Audience publique tenue le lundi 8 mai 2006, à 15 heures, au Palais de la Paix, sous la présidence de Mme Higgins, président

Document Number
091-20060508-ORA-02-00-BI
Document Type
Number (Press Release, Order, etc)
2006/44
Date of the Document
Bilingual Document File
Bilingual Content

CR 2006/44

International Court Cour internationale
of Justice de Justice

THHEAGUE LAAYE

YEAR 2006

Public sitting

held on Monday 8 May 2006, at 3 p.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 lundi 8 mai 2006, à 15 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: Presieitgins
Vice-Presi-Kntasawneh

Shi Judges
Koroma
Parra-Aranguren
Owada

Simma
Tomka
Abraham
Keith

Sepúlveda
Bennouna
Skotnikov
Judges ad hoc Mahiou

Kre ća

Couvgisrar

⎯⎯⎯⎯⎯⎯ - 3 -

Présents : Mme Higgins,président
Al-K.vsce-prh,ident

ShiMM.
Koroma
Parra-Aranguren
Owada

Simma
Tomka
Abraham
Keith

Sepúlveda
Bennouna
Sjoteiskov,
MaMhou.,

Kre 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),

Mr. Antoine Ollivier, Temporary Lecturer and Research Assistant, University of Paris X-Nanterre,

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, - 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),

M. Antoine Ollivier, attaché temporaire d’ense ignement et de recher che à l’Université de
Paris X-Nanterre,

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., - 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. (Indianapolis),

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. (Indianapolis),

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: Please be seated. Judge Ranjeva, for a reason explained to me, is unable

to sit this afternoon. Professor Varady, you have the floor.

VMAr. ADY:

1. INTRODUCTION AND ISSUES OF U NITED N ATIONS MEMBERSHIP

OF S ERBIA AND M ONTENEGRO

A. Introduction

1.1. Madam President, distinguished Members of the Court. This afternoon, and for a

considerable part of the morning session tomorrow, we would like to address issues of access and

jurisdiction.

1.2. Madam President, addressing the same is sues in their second round presentations, and

endeavouring to substitute strength to their arguments, the Applicant tries to point out that it would

be somehow inopportune to decline jurisdiction. The argument was made that what is essential is:

“[b]ien sûr que justice soit faite, ce qui ne seait assurément le cas si vous reveniez sur votre

1
compétence” . It has also been said that a judgment on the merits should be rendered because

2
“[t]his is the time to get history right”nd that “[i]f the principal role of the law is to teach, then

the law must not only teach a few individuals . . . it must also teach the citizenry . . .”as also

submitted that a “[j]udgment for genocide would accelerate democratization of the society and help

abandon the ideology of conflicting with neighbours...” . In his concluding sentences in the

morning of 21 April, Professor Franck pleaded to the Court stating: “Permit me, if you will allow

me to be so bold, to encourag e you not to loose yourselves in the technicalities, to remind you just

once more of the central matter: this is a case about genocide.”

1.3. Let me first say that the political consider ations which the Applicant tries to bring to the

fore may very well justify opposite conclusions. It is certainly true that the fact that genocide was

1
CR 2006/37, p. 49, para. 38 (Pellet).

2CR 2006/35, p. 53, para. 13 (Franck).

3
Ibid., para. 15 (Franck).

4CR 2006/30 p. 14, para. 13 (Softić).

5CR 2006/35, p. 54, para. 16 (Franck). - 11 -

alleged invites a special responsiveness. But does this mean that less attention should be devoted

to the foundation of the proceedings, or should the gravity of the allegations rather invite more

procedural scrutiny? Are the fundamental precond itions to proceedings determined by the Charter

of the United Nations and the Statute mere techni calities? As far as de mocratization and peace

with neighbours are concerned, Professor Stojanović has pointed out in his introductory speech that

this is far from being a certain or even likely outcome of a judgment on genocide. As far as the

teaching function is concerned, let me say that fo r a decision to make history and to educate, it

obviously has to stand on procedurally unimpeachable rather than on questionable grounds. An

ultra vires decision cannot teach legal lessons.

