NEWS RELEASES
SUMMARY OF CANADA'S ARGUMENTS BEFORE THE INTERNATIONAL COURT OF JUSTICE (ICJ)
May 10, 1999 (6:30 p.m. EDT) No. 106
SUMMARY OF CANADA'S ARGUMENTS BEFORE
THE INTERNATIONAL COURT OF JUSTICE (ICJ)
The Claim by the Federal Republic of Yugoslavia (FRY)
The FRY claims that Canada and nine other NATO member States have violated international legal obligations
concerning the use of force, non-interference with the internal affairs of a State, and genocide.
Nature of the Proceeding
This is a preliminary hearing to determine whether provisional measures (interim relief) should be granted in
order to preserve the respective rights of the Parties. The Court will not entertain submissions on the
substantive merits of the case at this stage, although it will have to establish that it has prima facie jurisdiction
to hear the matter.
The Question of Jurisdiction
The FRY's claim for jurisdiction is based on its declaration of April 25, 1999, accepting the compulsory
jurisdiction of the Court for all disputes arising after that date, and on its status as a State Party to the Genocide
Convention.
Canada is challenging the Court's jurisdiction on the following grounds:
- The UN has not recognized the FRY as the successor state to the former Yugoslavia; the FRY has never
applied for membership in the UN. Only UN members are party to the Statute of the ICJ.
- The decision by NATO to conduct air operations is outside the time restriction on the FRY's own acceptance
of jurisdiction, which was likely made to protect it against claims for its own past breaches of international
law.
- There is absolutely no factual or legal basis for a charge of genocide against Canada. Citing the Convention
is an attempt to create controversy and influence the Court to take jurisdiction in the absence of a legal basis
to do so under the ICJ Statute.
The Inappropriateness of Interim Relief
An order for provisional measures must take into account all the circumstances of the case. The circumstances
all argue against granting the relief sought by the FRY:
- The FRY is not coming before the Court with "clean hands" and is seeking protection against the
consequences of its own crimes against humanity. It has failed to comply with binding Security Council
Resolutions demanding an end to the repression against Kosovar Albanians and their safe return.
- Ordering a cessation of NATO air operations would allow the FRY to complete its work of emptying Kosovo
of its population.
- Such an order would have a devastating and permanent effect on the Kosovars and the region as a whole,
which could not be remedied by a subsequent judgment on the merits.
Backgrounder
ICJ CASE OF THE LEGALITY OF THE USE OF FORCE:
REQUEST FOR INDICATION OF PRELIMINARY MEASURES
On April 29, Canada received notice from the International Court of Justice (ICJ) that the Federal Republic of
Yugoslavia (FRY) had submitted an application against Canada and nine other NATO members (the United
States, the United Kingdom, France, Germany, Italy, the Netherlands, Belgium, Portugal and Spain) for
provisional measures in respect of various alleged violations of international law. The ICJ has set these 10
matters down for hearing May 10-11, 1999.
What is the nature of the FRY action against Canada?
The FRY has brought separate applications against Canada, the United States, the United Kingdom, France,
Germany, Italy, the Netherlands, Belgium, Portugal and Spain requesting a declaration that these States are
responsible for violation of several international obligations, ranging from the obligation not to intervene in the
affairs of another state, to allegations of genocide.
Canada unequivocally rejects the FRY's allegations. The FRY continues to commit serious violations of
international law and this case will focus attention on these violations. We would also expect the FRY to
demonstrate its respect for international law by co-operating with the International Criminal Tribunal for the
Former Yugoslavia.
Why has this action been brought against Canada? Surely there are other NATO members that are
more active than Canada in the FRY.
The FRY has chosen to bring separate proceedings against 10 of the 19 NATO member states. While we
cannot speculate as to the FRY's reasons for choosing these 10 states, we understand that the broad,
unsubstantiated allegations made against each respondent state are the same or similar.
Has the FRY made another application as well? What is being heard in the Hague this week?
The FRY has also requested that the Court make an order for provisional measures. It is the request for
provisional or interim measures that will be considered by the Court this week.
What are provisional measures?
A State may make a request for provisional measures in situations where it claims that the actions of another
State must be stopped on an emergency basis. The Court will hear such requests on a priority basis, and may
decide to issue an order indicating how the parties should conduct themselves on an interim basis, prior to the
Court hearing the full merits of the case.
In what other circumstances have provisional measures been requested?
Provisional measures have been requested in circumstances ranging from armed conflict to protection of
economic interests. Most recently, Bosnia and Herzegovina requested provisional measures against
Yugoslavia in the case of the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide.
What is an Agent?
An Agent is the lawyer who represents the government. Canada's Agent will argue the case of the Government
of Canada at the ICJ.
Philippe Kirsch, Legal Adviser, who was Canada's agent before the ICJ in the Fisheries Jurisdiction (Spain v.
Canada) case, has been chosen by the Government as Canada's Agent in this case.
What is a Judge ad hoc?
Any party that does not have a judge of its nationality on the ICJ may nominate a Judge ad hoc. Judges ad hoc
participate on terms of complete equality with the other judges of the Court in the cases for which they are
appointed. The Court may refuse to appoint the nominee if it determines that that party's interests would be
adequately served by other judges on the Court.
Canada has nominated Marc Lalonde as Judge ad hoc in this case. He previously served as Judge ad hoc in
the Fisheries Jurisdiction case. The FRY objected to the appointment of a Canadian Judge ad hoc on the basis
that a number of respondent countries have nationals on the Court, and that Canada's interests would be
adequately served by these judges. The Court has accepted Mr. Lalonde's nomination, despite the objections
of the FRY.
