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| III. | The International Court of Justice |
| 2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
| 2.3. | The Optional Clause |
| 2.3.3. | Reservations |
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Legality of Use of Force
(Yugoslavia v. Belgium)
Request for the Indication of
Provisional Measures
Order of 2 June 1999
[pp. ] 26. Whereas Yugoslavia has accepted the Court's jurisdiction ratione temporis in respect only, on the one hand, of disputes arising or which may arise after the signature of its declaration and, on the other hand, of those concerning situations or facts subsequent to that signature (cf. Right of Passage over Indian Territory, Merits, Judgment, I.C.J. Reports 1960, p. 34); whereas, in order to assess whether the Court has jurisdiction in the case, it is sufficient to decide whether, in terms of the text of the declaration, the dispute brought before the Court "arose" before or after 25 April 1999, the date on which the declaration was signed;
27. Whereas Yugoslavia's Application is entitled "Application of the Federal Republic of Yugoslavia against the Kingdom of Belgium for Violation of the Obligation Not to Use Force"; whereas in the Application the "subject of the dispute" (emphasis added) is described in general terms (see paragraph 1 above); but whereas it can be seen both from the statement of "facts upon which the claim is based" and from the manner in which the "claims" themselves are formulated (see paragraphs 3 and 4 above) that the Application is directed, in essence, against the "bombing of the territory of the Federal Republic of Yugoslavia", to which the Court is asked to put an end;
28. Whereas it is an established fact that the bombings in question began on 24 March 1999 and have been conducted continuously over a period extending beyond 25 April 1999; and whereas the Court has no doubt, in the light, inter alia, of the discussions at the Security Council meetings of 24 and 26 March 1999 (S/PV. 3988 and 3989), that a "legal dispute" (East Timor (Portugal v. Australia), I.C.J. Reports 1995, p. 100, para. 22) "arose" between Yugoslavia and the Respondent, as it did also with the other NATO member States, well before 25 April 1999 concerning the legality of those bombings as such, taken as a whole;
29. Whereas the fact that the bombings have continued after 25 April 1999 and that the dispute concerning them has persisted since that date is not such as to alter the date on which the dispute arose; whereas each individual air attack could not have given rise to a separate subsequent dispute; and whereas, at this stage of the proceedings, Yugoslavia has not established that new disputes, distinct from the initial one, have arisen between the Parties since 25 April 1999 in respect of subsequent situations or facts attributable to Belgium;
30. Whereas, as the Court recalled in its Judgment of 4 December 1998 in the case concerning Fisheries Jurisdiction (Spain v. Canada),
"It is for each State, in formulating its declaration, to decide upon the limits it places upon its acceptance of the jurisdiction of the Court: '[t]his jurisdiction only exists within the limits within which it has been accepted' (Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B No. 74, p. 23); (I.C.J. Reports 1998, para. 44);
and whereas, as the Permanent Court held in its Judgment of 14 June 1938 in the Phosphates in Morocco case (Preliminary Objections), "it is recognized that, as a consequence of the condition of reciprocity stipulated in paragraph 2 of Article 36 of the Statute of the Court", any limitation ratione temporis attached by one of the Parties to its declaration of acceptance of the Court's jurisdiction "holds good as between the Parties" (Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 10); whereas, moreover, as the present Court noted in its Judgment of 11 June 1988 in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), "[a]s early as 1952, it held in the case concerning Anglo-Iranian Oil Co. that, when declarations are made on condition of reciprocity, 'jurisdiction is conferred on the Court only to the extent to which the two Declarations coincide in conferring it' (I.C.J Reports 1952, p. 103)" (I.C.J. Reports 1998, p. 298, para. 43); and whereas it follows from the foregoing that the declarations made by the Parties under Article 36, paragraph 2, of the Statute do not constitute a basis on which the jurisdiction of the Court could prima facie be founded in this case;1
[p. Decl. Koroma] On the other hand, the conclusion reached by the Court that the dispute between Yugoslavia and some of the respondent States arose before 25 April 1999 and accordingly does not come within the scope of the compulsory jurisdiction of the Court as accepted by Yugoslavia under the terms of its declaration, does not appear to me to be correct, let alone legally tenable. The correct legal position, in my view, is as reflected in Draft Article 25 on State Responsibility of the Report of the International Law Commission. The Article states as follows:
"The breach of an international obligation, by an act of the State composed of a series of actions or omissions in respect of separate cases, occurs at the moment when that action or omission of the series is accomplished which establishes the existence of the composite act. Nevertheless, the time of commission of the breach extends over the entire period from the first of the actions or omissions constituting the composite act not in conformity with the international obligation and so long as such actions or omissions are repeated." (YILC 1978, Vol. 11, Part Two, Art. 25, p. 89.)
