Audience publique tenue le lundi 4 novembre 2002, à 10 heures, au Palais de la Paix, sous la présidence de M. Guillaume, président

CR 2002/40
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2002
Public sitting
held on Monday 4 November 2002, at 10 a.m., at the Peace Palace,
President Guillaume presiding,
in the case concerning Application for Revision of the Judgment of 11 July 1996 in the Case
concerning Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections
(Yugoslavia v. Bosnia and Herzegovina)
____________________
VERBATIM RECORD
____________________
ANNÉE 2002
Audience publique
tenue le lundi 4 novembre 2002, à 10 heures, au Palais de la Paix,
sous la présidence de M. Guillaume, président,
en l’affaire de la Demande en revision de l’arrêt du 11 juillet 1996 en l’affaire relative à
l’Application de la convention pour la prévention et la répression du crime de génocide
(Bosnie-Herzégovine c. Yougoslavie), exceptions préliminaires
(Yougoslavie c. Bosnie-Herzégovine)
________________
COMPTE RENDU
________________
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Present: President Guillaume
Vice-President Shi
Judges Ranjeva
Herczegh
Koroma
Vereshchetin
Parra-Aranguren
Rezek
Al-Khasawneh
Buergenthal
Elaraby
Judges ad hoc DimitrijeviÁ
Mahiou
Registrar Couvreur
¾¾¾¾¾¾
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Présents : M. Guillaume, président
M. Shi, vice-président
MM. Ranjeva
Herczegh
Koroma
Vereshchetin
Parra-Aranguren
Rezek
Al-Khasawneh
Buergenthal
Elaraby, juges
MM. DimitrijeviÁ
Mahiou, juges ad hoc
M. Couvreur, greffier
¾¾¾¾¾¾
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The Government of the Federal Republic of Yugoslavia is represented by:
Mr. Tibor Varady, S.J.D. (Harvard), Chief Legal Adviser at the Federal Ministry of Foreign Affairs
of the Federal Republic of Yugoslavia, Professor of Law at the Central European University,
Budapest and Emory University, Atlanta,
as Agent;
Mr. Vladimir DjeriÁ, LL.M. (Michigan) Adviser to the Minister for Foreign Affairs of the Federal
Republic of Yugoslavia,
as Co-Agent;
Mr. Andreas Zimmermann, LL.M. (Harvard) Professor of Law, University of Kiel, Director of the
Walther-Schücking Institute,
as Counsel and Advocate;
Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Member of the International Law Commission, Member of
the English Bar, Emeritus Chichele Professor of Public International Law, University of Oxford,
as Adviser;
Mr. Dejan Ukropina, Attorney from Novi Sad,
Mr. Robin Geiss, Assistant at the Walther-Schücking Institute, University of Kiel,
Mr. Marko MiÁanoviÁ, LL.M. (NYU),
Mr. Slavoljub CariÁ, Counsellor of the Embassy of the Federal Republic of Yugoslavia in
The Hague,
Mr. Miodrag Panèeski, First Secretary of the Embassy of the Federal Republic of Yugoslavia in
The Hague,
as Assistants.
The Government of Bosnia and Herzegovina is represented by:
Mr. Sakib SoftiÁ,
as Agent;
Mr. Phon van den Biesen, van den Biesen Advocaten, Amsterdam,
as Deputy Agent;
Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, member and former Chairman of
the International Law Commission,
as Counsel and Advocate;
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Le Gouvernement de la République de Yougoslavie est représenté par :
M. Tibor Varady, S.J.D. (Harvard), conseiller juridique principal au ministère fédéral des affaires
étrangères de la République fédérale de Yougoslavie, professeur de droit à l’Université
d’Europe centrale de Budapest et à l’Université Emory d’Atlanta,
comme agent;
M. Vladimir DjeriÁ, LL.M. (Michigan), conseiller auprès du ministère des affaires étrangères de la
République fédérale de Yougoslavie,
comme coagent;
Dr. Andreas Zimmermann, LL.M. (Harvard), professeur de droit à l’Université de Kiel, directeur
de l’Institut Walther-Schücking,
comme conseil et avocat;
M. Ian Brownlie, C.B.E., Q.C., F.B.A., membre de la Commission du droit international, membre
du barreau d’Angleterre, professeur émérite de droit international public (chaire Chichele) à
l’Université d’Oxford,
comme conseiller;
M. Dejan Ukropina, Attorney à Novi Sad,
M. Robin Geiss, assistant à l’Institut Walther-Schücking, Université de Kiel,
M. Marko MiÁanoviÁ, LL.M. (Université de New York),
M. Slavoljub CariÁ, conseiller auprès de l’ambassade de la République fédérale de Yougoslavie à
La Haye,
M. Miodrag Panèeski, premier secrétaire à l’ambassade de la République fédérale de Yougoslavie à
La Haye,
comme assistants.
Le Gouvernement de la Bosnie-Herzégovinie est représenté par :
M. Sakib SoftiÁ,
comme agent;
M. Phon van den Biesen, van den Biesen Advocaten, Amsterdam,
comme agent adjoint;
M. Alain Pellet, professeur à l’Université de Paris X-Nanterre, membre et ancien président de la
Commission du droit international,
comme conseil et avocat;
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Mr. Antoine Ollivier,
Mr. Wim Muller,
as Counsel.
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M. Antoine Ollivier,
M. Wim Muller,
comme conseils.
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Le PRESIDENT : Veuillez vous asseoir. L’audience est ouverte.
La Cour se réunit aujourd’hui en application de l’article 61 de son Statut et des articles 99
et 100 de son Règlement pour entendre les Parties en leurs plaidoiries dans l’affaire de la Demande
en revision de l’arrêt du 11 juillet 1996 en l’affaire relative à l’Application de la convention pour
la prévention et la répression du crime de génocide (Bosnie-Herzégovine c. Yougoslavie),
exceptions préliminaires (Yougoslavie c. Bosnie-Herzégovine).
*
Avant de rappeler les principales étapes de la procédure en l’espèce, il échet de parachever la
composition de la Cour pour cette affaire.
Tout d’abord, je rappellerai qu’en vertu de l’article 100 du Règlement, si l’arrêt à reviser a
été rendu par la Cour, comme dans la présente instance, la Cour plénière connaît de la demande en
revision.
Trois membres de la Cour, les juges Fleischhauer, Higgins et Kooijmans, ont estimé devoir
ne pas participer au jugement de cette affaire déterminée et m’en ont fait part, conformément au
paragraphe 1 de l’article 24 du Statut. En outre, le juge Oda m’a indiqué qu’il ne pourrait être
présent sur le siège au cours des présentes audiences.
Je rappellerai par ailleurs que la Cour ne comptant sur le siège aucun juge de la nationalité
des Parties, chacune d’elles s’est prévalue du droit que lui confère le paragraphe 3 de l’article 31 du
Statut de procéder à la désignation d’un juge ad hoc pour siéger en l’affaire. La Yougoslavie a
ainsi désigné M. Vojin DimitrijeviÁ. La Bosnie-Herzégovine avait désigné M. Sead Hodži Á;
celui-ci ayant démissionné de ses fonctions, la Bosnie-Herzégovine a désigné M. Ahmed Mahiou
pour siéger à sa place.
L’article 20 du Statut dispose que «Tout membre de la Cour doit, avant d’entrer en fonction,
prendre l’engagement solennel d’exercer ses attributions en pleine impartialité et en toute
conscience.» Cette disposition est applicable aux juges ad hoc, en vertu du paragraphe 6 de
l’article 31 du Statut. Avant d’inviter MM. DimitrijeviÁ et Mahiou à faire leur déclaration
solennelle, je dirai d’abord, selon l’usage, quelques mots de leur carrière et de leurs qualifications.
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M. Vojin DimitrijeviÁ, de nationalité yougoslave, est docteur en droit de l’Université de
Belgrade et docteur honoris causa de l’Université McGill de Montréal. Jusqu’en 1998, il a été
professeur de droit international et de relations internationales à la faculté de droit de l’Université
de Belgrade et il occupe aujourd’hui le poste de directeur du centre pour les droits de l’homme de
Belgrade. M. DimitrijeviÁ est membre de diverses institutions et sociétés savantes, et il est
notamment associé de l’Institut de droit international. Il a exercé les fonctions de membre,
rapporteur et vice-président du Comité des droits de l’homme des Nations Unies et compte à son
actif de nombreuses publications.
M. Ahmed Mahiou, de nationalité algérienne, est docteur d’Etat de la faculté de droit de
Nancy et agrégé de droit public et de science politique. Il a rempli des fonctions d’enseignement et
de recherche à l’Université d’Alger et dans d’autres pays, notamment en France. Il a représenté
l’Algérie dans plusieurs conférences internationales et a été membre de différents organes
internationaux, dont la Commission du droit international des Nations Unies, qu’il a présidée lors
de la 48e
session, en 1996. M. Mahiou est membre de diverses institutions scientifiques ou sociétés
savantes. Il a publié de nombreux ouvrages et articles dans divers domaines du droit international.
Je vais maintenant inviter chacun des deux juges ad hoc à prendre l’engagement solennel
prescrit par le Statut et je demanderai à toutes les personnes présentes à l’audience de bien vouloir
se lever.
Le PRESIDENT : Monsieur DimitrijeviÁ.
M. DIMITRIJEVIC : «I solemnly declare that I will perform my duties and exercise my
powers as judge honourably, faithfully, impartially and conscientiously.»
Le PRESIDENT : Je vous remercie. Monsieur Mahiou.
M. MAHIOU : «Je déclare solennellement que je remplirai mes devoirs et exercerai mes
attributions de juge en tout honneur et dévouement, en pleine et parfaite impartialité et en toute
conscience.»
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Le PRESIDENT : Je vous remercie. Veuillez vous asseoir. Je prends acte des déclarations
solennelles faites par MM. DimitrijeviÁ et Mahiou et je les déclare dûment installés en qualité de
juges ad hoc en l’affaire de la Demande en revision de l’arrêt du 11 juillet 1996 en l’affaire
relative à l’Application de la convention pour la prévention et la répression du crime de génocide
(Bosnie-Herzégovine c. Yougoslavie), exceptions préliminaires (Yougoslavie c.
Bosnie-Herzégovine).
*
* *
La République fédérale de Yougoslavie a introduit la présente instance par le dépôt au
Greffe de la Cour, le 24 avril 2001, d’une requête dans laquelle, se référant à l’article 61 du Statut
de la Cour, elle priait celle-ci de reviser l’arrêt rendu le 11 juillet 1996 en l’affaire relative à
l’Application de la convention pour la prévention et la répression du crime de génocide
(Bosnie-Herzégovine c. Yougoslavie), exceptions préliminaires. Conformément au paragraphe 2 de
l’article 40 du Statut, la requête a été immédiatement communiquée à la Bosnie-Herzégovine et,
conformément au paragraphe 3 de cet article, tous les Etats admis à ester devant la Cour ont été
informés de la requête.
Par lettres du 26 avril 2001, le greffier a avisé les Parties que la Cour avait fixé au
30 septembre 2001 la date d’expiration du délai pour le dépôt par la Bosnie-Herzégovine des
observations écrites sur la recevabilité de la requête visées au paragraphe 2 de l’article 99 du
Règlement de la Cour. Par des communications en date du 21 août 2001, les Parties ont été
informées qu’à la demande de la Bosnie-Herzégovine, et compte tenu de l’absence d’objection de
la Yougoslavie, le président avait reporté ce délai au 3 décembre 2001. La Bosnie-Herzégovine a
déposé ses observations écrites sur la recevabilité de la requête de la Yougoslavie dans le délai
ainsi prorogé.
Par lettre du 26 décembre 2001, l’agent de la Yougoslavie, se référant au paragraphe 3 de
l’article 99 du Règlement, a prié la Cour de donner aux Parties la possibilité de présenter une
nouvelle fois leurs vues, par écrit, sur la recevabilité de la requête. L’agent de la
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Bosnie-Herzégovine a informé la Cour que son gouvernement n’était pas favorable à un second
tour de procédure écrite. La Cour a estimé qu’un second tour de procédure écrite n’était pas
nécessaire et les Parties en ont été avisées par lettres du greffier en date du 1er mars 2002.
Je signalerai en outre que, conformément au paragraphe 1 de l’article 53 de son Règlement,
la Cour, après s’être renseignée auprès des Parties, a fait droit le 6 août 2001 à la demande de la
République de Croatie tendant à ce que lui soient communiqués des exemplaires des pièces de
procédure et documents y annexés.
Après s’être renseignée auprès des Parties, la Cour a également décidé, en application du
paragraphe 2 de l’article 53 du Règlement, de rendre accessibles au public, à l’ouverture de la
procédure orale, des exemplaires des observations écrites de la Bosnie-Herzégovine et des
documents annexés auxdites observations. Conformément à la pratique, ces observations écrites,
sans leurs annexes, seront placées dès aujourd’hui sur le site Internet de la Cour.
Je constate la présence à l’audience des agents, conseils et avocats des deux Parties. Ainsi
que les Parties en ont été informées, les audiences se dérouleront de la manière suivante. La Cour
entendra tout d’abord la Yougoslavie, en sa qualité de demandeur dans cette affaire; et la
Yougoslavie disposera de toute la séance de ce matin. La Bosnie-Herzégovine prendra la parole
demain, mardi 5 novembre, à dix heures, et disposera à son tour de toute la matinée pour ses
plaidoiries. Un second tour de plaidoiries s’ouvrira le mercredi 6 novembre à dix heures puis le
jeudi 7 novembre à dix heures au cours duquel la Cour entendra les deux Parties en leurs répliques;
chacune d’entre elles disposera alors, aux fins de sa réplique, d’un temps de parole maximal de
deux heures.
Je donne donc maintenant la parole à M. Tibor Varady, agent de la Yougoslavie.
Monsieur l’agent, vous avez la parole.
Mr. VARADY: Je vous remercie, Monsieur le Président.
I. INTRODUCTION
1.1. It is my privilege to start by introducing my colleagues. With me are
Mr. Vladimir DjeriÁ, Co-Agent, adviser to the Foreign Minister of the Federal Republic of
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Yugoslavia, and Professor Andreas Zimmermann, Director of the Walter-Schücking-Institute at the
University of Kiel, as advocate and counsel.
1.2. Mr. President, Members of the Court, let me say first that I am truly overwhelmed by
this opportunity to address the International Court of Justice. I also very much feel the weight of
the fact that this opportunity was bestowed on me in a most intricate case, and in an almost
uncharted procedural setting. In earlier phases of these proceedings several learned colleagues
have stressed the uniqueness and historic importance of the case. With pathos ¾ but also with
justification ¾ it was stated that the allegation at issue, that is genocide, is “the crime of crimes”,
“the most serious of the most serious”. This is true. And this is why it is so extremely important to
establish the appropriate legal setting, and to choose the right avenue in dealing with allegations of
genocide. The gravity of such issues should inspire more ¾ rather than less ¾ procedural
scrutiny.
1.3. A thorough procedural scrutiny is also important because the setting of this lawsuit does
not simply mirror the setting of the actual conflict. The dividing lines during the conflict were very
much ethnic dividing lines. These dividing lines have not become State borders. This is a lawsuit
between States, two multi-ethnic States, with Serbs, Bosniacs and Croats on both sides.
1.4. Mr. President, Members of the Court, there have been consequential changes in the
background of this lawsuit. The time of devastations is now behind us. Bosnia and Herzegovina is
a sovereign State recognized by the Federal Republic of Yugoslavia. In October 2000 hundreds of
thousands of demonstrators brought to an end the MiloševiÁ régime, compelling it to recognize the
results of the election. After these events, diplomatic relations between our two countries were
established within two months. An Interstate Co-operation Council was established in May 2001.
Rebuilding normalcy is not easy, but results have been achieved. Within two years, travel has
become normal between the two countries, trade relations have been gaining momentum, and a
number of agreements have been concluded, or have been prepared. Those agreements already
concluded include an Agreement on the Promotion of Investments, and a Free Trade Agreement.
Just last week, an Agreement on Dual Citizenship and an Agreement on Social Security,
Retirement Benefits and Health Insurance was also signed.
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1.5. Mr. President, Members of the Court, I do not want to depict an idyllic picture.
Tragedies and destruction cannot and must not be forgotten. Let me add that there still are some
persisting differences of opinion between our two countries, just as there are some persisting
problems between the ethnic groups within Bosnia and Herzegovina which fought each other
during the years of the conflict. But there is no armed conflict anymore, and the differences are
getting reduced to differences emerging between neighbours elsewhere.
1.6. What is also new, and most important, there is no more impunity. Key individuals who
have been singled out as likely culprits have been brought to justice, others will be brought to
justice. No individual who committed crimes during the conflict should escape responsibility. The
International Criminal Tribunal for the former Yugoslavia (ICTY) is playing a key role in this
regard, and it is gaining prominence. Last week discussing the ICTY Report presented to the
United Nations General Assembly, Mr. Mirza KušljugiÁ, Ambassador of Bosnia and Herzegovina
to the United Nations stated: “We also underline the role of the Tribunal in individualization of
war crimes as precondition of sustainable inter-ethnic reconciliation in the region as a whole.”1
Mr. President, there may be delays, there may be shortcomings in the co-operation between
the ICTY and the States concerned, but the trend is clear and the process is unstoppable. Justice is
reaching those persons who committed crimes.
1.7. At a certain distance from the times of destruction, we have also gained a more settled
perspective. This also helps in viewing the dissolution of the former Yugoslavia which did not
follow, but rather defied established patterns. State identity, continuity or discontinuity, became
controversial issues, just as membership in international organizations and treaties. Concepts and
perceptions of facts were often challenged and superseded by new perceptions. Only with time and
in a new perspective have things crystallized, have became visible, and unequivocal.
1.8. At present, Mr. President, Members of the Court, we are at a procedural juncture where
the focus is clear and specific. We are dealing with an Application for Revision concentrating on a
Judgment on jurisdiction. In this context, we are faced with the following sequence of facts:

1
Statement by Ambassador Kuš ljugiÁ of 28 October 2002, United Nations General Assembly,
Fifty-seventh session, Item 45, Report of the ICTY.
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¾ On 11 July 1996, the Court found that the Federal Republic of Yugoslavia remained bound by
Article IX of the Genocide Convention, which had been ratified by the former Yugoslavia in
1950. On this ground, the Court established jurisdiction over the Federal Republic of
Yugoslavia.
¾ On 1 November 2000, the Federal Republic of Yugoslavia was accepted by acclamation as a
new Member of the United Nations, and became a new party to the Statute of the Court.
Thereupon, on 8 March 2001, following an invitation by the Legal Counsel, the Federal
Republic of Yugoslavia deposited an instrument of accession to the Genocide Convention with
a reservation to Article IX. This notification of accession was duly taken note of by the
Secretary-General of the United Nations as depositary, and the Federal Republic of Yugoslavia
became a new party to the Genocide Convention, effective 10 June 2001, without becoming
bound by Article IX.
1.9. The contradiction is obvious, and it has to be resolved, since it has critical relevance for
the jurisdiction of the Court in this case. The Applicant respectfully submits that this contradiction
can be resolved within the specific framework of Article 61 of the Statute of the Court. It will be
demonstrated that the perceived facts on which the 11 July 1996 Judgment was based have been
unequivocally refuted by newly discovered facts. It will be shown specifically that at the time of
the Judgment, the Federal Republic of Yugoslavia was not a party to the Statute, and did not
remain bound by Article IX of the Genocide Convention.
1.10. Mr. President, Members of the Court, I would now like to put before you the schedule
of our presentations:
¾ I would first like to identify the ratio decidendi, that is, the exact ground on which the Court
based its jurisdiction in personam over the Federal Republic of Yugoslavia (FRY).
¾ My colleague Mr. Vladimir DjeriÁ will speak next, and lend attention to the ground on which it
was held that the Court was open to the FRY.
¾ After his presentation I will focus on newly discovered facts, demonstrate that they represent a
decisive factor with regard to the actual ratio decidendi, and show that they were unknown to
both the Court and to the party claiming revision.
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¾ The presentation of my colleague Professor Andreas Zimmermann will follow. He will deal
with the issue of estoppel and related questions.
¾ Finally, I will conclude our presentations today by explaining that the remaining conditions set
by Article 61 of the Statute (namely, absence of negligence and the observance of the six
months deadline) were met.
1.11. Let me also mention as a technical matter that, in order to facilitate the presentation,
headings and references will not be read, but will appear in the transcript. A further technical
matter: we shall refer to the Applicant, the Federal Republic of Yugoslavia, under its common
abbreviation: the “FRY”.
II. THE FINDINGS OF THE COURT ON WHICH THE 11 JULY 1996 JUDGMENT WAS BASED
2.1. Mr. President, Members of the Court, the party seeking revision has to demonstrate the
discovery of some facts of such a nature to be a decisive factor. In order to be able to do this, we
shall have to identify the findings of the Court which represent the actual basis of the Judgment,
since the newly surfaced facts have to be decisive precisely with regard to the findings on which
the Judgment of 11 July 1996 was based. What is relevant in this phase of the proceedings are the
findings on which the Court did rely, and on which it did base its jurisdiction.
2.2. What the FRY intends to lay open for revision is jurisdiction ratione personae over the
FRY. Thus, we shall first have to identify the exact ground on which the Court based its
jurisdiction ratione personae over the FRY. We shall also identify the basis on which it was held
that the Court was open to the FRY within the meaning of Article 35 of the Statute (which is a
precondition to the exercise of jurisdiction).
A. Grounds for jurisdiction in personam over the FRY in the Judgment of 11 July 1996
2.3. Mr. President, Members of the Court, in the Judgment of 11 July 1996, jurisdiction over
the FRY was based on Article IX of the Genocide Convention. The Court considered and then
dismissed all other proposed bases of jurisdiction. In paragraph 41 of the 1996 Judgment, the
Court concluded ¾ and this is presented in the judges’ folder, tab 1, page 6: “It follows from the
foregoing that the Court is unable to uphold any of the additional bases of jurisdiction invoked by
the Applicant and that its only jurisdiction to entertain the case is on the basis of Article IX of the
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Genocide Convention.”2
Accordingly, I shall not deal with arguments and conceivable bases of
jurisdiction which were not adopted as the ratio decidendi, since these are outside the scope of
these proceedings ¾ certainly outside the scope of this phase of the proceedings. I shall deal with
Article IX on which ¾ according to the Court ¾ “the only jurisdiction to entertain the case” was
based.
2.4. With our focus directed to Article IX, the next step is to identify in the 1996 Judgment
the actual basis of the conclusion that the FRY was, indeed, bound by Article IX of the Genocide
Convention.
2.5. There are three conceivable bases and three conceivable ways in which the FRY could
have possibly been considered bound by Article IX at the time of the Judgment:
(1) the FRY may have remained a party to the Genocide Convention continuing the personality of
the former Yugoslavia;
(2) the FRY may have become a party by automatic succession;
(3) the FRY may have become a party by its treaty action ¾ either a notification of succession or
a notification of accession.
I shall discuss all three conceivable grounds. I shall demonstrate that the Judgment relied
only on the first of these grounds, namely on the assumption that the FRY remained bound by
Article IX of the Genocide Convention, continuing the personality of the former Yugoslavia. I
shall also demonstrate that other grounds are not relevant because they did not and could not
represent the actual ratio decidendi.
1. The actual ratio decidendi
2.6. Let us now look at what exactly the Court said regarding jurisdiction over the FRY ¾
and I am quoting the entire paragraph 17 presented in the judges’ folder, tab 1, page 4:
“The proceedings instituted before the Court are between two States whose
territories are located within the former Socialist Federal Republic of Yugoslavia.
That Republic signed the Genocide Convention on 11 December 1948 and deposited
its instrument of ratification, without reservation, on 29 August 1950. At the time of
the proclamation of the Federal Republic of Yugoslavia, on 27 April 1992, a formal
declaration was adopted on its behalf to the effect that:

2Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary
Objections, Judgment, I.C.J. Reports 1996 (II), p. 621, para. 41.
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‘The Federal Republic of Yugoslavia, continuing the State,
international legal and political personality of the Socialist Federal
Republic of Yugoslavia, shall strictly abide by all the commitments that
the Socialist Federal Republic of Yugoslavia assumed internationally.’
This intention thus expressed by Yugoslavia to remain bound by the
international treaties to which the former Yugoslavia was party was confirmed in an
official Note of 27 April 1992 from the Permanent Mission of Yugoslavia to the
United Nations, addressed to the Secretary-General. The Court observes, furthermore,
that it has not been contested that Yugoslavia was a party to the Genocide Convention.
Thus, Yugoslavia was bound by the provisions of the Convention on the date of the
filing of the Application in the present case, namely, on 20 March 1993.”3
2.7. In its Written Observations4
Bosnia and Herzegovina identifies exactly the same
findings, citing and relying on the same full paragraph.
2.8. From the paragraph of the Judgment cited above, it follows without any doubt that the
Court found that the FRY remained bound by Article IX of the Genocide Convention, finding
support in the Declaration and Note of 27 April 19925
. The Court first relied on a treaty action of
the former Yugoslavia and held that the Genocide Convention was ratified by the former
Yugoslavia in 1950. It then established the link, relying on the Declaration of 27 April 1992,
which stated that continuing the personality of the former Yugoslavia the FRY would abide by the
commitments which the former Yugoslavia assumed internationally.
2.9. Mr. President, Members of the Court, the Declaration and the Note based their
pronouncements solely on the perceived fact that the FRY continued the personality of the former
Yugoslavia. This is stated explicitly, and this is evidently the central message.
The Court relied on the Declaration, cited it, and also relied on the Note. Both documents
asserted that the FRY remained a member of international organizations (including the United
Nations) and remained a party to treaties by way of continuing the personality of the former
Yugoslavia. No other document or statement of the FRY was relied upon ¾ or could have been
relied upon. No other document or statement of the FRY was even mentioned in the Judgment.

3Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary
Objections, Judgment, I.C.J. Reports 1996 (II), p. 610, para. 17 ¾ emphasis added.
4Written Observations of Bosnia and Herzegovina on the Application for Revision of the Judgment of
11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina),
3 December 2001 (hereinafter: Written Observations of 3 December 2001), para. 1.4.
5Declaration adopted on 27 April 1992 at a joint session of the Assembly of the SFRY, the National Assembly of
the Republic of Serbia and the Assembly of Montenegro; and Note dated 27 April 1992 from the Permanent Mission of
Yugoslavia to the United Nations addressed to the Secretary-General, UN Doc. A/46/915.
- 18 -
The only way in which the Declaration and the Note could have linked the FRY to the Genocide
Convention was by accepting what these documents, indeed, stated unequivocally ¾ and this was
the assertion of continued personality.
2. Jurisdiction was not based on automatic succession
2.10. Mr. President, Members of the Court, turning to the other conceivable grounds, the first
and the easiest to eliminate, is automatic succession, since the Court stated explicitly that it chose
not to rely on this ground. Considering possible premises which could lead to the conclusion that
the parties to this dispute were parties to the Genocide Convention, the Court contemplated the
proposition of automatic succession, but it opted not to rely on it. The Court stated in paragraph 23
of the Judgment ¾ and let me refer again to tab 1 in the judges’ folder, page 5:
“Without prejudice as to whether or not the principle of ‘automatic succession’
applies in the case of certain types of international treaties or conventions, the Court
does not consider it necessary, in order to decide on its jurisdiction in this case, to
make a determination on the legal issues concerning State succession in respect to
treaties which have been raised by the Parties.”6
3. The Declaration and the Note were neither a notification of accession, nor a notification
of succession
2.11. Let us now consider the only remaining theoretical possibility, and let me raise the
question as to whether the Declaration and the Note of 27 April 1992 could have established the
status of the FRY as a contracting party in any other way than by the assumption of continued
personality. The only remaining conceivable hypothesis would have been to perceive the
Declaration and/or the Note as a treaty action. That is, either as a notification of accession, or as a
notification of succession.
2.12. Mr. President, Members of the Court, let me first of all emphasize that the Court never
qualified the Declaration or the Note as instruments of succession or accession. This should be
sufficient in itself to discard this hypothesis, since the parameters of the present phase of the
proceedings are set by the findings of the 1996 Judgment.

6Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary
Objections, Judgment, I.C.J. Reports 1996 (II), p. 612, para. 23.
- 19 -
2.13. Beyond this, there are three further independent reasons each of which is in itself
sufficient to show that neither the Declaration nor the Note was an instrument of succession ¾
neither were they instruments of accession. These reasons are the following:
¾ first, neither the text nor the context of either the Declaration or of the Note give any support to
the proposition that they were declarations of succession or accession. Instead, they contradict
this hypothesis;
¾ second, the Declaration and the Note were unfit by their form and nature to constitute treaty
action; and
¾ third, neither the Declaration, nor the Note were perceived as instruments of succession or
accession.
(a) There is nothing in the text or in the context of either the Declaration or of the
Note indicating succession or accession
2.14. My first point is that there is absolutely nothing in either the Declaration or in the Note
what would indicate succession or accession. As a matter of fact, the word or notion of
“succession” is completely missing from both the text and the context of both the Declaration and
the Note. The same goes for the word or notion of “accession”. On the other hand, the assertion
that the FRY continued the personality of the former Yugoslavia is not only mentioned, it is
stressed, it is repeated, it is clearly the central message.
2.15. In the passage cited by the Court ¾ just as in the rest of the text of both the
Declaration and of the Note ¾ the FRY is advancing the claim of identity. It states that
membership of the former Yugoslavia in international organizations and treaties is directly
attributable to the FRY, since it continued the personality of the former Yugoslavia. The
Secretary-General, acting as depositary, has confirmed exactly the same meaning of the two
documents of 27 April 1992. He states in no uncertain terms ¾ and you may find the quotation in
tab 3, page 2 of the judges’ folder:
“Yugoslavia nevertheless advised the Secretary-General on 27 April 1992 that it
claimed to continue the international legal personality of the former Yugoslavia.
Yugoslavia accordingly claimed to be a member of those international organizations
of which the former Yugoslavia had been a member. It also claimed that all those
- 20 -
treaty acts that had been performed by the former Yugoslavia were directly
attributable to it, as being the same State . . .”
7
2.16. It is, thus, abundantly clear that both the Declaration and the Note were political
declarations stressing identity. Such assertion of identity led to the perception that the FRY had
remained a Member of the United Nations, and had remained a party to the Statute and to other
treaties. The assertion of identity (continued personality) confirms a perceived state of affairs,
rather than pretending to create commitments, rights and obligations. What was stated in the
Declaration and in the Note did not represent treaty action.
(b) The Declaration and the Note were unfit to constitute treaty action
2.17. I am coming now to the second reason. Even if the Declaration and the Note had a
different text and message, they would not be suitable by their form and nature to be relevant treaty
action. Why? Because they simply did not identify any treaty. No specific treaty was either
mentioned or referred to, and no list of relevant treaties was added or appended, either.
2.18. In order to bring about succession or accession, specific declarations and references to
specific treaties are needed, and this has clearly been confirmed by the Secretary-General, acting as
depositary of multilateral treaties. Taking a position on “general declarations of succession” in the
1999 Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties8
the
Secretary-General stresses ¾ and this can be found in tab 4 of the judges’ folder, on page 3,
towards the top, in paragraph 303 of the original text: “Frequently, newly independent States will
submit to the Secretary-General ‘general’ declarations of succession . . . The Secretary-General . . .
does not consider such a declaration as a valid instrument of succession to any of the treaties
deposited with him . . .”
9
. The Declaration of 27 April 1992 was certainly a general declaration, not
even a “general declaration of succession”, it was just a general policy declaration.
2.19. It has been added in the same 1999 Summary of Practice of the Secretary-General . . .
and I quote ¾ it is again in tab 4, page 3:

7
See Multilateral Treaties Deposited with the Secretary-General, Historical Information,
http://untreaty.un.org/ENGLISH/bible/englishinternetbible/historicalinf…; emphasis added.
8
1999 Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties,
UN Doc. ST/LEG/7/Rev.1.
9
Ibid., p. 90, para. 303; emphasis added.
- 21 -
“it has always been the position of the Secretary-General, in his capacity as
depositary, to record a succeeding State as a party to a given treaty solely on the basis
of a formal document similar to instruments of ratification, accession, etc., that is, a
notification emanating from the Head of State, the Head of Government or the
Minister for Foreign Affairs, which should specify the treaty or treaties by which the
State concerned recognizes itself to be bound”
10
.
The Declaration and the Note failed to specify any treaty or treaties, and they did not emanate from
authorities recognized as authorities competent to undertake treaty action under international law.
They did not, and could not, represent treaty action.
(c) Neither the Declaration nor the Note was perceived as a treaty action
2.20. I am now coming to the third reason. It is important, furthermore, that the Declaration
or the Note of 27 April 1992 have never been treated or perceived as a declaration of succession
or accession. They have never been circulated as a depositary notification, and have never been
referred to as such in the publication Multilateral Treaties. Instead, the way this issue was treated
by the various depositaries lends strong support to the proposition of continued personality.
2.21. At the time when the 1996 Judgment was rendered, “Yugoslavia” was listed by the
depositary as a contracting party to the Genocide Convention. In its Memorial of 15 April 1994
Bosnia and Herzegovina refers to this fact, positing it as evidence confirming that the FRY became
bound by the Convention together with other successor States, and stresses:
“It must be stressed in this respect that ‘Yugoslavia’ ¾ together with the other
successor States to the former S.F.R.Y. ¾ is listed as a State party to the 1948
Genocide Convention in the official United Nations publication entitled Multilateral
Treaties deposited with the Secretary-General; Status as at 31 December 1992.”11
2.22. Let us now take a closer look and see what this listing in the Multilateral Treaties
actually demonstrates. If you would kindly take a look at this document presented to you in the
judges’ folder ¾ it is tab 5 and it is on page 2 ¾ you see the list of participants and you can see
two vertical columns added to the list of participants. The first one indicates signatures; the
second column indicates dates of ratification, accession or succession, whichever the case was. In
this second column, if the date indicates ratification, no remark is added; accessions are ¾ as you
see on the top ¾ marked with a small “a”, while successions are marked with a small “d”. In the

10Ibid., p. 90, para. 304; emphasis added.
11Memorial of Bosnia and Herzegovina of 15 April 1994, para. 4.2.2.31.
- 22 -
case of Bosnia and Herzegovina the small “d” indicates, indeed, that this country, as argued by the
Respondent, became a Member State on 29 December 1992 by succession. However, contrary to
what was argued by Bosnia and Herzegovina, “Yugoslavia” is not treated at all as one of the
successor States. The listing refers to “Yugoslavia” ¾ it is on the next page ¾ without indicating
succession, but rather stating that the date of signature is 11 December 1948, and the date of
ratification 29 August 1950. Precisely the same was recorded in the Judgment as well.
2.23. It is clear that this document contemplates Bosnia and Herzegovina as a successor
State, which became a party to the Genocide Convention by way of succession in 1992. On the
other hand, the listing of “Yugoslavia” does not confirm, but rather contradicts, membership by
way of succession. This listing, stating that “Yugoslavia” became a party on 29 August 1950 by
ratification, obviously cannot refer to treaty succession of a State which only came into being on
27 April 1992. How could this designation be extended to the FRY? The only way such a listing
of “Yugoslavia” could be construed as a reference to the FRY would be by accepting as a fact that
the FRY continued the personality of the former Yugoslavia, in other words, that it is identical with
“Yugoslavia”, which became a party in 1950 by ratification.
2.24. This becomes even more evident if one takes a look at a case of dissolution, in which it
was generally accepted that one unit did continue the personality of the former country, while
others did not. This was the case with regard to the USSR. As you can see in tab 8, page 4 or
page 2 of the French text, Russia, continuing the personality of the former USSR, is listed as a
State party to the Genocide Convention since 3 May 1954 ¾ that is since the date on which the
Convention was ratified by the USSR. On the other hand, successor States which did not continue
the personality of the USSR are listed in accordance with their own treaty action. To take an
example, Kazakhstan ¾ as you can see in tab 8, on page 3 ¾ is listed as a contracting party since
26 August 1998, the date when Kazakhstan acceded to the Convention12
.
2.25. Let me repeat the key question with regard to the FRY. How could the listing of a
party indicated as “Yugoslavia”, which is bound by ratification since 1950, refer to the FRY which
only came into being in 1992? There is only one answer. This is to assume that the Federal

12See Multilateral Treaties Deposited with the Secretary-General, Part I, Chap. IV, available at:
http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapter….
- 23 -
Republic of Yugoslavia continued the personality of that “Yugoslavia” which was indicated as a
party since 1950. This was the perception endorsed by the depositary ¾ and this was the
perception relied upon in the Judgment of 11 July 1996.
2.26. Mr. President, Members of the Court, let me conclude that, within the scope of the
Judgment of 11 July 1996, the assumption of continued personality is the only possible ground
leading to the conclusion that the FRY was a party to the Genocide Convention prior to
11 July 1996. And this is, indeed, what the plain text of the Judgment says. The Court takes note,
in paragraph 17 of the Judgment, that the SFRY ¾ the former Yugoslavia ¾ “[s]igned the
Genocide Convention on 11 December 1948 and deposited its instrument of ratification without
reservation on 29 August 1950”. This treaty action of the former Yugoslavia only becomes
relevant for the FRY, if it is assumed that the FRY continued the status of the former Yugoslavia.
And this is exactly what follows in the text of the Judgment.
2.27. In the next sentence the Court takes note of the fact that the FRY adopted a Declaration
in which it states that “continuing the State, international legal and political personality of the
SFRY” it shall abide by the commitments which were assumed by the former Yugoslavia. The
following sentence in the Judgment makes reference to the Note stating that it confirmed the
intention of Yugoslavia “to remain bound” by treaties to which the former Yugoslavia was a party.
There is only one way in which the FRY could have remained bound by the Genocide Convention.
This is by continuing the personality and treaty membership of the former Yugoslavia.
2.28. The assumption of continued personality ¾ which was plausible, at least, at the time of
the Judgment ¾ was relied upon to establish that the FRY remained bound by the Genocide
Convention, and that the Court had jurisdiction over Yugoslavia. Other conceivable grounds on
which the FRY could have become bound by the Genocide Convention ¾ automatic succession,
notification of accession, or notification of succession ¾ were not relied upon, and could not have
been relied upon.
2.29. Thus, the Court based its jurisdiction on Article IX of the Genocide Convention, and
this conclusion was based on the finding that the FRY, continuing the personality of the former
Yugoslavia, remained bound by the Genocide Convention ratified by the former Yugoslavia in
1950. This is the finding we respectfully seek to lay open for revision.
- 24 -
2.30. Mr. President, Members of the Court, we would like now to turn our attention towards
another critical element of the 1996 Judgment. This is the issue of precondition to jurisdiction
under Article 35 of the Statute. We would like to demonstrate that the Judgment was based on the
assumption that the FRY was a party to the Statute ¾ and that this assumption was also reversed
by newly discovered facts. I would now like to ask you, Mr. President, to call upon my colleague,
Mr. Vladimir DjeriÁ, to elaborate this point. Thank you very much.
Le PRESIDENT : Je vous remercie, Monsieur l’agent. Je donne maintenant la parole à
M. Vladimir DjeriÁ.
Mr. DJERIC: Mr. President, Members of the Court. May it please the Court. At the
beginning I would like to say that it is a great honour for me to appear today for the first time
before this honourable Court. I shall deal with the issue of access of the Federal Republic of
Yugoslavia to the Court at the time of the 1996 Judgment.
B. Precondition to jurisdiction under Article 35 of the Statute
1. Introduction
2.31. As is well known, being a State party to the Statute of the Court is an essential
precondition to the jurisdiction of the Court set in Article 35, paragraph 1, of the Statute. Members
of the United Nations are automatically parties to the Statute, while other States may become
parties in accordance with Article 93, paragraph 2, of the United Nations Charter. Status of a party
to the Statute as a precondition for access to the Court can only be substituted under the terms of
Article 35, paragraph 2, of the Statute.
Thus, in order to establish the jurisdiction of this Court over the FRY, the 1996 Judgment
must have assumed, in the first place, that the FRY had access to the Court. In my presentation, I
shall demonstrate:
¾ that the 1996 Judgment was based on the assumption that the FRY had access to the Court
under Article 35, paragraph 1, of the Statute, as a Member of the United Nations and as such
ipso facto party to the Statute; and
- 25 -
¾ that the 1996 Judgment was not based and could not be based on the assumption that the FRY
had access to the Court on any other grounds.
2.32. I would like to emphasize that other possible bases for the FRY’s access to the Court,
save the one relied upon in the 1996 Judgment, should only be discussed once the Judgment has
been laid open for revision in accordance with Article 61 of the Statute. However, in response to
the claims of Bosnia and Herzegovina, I shall also demonstrate that other conceivable bases for
access of the FRY to the Court are not applicable in any case.
2. The 1996 Judgment was based on the assumption that the FRY had access to the Court
under Article 35, paragraph 1, as a Member of the United Nations and ipso facto party
to the Statute
2.33. Mr. President, Members of the Court, as already demonstrated, in order to base the
Court’s jurisdiction on Article IX of the Genocide Convention, the 1996 Judgment relied on the
pronouncements made by the FRY ¾ the Declaration and the Note of 27 April 1992 ¾ which
stressed the assumption of continuity and identity between the FRY and the former Yugoslavia.
But before establishing jurisdiction, an essential precondition was to be met ¾ that the FRY had
access to the Court. The reliance, in the 1996 Judgment, on the pronouncements of continuity
between the former Yugoslavia and the FRY, including continued membership in the United
Nations, necessarily implied that the Court was open to the FRY on the assumption that it was a
Member of the United Nations and as such ipso facto party to the Statute.
2.34. This is perfectly consistent with the fact that in the Yearbook of the Court of
1995-1996, as well as in all previous Yearbooks, “Yugoslavia” is listed within the first group of
States “entitled to appear before the Court.” This is the group consisting of Members of the United
Nations and Yugoslavia is listed as an “original member”13. As the Court noted in its decision on
jurisdiction in the Nicaragua case, official publications such as the Yearbook “attest a certain
interpretation . . . and the rejection of an opposite interpretation”14
.

