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World Court Digest



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

¤ 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.