; Nuclear Tests (New
Zealand v. France), Judgment, IL.C.J. Reports 1974, p. 474, para. 50). It
seems crystal clear from the text of the declaration that the intention of
Yugoslavia was not that it should become bound by obligations of the
former SFRY but to remain bound by “all obligations to international
organizations and institutions whose member it is”.)

Having in mind that, after the adoption of the Constitution of 27 April
1992, Yugoslavia did not express its consent to be bound by the Geno-
cide Convention in the way stipulated by Article XI of the Convention
and nor did it issue the notification of succession, it is obvious that the
only basis for Yugoslavia to be considered a party to the Genocide Con-
vention before 12 March 2001 is the legal identity and continuity of the
SFRY in the domain of multilateral treaties.

23. It seems clear that the aforementioned Court’s presumptions were
not, in the circumstances surrounding the overall status of the FRY, of a
violent nature (violentia praesumptio). A contrario, the finding that the
solution adopted by General Assembly resolution 47/1 “is not free from
legal difficulties” (Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugo-

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slavia (Serbia and Montenegro) ), Provisional Measures, Order of 8 April
1993, ILC.J. Reports 1993, p. 14, para. 18) would be devoid of substance.

Having in mind the relevant circumstances that existed until the admis-
sion of Yugoslavia to membership in the United Nations, expressing rela-
tive balance in terms pro et contra, it might be said that those presump-
tions lie between light presumptions (praesumptiones facti vel hominis
leves) and probable presumptions (praesumptiones facti vel hominis
graves).

3. The Legal Consequences of the Admission of the FRY to the United
Nations

24. The FRY claimed legal identity and continuity with the SFRY
until the year 2000. Although, in my view, the FRY, in the light of the
relevant rules of international law — rules which are not quite clear and
crystallized, true — possessed the right to legal identity and continuity
with the SFRY, the continuity claim of the FRY, considered on the basis
of eminently political reasons, has not been accepted. This fact, when
speaking about the status of the FRY in the United Nations, is reflected
in the status which might be, very approximately, qualified as a kind of
irregular de facto suspension of membership rights on the model of
“vacant seat”. A model which, in relation to the FRY, was originally
applied in the Organization for Security and Co-operation in Europe
(OSCE).

25. At the end of the year 2000 the FRY, in the relevant context, did
two things:

(i) renounced the continuity claim and accepted the status of the suc-
cessor State of the former SFRY; and

(ii) proceeding from a qualitatively new legal basis — as the successor
State — submitted the application for admission to membership in
the United Nations.

26. The State, as a notion of international law, comprises two ele-
ments, i.e., possesses two faces:

(i) statehood in the sense of the relevant attributes such as a defined
territory, stable population and sovereign power;

(ii) legal personality, i.e., the status of a subject of international law
equipped with a corpus of rights and obligations. The legal person-
ality of the FRY, in the light of the relevant circumstances surround-
ing it, can be either of an inferential, derivative nature — based on
the legal identity and continuity with the SFR Y — or of an inherent,
original nature — based on the status of a new State.

27. By submitting the application for admission to membership in the
United Nations, Yugoslavia not only renounced the claim to legal iden-

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tity and continuity but claimed at the same time to be accepted as a new
State in the sense of some other, different legal personality — a successor
State versus partial continuation of the former SFR Y — from the one
claimed until the year 2000. In fact, it accepted the claim qualified as the
claim of the international community made at the moment of the formal
proclamation of the FRY in April 1992. A claim which, however, the rele-
vant international organizations as well as States, acting in corpore as
members of the organizations or individually, did not implement in either
the formal or the substantive sense. Instead, they opted for solutions
based on pragmatic political considerations rather than on considera-
tions based on international law. Hence, a legal “Rashomon” about the
legal character of Yugoslavia was created — it is a new State or the old
State? — and about its status in the United Nations — is it a Member of
the United Nations or not?

28. The admission of Yugoslavia to membership of the United Nations
from 1 November 2000 also meant the acceptance of the claim of Yugo-
slavia to be accepted as a new State in the sense of a new international
personality different from its hybrid and controversial personality in the
period 1992-2000. The claim was accepted by way of a series of collateral
agreements in a simplified form, or a general collateral agreement in a
simplified form, between the FRY, on the one hand, and the Member
States of the United Nations and the world Organization itself, on the
other, embodied tacitly in the letter and spirit of General Assembly reso-
lution 55/12 and subsequent consistent practice of the Organization
(exempli causa, the letter of the Under-Secretary-General and Legal
Counsel of the United Nations of 8 December 2000° and the list of Mem-
ber States with dates of their admission to the United Nations (United
Nations Press Release ORG/1317 updated 18 December 2000). The sub-
ject of the series of collateral agreements, or of the general collateral
agreement, is in fact recognition of the FRY as a new personality, a per-
sonality of the successor State of the former SFRY, and, in that capacity,

5 The letter of the Under-Secretary-General and Legal Counsel of the United Nations
of 8 December 2000 relating to one of the relevant legal consequences of the admission of
the FRY in the United Nations in the capacity of a successor State is basically of the
administrative nature. In that regard, it should be stressed that in its 1996 Judgment deal-
ing with the question of Bosnia and Herzegovina’s participation in the Genocide Conven-
tion, the Court noted that

“Bosnia and Herzegovina became a Member of the United Nations following the
decisions adopted on 22 May 1992 by the Security Council and the General Assem-
bly, bodies competent under the Charter. Article XI of the Genocide Convention
opens it to “any Member of the United Nations’; from the time of its admission to
the Organization, Bosnia and Herzegovina could thus become a party to the Conven-
tion.” (Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judg-
ment, IL C.J. Reports 1996 (IT), p. 611, para. 19; emphasis added.)

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its admission to the world Organization as a Member. Thus, Yugoslavia,
although being the “old State” in the sense of statehood, was universally
recognized as a “new State” in the sense of its international legal person-
ality. In view of the fact that recognition of a State has ex definitione
retroactive effect, it necessarily follows that all pronouncements and
decisions taken relate to the FRY claiming continuity with the SFRY.
And, as far as the FRY after the year 2000 is concerned, its legal existence
as a new international legal personality started in November 2000 by its
admission to membership of the United Nations.

29. General Assembly resolution 55/12 is not an ordinary resolution.
Resolutions on the admission of a State to the United Nations, as distinct
from recommendation, have a character of decision. Namely,

“the functions and powers conferred by the Charter on the General
Assembly are not confined to discussion, consideration, the initia-
tion of studies and the making of recommendations; they are not
merely hortatory. Article 18 [of the Charter] deals with ‘decisions’ of
the General Assembly ‘on important questions’. These ‘decisions’
do indeed include certain recommendations, but others have disposi-
tive force and effect. Among these latter decisions, Article 18°
includes suspension of rights and privileges of membership, expul-
sion of Members . . . In connection with the suspension of rights and
privileges of membership and expulsion from membership [Articles 5
and 6], it is the Security Council which has only the power to
recommend and it is the General Assembly which decides and
whose decision determines status.” (Certain Expenses of the United
Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion,
1. C.J. Reports 1962, p. 163; emphasis added.)

Consequently, “[t]he decisions of the General Assembly would not be
reversed by the judgment of the Court” (Northern Cameroons, Prelimi-
nary Objections, Judgment, I.C.J. Reports 1963, p. 33), for in the struc-
ture of the United Nations the Court does not possess “the ultimate
authority to interpret the Charter” (Certain Expenses of the United
Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion,
1 C.J. Reports 1962, p. 168).

6 Article 18 of the Charter enumerates, inter alia, “the admission of new Members to
the United Nations”.

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The determination made by the competent organs of the United
Nations entails the legal consequences. The admission of the FRY to the
United Nations as a Member from 1 November 2000 has two principal
consequences in the circumstances of the cases at hand:

(i) with respect to the admission of Yugoslavia as a Member as from
1 November 2000, it can be said, though somewhat descriptively,
that what is involved here is the admission “as a new Member”. This
expression indicates its temporal status in relation to the Members
admitted on an earlier date;

(ii) the admission of Yugoslavia as a Member as from 1 November 2000
qualified per se its status vis-à-vis the United Nations before that
date. It seems clear that, in the light of the decisions taken by the
competent organs of the United Nations, this status could not be a
membership status. A contrario, Yugoslavia could not have been
admitted as a Member as from 1 November 2000. Just as it is impos-
sible for things to be black and white at the same time, Yugoslavia
could not have been either a Member and a non-Member in the
period 1992-2000.

30. In the case at hand the Court was faced with several preliminary
objections of the Respondent, concerning both the special jurisdiction of
the Court in all three aspects (ratione personae, ratione materiae, ratione
temporis), the admissibility of the Applicant’s claims and the general
jurisdiction of the Court (locus standi of Serbia and Montenegro).

Having found that there is a lack of jurisdiction, the Court based
its decision, essentially, on the absence of locus standi of Serbia and
Montenegro. It appears that it has chosen the right path.

In the choice of the ground on which the Court is basing its lack of
jurisdiction, the Court enjoys a certain discretion — discretio legalis —
whose limits are determined by common sense and overriding legal con-
siderations emanating from the very nature of the judicial function. In
that regard, the Court has produced a general formula in the Certain
Norwegian Loans case, stating that “the Court is free to base its decision
on the ground which in its judgment is more direct and conclusive”
(Judgment, I.C.J. Reports 1957, p. 25).

The Court puts the formula in concrete terms depending on the cir-
cumstances of each particular case in order to determine the ground
which, objectively, has priority, both in terms of commonsense and in the
sense of legal considerations, in relation to the other grounds raised.

In concreto, it appears that locus standi of Serbia and Montenegro
deserves absolute priority in relation to the other grounds raised.

The priority emanates from the very nature of locus standi as the pre-

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condition, in contrast to the other grounds raised representing the condi-
tions of the special jurisdiction of the Court in all the three aspects raised,
on which to base the jurisdiction of the Court in casu. As such it alone
is sufficient and capable, independently of other grounds raised, of pro-
ducing direct and conclusive effect on the jurisdiction of the Court. None
of the relevant aspects of the special jurisdiction of the Court (ratione
personae, ratione materiae, ratione temporis), as well as special jurisdic-
tion itself, possesses this capability. For, if Serbia and Montenegro does
not have locus standi, then any discourse about them is devoid of any
substance. It seems to be a proper application of the legal principle, being
also a principle of common sense, a majori ad minus.

Furthermore, it should not be taken as irrelevant that the choice made
by the Court corresponds to the purpose that the Respondent, as well
as the Applicant, attached to the issue of locus standi of Serbia and
Montenegro in their pleadings before the Court and final submissions
respectively.

31. In the light of these considerations, especially under sections 1 and
3 of this part, I am of the opinion that the formulation of the dispositif
explicitly linked to the absence of locus standi of Serbia and Monte-
negro would be more appropriate considering the circumstances of the
cases. The same effect could be produced by simply adding the adjective
“general” to the word “jurisdiction”. Not only because the question of
locus standi was sedes materiae of these proceedings, but because such a
formulation would naturally derive what the Court said dealing with par-
ticular basis of jurisdiction invoked (exempli causa, Judgment, paras. 45,
78, 90 and 125). In the formulation accepted it appears that the dispositif
and reasoning of the Court are not, at least, sufficiently coherent.

II. THE GROUNDS INVOKED BY THE RESPONDENTS FOR REJECTING THE
APPLICATION IN LIMINE LITIS

1. Implicit Discontinuance as a contradictio in adiecto

32. The arguments of the Respondents, specifically elaborated by
France, tended to move in the direction of termination of the proceedings
on the basis of something that might be termed “implicit discontinu-
ance”.

Namely, it was contended that “the Federal Government of Yugosla-
via could . . . have made the choice — the simple, reasonable choice — to
discontinue the proceedings. This was not the case, at least not expli-
citly.” (CR 2004/12, p. 6, paras. 3 and 4; emphasis added.) Commenting
on the Written Observations of the Federal Republic of Yugoslavia,
counsel for France finds that “[tJhis looks very much like a discontinu-
ance that will not speak its name” (ibid., p. 8, para. 9 {translation by the

Registry ]).
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Discontinuance, as designed by Articles 88 and 89 of the Rules of
Court, is comprised of two constitutive elements taken cumulatively: the
will of the parties and the proper process.

The will of the parties represents normative substance of discontinu-
ance as designed in Articles 88 and 89 of the Rules, serving as the legal
basis on which the discontinuance may be effected. By way of “the will of
the parties” discontinuance reflects the structural principle of consensual
jurisdiction in contentious cases according to which the Court cannot
discontinue or withdraw a case on behalf of the parties, if the parties do
not wish so. Viewed in that sense, the will of the parties is an overriding
condition for discontinuance within the meaning of Articles 88 and 89
of the Rules.