13I.C.J. Yearbook 1995-1996, p. 66. See also Yearbook 1991-1992, p. 58, Yearbook 1992-1993, p. 59, Yearbook
1993-1994, p. 67, and Yearbook 1994-1995, p. 64.
14Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 409, para. 37.
- 26 -
2.35. Moreover, it is practically impossible to interpret the 1996 reference to “Yugoslavia”
as a reference to former Yugoslavia which ceased to exist in 1992, and could not possibly be
entitled to appear before the Court. The listing of “Yugoslavia” as an “original Member” makes,
however, perfect sense on the assumption that the personality of this original Member was
continued by a State which did exist in 1996, and that State is the FRY.
2.36. The 1996 Judgment did not seek and did not rely on any of the alternative bases for
access to the Court, which could have substituted the status of the FRY as a party to the Statute
ipso facto as a United Nations Member. Neither Article 93, paragraph 2, of the United Nations
Charter, nor Article 35, paragraph 2, of the Statute, were discussed or even mentioned in the
1996 Judgment.
2.37. Previously, in its Order of 8 April 1993 the Court considered that proceedings on
provisional measures may validly be instituted even if one of the parties was not a party to the
Statute, provided it was bound by “a special provision contained in a treaty in force” within the
meaning of Article 35, paragraph 2, of the Statute15
.
2.38. This reflection, however, was suggested while the Court was probing whether it had
jurisdiction or not with respect to provisional measures. In that regard, the test is whether there is a
provision which could conceivably, prima facie, provide a basis on which the jurisdiction might be
established16. The hurdle is not high and, clearly, the finding of prima facie jurisdiction can only
be tentative and of a limited weight. For that purpose, reference to Article 35, paragraph 2, of the
Statute and Article IX of the Genocide Convention appeared to be sufficient.
2.39. Moreover, and most importantly, the 1993 prima facie finding regarding provisional
measures was not confirmed in the 1996 Judgment on jurisdiction. In this Judgment, the Court did
not rely on Article 35 and contrary to what the Respondent is claiming17, the Court in 1996 did not
“ratify” its provisional position taken in 1993. Rather, it expressly relied on the FRY declarations

15Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional
Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 14, para. 19.
16Ibid., para. 14.
17Written Observations of 3 December 2001, para. 5.19.
- 27 -
stressing the assumption of its continuity with the former Yugoslavia ¾ including continued
membership in the United Nations18
.
2.40. In conclusion, Mr. President, the only basis for the FRY’s access to the Court on which
the 1996 Judgment could rely and on which the proceedings could have been validly instituted was
ipso facto membership to the Statute, on the grounds of continued personality and United Nations
membership of Yugoslavia.
3. Other conceivable bases for the FRY’s access to the Court are not applicable in any
case
2.41. Mr. President, Members of the Court, discussion of other conceivable bases for the
FRY’s access to the Court, save the one relied upon in the 1996 Judgment, does not belong to this
phase of the revision proceedings. Only for the purpose of refuting the claims of Bosnia and
Herzegovina, I shall now demonstrate that other conceivable bases for the FRY’s access to the
Court are in any case not applicable.
2.42. At the outset, the easiest issue is Article 93, paragraph 2, of the United Nations Charter,
because it is clear and it has not been contested that Article 93, paragraph 2, is inapplicable in the
present case.
Secondly, Bosnia and Herzegovina claims that the FRY could have appeared before this
Court on the basis of Article 35, paragraph 2, of the Statute.
(a) The FRY could not appear before the Court under Article 35, paragraph 2, of the
Statute because the FRY has never made a declaration pursuant to Security
Council resolution 9
2.43. According to this provision, a State non-party to the Statute may appear before the
Court under the conditions laid down by the Security Council. These conditions were determined
by Security Council resolution 9 (1946).
2.44. It is useful to recall, in this context, that treaties and agreements providing for the
jurisdiction of the Court only provide for the submission of disputes to the Court, and leave
particular issues of access and procedural equality to the United Nations Charter and the Statute of

18Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 610, para. 17.
- 28 -
the Court. This distinction was upheld by the Court in its Judgment on jurisdiction in the Fisheries
Jurisdiction case between Germany and Iceland:
“the former [i.e., the agreement between the Governments of Iceland and Germany] is
designed to establish the jurisdiction of the Court over a particular kind of dispute; the
latter [i.e., Germany’s declaration pursuant to Security Council resolution 9] provides
for access to the Court of States which are not parties to the Statute”19
.
2.45. Indeed, no State non-party to the Statute has ever come before the Court without
previously fulfilling conditions for access to the Court prescribed by the Security Council20. It is
clear and it is uncontested that the FRY has never made a declaration as required by Security
Council resolution 921
.
(b) The Court could also not have been opened to the FRY on ground of other
interpretations of Article 35, paragraph 2
2.46. However, Bosnia and Herzegovina relies on the phrase “subject to the special
provisions contained in treaties in force” from Article 35, paragraph 2, of the Statute, in order to
claim that a State non-party to the Statute, which has not submitted a declaration required by
Security Council resolution 9, may still come before the Court, even if it is a party to any treaty in
force providing for the jurisdiction of the Court. Accordingly, Bosnia and Herzegovina alleges that
the Genocide Convention is such a treaty in force and that the FRY was bound by the Genocide
Convention in 1996. Furthermore, Bosnia and Herzegovina alleges that the 1996 Judgment relied
on such an interpretation22
.
Mr. President, only if all of these allegations were substantiated could Article 35,
paragraph 2, be relevant in the present case. I shall demonstrate, however, that none of these
allegations can be substantiated.
2.47. In relation to the last contention of Bosnia and Herzegovina, I would just like to
reiterate what has been demonstrated ¾ under the 1996 Judgment, the FRY could have access to

19Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Jurisdiction of the Court, Judgment, I.C.J.
Reports 1973, p. 53, para. 11.
20See Corfu Channel (United Kingdom v. Albania) (1947-1949); Monetary Gold Removed from Rome in 1943
(Italy v. France, United Kingdom and United States) (1953-1954); North Sea Continental Shelf (Federal Republic of
Germany/Denmark; Federal Republic of Germany/Netherlands) (1967-1969); and Fisheries Jurisdiction (Federal
Republic of Germany v. Iceland) (1972-1974).
21Application of the FRY, paras. 25-27.
22Written Observations of 3 December 2001, paras. 5.2. et seq.
- 29 -
the Court only as an ipso facto party to the Statute, on the grounds of continued personality and
United Nations membership of Yugoslavia.
2.48. As regards other allegations made by the Respondent, I shall demonstrate:
¾ first, that the drafting history of Article 35, paragraph 2, clearly shows that the “treaties in
force” provision should be confined to the treaties that were in force at the time the Statute was
adopted;
¾ second, I shall demonstrate that regardless of how the “treaties in force” provision is to be
interpreted, all provisions of Article 35, paragraph 2, must be given effect, especially the
paramount principle of equality of the parties; and
¾ third, even if, quid non, a State non-party to the Statute could appear before the Court as a
party to any “treaty in force” containing jurisdictional provision, this still could not lead to
establishing the jurisdiction over the FRY, given the facts of the present case.
The phrase “treaties in force” in Article 35, paragraph 2, encompasses only the treaties that
were in force at the time the Statute was adopted
2.49. Mr. President, Members of the Court, starting with our first point, we submit that the
reference to “the special provisions contained in treaties in force” in Article 35, paragraph 2, should
be understood in the context of the preparatory work both of the Statute of the Permanent Court of
International Justice and of the Statute of this Court23
.
2.50. These words ¾ “subject to the special provisions contained in treaties in force” ¾
were specifically included in Article 35, paragraph 2, of the Statute of the Permanent Court in order
to open the Court to those States which were not parties to the Statute but were parties to the Peace
Treaties concluded after the First World War.
2.51. Initially, drafts of the Statute of the Permanent Court had envisaged two ways to come
before the Court:
¾ first, Members of the League of Nations would have access to the Court; and

23Application of the FRY, para. 30.
- 30 -
¾ second, States non-Members would have access to the Court under the conditions to be
determined by the Council of the League24
.
However, the Peace Treaties that had already been in force at that time had provided for the
jurisdiction of the future Court. Among parties to the Peace Treaties were, of course, also States
which were not Members of the League of Nations, such as Germany. Under the initial drafts these
States could not come before the Court, unless they became Members of the League or fulfilled the
conditions set by the Council of the League. However, the drafters of the Statute considered that
the Peace Treaties could not be modified, either by the Statute itself or by the Council of the
League. Therefore, they decided that conditions for access to the Court should be revised. In their
words: “[a]ccount shall be taken of Parties who may present themselves before the Court by virtue
of the Treaties of Peace”25. Consequently, the new draft included an important addition: the
conditions set by the Council for access to the Permanent Court of States non-Members of the
League were to be “subject to the special provisions contained in treaties in force”26
.
2.52. No further changes were made to this provision27. Therefore, it clearly follows from
the drafting history of the Statute of the Permanent Court, that only the Peace Treaties ¾ and no
other treaties ¾ were considered to fall under the expression “treaties in force” in Article 35,
paragraph 2.
2.53. The drafters of the Statute of this Court copied the structure and wording of Article 35,
paragraph 2, of the Statute of the Permanent Court, with some minor terminological corrections28
.
The intention and meaning of this provision remained the same. Had the drafters of the Statute
wished to change its meaning, they would have certainly used a different formula. But they did
not.

24See Draft Scheme for the Institution of the Permanent Court of International Justice etc., in League of Nations,
Documents concerning the Action Taken by the Council of the League of Nations under Article 14 of the Covenant and
the Adoption by the Assembly of the Statute of the Permanent Court (1921), at p. 54.
25Documents concerning the Action Taken by the Council of the League of Nations under Article 14 of the
Covenant and the Adoption by the Assembly of the Statute of the Permanent Court (1921), at p. 141.
26Ibid., at p. 144.
27Ibid., at p. 102.
28See United Nations Committee of Jurists, Report on Draft Statute of the International Court of Justice,
14 UNCIO 821, at p. 839.
- 31 -
2.54. Accordingly, the FRY submits, the “treaties in force” provision of Article 35,
paragraph 2, is confined only to the treaties which were in force at the time the Statute was
adopted. The Genocide Convention is clearly not such a treaty and cannot be a basis for access to
the Court under Article 35, paragraph 2.
If the phrase “treaties in force” means “treaties in force at the present moment”, quid non, its
interpretation must not preclude, but must ensure, the application of other provisions of
Article 35, paragraph 2, of the Statute
2.55. Mr. President, Members of the Court, even if one were to follow, quid non, the
interpretation proposed by Bosnia and Herzegovina that the phrase “treaties in force” could mean
“all treaties in force at the present moment”, Article 35, paragraph 2, would still have to be
interpreted in such a way so as to give effect to all of its provisions, including the paramount
principle of equality of the parties. This is a standard rule of interpretation.
2.56. I shall demonstrate that the interpretation advanced by Bosnia and Herzegovina is
contrary to this very rule. The interpretation of Bosnia and Herzegovina would mean that States
non-parties to the Statute could circumvent the requirements of the Charter and Article 35,
paragraph 2, of the Statute ¾ including the principle of equality of the parties ¾ and appear before
the Court by simply concluding treaties or special agreements. This is a danger that has been noted
by scholars a long time ago29
.
2.57. The principle of equality of the parties is considered to be a basic principle governing
the functioning of this Court30. Accordingly, the principle of equality must always be ensured,
including, of course, when conditions for access to the Court are determined. Moreover, this is
expressly required by Article 35, paragraph 2, in relation to States non-parties to the Statute.
2.58. I shall also demonstrate that the principle of equality of the parties contained in
Article 35, paragraph 2, necessitates that a State non-party to the Statute must, in each case,
undertake to observe certain basic conditions of equality.
2.59. Mr. President, in relation to States parties to the Statute, access to the Court is provided
by Article 35, paragraph 1. And in that context, first, with regard to Members of the United

29Manley O. Hudson, The Permanent Court of International Justice 1920-1942 (1943), p. 391.
30See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J. Reports 1986, pp. 25-26.
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Nations which are ipso facto parties to the Statute, the principle of equality of the parties is ensured
by their obligations under Article 94 of the Charter and under the Statute of the Court. Second, in
that context, with regard to States non-Members of the United Nations, the principle of equality is
ensured through the conditions for their membership in the Statute of the Court. In all cases,
consistent practice of the Security Council and the General Assembly under Article 93,
paragraph 2, of the Charter, has been to require from States non-Members of the United Nations
expressly to accept, inter alia:
¾ the provisions of the Statute, and
¾ all the obligations of a Member of the United Nations under Article 94 of the Charter ¾
including the obligation “to comply with the decision of the International Court of Justice in
any case to which it is a party”31
.
2.60. Mr. President, the issue of access to the Court of States non-parties to the Statute is
regulated by paragraph 2 of Article 35 of the Statute. Here, the principle of equality of the parties
is implemented by Security Council resolution 9 according to which States non-parties to the
Statute have to:
¾ accept the jurisdiction of the Court,
¾ comply with the decisions of the Court, and
¾ accept “all the obligations of a Member of the United Nations under [again] Article 94 of the
Charter”32
.
States non-Members of the United Nations which are not parties to the Statute have, indeed, given
such declarations33
.
2.61. Obviously, what has been required in order to safeguard the principle of equality of the
parties in the practice under Article 93, paragraph 2, of the Charter, is fully consistent with what
has been required in the practice under Article 35, paragraph 2, of the Statute. The bottom line is

31See SC resolution 11 (1946) and GA resolution 91 (I) (Switzerland); SC resolution 71 (1949) and GA
resolution 363 (IV) (Liechtenstein); SC resolution 102 (1953) and GA resolution 805 (VIII) (Japan); SC resolution 103
(1953) and GA resolution 806 (VIII) (San Marino); SC resolution 600 (1987) and GA resolution 42 (XXI) (Nauru).
32Security Council resolution 9 (1946), para. 1.
33Particular declarations were filed by Albania (1947) and Italy (1953), while general ones were filed by
Cambodia (1952), Ceylon (1952), the Federal Republic of Germany (1955, 1956, 1961, 1965, and 1971) Finland (1953
and 1954), Italy (1955), Japan (1951), Laos (1952), and Viet-Nam (1952).
See http://www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ibasicothersta….
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that, in order to have access to the Court, States non-Members of the United Nations must accept
all the obligations of United Nations Members under Article 94 of the Charter ¾ both when they
wish to become parties to the Statute, and when they appear before the Court under Article 35,
paragraph 2, of the Statute.
2.62. This practice is highly relevant for the interpretation of the “treaties in force” provision
of Article 35, paragraph 2. Even if one were to accept, quid non, the view of Bosnia and
Herzegovina that the said provision encompasses all treaties in force, the FRY submits that still, in
any case, the fundamental principle of equality of the parties must be safeguarded. In order to do
so, one simply has to follow what has been required in similar situations dealing with access to the
Court of States non-Members of the United Nations. This means that a State non-party to the
Statute which is a party to a treaty in force could appear before the Court only upon giving an
undertaking that it will accept Article 94 of the United Nations Charter and that it will comply with
the decisions of the Court in the case in question.
2.63. Such undertakings were indeed given by States non-parties to the Statute34
.
Particularly important is the example of the Federal Republic of Germany which filed a declaration
pursuant to Security Council resolution 9 (1946) after it had become a party to the Genocide
Convention35. The text of Germany’s declaration is reproduced in the judges’ folder at tab 6. This
declaration indicates that Germany, which was not a party to the Statute at that time, considered
Article IX of the Genocide Convention to be an insufficient vehicle for its access to the Court, and

