ASIL Insight

The Court's analysis focused on Article 35 of the ICJ Statute, which reads as follows in pertinent part:

1.  The Court shall be open to the states parties to the present Statute.
2.  The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.

The Court's Analysis of Art. 35(1) of the ICJ Statute

The Court considered whether Serbia and Montenegro had access to the Court (i.e., standing).  If a party has no access, there can be no personal jurisdiction (jurisdiction ratione personae) under the ICJ Statute.  The preconditions for access to the ICJ are: (i) that the applicant be a state, pursuant to Article 34 of the ICJ Statute, which Serbia and Montenegro undoubtedly met; and (ii) that the state be a member of the United Nations and therefore a party to the ICJ Statute forming an integral part of the UN Charter. [3]   Alternative means of access, set out in Article 35(2) of the ICJ Statute, are discussed below.

The critical date for establishing that Serbia and Montenegro was a member of the UN was the date it instituted proceedings against the NATO states, namely April 29, 1999. [4]

This "fundamental" question of Serbia and Montenegro's status as a member of the United Nations at the relevant time was complicated by the uncertain and changing status of the former Yugoslavia in the UN in the period from 1992-2000, and also by the changing attitude of the Applicant itself towards the UN and these proceedings. [5]

In the early 1990s the then "Socialist Federal Republic of Yugoslavia" (SFRY), made up of Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia, began to break up.  Croatia and Slovenia, followed by Macedonia and Bosnia and Herzegovina, declared their independence and were admitted as Members of the UN.  Meanwhile, Serbia and Montenegro formed the "Federal Republic of Yugoslavia" (FRY) and claimed to continue the international legal personality of the SFRY, including its UN Membership. [6]   The UN did not entirely accept this position.  The Security Council noted that the SFRY had "ceased to exist," that the claim by the FRY to continue membership automatically had "not been generally accepted" (resolution 777 (1992)), and the FRY should apply for membership.  The General Assembly adopted a similar position in resolution 47/1 in 1992.  Asked to clarify the meaning of these resolutions, the UN Legal Counsel opined that while Yugoslavia's membership was neither terminated nor suspended, the FRY could not participate in the activities of the General Assembly.  Further confusion was added by the continued flying of the Yugoslav flag at UN Headquarters in New York, the FRY's allocated contribution to the UN budget, and the suggestion by the UN Secretariat's Treaty Section that the FRY continued treaty obligations of its predecessor. 

This "amorphous state of affairs," described by the Court as a "sui generis" position "fraught with 'legal difficulties,'" [7] was brought to an end with political change in Yugoslavia.  Following the ouster of Slobodan Milosevic and the election of a new president in October 2000, Yugoslavia no longer insisted that it continued the SFRY's UN membership.  Instead, it formally applied for membership anew.  On November 1, 2000, the FRY (the same entity that is now called Serbia and Montenegro) was admitted as a member of the UN. 

The Court found that the admission to the UN "did not have, and could not have had, the effect of dating back to the time when the [SFRY] broke up and disappeared . At the same time, it became  clear that the sui generis position of the Applicant could not have amounted to its membership in the Organization." [8]

The admission to the UN in November 2000 led the Court to conclude that Serbia and Montenegro "was not a Member of the United Nations, and in that capacity a State party to the Statute of the International Court of Justice, at the time of filing its Application to institute present proceedings before the Court on 29 April 1999." [9]  

The Court's Analysis of Art. 35(2) of the ICJ Statute

Having thus refused to exercise jurisdiction under Article 35(1) of the ICJ Statute, the Court proceeded to evaluate Serbia and Montenegro's access to the Court on the basis of Article 35(2), even though Serbia and Montenegro had not invoked this provision as a basis for access or jurisdiction. [10]  

In relation to "treaties in force," as these words are employed in Article 35(2), the Court quoted from its Order of April 8, 1993 in the Genocide Convention case between Bosnia and Herzegovina and Yugoslavia (FRY), in which it said, inter alia, that a "compromissory clause in a multilateral convention, such as Article IX of the Genocide Convention ., could, in the view of the Court, be regarded prima facie as a special provision contained in a treaty in force." [11]   The Court noted that, because the 1993 Order had been made only in the context of incidental proceedings concerning a request for provisional measures, it was appropriate in the present cases to consider more definitively the question of the applicability and interpretation of Article 35(2).

