Chapter

Separate Opinion of Judge Higgins Legality of Use of Force (Serbia and Montenegro v Belgium) (Serbia and Montenegro v Canada) (Serbia and Montenegro v Netherlands) (Serbia and Montenegro v Portugal) (Yugoslavia v Spain) (Serbia and Montenegro v United Kingdom), Provisional Measures, Order of 2 June 1999

Rosalyn Higgins Dbe Qc

in Themes and Theories

Published in print August 2009 | ISBN: 9780198262350
Published online March 2012 | e-ISBN: 9780191682322 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198262350.003.0089
Separate Opinion of Judge Higgins Legality of Use of Force (Serbia and Montenegro v Belgium) (Serbia and Montenegro v Canada) (Serbia and Montenegro v Netherlands) (Serbia and Montenegro v Portugal) (Yugoslavia v Spain) (Serbia and Montenegro v United Kingdom), Provisional Measures, Order of 2 June 1999

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A state seeking the introduction of provisional measures must show that jurisdiction prima facie exists, notwithstanding conditions, reservations and the operation of reciprocity between declarations. There exists the possibility that acts carried out prior to the crucial date ‘nevertheless gave rise to a permanent situation inconsistent with international law which has continued to exist after the said date’. This latter eventuality is indeed reflected in the International Law Commission’s Draft Article 25 on State Responsibility. It is not the International Court of Justice alone which has had to formulate jurisprudence on the concept of ‘continuing events’: so has the European Court of Human Rights. This chapter offers a commentary on the proceedings instituted by Yugoslavia against Spain and by Serbia and Montenegro against Belgium, Canada, Netherlands, Portugal, and the United Kingdom. The chapter gives an opinion on each of the cases.

Keywords: International Court of Justice; provisional measures; jurisdiction; international law; jurisprudence; Yugoslavia; Spain; Serbia and Montenegro; Belgium; Canada

Chapter.  4027 words. 

Subjects: Public International Law

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