ICJ REJECTS YUGOSLAVIA'S REQUEST FOR ORDER TO HALT USE OF FORCE BY SPAIN, DISMISSES CASE

Press Release
ICJ/581

ICJ REJECTS YUGOSLAVIA'S REQUEST FOR ORDER TO HALT USE OF FORCE BY SPAIN, DISMISSES CASE

(Reissued as received.)

THE HAGUE, 2 June (ICJ) -- Today, the International Court of Justice (ICJ) rejected the request for the indication of provisional measures submitted by the Federal Republic of Yugoslavia (FRY) in the case concerning Legality of Use of Force (Yugoslavia v. Spain). The decision was taken by fourteen votes to two.

In its Order, the Court, having found that it manifestly lacked jurisdiction to entertain the case, decided to dismiss it. It ordered by thirteen votes to three that the case be removed from the List.

Since the Court included on the Bench no judge of the nationality of Yugoslavia or Spain, those States each appointed a judge ad hoc.

Background Information

On 29 April Yugoslavia filed an Application instituting proceedings against Spain "for violation of the obligation not to use force", accusing that State of bombing Yugoslav territory "together with other Member States of NATO" (see Press Release ICJ/569). On the same day, it submitted a request for the indication of provisional measures, asking the Court to order Spain to "cease immediately its acts of use of force" and to "refrain from any act of threat or use of force" against the FRY.

As a basis for the jurisdiction of the Court, Yugoslavia invoked the declarations by which both States had accepted the compulsory jurisdiction of the Court in relation to any other State accepting the same obligation (Article 36, paragraph 2, of the Statute of the Court), and Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly on 9 December 1948. Article IX of the Genocide Convention provides that disputes between the contracting parties relating to the interpretation, application or fulfilment of the Convention shall be submitted to the International Court of Justice.

Reasoning of Court

In its Order, the Court first emphasizes that it is "deeply concerned with the human tragedy, the loss of life, and the enormous suffering in Kosovo which form the background" of the dispute and "with the continuing loss of life and human suffering in all parts of Yugoslavia". It declares itself "profoundly concerned with the use of force in Yugoslavia", which "under the present circumstances ... raises very serious issues of international law". While being "mindful of the purposes and principles of the United Nations Charter and of its own responsibilities in the maintenance of peace and security under the Charter and [its] Statute", the Court "deems it necessary to emphasize that all parties before it must act in conformity with their obligations under the United Nations Charter and other rules of international law, including humanitarian law".

The Court then points out that it "does not automatically have jurisdiction over legal disputes between States" and that "one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction". It cannot indicate provisional measures without its jurisdiction in the case being established prima facie (at first sight).

Concerning the first basis of jurisdiction invoked, the Court observes that Spain contended that its declaration contains a reservation which is relevant to the case. Under the terms of that reservation, Spain does not recognize the jurisdiction of the Court in respect of "disputes to which the other party or parties have accepted the compulsory jurisdiction of the Court less than 12 months prior to the filing of the application bringing the dispute before the Court". The Court notes that Yugoslavia deposited its declaration of acceptance of the compulsory jurisdiction of the Court with the United Nations Secretary-General on 26 April and that it brought the dispute to the Court on 29 April. It states that there can be no doubt that the conditions for the exclusion of the Court's jurisdiction provided for in Spain's declaration are satisfied. The Court concludes that the declarations made by the Parties manifestly cannot constitute a basis of jurisdiction in the case, even prima facie.

As for Spain's argument that Yugoslavia is not a member State of the United Nations in view of United Nations Security Council resolution 777 (1992) and United Nations General Assembly resolution 47/1 (1992), nor a party to the Statute of the Court, and that it cannot appear before the Court, the Court maintains that it need not consider this question, taking into account its finding that the declarations do not constitute a basis of jurisdiction.

Concerning Article IX of the Genocide Convention, the Court states that it is not disputed that both Yugoslavia and Spain are parties to that Convention, but that Spain's instrument of accession, deposited with the United Nations Secretary-General on 13 September 1968, contains a reservation "in respect of the whole of Article IX". Since the Genocide Convention does not prohibit reservations and since Yugoslavia did not object to the Spanish reservation, the Court considers that Article IX manifestly does not constitute a basis of jurisdiction in the case, even prima facie.

The Court concludes that it "manifestly lacks jurisdiction to entertain Yugoslavia's Application" and that "it cannot therefore indicate any provisional measure whatsoever". It adds that "within a system of consensual jurisdiction, to maintain on the General List a case upon which it appears certain that the Court will not be able to adjudicate on the merits would most assuredly not contribute to the sound administration of justice".

The Court finally observes that "there is a fundamental distinction between the question of the acceptance by a State of the Court's jurisdiction and the compatibility of particular acts with international law". "The former requires consent; the latter question can only be reached when the Court deals with the merits after having established its jurisdiction and having heard full legal arguments by both parties." It emphasizes that "whether or not States accept the jurisdiction of the Court, they remain in any event responsible for acts attributable to them that violate international law, including humanitarian law" and that "any disputes relating to the legality of such acts are required to be resolved by peaceful means, the choice of which, pursuant to Article 33 of the Charter, is left to the parties". In this context, "the parties should take care not to aggravate or extend the dispute". The Court reaffirms that "when such a dispute gives rise to a threat to the peace, breach of the peace or act of aggression, the Security Council has special responsibilities under Chapter VII of the Charter".

Composition of Court

The Court was composed as follows in the case: Vice-President Weeramantry, Acting President; President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judges ad hoc Torres Bernárdez, Kreca; Registrar Valencia-Ospina.

Judges Shi, Koroma and Vereshchetin have appended declarations to the Court's Order. Judges Oda, Higgins, Parra-Aranguren and Kooijmans, and Judge ad hoc Kreca have appended separate opinions.

The text of the declarations and a brief summary of the opinions will be published later as an addendum to the present press release. The full text of the Order, declarations and opinions appears on the Court's website (http://www.icj-cij.org).

The nine other cases concerning Legality of Use of Force submitted by Yugoslavia to the Court form the subject of separate press releases.

Information Office: Mr. Arthur Witteveen, Secretary of the Court (tel: + 31 70 302 23 36); Mrs. Laurence Blairon, Information Officer (tel: + 31 70 302 23 37); e-mail address: information@icj-cij.org.

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