According to the Court, the words "treaties in force" do not, in their ordinary meaning, indicate at what date such treaties are to be in force, and may thus lend themselves to alternative interpretations. [12]   They may be interpreted as referring either to treaties that were in force at the time the Statute itself came into force (i.e., October 1945), or to those that were in force on the date of the institution of proceedings in a case in which such treaties are invoked.

The Court opted for the first interpretation.  It observed that, while Article 35(1) opened the Court's doors to states parties to the ICJ Statute, Article 35(2) was intended to regulate access to the Court by states that are not parties to the Statute.  In the words of the Court, "it would have been inconsistent with the main thrust of the text to make it possible in the future for States not parties to the Statute to obtain access to the Court simply by the conclusion between themselves of a special treaty, multilateral or bilateral, containing a provision to that effect." [13]   The Court found that an examination of the preparatory documents (travaux préparatoires) relating to Article 35(2) reinforced its interpretation of "treaties in force" as referring to the time that the Statute came into force, in spite of the fact that "no such prior treaties, referring to the jurisdiction of the present Court, have been brought to the attention of the Court, and it may be that none existed." [14]   This statement may mean that Article 35(2) constitutes a dead letter.

Applying this interpretation of Article 35(2) to the facts before it, the Court concluded that, even assuming that Serbia and Montenegro was a party to the Genocide Convention at the relevant time, Article 35(2) does not provide it with access to the Court under Article IX of that Convention, because the Convention entered into force on January 12, 1951, which was after the entry into force of the ICJ Statute.

The Court thus held that because Article 35 was not satisfied, the Court's doors were closed to Serbia and Montenegro at the time it instituted the proceedings, and none of the other preliminary objections raised by the NATO parties needed to be considered.  At least that is what the statutory majority of the Court held.  While all sitting judges agreed with the ultimate holding that the Court had "no jurisdiction to entertain the claims made in the Application filed by Serbia and Montenegro on 29 April 1999," the Court was split down the middle on the reasons for this holding.

Joint Declaration of Seven Judges

A group of no fewer than seven judges [15] appended a Joint Declaration in which they expressed their profound disagreement with the reasoning of the majority.  The Joint Declaration recalled that it was open to the Court to find on two or more grounds that jurisdiction was not well founded.  According to the Joint Declaration, three criteria should guide the Court in choosing between possible options in a manner that best reflects its judicial function.  First, it must ensure consistency with its own past case law, in order to provide predictability.  Second, it should choose the ground that is most secure in law and least doubtful.  Third, it should be mindful of the possible implications and consequences for other pending cases. [16]

A.            Consistency

The Joint Declaration noted that when the Court in 1999 rejected Serbia and Montenegro's requests for provisional measures it was because the NATO bombing campaign had occurred a month before the Applicant consented to the Court's compulsory jurisdiction, and therefore as a temporal matter the Court lacked prima facie jurisdiction (jurisdiction ratione temporis).  In its 1999 Orders the Court had also expressed doubt about whether a case for genocide by NATO member states could even be made out, because of the difficulty of proving genocidal intent in the circumstances, an issue which goes towards subject-matter jurisdiction (jurisdiction ratione materiae).  The Joint Declaration therefore criticized the majority for basing its decision on an entirely different ground - the lack of UN membership, which was a failure of personal jurisdiction (jurisdiction ratione personae).

This new ground was an unwise choice in the eyes of the Joint Declaration group, not only because it differed from the 1999 Order issued in the same case, but because it appeared to be at odds with the Court's treatment of the issue in another case on its docket, the Genocide Convention case brought by Bosnia and Herzegovina against Yugoslavia in 1993.  In  July 1996 (in the midst of the uncertainty over Yugoslavia's international legal status) the Court held that it had jurisdiction in that case based on the jurisdictional clause contained in the Genocide Convention.  The Court was invited to reconsider the issue when Yugoslavia sought to revise the 1996 Judgment, based on the new "fact" of its admission to the UN.  In February 2003, the Court held that the ICJ Statute did not allow for revision of its earlier judgment in the circumstances. [17]   But the Court made no finding that Yugoslavia had no access to the Court under Article 35(2).

B.            Certitude

The Joint Declaration group further noted that the ground chosen by the majority in the Judgment lacked certitude.  Although Yugoslavia's admission to the UN brought clarity to its status from 2000 onwards, the Joint Declaration group felt that it was hardly self-evident to say, as the Court did, that the sui generis position of Yugoslavia between 1992 and 2000 could not have amounted to its membership in the UN. [18]

C.            Implications for Other Pending Cases

Finally, the Joint Declaration group regretted that the majority took a direction that has possible implications for other cases on the Court's docket, and adopted an approach that could call into doubt solutions adopted by the Court with respect to the case brought by Bosnia and Herzegovina against Yugoslavia (Serbia and Montenegro) for the application of the Genocide Convention. [19]   We explore below what these possible implications might entail.