The modalities of expression of the will differ. In accordance with
Article 88 of the Rules, agreement of the parties is required and, in the
light of Article 89, paragraph 2, the absence of the objection of the respon-
dent which, in fact, constitutes the presumption of acquiescence, is of
relevance.

The proper process aimed at discontinuance implies the actions of the
party (or parties), as well as an order of the Court. The discontinuance
process, in terms of Articles 88 and 89 of the Rules, bears a dual charac-
teristic: primo, in view of substantial meaning of the will of the parties
the order of the Court represents a neutral act of the Court, an act whose
“main object . . . is to provide a procedural facility, or rather . . . to
reduce the process of discontinuance to order” (Barcelona Traction,
Light and Power Company, Limited, Preliminary Objections, Judgment,
LCI. Reports 1964, p. 19); secundo, Article 88, paragraph 1, of the
Rules provides that “the parties, either jointly or separately, notify the
Court in writing” (emphasis added), while Article 89, paragraph 1, stipu-
lates that “the applicant informs the Court in writing” (emphasis added).
The Court effectuated it through an order with reference to Article 48 of
the Statute and Article 88 or 89 of the Rules respectively.

33. In concreto, the eventual discontinuance would, in the light of the
relevant circumstances of the case, have to be based on the provision
of Article 89, paragraph 2, of the Rules of Court which provides as
follows:

“If, at the time when the notice of discontinuance is received, the
respondent has already taken some step in the proceedings, the
Court shall fix a time-limit within which the respondent may state
whether it opposes the discontinuance of the proceedings. If no
objection is made to the discontinuance before the expiration of the
time-limit, acquiescence will be presumed and the Court shall make
an order officially recording the discontinuance of the proceedings
and directing the removal of the case from the list. If objection is
made, the proceedings shall continue.”

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However, none of the elements of discontinuance, both those concern-
ing the will of the parties and those concerning the proper process,
embodied in that provision are met.

Serbia and Montenegro, as the Applicant, clearly and unambiguously
expressed the will not to discontinue the proceedings. In his concluding
remarks during the oral hearing, the Agent of Serbia and Montenegro
repeatedly pointed out that the Applicant “did not discontinue the pro-
ceedings” (CR 2004/23, p. 16, para. 21; p. 18, para. 27; p. 20, para. 34).
As such, it is obvious that Serbia and Montenegro could not have
submitted notice of discontinuance to the Court as provided for by
Article 89, paragraph 2, of the Rules. Some respondent States (the
United Kingdom, the Netherlands and France), true, saw notice of dis-
continuance in the Written Observations of Serbia and Montenegro of
18 December 2002. The Applicant, in its reply to those contentions
contained in a letter dated 28 February 2003 from the Agent of Serbia
and Montenegro, stresses that “the Written Observations of 18 December
2002 do not represent such a notice of discontinuance”. As the will of
the Applicant to discontinue the proceedings in concreto simply does
not exist, there are no elements for forming the will of the parties as the
basis of discontinuance. The statement of the Respondent regarding
the discontinuance of the proceedings is, in this case, irrelevant and
could be qualified as an invitation or a proposal to the Applicant to
proceed to the discontinuance process provided for in Article 89,
paragraph 2, of the Rules of Court.

34. The provisions of Articles 88 and 89 of the Rules, as a part of the
procedural law of the Court, are binding rules both upon the parties and
upon the Court itself. Although created by the Court, the relevant pro-
cedural rules, as legal rules, possess an objective existence, imposing the
restraints that the Court itself must observe. The Court has no power
to modify the operation of Article 89 of the Rules ad casum. Such a con-
clusion, it seems to me, clearly derives both from the nature of the
procedural rules, as legal rules, and from the legislative history of the
Rules of Court. The proposals that it should assume such a power were
rejected with the explanation that “the parties were entitled to have
a reliable guarantee of the stability of the rules of procedure” (Sixth
Meeting of 19 May 1934, P.C.LJ., Series D, No. 2 rd add.), p. 38).

It is true that, in contrast to Articles 93 to 97 of Part III of the Rules,
the provisions of Article 89 can be modified or supplemented by the
parties inter se in accordance with Article 101 of the Rules of Court,
which provides:

“The parties to a case may jointly propose particular modifica-
tions or additions to the rules contained in the present Part (with the
exception of Articles 93 to 97 inclusive), which may be applied by
the Court or by a Chamber if the Court or the Chamber considers
them appropriate in the circumstances of the case.”

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But the Parties to the present dispute have not had recourse to the
possibility offered by the provisions of Article 101.

35. In the light of the provisions of Article 89 of the Rules of Court
“implicit discontinuance” would be contradictio in adiecto. “Implicit dis-
continuance” is in irreconcilable collision both with the explicit intention
of the Applicant to continue the proceedings and with the formal nature
of the discontinuance process. It would, in the circumstances of the case
at hand, imply that the Court renounce the ministerial function which
basically belongs to it in the construction of discontinuance on the basis
of Article 89. Accordingly, the order on discontinuance, too, which, pur-
suant to Article 89 of the Rules, is of a declaratory nature (Article 89
determines the function of the order on discontinuance as “officially
recording the discontinuance of the proceedings”; in that sense, a per-
fectly coherent jurisprudence of the Court has also been formed”) would
assume the features of a constitutive act.

36. The respondent States, in formulating the thesis of “implicit dis-
continuance”, seem to have been inspired by the reasoning of the Court
in the cases concerning Nuclear Tests (Australia v. France) and Nuclear
Tests (New Zealand v. France). However, the relevant facts of the
Nuclear Tests cases do not offer ground for any analogy whatsoever with
this particular case.

The Nuclear Tests cases have not been discontinued on the basis of

7 Cases concerning Factory at Chorzôw, Order of 25 May 1929, P.C.I.J., Series À,
No. 19, p. 13; Delimitation of the Territorial Waters between the Island of Castellorizo
and the Coasts of Anatolia, Order of 26 January 1933, P.C.I_J., Series AIB, No. 51, p. 6;
Losinger, Order of 14 December 1936, P.C.I.J., Series AIB, No. 69, p. 101; Borchgrave,
Order of 30 April 1938, P.C.L.J., Series AIB, No. 73, p. 5; Appeals from Certain Judg-
ments of the HungarolCzechoslovak Mixed Arbitral Tribunal, Order of 12 May 1933,
P.CIJ., Series AlB, No. 56, p. 164; Legal Status of the South-Eastern Territory of
Greenland, Order of 11 May 1933, P.C.I.J., Series AIB, No. 55, p. 159 (in this case the
Court took note that Norway and Denmark had withdrawn their respective applications);
Prince von Pless Administration, Order of 2 December 1933, P.C.I.J., Series AIB, No. 59,
pp. 195-196; Polish Agrarian Reform and German Minority, Order of 2 December 1933,
P.CLJT., Series AIB, No. 60, pp. 202-203; Aerial Incident of 27 July 1955 (United States
of America v. Bulgaria), Order of 30 May 1960, I C.J. Reports 1960, pp. 146-148; Bar-
celona Traction, Light and Power Company, Limited, Order of 10 April 1961, LC.J
Reports 1961, pp. 9-10; Trial of Pakistani Prisoners of War, Order of 15 December 1973,
LC.J. Reports 1973, pp. 347-348; Border and Transborder Armed Actions (Nicaragua
v. Costa Rica), Order of 19 August 1987, I.C.J. Reports 1987, pp. 182-183; Passage
through the Great Belt (Finland v. Denmark), Order of 10 September 1992, LC J.
Reports 1992, pp. 348-349 ; Vienna Convention on Consular Relations (Paraguay v. United
States of America), Order of 10 November 1998, I C.J. Reports 1998, p. 427.

The acquiescence of respondent State has been presumed in the case concerning Protec-
tion of French Nationals and Protected Persons in Egypt, Order of 29 March 1950, I CJ.
Reports 1950, p. 60.

On the basis of a unilateral act of the applicant, discontinuance has been effectuated
in the cases concerning Denunciation of the Treaty of 2 November 1865 between China
and Belgium, Order of 25 May 1929, P.C.L.J., Series A, No. 18, p. 7; Trial of Pakistani
Prisoners of War, Order of 15 December 1973, I. C.J. Reports 1973, p. 348.

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Articles 88 and 89 of the Rules. The Court, in fact, terminated the pro-
ceedings in those cases due to the lack of object of the Application, fol-
lowing its reasoning in the Northern Cameroons case (Preliminary Objec-
tions, Judgment, I. C.J. Reports 1963, p. 38). The Court found, inter alia,
that “[t]he object of the claim having clearly disappeared, there is nothing
on which to give judgment” (Nuclear Tests (Australia v. France), Judg-
ment, I.C.J. Reports 1974, p. 272, para. 59) and that

“[tlhe conclusion at which the Court has arrived .. . does not mean
that it is itself effecting a compromise of the claim; the Court is
merely ascertaining the object of the claim and the effect of the
Respondent’s action” (ibid., p. 270, para. 54; emphasis added).

It is obvious in this particular case that the object of the Application
stands as defined at the moment of instituting the proceedings, causing
the real dispute before the Court, whereas the respondent State did not
take any action nor assumed any commitment whereby the objective of
the Applicant would have been accomplished. (See the objective of the
Applicant, Judgment, para. 21.)

2. The Congruence of the Statements of Facts by the Parties and the
Duty of the Court to Examine its Jurisdiction ex officio

37. In their preliminary objections all the Respondents have found,
inter alia, that the Applicant was neither a Member of the United
Nations nor party to the Statute of the Court, and accordingly did not
have access to the Court at the time of submission of its Application, as
sine qua non condition of the Court’s jurisdiction.

The Applicant for its part, contended that it was admitted to the
United Nations on 1 November 2000 as a new Member and furthermore
that it was not bound by the Statute pursuant to Article 93, paragraph 2,
of the United Nations Charter; nor did it issue a declaration as contem-
plated in Article 35, paragraph 2, of the Statute of the Court.

38. The Respondent contended that, due to the fundamental change of
its position regarding membership in the United Nations and its status as
a party to the Genocide Convention respectively, Serbia and Montenegro
should be estopped from continuing the proceedings on the preliminary
objections. The contention seems to be dubious for the following reasons.
Primo, the doctrine of estoppel is basically founded on the maxim alle-
gans contraria non est audiendus. It could not be taken, however, that, by
claiming continuity of the membership in the United Nations, the Appli-
cant has made a representation on the faith of which the Respondent has
changed its own position suffering some prejudice. As a matter of fact, by
changing its position regarding membership in the United Nations and
its status as a party to the Genocide Convention, the Applicant has acted
against the case it instituted before the Court. Of key importance is the

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question whether the change has taken place on a basis of caprice or a
litigation opportunity or, indeed, as an expression of accommodation to
the real state of affairs created without the Applicant’s active participa-
tion, which it could not resist. Secundo, estoppel, even supposing it to be
established in casu, cannot operate against the question of locus standi as
a constitutional requirement of the Statute establishing the objective limit
of exercise of the judicial function of the Court. Tertio, it appears that
the Respondent influenced, or could have influenced, the Applicant’s
position in relation to the two relevant jurisdictional facts: membership
of the Applicant of the United Nations and its status as a party to the
Genocide Convention. Acting as a Member State of the United Nations,
the Respondent voted for the legally contradictory General Assembly
resolution 47/1. It must have been aware of the strong elements of politi-
cal instrumentality contained in the resolution. Besides, the Respondent
has not dissociated itself from the subsequent practice of the United
Nations organs. The Respondent’s position — that the Applicant is one
of five equal successors of the SFRY — is, in the circumstances of this
particular case, in conflict with the treatment of the Applicant as a party
to the Genocide Convention. It is a matter of public knowledge that,
until 12 March 2001, the Applicant had not expressed its consent to be
bound by the Convention in accordance with Article XI of the Conven-
tion, nor did it, for that matter, issue notification of succession. In the
absence of any rules of positive international law on automatic succes-
sion, the only basis to consider the Applicant as a party to the Genocide
Convention is in its legal identity and continuity with the SFRY.

