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II. Legality Of Use Of Force (Serbia And Montenegro v Belgium) (Serbia And Montenegro v Canada) (Serbia And Montenegro v France) (Serbia And Montenegro v Germany) (Serbia And Montenegro v Italy) (Serbia And Montenegro v Netherlands) (Serbia And Montenegro v Portugal) (Serbia And Montenegro v United Kingdom): Preliminary Objections. Judgment Of 15 December 20041

Published online by Cambridge University Press:  17 January 2008

Christine Gray
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Abstract

This is a surprising-and disquieting-judgment which raises serious questions about the role of the Court. The Legality of Use of Force cases began in 1999 when the Federal Republic ofYugoslavia (FRY)2 first brought an action against ten NATOStates for their use of force in Kosovo.3 In December 2004 the Court decided unanimously that it had no jurisdiction to decide the cases. However, this unanimity masked a fundamental disagreement between the judges: it is apparent from the Joint Declaration of Judges Ranjeva, Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal and Elaraby that the judges were strongly divided, by eight to seven, on the reasoning which led them to agree that there was no jurisdiction.

Type
Current Developments
Information
International & Comparative Law Quarterly , Volume 54 , Issue 3 , July 2005 , pp. 787 - 794
Copyright
Copyright © British Institute of International and Comparative Law 2005

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References

1 ICJ Reports 2004. For convenience references in this note will be made to the judgment in Serbia and Montenegro v Belgium; the eight judgments are in almost all particulars identical. This is reflected in the Court's rejection of the requests for ad hoc judges by those respondent States without judges of their nationality on the Bench, even though Serbia and Montenegro no longer maintained its opposition to their appointment. The Court's decision to reject the nomination of ad hoc judges was based on Article 31(5) of the Statute which provides: ‘Should there be several parties in the same interest, they shall, for the purpose of the preceding provisions, be reckoned as one party only.’ The Court said that it had taken into account the presence upon the Bench ofjudges of British, Dutch and French nationality (judgment paras 17–18).Google Scholar

2 As the Court explained (at para 25), ‘The official title of the Applicant in these proceedings has changed during the period of time relevant to the present proceedings.’ On 27 Apr 1992 the Federal Republic of Yugoslavia (FRY) was established; it claimed to be the continuation of the Socialist Federal Republic of Yugoslavia (SFRY). On 1 Nov 2000 the applicant was admitted to membership of the UN under the name of the FRY. On 4 Feb 2003 it officially changed its name to Serbia and Montenegro.Google Scholar

3 Two of these ten cases, those against Spain and the USA, were struck off the Court's List at the provisional measures stage because of manifest lack of jurisdiction: Legality of the Use of Force (Provisional Measures) ICJ Reports 1993, 761, 916.Google Scholar

4 ICJ Reports 1999, 124; noted by Gray, C at (2000) 49 ICLQ 730.CrossRefGoogle Scholar

5 Orders of 8 Apr and 13 Sept, ICJ Reports 1993, 3, 325; noted by Gray, C at (1994) 43 ICLQ 704.CrossRefGoogle Scholar

6 ICJ Reports 1996, 596; noted by Gray, C at (1997) 46 ICLQ 688.CrossRefGoogle Scholar

7 ICJ Reports 2003.Google Scholar

8 Craven, M ‘The European Community Arbitration Commission of Yugoslavia’ (1995) 66 BYIL 333Google Scholar; Weller, M ‘The International Response to the Dissolution of Yugoslavia’ (1992) 86 AJIL 569.CrossRefGoogle Scholar

9 Order of 8 Apr 1993, ICJ Reports 1993, 3 at para 15.Google Scholar

10 ibid para 18.