Observations on the NATO Cases in Context

The outcome of these NATO Cases presumably has implications for two other pending cases on the Court's docket.  These cases involve actions brought by Bosnia and Herzegovina in 1993 and by Croatia in 1999 against Yugoslavia (FRY) for violations of the 1948 Genocide Convention alleged to have been committed between 1991 and 1995. [20]  

  Given the finding by the Court in the NATO Cases that Serbia and Montenegro had no access to the Court under Article 35 of the Court's Statute and therefore that the Court could not have jurisdiction over proceedings brought by Serbia and Montenegro, it will be interesting to see what happens in the two Genocide Convention Cases. [21]   In the NATO Cases Serbia and Montenegro was the Applicant, whereas in the Genocide Convention Cases Yugoslavia (made up of Serbia and Montenegro) is the Respondent.  It would seem to be anomalous to hold that Article 35 of the Court's Statute denies access to a non-party as Applicant in one case, but allows access to the same non-party as Respondent in another case. 

  A number of outcomes appear possible in the Genocide Convention Cases:

Adopting the same reasoning as the NATO Cases, the Court might find that it has no jurisdiction after all. This could be embarrassing for the Court because it would be inconsistent with its July 1996 finding that it has jurisdiction, and would not sit comfortably with the 2003 decision not to allow the request for revision of the 1996 decision.  It would indicate that the only process available to the Court for correcting such a position or legal misunderstanding is to let it run to the merits phase (here 13 years after filing the case), and only then rule that it lacks jurisdiction.  This is comparable to what happened in the South West Africa Case brought by Ethiopia and Liberia against South Africa in 1960, where, after finding that it had jurisdiction to deal with the case in 1962, the Court's Judgment on the merits, issued in 1966, dismissed the complaints for lack of legal right or interest on the part of the joint Applicants.  The ICJ suffered a considerable fallout as a result of its surprising decision, and as a result no new case was brought for a number of years. [22]

Departing from the reasoning in the NATO Cases, the Court might find that it can rule on the merits.  To find that the Court can rule on the merits in the Genocide Convention Cases, it would either have to depart from the reasoning in the NATO Cases or distinguish them from the latter.  Unlike legal systems based on the common law, such as the United States and the United Kingdom, where prior decisions of a court are binding precedents, a decision of the ICJ "has no binding force except between the parties and in respect of that particular case" (Art. 59 of the ICJ Statute).   Nevertheless, consistency is desirable, and were the Court to abandon its recent reasoning in the NATO Cases it would not reflect well on the Court's credibility.  Therefore, for the Court to be consistent with the NATO Cases and still find that Yugoslavia (Serbia and Montenegro) was responsible for violations of the Genocide Convention, it would need first to confront the issue that it has hitherto side-stepped, namely, whether Yugoslavia was a party to the Genocide Convention at the relevant time. [23]

The Parties could reach an agreement out of court and request that the cases be discontinued and removed from the Court's docket.

The Court could discontinue the cases as an exercise of its inherent powers.  Given the Court's reluctance to dismiss the NATO Cases under its inherent powers (and instead, dismissing the cases on jurisdictional grounds), this outcome is unlikely.

Conclusion

The decision not to proceed to the merits in these NATO Cases means that the ICJ did not rule on the question whether NATO's military strikes against Yugoslavia in 1999 were in accordance with international law.  The Court stressed that although it found there was no jurisdiction to entertain the claims made in this case, it could make no finding or even an observation on the question whether any violation of law by the NATO states had been committed or any international responsibility incurred. [24]   The legality of the NATO acts subject of the dispute is therefore a question that will remain unanswered by the ICJ for the time being, as is the question of the fate of the Genocide Convention Cases that remain on the Court's docket.

See also the previous Insight by Pieter Bekker and Christopher J. Borgen, "World Court Rejects Yugoslav Requests to Enjoin Ten NATO Members from Bombing Yugoslavia" (June 1999).

About the Authors

The authors are members of the International Arbitration Group at White & Case LLP in New York City.  Dr. Bekker served as a staff lawyer in the ICJ Registry.  Ms. Levine and Mr. Weinacht were clerks at the ICJ.  The views expressed herein are solely those of the authors.