39. It is indisputable that the statements of facts by the Parties relating
to the status of the Applicant in the United Nations as well as to the
Statute of the Court coincide at this phase of the proceedings. (It would
be difficult to claim in concreto that this amounts to the acceptance or
recognition by the Applicant of the Respondent’s statement of facts.
Recognition or acceptance is a volitional act, the expression of the inten-
tion of one party to bow to the allegations of the other party. Rather,
what is involved here is a concurrence of the statements of facts by the
parties, having in mind that the Applicant formulated its own statement
of facts concerning the relevant matter, practically with an identical
content, already at the time of the “Initiative to the Court to reconsider
ex officio jurisdiction over Yugoslavia” (4 May 2001) and in the case
concerning Application for Revision.)

It could not be taken for granted, however, that the concurrence or
even the recognition of the statement of facts as presented by the Respon-
dent, on the part of the Applicant, is determinative of the case and that it
removes per se the need to examine the jurisdiction of the Court.

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(a) Aspect of the legal logic

40. Concurrence or recognition, direct or indirect, of the statement of
facts of one party to the proceedings only determines the content of prae-
misae minor of the Court’s syllogism whose conclusio is the ruling on the
justification of the preliminary objection. Understood in this sense, con-
currence or recognition of the statement of facts does not determine, or
at least does not determine in full, the law that the Court should apply —
praemisae major.

If the concurrence of the statement of facts of the parties had an auto-
matic effect on the jurisdiction of the Court, then the parties, and not the
Court, would be deciding, in the substantive sense, the relevant law that
regulates the jurisdiction of the Court. And such an outcome would mean
a departure from the principle, deriving from the very essence of the judi-
cial function, i.e., that the Court is the sole judge of its jurisdiction.

(b) Normative aspect

41. In view of the fact that “the establishment or otherwise of jurisdic-
tion is not a matter for the parties but for the Court itself” (Fisheries
Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment,
1. C.J. Reports 1998, p. 450, para. 37; also, individual opinion of Presi-
dent McNair in the jurisdiction phase of the case concerning Anglo-
Iranian Oil Co. in which he stated that “[a]n international tribunal can-
not regard a question of jurisdiction solely as a question inter partes”
(Preliminary Objection, Judgment, I.C.J. Reports 1952, pp. 116-117)),
the dispute of the parties regarding the jurisdiction in the preliminary
objection phase is not a necessary condition for the Court to address
the issue of jurisdiction.

Preliminary objections raised by a party are only a tool, a procedurally
designed weapon for the establishment of the jurisdiction of the Court,
suo nomine et suo vigore, for it is under an obligation to do so ex officio.
The legal meaning of the proceedings on preliminary objection has
been defined by the Court in the case concerning Rights of Minorities in
Upper Silesia (Minority Schools) (hereinafter referred to as “Minority
Schools”), as follows:

“the raising of an objection by one Party merely draws the attention
of the Court to an objection to the jurisdiction which it must ex
officio consider” (Rights of Minorities in Upper Silesia (Minority
Schools), Judgment No. 12, 1928, P.C.I.T., Series A, No. 15, p. 23;
emphasis added).

Or, as stated by the Court in the Genocide Convention case:

“[tlhe Court must, in each case submitted to it, verify whether it has
jurisdiction to deal with the case . . . [SJuch objections as are raised

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by the Respondent may be useful to clarify the legal situation.” (Pre-
liminary Objections, Judgment, I C.J. Reports 1996 (II), p. 622,
para. 46; emphasis added.)

Accordingly, the establishment of the jurisdiction by the Court in casu
is not necessarily linked with the dispute as to jurisdiction. If the duty of
the Court to verify its jurisdiction in each particular case exists regardless
of the preliminary objection as such, then the pleadings of the parties in
the proceedings are not a fortiori of decisive importance in that sense. If
as Shabtai Rosenne, commenting on the case concerning Monetary Gold
Removed from Rome in 1943 (hereinafter referred to as “Monetary
Gold”), says:

“[tlhe fact that an objection is made does not mean — in the eyes
of the Court — that the Court is being asked not to determine the
merits of the claim under any circumstances” (Shabtai Rosenne,
The Law and Practice of the International Court, 1920-1996, Vol. IT
(Jurisdiction), p. 863),

then the contrary is equally valid, ï.e., that the Court is being asked not
to determine the merits of the claim if an objection to the preliminary
objection is not made. In that sense, an extensive practice of the Court
has been established.

The dictum of the Court in the case concerning the Appeal Relating to
the Jurisdiction of the ICAO Council (hereinafter referred to as “ICAO
Council”) could represent a synthesis of that practice: “[t]he Court must
however always be satisfied that it has jurisdiction, and must if necessary
go into that matter proprio motu” (Judgment, I.C.J. Reports 1972, p. 52,
para. 13). This is also reflected in the opinions of judges. (In the case con-
cerning Mavrommatis Palestine Concessions, Judge Moore in his dissent-
ing opinion stated “even though the parties be silent, the tribunal, if it
finds that competence is lacking, is bound of its own motion to dismiss
the case” (Judgment No. 2, 1924, P.C.L.J., Series A, No. 2, p. 58); in the
Minority Schools case, Judge Huber in his dissenting opinion found that
the Court “must ex officio ascertain on what legal foundation it is to base
its judgment upon the claims of the Parties” (Judgment No. 12, 1928,
P.C.LJ., Series A, No. 15, p. 54); and in the case concerning the Free
Zones of Upper Savoy and the District of Gex, Judge Kellogg pointed out
in his observations attached to the Order of 6 December 1930 that it was
not necessary that the question of jurisdiction be raised by one of the
parties, since “[iJt may and should be raised by the Court on its own ini-
tiative, as was done in the Eastern Carelia case” (Order of 6 December
1930, P.C.I.T., Series A, No. 24, p. 43).)

42. The question of the jurisdiction of the Court bears two dominant
features: (a) the question of jurisdiction of the Court is a questio juris;
and (b) the question of jurisdiction of the Court is a matter of inter-
national public order.

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(a} Asa questio juris® the jurisdiction of the Court is within the scope
of the principle jura novit curia. In the case concerning Territorial Juris-
diction of the International Commission of the River Oder (hereinafter
referred to as “River Oder”) the Polish Government did not contend that
the Barcelona Convention had not been ratified by Poland until the oral
proceedings. The six respondents asked the Court to reject the Polish
contention a limine, for having been submitted at such an advanced stage
of the proceedings. The Court dismissed the objection as untenable for
“[tlhe fact that Poland has not ratified the Barcelona Convention not
being contested, it is evident that the matter is purely one of law such as
the Court . . . should examine ex officio” (Judgment No. 16, 1929,
P.C.LJ., Series A, No. 23, p. 19).

Being bound by law, the Court is not bound by the arguments of the
parties. This follows clearly from the principle jura novit curia addressed
by the Court in its Judgments in the cases concerning Fisheries Jurisdic-
tion (United Kingdom v. Iceland) and Fisheries Jurisdiction (Federal
Republic of Germany v. Iceland):

“The Court ... as an international judicial organ, is deemed to
take judicial notice of international law, and is therefore required in
a case falling under Article 53 of the Statute, as in any other case, to
consider on its own initiative all rules of international law which
may be relevant to the settlement of the dispute . . . for the law lies
within the judicial knowledge of the Court.” (Merits, Judgment,
LC.J. Reports 1974, p. 9, para. 17; ibid., p. 181, para. 18; emphasis
added.)

The principle has also been confirmed in the Nicaragua case by a dictum
that

“[flor the purpose of deciding whether the claim is well founded in
law, the principle jura novit curia signifies that the Court is not solely
dependent on the argument of the parties before it with respect to
the applicable law” (Merits, Judgment, I.C.J. Reports 1986, p. 24,
para. 29; cf. “Lotus”, Judgment No. 9, 1927, P.C.L.J., Series A,
No. 10, p. 31);

consequently, the rule according to which a party seeking to assert a fact

8 “The existence of jurisdiction of the Court in a given case is ... not a question of
fact, but a question of law to be resolved in the light of the relevant facts.” (Border
and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admis-
sibility, Judgment, I. C.J. Reports 1988, p. 76, para. 16.)

The question of the Court’s jurisdiction is

“necessarily an antecedent and independent one — an objective question of law —
which cannot be governed by preclusive considerations capable of being so expressed
as to tell against either Party — or both Parties” (Appeal Relating to the Jurisdiction
of the ICAO Council, Judgment, I.C.J. Reports 1972, p. 54, para. 16 (c)).

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1132 LEGALITY OF USE OF FORCE (SEP. OP. KRECA)

must bear the burden of proving it “has no relevance for the establish-
ment of the Court’s jurisdiction” (Fisheries Jurisdiction (Spain
v. Canada), Jurisdiction of the Court, Judgment, I C.J. Reports 1998,
p. 450, para. 37).

(b) The disposition of the parties, although being the dominant prin-
ciple in the proceedings before the Court, suffers limitations.

These limitations derive from the objective rules of the Statute and the
Rules of Court defining the nature and limits of the Court’s judicial
action. As constitutional norms (R. Monaco, “Observations sur la hier-
archie des sources du droit international”, Festschrift für Hermann Mos-
ler, 1983, pp. 607-608) or as régles préceptives (intervention of Judge M.
Yovanovitch, Preliminary Session of the Court, P.C.I.J., Series D, No. 2,
p. 59), these rules transcend the disposition of the parties and pertain to
the international public order.

As a matter of international public order superior to the will of the
parties the question of jurisdiction need not necessarily be raised by the
parties themselves but the Court can and should examine it ex officio.
(Cf. Territorial Jurisdiction of the International Commission of the River
Oder, Judgment No. 16, 1929, P.C.I.J., Series A, No. 23, pp. 18-19; Fish-
eries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court,
Judgment, I. C.J. Reports 1973, p. 7, para. 12; p. 54, para. 13; Prince von
Pless Administration, Order of 4 February 1933, P.C.L.J., Series AIB,
No. 52, p. 15; Factory at Chorzéw, Jurisdiction, Judgment No. 8, 1927,
P.C.LJ., Series A, No. 9, p. 32.)

43. In the practice of the Court the expressions ex officio and proprio
motu are used as interchangeable, although there exist differences in the
meaning of these two expressions. The expression “proprio motu” implies
the discretionary authority of the Court to take action on its own initia-
tive. The action taken by the Court “ex officio” is an expression of the
duty of the Court by virtue of its judicial function. The exclusion of the
discretion of the Court relates to the action itself and does not touch
upon the freedom of the Court in respect of the ruling.

The linking element of these two expressions is of a negative nature
and is reflected in the fact that it is about the actions which the Court
takes or may take irrespective of the will and the processual actions of
the parties.

The genuine difference in the meaning of these two expressions is over-
come in some dicta of the Court by adding the qualification “must” to
the expression “proprio motu” as in, for example, the Court’s Judgment
in the ICAO Council case (Judgment, I.C.J. Reports 1972, p. 52, para. 13).
Thus, in fact, the Court’s own motion is qualified as the obligation and
the action proprio motu deprives it of discretion and turns it into action
ex Officio.

44. As questio juris pertaining to the public order, jurisdiction is deter-
mined by the decision of the Court, formal or informal, on the basis of
the principle of compétence de la compétence. In the context of the case at

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hand, it is necessary to distinguish between the general principle of com-
pétence de la compétence and its narrow normative projection expressed
in Article 36, paragraph 6, of the Statute. Namely, some of the Respon-
dents have asserted that specific terms in Article 36, paragraph 6, of the
Statute provide that “in the event of a dispute as to whether the Court has
jurisdiction, the matter shall be settled by the decision of the Court”
(counsel for the United Kingdom, CR 2004/10, p. 10; emphasis in the
original; counsel for France, CR 2004/12, p. 12).

(c) Principle compétence de la compétence

45. The general principle of compétence de la compétence represents a
basic structural and functional principle inherent to any adjudicatory
body, whether a regular court or any other body possessing adjudicatory
powers. The principle is, as pointed out by United States Commissioner
Gore in the Betsey case (1797), “indispensably necessary to the discharge
of any .. . duties” for any adjudicatory body (J. B. Moore (ed.), Inter-
national Adjudications, Ancient and Modern, History and Documents,
Modern Series, Vol. IV, p. 183).

As such the principle is confirmed in the Court’s jurisprudence. In the
Nottebohm case, the Court stated inter alia:

“Paragraph 6 of Article 36 merely adopted, in respect of the
Court, a rule consistently accepted by general international law in
the matter of international arbitration. Since the Alabama case, it
has been generally recognized, following the earlier precedents, that,
in the absence of any agreement to the contrary, an international
tribunal has the right to decide as to its own jurisdiction and has
the power to interpret for this purpose the instruments which govern
that jurisdiction ...