34Thus, Finland filed declarations under Security Council resolution 9 in respect of any dispute that may be
referred to the Court under: (1) Agreement of 11 May 1953, between Finland and Norway relating to a Supplement to
the Convention of 3 February 1926, for the peaceful settlement of disputes; (2) Agreement of 9 April 1953, between
Finland and Sweden relating to a Supplement to the Convention of 29 January 1926, for the peaceful settlement of
disputes; (3) Agreement of 24 September 1953, between Finland and Denmark relating to a Supplement to the
Convention of 30 January 1926, for the peaceful settlement of disputes. See I.C.J. Yearbook 1953-1954, pp. 244-245.
Cambodia, Ceylon, Laos, Japan, and Vietnam filed declarations under Security Council resolution 9 in relation to
the Treaty of Peace with Japan of 1951, see I.C.J. Yearbook 1951-1952, pp. 213 (Japan & Ceylon) and 214 (Cambodia);
I.C.J. Yearbook 1952-1953, pp. 200 (Laos) and 201 (Vietnam).
Italy filed a declaration under Security Council resolution 9 “in respect of the disputes referred to under (b) of the
‘Statement to accompany publication of the Agreement between the Governments of the French Republic, the United
Kingdom of Great Britain and Northern Ireland and the United States of America . . .’ [of] 25 April 1951”, I.C.J.
Yearbook 1953-1954, pp. 246-246. Italy also filed a declaration under Security Council resolution 9 in relation to the
Treaty of Brussels of 17 May 1948, as amended, signed in 1955. See I.C.J. Yearbook 1954-1955, pp. 217-218.
The Federal Republic of Germany filed declarations under Security Council resolution 9 in respect of six
different treaties providing for the jurisdiction of the Court on 18 April 1955, 7 May 1956, 29 April 1961,
18 January 1965, 29 October, and 22 December 1971, respectively. See C.I.J. Annuaire 1971-1972, p. 44.
35I.C.J. Yearbook 1955-1956, p. 215.
- 34 -
that one more element was needed ¾ a declaration pursuant to Security Council resolution 9
(1946). This is why such a declaration was given and accepted.
2.64. Obviously, this example is directly relevant to the present case. I would like to repeat
that the FRY has never been asked to give such an undertaking nor has given one. As has been
demonstrated, its access to the Court was rather allowed on the assumption of its continued
membership in the United Nations.
Even under the most extensive reading of the “treaties in force” provision of Article 35,
paragraph 2, the Court could not be open to the FRY, considering the facts of the case
2.65. Finally, Mr. President, even under the erroneous interpretation proposed by Bosnia and
Herzegovina, the FRY could not appear before the Court on the basis of Article 35, paragraph 2, of
the Statute, given the facts of the present case. The question is not whether a treaty as such was in
force, but whether it bound the parties appearing before the Court. The FRY became a contracting
party to the Genocide Convention only on 10 June 2001, with an unequivocal reservation to
Article IX of the Convention. The FRY was not and is not bound by Article IX of the Genocide
Convention, and could not in any case come before the Court on the basis of that provision.
Mr. President, Members of the Court, let me now thank you for your attention. We could
perhaps have a break now and afterwards Professor Varady could continue our presentation.
Thank you.
Le PRÉSIDENT : Je vous remercie beaucoup Monsieur DjeriÁ. La Cour suspend son
audience pour une dizaine de minutes.
L’audience est suspendue de 11 h 20 à 11 h 30.
Le PRESIDENT : Veuillez vous asseoir. La séance est reprise, et je donne la parole à
M. l’agent pour la République fédérale de Yougoslavie.
- 35 -
Mr. VARADY : Je vous remercie, Monsieur le président.
C. Conclusion
2.66. Let me summarize, Mr. President, what has been said during the first part of our
presentation. Let me identify precisely what are the findings of the Court we seek to lay open for
revision:
I would like to reiterate that both the text and the context of the Judgment of 11 July 1996
lead us to the unequivocal conclusion that jurisdiction in personam over the FRY was based on the
assumption of continued personality and on documents asserting and showing such continued
personality. In other words, it was perceived as a fact that the FRY ¾ continuing the personality
of the former Yugoslavia ¾ remained bound by the Genocide Convention. It was also assumed
that the Court was open to the FRY, it being a party to the Statute. Other possible justifications
which could have conceivably replaced these assumptions were not relied upon and could not have
been relied upon.
2.67. I shall now further demonstrate that all requirements set by Article 61 of the Statute for
laying the case open for revision have been met. It will be demonstrated:
¾ that there are newly discovered facts;
¾ that these facts are of such a nature to be a decisive factor;
¾ that these facts were unknown to the Court and also to the party claiming revision;
¾ that such ignorance was not due to negligence;
¾ and that the six-month period set by Article 61 of the Statute was duly observed.
We shall also demonstrate that ¾ contrary to what Bosnia and Herzegovina is claiming ¾ the
FRY is not estopped from requesting revision on grounds of theories of estoppel, acquiescence or
mistake.
III. THERE ARE NEWLY DISCOVERED FACTS OF SUCH A NATURE TO BE A DECISIVE FACTOR
3.1. In the following part of my presentation I shall deal with the newly discovered facts, and
I would like to explain:
(A) which are the newly discovered facts;
(B) how they were revealed; and
- 36 -
(C) why they are a decisive factor.
A. The newly discovered facts
3.2. Mr. President, Members of the Court, as it was demonstrated, the 1996 Judgment held
that the Court had jurisdiction ratione personae over the FRY on grounds that the FRY remained a
party to the Statute ipso facto as a United Nations Member, and that it remained bound by
Article IX of the Genocide Convention continuing the personality of the former Yugoslavia.
No other ratio decidendi was espoused. Other purported justifications of this result were not
relied upon and were dismissed.
Now it is known as a fact:
¾ that at the time of the Judgment, the FRY was not a party to the Statute; and
¾ that the FRY did not remain bound by the Genocide Convention continuing the personality of
the former Yugoslavia.
These two facts are of such a nature to be a decisive factor.
B. How were these decisive facts revealed?
3.3. I am coming now to the question of how these decisive facts were revealed.
It has been known that the single most important test of the proposition of continued
personality was the issue of whether the FRY continued the membership of the former Yugoslavia
in the United Nations. This was the focal point of the debate on continuity. Only the acceptance of
the FRY as a new Member of the United Nations on 1 November 2000 revealed that the FRY did
not continue the personality, the United Nations membership and treaty membership of the former
Yugoslavia.
3.4. At the time of the Judgment of 11 July 1996 we had a different perspective.
Had it been known that the FRY did not continue the United Nations membership of the
former Yugoslavia, it would have also been clear that the FRY could not have been ipso facto a
party to the Statute. Furthermore, had it been established that the FRY did not continue the
personality of the former Yugoslavia, it would have also been clear that the FRY could not have
continued treaty membership of the former Yugoslavia ¾ and could not have remained bound by
the Genocide Convention.
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3.5. The acceptance of the FRY as a new member of the United Nations, and ipso facto as a
new party to the Statute, revealed as a fact that the FRY had not been a Member of the
United Nations, and had not been a party to the Statute before ¾ and this brought a new
perspective. Before, “Yugoslavia” was listed as an original Member of the United Nations since
1945; now, the FRY is listed as a Member of the United Nations and as a party to the Statute since
1 November 2000.
3.6. Following admission to the United Nations, the Legal Counsel invited the FRY on
8 December 2000 to decide whether or not to assume treaty obligations of the former Yugoslavia.
This letter is in tab 7 of the judges’ folder. (Unfortunately this item is only available in English.)
You can see on page 2 that the FRY was specifically invited: “[to] undertake treaty actions, as
appropriate, in relation to the treaties concerned, if its intention is to assume the relevant legal
rights and obligations as a successor State”.
3.7. Mr. President, the letter of the Legal Counsel included, as Annex A, a list of treaties
concluded by the former Yugoslavia before 27 April 1992 with respect to which the FRY needs to
undertake treaty action in order to become a party. In tab 7 you can find the Non Paper appended
to the letter of the Legal Counsel, and on page 6 it is indicated that: “Annex A provides a list of
treaty actions undertaken by the SFRY to which the FRY could succeed.”36
Further on, on page 11 of tab 7, you can see that this list included the Genocide
Convention37
.
Thereby it became clear that the FRY was not a party to this Convention before. In other
words, this letter revealed conclusively the fact that the FRY did not continue treaty membership of
the former Yugoslavia and that it had to undertake specific treaty action if it wanted to become a
party to treaties to which the former Yugoslavia was a party.
3.8. It should be noted that this was the first time that the FRY was invited by the depositary
to undertake treaty actions regarding the treaties to which the former Yugoslavia was a party. This

36Non Paper appended to the Letter of the Legal Counsel of 8 November 2000, reproduced in Ann. 27 of the
Application for Revision.
37Letter of the Legal Counsel of the United Nations addressed to the Minister for Foreign Affairs of the Federal
Republic of Yugoslavia, dated 8 December 2000. (Ann. 27 to the Application for Revision, tab 7 of the judges’ folders
includes the relevant pages of its Ann. I.)
- 38 -
step taken by the depositary set aside the assumption that the FRY continued (or may have
continued) treaty membership of the former Yugoslavia.
3.9. Mr. President, Members of the Court, responding to the appeal of the Legal Counsel, the
FRY undertook treaty actions, and submitted to the depositary appropriate notifications of
succession or accession. In particular, on 8 March 2001, the FRY sent a Notification of Accession
to the Genocide Convention, and it became a Contracting Party to the Genocide Convention by
accession on 10 June 2001 ¾ with a reservation to Article IX.
3.10. After it was invited by the Legal Counsel on 8 December 2000 to undertake treaty
actions (including treaty action with regard to the Genocide Convention), and after the FRY
responded to this invitation, the FRY is now listed by the depositary as a State party to the
Genocide Convention since 2001, rather than since 195038. May I turn your attention to tab 8 in the
judges’ folder, where you can see the present listing. Having drawn conclusions from the newly
established fact that the FRY did not continue the personality and treaty membership of the former
Yugoslavia, the depositary stopped listing “Yugoslavia” as a State party by ratification since 1950.
The last page (page 5) of the present listing shows “Yugoslavia” as a participant that became a
party on 12 March 2001 by accession.
3.11. After the FRY was accepted as a new Member of the United Nations on
1 November 2000, it became clear that the FRY could not have been a Member before, and could
not have continued the personality of the former Yugoslavia. Specifically, it could not have
remained a party to the Statute and it could not have remained bound by the Genocide Convention,
continuing, as claimed ¾ and as it is quoted in paragraph 17 of the Judgment ¾ “the State,
international legal and political personality of the Socialist Federal Republic of Yugoslavia”. The
letter of the Legal Counsel of 8 December 2000 made certain the discovery that the FRY did not
and could not have continued treaty membership of the former Yugoslavia.
Two decisive facts were thus revealed:
¾ first, at the time of the Judgment the FRY was not a party to the Statute, and

38Multilateral Treaties Deposited with the Secretary-General, Part I, Chap. IV, available at
http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapter….
- 39 -
¾ second, it did not remain bound by the Genocide Convention continuing the personality of the
former Yugoslavia.
C. Why are the newly discovered facts of a decisive nature
3.12. My next point is to explain why are the newly discovered facts of a decisive nature.
Mr. President, Members of the Court, it has been demonstrated that the 1996 Judgment held
that the Court was open to the FRY on the basis of the perceived fact that the FRY was a Member
of the United Nations (and ipso facto a party to the Statute). The Judgment also perceived as a fact
that the FRY continued the personality of the former Yugoslavia (and thus remained bound by
commitments assumed by the former Yugoslavia). Within the 1996 Judgment these were the only
assumptions leading to the conclusion that the Court was open to the FRY within the meaning of
Article 35 of the Statute, and that the FRY had remained a party to the Genocide Convention.
3.13. The fact that the FRY was not a party to the Statute (since it was not a Member of the
United Nations) is decisive because it shows that the Court could not have been open to the FRY at
the time of the Judgment. At least, the Court could not have been open to the FRY without relying
on Article 93, paragraph 2, of the United Nations Charter or on Article 35, paragraph 2, of the
Statute. These conceivable bases were, however, not relied upon; they were not even mentioned in
the Judgment. My colleague DjeriÁ has demonstrated that no alternative bases could have been
relied upon.
3.14. Furthermore, the fact that the FRY did not remain bound by the Genocide Convention
continuing the personality of the former Yugoslavia, is decisive. It is decisive because it shows
that jurisdiction ratione personae over the FRY could not have been based on Article IX of the
Genocide Convention. At least jurisdiction could not have been based on Article IX without
relying on some alternative justification ¾ such as treaty action or the proposition of automatic
succession. The Judgment did not rely on any alternative justification linking the FRY to
Article IX; it rather dismissed them. It is the considered position of the FRY that no substitute
ground existed or exists. But in any case, alternative justifications not relied upon in the Judgment
could only be discussed after the case has been laid open for revision.
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3.15. Mr. President, Members of the Court, the Respondent argues in its Written
Observations that “Yugoslavia’s readmission to the United Nations on 1 November 2000 does not
necessarily mean nor imply that it was not a Member before that date”39. If the 1 November 2000
admission were really a “readmission”, as qualified by the Respondent, then this could possibly
allow the conclusion that the FRY might have been a Member earlier as well. “Readmission”
would not have necessarily revealed as a fact that at the time of the Judgment the FRY was not a
party to the Statute by way of United Nations membership. But it is clear that this was no
readmission. “Readmission” would imply that the FRY was a Member of the United Nations, that
it somehow lost its membership, and was readmitted. This was obviously not the case. It is
beyond contention that the FRY did not apply for membership before 1 November 2000, and it was
not accepted as a Member before 1 November 2000.
3.16. The only real issue that gave rise to uncertainties and conflicting interpretations was
whether the FRY (which came into being in April 1992) did or did not continue the membership of
the former Yugoslavia. If it did, the end result of the debate could only have been the confirmation
of an existing membership, not readmission. If it did not, the end result of the debate would have
clarified that the FRY had not been a Member of the United Nations, and that it could only become
a Member through the regular procedure of admission of new Members, rather than by
readmission.
The Security Council decided to put the application of the FRY on the path of admission of
new Members. The FRY was accepted by acclamation as a new Member. This was no
readmission.
3.17. Let me reiterate. On 1 November 2000 the FRY was admitted to the United Nations as
a new Member. On 8 December 2000 the Legal Counsel called on the FRY to take treaty actions if
it wished to become a party to treaties to which the former Yugoslavia was a party. These events
have revealed the following two decisive facts:
¾ the FRY was not a party to the Statute at the time of the Judgment; and

