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NATO air campaign against Yugoslavia—provisional measures—-jurisdictional standard for provisional measures—Optional Clause jurisdiction—effect of reservation ratione temporis in declaration accepting compulsory jurisdiction—forum prorogatum—effect of reservations to Article IX of Genocide Convention
Published online by Cambridge University Press: 27 February 2017
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- International Decisions
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- Copyright © American Society of International Law 1999
References
1 Orders of June 2, 1999, available through the Court’s website at <http://www.icj-cij.prg>. The vote was 14–2 in the case involving Spain, 13–3 in the case involving Italy, 12–3 in the cases involving France, Germany, the United Kingdom and the United States, 12–4 in the cases involving Belgium and Canada, and 11–4 in the cases involving the Netherlands and Portugal. Judges Shi and Vereshchetin and Judge ad hoc Kreca (appointed by Yugoslavia) voted against the main holding rejecting Yugoslavia’s request in all ten Orders (except that Judge ad hoc Kreca did not dissent in the case involving Spain). Vice-President Weeramantry dissented in the cases involving Belgium, Canada, Portugal and the Netherlands. The ten Orders contain similar language on common points; for practical purposes, except where expressly indicated otherwise, the reference is to the first of the ten Orders rendered in the case between Yugoslavia and Belgium. Legality of the Use of Force (Yugo. v. Belg.) (Order of 2 June 1999), International Court of Justice (visited Oct. 1, 1999) <http://www.icj-cij.org/icjwww/idocket/iybe/iybeframe.htm> [hereinafter Order].
2 See Order, supra note 1, at para. 46.
3 This definition reads as follows:
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, edinical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily mental harm to members of die group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group. See Order, supra note 1, at para. 39.
4 See id. paras. 40–41.
5 See Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 ICJ Rep 15 (May 28).
6 For a discussion of the Yugoslav argument in the light of the concept of “continuing events” or a continuing breach of international law, see paragraphs 4–8 of the separate opinion of Judge Higgins appended to the Orders in the cases involving Belgium, Canada, the Netherlands, Portugal, Spain and the United Kingdom [hereinafter Sep. Op. Higgins].
7 See Order, supra note 1, at paras. 27–30. The respondents may invoke the reservation ratione temporis contained in the Yugoslavia declaration because, by virtue of the principle of reciprocity laid down in Article 36(2) of the Statute, the limitation contained in Yugoslavia’s declaration “holds good as between the Parties.” See Phosphates in Morocco (Italy v. Fr.), 1938 P.C.I.J. (ser. A/B) No. 74, at 10, 22 (Judgment of June 14). In 1957, the Court explained that “since two unilateral declarations are involved [reciprocal] jurisdiction is conferred upon the Court only to the extent to which the Declarations coincide in conferring it.” Certain Norwegian Loans (Fr. v. Nor.), 1957 ICJ Rep 9, 23 (July 6).
8 In its resolution 777, adopted on September 19, 1992, the Security Council considered that the Socialist Federal Republic of Yugoslavia had ceased to exist and recommended to the General Assembly that the latter decide that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the Assembly. The General Assembly, in resolution 47/1 adopted on September 22, 1992, followed the Council’s recommendation. However, Yugoslavia pointed to subsequent United Nations practice and to a letter that the UN Legal Counsel issued on September 29, 1992, stating that it was the UN Secretariat’s view that resolution 47/1 merely blocks Yugoslavia’s participation in the work of the Assembly and neither terminates nor suspends Yugoslavia’s membership in the United Nations. See UN Doc. A/47/485 (1992). On May 5, 1993, the General Assembly adopted resolution 47/229, deciding that the Federal Republic of Yugoslavia would not participate in the work of the Economic and Social Council. However, no other action was taken pursuant to these resolutions. In particular, no admission procedure was completed, resulting in legal uncertainty as to Yugoslavia’s current status within the United Nations.
9 See Order, supra note 1, at paras. 31–33.
10 Belgium and the Netherlands objected to the timing of the introduction by Yugoslavia of these supplemental bases of jurisdiction and pointed out that, in any event, Yugoslavia had not complied with the procedural requirements contained in the provisions invoked by it.
11 See Order, supra note 1, at paras. 42–44.
12 Id. para. 16. This statement can be interpreted as a reference to the edinic cleansing campaign carried out by the Serb military and police in Kosovo, a province of Serbia which, together with Montenegro, forms the Federal Republic of Yugoslavia.
13 Id. para. 17.
14 See id. paras. 19 and 48.
15 See id. (Belgium) paras. 37–38; (Netherlands) paras. 49–50.
16 The traditional purpose of provisional measures of protection (comparable to an injunction under domestic law) is to preserve the respective rights of either party pending the Court’s final decision.
17 For a precedent, see Military and Paramilitary Activities in and against Nicaragua (Nicar. v. US), Order (Prov. Measures), 1984 ICJ Rep 169, 180 (May 10).
18 For a discussion of the Court’s jurisprudence on the jurisdictional pre-requisites for the issuance of provisional measures, See Sep. Op. Higgins, supra, note 6, at paras. 10–17.
19 See id., at paras. 19 and 21–22.
20 See P.H.F. Bekker & Paul C. Szasz, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), 91 AJIL 121, 125–26 (1997). In its Order of April 8, 1993, the Court merely stated that the solution adopted by the General Assembly in resolution 47/1 was “not free from legal difficulties.” See 1993 ICJ Rep 3, 14 para. 18.