Consequently, the Court has not hesitated to adjudicate on the
question of its own jurisdiction in cases in which the dispute which
had arisen in this respect went beyond the interpretation and appli-
cation of paragraph 2 of Article 36. In the Corfu Channel case
(Judgment of April 9th, 1949, CJ. Reports 1949, pp. 23-26 and
36), the Court adjudicated on a dispute as to whether it had jurisdic-
tion to assess the amount of compensation, a dispute which related
to the interpretation of a Special Agreement; in the Ambatielos case
(Judgment of July Ist, 1952, I. C.J. Reports 1952, p. 28), the Court
adjudicated upon a dispute as to its jurisdiction which related to the
interpretation of a jurisdictional clause embodied in a treaty; in both
cases the dispute as to the Court’s jurisdiction related to paragraph 1
and not to paragraph 2 of Article 36.

Article 36, paragraph 6, suffices to invest the Court with power to
adjudicate on its jurisdiction in the present case. But even if this were

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not the case, the Court, ‘whose function is to decide in accordance
with international law such disputes as are submitted to it’
(Article 38, paragraph 1, of the Statute), should follow in this con-
nection what is laid down by general international law. The judicial
character of the Court and the rule of general international law
referred to above are sufficient to establish that the Court is compe-
tent to adjudicate on its own jurisdiction in the present case.”
(Preliminary Objection, Judgment, I.C.J. Reports 1953, p. 119-120;
emphasis added.)

Being one of the relevant features establishing its judicial nature, the
power of the Court to determine whether it has jurisdiction, emanating
from the general principle compétence de la compétence, is an inherent
right and duty of the Court knowing no limitations (cf. Electricity Com-
pany of Sofia and Bulgaria, Judgment, 1939, P.C.I.J., Series AlB, No. 77,
pp. 102-103, dissenting opinion of Judge Urrutia). The Court exercises
its inherent power from the institution of the proceedings until its end
with a view to establishing whether it possesses jurisdiction or not in
the particular case. (In reality, the Court proceeds to exercise its inherent
power in two ways: (a) by ascertaining the existence of processual
requirements for jurisdiction through prima facie assessment, being sub-
stantively a judicial presumption of jurisdiction or (b) by adopting a
formal decision on the jurisdiction. In that sense, the power of the
Court to determine whether it has jurisdiction in a given case seems
absolute, considering that the Court, even when declaring that it has no
jurisdiction in casu, exercises that inherent power.)

46. Apart from its expression in Article 36, paragraph 6, the general
principle of compétence de la compétence, has found its expression in
several provisions of the Statute. Article 53, paragraph 2, of the Statute
provides that “[t]he Court must . . . satisfy itself, not only that it has juris-
diction . . . but also that the claim is well founded in fact and law”.
In the Fisheries Jurisdiction cases, the Court stated, inter alia, that
“Article 53 of the Statute both entitles the Court and, in the present
proceedings, requires it to pronounce upon the question of its jurisdic-
tion” (Jurisdiction of the Court, Judgment, I.C.J. Reports 1973, p. 22,
para. 45, and p. 66, para. 45; emphasis added).

The application of the general principle of compétence de la compé-
tence can be seen also in part of the provisions of Article 41 of the Statute
authorizing the Court to indicate provisional measures proprio motu.

The rules of the law of the Court deriving from the general principle of
compétence de la compétence are also rules in Article 32, paragraph 2, of
the Rules of Court, as well as Article 38, paragraph 5. The fact that in
both cases the relevant role is played by the Registry of the Court does
not affect the nature of the rules.

In its application the principle is not restricted to the contentious pro-

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cedure. It is equally relevant also in the advisory procedure. As the Court
stated in the case concerning Legality of the Use by a State of Nuclear
Weapons in Armed Conflict, “it is mcumbent on the Court fo satisfy itself
that the conditions governing its own competence to give the opinion
requested are met” (Advisory Opinion, 1. C.J. Reports 1996 (I), p. 83,
para. 29; emphasis added). The substantive analogy between the conten-
tious and the advisory procedures (in the Status of Eastern Carelia case
the Court stated that it was the right and obligation of the Court to
examine its own jurisdiction in advisory as well as in contentious cases
(Report by the Registrar (June 1933), P.C.LJ., Series D, No. 2 3rd
add.), p. 837) in this particular matter has its foundation in the provision
of Article 68 of the Statute. The Court must in every request for an advi-
sory opinion assure itself of its jurisdiction. It is not absolved from doing
so by assuming that a request for an opinion is determinative of the
Court’s power to give opinion on the particular question. (Cf. Shabtai
Rosenne, “The Advisory Competence of the International Court of Jus-
tice”, Revue de droit international, de sciences diplomatiques et politiques
(A. Sottile, Geneva), January-March 1952, No. 1, p. 33; Georg
Schwarzenberger, “Trends in the Practice of the World Court”, Current
Legal Problems, Vol. 4, 1951, p. 27.)

47. The power of the Court to determine whether it has jurisdiction in
casu, emanating from the general principle of compétence de la compé-
tence, should be distinguished from the corresponding power of the
Court to determine the extent of its jurisdiction.

The extent of jurisdiction of the Court is not a matter to be decided on
the basis of the principle of compétence de la compétence solely as a func-
tional norm, but on the basis of substantive norms of the Statute defining
the scope of exercise of the judicial function of the Court. In that regard,
the basic norm of the consensual nature of the Court’s jurisdiction, some
sort of a constitutional norm of the law of the Court and international
tribunals as well, is of relevance.

Already in its Judgment No. 2, the Permanent Court of International
Justice clearly established the limits of its jurisdiction by stating that “the
Court, bearing in mind the fact that its jurisdiction is limited, that it is
invariably based on... consent . .. and only exists in so far as this con-
sent has been given” (Mavrommatis Palestine Concessions, 1924, P.C.LJ.,
Series A, No. 2, p. 16).

48. Article 36, paragraph 6, of the Statute is a narrow, restrictive
expression of the general principle of compétence de la compétence. The
application of the principle of compétence de la compétence expressed in
Article 36, paragraph 6, presupposes a dispute as to whether the Court
has jurisdiction. Hence the Court, acting on the basis of Article 36, para-
graph 6, of the Statute, both logically and from the normative aspect, is
not in a position to raise a question of its jurisdiction ex officio. Basically,
the Court then, exercising its judicial function, only adjudicates the dis-
putes as to its jurisdiction ex officio. It is here that, strictissimo sensu, lies

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the normative meaning of the principle of compétence de la compétence
as expressed in Article 36, paragraph 6, of the Statute.

In practice there were cases where the Court, in the jurisdictional phase
of the proceedings, proprio motu, raised the question not raised by
parties. For instance, in the Interhandel case the Court applied proprio
motu the objection to its jurisdiction ratione temporis to the alternative
claim (Preliminary Objections, Judgment, ILC.J. Reports 1959, p. 22).
Such an approach of the Court could be qualified as the overlapping of
the general and the particular, i.e., of the general principle of compétence
de la compétence and its narrower expression embodied in Article 36, para-
graph 6, of the Statute.

49. It is doubtful whether the application of Article 36, paragraph 6,
of the Statute is excluded, as the respondent States asserted, in the
present case, in toto. It seems obvious that it depends on whether the
statements of parties concerning the facts coincide entirely.

That is not the case. Namely, the statements of the Parties coincide
only partially, relating mainly to the jurisdiction of the Court ratione per-
sonae, or, to be more precise, to the status of the Applicant in relation to
the Statute of the Court.

If the statements of the Parties appear to be founded in this matter,
the conclusion affects only the jurisdiction of the Court according to
Article 36, paragraph 2, of the Statute, but does not necessarily —
without knowing the finding of the Court on the meaning of the expres-
sion “the special provisions contained in treaties in force” in Article 35,
paragraph 2, of the Statute — affect the jurisdiction of the Court as set
forth in Article IX of the Genocide Convention.

Regarding the Genocide Convention as a “treaty in force” at the time
of submission of the Application, there is, however, a real —
though latent — hidden dispute between the Parties. The Applicant con-
tended that it became a party to the Genocide Convention by accession
on 12 March 2001, while the Respondents implicitly allowed that the
Applicant was a party at the time of submission of the Application.

Finally, the positions of the Parties were directly and completely
opposed regarding the jurisdiction of the Court ratione materiae and
ratione temporis.

50. The principle compétence de la compétence in its integral form —
comprising both the general principle and its expression in Article 36, para-
graph 6, of the Statute — is a judicial weapon which achieves a double
objective:

Primo, it allows the Court to establish its jurisdiction as the application
of the basis or constitutional norm of the consensual nature in casu either
ex officio or upon objection to its jurisdiction. At the same time, it gives
the Court a legal basis to check, in the development of the proceedings,
its judicial presumptions on its jurisdiction, until a conclusive, definitive

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finding on its jurisdiction. Acting in that way, in the conditions of non-
existence of multi-tier judiciary in the international community, the Court
de facto acts as a sui generis appellate court in the question of jurisdic-
tion.

Secundo, in a litigation as tripartite processual relation, it is a judicial
weapon by which the Court not only solves the dispute on jurisdiction,
but the challenge to its own decision on the jurisdiction taken in the pre-
liminary objection phase either ex officio or at the request of a party in
the revision procedure.

Therefore, it could be said that the principle of compétence de la com-
pétence in its integral expression enables the Court to ascertain in every
phase of the proceedings, according to the circumstances and degree of
knowledge, its jurisdiction as the basis and framework of the proper
administration of justice.

51. The Court, when using its right and performing its duties on the
basis of the principle of compétence de la compétence, acts, basically, in
three ways:

(i) it decides ex officio in the proceedings of preliminary objections in
the dispute between the parties as to jurisdiction;

(ii) it raises proprio motu the question of jurisdiction (or, as it is some-
times said, imprecisely, “raises an objection to jurisdiction”, for it
cannot object to jurisdiction as the determination of the matter is
in its exclusive domain), requesting the parties to act pursuant to
Article 79, paragraph 6, of the Rules or, acting itself in accordance
with Article 38, paragraph 5, of the Rules. The proprio motu action
of the Court is the technical realization of the right and duty of the
Court to ascertain ex officio its competence; and

(ili) the ex officio examination of the jurisdiction as an autonomous judi-
cial action which does not rely on the actions of the parties. The very
examination of jurisdiction, apart from the decision of the Court on
jurisdiction, being some sort of organic judicial action, inherent ele-
ment of the legal reasoning of the Court, must not be exercised in a
due form, but in a manner the Court finds appropriate.

3. The Effect on the Dispute of the Congruence of Views between the
Parties as to Jurisdiction

52. In this regard, the assertions made by the Respondents have two
meanings (cf. CR 2004/6, pp. 15-17; CR 2004/7, pp. 10-12; CR 2004/10,
p. 7; CR 2004/12, p. 12):

— that just as the existence of a dispute is a preliminary condition for
the continuation of the proceedings on the merits phase, so is the

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dispute as to jurisdiction a condition for the continuation of the
proceedings on preliminary objections; and

— that agreement between the parties as to a question of jurisdiction is
determinative of the case, and that, as a result, the dispute before the
Court has disappeared.

(a) The existence of a dispute as to jurisdiction as a preliminary condi-
tion for the continuation of the proceedings on preliminary objec-
tions

53. The equalization between the proceedings on the merits and the
proceedings on preliminary objection would be highly doubtful. Namely,
it ignores the specific features of judicial activity of the Court in the juris-
dictional phase of the proceedings, features which derive from the nature
of the question of jurisdiction. (“The Court finds that Italy’s acceptance
of jurisdiction is one thing, while her raising of a legal issue on jurisdic-
tion is quite another.” (Monetary Gold Removed from Rome in 1943,
Preliminary Question, Judgment, I.C.J. Reports 1954, p. 29.) The prac-
tical outcome of such equalization would consist of the treatment of the
question of jurisdiction as quaestio facti and as a matter inter partes
which is in sharp contradiction with its true nature (see paragraphs 40-44
of this opinion).