39Written Observations of 3 December 2001, para. 4.6.
- 41 -
¾ the FRY did not remain bound by the Genocide Convention continuing the personality of the
former Yugoslavia.
3.18. The Judgment of 11 July 1996 had relied on the assumption that the FRY was a party
to the Statute by way of United Nations membership. The 1996 Judgment also relied on the
assumption that the FRY had remained bound by Article IX of the Genocide Convention
continuing the personality (and treaty membership) of the former Yugoslavia. These perceived
facts were of a fundamental importance within the Judgment, and, consequently, a refutation of
these perceived facts is also of a fundamental importance.
3.19. In other words, the facts that at the time of the Judgment the FRY
¾ was not a party to the Statute, and
¾ that it did not remain bound by the Genocide Convention continuing the personality of the
former Yugoslavia,
are newly discovered facts of such a nature as to be a decisive factor. These newly discovered
facts are prompting revision of the position taken in the Judgment regarding jurisdiction ratione
personae over the FRY.
IV. FACTS UNKNOWN TO THE COURT AND ALSO TO THE PARTY CLAIMING REVISION
4.1. I would like to turn now to the following condition set by Article 61 of the Statute, and I
shall demonstrate that the newly discovered facts were ¾ and I am quoting from the Statute:
“[w]hen the judgment was given, unknown to the Court, and also to the party claiming
revision . . .”.
4.2. Mr. President, Members of the Court, it has been argued, and it is well known that
Security Council resolution 777 stated that “the State formerly known as the Socialist Federal
Republic of Yugoslavia has ceased to exist”. It was stated furthermore that “the claim by the
Federal Republic of Yugoslavia (Serbia and Montenegro) to continue automatically the
membership of the former Socialist Federal Republic of Yugoslavia in the United Nations has not
been generally accepted”. It is also known that this was confirmed by General Assembly
resolution 47/1. It cannot be contested that one of the possible inferences from this contention was
- 42 -
to perceive as a fact that the FRY was not a party to the Statute, and that the FRY did not continue
the personality of the former Yugoslavia.
4.3. But this was not the only possible inference. The process of dissolution of the former
Yugoslavia was not a process following established patterns and yielding unequivocal inferences.
As a matter of fact, the FRY was the only part of the former Yugoslavia
¾ which endeavoured to continue the statehood of the former Yugoslavia,
¾ which did not issue a declaration of independence but issued instead a declaration of
continuity, and
¾ which kept the name “Yugoslavia”.
It was plausible to assume that the FRY continued the personality of the former Yugoslavia.
4.4. Furthermore, there were authoritative signals and contentions suggesting that the FRY
did continue the personality, United Nations membership and treaty membership of the former
Yugoslavia. It is well known that ¾ discussing General Assembly resolution 47/1 ¾ the
Under-Secretary-General and Legal Counsel stated in his letter of 29 September 1992 that, while in
accordance with the resolution the FRY can no longer participate in the work of the General
Assembly ¾ and you can follow the highlighted text in tab 9, on page 2 ¾ “the resolution neither
terminates nor suspends Yugoslavia’s membership in the Organization”40
.
4.5. Out of many other examples of such signals, which were already referred to in the
course of these proceedings, let us just recall that “Yugoslavia” was listed in the relevant
documents of the United Nations and of the Court as an original Member of the United Nations and
of the Statute. Since Security Council resolution 777 stated that the former Yugoslavia had ceased
to exist, it was difficult to understand continued reference to Yugoslavia as an original Member,
except through the assumption that the personality of the former Yugoslavia was continued by the
FRY. Furthermore, the United Nations sought membership dues from the FRY, and the FRY kept
paying membership dues to the United Nations. Thus, the FRY was counted as a Member State
under Article 17 of the Charter.

40Letter dated 29 September 1992 from the United Nations Under-Secretary-General, the Legal Counsel,
addressed to the Permanent Representatives of Bosnia and Herzegovina and Croatia to the United Nations, United
Nations Doc. A/47/485.
- 43 -
4.6. Various highly respectable and independent actors, including the Court and the
Secretary-General, have recognized that the situation triggered by the dissolution of the former
Yugoslavia yielded legal difficulties ¾ and took positions which certainly did not refute the
proposition that the FRY continued the personality of the former Yugoslavia.
4.7. The Respondent is contesting that the new facts stated were unknown to the Court and
also to the party claiming revision, and argues in its Written Observations41 that the debate about
Yugoslavia’s United Nations membership was well known, and that Yugoslavia was well aware of
this debate. This is, of course, common ground. The debate was known to the Court and to the
FRY. What was not known in 1996 and for some time later was the future outcome of this debate.
It was not known that the FRY did not continue “the State, international legal and political
personality” of the former Yugoslavia. As a matter of fact, at that time there were quite plausible
reasons allowing and leading the FRY to maintain its view.
4.8. As far as the Court is concerned, it is impossible to assert that it was known to the Court
that the FRY had not continued the personality of the former Yugoslavia, that the FRY was not a
Member of the United Nations, was not a party to the Statute, and had not remained bound by
treaties ratified by the former Yugoslavia.
4.9. The evidence with regard to the facts at issue (continuity or no continuity) was a matter
of public record, equally accessible to both the Court and to the parties. What was not brought
before the Court was Bosnia’s interpretation of this evidence.
What was presented to the Court by the parties was a rather straightforward situation. The
FRY maintained its view that it continued the personality of the former Yugoslavia. Had this
perception been challenged, the debate would have been brought before the Court. There was no
challenge. Dilemmas were not brought before the Court.
4.10. The FRY naturally did not articulate a challenge to continuity, because this was its own
perception asserted since its Declaration of 27 April 1992. The position taken by the FRY before
this Court, was perfectly consistent with steps taken and declarations made outside the proceedings.

41Written Observations of 3 December 2001, para. 3.7.
- 44 -
Bosnia and Herzegovina, on the other hand, emphatically opposed the proposition of
continued personality outside the Court, but failed to phrase this as an issue, and failed to challenge
this before the Court. Let me illustrate this.
4.11. In its Application of 20 March 1993 Bosnia and Herzegovina simply takes the position
that the FRY is a Member of the United Nations and is a party to the Statute. It is stated in
paragraph 88 of the Application under the title “Jurisdiction of the Court”: “As Members of the
United Nations Organization, the Republic of Bosnia and Herzegovina and Yugoslavia (Serbia and
Montenegro) are parties to the Statute which forms an integral part of the Charter.”
4.12. In the same vein, the Application of Bosnia and Herzegovina alleges in paragraph 135
that the FRY violated “its charter and treaty obligations under Article 2 (4) of the United Nations
Charter . . .”. This allegation obviously supposes that the FRY was a Member of the United
Nations, and was bound by its Charter.
4.13. Let me add that in its Memorial of 15 April 1994 this position is somewhat adapted,
but leads to the very same conclusion. Bosnia and Herzegovina now states that in its own opinion
the FRY has no right to continue the membership of the former Yugoslavia in the United Nations,
but hastens to add that continuity was nevertheless accepted by the international community.
4.14. The Respondent stressed: “On his part, the Secretary General has also kept on treating
Yugoslavia (Serbia and Montenegro) as a State Member.”42 In the following paragraph of its
Memorial the Respondent added: “While, in the opinion of Bosnia and Herzegovina, Yugoslavia
(Serbia and Montenegro) has no right to continued membership and should apply to membership
like all other successor States to the former S.F.R.Y., the international community has accepted
this situation.”
43
4.15. Mr. President, Members of the Court, it is understandable why Bosnia and
Herzegovina did not contest the underlying assumption of the Declaration of 27 April 1992, and
why it conceded that the international community accepted the situation. It is understandable
because an open challenge to the proposition that the FRY continued the personality of the former
Yugoslavia might have eliminated the path leading towards the establishment of jurisdiction.

42Memorial of Bosnia and Herzegovina of 15 April 1994, para. 4.2.3.16.
43Memorial of Bosnia and Herzegovina of 15 April 1994, para. 4.2.3.17; emphasis added.
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4.16. Let me summarize that since 1992, both within and outside the United Nations, there
was a difficult ongoing debate regarding the issue as to whether the FRY continued the
“international legal and political personality of the SFRY”. The focal point of this debate was the
issue of (continued) United Nations membership of the FRY. This debate did not yield a
conclusion before the Judgment was rendered (neither did it yield a conclusion for some time
thereafter). There were positions taken, there were signals coming from various authorities, but
these positions and these signals were not only inconclusive, they were actually contradictory.
Bosnia and Herzegovina contested the perception of the FRY before various authorities; however,
before the Court it opted not to challenge it, but rather embraced it.
At the time when the Judgment was given neither the Court nor the FRY knew or could have
taken as a fact that the FRY was not a party to the Statute and that the FRY did not remain bound
by the Genocide Convention continuing the personality of the former Yugoslavia.
Mr. President, Members of the Court, the next prerequisite set by Article 61 I would like to
deal with is the absence of negligence. But before addressing this question, the FRY would like to
address a contention of Bosnia and Herzegovina, which represents a preliminary issue. This is the
contention that beyond the specific prerequisites of absence of negligence set by the Statute, a
further condition ¾ not set by the Statute ¾ also needs to be satisfied. This alleged added
condition is the absence of estoppel. Bosnia and Herzegovina claims that ¾ irrespective of
whether there was negligence or not ¾ the FRY is allegedly barred from claiming that it had not
been a Member of the United Nations and had not been a party to the Genocide Convention. I
would like to ask you, Mr. President, to invite our counsel, Professor Andreas Zimmermann, who
will address this and related questions. Thank you very much.
Le PRESIDENT : Je vous remercie, Monsieur l’agent. Je donne maintenant la parole au
professeur Andreas Zimmermann.
Mr. ZIMMERMANN : Merci, Monsieur le Président.
V. ESTOPPEL AND RELATED ISSUES
A. Introduction
Mr. President, honourable Members of the Court, may it please the Court.
- 46 -
5.1. Since this is the first time I am addressing the International Court of Justice, let me first
express my feeling of gratitude and of honour to appear before you, the principal judicial organ of
the United Nations, and before you personally, honourable Members of the Bench.
B. Structure of my presentation
5.2. Mr. President, Members of the Court, in my part of the presentation I shall now
demonstrate ¾ contrary to the claims submitted by Bosnia and Herzegovina in its written
observations ¾ that
¾ first, declarations of the FRY which were solely and exclusively based on an assumed identity
of the FRY with the former Yugoslavia cannot create commitments based on a contrary
assumption;
¾ second, that the FRY is neither barred from claiming that it had not been a Member of the
United Nations and that it had not been a party to the Genocide Convention due to concepts of
acquiescence, estoppel or because its original position later proved to be wrong;
¾ finally, I will demonstrate that it is Bosnia and Herzegovina which is estopped from arguing
that the Court’s jurisdiction could be based on the idea of identity or on the declaration issued
by the FRY on 27 April 1992.
5.3. Let me now first address the argument brought forward by Bosnia and Herzegovina that
the FRY should be considered bound by Article IX of the Genocide Convention on the basis of its
own prior declaration.
C. Declarations which were solely based on an assumption of continued personality cannot
create commitments for the FRY as to Article IX of the Genocide Convention
5.4. In that regard, I will first demonstrate ¾ contrary to Bosnia and Herzegovina’s
allegations44 ¾ that prior declarations which were exclusively based on an assumption of
continued personality cannot create commitments for the FRY as to Article IX of the Genocide
Convention.

44Written Observations of 3 December 2001, paras. 4.9. et seq.
- 47 -
5.5. While it is first true ¾ as indeed stated by Bosnia and Herzegovina45 ¾ that the FRY is
by now a Member of the United Nations and a contracting party to the Genocide Convention, the
FRY is not subject to the jurisdiction of this honourable Court with regard to the Genocide
Convention, given that it has entered a valid reservation with regard to Article IX of said
Convention when it acceded to the Convention.
5.6. It is obviously also true, as argued by Bosnia and Herzegovina46, that the Court could in
1996 only decide in line with the then prevailing situation which included the declarations made by
the FRY. Those declarations were however ¾ as is admitted by Bosnia and Herzegovina itself ¾
firmly based on the idea of continued personality47
.
5.7. Indeed it may not be argued that a declaration based on a bona fide claim of continued
personality should be characterized as something different, i.e., a notification of succession. In that
regard it is quite telling what counsel for Bosnia and Herzegovina argued before this Court
concerning a possible reinterpretation of a notification of succession as a notification of
accession ¾ and I quote from the statement made on behalf of Bosnia and Herzegovina in 1996 to
be found in tab No. 10 of the judges’ folder, and I would kindly request you to have a look at it.
Counsel for Bosnia and Herzegovina stated: “On ne voit pas pourquoi la notification de
succession, acte qualifié comme tel par un État souverain, devrait être considérée comme une
notification d’adhésion.”
48
5.8. Thus, Bosnia and Herzegovina itself submitted that one may not second-guess the intent
of a State and turn a notification of succession into an act of accession. Similarly, one should then
not treat a declaration ¾ clearly based on the notion of identity and characterized as such by a
sovereign State ¾ as a notification of succession against the will of the State making this
declaration.

