Legality of Use of Force (Serbia and Montenegro v. Italy)


OVERVIEW OF THE CASE

On 29 April 1999, the Federal Republic of Yugoslavia filed in the Registry of the Court Applications instituting proceedings against Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, Spain, United Kingdom and United States of America for alleged violations of their obligation not to use force against another State. In its Applications against Belgium, Canada, Netherlands, Portugal, Spain and United Kingdom, Yugoslavia referred, as a basis for the jurisdiction of the Court, to Article 36, paragraph 2, of the Statute of the Court and to Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations on 9 December 1948. Yugoslavia also relied upon Article IX of that Convention in its Applications against France, Germany, Italy and United States, but also relied on Article 38, paragraph 5, of the Rules of Court.

On 29 April 1999, Yugoslavia also submitted, in each case, an Application for the indication of provisional measures to ensure that the respondent State concerned “cease immediately its acts of use of force and . . . refrain from any act of threat or use of force” against Yugoslavia. After hearings on the provisional measures from 10 to 12 May 1999, the Court delivered its decision in each of the cases on 2 June 1999. In two of them (Yugoslavia v. Spain and Yugoslavia v. United States of America), the Court, rejecting the Request for the indication of provisional measures, concluded that it manifestly lacked jurisdiction and consequently ordered that the cases be removed from the List. In the eight other cases, the Court declared that it lacked prima facie jurisdiction (one of the prerequisites for the indication of provisional measures) and that it therefore could not indicate such measures.

In each of the eight cases which remained on the List, the Respondents filed preliminary objections to jurisdiction and admissibility.

In its Judgments of 15 December 2004, the Court observed that the question whether Serbia and Montenegro was or was not a State party to the Statute of the Court at the time of the institution of the proceedings was fundamental; for if Serbia and Montenegro were not such a party, the Court would not be open to it, unless it met the conditions prescribed in Article 35, paragraph 2, of the Statute.

The Court therefore had to examine whether the Applicant met the conditions for access to it laid down in Articles 34 and 35 of the Statute before examining the issues relating to the conditions laid down in Articles 36 and 37 of the Statute.

The Court pointed out that there was no doubt that Serbia and Montenegro was a State for the purpose of Article 34, paragraph 1, of the Statute. However, the objection had been raised by certain Respondents that, at the time when the Application was filed, Serbia and Montenegro did not meet the conditions set down in Article 35, paragraph 1, of the Statute, because it was not a Member of the United Nations at the relevant time. After recapitulating the sequence of events relating to the legal position of the applicant State vis-à-vis the United Nations, the Court concluded that the legal situation that obtained within the United Nations during the period 1992-2000 concerning the status of the Federal Republic of Yugoslavia, following the break-up of the Socialist Federal Republic of Yugoslavia, had remained ambiguous and open to different assessments. This situation had come to an end with a new development in 2000. On 27 October of that year, the Federal Republic of Yugoslavia requested admission to membership in the United Nations, and on 1 November, by General Assembly resolution 55/12, it was so admitted. The Applicant thus had the status of membership in the Organization as from 1 November 2000. However, its admission to the United Nations did not have, and could not have had, the effect of dating back to the time when the Socialist Federal Republic of Yugoslavia broke up and disappeared. The Court therefore concluded that the Applicant thus was not a Member of the United Nations, and in that capacity a State party to the Statute of the International Court of Justice, at the time of filing its Application to institute the proceedings in each of the cases before the Court on 29 April 1999. As it had not become a party to the Statute on any other basis, the Court was not open to it at that time under Article 35, paragraph 1, of the Statute.

The Court then considered whether it might have been open to the Applicant under paragraph 2 of Article 35. It noted that the words “treaties in force” in that paragraph were to be interpreted as referring to treaties which were in force at the time that the Statute itself came into force, and that consequently, even assuming that the Applicant was a party to the Genocide Convention when instituting proceedings, Article 35, paragraph 2, of the Statute did not provide it with a basis for access to the Court under Article IX of that Convention, since the Convention only entered into force on 12 January 1951, after the entry into force of the Statute.

In the cases against Belgium and the Netherlands, the Court finally examined the question whether Serbia and Montenegro was entitled to invoke the dispute settlement convention it had concluded with each of those States in the early 1930s as a basis of jurisdiction in those cases. The question was whether the conventions dating from the early 1930s, which had been concluded prior to the entry into force of the Statute, might rank as a “treaty in force” for purposes of Article 35, paragraph 2, and hence provide a basis of access. The Court first recalled that Article 35 of the Statute of the Court concerns access to the present Court and not to its predecessor, the Permanent Court of International Justice (PCIJ). It then observed that the conditions for transfer of jurisdiction from the PCIJ to the present Court are governed by Article 37 of the Statute. The Court noted that Article 37 applies only as between parties to the Statute under Article 35, paragraph 1. As it had already found that Serbia and Montenegro was not a party to the Statute when instituting proceedings, the Court accordingly found that Article 37 could not give it access to the Court under Article 35, paragraph 2, on the basis of the Conventions dating from the early 1930s, irrespective of whether or not those instruments were in force on 29 April 1999, the date of the filing of the Application.


This overview is provided for information only and in no way involves the responsibility of the Court.

