CR 2006/13
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2006
Public sitting
held on Thursday 9 March 2006, at 10 a.m., at the Peace Palace,
President Higgins presiding,
in the case concerning the Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)
________________
VERBATIM RECORD
________________
ANNÉE 2006
Audience publique
tenue le jeudi 9 mars 2006, à 10 heures, au Palais de la Paix,
sous la présidence de Mme Higgins, président,
en l’affaire relative à l’Application de la convention pour la prévention et la répression du
crime de génocide (Bosnie-Herzégovine c. Serbie-et-Monténégro)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presideitgins
Vice-PresiKnhtasawneh
RanjevJaudges
Shi
Koroma
Parra-Aranguren
Owada
Tomka
Keith
Sepúlveda
Bennouna
Skotnikov
Judges ad hoc AhmedMahiou
Kre Milenko ća
CoRuvrisrar
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : Mme Higgins,président
AlKh.vsce-prh,ident
RaMjev.
Shi
Koroma
Parra-Aranguren
Owada
Tomka
Keith
Sepúlveda
Bennouna
Sjoteiskov,
MM. Ahmed Mahiou,
KMrilenko ća, juges ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of Bosnia and Herzegovina is represented by:
Mr. Sakib Softić,
as Agent;
Mr. Phon van den Biesen, Attorney at Law, Amsterdam,
as Deputy Agent;
Mr.Alain Pellet, Professor at the University of ParisX-Nanterre, Member and former Chairman of
the International Law Commission of the United Nations,
Mr. Thomas M. Franck, Professor of Law Emeritus, New York University School of Law,
Ms Brigitte Stern, Professor at the University of Paris I,
Mr. Luigi Condorelli, Professor at the Facultyof Law of the University of Florence,
Ms Magda Karagiannakis, B.Ec, LL.B, LL.M.,Barrister at Law, Melbourne, Australia,
Ms Joanna Korner, Q.C.,Barrister at Law, London,
Ms Laura Dauban, LL.B (Hons),
as Counsel and Advocates;
Mr. Morten Torkildsen, BSc, MSc, Tork ildsen Granskin og Rådgivning, Norway,
as Expert Counsel and Advocate;
H.E. Mr. Fuad Šabeta, Ambassadorof Bosnia and Herzegovina to the Kingdom of the Netherlands,
Mr. Wim Muller, LL.M, M.A.,
Mr. Mauro Barelli, LL.M (University of Bristol),
Mr. Ermin Sarajlija, LL.M,
Mr. Amir Bajrić, LL.M,
Ms Amra Mehmedić, LL.M,
Mr. Antoine Ollivier, Temporary Lecturer and Research Assistant, University of Paris X-Nanterre, - 5 -
Le Gouvernement de la Bosnie-Herzégovine est représenté par :
M. Sakib Softić,
coagment;
M. Phon van den Biesen, avocat, Amsterdam,
comme agent adjoint;
M. Alain Pellet, professeur à l’Université de ParisX-Nanterre, membre et ancien président de la
Commission du droit international des Nations Unies,
M. Thomas M. Franck, professeur émérite à lafaculté de droit de l’Université de New York,
Mme Brigitte Stern, professeur à l’Université de Paris I,
M. Luigi Condorelli, professeur à la fact de droit de l’Université de Florence,
Mme Magda Karagiannakis, B.Ec., LL.B., LL.M.,Barrister at Law, Melbourne (Australie),
Mme Joanna Korner, Q.C.,Barrister at Law, Londres,
Mme Laura Dauban, LL.B. (Hons),
comme conseils et avocats;
M. Morten Torkildsen, BSc., MSc., Tork ildsen Granskin og Rådgivning, Norvège,
comme conseil-expert et avocat;
S. Exc. M. Fuad Šabeta, ambassadeur de Bosn ie-Herzégovine auprès duRoyaume des Pays-Bas,
M. Wim Muller, LL.M., M.A.,
M. Mauro Barelli, LL.M. (Université de Bristol),
M. Ermin Sarajlija, LL.M.,
M. Amir Bajrić, LL.M.,
Mme Amra Mehmedić, LL.M.,
M. Antoine Ollivier, attaché temporaire d’ense ignement et de recher che à l’Université de
Paris X-Nanterre, - 6 -
Ms Isabelle Moulier, Research Student in International Law, University of Paris I,
Mr. Paolo Palchetti, Associate Professor at the University of Macerata (Italy),
as Counsel.
The Government of Serbia and Montenegro is represented by:
Mr. Radoslav Stojanović, S.J.D., Head of the Law Council of the Ministry of Foreign Affairs of
Serbia and Montenegro, Professor at the Belgrade University School of Law,
as Agent;
Mr. Saša Obradović, First Counsellor of the Embassy of Serbia and Montenegro in the Kingdom of
the Netherlands,
Mr. Vladimir Cvetković, Second Secretary of the Embassy of Serbia and Montenegro in the
Kingdom of the Netherlands,
as Co-Agents;
Mr.Tibor Varady, S.J.D. (Harvard), Professor of Law at the Central European University,
Budapest and Emory University, Atlanta,
Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Member of the International Law Commission, member of
the English Bar, Distinguished Fellow of the All Souls College, Oxford,
Mr. Xavier de Roux, Master in law, avocat à la cour, Paris,
Ms Nataša Fauveau-Ivanović, avocat à la cour, Paris and member of the Council of the
International Criminal Bar,
Mr. Andreas Zimmermann, LL.M. (Harvard), Professor of Law at the University of Kiel, Director
of the Walther-Schücking Institute,
Mr. Vladimir Djerić, LL.M. (Michigan), Attorney at Law, Mikijelj, Jankovi ć & Bogdanovi ć,
Belgrade, and President of the International Law Association of Serbia and Montenegro,
Mr. Igor Olujić, Attorney at Law, Belgrade,
as Counsel and Advocates;
Ms Sanja Djajić, S.J.D., Associate Professor at the Novi Sad University School of Law,
Ms Ivana Mroz, LL.M. (Minneapolis),
Mr. Svetislav Rabrenović, Expert-associate at the Office of th e Prosecutor for War Crimes of the
Republic of Serbia, - 7 -
Mme Isabelle Moulier, doctorante en droit international à l’Université de Paris I,
M. Paolo Palchetti, professeur associé à l’Université de Macerata (Italie),
cocomnseils.
Le Gouvernement de la Serbie-et-Monténégro est représenté par :
M. Radoslav Stojanović, S.J.D., chef du conseil juridique du ministère des affaires étrangères de la
Serbie-et-Monténégro, professeur à la faculté de droit de l’Université de Belgrade,
coagment;
M. Saša Obradovi ć, premier conseiller à l’ambassade de Serbie-et-Monténégro au Royaume des
Pays-Bas,
M. Vladimir Cvetković, deuxième secrétaire à l’ambassade de Serbie-et-Monténégro au Royaume
des Pays-Bas,
comme coagents;
M. Tibor Varady, S.J.D. (Harvard), professeur de droit à l’Université d’Europe centrale de
Budapest et à l’Université Emory d’Atlanta,
M. Ian Brownlie, C.B.E., Q.C., F.B.A., membre de la Commission du droit international, membre
du barreau d’Angleterre, Distinguished Fellow au All Souls College, Oxford,
M. Xavier de Roux, maîtrise de droit, avocat à la cour, Paris,
Mme Nataša Fauveau-Ivanovi ć, avocat à la cour, Paris, et membre du conseil du barreau pénal
international,
M. Andreas Zimmermann, LL.M. (Harvard), professeur de droit à l’Université de Kiel, directeur de
l’Institut Walther-Schücking,
M. Vladimir Djeri ć, LL.M. (Michigan), avocat, cabinet Mikijelj, Jankovi ć & Bogdanovi ć,
Belgrade, et président de l’association de droit international de la Serbie-et-Monténégro,
M. Igor Olujić, avocat, Belgrade,
comme conseils et avocats;
Mme Sanja Djajić, S.J.D, professeur associé à la faculté de droit de l’Université de Novi Sad,
Mme Ivana Mroz, LL.M. (Minneapolis),
M. Svetislav Rabrenovi ć, expert-associé au bureau du procureur pour les crimes de guerre de la
République de Serbie, - 8 -
Mr. Aleksandar Djurdjić, LL.M., First Secretary at the Ministry of Foreign Affairs of Serbia and
Montenegro,
Mr. Miloš Jastrebić, Second Secretary at the Ministry of Foreign Affairs of Serbia and Montenegro,
Mr. Christian J. Tams, LL.M. PhD. (Cambridge), Walther-Schücking Institute, University of Kiel,
Ms Dina Dobrkovic, LL.B.,
as Assistants. - 9 -
M. Aleksandar Djurdji ć, LL.M., premier secrétaire au ministère des affaires étrangères de la
Serbie-et-Monténégro,
M. Miloš Jastrebi ć, deuxième secrétaire au ministère des affaires étrangères de la
Serbie-et-Monténégro,
M. Christian J. Tams, LL.M., PhD. (Cambridge), Institut Walther-Schücking, Université de Kiel,
Mme Dina Dobrkovic, LL.B.,
comme assistants. - 10 -
The PRESIDENT: Good morning, please be seated. For reasons that have been explained to
my satisfaction Judges Abraham and Simma will not be sitting this morning. Mr. Djeri ć, you have
the floor.
DMJr.RI Ć: Thank you very much.
ISSUES OF PROCEDURE
2. Respondent’s access to the Court
2.1. Madam President, distinguished Members of the Court. May it please the Court. It is a
great honour and exceptional privilege to stand before you again.
2.2. The present proceedings concern grave crimes committed in Bosnia and Herzegovina
during the war. These crimes must be condemned time and again. They should never be forgotten
and there must be no impunity for them ⎯ all the perpetrators must be brought to justice, whatever
it takes. MadamPresident, the present proceedings, however, do not deal with individual
responsibility for the crimes committed. They deal with State responsibility, and raise a number of
fundamental legal issues related to the functioning of the international judicial system established
by the Charter of the United Nations and the Statute of this Court. It is our duty to deal with these
issues, and it is for the Court to pronounce upon them. Today, I will deal with the issue of the
Respondent’s access to the Court, and will demonstrate that the Respondent does not have access to
the Court in the present case.
Access to the Court is a fundamental prerequisite for the proceedings
2.3. The fundamental importance of the ques tion of access to the Court is well known and
cannot be overemphasized. This was emphatically stated in the 2004 Legality of Use of Force
Judgments:
“[T]he question whether Serbia and Mont enegro was or was not a party to the
Statute of the Court at the time of the institution of the present proceedings is
fundamental; for if it were not such a part y, the Court would not be open to it under
Article 35, paragraph 1, of the Statute.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Court can exercise its judicial function only in respect of those States which
have access to it under Article35 of the Stat ute. And only those States which have - 11 -
access to the Court can confer jurisdiction upon it.” ( Legality of Use of Force (Serbia
and Montenegro v. Belgium), Judgment of 15December 2004, para. 46; exactly the
same text can be found in the other 2004 Legality of Use of Force Judgments, as well.)
2.4. Thus, in order to exercise its judicial function in a case, the Court must always be
satisfied that the States parties are, first of all, entitled to appear before it. In other words, access to
the Court is indispensable in order to establish and exercise jurisdiction in a particular case.
2.5. It should be noted, however, that the di fference between access and jurisdiction lies not
only in the fact that access is a fundamental precondi tion of jurisdiction. It is equally important to
note that its legal nature is different from that of jurisdiction. While jurisdiction is related to the
consent of parties, the question of access depends on the objective requirements of the Statute,
which cannot be overruled or modified by the c onsent of parties given either explicitly or
implicitly. As the Court said in the 2004 Legality of Use of Force Judgments:
“[A] distinction has to be made between a question of jurisdiction that relates to
the consent of a party and the question of th e right of a party to appear before the
Court under the requirements of the Statute, which is not a matter of consent.” ( Ibid.,
para. 36; see, also, Fisheries Jurisdiction (Federal Republic of Germany v. Iceland),
Judgment, I.C.J. Reports 1973, p. 53, para. 11.)
Conditions for access to the Court
2.6. Madam President, the objective require ments regulating access to the Court are
contained in Article35 of the Statute. These requirements are well known, so I will restate them
only briefly:
⎯ first, the Court is open to the States which are par ties to the Statute (Article 35, paragraph 1, of
the Statute). While Members of the United Nations are ipso facto parties to the Statute
(Article93(1) of the United Nations Char ter), other States, non-members of the United
Nations, may become parties “on conditions to be determined in each case by the General
Assembly upon the recommendation of the Security Council” (Article 93 (2) of the Charter);
⎯ secondly, States which are not parties to the Statute may appear before the Court if they fulfil
the conditions laid down by the Security Council, as provided by Article 35, paragraph 2, of the
Statute. These conditions have indeed been la id down in Security Council resolution9 of
1946. In essence, it provides that a State has to make a declaration by which it accepts the - 12 -
jurisdiction of the Court and undertakes to comply with the decision or decisions of the Court
1
and to accept all the obligations of a United Nations Member under Article 94 of the Charter ;
⎯ finally, States which are not parties to the Statut e may also appear before the Court under the
“special provisions contained in treaties in force” (Article 35 (2) of the Statute). As this Court
has unequivocally stated, this clause exclusively concerns those treaties that were already in
force at the date of the entry into force of th e Statute, not the treaties concluded afterwards
(Legality of Use of Force (Serbia and Montenegro v. Belgium) , Judgment of
15 December 2004, para. 113; exactly the same text can be found in the other 2004 Legality of
Use of Force Judgments, as well).
2.7. In sum, in order to appear before the Cour t, a State must either be a party to the Statute
or, if not a party, must have made a declaration pursuant to Security Council resolution 9, or be a
party to a treaty providing recourse to the Court, wh ich treaty was in force at the date of the entry
into force of the present Statute.
2.8. It is also important to note the relevant moment in time on which a party must fulfil one
of these conditions for access to the Court: th e relevant moment is the moment when the
proceedings were instituted.
2.9. As the Court stated in its 2004 Legality of Use of Force Judgments: “The question
whether Serbia and Montenegro was or was not a party to the Statute of the Court at the time of the
institution of the present proceedings is a fundamental one . . .” (Ibid., para. 30; emphasis added;
see, also, ibid., para. 46.)
2.10. In conclusion, access to the Court depends on the objective requirements of the law ⎯
contained in the Statute. It must exist at the ti me when the proceedings were instituted. As the
question of access of a party to the Court is a f undamental prerequisite for the exercise of its
judicial function, it is submitted that the Court cannot adjudicate the case once it has been
established that it was not open to the party at the time when the proceedings were instituted.
1
See Security Council resolution 9 (1946), para. 1. - 13 -
The issue whether the FRY had access to the Court has never been decided in the present
case
2.11. Madam President, it is obvious that the status of a State in the United Nations must be
the starting point in the application of Article35 of the Statute in any case before the Court, as it
must be the starting point in the present case. Ho wever, the FRY’s status in the United Nations
was unclear for a long time, a nd thus could not provide the necessary starting point for a legal
determination of the question of the FRY’s access to the Court. As noted by the Court, events
relating to the status of the FRY in the Unite d Nations between 1992 and 2000, “testify to the
rather confused and complex state of affairs th at obtained within the United Nations surrounding
the issue of the legal status of the Federal Repub lic of Yugoslavia in the Organization during this
period” (ibid., para. 73).
