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World Court Digest

III. The International Court of Justice
1. FUNDAMENTAL PRINCIPLES
1.1. General Questions

¤ Legality of Use of Force
(Yugoslavia v. Belgium)
Request for the Indication of
Provisional Measures
Order of 2 June 1999

[p. ] 16. Whereas the Court is deeply concerned with the human tragedy, the loss of life, and the enormous suffering in Kosovo which form the background of the present dispute, and with the continuing loss of life and human suffering in all parts of Yugoslavia;

17. Whereas the Court is profoundly concerned with the use of force in Yugoslavia; whereas under the present circumstances such use raises very serious issues of international law;

18. Whereas the Court is 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 the Statute of the Court;

19. Whereas the Court deems it necessary to emphasize that all parties appearing before it must act in conformity with their obligations under the United Nations Charter and other rules of international law, including humanitarian law;1

[p. ] 47. Whereas 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;

48. Whereas, 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; whereas 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;

49. Whereas in this context the parties should take care not to aggravate or extend the dispute;

50. Whereas, 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;2

[p. D.O. Shi] Moreover, I am of the opinion that, confronted with that urgent situation, the Court ought to have contributed to the maintenance of international peace and security in so far as its judicial functions permit. The Court would have been fully justified in point of law if, immediately upon receipt of the request by the Applicant for the indication of provisional measures, and regardless of what might be its conclusion on prima facie jurisdiction pending its final decision, it had issued a general statement appealing to the Parties to act in compliance with their obligations under the Charter of the United Nations and all other rules of international law relevant to the situation, including international humanitarian law, and at least not to aggravate or

extend their dispute. In my view, nothing in the Statute or Rules of Court prohibits the Court from so acting. According to the Charter of the United Nations, the Court is after all the principal judicial organ of the United Nations, with its Statute as an integral part of the Charter; and by virtue of the purposes and principles of the Charter, including Chapter VI (Pacific Settlement of Disputes), the Court has been assigned a role within the general framework of the United Nations for the maintenance of international peace and security. There is no doubt that to issue such a general statement of appeal is within the implied powers of the Court in the exercise of its judicial functions. It is deplorable that the Court has failed to take an opportunity to make its due contribution to the maintenance of international peace and security when that is most needed.

[p. D.O. Vereshchetin] The extraordinary circumstances in which Yugoslavia made its request for interim measures of protection imposed a need to react immediately. The Court should have promptly expressed its profound concern over the unfolding human misery, loss of life and serious violations of international law which by the time of the request were already a matter of public knowledge. It is unbecoming for the principal judicial organ of the United Nations, whose very raison d'être is the peaceful resolution of international disputes, to maintain silence in such a situation. Even if ultimately the Court may come to the conclusion that, due to constraints in its Statute, it cannot indicate fully fledged provisional measures in accordance with Article 41 of the Statute in relation to one or another of the respondent States, the Court is inherently empowered, at the very least, immediately to call upon the Parties neither to aggravate nor to extend the conflict and to act in accordance with their obligations under the Charter of the United Nations. This power flows from its responsibility for the safeguarding of international law and from major considerations of public order. Such an authoritative appeal by the "World Court", which would also be consistent with Article 41 of its Statute and Article 74, paragraph 4, and Article 75, paragraph 1, of its Rules, could have a sobering effect on the Parties involved in the military conflict, unprecedented in European history since the end of the Second World War.

1Cf. Orders of 2 June 1999, Legality of Use of Force Yugoslavia v. Canada (§§ 15-18), Yugoslavia v. France (§§ 15-18), Yugoslavia v. Germany (§§ 15-18), Yugoslavia v. Italy (§§ 15-18), Yugoslavia v. Netherlands (§§ 16-19), Yugoslavia v. Portugal (§§ 15-18), Yugoslavia v. United Kingdom (§§ 15-18), Yugoslavia v. Spain (§§ 15-18), Yugoslavia v. United States of America (§§ 15-18).
2Cf. Orders of 2 June 1999, Legality of Use of Force Yugoslavia v. Canada (§§ 43-46), Yugoslavia v. France (§§ 35-38), Yugoslavia v. Germany (§§ 34-37), Yugoslavia v. Italy (§§ 35-38), Yugoslavia v. Netherlands (§§ 47-50), Yugoslavia v. Portugal (§§ 46-49), Yugoslavia v. United Kingdom (§§ 39-42), Yugoslavia v. Spain (§§ 36-39), Yugoslavia v. United States of America (§§ 30-33).