International Law in the Post-Cold War World: Essays in Memory of Li Haopei

By Sienho Yee; Wang Tieya | Go to book overview

31

The ICJ’s Jurisdiction in the Legality of Use of Force cases

Jianming Shen

I. Introduction

In late April 1999, Yugoslavia filed with the International Court of Justice (ICJ) ten separate Applications instituting Cases Concerning Legality of Use of Force (“Legality cases”) against Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal, Spain, the United Kingdom and the United States for violations, inter alia, of the obligation not to use force.1 At the same time, Yugoslavia requested the Court to indicate provisional measures by ordering the Respondent States to “cease immediately [their] acts of use of force” and to “refrain from any act of threat or use of force”.2 It claimed that if the interim protective measures “were not to be adopted, there will be new losses of human life, further physical and mental harm inflicted on the population of… Yugoslavia, further destruction of civilian targets, heavy environmental pollution and further physical destruction of the people of Yugoslavia”.3 On 2 June 1999, the ICJ, in each case, denied Yugoslavia’s requests.4 In the cases against Spain and the US, the Court held that it manifestly lacked jurisdiction and ordered these cases to be removed from its General List.5 In the remaining eight cases, the Court found that it lacked prima facie jurisdiction, and therefore could not indicate provisional measures, but decided to remain seised of them in respect of both jurisdiction and the merits.6

Yugoslavia attempted to found the Court’s jurisdiction on (1) declarations of the parties accepting the Court’s compulsory jurisdiction made in accordance with the optional clause of Article 36(2) of the ICJ Statute,7 (2) Article IX of the Genocide Convention of 1948,8 and/or (3) specifically with respect to Belgium and the

1 E.g., Legality of Use of Force (Yugoslavia v. Belgium), Applications of 28 April 1999, www.icj-cij.org.

2 E.g., ibid., Request for the Indication of Provisional Measures (Request).

3 Ibid.

4 E.g., ibid., Provisional Measures Order (Order).

5 Yugoslavia v. Spain, Order, para. 40; Yugoslavia v. United States, Order, para. 34.

6 E.g., Yugoslavia v. Belgium, Order, para. 51.

7 ICJ Statute, art. 36(2).

8 Convention for the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, art. IX.

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