2.12. Clarification of this state of affairs was not within the purview of the Court ⎯ it was
within the purview of the political organs of the United Nations that, under the Charter, have the
authority to deal with membership issues. However, the practical consequence, in the present case,
of such a “confused and complex state of affairs” (ibid.)was that there was no secure basis for a
legal determination on the FRY’s access to the Court. As the Court itself noted in the 2004
Legality of Use of Force Judgments,
“[i]f, at that time [in 1999], the Court had ha d to determine definitively the status of
the Applicant [i.e. the FRY] vis-à-vis the United Nations, its task of giving such a
determination would have been complicat ed by the legal situation, which was
shrouded in uncertainties relating to that status” (ibid., para. 79).
2.13. Consequently, the Court did not make a definitive determination on the FRY’s access
to the Court in the period between 1992 and 2000, including in the present case, in which a
judgment on preliminary objections was rendered in 1996. As stated in the 2004 Legality of Use of
Force Judgments:
“The Court did not commit itself to a definitive position on the issue of the legal
status of the Federal Republic of Yugoslavi a in relation to the Charter and the Statute
in its pronouncements in incidental pr oceedings, in the cases involving this issue
which came before the Court during this anomalous period.” (Ibid., para. 74.)
2.14. Only after the admission of the FR Y to the United Nations in 2000, which brought
resolution to the “rather confused and complex state of affairs” concerning the United Nations - 14 -
membership of the FRY, it became possible to take a definitive position on the question of the
FRY’s access to the Court in the period before 2000.
2.15. Thus, the question of the FRY’s access to the Court was eventually raised by the
parties in the proceedings for the revision of the 1996 Judgment on preliminary objections, which
were initiated in 2001. However, the Court’s ruling in the revision proceedings exclusively
concerned the issue of whether the Application for revision was admissible under the requirements
of Article61 of the Statute. Therefore, havi ng concluded that these requirements had not been
fulfilled, the Court did not have to say and did not say anything on the question of whether the FRY
had had the right to appear before the Court. As the Court noted in the 2004 Legality of Use of
Force Judgments,
“there is no reason to treat the Judgment in the Application for Revision case as having
pronounced upon the issue of the legal status of Serbia and Montenegro vis-à-vis the
United Nations. Nor does the Judgment pronounce upon the status of Serbia and
Montenegro in relation to the Statute of the Court.” (Ibid., para. 90.)
2.16. Madam President, eventually the qu estion of the FRY’s access to the Court was
resolved in 2004, by the J udgments in the cases concerning Legality of Use of Force . In these
Judgments, the Court determined that the FRY ha d had no access to the Court in 1999, because it
had been admitted to the United Nations only in 2000 ( ibid., paras. 91 and 79). Consequently, the
Court “was not open to Serbia and Montenegro under Article 35, paragraph 1, of the Statute” (ibid.,
para. 91). The Court also ruled that Serbia and Montenegro had had no access to it on the basis of
Article35, paragraph2, of the Statute and unde r Article IX of the Genocide Convention. The
Court did not address the issue as to whether th e FRY was or was not a party to the Genocide
Convention. Instead, it relied on the fact that the said Convention was not a “treaty in force” in the
sense of Article 35, paragraph 2, of the Statute (ibid., para. 114).
2.17. Madam President, Members of the Court, in light of all these developments, the
question of the FRY’s access to the Court in the pr esent case is now, for the first time, ready for a
definitive determination.
The FRY did not have access to the Court
2.18. Serbia and Montenegro respectfully submits that the FRY did not have access to the
Court at the time when the proceedings in the present case were instituted: - 15 -
⎯ first, as the FRY was not a Member of th e United Nations until 1 November 2000, it was
therefore not ipso facto party to the Statute, and the Court was not open to it on that basis
before that date;
⎯ secondly, the FRY, as a State non-Member of the United Nations, has never become a party to
the Statute on the basis of Article 93, paragraph 2, of the Charter, and the Court was not open
to it on that basis; and
⎯ thirdly, the FRY has also never made a declaration pursuant to Security Council resolution 9 of
1946.
Therefore, the Court was not open to the FRY on any of these grounds.
2.19. Finally, Madam President, the FRY could not have access to the Court on the basis of
the “treaties in force” clause in Article 35, paragrap h 2, of the Statute. While the Applicant based
the jurisdiction in the present case on ArticleIX of the Genocide Convention, it is now well
established that the Genocide Convention is not a “treaty in force” in the sense of Article35,
paragraph2, of the Statute ( ibid., para.114). Therefore, even if the FRY were a member of the
Genocide Convention at the time the pr esent proceedings were instituted, quid non, its ArticleIX
could not provide the FRY with access to the Court. It is submitted, however, that the FRY was
not even a party to the Genocide Convention at th e time the proceedings were instituted, and this
will be later demonstrated by my colleagues. The FRY acceded to the Genocide Convention only
in 2001 2, and has ever since maintained a reservati on to its ArticleIX. Consequently, this
provision may not, in any case, be a basis of the Court’s jurisdiction in the present proceedings.
2.20. Madam President, Members of the Court, what has been said clearly demonstrates that
there was no legal basis whatsoever that would pr ovide the FRY with access to the Court at the
time when the proceedings in the present case were instituted. Consequently, as the Respondent
does not have access to the Court in the present case, the fundamental prerequisite for the exercise
of the Court’s jurisdiction is missing.
2See Depository Notification of the Secretary-Ge neral of the United Nations dated 15March2001
(C.N.164.2001.TREATIES-1). - 16 -
The determination on access to the Court in a part icular period of time necessarily applies to
all cases before the Court instituted during that period
2.21. In the 2004 Legality of Use of Force Judgments, the Court ruled that the admission of
the FRY to the United Nations in 2000, made clear that, in 1999, the FRY had no access to the
Court under Article35, paragraph1, of the Statute. I am respectfully submitting that this ruling
also necessitates the conclusion that the admission of the FRY to the United Nations in 2000, made
clear that the FRY had no access to the Court in 1993, when the present case was instituted.
2.22. What the Court was contemplating in the 2004 Legality of Use of Force Judgments was
the situation obtaining between 1992 and 1Novemb er 2000. The situation that obtained in 1999
was completely identical to the situation th at obtained in 1993. This was the very same
“amorphous legal situation” concerning the FRY st atus vis-à-vis the United Nations. There were
no ensuing circumstances between 1993 and 1999 that would have affected or modified this state
of affairs. What remained unclarified in 1999, was even less clarified in 1993 or 1996. The change
occurred only in 2000, with the admission of the FRY to the UnitedNations. The effect of this
admission is identical in both the Legality of Use of Force cases and in the present case ⎯ it made
clear that the FRY did not have access to the Court on the basis of Article 35, paragraph 1, of the
Statute either in 1999 or in 1993, or at any other point in time before 2000. As the FRY also did
not have access to the Court on any other ground envisaged by the Statute, it clearly follows that
the Court is not open to the Respondent in the present case.
2.23. However, the Applicant contends that the 2004 Legality of Use of Force Judgments
have no impact on the present case 3. In our view, this is erroneous . The Court’s determination in
the 2004 Legality of Use of Force Judgments on the FRY status vis-à-vis the United Nations before
its admission in 2000 was made on the basis of the fact that the FRY was admitted to United
Nations membership in 2000. In the context of Ar ticle 35 of the Statute, this fact necessarily and
equally affects each case in which the FRY was a party before 2000. Thus, the Court’s
determination that a State was not a Member of the United Nations and that the requirements of
Article35 of the Statute were not fulfilled in a pa rticular period of time equally applies to all the
cases before the Court instituted during that period. It cannot possibly be held in one case before
3
CR 2006/3, p. 13, para. 7 (Pellet). - 17 -
the Court that the FRY was not a Member of the UnitedNations and did not have access to the
Court in a particular period of time, and in another case that the FRY was a Member of the United
Nations or that it had access to the Court in that same period of time.
2.24. The conclusion that the FRY did not ha ve access to the Court in the present case is not
only necessitated by the principle of cons istency, which requires that both the Legality of Use of
Force cases and the present case be resolved in the sa me way, because the facts pertaining to the
FRY’s access to the Court are identical in both of them. Above all, by virtue of the Charter and the
Statute, this same conclusion necessarily flows fro m the Court’s determination that the FRY was
not a United Nations Member before 2000, and as such was not ipso facto party to the Statute of
the Court before 2000 (Article 93 (1) of the United Nations Charter).
2.25. As it is now settled that the FRY was not a party to the Statute as a United Nations
Member, and as it is not disputed that the FRY did not become a party to the Statute on some other
basis and, finally, as it is clear that the Genocide Convention ⎯ the only Convention which was
purportedly applicable ⎯ is not a “treaty in force” within the meaning of Article 35, paragraph 2,
of the Statute, it follows that the FRY did not have access to the Court in 1993 when the present
proceedings were instituted.
The Court should now decide the issue of access in the present case
2.26. Madam President, Members of the Court, the question of access is a most fundamental
matter. As the Court said in the 2004 Legality of Use of Force Judgments: “[t]he Court can
exercise its judicial function only in respect of those States which have access to it under Article 35
of the Statute” ( Legality of Use of Force (Serbia and Montenegro v. Belgium) , Judgment of
15 December 2004, para. 46; exactly the sa me text can be found in the other 2004 Legality of Use
of Force Judgments, as well).
2.27. Thus, regardless of the views of the pa rties and their approach towards the Court’s
jurisdiction, the Court must decline to entertain the case if one of the parties does not have access
to it. Otherwise, if the Court were open to the States with no access to it, the carefully balanced
judicial system established by the Charter a nd the Statute would be disrupted and its very - 18 -
foundations would be put into question. As the Court rightfully pointed out with regard to the
question of access:
“The function of the Court to enqui re into the matter and reach its own
conclusion is thus mandatory upon the Court irrespective of the consent of the parties
and is in no way incompatible with the pr inciple that the jurisdiction of the Court
depends on the consent.” (Ibid., para. 36; emphasis added.)
2.28. Madam President, Serbia and Montenegro respectfully submits that the Court should
now decide the issue of access in the present case. After many years of ambiguity, the situation of
the FRY’s status in the United Nations was clarif ied, and a definitive determination on the FRY’s
access to the Court in the period between 1992 and 2000 became possible. Such a determination
was indeed made in the 2004 Legality of Use of Force Judgments. Now it should be applied in the
present case. The Court determined that the FRY did not have access to it in 1999 because it was
admitted to the United Nations only in 2000. This determination made it clear that there is the
same fundamental deficiency in each and every case instituted before 2000 in which the FRY was a
party, either as an applicant or as a respondent ⎯ in all of them, the FRY ⎯ Serbia and
Montenegro ⎯ simply did not have access to the Court.
2.29. It is, therefore, respectfully submitted that the Court should decline to entertain the
present case because the FRY did not have access to the Court at the time the proceedings were
instituted in 1993.
2.30. Madam President, distinguished Members of the Court, with this I will conclude my
presentation, and I wish to thank you for your kind attention. Madam President, I would appreciate
if you could call upon Professor Varady now. Thank you.
The PRESIDENT: Thank you, Mr. Djerić. I do now call upon Professor Varady. - 19 -
Mr. VARADY: Thank you very much.
ISSUES OF PROCEDURE
3. Jurisdiction ⎯ the Respondent did not remain bound by Article IX
of the Genocide Convention
1. Introduction
3.1. Madam President, distinguished Members of the Court. My colleague Vladimir Djeri ć
demonstrated that the Respondent had no access to the Court when the Application was submitted.
This is in itself a sufficient and compelling ground against jurisdiction in this case. I would like to
add another ground for denying jurisdiction, which is again sufficient and co mpelling in itself. I
would like to demonstrate that the Respondent w as not and is not bound by ArticleIX of the
Genocide Convention.
3.2. The proposition that Serbia and Monten egro was bound by Article IX formed the basis
on which this honoured Court found that it had ju risdiction in its 1996 Judgment on preliminary
objections. Following our request for revision, in its 2003 Revision Judgment, the Court opted not
to reinvestigate the matter, holding that the requi rements set by Article 61 of the Statute were not
met. Thus, the assumption on which the 1996 Judg ment on preliminary objections was based was
neither reinvestigated nor revised.
3.3. We are respectfully submitting that it h as become evident that the assumption on which
the 1996 Judgment on preliminary objections was based is an erroneous one. It has also become
evident that the information accessible to the Cour t at the time when it decided on jurisdiction was
imperfect, ambiguous, and did not allow definitive conclusions.
3.4. This is the reason behind our initiativ e to reconsider the issue of jurisdiction proprio
motu. We are aware that reopening the issue of ju risdiction cannot be a routine matter, and only
exceptional circumstances can provide justificat ion. This case did yield such exceptional
circumstances.
3.5. What is also of critical impor tance, the issue we are dealing with ⎯ i.e., the issue of
jurisdiction ⎯ concerns the very source of the powers of the Court to decide upon the claim.
Earlier decisions rendered in the preliminary phase of the case cannot substitute such power. That - 20 -
is why ⎯ as this was stated in the ICAO Council Judgment ⎯ the Court “must always be satisfied
that it has jurisdiction” ( Appeal Relating to the Jurisdiction of the ICAO Council (India v
Pakistan), I.C.J. Reports 1972 , p. 52, para.13). The intrinsic limits of the power of the Court
cannot be altered or modified by the proposition that it should follow decisions reached in the
preliminary phase.
3.6. Madam President, distinguished Members of the Court, I would first like to identify the
assumption on which it was held that the FRY was bound by Article IX of the Genocide
Convention. I shall further demonstrate that, due to the quite unique and unorthodox circumstances
of the case, this assumption appears in a radically different perspective today than the perspective
obtaining at the time when the decision on jurisdic tion was reached in the preliminary phase. In
simple terms, unlike in 1996, today it is evid ent that this assumption was an erroneous one.
Together with my colleagues, I shall also demonstrate that there is no other assumption or basis
either, which could support the conclusion that Serbia and Montenegro was or is bound by
Article IX of the Genocide Convention.
2. The assumption on which and the ci rcumstances under which the 1996 Judgment on
preliminary objections was rendered
3.7. Let me say first that it is well known that the 1996 Judgment on preliminary objections
was rendered in a situation in which the Court was deprived of points of support that are normally
available. The only basis of jurisdiction which appeared to be acceptable was a treaty provision:
Article IX of the Genocide Convention. At the same time, however, the status and the treaty status
of the FRY was highly controversial.
3.8. At that time ⎯ and for a considerable period after 1996 ⎯ steps taken and declarations
made by United Nations authorities and by th e successor States themselves had not created
conditions for an unambiguous characterization. The information and positions taken yielded more
legal difficulties than guidance. The Applicant st ated that these legal difficulties were actually
4
known from the beginning. It stressed: “De tout ceci, la Cour a été pleinement consciente.” We
do not want to contest this ascertainment. Yes, the problem ⎯ or at least a part of the problem ⎯
4
CR 2006/3, 28 February 2006, p. 20, para. 22 (Prof. Pellet). - 21 -
was indeed known from the outset. But the solution was not known. In 1996, the Court was asked
to open the door to the right solution ⎯ but the keys were withheld.
