## Facts

- In 1999, the Federal Republic of Yugoslavia (later Serbia and Montenegro) filed an ICJ application against the United Kingdom concerning NATO’s aerial campaign over Kosovo.
- The application alleged breaches of obligations including the prohibition on the use of force, non-intervention, respect for sovereignty, protection of civilians and civilian objects, environmental protection, and prohibitions on certain weapons and conduct.
- The applicant also sought provisional measures ordering the United Kingdom to cease the alleged use of force and refrain from further threats or use of force.
- The case was one of ten related applications brought against NATO member States arising from the same events.
- The respondent raised preliminary objections to the Court’s jurisdiction and admissibility.
- The jurisdictional bases invoked were Article 36(2) of the ICJ Statute (optional-clause declarations) and Article IX of the Genocide Convention.
- A central threshold question was the applicant’s legal status within the United Nations system, and thus its capacity to invoke the Court’s contentious jurisdiction, on 29 April 1999.

## Issues

1. Whether, at the time the application was filed (29 April 1999), the applicant was a party to the ICJ Statute and thus capable of instituting proceedings before the Court.
2. Whether Article 36(2) of the ICJ Statute could confer jurisdiction when the applicant was not a party to the Statute at the relevant time.
3. Whether Article IX of the Genocide Convention could provide a basis of jurisdiction notwithstanding the applicant’s lack of party status to the ICJ Statute.

## Decision

- The Court upheld the United Kingdom’s preliminary objections and dismissed the case for lack of jurisdiction.
- The Court held it lacked jurisdiction ratione personae because the applicant was not a Member of the United Nations, and therefore not a party to the ICJ Statute, on 29 April 1999.
- Because the applicant was not a party to the Statute, the Court could not found jurisdiction on Article 36(2).
- The Court also rejected jurisdiction under Article IX of the Genocide Convention because the applicant’s lack of proper access to the Court at the filing date prevented reliance on that compromissory clause.
- The Court did not reach the merits concerning the legality of NATO’s use of force.

## Legal Principles

- A State’s legal position within the United Nations (including membership-related status relevant to access to the ICJ) is determined by the competent UN organs, and the Court gives decisive weight to that institutional determination.
- UN membership under Article 93(1) of the UN Charter makes a State ipso facto a party to the ICJ Statute; absent UN membership, a State must rely on Article 93(2) procedures to become a party to the Statute.
- Party status to the ICJ Statute is a necessary threshold for invoking contentious jurisdiction; without it, jurisdictional clauses (including optional-clause declarations and treaty compromissory clauses) cannot cure the defect ratione personae.
- Jurisdiction and merits are distinct: dismissal for lack of jurisdiction precludes any ruling on the lawfulness of the underlying conduct alleged.

## Conclusion

The ICJ dismissed the application at the preliminary objections stage because Serbia and Montenegro lacked the requisite status to appear as a party before the Court when proceedings were instituted, preventing reliance on both optional-clause jurisdiction and the Genocide Convention compromissory clause and leaving the merits of the use-of-force claims undecided.


Legality of Use of Force (Serb. & Mont. v. U.K.), 2004 I.C.J. 1307 (Dec. 15)