54. It is based on the idea of the transplantation of the rule regarding
“the existence of a dispute [as] the primary condition for the Court to
exercise its judicial function” (Nuclear Tests (New Zealand v. France),
Judgment, I.C.J. Reports 1974, p. 476, para. 58) in the merits phase of a
case into the incidental proceedings of the preliminary objections. This
transplantation is however impossible taking into consideration the very
nature of the question of jurisdiction. It is directly aimed against the
inherent right and duty of the Court to determine its jurisdiction. In that
regard, the formulation of the relevant provisions of the Rules of Court
concerning preliminary objections is indicative. Paragraph 2 of Article 79
of the Rules provides in imperative (wording) formulation that “the pre-
liminary objection shall set out the facts and the law on which the objec-
tion is based” (emphasis added) whereas paragraph 3 of Article 79 pro-
vides, inter alia, that “the other party may present a written statement of
its observations and submissions” (emphasis added). The asymmetrical
relations between the provisions of Article 79 of the Rules — obliga-
tions stricti juris of the Respondent on the one hand, and a right of the
Applicant on the other — represent an indirect expression of a different
nature of the proceedings on the merits and that of the incidental pro-
ceedings on preliminary objection (Article 49 of the Rules establishes the
duties of the parties regarding the Memorial and Counter-Memorial
symmetrically).

55. There is a substantive symmetry in the relevant elements of
the case in hand and the Monetary Gold case. In the latter case, Great

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Britain, in its final Submission No. 1 (b) contended that, by raising the
preliminary objection, the

“Application .. .

(b) has been in effect withdrawn or cancelled by Italy” (Preliminary
Question, Judgment, .C.J. Reports 1954, p. 25; see also ibid.,
p. 30).

However, the Court found that “[t]he raising of the Preliminary Question
by Italy cannot be regarded as equivalent to a discontinuance” (ibid.,
p. 30). As to the Submission contending that the Italian Application
should be held to be “invalid and void” (ibid.), the Court found that

“it is enough to state that the Application, if not invalid at the time
it was filed, cannot subsequently have become invalid by reason of
the preliminary question which Italy raised with regard to the Court’s
jurisdiction in this case” (ibid. ).

(b) The congruence of views between the Parties as to jurisdiction and
the alleged disappearance of the dispute on the merits

56. The contention that there exists a substantive nexus between the
dispute as to jurisdiction and the dispute on the merits is, in the light of
the uniform jurisprudence of the Court on the issue of a legal dispute,
even more surprising. The relevant constituent elements of the legal dis-
pute seem to be clearly presented in the case at hand.

The contents of the Application, the Memorial, the Preliminary Objec-
tions and other relevant materials, create a clear picture of the situation
in which “two sides hold clearly opposite views concerning the question
of the performance or non-performance of certain treaty obligations”
Unterpretation of Peace Treaties with Bulgaria, Hungary and Romania,
First Phase, Advisory Opinion, ILC.J. Reports 1950, p. 74; hereinafter
referred to as “Interpretation of Peace Treaties”) as well as the perform-
ance of obligations under general international law embodied in the
United Nations Charter (Memorial of 5 January 2000, pp. 301-346). The
Applicant charges the Respondents that by “bombing of Yugoslav terri-
tory” (Memorial, p. 301, para. 2.1.1.) they violated a number of its inter-
national obligations including not only in the international treaties in
force, but also in the Charter of the United Nations. The Respondents
denied the charge.

57. By denying the charges, the Respondents, within the limits and the
range determined by the stage of the procedure, elaborate diametrically
opposite legal concepts according to which the bombing of the territory
of the Federal Republic of Yugoslavia was carried out lege artis, in con-

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formity with the concept of the so-called humanitarian intervention, as
well as by obeying the rules of humanitarian law. This constitutes the
second qualifying condition for the existence of the legal dispute — “that
the claim of one party is positively opposed by the other” (South West
Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328;
emphasis added). Acting in the above-mentioned manner, the Respon-
dents have gone out of the reach of a simple denial of the Applicant’s
charges and set the matter on the level of a conflict of legal views, the
conflict of which is in concreto total and absolute.

58. The issue of the existence of a dispute on the merits possesses its
temporal dimension. As the Court stated in the case concerning Nuclear
Tests (Australia v. France) “[t]he dispute brought before [the Court]
must therefore continue to exist at the time when the Court makes its
decision” (Judgment, .C.J. Reports 1974, p. 271, para. 55).

A dispute in existence in the proceedings before the Court may, in
general, disappear in two ways:

(a) by withdrawing the Application; and

(b) if the object of the claim has been achieved by other means, as
exempli causa, when “a State has entered into a commitment con-
cerning its future conduct” which made the dispute disappear
(Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports
1974, p. 272, para. 60).

None of the above-mentioned has happened in the cases at hand.

It is true that the Respondent’s contention was not that the Applica-
tion has been withdrawn, but that the Applicant abandoned the basis of
jurisdiction making “a mockery of the principle that jurisdiction is
founded on the consent of the parties” (CR 2004/10, p. 11); some “kind
of forum prorogatum” in the negative sense (CR 2004/12, p. 12).

Apart from the nature of the question of jurisdiction (see para-
graphs 40-44 of this opinion), it should be noted that as far as abandon-
ment itself is concerned the Court cannot infer from the arguments of the
parties that a claim was abandoned. As stated in the case concerning Cer-
tain Norwegian Loans, “[a]bandonment cannot be presumed or inferred;
it must be declared expressly” (Judgment, I. C.J. Reports 1957, p. 26).

59. The real question one is faced with concerns the relationship
between the Application and the arguments of the Parties.

In the process of determination of the legal disputes, the Court bases
itself on the Application and final Submissions, as well as other pertinent
evidence as emphasized in the cases concerning Nuclear Tests ( Australia
v. France) (Judgment, I.C.J. Reports 1974, pp. 262-263) and Fisheries
Jurisdiction (Spain v. Canada), Jurisdiction of the Court (Judgment,
1. C.J. Reports 1998, p. 449, para. 31).

The expression “other pertinent evidence” is a collective term for
various forms of expressing intention of the parties relevant for the
determination of the dispute submitted to the Court. In the existing

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circumstances, taking into consideration claims and arguments of the
Respondents, various written and oral pleadings placed before the
Court in the proceedings on the preliminary objections are of particular
interest.

The crucial question which seems to be imposing itself in casu is the
relationship between the Application and the submission, on the one
hand, and the arguments of the Parties, on the other. This question
should especially be considered in the context whether the Application
and submissions can be either derogated, completely or partially, by the
arguments of the Applicant, or in fact be substituted by them.

I believe that the answer to the question is rather negative for several
reasons:

(i) The Application as a whole, including especially the submissions,
represents a basic parameter for the determination of the dispute.
The Court resorts to “other pertinent evidence” (Fisheries Jurisdic-
tion (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J.
Reports 1998, p. 449, para. 31), which in the present case is the writ-
ten and oral pleadings placed before the Court, in case of “uncer-
tainties or disagreements . . . with regard to the real subject of the
dispute with which the Court has been seised, or to the exact nature
of the claims submitted to it.” (ibid., p. 448, para. 29.)

(ii) Therefore, written and oral pleadings as such are an accessory
means rather than a subsidiary basic parameter for the determina-
tion of the dispute, which the Court resorts to in case of an unclear
or imprecise nature of the Application as a whole. Furthermore,

“when the claim is not properly formulated because the submis-
sions of the parties are inadequate, the Court has no power to
‘substitute itself for them and formulate new submissions simply
on the basis of arguments and facts advanced’ (P.C.L.J., Series A,
No. 7, p. 35)” (Nuclear Tests (New Zealand v. France), Judg-
ment, I.C.J. Reports 1974, p. 466, para. 30).

(iii) The written pleadings and oral pleadings as such, excluding the sub-
missions, are basically arguments of the parties. Arguments of the
parties together with their contentions as reasons or statements
made for or against the matter are of highly relative value in juris-
dictional phases of the proceedings before the Court, taking into
consideration that the Court is not bound by them and that it, in
fact, possesses “the power to exclude” them (cf. Fisheries Jurisdic-
tion (Spain v. Canada), Jurisdiction of the Court, Judgment, I. C.J.
Reports 1998, p. 449, para. 32). The value of the arguments and
contentions of the parties is framed in terms of “indications of
what the party was asking the Court to decide” (cf. ibid. ; emphasis
added).

(iv) The arguments and contentions of the parties do not appertain to

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the submission of the party. The difference in meaning of the French
word “conclusion” and the English word “submission” reflected in
the circumstances that the latter “can extend to the arguments
advanced and the grounds invoked, and not merely to the precise
demand made of the Court” has been resolved in a manner that “the
Court has developed a consistent pattern of case-law on this aspect,
basing itself on the narrower meaning” (Shabtai Rosenne, The Law
and Practice of the International Court, 1920-1996, Vol. III (Pro-
cedure), p. 1266).

60. Due to the autonomous standing of the notion of “dispute” in
international obligation, its determination possesses certain specific
characteristics. Basically, they derive from the fact that “dispute
between States” is not automatically “dispute before the Court” even
in the case where the States followed the rules of the law of the Court
regarding the institution of proceedings.

Regarding the determination of a “dispute before the Court”, in the
proceedings instituted by Application, roles are assigned to the Applicant
and the Court itself. The role of the Applicant is referred to as the
“presentation” or “formulation of the dispute” (see Fisheries Jurisdic-
tion ( Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports
1998, pp. 447-448, paras. 29 and 30) by acts which are designed by the
Statute and the Rules of Court as duties of the Applicant (Statute,
Art. 40, para. 1; Rules of Court, Art. 38, paras. 1 and 2). As far as the
Court is concerned, by executing its judicial function it is its role to
determine the dispute dividing the parties as well as to identify the object
of the claim.

What is in concreto the intrinsic legal meaning of the word “determina-
tion”?

In a substantive sense, determination of a dispute is to a certain extent
expressed as verification of a dispute as presented or formulated by the
applicant. The only case when the determination of the matter by the
Court is autonomous in toto, deprived of any substantive connection to
the application, is the situation when the Court considers that the real
dispute between the parties does not exist. Verification in the sense of
authentication or confirmation of the dispute as presented by the appli-
cant may occur as either total or partial — in which case it is possible to
make a difference between a “real dispute” and a “dispute as presented or
formulated”. Such a substantive determination of the term “determina-
tion of the real dispute” is based on the fact that the application —
together with the final submissions and other pertinent evidence — rep-
resents a basic parameter for the determination of a real dispute. The
expression “irrespective of the nature and subject of the dispute laid
before the Court in the present case” (South West Africa, Preliminary
Objections, Judgment, I.C.J. Reports 1962, p. 328) is not used in the
meaning outside the application but irrespective of arguments of the
parties regarding the nature and subject of the dispute. The very essence

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of the determination process lies in its objectivity as to whether there
exists an international dispute (/nterpretation of Peace Treaties with
Bulgaria, Hungary and Romania, First Phase, Advisory Opinion,
LCI. Reports 1950, p. 74).

Even though objectivity is not a personal but a qualitative character-
istic, it includes in concreto an assessment of the constitutive elements of
the legal disputes rather than a construction or a negation of legal dis-
putes. Constitutive elements of the dispute are, in fact, criteria that ought
to be tested in order to “be shown that the claim of one party is positively
opposed by the other” (South West Africa, Preliminary Objections, Judg-
ment, I.C.J. Reports 1962, p. 328).

61. If an organic link between the controversy on the jurisdictional
issue and the existence of a dispute in a case indeed existed, then the
Court, for instance, could not entertain a case in the event of a respon-
dent’s non-appearance in the proceedings. The fact remains that the
position of the Applicant in the proceedings is an unusual one, but
not unprecedented. It can be compared precisely with the position of
Italy in the Monetary Gold case where Italy, as the applicant State, raised
the preliminary objection to the jurisdiction of the Court. The Court,
assessing such a position of Italy, said:

“The Court finds that Italy’s acceptance of jurisdiction is one
thing, while her raising of a legal issue on jurisdiction is quite
another. It cannot be inferred from the making of the Preliminary
Objection that Italy’s acceptance of jurisdiction has become less
complete or less positive than was contemplated in the Washington
Statement.” (Preliminary Question, Judgment, I. C.J. Reports 1954,
p. 29.)

Moreover, the Court came to this conclusion in the reply to the submis-
sion of the United Kingdom, which, by its content, precisely corresponds
with Italy’s submission in the present case. Namely, the Court finds
that, “[nlor can the Court accept the contention in the final Submission
No. 1 (b) of the United Kingdom that the Application has been in effect
withdrawn and cancelled by Italy” (ibid, p. 30).

62. That the absence of a specific dispute on jurisdiction does not
deprive the Court’s decision of its judicial character is also confirmed by
the jurisprudence of the Court. In the Monetary Gold case, Italy, as the
Applicant, submitted to the Court what it termed a “Preliminary Ques-
tion” in substantially identical terms as the first request of Serbia and
Montenegro. At the time Italy requested the Court to “adjudicate on the
preliminary question of its jurisdiction to deal with the merits of the
claim set forth under No. 1 of the Submissions of the Application” (Judg-
ment, I.C.J. Reports 1954, p. 23). The first request in the final submis-
sions of Serbia and Montenegro, as Applicant, has been formulated in
the following terms, where it requests the Court “to adjudge and declare

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on its jurisdiction ratione personae the present cases” (CR 2004/23, p. 38,
para. 34). Consequently, in both cases the applicant States asked the Court
not to declare that it has jurisdiction, but only to rule on its jurisdiction.