3.9. This is the situation which was convincingly characterized by the Court in its 2004
Legality of Use of Force Judgments. Describing the situati on obtaining betwee n 1992 and 2000,
the Court stated:
“In fact, it is the view of the Court that the legal situation that obtained within
the United Nations during that eight-year pe riod concerning the status of the Federal
Republic of Yugoslavia, after the break- up of the Socialist Federal Republic of
Yugoslavia, remained ambiguous and open to different assessments. This was,
inter alia, due to the absence of an authorita tive determination by the competent
organs of the United Nations defining clearly the . . . status of the Federal Republic of
Yugoslavia vis-à-vis the United Nations.” ( Legality of Use of Force (Serbia and
Montenegro v. Belgium), para. 64; exactly the same text can be found in the other
2004 Legality of Use of Force Judgments as well: in paragraph 63 of the cases with
France, Canada, Italy, Netherlands, Portugal, and in paragraph 62 of the cases with
Germany and United Kingdom.)
3.10. It is clear ⎯ and I believe that it is common ground as well ⎯ that the ambiguous
status of the FRY had a plain and direct impact on the issue of jurisdiction in this case, as well as in
other cases to which the FRY has been a party. In the 1996 Judgment on preliminary objections no
notification of accession or succession was relied upon ⎯ or could have been relied upon ⎯ as a
linkage between the FRY and the Genocide Conventi on. The Court did not rely on the theory of
automatic succession either. The only assumption on which the 1996 Judgment on preliminary
objections was based is the assumption that the FRY had remained bound by Article IX of the
Genocide Convention continuing the treaty status of the former Yugoslavia.
3.11. Envisaging a link between the FRY and the Genocide Convention, the Court found
foothold in the fact that the SFRY (the form er Yugoslavia) “signed the Genocide Convention on
11December 1948 and deposited its instrument of ratification, without reservation, on
29 August 1950” (Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports
1996(II), p. 610, para. 17).
3.12. This pronouncement regarding the treaty membership of the SFRY (the former
Yugoslavia) only becomes relevant with regard to the position of the FRY, if the FRY were to
continue the status of the former Yugoslavia, a nd thus if it were to derive its standing from the - 22 -
standing of the former Yugoslavia. And this is exactly what follows in the text of the Judgment. In
the next sentence the Court takes note of the fact that the FRY adopted a declaration in which it
states that the FRY “continuing the State, inte rnational legal and political personality of the
Socialist Federal Republic of Yugoslavia, shall st rictly abide by all the commitments that the
Socialist Federal Republic of Yugoslavia assumed internationally”. The Court added that “This
intention thus expressed by Yugoslavia to remain bound by the international treaties to which the
former Yugoslavia was a party was confirmed in an official Note of 27 April 1992...” ( Ibid.;
emphasis added.) This perception of the status of the FRY served as the foothold of the conclusion
regarding jurisdiction.
3.13. It has to be added that the language used by the Court is consistent: In connection with
the FRY which declared continuity ⎯ and consistent with the assumption that the FRY continued
the treaty status of the former Yugoslavia ⎯ the Judgment uses the remained bound language;
while with regard to Bosnia and Herzegovina which undertook treaty action ⎯ and consistent with
the assumption of treaty action ⎯ the Court considered that it became bound by the Convention
(ibid., pp. 611-612, paras. 19, 20, 23, 24).
3.14. As far as the 2003 Revision Judgment is concerned, I trust that it is not contested that
this Judgment did not reinvestigate whether the FRY was or was not bound by Article IX of the
Genocide Convention. What the Court first had to decide ⎯ and what the Court did decide ⎯ was
whether the conditions to lay the case open for revision under Article 61 of the Statute were met.
3.15. Defining the limits of its holding, the Court stated: “Therefore, at this stage the Court’s
decision is limited to the question whether the re quest satisfies the conditions contemplated by the
Statute.” ( Application for Revision of the Judgment of 11July1996 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), Judgment of 3 February 2003, p. 11, para. 16.)
3.16. After a scrutiny of the conditions set by Article 61 of the Statute, the Court found:
“In the present case, the Court has concl uded that no facts within the meaning
of Article 61 of the Statute have been discovered since 1996. The Court therefore
does not need to address the issue of whethe r the other requirements of Article 61 of
the Statute for the admissibility of the FRY’s Application have been satisfied.” (Ibid.,
p. 32, para. 73.) - 23 -
3.17. In sum, in its 2003 Revision Judgment, the majority opinion held that one of the
conditions for laying the case open for revision was not met. The second stage of the procedure for
revision (reinvestigation of the original Judgm ent) was never reached. The Court did not
reconsider (let alone decide) whether the FR Y was or was not bound by the Genocide Convention
in 1993 or in 1996. The assumption, on whic h the 1996 Judgment on pre liminary objections was
based, was not altered, it was not even addressed.
3. The same assumption emerged as an issue in other cases as well
3.18. Madam President, distinguished Members of the Court. It is well known that this is not
the only case in which the assumption that the FRY continued the status and the personality of the
former Yugoslavia became an issue. The same issu e has been of a decisive importance in all cases
in which the FRY appeared before this Court. Speaking of the unorthodox circumstances of the
case, one has to add that a complicated case hist ory was combined with an even more complex
history of the issue that is of a critical importance for our considerations.
3.19. This is the issue whether the FRY did or did not continue the personality of the former
Yugoslavia, and thus whether it did or did not re main a Member of the United Nations and a party
to treaties without the need of seeking admission or submitting notifications of accession or
succession. The same issue was raised not only in this case, but also in the cases between Croatia
and the FRY (where the FRY is the respondent) and between the FRY and ten NATO countries (in
which cases the FRY was the applicant).
3.20. In earlier stages of our case the Court had to face this issue without the benefit of
clarifications and without an unequivocal qua lification given by the competent United Nations
authorities. The same issue was argued between the parties in the case between Croatia and the
FRY (Application of the Convention on the Preven tion and Punishment of the Crime of Genocide
(Croatia v. Yugoslavia) .. And finally, the same issue w as raised again in 2004, in the cases
concerning Legality of Use of Force ⎯ this time after clarifications and without the constraints of
Article 61. - 24 -
4. Today it is evident that the 1996 Judgment on preliminary objections was based on an
erroneous assumption ⎯ the Respondent did not remain bound by Article IX of the
Genocide Convention
3.21. Madam President, distinguished Members of the Court. We trust that it is important to
point out that at the time when the Court had to decide on jurisdiction, it had to face contradictory
indications and a rather confusing state of a ffairs without reliable guidance and authoritative
determinations. But the fact that there was no clarity when the 1996 Judgment on preliminary
objections was rendered is only one of the reasons behind our initiative to reconsider the question
of jurisdiction. There is another reason, which is not less important. This second reason is simply
the fact that today, there is clarity, the status of the FRY is not controversial any more, and
authoritative determinations have, indeed, been made ⎯ including a clear-cut determination made
by this honoured Court.
3.22. We are respectfully asking you to reinvestigate the issue of jurisdiction proprio motu
not just because some doubts have emerged with re gard to a position which appeared acceptable in
1996. What we would like now to submit to your attention are not doubts but evidence that
between 1992 and 2000 there was no linkage betw een the FRY and the Genocide Convention. A
party status was only established in 2001 when the FRY acceded to the Convention ⎯ but with a
reservation to Article IX.
3.23. The fact that ambiguities have been dispelled since the acceptance of the FRY as a new
Member of the United Nations in 2000 h as been made crystal clear in the 2004 Legality of Use of
Force Judgments, in which it is stressed:
“In the view of the Court, the significance of this new development in 2000 is
that it has clarified the thus far amorphous legal situation concerning the status of the
Federal Republic of Yugoslavia vis-à-vis the United Nations. It is in that sense that
the situation that the Court now faces in relation to Serbia and Montenegro is
manifestly different from that which it faced in 1999. If, at that time, the Court had
had to determine definitively the status of the Applicant vis-à-vis the United Nations,
its task of giving such a determination w ould have been complicated by the legal
situation, which was shrouded in uncertainti es relating to that status. However, from
the vantage point from which the Court now looks at the legal situation, and in light of
the legal consequences of the new developm ent since 1 November 2000, the Court is
led to the conclusion that Serbia and M ontenegro was not a Member of the United
Nations, and in that capacity a State party to the Statute of the International Court of
Justice, at the time of filing its Applicati on to institute the present proceedings before
the Court on 29 April 1999.” ( Legality of Use of Force (Serbia and Montenegro v.
Belgium), para.79; exactly the same text can be found in the other 2004 Legality of
Use of Force Judgments as well: in paragraph78 of the cases with France, Canada, - 25 -
Italy, the Netherlands, and Portugal; and in paragraph 77 of the cases with Germany
and the United Kingdom.)
3.24. These findings are unequivocal. The status of the FRY between 1992 and 2000 is not
“shrouded by uncertainties” any more. It is clear that the FRY did not continue the personality and
status of the former Yugoslavia. As a new Stat e it had to seek admission in order to become a
Member of the United Nations and of other intern ational organizations; as a new State it had to
submit notifications of succession or accession in order to become a party to treaties.
3.25. These findings and conclusive clarifi cations set aside the assumption on which the
1996 Judgment on preliminary objections was based. Today, it is evident that the FRY did not
continue the international legal personality of the former Yugoslavia, and that it was not a Member
of the United Nations until it was accepted as a new Member on 1 November 2000.
5. If the FRY was not a Member of the United Nations and was not a party to the Statute, it
could not have been a party to the Genocide Convention either
3.26. The question arises whether the FRY c ould have been a State party to the Genocide
Convention between 1992 and 2000 if it was not a Member of the United Nations.
3.27. The answer is unequivocally no. It is true that in the 2004 Legality of Use of Force
Judgments the Court did not address directly the question whether the FRY had been a State party
to the Genocide Convention in the critical peri od between 1992 and 2000, and whether it had or
had not been bound by ArticleIX. But the 2004 Legality of Use of Force Judgments did decide
that the FRY was not a Member of the United Na tions between 1992 and 2000, because it did not
continue the personality and membership of the former Yugoslavia.
3.28. It clearly follows that it could not have remained a party to the Statute either ⎯ which
was, indeed, explicitly stated by the Court. Another unavoidable conclusion from the same
premise is that the FRY could not have remained bound by other treaties either on the grounds of
continuity.
3.29. Madam President, Members of the Court, we shall demonstrate first that since the FRY
was not a Member of the United Nations between 1992 and 2000, it could not have been a party to
the Genocide Convention in any way, by any vehicle, because it was simply not qualified to
become a party. This is in itself conclu sive evidence that there is no jurisdiction ratione personae
over Serbia and Montenegro in this case. - 26 -
3.30. There is also another independent r eason sufficient in itself to justify the same
conclusion. We have demonstrated that th e only linkage between the FRY and the Genocide
Convention which can be inferred from the 1996 J udgment on preliminary objections rests on the
assumption that the FRY continued the personalit y of the former Yugoslavia. Since this
assumption was conclusively eliminated, the c onclusion based on this assumption remained
without support and justification, and needs to be revisited. Thus, even if it were qualified to
become a party to the Genocide Convention ⎯ quid non ⎯ the FRY was not, and today Serbia and
Montenegro is not bound by Article IX of this Convention.
5.1 The FRY was not qualified to be a Contractin g Party to the Genocide Convention before
November 2000, because it was not a Member of the United Nations and it never received
an invitation in accordance with Article XI of the Genocide Convention
3.31. I would first like to demonstrate that the FRY was not even qualified to become a State
party to the Genocide Convention between 1992 and 2000. The FRY was not, and could not have
been a Contracting Party to the Genocide Convention in 1996, or at any time between April 1992
(when it came into being) and November 2000 (when it became a new Member of the United
Nations). Not every State can become a Contr acting Party to the Genocide Convention. This
Convention, of which the Secretary-General of the United Nations is the Depositary, is
unconditionally open to Members of the United Nations. It is not unconditionally open to
non-Members of the United Nations. Non-Members ha ve to receive an invitation. According to
Article XI of the Convention:
“The present Convention shall be open until 31 December 1949 for signature on
behalf of any Member of the United Nations and of any non-member State to which
an invitation to sign has been addressed by the General Assembly.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
After 1 January 1950 the present Conven tion may be acceded to on behalf of
any Member of the United Nations and of any non-member State which has received
an invitation as aforesaid.
Instruments of accession shall be deposited with the Secretary-General of the
United Nations.”
3.32. Confirming the same principle, and in line with the position that non-Member States of
the United Nations can only join the Genocide Convention upon specific invitation, on - 27 -
3December1949, the United Nations General Asse mbly adopted a resolution and authorized the
Secretary-General to despatch specific invitations to any of those countries which are not Members
of the United Nations and which meet certain criter ia. According to this resolution, the General
Assembly:
“Considering that it is desirable to se nd invitations to those non-member States
which, by their participation in activities related to the United Nations, have expressed
a desire to advance international cooperation,
1. Decides to request the Secretary Gene ral to dispatch the invitations above
mentioned to each non-member State which is or hereafter becomes an active
member of one or more of the specialized agencies of the United Nations, or
which is 5r hereafter becomes a Party to the Statute of the International Court of
Justice.”
3.33. This resolution was observed and conf irmed in practice. For example, before
becoming a Member of the United Nations, on 20December 1950, the Federal Republic of
Germany received a specific invitation from th e Secretary-General to join the Genocide
6
Convention as a Contracting Party .
3.34. It is now settled that the FRY was not a Member of the United Nations until
November2000, and it is a plain and undisputed f act that the FRY never received an invitation
from either the General Assembly or from the Secretary-General to become a Contracting Party to
the Genocide Convention. The precondition for be ing a Contracting Party was never met. For
these reasons, the FRY could not have become a Contracting Party to the Genocide Convention
before it became a Member of the United Nations. Subsequent to it becoming a Member of the
United Nations, the FRY acceded to the Genocide Convention, with a reservation to Article IX.
5.2 Even if it were qualified to become a Stat e party to the Genocide Convention, the FRY
was not bound by this Convention between 1992 and 2000
3.35. Madam President, Members of the Court, we have demonstrated that the FRY could
not have been bound by the Genocide Conventio n before it became a Member of the United
Nations. We shall further demonstrate that even assuming that the FRY were qualified to be a
party to the Genocide Convention ⎯ quid non ⎯ it was not a party. The reason behind this
5
See General Assembly resolution 368 (IV) of 3 December 1949.
See H. H. Jescheck, Die internationale Genocidium-Konvention vom 9. Dezember 1948 und die Lehre vom
Völkerstrafrecht, Zeitschrift für die gesamte Strafrechtswissenschaft, 1954, pp. 193-217. - 28 -
conclusion is a simple one. The perceived ground on which the FRY could have been a Member of
the United Nations, a party to the Statute, and a party to the Genocide Convention, is the same:
continuity between the former Yugoslavia and the FRY. After it b ecame evident that there was no
continuity, it also became evident that no membership or treaty status can be built on this erroneous
assumption.
3.36. The former Government of the FRY had ma de efforts to be considered as a Member of
the United Nations and of various international organizations without seeking admission, and made
efforts to have the FRY recognized as a party to treaties without treaty action. All these efforts had
one single point of reliance, and this was the pr oposition of continuity. As a matter of fact, the
former Government of the FRY carefully and co nsistently avoided subm itting notifications of
succession or accession, just as it avoided seeking admission to the United Nations or to other
international organizations, since this would have contradicted the proposition of continuity.