45Ibid., para. 4.10.
46Ibid.
47See Written Observations of 3 December 2001, e.g. para. 2.9.
48Pleading of Prof. Brigitte Stern, counsel for Bosnia and Herzegovina, case concerning the Application of the
Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, CR 1996/9, pp. 32-33;
emphasis added.
- 48 -
5.9. Accordingly, the FRY is not bound by its prior declaration, said declaration being
exclusively based on the notion of continued personality. This is even more true since it had been
unknown ¾ as demonstrated by my learned friend ¾ to both, the FRY and the Court itself, that the
FRY was
¾ not identical with the former Yugoslavia;
¾ accordingly not a Member of the United Nations;
¾ nor a Party to the Statute of the Court;
¾ nor a contracting party to the Genocide Convention.
5.10. Therefore the 1996 Judgment was based on facts of a decisive nature which later
proved not to be correct ones and which accordingly must now give rise to a revision of the
1996 Judgment.
5.11. In a next step I will now demonstrate that the FRY is not barred from requesting
revision due to concepts of estoppel, acquiescence or because its original position later proved to be
wrong.
D. The FRY is neither barred from claiming that it had not been a Member of the United
Nations and a party to the Genocide Convention due to concepts of estoppel, acquiescence
or because its original position later proved to be wrong
5.12. Mr. President, Members of the Court, contrary to the position taken by Bosnia and
Herzegovina, Article 61 of the Court’s Statute does not leave room for applying general concepts
of international law such as acquiescence or estoppel with regard to the party claiming revision.
Neither is there room for arguing that the FRY is barred from claiming that it had not been a
Member of the United Nations nor a party to the Genocide Convention because its position later
proved to be wrong. This is due to the fact that Article 61 of the Court’s Statute contains an
exhaustive description of the requirements which the application for revision must meet, and
thereby at the same time precludes the applicability of general principles of international law.
1. Article 61 of the Court’s Statute contains an exhaustive description of the requirements
for revision and precludes the applicability of related general principles of
international law
5.13. Once the conditions of Article 61 ¾ i.e., ignorance of new facts not due to
negligence ¾ are fulfilled, as they are in our case, other closely-related and even overlapping rules
- 49 -
of general international law relating to acquiescence, estoppel or mistake may not hinder a party in
a case before the Court to request revision.
5.14. This is due to the fact that Article 61 of the Statute positively and exhaustively
prescribes the conditions under which a party in a given case may request a revision of a judgment.
Article 61 thereby serves as a procedural lex specialis to the principles of estoppel and
acquiescence. It also excludes ¾ contrary to the observations of Bosnia and Herzegovina ¾ the
possibility to rely on general principles relating to the issue of mistake.
5.15. Accordingly there is no room for applying general rules of international law since
applying such general concepts would in turn contradict the result positively prescribed by the
Court’s Statute itself.
5.16. This characterization of Article 61 of the Court’s Statute as a procedural lex specialis
vis-à-vis the general principles of acquiescence, estoppel and mistake is the only possible one,
since the specific requirement in Article 61 that the party requesting revision was not ignorant due
to its own negligence in itself identifies a specific situation of venire contra factum proprium non
valet. This in turn is however the general legal principle Bosnia and Herzegovina attempts to rely
on49
.
5.17. In addition, the negligence standard deliberately chosen by the drafters of Article 61
would be rendered meaningless if ¾ as is claimed by Bosnia and Herzegovina ¾ every mistake,
even if not due to negligence, would exclude revision.
5.18. Accordingly, applying general principles such as acquiescence, estoppel, or the notion
of mistake ¾ alongside the already narrow requirements of Article 61 ¾ would lead to results
which are contrary to the very concept of revision and specifically contrary to Article 61 of this
Court’s Statute. This is due to the fact that otherwise an application for revision ¾ even where the
ignorance of the new fact by the requesting party was not due to negligence ¾ could still be
inadmissible.
5.19. This line of argument is supported by the approach followed by this Court when it
decided upon the Tunisian request for revision and interpretation of the Judgment of

49See Written Observations of 3 December 2001, para. 4.7.
- 50 -
24 February 1982 in the case concerning the Continental Shelf. In that case ¾ as is well known ¾
the question arose whether the party claiming revision, that is Tunisia, had been in possession of
information concerning the boundaries of a concession granted by Libya.
5.20. What is important is that in its decision the Court addressed the issue exclusively from
the angle whether Tunisia had exercised normal diligence in trying to gather the relevant
information, that is whether Tunisia had been negligent or not50
.
5.21. And even more importantly, it is worth noting that the Court did not perceive the issue
as being one of estoppel despite the fact that Tunisia had in the past ¾ while contesting the
concession as such ¾ not sought more specific information about its limits51
.
5.22. Thus, whenever a request for revision is made, triggering the application of Article 61,
no room is left for the application of general principles of international law such as acquiescence,
estoppel or mistake.
5.23. The FRY is however also ready to demonstrate at a later stage, that ¾ should one
consider that such general principles may come into play in revision proceedings regardless of the
detailed requirements of Article 61 quid non ¾ the necessary prerequisites of estoppel or
acquiescence are not fulfilled in our case.
5.24. Bosnia and Herzegovina also attempts to rely on the behaviour of the FRY in other
cases currently pending before this Court where the FRY is the Applicant and argues that the FRY
should accordingly be estopped from requesting revision in this case. Bosnia and Herzegovina
may however not rely on the behaviour of the FRY in other cases before this Court.
2. Bosnia and Herzegovina may not rely on the behaviour of the FRY in other cases
before this Court
5.25. Mr. President, honourable Members of the Court. First, an essential condition for
applying the principle of estoppel is ¾ as was indeed stated by a Chamber of this Court in the
Land, Island and Maritime Frontier Dispute case ¾ and I refer to a quotation you may find in

50Case concerning Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case
concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment,
I.C.J. Reports 1985, pp. 205–206, paras. 23–28.
51Ibid., paras. 24 and 27.
- 51 -
tab 11 of the judges’ folder: “a statement or representation [is] made by one party to another and
reliance upon it by that other party to his detriment or to the advantage of the party making it”
52
.
5.26. Thus, since the parties in the various cases concerning Legality of Use of Force are not
identical to the Parties in this case, in our case, any action taken by the FRY in the past before this
Court against certain member States of the North Atlantic Treaty Organization cannot be relevant
for the purposes of this Application for Revision in the case between Bosnia and Herzegovina on
the one side and the FRY on the other.
5.27. Secondly, even if one was to consider such action undertaken by the FRY vis-à-vis
third States to be relevant, it has to be noted that any such action undertaken by the FRY in those
other cases was again based on the idea of identity and thus can no longer be held against the FRY
after the new facts underlying this Application for Revision became known.
5.28. The FRY is thus not estopped from requesting revision based on its behaviour in other
cases currently pending before this honourable Court.
5.29. Bosnia and Herzegovina further argues ¾ in trying to rely on the jurisprudence of this
Court in the Temple of Preah Vihear case ¾ that the FRY made a mistake in claiming identity with
the former Yugoslavia and that therefore its request for revision should for that reason alone not be
entertained53. Such attempt must however be similarly refuted.
3. The FRY is not barred from requesting revision because its original position later
proved to be wrong
5.30. In that regard it has to be first reiterated that the whole concept of “mistake” as put
forward by Bosnia and Herzegovina is per se not applicable in revision proceedings under
Article 61 of the Court’s Statute since otherwise Article 61 of the Statute would be meaningless.
This is due to the fact that said provision, Article 61 itself presupposes that both, the party claiming
revision and the Court itself, were not aware of the existence of a decisive fact which was unknown
to both of them at the time the original decision was rendered. Thus, Article 61 itself presupposes

52Case concerning Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras), Application to
Intervene, Judgment of 13 September 1990, I.C.J. Reports 1990, p. 118.
53Written Observations of 3 December 2001, paras. 4.11.–4.13.
- 52 -
the very existence of an error. Accordingly the existence of any such error cannot bar a party from
requesting revision.
5.31. In addition, applying the avoidability standard proposed by Bosnia and Herzegovina
would also run counter to the more specific negligence standard as contained in Article 61 of the
Court’s Statute. Indeed, if one was to follow arguendo the approach suggested by Bosnia and
Herzegovina, even a State like the FRY which had indeed exercised due diligence and had not
acted negligently could still be barred from requesting revision and thereby reach a result contrary
to both the object and the purpose of Article 61 itself.
5.32. Furthermore, the Court acknowledged in the Temple of Preah Vihear case that ¾ even
where a State had submitted itself to the jurisdiction of the Court ¾ such submission may still be
nullified by some defect. The FRY has however not even accepted the jurisdiction of this
honourable Court. But even if one was to agree arguendo that it did, it is still important to note that
the Court had stated in the Temple of Preah Vihear case that such submission to the Court’s
jurisdiction would be null and void where it can be demonstrated that ¾ and I may again kindly
refer you to tab 12 in the judges’ folder ¾ “this defect was so fundamental that it vitiated the
instrument by failing to conform to some mandatory legal requirement”54
.
5.33. In that case, the Court then continued that such defects are indeed relevant and make
the submission invalid where they “affect . . . the substance of the matter”55 and where the
respective instrument by which the State under consideration is trying to submit itself to the
jurisdiction of the Court runs counter to some mandatory requirement of law56
.
5.34. Mr. President, Members of the Court, there can be no doubt that such a situation clearly
exists with regard to the FRY given that the most basic preconditions for the exercise of
jurisdiction ratione personae were lacking vis-à-vis the FRY, since at the time when the case was
brought by Bosnia and Herzegovina, the FRY, as we know now,
¾ first, had not been a Member of the United Nations;
¾ second, accordingly had not been a party to the Statute of this Court; and

54Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Preliminary Objections, Judgment of
26 May 1961, I.C.J. Reports 1961, p. 34.
55Ibid.
56See ibid.
- 53 -
¾ third, had neither been a contracting party to the Genocide Convention.
5.35. Accordingly the most mandatory legal preconditions for the exercise of the Court’s
jurisdiction vis-à-vis the FRY as contained in Article 93 of the Charter of the United Nations and in
Article 35 of the Court’s Statute were objectively missing. It is indeed hard to imagine ¾ as is
claimed by Bosnia and Herzegovina ¾ that a State could by simply making a mistake circumvent
the most basic preconditions of the Charter of the United Nations and the Statute with regard to the
exercise of the Court’s jurisdiction.
5.36. I will now come to my last point and demonstrate that it is Bosnia and Herzegovina
itself which is estopped from arguing that the Court’s jurisdiction could be based on
¾ either the idea of continued personality
¾ or on the declaration issued by the FRY on 27 April 1992.
E. Bosnia and Herzegovina is estopped from arguing that the Court’s jurisdiction could be
based on the idea of continued personality or on the Declaration by the FRY of
27 April 1992
5.37. In its written observations Bosnia and Herzegovina argues that the FRY had stated that
it considered itself a Member of the United Nations and a party to the Genocide Convention and
that it would by now be precluded to change its position retroactively57 ¾ an argument that I have
already addressed.
5.38. It has to be noted, however, that ¾ quite to the contrary ¾ Bosnia and Herzegovina
itself is estopped from now claiming ¾ as it does during the current proceedings ¾ that the
jurisdiction of the Court can be based on either the idea of identity or on the Declaration issued by
the FRY of 27 April 1992.
5.39. Bosnia and Herzegovina has in the past consistently (and indeed successfully) opposed
the claim of the FRY to be identical with the former Yugoslavia. It is largely due to that position
taken by the other successor States of the former Yugoslavia ¾ and namely Bosnia and
Herzegovina itself ¾ that the original claim of the FRY to be identical with the former Yugoslavia
failed to gain acceptance by the international community.

57Written Observations of 3 December 2001, para. 4.36.
- 54 -
5.40. In addition, Bosnia and Herzegovina has similarly also denied on various occasions in
the past that the Declaration by the FRY of 27 April 1992 could amount to or be understood as a
declaration of succession58. Bosnia and Herzegovina has thus over time acted inconsistently.
5.41. Furthermore, the behaviour and approach of Bosnia and Herzegovina was also
inconsistent in yet another way. For purposes of these proceedings and in order not to put into
question the jurisdiction of the Court vis-à-vis the FRY, it accepted that the FRY was identical with
the former Yugoslavia. Yet ¾ as mentioned ¾ outside this courtroom, Bosnia and Herzegovina
always argued that the FRY cannot continue the international legal personality of the former
Yugoslavia. Thus Bosnia and Herzegovina again blew hot and cold.
5.42. Bosnia and Herzegovina has thereby caused a detriment to the FRY, i.e., has prevented
the FRY for years from participating in the work of certain United Nations organs and from
attending meetings of contracting parties of various human rights treaties59
.
5.43. Moreover, accepting the claim by Bosnia and Herzegovina that the FRY had remained
a Member of the United Nations and had also remained bound by the treaty commitments of the
former Yugoslavia brought forward for purposes of these proceedings ¾ and contrary to its own
prior position taken outside the Court ¾ would provide Bosnia and Herzegovina with even a
further advantage and cause once more detriment to the FRY.
5.44. Accordingly, Bosnia and Herzegovina itself is estopped from now arguing that the
Court’s jurisdiction could be based on either the idea of identity or on the assumption that the
Declaration of 27 April 1992 could be considered a declaration of succession ¾ quid non.
F. Summary of argument
5.45. Mr. President, honourable Members of the Court, before concluding my argument let
me briefly summarize the main points I made:
¾ first, I have demonstrated that prior declarations which were solely based on an assumption of
continued personality cannot create commitments for the FRY as to Article IX of the Genocide
Convention;

58Application for revision, paras. 10 et seq.
59See Application for Revision, paras. 10 et seq.
- 55 -
¾ second, the FRY is not barred from requesting revision due to concepts of acquiescence,
estoppel or mistake;
¾ finally, it is Bosnia and Herzegovina which in turn is estopped from arguing that the Court’s
jurisdiction could now be based on either the idea of identity or on the Declaration of
27 April 1992.
5.46. Mr. President, Members of the Court, let me thank you for your kind attention and may
I now kindly ask you, Mr. President, to call upon my colleague, Professor Varady to continue the
argument of the FRY.
Le PRESIDENT : Je vous remercie, Monsieur le professeur. Je donne maintenant la parole à
M. le professeur Varady, agent de la République fédérale de Yougoslavie.
Mr. VARADY : Je vous remercie, Monsieur le président.
VI. THE ISSUE OF NEGLIGENCE
6.1. It has been demonstrated so far that in the 1996 Judgment, jurisdiction over the FRY
was based on the perceived facts that the FRY was a party to the Statute, and that it had remained
bound by the Genocide Convention, continuing the personality of the former Yugoslavia.
It has further been demonstrated that the 1 November 2000 acceptance of the FRY to the
United Nations as a new Member and the letter of the Legal Counsel of 8 December 2000 revealed
that the FRY was not a party to the Statute at the time of the Judgment, and that the FRY did not
remain bound by the Genocide Convention.
We have also shown that, at the time of the Judgment, the true facts were not known by
either the Applicant or by the Court.
My colleague, Professor Zimmermann, demonstrated that the specific standard of diligence
and fair dealing set by Article 61 with regard to the party claiming revision is that of the absence of
negligence. The general procedural standard of estoppel does not apply. Even if it were
applicable, its requirements were not met with regard to the FRY.
6.2. With that in mind, let me turn now to the issue of negligence.
One of the conditions for laying the case open for revision is that ignorance of the critical
fact was not due to negligence of the party claiming revision. I shall demonstrate that this
- 56 -
condition was, indeed, met. I shall deal first with two preliminary questions: what is the relevant
moment in time, and what is the appropriate standard of negligence.
A. The relevant moment in time and the appropriate standard of negligence
1. The relevant moment in time
6.3. The first preliminary question which arises concerns the relevant moment in time for
assessing whether there was negligence. Article 61 of the Statute, setting specific procedural
standards, provides an answer to this question. It states that the newly discovered fact which is a
decisive factor, has to be unknown (to the Court and to the party claiming revision) “when the
Judgment was given” (emphasis added) ¾ and now I quote again, “always provided that such
ignorance was not due to negligence”. In other words, the relevant moment in time is the time
“when the Judgment was given”. It follows that “such ignorance”, that is, ignorance of the fact at
the time when the Judgment was given, should not be due to negligence.
6.4. This is also logical because the relevant state of affairs for an application of revision is
the state of affairs at the time when the Judgment was given. The FRY will demonstrate that it was
not due to negligence that it failed to perceive as a fact that the FRY did not remain a party to the
Statute and a party to treaties ratified by the former Yugoslavia. There was no negligence prior to
the Judgment. It is the position of the FRY that under Article 61 of the Statute the period after the
Judgment was rendered is not relevant; but even if the Court were to take a different position, quid
non, the result would be the same, because there was no negligence at a later moment either.
2. The appropriate standard of negligence
6.5. Mr. President, Members of the Court, the second preliminary issue is that of the
applicable standard of negligence. This standard was set in the only case prior to this one dealing
with an application for revision. In the Tunisia v. Libya case, what represented the critical fact
were the boundary co-ordinates of a concession. Approaching the issue as to whether ignorance of
the pertinent facts was or was not due to negligence, the Court set the following standard ¾ and
you may follow this in tab 13 of the judges’ folder starting at the bottom of page 4:
“the fact that the concession boundary co-ordinates were obtainable by Tunisia, and
the fact that it was in its own interests to ascertain them, together signify that one of
the essential conditions of admissibility of a request for revision laid down in
- 57 -
paragraph 1 of Article 61 of the Statute, namely ignorance of a new fact not due to
negligence, is lacking”60
.
It follows that negligence can only be established if two factors combined together yield this result.
These factors are:
¾ that the newly discovered facts were obtainable (at the time of the Judgment); and
¾ that it was in the applicant’s own interest to ascertain them.
6.6. Neither of these two conditions was met in our case, let alone their combination. The
fact that the FRY did not continue the personality and treaty obligations of the former Yugoslavia
was not obtainable at the time of the Judgment. Furthermore, it was certainly not in the FRY’s
“own interest” to bring about clarification in the direction opposite to the principles it espoused.
B. No negligence when the Judgment was rendered
1. The pertinent facts were not obtainable
6.7. Having identified the standard, I would like now to further explain that there was no
negligence when the Judgment was rendered. Addressing the issue of negligence in its Written
Observations, the Respondent argues that what we have had in this case is a simple change of
position by the FRY.
The Respondent also argues that the FRY should have applied for United Nations
membership, and that it was negligent for not doing so before 2000, since Security Council
resolution 777 (and General Assembly resolution 47/1) contemplated already in September 1992
that the FRY should apply for membership in the United Nations.
6.8. Mr. President, Members of the Court, let me first stress that Yugoslavia’s position, or
“change of position”, cannot be equated with the relevant facts. Whether the FRY was or was not
in fact a party to the Statute, whether it did or did not continue the personality and treaty
membership of the former Yugoslavia, were not facts simply determined by the position of the
FRY. Had they been, the FRY would have obviously remained a Member of the United Nations
with full rights.

60Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment,
I.C.J. Reports 1985, p. 207, para. 28; emphasis added.
- 58 -
6.9. Moreover, the fact that the FRY was not a party to the Statute by way of United Nations
membership, and that the FRY did not remain a party to treaties continuing the personality of the
former Yugoslavia, were not obtainable.
The response of the United Nations and of other international actors to the intricacies of the
dissolution of Yugoslavia was neither clear nor unequivocal, and did not yield readily obtainable
facts. Had it really been clear and visible and easily ascertainable that the FRY was not a Member
of the United Nations, and that it did not continue the international legal personality of the former
Yugoslavia, this would have certainly not remained outside the scope of considerations in the
Judgment, all arguments being a matter of public record.
6.10. Let me mention here that the Respondent itself does not contest that the situation was
unclear. In its Written Observationsthe Respondent itself points out that during the meeting of the
General Assembly of 22 September 1992, which lead to the adoption of resolution 47/1 “no clarity
was given by any State nor obtained ¾ although requested ¾ by any State about the precise legal
status of Yugoslavia vis-à-vis its membership of the United Nations”61. Moreover, as we stated
earlier, in its Memorial62 Bosnia and Herzegovina even asserted that the Secretary-General kept
treating the FRY as a Member State of the United Nations, and that “the international community
has accepted this situation”.
6.11. Mr. President, it is beyond contention that Security Council resolution 777 does say
that “the claim by the Federal Republic of Yugoslavia (Serbia and Montenegro) to continue
automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United
Nations has not been generally accepted”. It is also beyond contention that General Assembly
resolution 47/1 did contemplate that the FRY should apply for membership in the United Nations.
This was stated and repeated.
6.12. But it was also stated and repeated that in his letter of 29 September 1992, explaining
the effects of General Assembly resolution 47/1, the Legal Counsel stressed that ¾ and you can
follow this again in tab 9 on page 2: “the resolution neither terminates nor suspends Yugoslavia’s
membership in the Organization”. The Legal Counsel added ¾ and this is again in tab 9, starting

61Written Observations of 3 December 2001, para. 2.3.
62Memorial of Bosnia and Herzegovina of 15 April 1994, paras. 4.2.2.16 and 4.2.3.17.
- 59 -
on the bottom of page 2 of the English text, (and it is on page 3 of the French text): “The
resolution does not take away the right of Yugoslavia to participate in the work of organs other
than Assembly bodies.”63
6.13. Mr. President, Members of the Court, let us now see how the depositary has explained
and characterized the ensuing situation. In the present revised version of the publication
“Multilateral Treaties Deposited with the Secretary-General”, in the section “Historical
Information”, it is now made clear that resolution 47/1 did not settle the issue as to whether the
FRY did or did not continue the personality and treaty membership of the former Yugoslavia. It
has also been made clear that it was not the FRY who should have or could have established the
true facts. Let me quote the explanation given by the Secretary-General; you may find this in the
judges’ folder at tab 3, page 3:
“General Assembly resolution 47/1 did not specifically address the question of
the status of either the former Yugoslavia or of Yugoslavia with regard to multilateral
treaties that were deposited with the Secretary-General. The Legal Counsel took the
view in this regard that the Secretary-General was not in a position, as depositary,
either to reject or to disregard the claim of Yugoslavia that it continued the legal
personality of the former Yugoslavia, absent any decision to the contrary either by a
competent organ of the United Nations directing him in the exercise of his depositary
functions, or by a competent treaty organ created by a treaty, or by the contracting
States to a treaty directing him in the exercise of his depositary functions with regard
to that particular treaty, or by a competent organ representative of the international
community of States as a whole on the general issue of continuity and discontinuity of
statehood to which the claim of Yugoslavia gave rise.”64
6.14. One cannot be more convincing than this. The fact that the FRY did not continue the
personality of the former Yugoslavia was simply not obtainable. Moreover, let me note that the
actors from whom clarification was expected by the Secretary-General are:
¾ a competent organ of the United Nations, or
¾ a competent treaty organ created by treaty, or
¾ contracting States, or
¾ a competent organ representative of the international community of States.
Not the FRY.

63See Letter of the Legal Counsel of 29 September 1992 ¾ UN Doc. A/47/485.
64See Multilateral Treaties Deposited with the Secretary-General, Historical Information, at:
http://untreaty.un.org/ENGLISH/bible/englishinternetbible/historicalinf….
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There were authorities which could have established whether the FRY did or did not
continue treaty membership of the former Yugoslavia. They failed to do so. The answer was not
obtainable.
2. Standards of diligence do not require fact finding by way of seeking admission to the
United Nations
6.15. The question was also raised as to whether standards of diligence required the FRY to
establish the facts by way of applying for United Nations membership.
Mr. President, Members of the Court, let me repeat that the FRY was not in control of the
decision as to whether it was or was not a Member of the United Nations and a party to the Statute.
Clarification was not up to the FRY. Taking a clear-cut position, and sending an unequivocal
signal was a matter to be handled by United Nations organs. Adopting a resolution which
considers that the FRY should apply for membership in the United Nations, and explaining at the
same time that this resolution “neither terminates nor suspends Yugoslavia’s membership in the
United Nations” was just not such a signal.
Let me add that both Security Council resolution 777 and General Assembly resolution 47/1
ended with a note stating that the intention of the Security Council was “to consider the matter
again”. This did not take place.
6.16. The course of action taken by the FRY, and by other actors, was not evident either.
Applying for United Nations membership would not have made much sense had the FRY already
been a Member.
6.17. Moreover, Article 61 of the Statute sets standards of diligence regarding ascertainment
of facts, and these standards may require a party to take steps to establish obtainable facts. There is
no standard of diligence, however, which would require a party to influence a controversy, or to
shape facts. Furthermore, applying for United Nations membership as a new State ¾ as a new
State ¾ would not have been a step in diligent fact finding, but a major shift in policy orientation.
This cannot be imposed on a sovereign State.
6.18. Mr. President, Members of the Court, at the time when the Judgment was rendered it
was not a known fact whether the FRY did or did not continue the personality of the former
Yugoslavia. The FRY asserted that it did. This was supported by some authorities, while
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contradicted by others. No formal contestation was raised before this Court. The Court relied on
this assumption. It was plausible. The FRY was not negligent for not being aware of a fact that
was not obtainable.
6.19. Let me conclude that within this unique sequence of events without precedent ¾ and
most unlikely to get repeated ¾ lack of diligence or negligence of the FRY was not the reason
why, at the time of the Judgment or later, the FRY did not perceive as a fact that it was not a
Member of the United Nations, and thus it was not ipso facto a party to the Statute. Likewise, lack
of diligence or negligence of the FRY was not the reason why, at the time of the Judgment or later,
the FRY did not perceive as a fact that it did not continue the personality of the former Yugoslavia,
and thus did not remain bound by the Genocide Convention.
VII. THE ISSUE OF SIX MONTHS
7.1. Mr. President, Members of the Court, I would finally like to deal with the issue of six
months. In its Written Observations65 Respondent states that in September 2000 Mr. Koštunica, as
one of the leaders of the then opposition, pledged, among other things, to make every effort
“persistently and patiently to see our country as a member of the OSCE, as one of those that
created it, and rejoin the United Nations and leading world financial institutions”.
Respondent also cites a 9 October 2000 news analysis stating that newly elected
President Koštunica was invited by the United Nations Secretary-General to apply for United
Nations membership. According to this news analysis, President Koštunica’s position was that
Yugoslavia should do so. Respondent concludes on the grounds of these data that the discovery of
the new fact took place before 23 October 2000 and thus the prescription period was not met66
.
7.2. Mr. President, let me first mention that the controversy regarding continuity between the
former Yugoslavia and the FRY did not only yield a debate in the United Nations and outside
Yugoslavia, but, quite naturally, there was a debate within the FRY as well. Different positions
were advocated. There were differences within the opposition as well. A position taken within the
opposition ¾ which position was also part of the election campaign ¾ was only a part of the

65Written Observations of 3 December 2001, para. 3.17.
66Ibid.
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debate, rather than its resolution leading to conclusive discoveries. Also, the September statement
of Mr. Koštunica about “rejoining the United Nations” does not lend clear support to the position
of the Respondent.
Moreover, and most importantly, only acts of office holders of the FRY can be ascribed to
the FRY ¾ positions taken within the opposition cannot. This is confirmed by Article 4 of the ILC
Draft Articles on State Responsibility under which only the conduct of State organs shall be
considered as an act of State67. In September 2000, Mr. Koštunica was just a private citizen whose
acts cannot be attributed to the FRY.
7.3. As far as the 9 October news analysis is concerned, it is just that: a news analysis of a
Belgrade media centre. It cannot be the foothold of relevant conclusions. But even taken at face
value, it is only indicative of intentions (“readiness to apply” ¾ as stated), rather than of actual
relevant action. It was not the readiness or the intentions of one or another President of the FRY
that established as a fact that the FRY was not a party to the Statute in 1996, and that the FRY did
not remain bound by the Genocide Convention continuing the personality of the former
Yugoslavia.
7.4. The FRY submitted its application for membership in the United Nations on
27 October 2000. This is relevant action ¾ and this is within the six months’ period. It is the
position of the FRY, however, that in itself even the application was not, and could not have been,
conclusive. It did not in itself end the debate, just as numerous earlier initiatives also failed to end
the controversy. Being or not being a Member of the United Nations and a party to the Statute was
not within the disposition of the FRY. The application of 27 October 2000 itself did not bring
about a change of perspective.
7.5. What led to the discovery that at the time of the Judgment the FRY was not a party to
the Statute by way of United Nations membership was the decision of the General Assembly of
1 November 2000 to accept the FRY as a new Member. Likewise, only this decision of the
General Assembly established that the FRY did not continue the personality of the former
Yugoslavia. The inferences of the decision regarding treaty membership of the FRY, and

67Draft Articles on Responsibility of States for Internationally Wrongful Acts ¾ Report of the ILC Fifty-third
session, GAOR, Fifty-sixth session No. 10 (A/56/10).
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specifically regarding its status with regard to the Genocide Convention, were clarified and
confirmed by the letter of the Legal Counsel of 8 December 2000.
7.6. The Application for revision was submitted within the time-limit set by Article 61 of the
Statute.
VIII. CONCLUSIONS
8.1. Mr. President, Members of the Court, permit me to submit to you our conclusions. The
Court held that it had jurisdiction over the FRY on ground of assumptions which were prevailing at
the time of the Judgment. It was assumed to be a fact that the FRY remained a party to the Statute,
and that it remained a party to the Genocide Convention continuing the personality of the former
Yugoslavia. This was the essential and the only ratio decidendi.
8.2. It is clear and evident that the very foundation of the 11 July 1996 Judgment has been
disproved. What was assumed to be a fact turned out to be an appearance of a fact. What is now
known to be the reality is the opposite of what was assumed to be the reality. The change is
decisive. Today it is clear that the FRY was not a party to the Statute at the time of the Judgment;
it became a party to the Statute on 1 November 2000. Today it is also clear that the FRY did not
remain bound by the Genocide Convention continuing the personality of the former Yugoslavia; it
became bound by the Convention as a new party on 10 June 2001, and never became bound by
Article IX.
8.3. Let me also reiterate that ¾ as it has been demonstrated ¾ the newly discovered facts,
which are decisive, were unknown to both the Court and to the party claiming revision. These facts
were not obtainable at the time of the Judgment. The FRY was not negligent, and the Application
was submitted within the time-limit of six months since the new decisive facts were revealed. It
has also been demonstrated that the FRY is not estopped from seeking revision.
Since the basic premises of the 1996 Judgment have been altered, the FRY is respectfully
asking the Court to lay the case open for revision.
Mr. President, Members of the Court, this brings me to the end of my remarks. I truly
appreciate your attention. Thank you very much.
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Le PRESIDENT : Je vous remercie, Monsieur l’agent. Ceci met un terme au premier tour de
plaidoiries de la République fédérale de Yougoslavie. Demain matin à 10 heures nous entendons le
premier tour de plaidoiries pour la Bosnie-Herzégovine. La séance est levée.
L’audience est levée à 13 heures.
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