63. The request of the Applicant to the Court to rule on its jurisdiction
ratione personae possesses specific justification in the circumstances of
the present cases. These circumstances make relative the qualification of
the Applicant’s request regarding the jurisdiction of the Court ratione
personae as an abstract one. They present it in a different light, 1.e., as a
request incorporated in the reality of the Court’s jurisprudence on the
matter, some sort of reminder to the Court to act in accordance with its
own findings. Namely, faced with the question — whether or not Yugo-
slavia is a Member of the United Nations and as such a party to the Stat-
ute of the Court — the Court found, in the provisional measures phase of
the proceedings, that it “need not consider this question for the purpose
of deciding whether or not it can indicate provisional measures in the
present case” (Legality of Use of Force (Yugoslavia v. Netherlands),
Order of 2 June 1999, . C.J. Reports 1999 (I), p. 553, para. 33; see also
CR 2004/23, p. 38, para. 34). The finding, being only a slight modification
of the formulation used in the Order of 8 April 1993 in the Genocide Con-
vention case, implies the right, and obligation at the same time, of the
Court to pronounce upon it in a later phase of the proceedings and, it is
easy to agree, it seems to me, that there is no more proper phase in which
to do so than the preliminary objection phase.

4. Legal Interest of the Applicant in the Proceedings

64. Some of the respondent States (exempli causa, Portugal
(CR 2004/9, p. 9)) argued that by requesting the Court to decide that it
has no jurisdiction to adjudicate on the merits, Serbia and Montenegro
showed that it has no legal interest in settling the dispute before the
Court.

Grosso modo, legal interest of the Applicant can be defined as specific
interest to demand judicial intervention, considering that otherwise the
Applicant would suffer some unjust prejudice and (or) would not be able
to protect its violated rights on the basis of international law.

In order to be qualified as a relevant legal interest, the interest of the
Applicant needs to fulfil several conditions:

(a) To be of legal nature. Economic, political or other non-legal interest
as such is not enough considering the fact that the jurisdiction of the
Court is reserved for legal disputes.

(b) To be concrete. This condition implies that the intervention of the
Court, either positively or negatively, reflects on the corpus of rights
and duties of the parties, real or presumed, prescribed by interna-
tional law.

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(c) To be of personal nature. This concerns the personal dimension of
the previous condition to be concrete. In fact, the interest needs to
be related to the subjective right of the applicant whereas the advi-
sory opinion of the Court given on the concrete legal question may
be abstract, deprived of a personal dimension. Personal dimen-
sion of the legal interest serves as differentia specifica between a
general interest which lies behind an actio popularis and a specific
interest.

These elements form the essence of the concept of the legal interest
based upon which is legitimatio ad processum( qualité pour agir), which
is independent of the ability of a State to appear before the Court: it is
an expression of a concrete legal relation between the applicant and the
subject-matter of the dispute.

Legal interest of the applicant should be objectively determined par-
ticularly considering the fact that by instituting the proceedings before
the Court, the applicant demonstrates a subjective perception of its legal
interest in the matter.

Determination of the legal interest of the applicant is ex rerum natura
closely connected and intertwined with the determination of legal dis-
pute, taking into consideration that the dispute is in fact based on the
opposing attitudes of the parties in relation to a certain conflict of
interests. Therefore, what was emphasized regarding the determination
of the legal disputes applies mutatis mutandis to the basic parameters
for the determination of the legal interest of the applicant.

The party entitled to the subjective right, claiming the violation of a
concrete right to which the other party is positively opposed, is in posses-
sion eo ipso of a legal interest. In that case the presumption of legal
interest is applied. Legal interest is, in fact, incorporated into the very
essence of the concept of subjective right.

65. The Applicant, as well as the Respondent, is a State party to a
number of multilateral treaties in force, non-observance of which is
being attributed by the Applicant to the Respondent. Considering the fact
that the parties acquire mutual subjective rights and obligations by the
international treaty, the party whose subjective right has been violated
is entitled to claim the protection of its right (cf. Barcelona Traction,
Light and Power Company, Limited, Second Phase, Judgment, I.C.J.
Reports 1970, p. 45, para. 80; p. 46, para. 86). The existence of the
subjective right would no longer have its ratio in case the entitled party
did not possess legal interest for its protection. The presumption of legal
interest of the State entitled to the subjective right is strongly supported
by another reason deriving from the very nature of the modern inter-
national community. Due to the general prohibition on self-redress,
the State whose rights have been violated does not have at its disposal
an efficient and legal means for the protection of its subjective rights.
Therefore, it would in fact be convenient to assume the existence of the
legal interest in every particular case of accusation of the violation of the

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rules of international law, either conventional or customary, as a sort of
actio condemnatoria in the proceedings before the Court

The position of multilateral and bilateral treaties containing compro-
missory clauses is rather specific. The compromissory clause per se et a
priori proves the existence of the legal interest of the party and therefore
need not be either presumed or proved (action attitrée). Considered
stricti juris, the right to legal protection in the case of a compromissory
clause is not deduced from the legal interest of the applicant, but derives
directly from the compromissory clause as a treaty provision.

x * +

66. Summary removal as such might constitute an administrative
action of the Court, either proprio motu or at the request of the Respon-
dent to reject the Application in limine litis. In either case the validity
of summary removal is, to say the least, of a dubious nature.

Summary removal as an action of the Court proprio motu has lost the
ratio of its existence by the introduction of Article 38, paragraph 5, of the
Rules of Court. Until then, it had been applied as a kind of extorted
action of the Court in circumstances in which one State sues another
without any existing title of jurisdiction and, in fact, called upon that
State to accept the jurisdiction of the Court ad hoc°. Cessante ratione,
cessat ipsa lex.

In the circumstances of effective seisin of the Court, summary removal
at the request of the Respondent to the Court to reject the Application in
limine litis is unacceptable. As such, summary removal would be in sharp
contradiction with the duty of the Court to examine ex officio the ques-

9 Thus, the Court found itself in the situation of having to make a choice between Scilla
and Haribda — or to allow the “case” to figure on the General List as a pending case for
an indefinite period of time or to resort to the removal of the “case” from the General List
as was done in a number of cases: Treatment in Hungary of Aircraft and Crew of United
States of America (United States of America v. Hungary), Order of 12 July 1954, I CI.
Reports 1954, pp. 99-101, and Treatment in Hungary of Aircraft and Crew of United
States of America (United States of America v. Union of Soviet Socialist Republics),
Order of 12 July 1954, I C.J. Reports 1954, pp. 103-105; Aerial Incident of 10 March
1953, Order of 14 March 1956, L.C.J. Reports 1956, pp. 6-8; Aerial Incident of 4 Sep-
tember 1954, Order of 9 December 1958, I.C.J. Reports 1958, pp. 158-161; Aerial Inci-
dent of 7 November 1954, Order of 7 October 1959, .C.J. Reports 1959, p. 276-278;
Antarctica (United Kingdom v. Argentina), Order of 16 March 1956, IL. C.J. Reports 1956,
pp. 12-14, and Antarctica (United Kingdom v. Chile), Order of 16 March 1956, LC J.
Reports 1956, pp. 15-17.

In the light of Article 38, paragraph 5, what the Court might do proprio motu, in spe-
cific circumstances and before effective seisin, is to take the initiative in removing a case
from the General List which, in fact, is done in accordance with Article 88 or 89 of the
Rules of Court. As a point of illustration, mention can be made of the case concerning
Maritime Delimitation between Guinea-Bissau and Senegal, Order of 8 November 1995,
ILC J. Reports 1995, p. 423.

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tion of its jurisdiction in casu on the basis of the general principle of com-
pétence de la compétence. Having in mind the nature of the duty of the
Court to examine ex officio its jurisdiction in the case at hand, it might
even be said that summary removal in such circumstances would have the
meaning of a kind of denial of justice.

Consequently, by the adoption of Article 38, paragraph 5, of the Rules
of Court, “removal” acquires its appropriate meaning as simple removal
as an accessory effect of declining jurisdiction by the Court’s judicial
decision!®.

III. THE ISSUE OF THE COMPOSITION OF THE COURT

67. The fundamental difference between the composition of the Court
in the provisional measures phase of the proceedings, on the one hand,
and its make-up in the preliminary objections phase of the proceedings,
on the other, is noticeable. It calls for comments as a matter of principle.

During the provisional measures phase of the proceedings nine out of
a total of ten respondent States had judges sitting on the Bench of the
Court, irrespective of whether these were national judges (France, Ger-
many, the Netherlands, the United Kingdom and the United States of
America) or judges ad hoc (Belgium, Canada, Italy and Spain). Among
the respondent States having no judge of their nationality on the Bench,
only Portugal has not designated its judge ad hoc. The Applicant, for its
part, had one judge ad hoc on the Bench.

In the preliminary objections phase, the Bench underwent a significant
change. At the opening of the public sitting held on 19 April 2004, the
President of the Court stated, inter alia, that

“[bly letters dated 23 December 2003, the Registrar informed the
Parties that the Court had decided . . . that the judges ad hoc chosen
by the respondent States should not sit during the current phase of
the procedure in these cases” (CR 2004/6, p. 6).

He also noted that “Judge Simma had previously considered that he
should not take part in the decision of these cases and had so informed
[the President] in accordance with Article 24 of the Statute” (ibid., p. 7).
Thus, during the preliminary objections phase the Bench included
three national judges on the side of the respondent States and one ad hoc
judge on the side of the Applicant.
It is interesting to note that the Court, in adopting relevant decisions,

10 It might be mentioned in passing that the practice for the “removal clause” to be
included at all into the dispositif of a judgment of the Court is open to question; not only
because of the fact that, as a rule, a case which has been completed is removed automati-
cally from the General List of pending cases, but also because of the nature of the judicial
decision of the Court which concerns the parties to the dispute rather than a matter that,
basically, concerns the internal functioning of the Court.

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1148 LEGALITY OF USE OF FORCE (SEP. OP. KRECA)

failed to provide an explanation in more detail, both with respect to par-
ticular decisions concerning the composition of the Court in the proceed-
ings on preliminary objections and with respect to the substantial change
in the two successive phases of the proceedings.

In the provisional measures phase the Court, acting on the objections
raised by the Applicant relating to the nominations of judges ad hoc by
four respondent States, settled for a succinct formulation that the nomi-
nations were “justified in the present phase of the case” 1. The Court was
somewhat more specific in the relevant decision relating to its own
make-up in the preliminary objections phase. Even though, in contrast to
the provisional measures phase, the Applicant raised no objections regard-
ing the participation of judges ad hoc chosen by the respondent States. In
deciding that “the judges ad hoc chosen by the respondent States should
not sit during the current phase of the procedure” (CR 2004/6, p. 6), the
Court invoked the fact of “the presence on the Bench of judges of British,
Dutch and French nationality” (CR 2004/6, p. 6).

68. From the terse formulation relating to the acceptance of the nomi-
nations of judges ad hoc by four respondent States in the provisional
measures phase one could infer that the Court, in adopting the decision
that their nominations were justified, relied on the grammatical interpre-
tation of the provision of Article 31, paragraph 3, of the Statute. Namely,
Article 31, paragraph 3, provides that “[ilf the Court includes upon the
Bench no judge of the nationality of the parties, each of these parties may
proceed to choose a judge”. In other words, the Court followed the logic
that the independent and inherent right of a party to choose a judge ad
hoc on the basis of Article 31, paragraph 3, of the Statute, was not sub-
ject to any particular restrictions in this particular case. The Applicant
founded its objection to the nomination of the judges ad hoc by four
respondent States on the contention that they are parties in the same
interest and that, consequently, paragraph 5 of Article 31 of the Statute
should have been applied. The Court, in its decision does not deal spe-
cifically with this contention of the Applicant, although the decision itself
implies that the Court rejected it.