3.37. By now, it has become clear ⎯ and, I believe, uncontested ⎯ that the FRY was not a
Member of the United Nations between 1992 an d 2000, because the continuity argument was
rejected. This is the sole and obvious reason. Membership was not denied in this period because
of some shortcomings in the procedure of admissi on, there was simply no procedure of admission.
The FRY argued that no admission was needed, because it continued the membership of the former
Yugoslavia. No other argument was raised or co nsidered. Continuity w as the critical issue.
Membership was not recognized because the continuity argument was not accepted.
3.38. If there was no continuity, it is clear that the FRY could not have continued
automatically the membership of the former Yugos lavia in other international organizations or
treaties either. This logic led the Court in the 2004 Legality of Use of Force Judgments to the
unavoidable conclusion that the FRY was not a party to the Statute between 1992 and 2000. It
clearly follows that the FRY could not have remained bound by the Genocide Convention either.
Conclusive clarification given by the Secretary-General
3.39. I would like to refer at this point to conclusive clarifications given by the
Secretary-General. But before doing so, let me repeat again that these clarifications were not
available earlier. - 29 -
3.40. Before 1996 ⎯ and even for some years after 1996 ⎯ the positions taken by the
Secretary-General and its office were not unequivoc al, they allowed different conclusions. Let me
refer again to these well known pronouncements.
3.41. While the claim of the FRY to con tinuity was denied by General Assembly
resolution47/1, this plain fact was somewhat blurred by the explanation given by the Legal
Counsel in his letter of 29September 1992, stating that the resolution “[n]either terminates nor
suspends Yugoslavia’s membership in the Organization” 7. Since it was not stated to which entity
does the designation “Yugoslavia” refer ⎯ to the former Socialist Federal Republic of Yugoslavia
or to the FRY ⎯ doubts remained, and arguments continued concerning the question whether the
FRY remained a Member.
3.42. Furthermore, between 1992 and 2000 th e Secretary-General as depositary listed
8
“Yugoslavia” as a State party to trea ties, including the Genocide Convention ⎯ leaving again the
question open to which entity does the designation “Yugoslavia” refer.
3.43. This is the point to which the Applicant tries to take us back endeavouring to pre-empt
arguments based on the absence of a requisite status of the Respondent in the United Nations and in
treaties. In its pleadings presented on 28February , the Applicant is still advancing the argument
that Yugoslavia actually remained a Member of the United Nations. It states:
“Et pour cause d’ailleurs: la Yougosla vie est demeurée Membre des Nations
Unies. Les résolutions 777(1992) du C onseil de sécurité et 47/1 de l’Assemblée
générale l’invitent, certes, à présenter un e demande d’admission aux Nations Unies et
décident‚ ‘qu’elle ne participera pas aux tr avaux de l’Assemblée générale’ mais elles
se gardent bien de l’exclure de l’Organisation.”
The Applicant is citing in support of this contention the letter of the Legal Counsel which mentions
that General Assembly resolution 47/1 neither terminates nor suspends Yugoslavia’s membership,
9
and which refers to the continued use of the nameplate and the flag of “Yugoslavia” .
3.44. Before this Court, the Applicant does not raise the question whether “Yugoslavia”
which, according to the Applicant “[e]st de meurée Membre des Nations Unies”, and the
membership of which was “neither terminated nor suspended”, is or is not identical with the new
7
Letter of the Legal Counsel of 29 September 1992 ⎯ United Nations doc. A/47/485.
8
See Multilateral Treaties Deposited with the Secretary-General, status as at 31 December 1992, United Nations
doc. ST/LEG/SER.E/11, 1993.
9CR 2006/3, 28 February 2006, p. 19, para. 20 (Prof. Pellet). - 30 -
State, the FRY, which was invited to apply for me mbership. This is the very question which was
not raised by the former Government of the FRY e ither. The failure to raise this question, and the
failure to clarify this issue, is the only way to maintain the perception that the FRY may have been
a Member of the United Nations and may have been a State party to the Genocide Convention
between 1992 and 2000.
3.45. But the fact that such arguments are s till being made only shows one thing. It shows
that the perceived obstinate refusal of the Respondent to go along with the proposition of
submitting an application as a new Member, was not the only reason for delay in clarifications.
The situation obtaining between 1992 and 2000 w as not a clear situation, which only the
Respondent failed to recognize. Various perceptions have been advanced by various actors, often
guided by various purposes.
3.46. The FRY perceived itself to be the “Yugoslavia”, the membership of which was neither
terminated nor suspended, and on this assumpti on it was beside the point to apply as a new
Member. This was wrong, but not implausible. Ha d it been made clear in due time that it was the
former Yugoslavia ⎯ rather than the FRY ⎯ which retained some attributes of membership, it
would have followed that the FRY was just one of the successor States, not a Member of the
United Nations before admittance, not a party to the Statute, and not a State party to treaties before
appropriate treaty action was take n. This was not made clear by the competent United Nations
authorities.
3.47. Moreover, let me add that the conduct of the Applicant was not consistent either.
Before this Court the Applicant allowed that the designation “Yugoslavia” may validate the status
of the FRY. At the same time, outside this Court, the Applicant opposed forcefully and
consistently any appearance of membership of the FRY under the label of “Yugoslavia”. Let me
cite just a few examples. In a letter dated 16 February 1995, addressed to the Secretary-General,
Bosnia and Herzegovina stressed that the maintena nce of certain attributes of the SFR Yugoslavia
“[f]acilitate the assertions of the Belgrade author ities and undermine the relevant resolutions. . .”,
and concluded: - 31 -
“To eliminate this regrettable and unnecessary ambiguity... the long overdue
action of removing the name-plate of the former SFR Yugoslavia from the premises of
the United Nations should be taken.” 10
In another letter signed by the Applicant and addressed to the Secretary-General, it is stressed:
“The Federal Republic of Yugoslavia (Serbia and Montenegro) also has to
follow the procedure for admission of new Member States to the United Nations,
which would enable the Organization to ma ke its judgment whether the conditions set
11
out in Article 4 of the Charter of the United Nations are met.”
Or, to cite another example, in a draft resolution of the General Assembly sponsored by Bosnia and
Herzegovina, it is stressed that “[t]he abbrev iated name ‘Yugoslavia’ as used by the United
Nations, refers only to the former So cialist Federal Repub lic of Yugoslavia” 12. This is a plain
position, but it has not been the position the Applicant has taken before this Court.
3.48. Madam President, the issue was, indeed , still controversial when the Judgment on
preliminary objections was rendered in 1996. But to day, these ambiguities have been clarified. It
has been made clear that the “neither terminates nor suspends” language could not have referred to
a new State which was invited to apply for membership. The clarification was done explicitly, and
without leaving the slightest doubt. The position of the Secretary-General is now the following:
3.49. The present version of Historical Information on Multilateral Treaties Deposited with
the Secretary-General 13 makes it clear and explicit that “Y ugoslavia” to which the Legal Counsel
referred in his letter of September 1992, was the former Yugoslavia and not the FRY. This
clarifying word did not appear in the original letter, but it is now there and the explanation is finally
given. It is stated in the Historical Information:
“The Legal Counsel took the view, however , that this resolution of the General
Assembly neither terminated nor suspended the membership of the former Yugoslavia
in the United Nations.” (Emphasis added.)
Further on it is stated:
10Letter dated 16 February 1995 from the Permanent Repres entative of Bosnia and Herzegovina to the United
Nations addressed to the Secretary-General, United Nations docs. A/49/853, S/1995/147.
11
Letter dated 28 October 1996 from the Permanent Represen tatives of Bosnia and Herzegovina, Croatia, the
former Yugoslav Republic of Macedonia and Slovenia to the Un ited Nations addressed to the Secretary-General. United
Nations docs. A/51/546, S/1996/885.
12
Bosnia and Herzegovina, Croatia, Jordan, Kuwait, Malaysia, Morocco, Qatar, Saudi Arabia and Slovenia: draft
resolution “The equality of all fivsuccessor States to the former Socialis t Federal Republic of Yugoslavia”, United
Nations docs. A/54/L.62 of 8 December 1999.
13See Historical Information, http://untreaty.un.org/NGLISH/bible/englishinternetbible/historicalinfo… ⎯
under the heading “former Yugoslavia”. - 32 -
“the Secretary-General, as depositary, continued to list treaty actions that had been
performed by the former Yugoslavia in status lists in the present publication, using for
that purpose the short-form name ‘Yugoslavia’, which was used at that time to refer to
the former Yugoslavia” (emphasis added).
3.50. This perception was also confirmed directly and emphatically in a letter signed by the
Secretary-General. In his letter dated 27December 2001 to the President of the General
Assembly, Secretary-General Kofi Annan stated ⎯ and this we included in our judges’ folders,
tab 2, which is immediately after the map:
“I have the honour to refer to GA resolution 55/12 of 1 November 2000, in
which the Assembly decided to admit the Federal Republic of Yugoslavia to
membership in the United Nations.
This decision necessarily and automatica lly terminated the membership in the
Organization of the former Yugoslavia, the State admitted to membership in 1945.” 14
(Emphasis added.)
3.51. Thus, there can be no doubt any more. Whatever position was maintained for
“Yugoslavia” in the United Nations and with regard to treaties, it was maintained for the former
Yugoslavia, not the FRY. The designation “Yugos lavia” did not refer to the Respondent in this
case.
3.52. As far as the Genocide Convention is co ncerned, all ambiguities have directly been
eliminated by specific steps taken, and by the official record kept and updated by the depositary. In
his letter of 8 December 2000, the Legal Counsel in vited the FRY to “[u]ndertake treaty actions, as
appropriate, in relation to the treaties concerned, if its intention is to assume the relevant legal
15
rights and obligations as a successor State ” . The FRY opted to succeed to a number of
conventions. With regard to the Genocide Convention, the FRY opted not to succeed. Instead, as a
new Member of the United Nations, relying on a possibility offered under ArticleXI(3) of the
Genocide Convention to all Members of the United Nations, the FRY decided to accede to this
Convention.
1See the letter dated 27 December 2001 from the Secretary-Ge neral addressed to the President of the General
Assembly, United Nations doc. A/56/767.
1Letter of the Legal Counsel of the Un ited Nations addressed to the Minister for Foreign Affairs of the Federal
Republic of Yugoslavia, dated 8 December 2000; submitted as document No. 7 in the judges’ folder submitted by the
FRY at the oral hearings on the Application for Revisithe Judgment of 11 July 1996, Preliminary Objections, on
4-7 November 2002. - 33 -
3.53. Now, the Secretary-General, as depositary, lists Serbia and Montenegro as a State party
to the Genocide Convention, specifying that it became a party to this Convention by accession on
12 March 2001 ⎯ and with a reservation to Article IX . 16
3.54. Madam President, Members of the Court, in 1996, the position of the depositary was
that “Yugoslavia” was a party to the Genocide Conve ntion, without explaining whether this was a
reference to the former Yugoslavia, or to the Respondent. Today, the position of the
Secretary-General is unequivocal. It makes clea r that the references to “Yugoslavia” were
references to the former Yugoslavia, and not the FRY. It makes also clear that the Respondent
only became a party to the Genocide Convention in 2001, and that it became a party with a
reservation to Article IX.
3.55. I would now like to invite you once again to follow this in our judges’ folders. The
next tab is tab3, which shows the status of Contracting Parties to the Genocide Convention on
31 December 1992 ⎯ after the FRY became a new State, and after the much debated
pronouncements of UnitedNations authorities were made. This listing shows that Bosnia and
Herzegovina became a State party by succession on 29 December 1992. The FRY is not indicated
as a State party, but the listing shows “Yugoslavia” as a State party, stating the date of signature as
11 December 1948, and the date of ratification as 29 August 1950. It is beyond doubt and beyond
debate that the Respondent came into being on 27 April 1992. Whatever confusion may have been
created by the reference to “Yugoslavia”, this has been completely clarified and rectified by now.
3.56. The present listing dated 1January 2006 ⎯ it is the next tab, tab4 ⎯ shows Bosnia
and Herzegovina the same way as the earlier listing ⎯ and it shows Serbia and Montenegro as a
State party to the Genocide Convention by wa y of accession which took place on 12 March 2001.
It is also known, and it is recorded by the depos itary, that the Respondent became a State party to
the Genocide Convention with a reservation to Article IX.
3.57. This conclusive position and the official record of the depositary may not be newly
discovered facts within the specific meaning of Ar ticle61 of the Statute. But these are glaring
1United Nations, Treaty Series (UNTS), Vol. 78, p. 277, at http://untreaty.un.org/ENGLISH/bible/
englishinternetbible/partI/chapterIV/treaty1.asp - 34 -
facts ⎯ which were obviously not within the purview of the Court when it took its position on
jurisdiction in 1996 ⎯ and which are clearly consequential.
3.58. The assumption that the FRY remained bound by treaty actions of the former
Yugoslavia is the sole basis of the 1996 Judgment on preliminary objections ⎯ and this is the point
where conclusive clarifications have emer ged after the 1996 Judgment was rendered. The
clarifications demonstrate the opposite result: th e FRY did not continue the personality and treaty
membership of the former Yugoslavia, and, thus , it did not remain bound by ArticleIX of the
Genocide Convention.
3.59. Coming to conclusions, let me repeat at this point that there are two conceivable ways
in which the FRY could have been linked to Article IX of the Genocide Convention. First, there is
the assumption that the FRY remained bound by treaty obligations of the former Yugoslavia
continuing its international lega l personality. The second possible theory is that the FRY became
bound by Article IX either by way of succession or by way of accession. There is no imaginable
third proposition.
3.60. We have demonstrated that the FRY did not remain bound by ArticleIX of the
Genocide Convention. I trust that the arguments and the evidence we submitted have already made
definite not only that the FRY was not bound by ArticleIX in one specific way ⎯ that it did not
remain bound ⎯ but also that it was not bound at all. There ar e three independent reasons
supporting this proposition.
3.61. First, the assumption that the FRY remained bound by Article IX by way of continuing
the treaty status of the former Yugoslavia was the only plausible assumption which could have
linked the FRY with Article IX at the time wh en the 1996 Judgment on preliminary objections was
rendered. The linkage which was eliminated by subsequent clarifications is the only plausible
linkage.
3.62. Second, as we have demonstrated, the fact that the FRY was not a Member of the
United Nations means that it was simply not qualif ied to become a State party to the Genocide
Convention in any way . Unless an invitation according to ArticleXI was extended, which was
clearly not the case, and which has never even been alleged. - 35 -
3.n3d. third, the position taken and the record of th e depositary do not merely show that
the FRY did not remain bound by ArticleIX the Genocide Convention, but show that the
Respondent was simply not a State party to th e Genocide Convention before it acceded in 2001,
with a reservation to Article IX.
3.64. I trust that this is sufficient to make it certain that the Respondent was not bound by the
Genocide Convention before it acceded in 2001, and that the Respondent never remained or
became bound by ArticleIX. Nevertheless, in or der to face and to dispel any conceivable doubt,
my colleague ProfessorZimmermann will present fu rther arguments concentrating on hypotheses
which have not been relied upon in the 1996 Judgment on preliminary objections.
