III. | The International Court of Justice |
2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
2.6. | Agreement in Regard to Jurisdiction in the Course of the
Proceedings |
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Application of the Convention
on the Prevention and Punishment
of the Crime of Genocide,
Provisional Measures,
Order of 13 September 1993,
I.C.J. Reports 1993, p. 325
[pp. 341-342] 34. Whereas, in the context of the first request made
by the Applicant for the indication of provisional measures, the Respondent
also, by a communication of 1 April 1993, recommended that such measures, listed
in paragraph 9 of the Court's Order of 8 April 1993, be indicated; whereas some
of the measures so requested might be directed to the protection of rights going
beyond those covered by the Genocide Convention; and whereas the questions thus
arises whether, by requesting such measures, the Respondent might have agreed
that the Court should have a wider jurisdiction, in accordance with the doctrine
known as that of forum prorogatum; whereas however the provisional
measure requested by Yugoslavia in a subsequent request, dated 9 August 1993
(paragraph 12 above), was directed solely to protection of asserted rights under
the Genocide Convention; whereas moreover the Respondent has constantly denied
that the Court has jurisdiction to entertain the dispute, on the basis of that
Convention or on any other basis; whereas in the circumstances the communication
from Yugoslavia cannot, even prima facie, be interpreted as "an unequivocal
indication" of a "voluntary and indisputable" acceptance of the
Court's jurisdiction (cf. Rights of Minorities in Upper Silesia (Minority
Schools), P.C.I.J., Series A, No. 15, p. 24; Corfu Channel, Preliminary
Objection, Judgment, I.C.J. Reports 1947-1948, p. 27);
[pp. 420-421 S.O. Lauterpacht] 34. The question is, therefore,
whether the denial by the Respondent of the jurisdiction of the Court on any
basis other than Article IX of the Genocide Convention is sufficient to override
conduct of the Respondent which appears to be consistent only with the existence
of some jurisdiction of the Court on a basis other than that of the Genocide
Convention. In particular, does the above-quoted sentence amount to a sufficient
denial of the jurisdiction of the Court to negative the effect of the
Respondent's requests in its letter of l April 1993 which appear, in the words
of the Court's Order of 22 July 1952, to involve "an element of consent
regarding the jurisdiction of the Court"? In my view, the insistence by the
Respondent that Article IX of the Genocide Convention is the sole source of the
Court's jurisdiction is not persuasive. Were this insistence valid, it would be
impossible for the Respondent to justify its clear requests for measures which
fall outside the coverage of the Convention. Yet, these requests were neither
brief nor accidental. They were deliberately presented to the Court as requests
to which the Respondent wished the Court to accede. The Respondent cannot blow
hot and cold. It cannot ask the Court to go beyond the limits of the Genocide
Convention and simultaneously request the Court to limit its jurisdiction to
that Convention.
35. It thus becomes necessary for the Court either to attempt a
reconciliation of the two contradictory approaches or to choose between them. In
my opinion, in deciding upon the relationship between the particular and the
general, the general cannot be permitted entirely (if at all) to override the
particular. The solution lies, therefore, in qualifying the insistence of the
Respondent that the Court's jurisdiction is dependent solely upon Article IX of
the Genocide Convention by acknowledging that the Respondent has expanded the
jurisdiction of the Court to the extent that its specific requests overlap in
kind with those of the Applicant. In effect, the Applicant, in requesting
measures that pass beyond the limits of the Genocide Convention, has made an
offer to the Respondent to extend the jurisdiction of the Court to the category
of subject-matter covered by that extension. The Respondent, by proposing
counter-measures which in some respects resemble the proposals of the Applicant,
has within those limits accepted the offer of the Applicant so to extend the
jurisdiction of the Court.
36. The Court's conclusion in paragraph 34 of today's Order that the
Yugoslav communication of 1 April 1993 "cannot, even prima facie, be
interpreted as 'an unequivocal indication' of a 'voluntary and indisputable'
acceptance of the Court's jurisdiction" is evidently influenced by the
consideration there mentioned that "the provisional measure requested by
Yugoslavia in a subsequent request, dated 9 August 1993 ..., was directed solely
to protection of asserted rights under the Genocide Convention". The
reference thus made to what may be seen as a withdrawal by the Respondent of its
request for measures going beyond the scope of the Genocide Convention suggests
that the difference between the Court and the opinion here expressed may lie
principally in the effect to be attributed to the request of 9 August 1993. I
regard that communication as insufficient to negative the effect of the
Respondent's communication of 1 April 1993. To this limited extent, therefore,
and to my regret, I find myself unable to agree with the Court.