The FRY has also nominated a Judge ad hoc, and this nomination has also been accepted by the Court.
Backgrounder
INTERNATIONAL COURT OF JUSTICE, THE HAGUE
The International Court of Justice (ICJ) was set up in 1945 under the Charter of the United Nations to be the
principal judicial organ of the Organization.
The Court has a dual role :
- To settle in accordance with international law the legal disputes submitted to it by States; and
- To give advisory opinions on legal questions referred to it by duly authorized international organs and
agencies.
The United Nations General Assembly and the United Nations Security Council (UNSC) elect fifteen judges to
the ICJ, who serve nine-year terms of office. Elections are held every three years for one-third of the seats.
Judges may be re-elected.
Currently, the Court is composed of judges from : Algeria, Brazil, China, France, Germany, Hungary, Japan,
Madagascar, the Netherlands, the Russian Federation, Sierra Leone, Sri Lanka, United Kingdom, the United
States and Venezuela. When the Court does not include a judge of the same nationality as a State party to a
case, that State may nominate a person to sit as a judge ad hoc for the purpose of the case. However, the
court may choose not to appoint a judge ad hoc if it is of the opinion that the interests of the party would be
adequately represented by the existing members of the Court.
ICJ Procedure
ICJ proceedings include a written and an oral phase. It is also possible for a party to request provisional
measures. Such requests are considered by the Court on a priority basis -- usually within two to four weeks of
the request. During the written phase, parties file and exchange pleadings, while the oral phase involves public
hearings at which agents and counsel address the Court.
Court deliberation, in camera, follows the oral phase. Judgement is then delivered at a public sitting, and is
considered final and without the recourse to appeal. However, if an involved State fails to comply with the
judgement, the other party may bring the matter to the UNSC.
The Court has delivered 68 judgements since 1946, on disputes concerning, inter alia:
- land frontiers and maritime boundaries
- territorial sovereignty
- the non-use of force
- non-interference in the internal affairs of States
- diplomatic relations
- hostage taking
- the right of asylum
- nationality
- guardianship
- rights of passage
- economic rights
The States Members of the UN and two States non-Members (Nauru and Switzerland) are entitled to apply to
and appear before the Court.
English and French are the two official languages of the ICJ.
BIOGRAPHICAL NOTES: PHILIPPE KIRSCH
Philippe Kirsch joined the Department of External Affairs in 1972 after receiving a Master of Laws degree from
the Université de Montréal. Since then, Mr. Kirsch has served as Ambassador and Deputy Permanent
Representative of Canada to the United Nations and as Ambassador and Agent for Canada to the International
Court of Justice. He has been Legal Adviser for the Department of Foreign Affairs and International Trade
since 1994.
Philippe Kirsch has extensive experience in multilateral legal forums. He was Ambassador and Agent for
Canada before the International Court of Justice from 1995-98 in the Fisheries Jurisdiction (Spain v. Canada)
case. In June 1998, Mr. Kirsch was elected Chairman of the Committee of the Whole for the Conference on the
International Criminal Court (ICC); this Committee negotiated the final text for the ICC Statute.
Other assignments have included Chairmanship of the following Committees: the influential Sixth (Legal)
Committee of the UN; the UN Ad Hoc Committee for the Elaboration of a Convention for the Suppression of
Nuclear Terrorism; the UN Ad Hoc Committee on the Elaboration of a Convention for the Suppression of
Terrorist Bombings; the Drafting Committee of the 26th International Conference of the Red Cross and the Red
Crescent in 1995; the Working Group of the UN Special Committee on Peacekeeping; the UN Ad Hoc
Committee on a Convention for the Safety of UN and Associated Personnel; and the Drafting Committee of the
International Conference on the Protection of War Victims. Mr. Kirsch is also the author of numerous articles
and papers on various subjects relating to international law and the United Nations.
BIOGRAPHICAL NOTES: MARC LALONDE, P.C., O.C., Q.C.
Marc Lalonde has extensive international law experience, including an appointment as an Ad Hoc judge of the
International Court of Justice concerning a dispute between Spain and Canada (1995-1998), Special Envoy in
a Canada-Brazil regional aircraft dispute (1998), member of the International Advisory Council to the Presidium
of Ukraine (1990-1996); member of the Advisory Committee on Constitutional Matters in the former
Czechoslovakia (1989-1991) and member of the International Advisory Council of Air France (1991-1996). He
is currently the Director General of a major Policy Implementation Program, funded by the Government of
Canada, advising the National Assembly and the Government of Vietnam.
Marc Lalonde holds a Master of Laws degree from the Université de Montréal, as well as a Master's degree
from Oxford University and a Diplôme d'études supérieures en droit (D.E.S.D) from the University of Ottawa.
Marc Lalonde was first elected to the House of Commons in 1972, and appointed Minister of Health and
Welfare. In the course of his political career, Mr. Lalonde has held the portfolios of Minister Responsible for the
Status of Women (1974-1979), Minister of State Responsible for Federal-Provincial Relations (1977), Minister
of Justice and Attorney General for Canada (1978), Minister of Energy, Mines and Resources (1980) and
Minister of Finance (1982). Currently, Marc Lalonde is a partner at Stikeman, Elliott law firm, and practises
corporate and commercial law with a practice involving international investment and international business
transactions.
| 