Professor Zimmermann will submit additional arguments and evidence demonstrating that the FRY
did not and could not have become bound by Artic leIX by way of treaty action or automatic
succession either.
3.65. Thank you very much, Madam President. This may be a convenient moment for a
break, and I would like to ask you, after the break, to give the floor to ProfessorZimmermann.
Thank you very much for your attention.
The PRESIDENT: Thank you, Professor Varady. The Court will rise for ten minutes.
The Court adjourned from 11.20 to 11.30 a.m.
The PRESIDENT: Please be seated. Professor Zimmermann, you have the floor.
Mr.ZIMMERMANN: Thank you, Madam President. Madam President, Members of the
Court, may it please the Court.
ISSUES OF PROCEDURE
4. Respondent never became bound by the Genocide Convention
and its Article IX
A. Introduction
4.1. It is once more a real privilege and honour to appear before this distinguished Court on
behalf of Serbia and Montenegro. - 36 -
4.2. Let me start by reiterating what this Court has repeated time and again and rightly so,
namely that there is a
“fundamental distinction to be drawn between the existence of the Court’s jurisdiction
over a dispute, and the compatibility with international law of the particular acts which
are the subject of the dispute” (see e.g., Legality of Use of Force (Serbia and
Montenegro v. Belgium), Judgment of 15 December 2004, para. 128; case concerning
Armed Activities on the Territory of the C ongo (New Application: 2002) (Democratic
17
Republic of the Congo v. Rwanda), Judgment of 3 February 2006, para. 127) .
4.3. Before rendering judgment on the merits of this case and before judging upon the tragic
events which form the subject-matter of it, th e Court thus has to first make a clear and
unambiguous determination that, in 1993, it could have been validly seised by the Applicant. I
trust that such a determination cannot be made, since this would entail a conclusion that Bosnia and
Herzegovina could bring a case at a time when the Respondent, that is, the FRY ⎯ Serbia and
Montenegro ⎯ as this Court itself has determined in its 2004 Legality of Use of Force
Judgments ⎯
⎯ was neither a Member State of the United Nations,
⎯ nor could have had access to the Court under Artic le35, paragraph2, of the Statute of the
Court.
4.4. This fundamental obligation of the Cour t to determine whether it can render a judgment
dealing with the merits of this case is even more important for two reasons:
4.5. First, the Court is facing one of the most co mplex cases which has raised and still raises
fundamental issues of jurisdiction, admissibility and, indeed, the very fact whether the Respondent
can be a party at all in these proceedings.
4.6. Second, this case brings up most important issues of consistency. The eight Legality of
Use of Force cases raised identical issues to the ones we are facing here today. In all these cases,
the Court found that Serbia and Montenegro had no access to the Court since Serbia and
Montenegro had not been a Member State of the United Nations. It also clarified that the Genocide
Convention is not a treaty in force within the mean ing of Article35, paragraph2, of the Court’s
Statute.
17
See also CR 2006/8, pp. 17-18, para. 21 (Prof. Pellet). - 37 -
4.7. Madam President, the recent 2004 Legality of the Use of Force Judgments have, by
setting aside disputes of the past, paved the way for further improving the political relations
between Serbia and Montenegro on the one side , and Belgium, France, Germany, Italy, the
Netherlands, Portugal, Spain, and the United Kingdom, on the other.
4.8. In the present case, in which Serbia and Montenegro is the Respondent, the same
jurisdictional issues resurface that le d the Court to find that it could not consider the merits in the
cases concerning the Legality of Use of Force. One therefore has to address fundamental issues of
consistency and indeed equality before the C ourt when contemplating whether Serbia and
Montenegro can now be a party in this case.
4.9. Finally, as is well known, there is yet another case pending against Serbia and
Montenegro. In that other case, brought by Croatia , the Court will once again have to address the
status of the Respondent before the Court. In said case, brought by Croatia, this Court never had an
opportunity, so far, to address the issue of its ju risdiction, including the status of Serbia and
Montenegro as a possible party in proceedings be fore this Court. Thus, this other set of
proceedings will yet again raise the very same issue of consistency.
4.10. Having outlined the background of our case, it is now my task to assess whether there
is a legal basis upon which the case could have b een brought against Serbia and Montenegro
ratione personae. Any pronouncement on this matter w ould presuppose, however, that the Court
would first determine, in contrast to its own previous finding in the 2004 Legality of Use of Force
Judgments, that Bosnia and Herzegovina, in deed, could bring a case against Serbia and
Montenegro ⎯ at a time when the Respondent, as this Court has determined, was not a Member
State of the United Nations.
4.11. Madam President, Members of the Court, the only possible basis for the Court’s
jurisdiction is Article IX of the Genocide Convention. My colleague Professor Varady has already
demonstrated that the FRY did not remain and could not have remained a party to the Genocide
Convention by way of continuing the personality and treaty status of the former Yugoslavia. I will
now address the question whether the Respondent could have become bound by ArticleIX of the
Genocide Convention by way of treaty succession. In that regard - 38 -
⎯ I will now first show that the Court has so far neve r decided upon the succession of Serbia and
Montenegro with regard to the Genocide Conventio n, which issue, therefore, for that reason,
too, is not res judicata;
⎯ Secondly I will also demonstrate that Serbia a nd Montenegro has never succeeded to the
Genocide Convention and, in particular, its Article IX.
B. The Court never decided upon the succession of Serbia and Montenegro with regard to
the Genocide Convention
4.12. Madam President, the only possible le gal basis for the claims of Bosnia and
Herzegovina before this Court ar e alleged violations of the Genoc ide Convention which are to be
attributed to Serbia and Montenegro.
4.13. This raises the question whether a tr eaty relationship existed between Bosnia and
Herzegovina on the one hand and Serbia and Montenegro on the other with regard to Article IX of
the Genocide Convention at the relevant point in time ⎯ or indeed at any time.
4.14. It is by now common ground between the Parties that both Bosnia and Herzegovina
and Serbia and Montenegro are successor States of the former Yugoslavia. Accordingly, both
States could have only become bound by the Genocide Convention by virtue of applicable rules of
State succession, or by accession.
4.15. This Court has found in its 1996 Judgment on preliminary objections that Bosnia and
Herzegovina had become bound by the Genocide Convention through the mechanism of State
succession ( Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia), Judgment , I.C.J. Reports 1996(II) , p.612,
para.23). The very same question whether the FRY ⎯ the Respondent ⎯ has succeeded to the
Genocide Convention has, however, so far never be en decided by this Court with the force of
res judicata.
4.16. Let me demonstrate this by briefly anal ysing the various relevant decisions of this
honourable Court.
4.17. In its Order of 8 April 1993, the Court saw no reason to address the issue, the obvious
underlying reason being that neither party had questioned the status of the FRY as a possible
Contracting Party to the Genocide Convention. - 39 -
4.18. Bosnia and Herzegovina needed the stat us of the FRY as a Contracting Party, with
regard to the Genocide Convention, in order for the Court to have jurisdiction. Bosnia and
Herzegovina, therefore, did not raise this question he re in this Great Hall of Justice. At the same
time, outside the Court, Bosnia and Herzegovina consistently challenge d the very same legal
position of the FRY and required that it should make specific declarations of succession, which the
FRY never did during the relevant period of time.
4.19. The FRY in turn considered itself to be identical with the former Yugoslavia and
therefore simply saw no need to make such d eclarations of succession. Instead it had simply
recorded the claim to be identical in a gene ral declaration, which, however, Bosnia and
Herzegovina considered not to constitute a declaration of succession 18(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), Judgment, paras. 10 et seq.)
4.20. This was the picture the Court had in mind when it rendered its Order of 8 April 1993.
In this Order, the Court simply recorded and took note of the fact that the FRY had, in a general
declaration of 27 April 1992, expressed the intenti on to continue the personality, and consequently
to honour the treaty obligations of the former Yugoslavia.
4.21. The same is true, mutatis mutandis, for the Court’s 1996 Judgment on preliminary
objections. There, the Court simply noted that the former Yugoslavia “[s]igned the Genocide
Convention on 11December 1948 an d deposited its instrument of ratification without reservation
on 29 August 1950” ( Application of the Convention on th e Prevention and Punishment of the
Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J.
Reports 1996(II), p.610, para.17). Treaty succession by the FRY ⎯ the Respondent ⎯ was not
contemplated, was not even raised as an issue. Ratification of the Genocide Convention by the
former Yugoslavia was perceived as relevant in the context of the assumption of continued
personality. The Court added that “it [had] not b een contested that Yugoslavia was party to the
1Joint letter by Bosnia and Herzegovina, Croatia, th e former Yugoslav Republic of Macedonia and Slovenia
addressed to the Secretary-General of the United Nations according to which “the Federal Republic of Yugoslavia (Serbia
and Montenegro) had not acted in accordance with interional rules on the succession of States”, United Nations
doc. A/50/910-S/1996/231. - 40 -
Genocide Convention” (ibid.). This was one of the essential reasons why ‘”Yugoslavia” was at
that time considered to be bound by the Genocide Convention ⎯ and it seems that this is one point
which is now being accepted by counsel for the Applicant 19. Once again, the issue whether the
FRY had succeeded to the Genocid e Convention, which had not even been argued by the parties,
was not decided by this honourable Court.
4.22. Indeed the Court solely decided upon the preliminary objections formally raised by the
Respondent. This limited holding was la ter confirmed by this Court in its 2004 Legality of Use of
Force Judgments where the Court stated: “The Cour t, in its Judgment on Preliminary Objections
of 11July 1996, rejected the preliminary obj ections raised by the Federal Republic of
Yugoslavia . . .” (Legality of Use of Force (Serbia and Montenegro v. Belgium) , Judgment,
para.82.) All of those preliminary objections of the FRY related, however, exclusively to the
status of Bosnia and Herzegovina vis-à-vis the Genocide Convention, but not to the FRY’s own
status with regard to the Convention.
4.23. Similarly, in the 2003 Revision Judgment, the Court did not even reach the question
whether the Genocide Convention applied between the parties, given that, in its view, the
conditions for the admissibility of the request for revision had not been fulfilled. This
interpretation of the 2003 Revision Judgment was confirmed by the Court in its 2004 Legality of
Use of Force Judgments where the Court specifically stat ed that in 2003 it “did not have to say
whether it was correct that Serbia and Montenegro had not been a party to the Statute or to the
Genocide Convention in 1996” (ibid., para. 87).
4.24. In contrast thereto counsel for the Applicant attempted to imply that in paragraphs70
and 71 of the 2003 Revision Judgment the Court indeed had taken a position as to the status of the
20
Respondent vis-à-vis the Genocide Convention . However, this cannot be brought in line with the
clear language of the 2004 Judgment. In it, the Court explicitly stated: “These statements
cannot... be read as findings on the status of Serbia and Montenegro in relation to the United
Nations and the Genocide Convention . . .” (ibid., para. 87).
19
CR 2006/3, p. 18, para. 19 (Prof. Pellet).
2CR 2006/3, pp. 20-21, para. 22 (Prof. Pellet). - 41 -
4.25. In the same 2004 Legality of Use of Force Judgments, the Court also did not “consider
it necessary to decide whether Serbia and Monten egro was or was not a party to the Genocide
Convention . . . when the current proceedings were instituted” (ibid., para. 114).
4.26. Madam President, let me reiterate: our contention is that the Court has not so far
decided with force of res judicata whether Serbia and Montenegro became bound by the Genocide
Convention during the relevant period of time ⎯ or not. This contention is further confirmed, if
ever necessary, by the operation of the applicable provisions of the Rules of Court.
4.27. Article79, paragraph9, of the current Rules, which is identical to Article79,
paragraph7, of the Rules as applicable to our case, deals with a judgment on preliminary
objections. It clearly states that in a judgment on preliminary objections the Court “shall either
uphold the objection, reject it, or declare that [it] does not possess . . . an exclusively preliminary
character” (emphasis added).
4.28. It is thus the objections actually raised by the respondent, and only those, which define
and delimit the scope of the res judicata effect, if ever, of any judgment on preliminary objections.
With regard to the 1996 Judgment on preliminary objections, the Respondent had however never
raised a preliminary objection based on the argument that it was not bound, or became bound, by
the Genocide Convention. Accordingly, this issu e was not, and could not be, decided by the Court
with the force of res judicata.
4.29. In the same vein, Article79, paragraph1, of the Rules provides that “[a]ny
objection... to the jurisdiction of the Court or to the admissibility... or other objection the
decision upon which is requested before any further proceedings on the merits . . .” (emphasis
added), shall be made within the period prescribed by the Rules. Accordingly, the sole effect of not
raising an objection as to the Court’s jurisdiction or the admissibility of the case within the time
frame foreseen by the Rules is that it does not st ay the proceedings on the merits. On the other
hand, States are not barred from raising such objections at a later stage, since otherwise that part of
Article79, paragraph1, clause1, of the Rules of Court, which I have just quoted, would be
superfluous.
4.30. And this is precisely the situation we are facing at this juncture: in 1996 the FRY had
not raised the preliminary objection of not being a Contracting Party to the Genocide Convention. - 42 -
This only means that the Respondent did not have the right that the proceedings on the merits be
interrupted until the Court would decide on the objec tion that it was not a Contracting Party at the
relevant period and that it never became bound by Article IX of the Genocide Convention.
4.31. Accordingly, the issue whether Serbia and Montenegro has succeeded to the Genocide
Convention ⎯ or rather has not succeeded to it ⎯ has not become res judicata in any event. The
Court is therefore completely free to decide upon it now.
4.32. Madam President, I would like to avail myself of this opportunity to reply briefly to
some points made by counsel for the Applicant in his pleading last week. Counsel for the
Applicant has attempted to argue, albeit somewhat reluctantly it seems, that the Respondent might
have, by not raising the question of its lack of access to the Court and its succession to the
Genocide Convention, not acted in good faith 2. This allegation is however contradicted by your
1996 Judgment on preliminary objections. In it you stated that the Respondent had “consistently
contended . .. that the Court lacked jurisdiction whether on the basis of the Genocide Convention
or on any other basis” ( I.C.J. Reports 1996 (II), pp. 620-621; see also as the provisional measures
stage of the case, I.C.J. Reports 1993, pp. 341-342).
4.33. Besides, one has also to take into consideration the fundamental nature of issues
relating to the party status of a given State and its access to the Court which the Court itself has to
enquire into and which is independe nt of any approach chosen by the parties. (See, for example,
case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium) , Judgment,
15 December 2004, para. 36.)
4.34. It has to be also noted that the legal status of the FRY was ⎯ to put it in the words of
the Court ⎯ “rather confused and complex” (ibid., para. 73) and “shrouded in uncertainties” (ibid.,
para. 79) and it was only the admission of the FRY to the United Nations which “clarified the thus
far amorphous legal situation” (ibid.). Indeed, only from the vantage point of the admission of the
FRY to the United Nations in 2000, both the C ourt and the Respondent could have had a clearer
look at the legal situation surrounding the FRY. Ac cordingly, the allegation by the Applicant that
the FRY has acted in bad faith seems to be for that reason, too, without foundation.