11 See below at (F).Google Scholar

12 Case note by Gray, c at (2000) 49 ICLQ 730.CrossRefGoogle Scholar

13 Case Concerning Legality of Use of Force (Provisional Measures) 1999 ICJ Reports 124 at para 30–3.Google Scholar

14 Judges Oda and Kooijmans argued that Serbia and Montenegro was not a member of the UN and therefore not able to accept the Optional Clause; in contrast Judge Kreca accepted Yugoslavia's view that it was a member of the UN and a party to the Statute. It is interesting that Judge Higgins in her Separate Opinion (at para 22) said that it was not necessary to decide complex issues at that stage. Such questions should be decided at the Jurisdictional Stage: ‘Of course … it might be thought that the status of the FRY was a necessary “préalable” to everything else. But when dealing with provisional measures the Court is faced with unavoidabletensions between the demands of logic and the inability to determine with finality when operating under urgency in response to a request for provisional measures.’ When the Court did decide to focus on the issue of jurisdiction ratione personae in the current case Judge Higgins held that it should have followed the same approach as it had at the Provisional Measures stage (Separate Opinion at para 19).Google Scholar

15 Application for Revision of the Judgment of 11 July 1996 case, ICJ Reports 2003 at para 52.Google Scholar

16 ibid at para 71.

17 See n 2 above.Google Scholar

18 Legality of Use of Force {Serbia and Montenegro v Belgium) Preliminary Objections, ICJ Reports 2004 at para 29.Google Scholar

19 ibid at paras 31–2.

20 ibid at para 36.

21 Judge Higgins, Separate Opinion at para 16.Google Scholar

22 Judge Kooijmans, Separate Opinion at para 24.Google Scholar

23 Legality of Use of Force (Serbia and Montenegro v Belgium) Preliminary Objections, at para 46.Google Scholar

24 Judge Kooijmans had argued at the Provisional Measures stage that the Court should have examined this issue as a matter of logical priority (Separate Opinion, at paras 2, 19–22). He now took the position that the Court was wrong to have gone into this question at the Preliminary Objections stage (Separate Opinion, at paras 2–11).Google Scholar

25 Legality of Use of Force (Serbia and Montenegro v Belgium) Preliminary Objections, at para 46.Google Scholar

26 Joint Declaration, at para 8.Google Scholar

27 Legality of Use of Force (Serbia and Montenegro v Belgium) Preliminary Objections, at paras 52-64; see also examination of this question in Application for Revision ICJ Reports 2003 at paras 24–53.Google Scholar

28 Legality of Use of Force (Serbia and Montenegro v Belgium) Preliminary Objections, at para 64.Google Scholar

29 ibid para 75.

30 Joint Declaration at para 12. Judge Higgins (Separate Opinion, para 19) and Judge Kooijmans (Separate Opinion, paras 4–5) also expressed doubts about the Court's reasoning on this crucial point. Judge Elaraby in his Separate Opinion argued that the FRY had in fact been a member of the UN in 1999.Google Scholar

31 Application for Revision case, at para 71.Google Scholar

32 Legality of Use of Force (Serbia and Montenegro v Belgium) Preliminary Objections, at para 80.Google Scholar

33 ibid para 90.

34 ibid para 92.

35 Joint Declaration at para 11.Google Scholar

36 Judge Higgins, Separate Opinion at para 18.Google Scholar

37 Bosnia Genocide case (Provisional Measures) ICJ Reports 1993, 3 at para 26. At the subsequent Preliminary Objections stage the Court said it had not been contested that Yugoslavia was party to the Convention and thus bound by its provisions at the date of the filing of the application in 1993 {Bosnia Genocide case Preliminary Objections ICJ Reports 1996, 595 at para 17).Google Scholar

38 Legality of Use of Force {Serbia and Montenegro v Belgium) Preliminary Objections, at para 98–9.Google Scholar

39 The question has been raised whether, if a wide interpretation was adopted, an entity such as Taiwan, although not a member of the UN or a party to the Statute, might be able to become a party before the Court through the simple means of concluding a treaty with a compromissory clause such as that in the Genocide Convention.Google Scholar

40 Judge Elaraby in his Separate Opinion (Section HI) differed on this interpretation of Art 35(2).Google Scholar