In other words, and as stated in the commentary on the Article, the time of the commission of this breach is not limited to the moment at which the act begins, but extends over the whole period during which the act takes place and continues contrary to the requirements of the international obligation. Therefore, the Court's finding that Yugoslavia had not established the existence of a specific dispute, distinct from the preceding one, which arose after 25 April 1999 does not appear to me tenable in law.
[pp. S.O. Higgins] 4. It may, of course, be the case that, while the dispute has clearly arisen subsequent to the critical date for jurisdiction, the situations or facts giving rise to the dispute appear to have occurred before that date. That was exactly the situation in the Phosphates in Morocco case, where the Permanent Court addressed the possibility that acts "accomplished after the crucial date", when "taken in conjunction with earlier acts to which they are closely linked, constitute as a whole a single, continuing and progressive illegal act which was not fully accomplished until after the crucial date" (Phosphates in Morocco, P.C.I.J., Series A/B, No. 74 , p. 23). Equally, there exists the possibility that acts carried out prior to the crucial date "nevertheless gave rise to a permanent situation inconsistent with international law which has continued to exist after the said date" (ibid.). This latter eventuality is indeed reflected in the International Law Commission's Draft Article 25 on State Responsibility, Volume II, part II, page 80.
5. It is not the Court alone which has had to formulate jurisprudence on the concept of "continuing events": so has the European Court of Human Rights (see Yagci and Sargin v. Turkey, European Human Rights Reports, 1995, p. 505); and so also has the Human Rights Committee (see Gueje et al v. France, No. 196/1985, 3 April 1989, 35th Session); and Siminek v. The Czech Republic (No. 516/1992, 31 July 1995, 54th Session).
6. The Court gave its own answers to this issue in Phosphates in Morocco. It explained that the problem of whether there were "continuing events" that gave rise to a cause of action after the crucial date must be examined in the particular context of each case. But two factors always have to be borne in mind: the first is that "it is necessary always to bear in mind the will of the State which only accepted the compulsory jurisdiction within specified limits, and consequently only intended to submit to that jurisdiction disputes having actually arisen from situations or facts subsequent to its acceptance" (Phosphates in Morocco, P.C.I.J., Series AB, No. 74 , p. 24). And second, it was necessary to see if the facts were merely a necessary and logical consequence of earlier ones which were barred from scrutiny by the temporal reservation. On the particular facts of the Phosphates case, the Court found that the cited facts and situations could not be viewed as "a final step and crowning point" of the earlier events (ibid., p. 26) nor did they "alter the situation which had already been established" (ibid., p. 27). Nor could they be separated from those that had arisen before the crucial date.
7. That this particular jurisdictional problem, as any other, requires close attention to be given to the intention of the State issuing its declaration with limitations or reservations was stated by the Permanent Court in the Phosphates in Morocco case and recently affirmed by this Court in case of Fisheries Jurisdiction (Spain v. Canada, I.C.J. Reports 1998, para. 49). It is striking that the Federal Republic of Yugoslavia did not advance arguments before the Court suggesting either continuing events or a continuing dispute (the latter not having been an issue in Phosphates in Morocco). It squarely based itself on a dispute it perceived as arising, and situations and facts that it perceived as occurring, after the crucial date of April 25. It did not wish any dispute there may have been between itself and Belgium prior to April 25 to be subject to the Courts jurisdiction, nor any situations and facts relating to such dispute. That was the intention of the Federal Republic of Yugoslavia and it was clear. But within that intent there was also a hope - the hope that there could be identified a dispute that arose only after April 25th. Certainly there were events, occurring after April 25, that were the subject of the Federal Republic of Yugoslavia's complaint (though these were not specified by date or in any detail). But the Court has not been able to see a dispute arising only after April 25th. The claim that aerial bombing by NATO, and NATO States, was illegal, was made in the Security Council on March 24 and March 26, and rebutted there. The conditions specified in the Mavrommatis case (Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2) for the existence of a dispute were thus met at that time.