1.4. Madam President, what decision would be more opportune and politically more helpful

is not a simple and obvious matter. Nothing in th is case is simple and obvious. But the point is

that we are facing issues of access and jurisdiction, and these have to be settled on grounds of legal

rather than political considerations. Instead of ar guing whether the issue of jurisdiction is more or

less important when we are dealing with the alle gation of genocide, we should concentrate on the

question whether this honoured Court does or does not have jurisdiction. The process of

dissolution of the FRY yielded human sufferings and crimes, and the same process yielded

unprecedented structural and institutional quandari es. Many questions are still unanswered.

Whether this case belongs to the jurisdiction of this Court is part of the truth which needs to be

established.

1.5. Madam President, our arguments presente d during the first round of pleadings were

questioned and contested by the Applicant. We trust that we have answers to the questions, and we

have arguments to rebut the contestations. We shall respectfully present our answers and

arguments.

1.6. This afternoon, I would like first to c ontinue this presentation by addressing the issue

whether the Respondent was or was not a Member of the United Nations between 1992 and 2000.

This issue is a critically important foothold of co nclusions in one or the other direction regarding

the question whether the FRY was or was not a party to the Statute in the relevant period of time,

and whether the FRY remained or became bound by Ar ticle IX of the Genocide Convention. Our

second speaker this afternoon will be Professor Zimmermann who will address the issue of good - 12 -

faith. Professor Zimmermann will also respond to the question raised by Judge Tomka but this will

be tomorrow. After ProfessorZimmermann, I would like to conclude our presentations this

afternoon endeavouring to demonstrate that an investigation of access and jurisdiction is not

impeded by res judicata considerations. Tomorrow morning, Mr. Djeric will demonstrate that the

Respondent did not have access to the Court at the relevant moment of time, and

ProfessorZimmermann will demonstrate that this C ourt has no jurisdiction in this case. These

presentations will be followed by my concludi ng remarks. With your permission, Madam

President, I will now continue with issues of United Nations membership.

B. The Respondent was not a Member of the United Nations
before 1 November 2000

1. Arguments for continuity rehashed

1.7. Addressing issues of United Nations memb ership in the period between 1992 and 2000,

I have to confess that we believed that this i ssue was settled once and for all. During the past

several years the position of the FRY was clarified. The position taken is finally unequivocal. The

FRY was not a Member of the United Nations since it came into being on 27 April 1992, and until

1 November 2000 when it became accepted as a new Member. This position was taken by the

Court in 2004, and the same position was taken by the General Assembly of the United Nations, by

the Security Council, by the Secretary-General of the United Nations ⎯ and also by the Applicant

itself.

1.8. It is true, of course, that the Respondent has also made endeavours to open issues which

appeared to be settled. But this was not a result of a legal gambit. This followed after a historic

change on 5 October 2000 which repr esented more than a simple ch ange of government. At that

juncture, after an appalling decade, our country had to reconsider basic premises, including its

relationship with the international community . Our position towards the United Nations and

towards treaties was also rethought and revis ited, and we opened issues of United Nations

membership, access to the Court and jurisdiction, in the light of new clarifications which led to a

widely shared view. The new Government of the FRY established in October 2000 never changed

its position, never adapted its pos ition towards different circumstances or different audiences. The

Applicant, however, is taking us back to the argum ents which were advanced in vain by the former - 13 -

Government of the FRY ⎯ and which the Applicant is still opposi ng outside this case. The circle

is full.

1.9. In her second round speech of 24 April 2006, Professor Stern tries to take us back to the

stage where uncertainties and legal difficulties obtained. One obvious way towards this purpose is

reliance on the arguments advanced by the former Government of Yugoslavia which insisted on

continuity. In a situation in which uncertainties and controversies did exist, the main points on

which the former Government of the FRY trie d to rely were some doubts as to whether the

designation “Yugoslavia” refers to the former Yugoslavia or to the FRY, and also reliance on some

belated or less than clear statements made by United Nations authorities and officials, and

failure ⎯ or alleged failure ⎯ of strict and timely implementation of some specific consequences

of the positions taken. These points were raised by the former Government of the FRY as an

argument purporting to demonstrate that continuity was somehow approved.

1.10. Professor Stern is not only relying on th e substance of these arguments, she is citing

them explicitly and extensively. She says, referri ng to the counsel of the former Government: “Il

apparaît opportun de commencer cette analyse du statut de RFY à l’ONU en laissant la parole aux

conseils de la Serbie-et-Monténégro, qui, mieux que moi, semblent détruire la thèse qu’ils
6
présentent aujourd’hui.”