69. The absence of an explanation leaves room for assumptions. One
of them, it seems to me, that merits attention rests on the interpretation
of the expression “several parties in the same interest” (Statute, Art. 31,
para. 5). It has been said that

“Article 31, which uses a form of wording in the singular, ‘applies
separately to each case on the Court’s List’. ‘In the presence of two

1 Legality of Use of Force (Yugoslavia v. Belgium), Order of 2 June 1999, LCJ.
Reports 1999 (I), p. 130, para. 12; Legality of Use of Force ( Yugoslavia v. Canada),
Order of 2 June 1999, IL C.J. Reports 1999 (I), p. 265, para. 12; Legality of Use of Force
( Yugoslavia v. Italy), Order of 2 June 1999, I C.J. Reports 1999 (I), p. 487, para. 12;
Legality of Use of Force ( Yugoslavia v. Spain), Order of 2 June 1999, LC.J. Reports
1999 (IT), p. 767, para. 12.

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1149 LEGALITY OF USE OF FORCE (SEP. OP. KRECA)

separate cases between two sets of parties (even if one party is com-
mon to both cases), Article 31, paragraph 5, has no application’.”
(H. Thirlway, “The Law and Procedure of the International Court
of Justice, 1960-1989 (Part Eleven)”, The British Year Book of Inter-
national Law, 2000, p. 167, emphasis added, citing joint declaration
of Judges Bedjaoui, Guillaume and Ranjeva in Questions of Inter-
pretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya
v. United Kingdom), Preliminary Objections, Judgment, I. C.J.
Reports 1998, p. 40.)

It appears that the interpretation is far too narrow and, in the light of the
meaning and in particular of the application of Article 31, paragraph 5,
of the Statute, arbitrary because it implies an indissoluble organic link
between “parties in the same interest” and formal joinder, which is
obviously not the case. The Court may find that the parties are in the
same interest without having recourse to joinder. Moreover, it is said
that “the ‘same interest’ provisions apply” only “in the case of the choice
of judges ad hoc” (G. Guillaume, “La ‘cause commune’ devant la Cour
internationale de Justice”, Liber Amicorum — Mohammed Bedjaoui
(Emile Yakpo and Tahar Boumedra, eds.), 1999, p. 330 /translation by
the Registry ]). The jurisprudence of the Court was also formed in this
sense 2,

Consequently, the provision of Article 31, paragraph 5, of the Statute
according to which the parties in the same interest shall be reckoned as
one party only, cannot be understood as being tantamount to joinder.
Although the same interest of the parties constitutes an element of the
notion of joinder, taken per se it neither constitutes formal joinder nor
can be considered identical to it. Joinder implies that the parties in the
same interest are reckoned as one party in the totality of their procedural
position which, in addition to the appointment of a single judge ad hoc
includes also one set of pleadings and a single judgment.

The parties in the same interest, in the sense of Article 31, paragraph 5,
of the Statute, are reckoned as one party in a restricted, functional sense
versus the process position of parties in its totality in the event of the
issue of joinder, and that is the choice of judges ad hoc. The formulation
according to which “several parties in the same interest . .. shall... be
reckoned as one party only” (Statute, Art. 31, para. 5) is made not for the

12 Exempli causa,

“in the Fisheries Jurisdiction cases, the Court did not join the cases, and rendered
two distinct series of judgments, both on jurisdiction and on the merits. However,
that did not prevent it from regarding the United Kingdom and Germany as being ‘in
the same interest’ during the initial phase of the procedure.” (G. Guillaume, “La
‘cause commune’ devant la Cour internationale de Justice”, Liber Amicorum —
Mohammed Bedjaoui, 1999, pp. 330, 334-335 [translation by the Registry ]).

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purpose of a joinder but “for the purpose of the preceding provisions”
(Statute, Art. 31, para. 5) of Article 31 regulating equalization of the
parties before the Court.

If we continue for a moment to use the terminology of joinder, we
could possibly qualify the parties in the same interest, in the sense of
Article 31, paragraph 5, of the Statute, as a kind of small or procedural
joinder substantively and functionally linked with the choice of judges
ad hoc on the basis of the provisions of Article 31 of the Statute of the
Court.

70. The fundamental difference in the composition of the Court in the
provisional measures phase as against the preliminary objections phase
could be defended with the argument that in the provisional measures
phase the Court was not in a position to ascertain the positions of the
respondent States vis-a-vis the demands of the Applicant. The argument
bears a certain weight but it should not be overestimated in this particu-
lar case for two reasons at least. Primo, the question of the composition
of the Court is a matter of public order (in the Advisory Opinion case
concerning Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970) (hereinafter referred to as “Namibia”),
Vice-President Ammoun pointed out in his separate opinion that it
relates to “the rule of . . . very equality which the Statute seeks to safe-
guard through the institution of judges ad hoc” (1 C.J. Reports 1971,
p. 68)) possessing “absolute logical priority” (ibid., p. 25, para. 36; see
also Western Sahara, Order of 22 May 1975, LC.J. Reports 1975,
pp. 7-8; Western Sahara, Advisory Opinion, I. C.J. Reports 1975, p. 17-
18, para. 13). Secundo, the indication for consideration of the same
interest of the respondent States was provided in the Application itself
which related to all the ten respondent States with identical statements
of facts and law. The Application itself offered the basis for a prima facie
appreciation of the facts and law for the treatment of “the appointment
of a judge ad hoc... as a preliminary matter” (Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970),
Advisory Opinion, LC.J. Reports 1971, p. 25, para. 36). Tertio, the
urgency of the proceedings for interim measures could hardly be deemed
to have been an obstacle to such proceedings in this particular case,
because the proceedings for interim measures themselves lasted over
30 days, counting from the date of submission of the request to the
date of the rendering of the order.

71. The decision regarding the composition of the Court in both phases,
the provisional measures phase and the preliminary objections phase, was
adopted informally, being intimated to the Parties by the Registrar. (The
Court has thus departed from the practice established in the South West
Africa cases (cf. Order of 18 March 1965, LC.J. Reports 1965, p. 3) in
which the decision about the composition of the Court was adopted in the

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form of an order.) This practice possessed certain inherent advantages,
both formal and those of a substantive nature. As far as the formal
advantages are concerned, it is difficult to understand that the issue of
composition of the Court is regulated informally, at least when more
delicate and controversial cases are in question, whereas issues, such as
the appointment of experts of the Court (cf. Corfu Channel, Order of
19 November 1949, I.C. J. Reports 1949, p. 237; Delimitation of the Mari-
time Boundary in the Gulf of Maine Area, Appointment of Expert, Order
of 30 March 1984, I C.J. Reports 1984, p. 165), the appointment of
experts to assist the parties to implement a judgment (cf. Frontier Dispute,
Nomination of Experts, Order of 9 April 1987, L.C.J. Reports 1987,
p. 7), or decisions on a request for an inspection in loco (cf. South West
Africa, Order of 29 November 1965, I.C.J. Reports 1965, p. 9; Gabéikovo-
Nagymaros Project ( HungarylSlovakia), Order of 5 February 1997, I C.J.
Reports 1997, p. 3) are dealt with through a formal order. Although there
is no difference in the legal effect of decisions adopted informally or in the
legal effect of those adopted in a formal manner, the manner in which a
decision of the Court is embodied bears the meaning of an implicit evalua-
tion of the issues being the object of the decision. This practice is all the
more surprising having in mind that the question of the composition of
the Court is not a purely procedural matter, but, in cases such as the case
in hand, a matter of public order that indirectly concerns the principle of
equality of States as one of the fundamental principles of international
law which falls within corpus juris cogentis.

Also indisputable, it seems to me, are the substantive advantages of
making decisions on the composition of the Court in a formal manner.
They emanate from the very structure of the order, in particular from the
special considerations that the Court had in mind making the order and
reasons justifying a particular decision on the composition of the Court.
Thus, an easier and more reliable interpretation of the decision of the
Court is enabled and, equally important, a consolidation of jurisprudence
of the Court on the matter.

72. The decision of the Court by which three respondent States (Bel-
gium, Canada and Italy) have been denied the extension of the appoint-
ments of their judges ad hoc in the preliminary objections phase, and
denying Portugal the right to appoint a judge ad hoc, is based on
Article 31, paragraph 5, of the Statute which provides that “[sJhould
there be several parties in the same interest, they shall, for the purpose
of the preceding provisions, be reckoned as one party only. Any doubt
upon this point shall be settled by the decision of the Court.”

(a) As regards Belgium, Canada and Italy, the Court adopted the rele-
vant decision “pursuant to Article 31, paragraph 5, of the Statute, taking
into account the presence on the Bench of judges of British, Dutch and
French nationality” (CR 2004/6, pp. 6-7; emphasis added). The interpre-
tation of this explanation of the Court’s decision inevitably leads to the
conclusion that the Court considered not only Belgium, Canada and Italy

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as parties in the same interest, but also France, the Netherlands and the
United Kingdom.

The effect of Article 31, paragraph 5, of the Statute obviously could
not have been the deprivation of Belgium, Canada and Italy’s right,
“reckoned as one party only”, to have upon the Bench a single judge ad
hoc, but of the extension of the appointments of judges ad hoc which they
had appointed individually in the provisional measures phase. The dep-
rivation was legally founded only if the Court had found that these three
respondent States, together with France, the Netherlands and the United
Kingdom, were in the position of “parties in the same interest”. The
argument of the Court is suggestive of this but not explicit, because it
only referred to the “presence on the Bench of judges of British, Dutch
and French nationality” (CR 2004/6, p. 6) as ratio of exclusion of the
right of Belgium, Canada and Italy to choose a single judge ad hoc with-
out saying that all of them were parties in the same interest. A direct
nexus between these two matters — on the one hand, the deprivation of
the three respondent States, having no judge of their nationality on the
Bench, of their right to choose a single judge ad hoc, and, on the other
hand, the presence on the Bench of judges of the nationality of the three
other respondent States, having judges of their nationality on the Bench —
is only possible to establish on the basis of the same interest position of
all these respondent States.

(b) As far as Germany is concerned, as Judge Simma had considered
that he should not take part in the decision in this case, Germany, on the
basis of Article 37, paragraph 1, of the Rules of Court became “entitled
to choose a judge ad hoc within a time-limit to be fixed by the Court,
or by the President”. The Court, however, decided that the entitlement
under Article 37 is non-existent in casu “pursuant to Article 31, para-
graph 5, of the Statute” (CR 2004/6, p. 7). In other words, the Court sub-
sumed the position of Germany in this particular matter under Article 37,
paragraph 2, of the Rules of Court which provides that “/p/arties in the
same interest shall be deemed not to have a judge of one of their nation-
alities . . . if the Member of the Court . . . is or becomes unable to sit”
(emphasis added).

Consequently, the Court, proceeding from the “same interest” provi-
sion embodied in Article 31, paragraph 1, of the Statute and elaborated
in Article 37, paragraphs 1 and 2, of the Rules of Court, by its decision
notified to the Parties by letters of the Registrar dated 23 December 2003,
took the position that all eight respondent States are parties in the same
interest.

73. The decision of the Court produced equalization effects in the
composition of the Bench between the Applicant, on the one hand, and
the Respondents, on the other.

The equalization effects are expressed on two levels:

(i) on the level of the relation between the applicant State and those

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respondent States having no national judge upon the Bench. Unlike
the provisional measures phase, full equalization was realized in the
preliminary objections phase in accordance with the perfectly coher-
ent jurisprudence of the Court, thanks to the decision of the Court.
(Cf. joint declaration of Judges Bedjaoui, Guillaume and Ranjeva,
Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judg-
ment, I. C.J. Reports 1998, pp. 34-39);

(ii) on the level of the relation between the applicant State and those res-
pondent States having Members of their nationality upon the Bench.
On this level partial equalization has been realized given the fact that
Judge Simma had decided not to take part in the decision in the case,
and the Court’s decision that Germany, pursuant to Article 31, para-
graph 5, of the Statute was not entitled to choose a judge ad hoc.

Thus the relation between the applicant State and the respondent
States having Members of their nationality upon the Bench suffered a
change in the concrete matter in comparison with the composition of the
Court in the procedure on provisional measures — three respondent
States (France, the Netherlands and the United Kingdom) have their
national judges upon the Bench and the applicant State has a judge ad
hoc on the Bench.

Can such a solution be considered tenable in law and justice? The
answer to this question, it seems to me, is in the negative rather than in
the positive.

In the construction of Article 31, paragraphs 1 to 5, of the Statute, the
arithmetical equality of the numbers of judges upon the Bench having the
nationality of the parties, in the relevant variants of the relation between
the number of national judges (Art. 31, para. 1), national judges and
judges ad hoc (Art. 31, para. 2) or judges ad hoc mutually (Art. 31,
para. 3), figures as an expression of equality of the parties. Although
equality of the parties is not exhausted in the arithmetical equality, it
seems incontestable that, in the relations among States as sovereign
political units, the arithmetical equality is an important constitutive ele-
ment of equality: a contrario, the provisions of Article 31, paragraphs 1
to 5, of the Statute as such would be devoid of substance.