8. No doubt the continuation of the bombing and the targets hit after April 25 has aggravated and intensified the dispute. But every aerial bombardment subsequent to April 25 does not constitute a new dispute. In short, there are situations and facts occurring subsequent to the crucial date, but there is not at the present time a dispute arising subsequent to that date. In effectively realizing the intention (which the Court must respect) of its declaration, the Federal Republic of Yugoslavia was not able also to realize its hope. Its declaration accordingly fails to invest the Court with jurisdiction.
[pp. D.O. Shi] As in the Right of Passage case, the legal dispute before the Court, as shown above, consists of a number of constituent elements. Prior to the coming into existence of all the constituent elements, the dispute cannot be said to arise. None of the above elements existed before the critical date of 25 April 1999. It is true that the aerial bombing of the territory of Yugoslavia began some weeks before this critical date of signature of the declaration. But aerial bombing and its effects are merely facts or situations and as such do not constitute a legal dispute. The constituent elements of the present dispute are not present before the critical date and only exist at and from the date of Yugoslavia's Application on 29 April 1999. It is true that, prior to the critical date, Yugoslavia had accused NATO (Security Council Meetings of 24 and 26 March 1999, S/PV. 3988 and 3989) of illegal use of force against it. However, this complaint constitutes at the most one of the many constituent elements of the dispute. Besides, in no way could NATO be identified with the Respondent, and NATO cannot be the Respondent in the present case ratione personae. The legal dispute only arose at the date of the Application, which is subsequent to the signature of the declaration of acceptance. Therefore, the time condition in order for the present dispute to be within the scope of acceptance of compulsory jurisdiction ratione temporis, as contained in Yugoslavia's declaration, has been satisfied.
With respect to the second aspect of Yugoslavia's double exclusion formula, the situations or facts which the Court has to consider are those with regard to which the dispute has arisen, i.e., those situations or facts which are the source of the present legal dispute.
Article 25, paragraph 1, of the Draft Articles on State Responsibility, adopted at first reading by the International Law Commission, provides:
"1. The breach of an international obligation by an act of the State having a continuing character occurs at the moment when that act begins. Nevertheless, the time of commission of the breach extends over the entire period during which the act continues and remains not in conformity with the international obligation." (ILC Yearbook 1978, Vol. II, Part Two, p. 89.)
This concept of the duration of a "continuing" wrongful act is commonly accepted by international tribunals and legal scholars.
In the present case, the dispute relates to the alleged breach of various international obligations by acts of force, in the form of aerial bombing of the territories of Yugoslavia, which are attributed by the Applicant to the respondent State. It is obvious that the alleged breach of obligations by such a "continuing" act first occurred at the moment when the act began, weeks before the critical date of 25 April 1999. Given that the acts of aerial bombing continued well beyond the critical date and still continue, the time of commission of the breach extends over the whole period during which the acts continue and ends only when the acts of the respondent State cease or when the international obligations alleged to be breached by the acts of that State cease to exist or are no longer in force for it.
The conclusion may be drawn from the above analysis that the limitation ratione temporis in the double exclusion formula contained in Yugoslavia's declaration of acceptance of the compulsory jurisdiction in no way constitutes a bar to founding prima facie jurisdiction upon Article 36, paragraph 2, of the Statute for the purpose of indication of provisional measures in the present case.
It is regrettable that, as a result of its mistaken findings on this point, the Court was not in a position to indicate provisional measures to the Parties in the urgent situation of human tragedy with loss of life and human suffering in the territories of Yugoslavia arising from the use of force in and against that country.
[pp. D.O. Weeramantry] I do not share the view of the majority of the Court in regard to the lack of jurisdiction under Article 36, paragraph 2, and note that the main reason why the majority have concluded that prima facie jurisdiction is not available is that the Yugoslav declaration under Article 36, paragraph 2, is limited to disputes arising or which may arise after 25 April 1999.