1.11. After citing at some length the arguments of the former Government of the FRY,

7
Professor Stern concludes: “Voilà donc des ar guments fort pertinents et fort utiles.” These

arguments may be “fort utiles” from the point of view of the position of the Applicant, but they are

not valid. Of course, I cannot, and must not restrict myself to saying that these arguments are

wrong because these are the arguments of the Miloševi ć Government. I shall demonstrate that

these arguments are untenable, because they are lacking substance and foundation.

1.12. Let me mention, Madam President, that Professor Stojanovi ć, myself, and other

members of the present delegation of Serbia and Montenegro had already faced these arguments at

6
CR 2006/37, p. 13, para. 10 (Stern).
7
CR 2006/37, p. 14, para. 10 (Stern). - 14 -

the time when the opposition in Serbia contested the strong conviction and stance of the former

Government of the FRY regarding continuity. The circle is really full.

1.1 Arguments endeavouring to prove continuity by reliance on belated and inconsistent (or
seemingly inconsistent) actions of United Nations authorities and officials

1.13. Madam President, after the dissoluti on of the former Yugoslavia, Bosnia and

Herzegovina opted to seek United Nations member ship by applying as a new State, and it was

8
admitted on 22 May 1992 . The FRY decided not to take this path. It did not apply for

membership, but claimed instead continuity. This was rejected, but the FRY tried to argue that

some actions of the United Nations nevertheless confirmed continuity.

The issue of sanctions

1.14. One of the arguments raised at that ti me by the former Government of the FRY was

that the sanctions imposed on the FRY indirectly prove that the FRY was a Member of the United

Nations, since sanctions can only be imposed on Me mbers. This is precisely the argument now

raised by Professor Stern. She says: “[L]a Ré publique fédérale de Yougoslavie a également fait

l’objet de sanctions en vertu du chapitre VII, dur ant toute la période du nettoyage ethnique et qu’il

n’a jamais été soutenu que ces sanctions s’adressaient à un Etat non membre de l’ONU.” 9

1.15. Madam President, there is no language in the Charter suggesting that the measures

contemplated in Chapter VII could only be invoked against Members. Accepting the submission of

the Applicant would also mean that use of arme d force under Chapter VII could also be directed

only against a Member ⎯ and never against a non-Member for the protection of the Member. This

is not what Chapter VII says, this is not what any other provision of the Charter says, and this is not

what logic says. What makes things even more obvious, Article2(6) of the Charter makes it

explicit that the Organization may take steps to en sure that States that are not Members will act in

accordance with the Principles of the Charter “so far as may be n ecessary for the maintenance of

international peace and security”.

8
United Nations doc. A/RES/46/237 of 22 May 1992.
9
CR 2006/37, p. 15, para. 11 (Stern). - 15 -

1.16. It is important to add, furthermore, th at the text of the resolution on sanctions imposed

10
on the FRY under Chapter VII on 30 May 1992 gives no support whatsoev er, not even implicit

support, to the contentions that the contemplated san ctions were sanctions against a Member State.

To the contrary, the resolution actually addressed the issue whether the FRY did or did not

continue membership status of the former Yugoslavia, and answered in the negative. This is just a

month after the claim for continuity was presented, and this is before the claim reached the agenda,

yet a preliminary position was already taken. It is stated in the preamble of United Nations

Security Council resolution 757: “Noting that the claim of the Federal Republic of Yugoslavia

(Serbia and Montenegro) to continue automatically the membership of the former Socialist Federal

Republic of Yugoslavia in the United Nations has not generally been accepted”. It is clear, Madam

President, that the sanctions imposed on Yugoslavia can in no way demonstrate, or even imply, that

the FRY was a Member of the United Nations by wa y of continuity, or in any other way between

1992 and 2000.

