| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.10. | Provisional Measures |
| 3.10.3. | Provisional Measures and Jurisdiction |
¤
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
[p. 337-339] 24. Whereas on a request for provisional measures the
Court need not, before deciding whether or not to indicate them, finally satisfy
itself that it has jurisdiction on the merits of the case, yet it ought not to
indicate such measures unless the provisions invoked by the Applicant appear,
prima facie, to afford a basis on which the jurisdiction of the Court might be
established;
25. Whereas in its Order of 8 April 1993 the Court considered that Article
IX of the Genocide Convention, to which both the Applicant and the Respondent
are parties, appeared to the Court
"to afford a basis on which the jurisdiction of the Court might be
founded to the extent that the subject-matter of the dispute relates to 'the
interpretation, application or fulfilment' of the Convention, including disputes
'relating to the responsibility of a State for genocide or for any of the other
acts enumerated in article III' of the Convention" (I.C.J. Reports 1993,
p. 16, para. 26);
26. Whereas Bosnia-Herzegovina also submitted to the Court, in support of
its first request, as an additional basis of jurisdiction, a letter dated 8 June
1992 addressed to the President of the Arbitration Commission of the
International Conference for Peace in Yugoslavia; whereas the Court concluded
that it was "unable to regard" that letter "as constituting a
prima facie basis of jurisdiction in the present case", and considered that
it had to
"proceed therefore on the basis only that it has prima facie
jurisdiction, both ratione personae and ratione materiae, under
Article IX of the Genocide Convention" (ibid., p. 18, para. 32);
27. Whereas the Agent of the Applicant has, both in its Application
instituting proceedings and in its second request for the indication of
provisional measures, reserved "the right to revise, supplement or amend"
the Application and the request respectively; whereas in reliance on these
reservations, by letters dated 6 August, 10 August and 13 August 1993, he submitted that the Court´s
jurisdiction is grounded not only on the jurisdictional bases previously put
forward but also on certain additional texts, specified in the letters referred
to;
28. Whereas the Applicant cannot, simply by reserving "the right to
revise, supplement or amend" its Application or requests for provisional
measures , confer on itself a right to invoke additional grounds of
jurisdiction, not referred to in the Application instituting proceedings;
whereas it will be for the Court, at an appropriate stage of the proceedings, to
determine, if necessary, the validity of such claims; whereas however, as the
Court has recognized, "An additional ground of jurisdiction may ... be
brought to the Court's attention" after the filing of the Application,
"and the Court may take it into account provided the Applicant makes it
clear that it intends to proceed upon that basis ... and provided also that the
result is not to transform the dispute brought before the Court by the
application into another dispute which is different in character ..." (Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984,
p. 427, para. 80);
whereas the Court thus concludes that, for the purposes of a request for
indication of provisional measures, it should therefore not exclude a priori
such additional bases of jurisdiction from consideration, but that it should
consider whether the texts relied on may, in all the circumstances, including
the considerations stated in the decision quoted above, afford a basis on which
the jurisdiction of the Court to entertain the Application might prima facie be
established;
[pp. 339-340] 29. Whereas the first additional basis of jurisdiction
relied on by the Applicant is the Treaty between the Allied and Associated
Powers (the United States of America, the British Empire, France, Italy and
Japan) and the Kingdom of the Serbs, Croats and Slovenes, on the Protection of
Minorities, signed at Saint-Germain-en-Laye on 10 September 1919 (hereinafter
called the "1919 Treaty"), which came into force on 16 July 1920;
whereas Chapter I of the 1919 Treaty concerns protection of minorities, and
includes an Article 11 whereby that protection was placed under the guarantee of
the League of Nations; whereas that Article provides (inter alia):
"The Serb-Croat-Slovene State agrees that any Member of the Council of
the League of Nations shall have the right to bring to the attention of the
Council any infraction, or any danger of infraction, of any of these
obligations, and that the Council may thereupon take such action and give such
directions as it may deem proper and effective in the circumstances.