(a) Inappropriateness of reference back to time of planning
The question for decision is whether the temporal restriction defeats the entire declaration, so far as concerns the subject-matter of the present Application, in view of the fact that the NATO air operations, the subject-matter of the Applicant's complaint, began an 24 March 1999, thus pre-dating 25 April, the date specified in Yugoslavia's declaration. Is the declaration thus inoperative in terms of the very restriction that Yugoslavia itself laid down?
I think not. A vast enterprise may be planned and conceived at a particular time and date but it does not follow that every major operation conducted within that enterprise over the ensuing months, if it gives rise to a claim at law, dates back to the conception of the entire enterprise. The campaign may involve several breaches of vastly different State obligations such as environmental obligations, human rights obligations, obligations under the Convention Against Torture, obligations under Conventions relating to civil aviation, the law of the sea or conduct in war. All of these operations may have been separately and individually planned on different dates. It seems to be difficult to maintain that all such breaches of obligation occurred when the initial plan was conceived.
(b) Meaning of "dispute"
I wish to say a word here about the meaning of the term "dispute".
A dispute may remain at an abstract level, as where one party alleges that it has a particular right and the other party disputes it. A dispute may on the other hand, as in most instances, assume a practical form, as where one party causes damage to another by some wrongful act and that other party asserts a violation of its rights and makes a claim for compensation. There is then a dispute as to whether a wrongful act has been done and a claim to damages exists. Both types of dispute fall within the accepted definition in the Court's jurisprudence namely, "a disagreement on a point of law or fact, a conflict of legal views or interests between the parties" (East Timor (Portugal v. Australia) I.C.J Reports 1995, p. 99, para. 22).
Clearly the allegations of wrongful acts of the varied descriptions set out in the Application and the resulting claims based upon them are all "disputes" within the meaning of that term in the Courts jurisprudence.
(c) Differences in obligations breached
When in a bombing campaign a bridge over an international river is blown up, a chemicals factory destroyed, a prohibited weapon used or a hospital demolished, each of these acts, if wrongful, would be the subject of a different dispute and a distinct claim. These claims may involve the violation of different types of rights and different rules of law - navigation rights, environmental rights, human rights, humanitarian rules and rules under the Geneva Conventions.
In this case, as I understand it, the Court is faced with a number of such acts, separately executed and separated in time. In my view it strains the rules of legal interpretation to conclude that all of these constitute one dispute which was complete when the bombing campaign was decided upon. Disputes at law are not confined to disputes at such an abstract and theoretical level. It is of the nature of judicial proceedings and litigation at every level that disputes both abstract and practical, are brought before courts for determination.
It is relevant to note in this connection that the claim as stated in the Application asserts the violation of different legal obligations in respect of the different categories of damage. Among these are violations of obligations not to use prohibited weapons, obligations not to cause far-reaching health and environmental damage, obligations respecting the right to information, obligations to respect freedom of navigation on international rivers and obligations not to commit any act of hostility towards historical monuments, works of art or places of worship.
To take some specific examples the disputes arising from the bombing of an embassy, from the bombing of a TV station, from the bombing of a passenger train, a school or a power station all arise when those acts in fact take place and not before the acts were done. To hold otherwise would be unrealistic and contrary to legal principle.
A major campaign may even take years and this does not mean that every act of wrongdoing that may be committed in the course of that campaign - even though those acts are years apart - dates back in law to the time when it was decided to commence hostilities.
(d) Maturation of a legal claim
A legal principle well recognized in all legal systems is that an act of wrongdoing is completed when the wrong is done, not when it was planned. To take an analogy from domestic law, such an act of wrongdoing would be dated, for purposes of statutes of limitation or otherwise, as from the date when the wrongful act is committed. Until such commission the cause of action would not be complete. A plan or an intention to cause damage does not ripen into a justiciable claim until the physical act is done which causes the damage. In the well-known learning of the Roman law relating to damnum injuria datum, damnum needs to be datum before it grounds a claim at law.
In this view of the matter the fact that the bombing campaign as a whole was conceived before the material date, namely 25 April 1999, cannot carry the implication that acts of wrongdoing committed and perhaps even individually planned subsequent to that date must be taken as relating back in law to the date of conception of the entire scheme. They are committed in law when they are committed in fact and not when they are planned, just as any act in law attracts liability not as from the date when it is conceived but when it is executed.