Institution of proceedings


Written proceedings

29 April 1999
Procedure(s):Provisional measures
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5 July 2000
Procedure(s):Preliminary objections
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Oral proceedings

Verbatim record 1999/14 (bilingual version)
Public sitting held on Monday 10 May 1999, at 10.00 a.m., at the Peace Palace, Vice-President Weeramantry, Acting President, presiding
Procedure(s):Provisional measures
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Translation
(bilingual version) Translation
Verbatim record 1999/19 (bilingual version)
Public sitting held on Tuesday 11 May 1999, at 10.45 a.m., at the Peace Palace, Vice-President Weeramantry, Acting President, presiding
Procedure(s):Provisional measures
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Translation
(bilingual version) Translation
Verbatim record 1999/25 (bilingual version)
Public sitting held on Wednesday 12 May 1999, at 10.00 a.m., at the Peace Palace, Vice-President Weeramantry, Acting President, presiding
Procedure(s):Provisional measures
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Translation
(bilingual version) Translation
Verbatim record 1999/30 (bilingual version)
Public sitting held on Wednesday 12 May 1999, at 3.30 p.m., at the Peace Palace, Vice-President Weeramantry, Acting President, presiding
Procedure(s):Provisional measures
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Translation
(bilingual version) Translation
Verbatim record 2004/13 (bilingual version)
Public sitting held on Tuesday 20 April 2004, at 12.10 p.m., at the Peace Palace, President Shi presiding
Procedure(s):Preliminary objections
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Translation
(bilingual version) Translation
Verbatim record 2004/14 (bilingual version)
Public sitting held on Wednesday 21 April 2004, at 10 a.m., at the Peace Palace, President Shi presiding
Procedure(s):Preliminary objections
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Translation
(bilingual version) Translation
Verbatim record 2004/22 (bilingual version)
Public sitting held on Thursday 22 April 2004, at 4.40 p.m., at the Peace Palace, President Shi presiding
Procedure(s):Preliminary objections
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Translation
(bilingual version) Translation
Verbatim record 2004/23 (bilingual version)
Public sitting held on Friday 23 April 2004, at 3 p.m., at the Peace Palace, President Shi presiding
Procedure(s):Preliminary objections
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Translation
(bilingual version) Translation

Other documents

Letter of the Agent of Italy (French version only)
16 January 2003
Procedure(s):Preliminary objections
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28 February 2003
Procedure(s):Preliminary objections
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27 February 2004
Procedure(s):Preliminary objections
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Orders

Fixing of time-limits: Memorial and Counter-Memorial
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Fixing of time-limit: Written Statement of observations and submissions on Preliminary Objections
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Extension of time-limit: Written Statement of observations and submissions on Preliminary Objections
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Extension of time-limit: Written Statement of observations and submissions on Preliminary Objections
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Judgments


Summaries of Judgments and Orders

Summary of the Order of 2 June 1999
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Summary of the Judgment of 15 December 2004
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Press releases

29 April 1999
Legality of Use of Force (Serbia and Montenegro v. Italy) - Hearings on provisional measures to open on Monday 10 May 1999
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4 May 1999
Legality of Use of Force (Serbia and Montenegro v. Italy) - Hearings of Monday 10 and Tuesday 11 May 1999 - Exceptional admission procedure
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7 May 1999
Legality of Use of Force (Serbia and Montenegro v. Italy) - Provisional Measures - Programme of the hearings opening on Monday 10 May 1999
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12 May 1999
Legality of Use of Force (Serbia and Montenegro v. Italy) - Conclusion of the hearings on provisional measures - The Court ready to consider its decision
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28 May 1999
Legality of Use of Force (Serbia and Montenegro v. Italy) - Provisional measures - Court to give its decisions on Wednesday 2 June 1999 at 10.00 a.m.
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2 June 1999
Legality of Use of Force (Serbia and Montenegro v. Italy) - The Court rejects the request for the indication of provisional measures submitted by Yugoslavia, but remains seised of the case
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2 June 1999
Legality of Use of Force (Serbia and Montenegro v. Italy) - The Court rejects the requests for the indication of provisional measures submitted by Yugoslavia
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2 July 1999
Legality of Use of Force (Serbia and Montenegro v. Italy) - The Court fixes time-limits for the filing of written pleadings
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7 July 2000
Legality of Use of Force (Serbia and Montenegro v. Italy) - The respondent States challenge the Court's jurisdiction and the admissibility of Yugoslavia's Applications
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14 September 2000
Legality of Use of Force (Serbia and Montenegro v. Italy) - Fixing of the time-limits within which Yugoslavia may present written statements on the preliminary objections made by the Respondent States
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23 February 2001
Legality of Use of Force (Serbia and Montenegro v. Italy) - The Court extends by one year the time-limits for the filing by Yugoslavia of written statements on the preliminary objections made by the Respondent States
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22 March 2002
Legality of Use of Force (Serbia and Montenegro v. Italy) - At the request of Yugoslavia the Court again extends the time-limits for the filing by that State of written statements on the preliminary objections made by the respondent States
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16 March 2004
Legality of Use of Force (Serbia and Montenegro v. Italy) - Preliminary Objections - The Court will hold public hearings from 19 to 23 April 2004
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8 April 2004
Legality of Use of Force (Serbia and Montenegro v. Italy) - Preliminary Objections - Schedule of public hearings to be held from 19 to 23 April 2004
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3 May 2004
Legality of Use of Force (Serbia and Montenegro v. Italy) - Preliminary Objections - Conclusion of the public hearings; Court ready to begin its deliberation
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3 December 2004
Legality of Use of Force (Serbia and Montenegro v. Italy) - Preliminary Objections - Court to deliver its decisions on Wednesday 15 December 2004 at 3 p.m.
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15 December 2004
Legality of Use of Force (Serbia and Montenegro v. Italy) - Preliminary Objections - The Court finds that it has no jurisdiction to entertain the claims made by Serbia and Montenegro
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