Saturday, January 22, 2011

ICJ - Legality of Use of Force Cases

On 29 April 1999 the Federal Republic of Yugoslavia instituted proceedings before the Court against Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal, Spain, the United Kingdom and the United States of America, accusing those States of bombing Yugoslav territory in violation of their international obligations.On the same day Yugoslavia also filed, in each of the ten cases, a request for interim measures of protection (provisional measures), asking the Court to order the States involved to "cease immediately [their] acts of use of force". In two cases (Yugoslavia v. Spain and Yugoslavia v. United States of America), the Court concluded that it manifestly lacked jurisdiction and it accordingly ordered that the cases be removed from its List. In the other eight (Yugoslavia v. Belgium; Yugoslavia v. Canada; Yugoslavia v. France; Yugoslavia v. Germany; Yugoslavia v. Italy; Yugoslavia v. Netherlands; Yugoslavia v. Portugal; Yugoslavia v. United Kingdom), the Court found that it lacked prima facie jurisdiction -  which is one of the prerequisites for the indication of provisional measures -  and that it therefore could not indicate such measures; the Court, however, stated that it remained seised of those cases and stressed that its findings, at that stage, "in no way prejudge[d] the question of the jurisdiction of the Court to deal with the merits" of the cases and left "unaffected the right of the Governments of Yugoslavia and [of the respondent States] to submit arguments in respect of those questions".

On 5 July 2000, Belgium submitted preliminary objections relating to the Court's jurisdiction to entertain the case and to the admissibility of the Application.  The proceedings on the merits were accordingly suspended.  Hearings were held from 19 to 23 April 2004 on those objections, as well as on those submitted by the seven other Respondents.    In light of the legal consequences of the new development since 1 November 2000 (Serbia and Montenegro becoming UN member), ICJ concluded that Serbia and Montenegro was not a Member of the United Nations at the time of filing its Application to institute the present proceedings before the Court on 29 April 1999, it follows that the Court was not then open to it. 

The Court then considered whether it might be open to the Applicant under paragraph 2 of Article 35,under Article 35, , which provides: “The conditions under which the Court shall be open to other States [i.e. States not parties to the Statute] shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.”The Court thus concluded that, even assuming that the Applicant was a party to the Genocide  at the relevant date, Article 35, paragraph 2, of the Statute does 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.  The Court did not therefore consider it necessary to decide whether Serbia and Montenegro was or was not a party to the Genocide Convention on 29 April 1999, when the current proceedings were instituted.  The Court finally rejected the argument that Serbia and Montenegro was entitled to invoke Article 4 of the 1930 Convention as a basis of jurisdiction in this case. Having concluded that Serbia and Montenegro has no access to the Court under either paragraph 1 or paragraph 2 of Article 35, the Court noted that it is unnecessary for it to consider the Respondent's other preliminary objections.
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