(e) International Law Commission's Draft Articles on State Responsibility
The limitation ratione temporis thus does not seem to me to be a satisfactory basis on which to hold that the Court lacks even prima facie jurisdiction. The fact that the matter cannot be so simply dealt with as the Court has chosen to do is borne out also by the International Law Commission's Draft Articles on State Responsibility dealing with breaches of State responsibility which are part of a series. Article 25 which deals with the matter points out that the time of commission of a breach extends over the entire period during which the act continues and that in the case of a series of acts or omissions the breach of international obligation occurs at the moment when the particular act or omission is accomplished.
(f) Intention of author of reservation
Moreover, the construction adopted does not adequately consider the intention of the author of the reservation, which is an important factor to be taken into account in construing the overall meaning of a declaration (see Fisheries Jurisdiction (Spain v. Canada), Judgment of 4 December 1998 para. 49). Yugoslavia, in drafting its declaration, could not have intended to exclude from the Court's jurisdiction the very incidents of which it was complaining and which it had made the subject-matter of its Application. Such a self-defeating intention can scarcely be imputed to the author of such an important document.
(g) The question of divisibility
On the question of divisibility, I agree with the contention that a dispute is not infinitely divisible into a multitude of separate fragmentary events such as the firing of every individual bullet. Such analogies are however totally distinguishable. Fragmentary acts of this nature cannot be equated to events which are major incidents in themselves such as the accidental bombing of a train or a hospital or an embassy.
(h) Inadequacy of temporal limitation to defeat prima facie jurisdiction
In short, whichever way one looks at it, there is certainly a prima facie case that there is jurisdiction ratione temporis. At the very least the matter is debatable, and hence there is no adequate reason for refusing to consider this matter on the basis of a lack of prima facie jurisdiction.
In reaching this conclusion I apply the tests which are well recognized in the jurisprudence of the Court. The Court should be able to hold "should it be only provisionally, that it was competent to hear the case on the merits" (Rosenne, op. cit., p. 1444).
Enough has been said to indicate that the prima facie jurisdiction which is sufficient to support an order for provisional measures does exist in this case. It is clearly not a case where it could be assumed a priori that the claims of Yugoslavia "fall completely outside the purview of the Court's jurisdiction" (Nuclear Tests (Australia v. France), Interim Protection, I.C.J Reports 1973, p. 103, para. 23; Nuclear Tests (New Zealand v. France), Interim Protection, I.C.J. Reports 1973, p. 140, para. 24; Rosenne, op. cit., p. 1448).
[p. D.O. Vereshchetin] From a different perspective, even after "the critical date" Yugoslavia has, with good reason, complained of a number of new major breaches of international law by the NATO States. Each of these alleged new major breaches, whose existence was denied by the NATO States, may be seen as constituting specific disputes between the Parties concerned, disputes which clearly occurred after 25 April 1999.
The possibility of distinguishing between a "dispute of a general nature" on the one hand, and "specific disputes" on the other was admitted by the Court in one of its recent cases (Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), I.C.J Reports 1998, para. 29). Nothing in the jurisprudence of the Court justifies the suggestion that a specific legal dispute between the Parties may not be considered by the Court solely on the ground that it is linked with, or part of, a dispute excluded from the Court's jurisdiction.
Another ground on which I disagree with the majority is their complete disregard of the clear intention of Yugoslavia. Quite recently the Court had occasion to reiterate its position on the necessity to take into account the intention of a State making a declaration. In the Fisheries Jurisdiction (Spain v. Canada) case the Court interpreted the relevant words of the declaration in question "having due regard to the intention of the State concerned at the time when it accepted the compulsory jurisdiction of the Court" (Judgment of 4 December 1998, para. 49; see also Temple of Preah Vihear, I.C.J Reports 1961, p. 31).
In its Orders in the present cases, the Court, by refusing to take into account the clear intention of Yugoslavia, has taken an approach to the Yugoslav declaration which could lead to the absurd conclusion that Yugoslavia intended by its declaration of acceptance of the Court's jurisdiction to exclude the jurisdiction of the Court over her Applications instituting proceedings against the Respondents.
| 1 | See, mutatis mutandis, Orders of 2 June 1999, Legality of Use of Force, Yugoslavia v. Canada (§§ 25-29), Yugoslavia v. Netherlands (§§ 26-30), Yugoslavia v. Portugal (§§ 25-29) |