It is obvious that in concreto this arithmetical equality is non-existent
despite the fact that the respondent States are parties in the same interest.
What is involved, in fact, is but one example of inequality of the parties,
inequality that comes about due to grammatical interpretation of
Article 31, paragraph 4, of the Statute.

For as Judge Guillaume notes, referring to Article 31, paragraph 4, of
the Statute,

“This provision guaranteed equality between the parties where

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neither had a national on the Bench. Thus in such cases, whether
there is a plurality of applicants, or of respondents, or of both, only
one judge ad hoc is chosen to sit on each side.

The system worked equally well where the Court included a judge
of the nationality of one of the parties and the latter objected to a
plurality of applicants or respondents acting in the same interest and
not having a judge of their own nationality present on the Bench.
Here again, equality was effectively guaranteed.

On the other hand, the system was more open to criticism where
on one side there were several States with judges of their nationality
on the Bench, whereas on the other there was only one judge, or
even merely a judge ad hoc.” (G. Guillaume, “La ‘cause commune’
devant la Cour internationale de Justice”, Liber Amicorum —
Mohammed Bedjaoui (Emile Yakpo and Tahar Boumedra, eds.),
1999, pp. 328-329; emphasis added.)

It follows, consequently, that in the event of conflict between the prin-
ciple of permanence of the Court and equality of parties “the authors of
the Statute and Rules accorded priority to the principle of the perma-
nence of the Court”, having restricted the application of the principle of
equality of parties “in regard to choice of judges ad hoc to situations
where the ‘common interest’ provisions apply” (ibid., p. 330 [translation
by the Registry]).

Such a state of affairs is hardly tenable. The deficiencies of the solu-
tions enshrined in the Statute and in the Rules of Court cannot constitute
a basis for a derogation of the fundamental principle of equality of
parties. The principle of equality of parties is but one ingredient, a con-
stitutive element of a broader principle of sovereign equality of States.
Although the Statute and the Rules of Court are, by their nature, jus spe-
cialis designed to regulate the work of the Court, it cannot be accepted
that they authorize, as such, the Court to disregard the relevant norms of
general international law. And, as the Statute itself determines, the Court’s
function “is to decide in accordance with international law” (Statute,
Art. 38, para. 1). Especially as concerns contemporary international law
which, unlike international law that was in effect at the time of drawing
up of the Statute of the Permanent Court of International Justice, recog-
nizes jus cogens the rules of overriding importance that, by definition,
brook no competition of incongruous rules. And the principle of sovereign
equality of States is undoubtedly a rule that belongs to corpus juris
cogentis.

74. The issue of the realization of the overriding rule of equality of
States in regard to the composition of the Bench is, basically, an issue of
a technical, derivative nature. There are two ways that seem to be appro-

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priate, independently or in combination, depending on the circumstances
of a particular case. One of them boils down to the exemption of a Mem-
ber or Members of the Court in the event that there exists inequality
between the litigant parties in multiple cases in which one party is com-
prised of two or several States whose judges sit in the Court. Whereas the
other party is composed of a State (or States) that do not have national
judges or have a smaller number of national judges as compared to the
other side. In such a case a solution could be found within the co-ordi-
nates of the proposal submitted at the time of the revision of the Rules of
Court in 1926, according to which:

“Where one of the parties is represented by two or more States
having judges present on the Bench, only one of those judges, to be
chosen by the States in question, may take part in the proceedings
and judgment in the case.” (Statut et Réglement de la Cour perma-
nente de Justice internationale — Eléments d'interprétation, Carl
Heymanns Verlag, Berlin, 1934, p. 189, cited in G. Guillaume, “La
‘cause commune” devant la Cour internationale de Justice”, Liber
Amicorum — Mohammed Bedjaoui (Emile Yakpo and Tahar Bou-
medra, eds.), 1999, p. 329. / Translation by the Registry. ])

Two objections could be raised with respect to this way of solving the
issue. The first is that it implies revision of Article 31, paragraph 1, of the
Statute. The objection is justified, but only partially, having in mind that,
by the application of Article 24, paragraph 2, of the Statute, it is possible
to achieve equalization even without a formal revision of the Statute. The
circumstances that two or more States whose judges sit in the Court —
States that are parties in the same interest — can be regarded by the
President of the Court as a “special reason” for having recourse to the
authority being at their disposal on the basis of Article 24, paragraph 2,
of the Statute. It is difficult, however, to imagine that a broader applica-
tion of this provision of the Statute is feasible, not only because of the
principle of permanence of the function of a Member of the Court, but
also because of the requirement relating to the minimal number of judges
constituting the Court (Statute, Art. 25, para. 2). Still, the possibilities
offered by this provision of the Statute should not be underestimated,
especially if the principle of permanence is interpreted systematically,
without the ingredients of a fetish. In that sense, the principle of perma-
nence of the Court is of a relative nature, not only because of the provi-
sion of the Statute stipulating that a third of judges shall be elected every
third year (Statute, Art. 13), but also because of the fact that a judge or
judges may be prevented from sitting on the Bench for factual or legal
reasons (Statute, Art. 23, para. 3, and Art. 24, para. 1).

The other manner would consist in giving the right to a party having
no judge of its nationality on the Bench to nominate more than one judge
ad hoc if equalization cannot be achieved in some other way. There exist
no substantive obstacles in the Statute to this manner of equalization.
The fact that Article 31, paragraph 2, of the Statute refers to the right of

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“any other party” (i.e., a party other than the party which has a judge of
its nationality) to “choose a person to sit as judge” in the singular, cannot
be regarded as a ban on “any other party” to choose more than one judge
ad hoc. Article 31, paragraph 2, of the Statute is, both by diction and by
the terms used, designed individualistically, i.e., one party (having a judge
of its nationality on the Bench)/other party (party other than the party
having a judge of its nationality on the Bench). When multiple cases,
such as the cases at hand, are involved, the said provision should be
interpreted teleologically.

A contrario, it remains unclear how equalization, as an expression and
manner of ensuring the fundamental principle of equality of States, could
be achieved. For it should be borne in mind that it is not only about
nominal equality between parties, considering that even a quick look at
the voting practice in the Court shows that differences between national
judges and judges ad hoc in the cases in which States of their nationalities
were involved are not so significant as usually presumed.

75. The schedule of public hearings in the eight cases concerning the
Legality of Use of Force held from 19 April 2004 to 23 April 2004, taken
per se and in particular in connection with the decision of the Court
relating to the composition of the Court in these cases, represents a
specific and unusual approach of the Court.

Prima facie, the schedule of public hearings reflects the idea of consoli-
dation of separate proceedings in the sense of a logical order of the hear-
ings. More precisely, during the first round of pleadings on the prelimi-
nary objections held on 19 and 20 April, all eight respondent States
submitted their pleadings, whereas the Applicant did so on 21 April 2004.
The schedule was basically applied to the second round of pleadings, so
that 22 April 2004 was reserved for the eight respondent States and
23 April 2004 for the Applicant. However, a couple of things contradict
a simple equalization of this schedule of public hearings with the consoli-
dation of separate proceedings. Primo, the schedule departs from the
logical and normal practice that after the pleading of one respondent
State, who raised preliminary objections, there follows the pleading of
the Applicant, bearing in mind that a separate pleading is in question. It
is possible to argue that eight respondent States were in question, so that
the schedule of public hearings in the form in which it is designed was
meant to avoid possible duplication in the arguments of the Parties, in
particular that of the Applicant. Leaving aside the fact that such reason-
ing implies also substantive similarity or identity of pleadings of the
respondent States, it is clear already from a quick reading of the official
records of pleadings that, as designed, the schedule of public hearings did
not exclude duplication of arguments. Secundo, the order of pleadings of
the respondent States does not correspond to their order in the List of
pending cases. Moreover, it is in contrast also with the order of pleadings
of the respondent States in the provisional measures phase of the cases.

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The Court decided at the time that after Yugoslavia, as the applicant
State, the respondent States should make their presentations in English
alphabetical order (International Court of Justice, Press Release 99/19 of
7 May 1999), which is also the order of the cases in the official name of
the cases on the Court’s List of pending cases. This would not merit too
much attention by itself. It could simply be a matter of convenience —
if it were not followed also by grouping of the respondent States in the
schedule of public hearings. Thus, within the framework of the first
round of oral pleadings, the morning session of the Court on 19 April
2004 was reserved for Belgium and the Netherlands. Also, the morning
session of the following day was reserved for Germany, France and Italy.
Although the Court offered no explanation for the reasons for such a
grouping, which cannot be taken as unusual, it is reasonable to assume
that the Court relied, among other things, also on different jurisdictional
claims pointed out by the applicant State. (Namely, with respect to Bel-
gium and the Netherlands, the Applicant presented also additional titles
of jurisdiction, i.e., Article 4 of the Convention of Conciliation, Judicial
Settlement and Arbitration between Belgium and the Kingdom of Yugo-
slavia dated 25 March 1930, and Article 4 of the Treaty of Judicial Settle-
ment, Arbitration and Conciliation between the Netherlands and the
Kingdom of Yugoslavia dated 11 March 1931.) On the other hand, the
process position of Germany, France and Italy is characterized by the
fact that these three respondent States have not made a declaration of
acceptance of the compulsory jurisdiction of the Court under Article 36,
paragraph 2, of the Statute. Tertio, there has appeared an intriguing
coincidence of the said grouping of the respondent States in the schedule
of public hearings and of the composition of the Court derived from it, a
composition that would completely fit in with the principle of equality of
parties. If, ex hypothesi, joinder has been established for groups of cases
in accordance with the schedule of public hearings held on 19 and
20 April 2004 Goinder for Belgium and the Netherlands, a second for
Germany, France and Italy, and a third for the United Kingdom, Portu-
gal and Canada), then the relation between the Applicant and the groups
of respondent States included in the said joinders would be brought to
the point of full equality of the Parties as far as the composition of the
Court is concerned.

x * +

76. The question of locus standi of Serbia and Montenegro before
the Court, or its jurisdiction, is one thing, and the question of the legality
of use of force is another.

Due to the inherent features of the jurisdiction of the Court — the
consensual nature coupled with limited access — the Court was not in a
position to make a pronouncement with regard to the legality of use of
force in these particular cases.

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This fact testifies by itself to the delicate position in which the Court,
as the world Court, may find itself.

The Court, whose function is “to decide in accordance with interna-
tional law” (Statute, Art. 38, para. 1) disputes as are submitted to it is, in
these particular cases, hindered in a way in carrying out its function in
regard to the issue that certainly cannot be regarded as an ordinary one.

The question of the use of force in relations between States in an onto-
logical issue of the international order. It is a watershed of the primitive
de facto order that is governed by the elements of constellation of powers
and opportunism, and of the de jure international order embodied in the
rule of law.

On this occasion it seems appropriate to observe that we are witnessing
a cacophony of voices, coming as a rule from the circle of powerful
and influential States, to the effect that the sovereignty of States is just
history. As far as international law and the Court, as its organ, are con-
cerned, it is painful and surprising to realize that, among the advocates
of limited sovereignty, there can hardly be found those supporting a limi-
tation of sovereignty in, probably, the only aspect where limitation of
sovereignty — irrespective of the will of the States — corresponds with
the idea of a legally organized international community. Namely, that
disputes between States should be solved before the Court and not on the
battlefield.

The ratio of existence of international law rests in its implementation,
especially when it comes to rules that have an overriding character.
Hence, one can understand the calls, or perhaps entreaties, addressed to
the Court that

“Yugoslavia was at least entitled to deliberation on the merits of
its claim . . . rather than being brushed off on a jurisdictional tech-
nicality” (Anthony D’Amato in “Review of the ICJ Order of June 2,
1999 on the Illegality /sic] of Use of Force Case”, as found in “Kos-
ovo & Yugoslavia: Law in Crisis”, a presentation of Jurist (source:
http://jurist.law.pitt.edu/amatol.htm at 22 November 2004)).

It remains for the Court, fettered by the strong rules of its jurisdiction,
to appeal, if at all, to the Parties, somewhat quixotically, to be aware
of their responsibilities under international law, following the practice
in some previous cases (exempli causa, Fisheries Jurisdiction (Spain
v. Canada), Jurisdiction of the Court, Judgment, I C.J. Reports 1998,
p. 456, para. 56) or to address the matter even in a more qualified
manner.

(Signed) Milenko KREA.

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