21
CR 2006/3, p. 19, para. 19 (Prof. Pellet). - 43 -
4.35. Counsel for the Applicant, Professor Pe llet, has also argued that the Respondent might
22
have created, as he put it, “une sorte de forum prorogatum” ⎯ a kind of forum prorogatum. Let
me in that regard first clearly reiterate what the Court had already stated in its 1996 Judgment on
preliminary objections after the Applicant had already at that time argued forum prorogatum ,
namely that “[t]he Court does not find that th e Respondent has given in this case a ‘voluntary and
indisputable’ consent . . .” (I.C.J. Reports 1996(II) , p. 621, para. 40; citation omitted). Indeed,
how can a State that has explicitly raised seven preliminary objections as to the Court’s jurisdiction
be considered to have, at the same time, implicitly accepted that jurisdiction because it did not raise
an eighth one? One therefore simply cannot assume whatever form of forum prorogatum.
4.36. Madam President, let me now demonstrat e that Serbia and Montenegro never became
bound by the Genocide Convention. Before doing so, I should stress once more the ancillary
nature of our argument on this point since in orde r for the Court to decide upon this question it has
to first and foremost find that Serbia and Monten egro can be a party at all in these proceedings
before the Court ⎯ proceedings which were brought by Bosn ia and Herzegovina at a time when
the Respondent did not have access to the Court. As this Court itself has pointed out:
“it is incumbent upon it to examine first of all the question whether the Applicant
meets the conditions laid down in Articles34 and35 of the Statute and whether the
Court is thus open to it. Only if the answer to that question is in the affirmative will
the Court have to deal with the issues relating to the conditions laid down in
Articles 36 and 37 of the Statute of the Court.” (See e.g ., case concerning Legality of
Use of Force (Serbia and Montenegro v. Belgium) , Judgment, 15December 2004,
para. 46; citation omitted.)
4.37. My colleague Vladmir Djeri ć has demonstrated that the Respondent did not have
access to the Court during the relevant period of time and that the Genocide Convention is not a
treaty in force within the meaning of Artic e5, paragrap2h, of the Statute.
ProfessorTiborVarady has then shown that the FRY did not remain bound by the Genocide
Convention. I will now present an additional argumen t equally leading to the conclusion that this
Court has no jurisdiction in this case. I will de monstrate that the Respondent never became bound
by Article IX of the Genocide Convention.
22
CR 2006/3, p. 19, para. 19 (Prof. Pellet). - 44 -
C. The Respondent was not a party to the Genocide Convention during the relevant period of
time
4.38. Madam President, Members of the Court, as I have outlined before, both parties agree
that Serbia and Montenegro is a su ccessor State to the former Yugoslavia ⎯ which has ceased to
exist. In order for Serbia and Montenegro to be responsible for the alleged violations of the
Genocide Convention and in order for the Court to ha ve jurisdiction with regard to those acts, and
considering that the FRY did not continue th e personality and treaty status of the former
Yugoslavia, the Applicant must therefore estab lish that the Respondent has succeeded to the
Genocide Convention. Such succession, in turn, could have only occurred
⎯ either on the basis of the declaration of 27 April 1992;
⎯ or, by virtue of a principle of automatic succession.
4.39. I will now show that, first, declarations of the FRY which were solely and exclusively
based on an assumed identity of the FRY with th e former Yugoslavia cannot create commitments
based on a contrary assumption; and that, second, Serbia and Montenegro did not become bound
by the Genocide Convention by virtue of the principle of so-called automatic succession.
1. Declarations which were solely based on an assumption of continued personality cannot
create commitments for Serbia and Montenegro as to the Genocide Convention
4.40. Honourable Members of the Court, the d eclaration adopted on 27 April 1992, at a joint
23
session of the Assembly of the SFRY (the former Yugoslavia) , the National Assembly of the
Republic of Serbia, and the Assembly of Monten egro was, as was admitted by Bosnia and
Herzegovina itself (Written Observations of Bosn ia and Herzegovina of 3 December 2001 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), e.g., para. 2.9), firmly based on the idea of continued personality. And it is for that
reason that Bosnia and Herzegovina itself regular ly took the position that the FRY had not, by
virtue of its declaration of 27April 1992, become a Contracting Party to treaties of the former
Yugoslavia.
23
At that time, it was contested whether the SFRY and its National Assembly still existed. - 45 -
4.41. A characteristic example of this approach is the joint letter of Bosnia and Herzegovina,
Croatia, Macedonia and Slovenia of 20April 1998, addressed to the Commission on Human
Rights. It can be found in tab. 5 of the judges’ folder. This joint letter was transmitted by a
Note Verbale of the Permanent Mission of Bosnia and Herzegovina to the United Nations Office at
Geneva. In very clear terms, that letter stated:
“All states that have emerged from th e dissolved predecessor state have equal
succeeding rights and legal status. The same principle applies to the legal status
regarding international instruments to which SFRY was a state party. Consequently
FRY should notify its succession to all relevant international instrum24ts including
human rights instruments as was done by other successor states.”
4.42. On the same basis, Bosnia and Herze govina frequently and successfully requested that
the FRY should not be treated as a State party to tr eaties and accordingly, should not participate in
meetings of Contracting Parties of various human right s treaties. It is only in this case, and for the
sole purpose of this case, that Bosnia and He rzegovina considers the said declaration as a
notification of succession.
4.43. Yet that claim is entirely unfounded. As a matter of fact, it is simply inconceivable that
a declaration based at the time on a claim of c ontinued personality could be regarded as something
different, that is, a notification of succession. In that regard it is quite telling what counsel for
Bosnia and Herzegovina argued before this C ourt concerning a possible reinterpretation of a
notification of succession emanating from Bosnia and Herzegovina itself, as a notification of
accession. Let me quote what was said on behalf of the Applicant by my esteemed colleague
Professor Brigitte Stern:
“On ne voit pas pourquoi la notification de succession, acte qualifié comme tel
par un État souverain, devrait être consid érée comme une notification d’adhésion.”
(CR 96/9, pp. 32-33.)
4.44. Accordingly, Bosnia and Herzegovina itself submitted that one may not second-guess
the intention of a State and turn a notification of succession into an act of accession. Similarly, one
should not treat a declaration, which at the time was clearly based on the notion of identity and
2See Joint letter of Bosnia and Herzegovina, Croatia, Macedonia and Slovenia forwarded to the Commission on
Human Rights by the Permanent Mission of Bosnia and Her zegovina to the United Nations Office at Geneva in a
Note Verbale dated 20 April 1998, United Nations doc. E/CN.4/1998/171; emphasis added. - 46 -
characterized as such by the FRY, as a notification of succession against the will of the State that
made this declaration.
4.45. In fact, this Court itself confirmed that the Note of 27April 1992 was exclusively
based on the claim of identity, and thus could not bring about succession when it stated in 2004:
“the Federal Republic of Yugoslavia, for its part, maintained its claim that it continued
the legal personality of the Socialist Federal Republic of Yugoslavia. This claim has
been clearly stated in the official Note of 27 April 1992... ” (Legality of the Use of
Force (Serbia and Montenegro v. Belgium), Judgment of 15 December 2004, para. 69;
emphasis added.)
4.46. I will now further demonstrate that th e declaration of 27April 1992 and the Note
which accompanied it first, were not intended to serve the purpose of treaty succession; and
second, were not capable of serving such purpose.
4.47. Already the text of the declaration i ndicated that this was a declaration of “the
representatives of the people of the Republic of Serb ia and the Republic of Montenegro” and at the
end of the text, “the participants of the joint session” were identified as signatories. The opening
sentence of this declaration stressed that the citizens of Serbia and Montenegro expressed their
common will “to stay in the common state of Yu goslavia”. The underlying political idea that
guided the opinions expressed in the declarati on was clearly the perception that Yugoslavia
continued to exist, that the FRY was the same Stat e as the former Yugoslavia, and that it continued
the identity of the former Yugoslavia.
4.48. Since the declaration clearly did not aim to create a status, but rather to describe a
perception, it explicitly stated as its purpose solely to state the views of the participants on policy
objectives as stressed in its introductory part of the declaration:
“Remaining strictly committed to the peaceful resolution of the Yugoslav crisis,
wish to state in this Declaration their views on the basic, immediate and lasting
objectives of the policy of their common state, and its relations with the former
Yugoslav Republics.” (Emphasis added.)
4.49. Furthermore, the declaration of 27 April 1992 was not addressed to the depositary, but
to the President of the Security Council, consistent with the fact that this was a policy statement,
rather than treaty action 2. The declaration and the Note were transmitted by a letter of 6 May 1992
25
See the letter dated 27 April 1992 from the Chargé d’affaires a.i. of the Permanent Mission of Yugoslavia to the
United Nations addressed to the President of the Security Council, United Nations doc. S/23877 (1992). - 47 -
addressed to the Secretary-General, asking the Secr etary-General to circulate the declaration and
26
the Note “as an official document of the General Assembly” . This is, again, indicative of the fact
that both the declaration and the Note were political documents rather than treaty action.
4.50. Yet another reason why the declaration and the Note were unsuited to bring about
treaty action is that they did not identify any treaty. Neither was any specific treaty mentioned or
referred to, nor was any list of relevant treaties annexed to it.
4.51. That such “general notifications” are irrelevant for purposes of State succession has
clearly been confirmed by the Secretary-Genera l, acting as depositary of multilateral treaties.
Taking a position on “general declarations of succession” the Secretary-General stresses:
“Frequently, newly independent States will submit to the Secretary-General
‘general’ declarations of succession... The Secretary... does not consider such a
declaration as a valid instrument of succes sion to any of the treaties deposited with
him, and he so informs the Government of the new State concerned. ”
4.52. The Secretary-General continues:
“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 sp ecify the treaty or treaties by which the
State concerned recognizes itself to be bound.
General declarations are not sufficie ntly authoritative to have the States
concerned listed as parties in the publica tion Multilateral Treaties Deposited with the
Secretary-General.” 27 (Emphasis added.)
4.53. Let me reiterate:
(i)Both parties agree that the Respondent is one of the successor States of the former
Yugoslavia, the SFRY, which has ceased to exist;
(ii) the declaration adopted on 27 April 1992 was not a notification of succession, nor was it
perceived as such by third States;
(iii) instead it was a political declaration based on the assumption of identity;
26
United Nations doc. A/46/915.
27Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, 1999, paras.302-304
(footnote omitted); available at: http://untreaty.un.org/ENGLISH/summary.asp; emphasis added. - 48 -
(iv) neither the declaration nor the Note of 27 April 1992 referred to any treaty and besides did
not emanate from any of the authorities consid ered by the depositary to be competent
authorities to legally bind the FRY;
(v) Bosnia and Herzegovina itself never treated the declaration as bringing about a succession
of the Respondent with regard to treaties of the former Yugoslavia;
(vi) finally, even if it were considered a notif ication of succession, the declaration could still
not, given its general character, be consider ed to have brought about succession of the
Respondent with regard to specific treaties of the former Yugoslavia.
4.54. Accordingly, the declaration and the Note could not bring about succession. Let me
restate that the declaration and the Note were not even a “general declaration of succession” ⎯
they were policy statements claiming continuity. As a matter of fact, the word “succession” (or
succeed) is completely missing from the text. Inst ead the Note assumes that it was adopted “[o]n
the basis of the continuing personality of Yugoslavia”.
4.55. It is only based on this claim, and clearly stressing the proposition of continued
personality as the sole possible basis for assuming th e obligations of the former Yugoslavia, that
the Note states:
“ Strictly respecting the continuity of the international personality of Yugoslavia,
the Federal Republic of Yugosla via shall continue to fulfil all the rights conferred to,
and obligations assumed by, the Socialis t Federal Republic of Yugoslavia in
international relations, including its membersh ip in all international organizations and
participation in international treaties ratified or acceded to by Yugoslavia.” (Emphasis
added.)
4.56. Let me also reiterate that Bosnia and Herzegovina vigorously contested the claim that
the FRY could continue the international position, as well as the treaty rights and obligations of the
former Yugoslavia until it was willing to submit specific notifications of succession 28, which Serbia
and Montenegro never did with regard to the Genocide Convention.
4.57. It is also quite telling how the Un ited Nations Under-Secretary General for Legal
Affairs, the Legal Counsel, reacted after the FRY had been admitted to the United Nations as a new
Member and after the status of the FRY as one of the successor States of the former Yugoslavia
2E.g., joint letter of Bosnia and Herzegovina, Croatia, Macedonia and Slovenia forwarded to the Commission on
Human Rights by the Permanent Mission of Bosnia and Herzegovina to the United Nations Office at Geneva in a Note
Verbale dated 20 April 1998, United Nations doc. E/CN.4/1998/171. - 49 -
had been confirmed. He, the Legal Counsel, inv ited the FRY to decide whether or not to assume
the rights and obligations of the former Yugoslavia in international treaties. In a letter of
8 December 2000, which can be found as tab 6 of the judges’ folder, he, the Legal Counsel, stated:
“It is the Legal Counsel’s view that the Federal Republic of Yugoslavia should
now 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. ”
(Emphasis added.)
4.58. It is also important to add that the letter of the Legal Counsel was accompanied by a
list of treaties with respect to which the FRY, in order to become a party, should undertake treaty
action. This list included the Genocide Conventio n. The approach taken by the Legal Counsel
confirmed that the FRY had not been a party to the Genocide Convention beforehand.
4.59. Let me underline once again that the declaration of 27 April 1992 has never been
treated by anybody as a declaration of succession. Before it became clear that the FRY had only
become a Member of the United Nations on 1 November 2000, depositary practice did show
“Yugoslavia” as a Member State of the United Nations and as a contracting party to treaties. This
practice may have created ambiguities, and the appearance of the status as a contracting party ⎯
yet the only appearance which could have been created was that of a continued status of the former
Yugoslavia as a contracting party.
4.60. Before the legal status of Serbia and Montenegro was clarified, “Yugoslavia” was also
listed as a Contracting Party to the Genocide C onvention, stating the date of signature as
11 December 1948, and the date of ratification as 29 August 1950 29.
4.61. In sharp contrast thereto the same su rvey indicated that Bosnia and Herzegovina
became a Contracting Party on 29 December 1992 by way of succession 30. While the reference to
“Yugoslavia” as a Contracting Party since 1950 may have created the appearance of the continued
existence of a State called “Yugoslavia” as a Contra cting Party, it could not have supported in any
way the hypothesis, or even th e appearance that the FRY, being a new State, being a successor
2Multilateral Treaties deposited with the Secretary-General, Part I (United Nations treaties), Chapter IV (Human
Rights), as of 3 October 2000.
3See Multilateral Treaties deposited with the Secretaneral, Part I (United Nations treaties), ChapterIV
(Human Rights), at: http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapter…. - 50 -
State, had become in 1992, by virtue of a declaration, automatically, or otherwise, a Contracting
Party to the Genocide Convention.
4.62. By now, the situation has been clarified. In the publication Multilateral Treaties
Deposited with the Secretary-General , in the section “Historical Information” 3, which can be
found as tab 7 of the judges’ folder, the depositary of fers an explanation. It demonstrates that both
the declaration and the Note were clea rly perceived as a claim to continuity ⎯ and that this claim
had remained unaccepted.