The Serb-Croat-Slovene State further agrees that any difference of opinion
as to questions of law or fact arising out of these Articles between the
Serb-Croat-Slovene State and any one of the Principal Allied and Associated
Powers or any other Power, a member of the Council of the League of Nations,
shall be held to be a dispute of an international character under Article 14 of
the Covenant of the League of Nations. The Serb-Croate-Slovene State hereby
consents that any such dispute shall, if the other party thereto demands, be
reffered to the Permanent Court of International Justice. The decision of the
Permanent Court shall be final and shall have the same force and effect as an
award under Article 13 of the Covenant";
whereas Chapter II of the 1919 Treaty, concerning succession to treaties,
commerce, treatment of foreign vessels, and freedom of transit, contains an
Article 16 which provides inter alia:
"All rights and privileges accorded by the foregoing Articles to the
Allied and Associated Powers shall be accorded equally to all States Members of
the League of Nations";
and whereas the Applicant contends that the effect of these two Articles is
that a dispute to which Article 11 of the 1919 Treaty applied could be referred
to the Permanent Court of International Justice by any State which was a Member
of the League of Nations; whereas the Applicant contends further that the
jurisdiction conferred on the Permanent Court of International Justice by the
1919 Treaty is exercisable by the present Court by virtue of Article 37 of the
Statute of the Court;
30. Whereas the Applicant contends further that Yugoslavia has succeeded to
the rights and obligations of the Kingdom of the Serbs, Croats and Slovenes
under the 1919 Treaty; and whereas, as regards its own right to invoke the 1919
Treaty, the Applicant contends that, in the light of, inter alia,
General Assembly resolution 24 (I), the United Nations has assumed the functions
and powers of the League of Nations regarding, inter alia, the 1919
Treaty, and the General Assembly has substituted itself for the Council of the
League in that respect, and concludes that
"Bosnia-Herzegovina, as a member State of the United Nations, thus is
in the position of the States described in Articles 11 and 16 of the
Serb-Croat-Slovene Treaty, namely, the member States of the League, and thus its
dispute with Yugoslavia (Serbia and Montenegro) is one over which this Court has
jurisdiction";
31. Whereas in order to reach a decision on the contentions of
Bosnia-Herzegovina as to the 1919 Treaty as a basis of jurisdiction, the Court
will not have to pronounce on the question whether Articles 11 and 16 of the
1919 Treaty are still in force, nor on their interpretation; whereas the 1919
Treaty on the face of its text imposes an obligation on the Kingdom of the
Serbs, Croats and Slovenes to protect minorities within its own territory;
whereas accordingly, if, and in so far as, Yugoslavia is now bound by the 1919
Treaty as successor of that Kingdom, its obligations under it would appear to be
limited to the present territory of Yugoslavia; whereas Bosnia-Herzegovina has
put forward no claim in its Application concering the treatment of minorities in
Yugoslavia, and has requested no provisional measures in that respect; whereas
therefore the Court considers that, in any event, the 1919 Treaty is irrelevant
to the present request for provisional measures;
[pp. 340-342] 32. Whereas the second of the additional bases of
jurisdiction put forward by the Applicant is the letter, dated 8 June 1992,
addressed to the President of the Arbitration Commission of the International
Conference for Peace in Yugoslavia by Mr. Momir Bulatovic, President of the
Republic of Montenegro, and Mr. Slobodan Milosevic, President of the Republic of
Serbia, already referred to in paragraph 26 above; whereas in its Order of 8
April 1993 the Court, after examining this letter, concluded that it was unable
to regard it "as constituting a prima facie basis of jurisdiction in the
present case" (I.C.J. Reports 1993, p. 18, para. 32); whereas the
Applicant has not put forward any new fact which might lead the Court to reopen
the question; whereas the Applicant's submission on the point must be rejected;
33. Whereas it is claimed by the Applicant that
"the Court's jurisdiction is also grounded in the Customary and
Conventional International Laws of War and International Humanitarian Law,
including but not limited to the four Geneva Conventions of 1949, their First
Additional Protocol of 1977, the Hague Regulations on Land Warfare of 1907, and
the Nuremberg Charter, Judgment, and Principles";
whereas however the Applicant has not brought to the attention of the Court
any provision in the texts enumerated conferring upon the Court jurisdiction to
deal with a dispute between the Parties concerning matters to which those texts
relate; whereas such jurisdiction is not prima facie established;
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.
