Legality of Use of Force (Serbia and Montenegro v. Netherlands)
See other cases involving
See other cases involving
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, Yugoslavia filed a Memorial in January 2000. In July 2000, the Respondents filed preliminary objections to jurisdiction and admissibility within the time-limit laid down for the filing of their Counter-Memorials. Consequently, pursuant to Article 79, paragraph 3, of the Rules of Court adopted on 14 April 1978, the proceedings on the merits in each of the cases were suspended. By Orders of 8 September 2000, the Vice-President fixed 5 April 2001 as the time-limit for the submission by Yugoslavia, in each case, of a written statement containing its observations on the preliminary objections.
In January 2001 and February 2002, Yugoslavia, referring to “dramatic” and “ongoing” changes in the country, which would have put those cases “in a quite different perspective”, as well as to the decision to be taken by the Court in another case involving Yugoslavia, requested the Court “for a stay of proceedings or for an extension by 12 months of the time-limit for the submission of observations on the preliminary objections raised by . . . [the respondent State]” in each case. In 2001 and 2002, the respondent States indicated that they were not opposed to a stay of proceedings or to an extension of the time-limit for the filing of the observations and submissions of Yugoslavia on their preliminary objections. Consequently, the Court twice extended by one year the time-limits originally fixed for the submission by Yugoslavia of the written statements containing its observations and submissions on the preliminary objections raised by the eight respondent States. On 20 December 2002, Yugoslavia filed that written statement in each of the eight cases.
By subsequent letters addressed to the Court in January and February 2003, the eight respondent States expressed their views concerning the written statement of Serbia and Montenegro. In reply, by a letter of 28 February 2003, Serbia and Montenegro informed the Court that its written observations filed on 20 December 2002 were not to be interpreted as a notice of discontinuance of the proceedings ; it indicated that their object was simply to request the Court to decide on its own jurisdiction on the basis of the new elements to which the Court’s attention had been drawn.
Serbia and Montenegro availed itself of the right under Article 31, paragraph 2, of the Statute to choose a judge ad hoc, during the phase of the cases devoted to the request for the indication of provisional measures. At that time, some of the respondent States also chose judges ad hoc. In the subsequent phase of the proceedings, Belgium, Canada and Italy requested the extension of the appointments of their judges ad hoc and Portugal indicated its intention to appoint a judge ad hoc. Serbia and Montenegro objected on the ground that the respondent States were in the same interest. Following a meeting held by the President with the representatives of the Parties on 12 December 2003, the Registrar informed the Parties that the Court had decided, pursuant to Article 31, paragraph 5, of its Statute, taking into account the presence on the Bench of judges of British, Dutch and French nationality, that the judges ad hoc chosen by the respondent States should not sit during the then current phase of the procedure in these cases ; and that that decision did not in any way prejudice the question whether, if the Court should reject the preliminary objections of the respondents, judges ad hoc chosen by them might sit in subsequent stages of the said cases.
At the meeting of 12 December 2003, the question was also raised of a possible joinder of the proceedings. By the Registrar’s letters of 23 December 2003, the Parties were informed that the Court had decided that the proceedings should not be joined. Although there were thus eight separate proceedings, instituted by eight separate Applications, the position of the Applicant in each case was the same, and its responses to the eight sets of preliminary objections proceeded on substantially the same basis. Consequently, the Court organized the conduct of the oral proceedings in this phase of the case in such a manner as to avoid unnecessary duplication of arguments. Oral proceedings were held from 19 to 23 April 2004.
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.
At the end of its reasoning, the Court finally recalled that, irrespective of whether it has jurisdiction over a dispute, the parties “remain in all cases responsible for acts attributable to them that violate the rights of other States”.
This overview is provided for information only and in no way involves the responsibility of the Court.