109-Legality of Use of Force (Serbia and Montenegro vs Italy)
On April 29th, 1999, The Federal Republic of Yugoslavia filed Applications instituting proceedings before the International Court of Justice (ICJ) against several States, including Italy, claiming that the latter had violated its international obligation not to use force against another State.
In its application instituting proceedings against Italy, Yugoslavia cited as a basis for jurisdiction of the Court the article 38 paragraph 5 of the Rules of the Court as well as the article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the UN on December 09th, 1948. The applicant also submitted a request for provisional measures to ensure that the respondent State cease immediately the use of force and refrain from any act that could constitute a threat or a use of force. In its order of June 2nd,1999 the ICJ ruled that it did not have a prima facie jurisdiction, which is one of the prerequisite for the issuance of provisional measures, therefore it could not grant that request.
Italy, like all the States brought before the Court by Yugoslavia, raised preliminary objections: the point was to decide whether Serbia and Montenegro was a party to the UN and ICJ Statute when the proceedings were instituted. If the applicant was not, the Court could not be open to it unless it satisfied the conditions set out in article 35 paragraph 2 of the Statute.
After recalling the political events that had affected Yugoslavia during the 1990s (more precisely its implosion, leading to the creation of Serbia and Montenegro), the Court concluded that the applicant became a member of the UN on November 1st,2000. However, there was nothing to confirm that the country had been a member of the institution prior to that date and hence could not have been party to the Statute when it instituted proceedings against these states on April 29th,1999.
This summary is provided for informational purposes only, does not involve the responsibility of Dome and should in no way be used as a substitute for a careful reading of the judgment and order of the case.