4.63. The Secretary-General now states:
“Yugoslavia came into being on 27 April 1992 following the promulgation of
the constitution of the Federal Republic of Yugoslavia on that day. Yugoslavia
nevertheless advised the Secretary-General on 27April1992 that it claimed to
continue the international legal personalit y of the former Yugoslavia. Yugoslavia
accordingly claimed to be a member of tho se international organizations of which the
former Yugoslavia had been a member. It also claimed that all those treaty acts that
had been performed by the former Yugoslavia were directly attributable to it, as being
the same State... Bosnia and Herzegov ina, Croatia, Slovenia and the former
Yugoslav Republic of Macedonia . . . objected to this claim.” (Emphasis added.)
4.64. Accordingly the declaration, the Note, the practice of the depositary and the reaction of
third States, including Bosnia and Herzegovina its elf, never even suggested, but instead rather
excluded any possibility that the 1992 declaration could have brought about a succession of Serbia
and Montenegro to the treaties to which the former Yugoslavia had been a party ⎯ including the
Genocide Convention.
4.65. Madam President, Members of the Cour t, I have just shown that Serbia and
Montenegro has never notified its succession to the Genocide Convention. I will now further
demonstrate that it could have never become bound by the Genocide Convention by virtue of
automatic succession, since no rule of automatic su ccession existed prior to 1978 when the Vienna
Convention on State Succession in respect of Treaties was adopted, nor has such a rule since
developed.
31
Available at http://untreaty.un.org/ENGLISH/bible/ englishinternetbible/historicalinfo.asp. - 51 -
2. The jurisdiction of the Court cannot be ba sed on a theory of automatic succession of
treaties
4.66. Let me start with a simple fact: It is uncontested by now that the FRY came into
existence on 27 April 1992. Accordingly, and in order to find that it has succeeded to the Genocide
Convention in accordance with a purported princi ple of automatic succession, such norm of
customary international law must have existed already at that very date.
4.67. It follows that any practice by the States or organs of the United Nations subsequent to
27 April 1992, which could eventually lend support to such proposition, is per se irrelevant for our
case as having occurred ex post facto.
4.68. Madam President, the assumption that the FRY might have become bound by the
Genocide Convention by virtue of an alleged pr inciple of so-called “automatic succession” is
contradicted by
⎯ the drafting history of the 1978 Vienna Convention;
⎯ the practice of the Legal Counsel of the United Nations;
⎯ relevant State practice;
⎯ depositary practice; and
⎯ finally State practice (including that of the A pplicant itself) specifically with regard to the
former Yugoslavia.
4.69. Already during the preparatory work of the ILC for the 1977-1978 Diplomatic
Conference at which the Vienna Convention on State Succession in Respect of Treaties was finally
adopted, the ILC considered whether the prin ciple of automatic succession should apply to
law-making treaties such as, for example, the Geneva Conventions. Su ch a proposition was not
accepted.
4.70. The ILC, after having devoted considerable time to the issue, instead stated that
“the evidence of State practice appeared to be unequivocally in conflict with the thesis
that a newly independent State is under an obligation to consider itself bound by a
general law-making treaty applicable in respect of its territory prior to
independence” 3.
4.71. The ILC further emphasized that State practice with respect to the Geneva Conventions
was conflicting. While a number of States had notified their succession, a large number of States
32
Ibid. - 52 -
33
had also become parties by way of accession , which clearly contradicts the proposition of
automatic succession.
4.72. In particular, the ILC stressed the point that law-making treaties cannot be subject to a
régime of automatic succession since “such treaties may contain purely contractual provisions such
34
as, for example, a provision for the compulsory adjudication of disputes.” (emphasis added) . This
argument is, to state the obvious, particularly rele vant with regard to ArticleIX of the Genocide
Convention. Accordingly, the ILC deliberately opted not to include in its draft articles any specific
provision relating to the category of law-making tr eaties, which, if introduced, might have also
covered the Genocide Convention.
4.73. During the Vienna Diplomatic Conferen ce, similar proposals contemplating automatic
succession regarding law-making treaties were wit hdrawn, as it became obvious that they would
35
not receive sufficient support .
The PRESIDENT: Professor Zimmerman, could you, for the interpreters, speak a little more
slowly? Thank you.
Mr. ZIMMERMAN: Yes, I will.
4.74. This approach was also in line with the view taken by the UnitedNations Legal
Counsel, who in 1976 had already stated with rega rd to the Geneva Convention relating to the
Status of Refugees that:
“it is the practice of the Secretary-General, as depositary of international agreements,
to consider the would-be successor State as a party to an agreement only after a
notification of succession specifically men tioning the agreement succeeded to has
36
been deposited with him . . .”
4.75. Accordingly until 1978 no rule of auto matic succession with regard to human rights
treaties had been established. This leaves the pe riod between 1978 and 1992; that is a period of
less than 15 years. I will now show that within th is period, no rule of customary international law
providing for such automatic succession developed either.
33See ILC Yearbook, 1974, Vol. II/1, pp. 43-44.
34
Ibid., p.4.
35See M. Yasseen, La Convention de Vienne sur la succession d’Etats en matière de traités, AFDI 1978, p. 107.
36See United Nations Juridical Yearbook, 1976, p. 219. - 53 -
4.76. Madam President, Members of the Court, in its well-known holding in the North Sea
Continental Shelf case, the Court stated with regard to a similarly short period of 11years, that is
the period between 1958 and 1969, that:
“Although the passage of only a short period of time is not necessarily, or of
itself, a bar to the formation of a new rule of customary international law... an
indispensable requirement would be that with in the period in question, short though it
might be, State practice, including that of States whose interests are specially affected,
should have been both extensive and virtually uniform . . .” (North Sea Continental
Shelf (Federal Republic of Germany /Denmark; Federal Republic of
Germany/Netherlands), Judgment, I.C.J. Reports 1969 , p.43, para.74; emphasis
added.)
4.77. This standard has clearly not been attain ed, nor could it be attained in the present case.
The State practice which has developed is far from being “virtually uniform”; besides, it has not
been “extensive”. As a matter of fact State prac tice in general, and State practice regarding the
respondent in particular, contradicts the proposition of automatic succession.
4.78. It has to be noted first, that in the case of treaty succession with regard to human rights
treaties, there was almost no State practice wh atsoever until the early 1990s, given that an
extremely small number of cases of State succession arose between 1978 and 1990.
4.79. Existing State practice, and in particular the practice of successor States (who are the
“States whose interests a re specially affected” , in the sense of your North Sea Continental Shelf
dictum), does not support the propositio n of automatic succession. To the contrary, relevant State
practice supports the position that human rights treaties are not subject to automatic succession.
4.80. This is true, first of all, for the practi ce of successor States of the former USSR, which
does not support the theory of automatic succession, let alone in a “virtually uniform” manner.
Instead, this practice rather contradicts the theo ry of automatic succession. Indeed, while some
successor States of the USSR submitted specific no tifications of succession, some others have
taken no position at all. Most importantly, a large number of successor States which came into
existence on the territory of the former USSR have acceded to major human rights treaties such as: - 54 -
⎯ the two International Covenants on, respectivel y, Civil and Political Rights and Economic,
37 38
Social and Cultural Rights ;
⎯ CEDAW 39;
⎯ the United Nations Convention Against Torture 40;
41
⎯ the Convention on the Rights of the Child ; and
⎯ the CERD 42.
All of those treaties had previously been ratified by the USSR. Practice thus confirms the view that
successor States of the USSR have not become boun d by the various human rights treaties by way
of automatic succession.
4.81. Practice of third States confirms the conclusion that the conduct of the different
successor States, including even those which did not take any position, is no t compatible with the
proposition of automatic succession. Inter alia, Serbia and Montenegro would like to draw the
attention of the Court to the decision of the Sw iss Federal Court which found that Kazakhstan had
not succeeded to the International Covenant on Civil and Political Rights (ICCPR) due to a lack of
a notification of succession. The decision stated:
37
With regard to the International Covenant on Civil and Political Rights the following countries have become
Contracting Parties by way of accession: Armenia (23 June 1993), Azerbaijan (13 August 1992), Georgia (3 May 1994),
Kyrgyzstan (7 October 1994), Republic of Moldova (26 Ja nuary 1993), Tajikistan (4 January 1999), Turkmenistan
(1 May 1997), Uzbekistan (28 September 1995).
3With regard to the International Covenant on Economic , Social and Cultural Rights the following countries
have become Contracti ng Parties by way of accession: Armenia (13 September 1993), Azerbaijan (13 August 1992),
Georgia (3May 1994), Kyrgyzstan (7 October 1994), Republic of Moldova (26 January 1993), Tajikistan (4 January
1999), Turkmenistan (1 May 1997), Uzbekistan (28 September 1995).
39
The following countries have become Contracting Parties by way of accession: Armenia (13 September 1993),
Azerbaijan (10 July 1995), Georgia (26 October 1994), Ka zakhstan (26 August 1998), Kyrgyzstan (10 February 1997),
Republic of Moldova (1 July 1994), Tajikistan (26 Oc tober 1993), Turkmenistan (1 May 1997), Uzbekistan
(19 July 1995).
40
The following countries have become Contracting Parties by way of accession: Armenia (13 September 1993),
Azerbaijan (16 August 1996), Georgia (26 October 1994), Kazakhstan (26 August 1998), Ky rgyzstan (5 September
1997), Republic of Moldova (28 November 1995), Tajikis tan (11 January 1995), Turkmenistan (25 June 1999),
Uzbekistan (28 September 1995).
4The following countries have become Contracting Pa rties by way of accession: Armenia (23 June 1993),
Azerbaijan (13 August 1992), Kyrgyzstan (7 October 1994), Republic of Moldova (26 January 1993), Tajikistan
(26October 1993), Turkmenistan (20 September 1993), Uzbe kistan (29 June 1994). Kaza khstan by ratification of
12 August 1994.
4The following countries have become Contracting Pa rties by way of accession: Armenia (23 June 1993),
Azerbaijan (16 August 1996), Georgia (2 June 1999), Kaza khstan (26 August 1998), Kyrgyzstan (5 September 1997),
Republic of Moldova (26 January 1993), Tajikistan (11 Janua ry 1995), Turkmenistan (29 September 1994), Uzbekistan
(28 September 1995). - 55 -
“En tant qu’Etat successeur de l’anci enne URSS, la République du Kazakhstan
est libre d’exprimer ou non son consentement à être liée par les traités auxquels l’Etat
43
dont elle est issue est partie . . .” (Emphasis added.)
4.82. Let me also mention that a high numbe r of newly independent States including Papua
New Guinea, Burkina Faso , Cambodia, Chad, Gabon, Madagascar, Mauritania, Bahamas, Belize,
Domenica, Kenya, the Seychelles, the Solomon Islands, the United Republic of Tanzania, and
Zimbabwe ⎯ although they had been in a position to notify their succession with regard to the
Geneva Convention relating to the Status of Refugees, have inst ead, both before and after 1978,
acceded to it, thereby contradicting the view that human rights treaties were, at least as of 1992,
subject to a rule of automatic succession.
4.83. With regard specifically to the Genocide Convention, there is also ample State practice
that contradicts the idea of automatic succession, given that a great number of successor States
have acceded to the Convention. Many other successo r States made specific notifications of
succession. All this clearly shows an absence of a uniform, or even prevailing practice. Such
practice lends no support to, but rather contradicts, the proposition of automatic succession.
4.84. New States which acceded to the Genoc ide Convention instead of notifying their
succession, or did not take any treaty action at all, include Rwanda 44, Tonga 45, Algeria 46,
47
Bangladesh , as well as all concerned successor States of the USSR, that is, Azerbaijan, Armenia,
Georgia, Kazakhstan, Kyrgyzstan, the Republic of Moldova, Uzbekistan, Tajikistan and
48
Turkmenistan) .
4.85. It is of particular importance that ⎯ with the only exception of Croatia, Bosnia and
Herzegovina and Sweden concerning the accession of the FRY ⎯ no other Contracting Party to the
43See BGE, Vol. 123 II, pp. 518-519.
44By declaration dated 13 March 1952 Belgium had extended the applicability of the Genocide Convention to the
Trust Territory of Rwanda-Burundi; still Rwanda acceded on 16 April 1975.
45
By declaration dated 2 June 1970 th e United Kingdom of Great Britain a nd Northern Ireland had extended the
applicability of the Genocide Convention to the Kingdom of Tonga; still Tonga acceded on 16 February 1972.
46
The Genocide Convention had entered into force with regard to France on 14 October 1950; Algeria acceded to
the Convention on 31 October 1963.
47
Pakistan had ratified the Genocide Convention by 12 October 1957; Bangladesh acceded on 5 October 1998.
48The following countries have become Contracting Partie s by way of accession: Azerbaijan (16 August 1996),
Armenia (23 June 1993), Georgia (11 October 1993), Kazakhs tan (26 August 1998), Kyrgyzstan (5 September 1997),
Republic of Moldova (26 January 1993), Uzbekistan (9 Sept ember 1999). Tajikistan and Turkmenistan have taken no
treaty action whatsoever. Belarus and Ukraine had become Contracting Parties of their own right in 1954. Estonia,
Latvia and Lithuania do not consider themselves to be successor States of the USSR. - 56 -
Genocide Convention has until today ever object ed to accessions by successor States to the
Genocide Convention.
4.86. Moreover, Bosnia and Herzegovina itsel f has acquiesced in such practice with regard
to seven such accessions by successor States of the former USSR, which have taken place after
Bosnia and Herzegovina itself had become a Contracting Party to the Genocide Convention.
4.87. Depositary practice similarly indicates that the principle of automatic succession does
not apply to human rights treaties. The point may be illustrated by reference to the Swiss
Government’s conduct as depositary of the 1949 Geneva Conventions. The Swiss Government has
consistently taken the position that, in order for a successor State to be listed as a Contracting Party
of either the four Geneva Conventions of 1949, or its Additional Protocols of 1977, said State must
submit a specific notification of succession referri ng to the treaties to which the respective State
wanted to succeed. The then Legal Adviser of th e Swiss Government, now Judge Caflisch, stated
in that regard:
“[La Suisse] n’opère à cet égard aucune distinction selon la nature ou l’objet du
traité. En matière de succession d’Etats a ux conventions de Genè ve la pratique du
dépositaire suisse est identique à celle qu’il observe pour d’autres traités ouverts à
49
l’ensemble de la communauté internationale . . .”
4.88. The same is true for the United Nations Secretary-General. Indeed, it is the considered
view of the Secretary-General that even if a su ccessor State had either entered into a so-called
“devolution agreement” or submitted a general notification of succession, it could not be regarded
as a contracting party by virtue of succession . 50
4.89. State practice of the States whose interest s are specially affected, that is, State practice
in the case of the dissolution of the former Yugoslavi a, also clearly contradicts the proposition of
automatic succession. The Applicant itself (togeth er with other successor States of the former
Yugoslavia) has consistently opposed the suggestion that the FRY could have become a contracting
party to human rights treaties by way of automatic succession.
4.90. For example, during the 18th meeting of States parties to the International Covenant on
Civil and Political Rights (16 March 1994), Mr.Ša ćirbej moved on behalf of Bosnia and
49
L. Caflisch, La pratique suisse en matière de droit international public 1996, SZIER 1997, p. 684.
5Cf. Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, 1999, paras. 302-304. - 57 -
Herzegovina and proposed: “[t]hat the State par ties should decide that the Federal Republic of
Yugoslavia (Serbia and Montenegro) should not participate in the work of the Meeting of the States
parties to the Covenant” .1
4.91. Bosnia and Herzegovina’s proposal w as clearly based on the assumption that the FRY
was not a contracting party to said treaty. This motion by Bosnia and Herzegovina to exclude the
52
FRY from the meeting was adopted by 51 votes for, 1 vote against and 20 abstentions . The same
sequence of arguments and events was repeated on a number of other occasions. In all these cases,
the proposition of automatic succession would have brought about a different conclusion ⎯
namely that the FRY should, indeed, have been allowed to attend meetings of States parties.
4.92. In other words, outside this Great Hall of Justice Bosnia and Herzegovina has
consistently taken the position that there was onl y one way for the FRY to become a contracting
party to human rights treaties ⎯ namely by submitting specific notifications of succession. Such a
notification was however never submitted by th e Respondent with regard to the Genocide
Convention.
4.93. Madam President, I will now demonstrate that, even if the FRY did indeed become
bound, quid non, by the Genocide Convention by virtue of automatic succession, such succession
could only extend to the substantive guarantees of the Convention, and could not have included
Article IX of the Convention.
3. Even if the automatic succession of rule s of human rights treaties were a generally
accepted principle, this could not include the rule of Article IX of the Genocide
Convention
4.94. Already in 1947, the Legal Counsel of the United Nations stated that: “it has been
clear that no succession occurs in regard to ri ghts and duties of the old State which arise from
political treaties such as treaties . . . of pacific settlement”
4.95. This approach was also adopted by the ILC during its work on the codification of the
law on State succession with regard to treaties. The ILC had decided ⎯ as I mentioned
51
Cf. United Nations doc. CCPR/SP/SR.18, p. 3, para. 2.
52
Ibid., p. 7, para. 23.
5Quoted by O. Schachter, The Development of Interational Law through the Legal Opinions of the United
Nations Secretariat, BYBIL, 1948, p. 106. - 58 -
beforehand ⎯ not to create a specific category of so-called law-making treaties which would have
been made subject to the principle of automatic succession specifically since “such treaties may
contain purely contractual provisions such as, for example, a provision for the compulsory
adjudication of disputes” . 54
4.96. This view is also further confirmed by a decision of the Pakistani Supreme Court which
stated that:
“as a general rule a new State so formed w ill succeed to rights and obligations arising
only under treaties specifically relating to its territories... but not to rights and
obligations under treaties affecting the State . . . e.g. treaties of . . . arbitration . . .” 5.
4.97. Such a position that treaty obligations re garding the settlement of disputes, which are
essentially political obligations, are not transmissibl e under international law is also confirmed by
the view of D.P. O’Connell, the still leading authority in the field. After noting the fact that treaties
“are ranging in subject-matter from renunciation of war and peaceful settlement of international
disputes, through copyright and counterfeiting, to we ights and measures”, he continues: “Clearly
not all these treaties are transmissible: no State has acknowledged its succession to the General Act
56
for the Pacific Settlement of International Disputes.”
4.98. Thus, both practice and considered schol arly opinion clearly show that treaty clauses
providing for the peaceful settlement of disput es are not subject to automatic succession.
Accordingly ArticleIX of the Genocide Convention is not subject to the principle of automatic
succession and the FRY is accordingly not bound by it , even in the hypothesis that the substantive
provisions of the Genocide Convention were subject to the principle of automatic treaty succession,
which they are not.
D. Conclusion
4.99. Madam President, Members of the Court, let me summarize:
54Ibid., p. 4; emphasis added.
55
Supreme Court of Pakistan, Yangtze (London) Ltd. v. Barlas Brothers (Karachi) and Co. , Judgment of 6 June
1961 (see Materials on State Succession, United NationsLegal Series, doc.ST/LEG/SER.B/14, pp.137 et seq.; also
quoted in Statement of the Government of Indi a in Continuance of its Statementof 28May 1973 and in Answer to
Pakistan's Letter of 25 May 1973, I.C.J. Pleadings, Trial of Pakistani Prisoners of War (Pakistan v. India), 1973,
pp. 147-148; emphasis added.
56State Succession in Municipal Law and International Law , Vol. II, 1967, p. 213 (footnote omitted; [emphasis
added]). - 59 -
4.100. The Court has never decided upon the question whether or not the Respondent
became bound by the Genocide Convention and its Artic leIX. This question is accordingly, for
that reason too, not res judicata.
4.101. Even assuming, quid non , that the Respondent can be a party in these current
proceedings, the Court would then have to co nsider the issue of succession of Serbia and
Montenegro with regard to the Genocide Convention.
4.102. In this respect, it is submitted that the Respondent has never become bound by
Article IX of the Genocide Convention because it has never succeeded to it.
4.103. This is first due to the fact that the declaration of 27 April 1992 did not and could not
bring about succession.
4.104. Second, Serbia and Montenegro never auto matically succeeded to the Genocide
Convention.
4.105. Third, and in the alternative, Serbia and Montenegro never succeeded to Article IX of
the Genocide Convention by way of automatic suc cession given its character as a clause providing
for the judicial settlement of disputes.
4.106. Accordingly, this Court not only l acks jurisdiction in this case because Serbia and
Montenegro was not qualified to be a party in th e relevant moment. It also lacks jurisdiction
ratione personae vis-à-vis the Respondent with regard to alleged violations of the Genocide
Convention.
4.107. Madam President, Members of the Court, this brings me to the end of my
presentation. Before asking you to call upon my colleague ProfessorVarady to conclude this
morning’s argument, I would like to thank you for your kind attention.
The PRESIDENT: Thank you, Professor Zimmermann. I now call upon Professor Varady.
Mr. VARADY: Thank you very much.
ISSUES OF PROCEDURE
5. Concluding remarks
5.1. Madam President, distinguished Members of the Court. In our presentations pertaining
to access and jurisdiction we have advanced argum ents demonstrating that the Respondent did not - 60 -
have access to the Court at the relevant moment , and that the Respondent was not and is not bound
by Article IX of the Genocide Convention, which is the only purported basis of jurisdiction. We
are respectfully asking this Court to undertake a scrut iny of these issues. It is submitted that this is
a scrutiny which the Court is entitled to undertake. According to the wording of the ICAO Council
Judgment the Court “[m]ust . . . always be satisfied that it has jurisdiction . . .” ( Appeal Relating to
the Jurisdiction of the ICAO Council, I.C.J. Reports 1972, p. 52).
5.2. We are fully aware of the fact that su ch a scrutiny is not and should not be a routine
matter. Under conventional circumstances the issue of jurisdiction is conclusively settled before
the merits. But the circumstances of this case are hardly conventional. In deed, it is difficult to
imagine a case in which revisiting the fundament al preconditions to proceeding would be more
justified. It is difficult to imagine a case with such an unorthodox and intricate setting ⎯ and with
such a turnaround of the relevant perspective.
5.3. Our esteemed colleague Professor Pellet pointed out in his speech of 28 February that,
under the circumstances of this case, a hesitati on to render a pronouncement on the merits “serait
désastreux pour l’image de la Cour et de la justice internationale...” 5. MadamPresident, the
unparalleled reputation of this honoured Court has been based on a relentless pursuit of truth, rather
than on political circumspection. If the Responde nt had had access to the Court at the relevant
moment, and if it either had remained or became bound by Article IX of the Genocide Convention,
then obviously a judgment accepting jurisdiction and deciding on the merits would best serve the
well-established reputation. But if the truth is the opposite, if the Respondent did not have access
to the Court at the relevant moment, and if the Respondent had neither remained nor become bound
by Article IX of the Genocide Convention, then a judgment declining jurisdiction would be the one
which would best serve the image and the reputation of this honoured Court.
5.4. Madam President, today it is known that the initial responses and characterizations of
the position of the FRY at the time of the dissolution of the former Yugoslavia given by the
competent authorities were incomplete and ambiguous. It is also known that ⎯ though
belatedly ⎯ the competent authorities did not clarify these issues.
57
CR 2006/3, p. 16, para. 14 (A. Pellet). - 61 -
5.5. Let me add that it is known all too well that the dissolution of Yugoslavia yielded a
situation which was difficult to conceptualize, and that the responses did not create a clear
situation. This is today admitted by both the par ticipants and the analysts. It has also become
common ground between the successor States themselv es. To give just one illustration, in their
joint letter of 19November2001 to the Under- Secretary-General for Management, the five
successor States, including the parties to this dispute, have agreed on the following
characterization:
“The dissolution of the former Socia list Federal Republic of Yugoslavia was
unique and indeed no identical precedent ex isted before. All the previous cases (for
example the break-up of the former Union of Soviet Socialist Republics or
Czechoslovakia) were different and so the legal consequences were different and it is
quite unlikely that the same situation coul d occur again. However, if a similar
situation occurs, the United Nations should fi nd a way to address it in an appropriate
manner.” 58
5.6. Let me mention that we sincerely hope that such a situation will not occur again. Let me
also add that the implied criticism addressed to th e United Nations authorities for their failure to
take a clear position and their failure to address th e issue in an appropriate manner may have been
complemented with a criticism of the successor State themselves, including the FRY. But the point
is that today all successor States ⎯ including the Parties to these proceedings ⎯ agree that a
unique process without precedent took place, and that the competent authorities failed to provide a
proper and timely response and characterization.
5.7. This controversial, ambiguous and unclari fied state of affairs is the one which was
brought before the Court when it had to reach a decision on preliminary objections in 1996. There
was no other guidance.
5.8. What is even more important, today ever ybody agrees that the actual picture is different
from that which was brought before the Court during the preliminary proceedings. By now,
everybody agrees that the FRY became a new Member of the United Nations in November2000.
Admission in the capacity of a new Member took place without any vote against, without any
objection voiced. Today, it is, I believe, common ground that the Respondent was not a Member of
5See the Letter dated 19 November 2001, from the Permanent Representativ es of Bosnia and Herzegovina,
Croatia, Slovenia, the former Y ugoslav Republic of Macedonia and the FR of Yugoslavia, addressed to
Under-Secretary-General for Management, United Nations doc. A/56/767, App. III. - 62 -
the United Nations and was not a party to the Statute before 1November2000. This is what the
Secretary-General said clearly and unequivocally, and this is what this honoured Court said clearly
and unequivocally.
5.9. In the 2004 Legality of Use of Force Judgments it was established that Serbia and
Montenegro had no access to this Court before 1 November 2000 because it was not a Member of
the United Nations, and no alternative basis for access existed. This is evidently relevant in this
case as well. Not because the 2004 Legality of Use of Force Judgments would have res judicata
effect with respect to this case, but because this is a truthful ascertainment, and because this is an
objective determination which simply cannot be divorced from our case.
5.10. In the Legality of Use of Force cases the Court established: “The function of the Court
to enquire into the matter and reach its own conclusion is thus mandatory upon the Court
irrespective of the consent of the parties...” ( Legality of Use of Force , Judgments, para. 36;
emphasis added).
5.11. Following such an enquiry it was held th at Serbia and Montenegro was not a party to
the Statute, and hence had no access to the Court. This is obviously not a conclusion restricted to
the specific fact-pattern of the Legality of Use of Force cases. If Serbia and Montenegro was not a
party to the Statute in the period before Novemb er 2000, it obviously could not have had access to
the Court in that period in other cases either.
5.12. Madam President, in addition to arguments pertaining to lack of access, we have also
advanced an additional argument contesting jurisdiction stating that the Respondent did not remain
bound, and never became bound, by Article IX of th e Genocide Convention. We also showed that
the Respondent was not even qualified to be a St ate party to the Genocide Convention in any way
before it became a Member of the United Nations. Let me just summarize the main points of this
argument.
5.13. In its 1996 Judgment on preliminary objections, this Court rendered a decision on those
preliminary objections which were raised. This Court has never decided upon the question whether
or not the Respondent remained or became bound by the Genocide Convention and its Article IX.
This question is outside the scope and outside the authority of previous judgments. - 63 -
5.14. We now demonstrated that the Respondent did not remain bound by Article IX of the
Genocide Convention. We started with the refutation of this hypothesis, because the only plausible
assumption which could have linked the FRY with Ar ticle IX is this assumption at the time of the
Judgment on preliminary objections; namely the assumption that the FRY remained bound
because it continued the personality and treaty status of the former Yugoslavia. No other basis was
relied upon. In the light of the new perspectiv e which has now been accepted, this assumption has
lost all foundation.
5.15. Today it is clear ⎯ and I believe uncontested ⎯ that the FRY did not continue the
international legal personality and treaty status of the former Yugoslavia. The proposition of
continued personality and continue d treaty status of the FRY (today Serbia and Montenegro) was
rejected. Claims of the FRY to membership in in ternational organizations and claims to status in
treaties on ground of continuity were repeatedly and consistently denied. Furthermore, in the cases
against eight NATO countries jurisdiction was denied because it was determined that the FRY was
not a Member of the United Nations, and was not a party to the Statute between 1992 and 2000.
There was no continuity. The FRY did not cont inue the status and personality of the former
Yugoslavia, and hence, it did not remain bound by the Genocide Convention either.
5.16. Madam President, Members of the Court, it is evident that the Respondent did not
remain bound by Article IX of the Genocide Convention. In order to cover all possible ground, we
have also demonstrated that the Respondent did not become bound by this Article either. We
pointed out that no one even argued that the Respondent ever submitted any notification of
succession to the Genocide Convention. The onl y document which was referred to is the
declaration of 27April1992. We have demonstr ated that this document did not and could not
bring about succession. Automatic succession did not take place either. Even if automatic
succession would have taken place, this could not have encompassed Article IX, given its character
as a clause providing for the judicial settlement of disputes.
5.17. Furthermore, we have shown that the Respondent was not even qualified to be a party
to the Genocide Convention before it became a Memb er of the United Nations. As it became clear
that the Respondent was not a Member State of the United Nations between 1992, when it came
into being, and 2000, when it became a new Member State, it also became clear that it just could - 64 -
not have become a party to the Genocide Convention in that period. It was simply not qualified.
As a non-Member of the United Nations, it could only have joined the Convention following an
invitation extended according to ArticleXI. It is clear that such an invitation was not extended;
this was not even alleged. After the FRY became a Member State of the United Nations, it acceded
to the Convention ⎯ with a reservation to Article IX.
5.18. And finally, let me emphasize again that the treaty status of the Respondent is today
clearly evidenced by the record of the depositary . This record shows and confirms unequivocally
that the Respondent only became a State party to the Genocide Convention when it acceded in
2001 with a reservation to Article IX.
5.19. Madam President, distinguished Members of the Court, we are respectfully asking you
to consider the presented arguments, to investigat e the questions of access and jurisdiction, and to
decline jurisdiction in this case, because the R espondent did not have access to the Court in the
relevant moment, and because the Respondent was not and is not bound by ArticleIX of the
Genocide Convention which is the only purported basi s of jurisdiction. Thank you very much for
your kind attention.
The PRESIDENT: Thank you, ProfessorVarady. There being no further pleadings before
us this morning, the Court will now rise and will resume at 3 o’clock this afternoon.
The Court rose at 12.40 p.m.
___________
Audience publique tenue le jeudi 9 mars 2006, à 10 heures, au Palais de la Paix, sous la présidence de Mme Higgins, président