Appearance before the Security Council

1.17. Professor Stern further argues that the relations between the FRY and the Security

Council were not interrupted, and during the firs t three years the FRY was invited 13 times,

“autorisant le représentant de la RFY non seulement à assister aux réunions formelles, mais même

11
à y prendre la parole” . Sure. But this is in no way evidence of membership or even sui generis

membership, as this is suggested by Professor St ern. Article 32 of the United Nations Charter

makes it crystal clear and explicit that non-Member s of the United Nations shall be invited to

participate in a discussion (without a vote, of course) “if it is a party to a dispute under

consideration by the Security Council”. It is obvious that the FRY was a party to a dispute under

consideration by the Security Council in the period referred to by the Applicant, thus it could have

been invited in that capacity.

1.18. Furthermore, it is important to note that the Security Council was consistently mindful

of the fact that the representative of the FRY cannot be treated as a representative of a Member

1Security Council resolution 757 (1992) of 30 May 1992.

1CR 2006/37, p. 22, para. 29 (Stern). - 16 -

State. In practice, at the beginning of Security Council meetings, the President read a list of

invitees, stating the name of the representative a nd the name of the country it represents. But an

exception was made with regard to the person from the FRY, whose name was read without stating

any country. To take an example from one of th e 13 instances referred to by the Applicant, the

record shows that at the meeting of 19 April 1993, the list of invitees included, among others,

Mr.Sacirbey (Bosnia and Herzegovina)” and, af ter naming all invitees and their countries, the

President stated: “I have also received a request dated 19 April 1993 from Ambassador

DragomirDjokic to address the Council. With th e consent of the Council, I would propose to

invite him to address the Council in the course of its discussion of the item before it.” 12 This

treatment can hardly serve as evidence of the membership, or sui generis membership of the FRY,

the country of Ambassador Djokic.

The initial period

1.19. Another point where the Applicant borro ws the arguments of the former Government

of the FRY–– which arguments remained unsuccess ful–– is the issue of treatment of the FRY

during the first months since it came into being. In the words of Professor Stern:

“Sans doute ne faut-il pas négliger ce fait que pendant les six premiers mois de
son existence ⎯ et l’on dit souvent que les premiers mois de la vie sont déterminants
pour l’avenir ⎯ la République fédérale de Yougoslavie a été un Membre incontesté de
13
l’ONU exerçant toutes les prérogatives d’un Etat Membre de l’ONU.”

1.20. This is the same allegation whic h was repeated by Mr.Vladislav Jovanovi ć, Foreign

Minister in the former Government of the FRY, head of the diplomacy which tried to prove that the

1Provisional verbatim record of the 3201st Meeting, Security Council, United Nations doc. S/PV.3201,
19 April 1993, p. 3.

13
CR 2006/37, p. 15, para.11 (Stern). - 17 -

FRY did, indeed, continue the personality of the former Yugoslavia and, thus, remained a Member

14
of the United Nations .

1.21. Madam President, the allegation of Professor Stern and of Minister Jovanović is simply

not correct. First, it is not supported by any eviden ce and it is not true that the FRY exercised full

membership rights in this period. Furthermore, th e truth is that when the FRY came into being it

submitted a claim. It claimed continuity with the former Yugoslavia, and on this ground, it claimed

membership in the United Nations, membership in other international organizations, and party

position in treaties. It is not true, however, that this claim was accepted ⎯ tacitly or otherwise ⎯

for five or six months, or for any time. What is true is that the competent organs of the United

Nations ⎯ the Security Council and the General Assembly ⎯ took a position on this demand after

about five months, when they rejected the claim of the FRY.

1.22. There is no rule in the Charter or anywhe re else, and there is no rule of logic either

which would say or imply that if a State is claiming that it is a Member of the United Nations, then

it is a Member of the United Nations until the clai m was examined and rejected. It is true ⎯ and

probably understandable–– that before a position was taken, various United Nations officials

treated the representatives of the FRY and the doc uments submitted by representatives of the FRY

in a hesitant and somewhat inconsistent manner. But this certainly cannot make a State a Member

of the United Nations.

1.23. Let me add, Madam President, that the dilemmas and inconsistencies creating a

sui generis position were actually recognized by the Ge neral Assembly. The General Assembly

moved to qualify this situation, and this qualifi cation was mindful of the fact that the FRY was not

a Member. Thus, the term used is not “membership”, not even “ de facto membership”, but

“de facto working status”. In paragraph19 of reso lution48/88 of 29December 1993 the General

14Minister Jovanović published his arguments in scholarly papers as well. In 1998 he writes inFordham
International Law Journal:

“Between April 27, 1992, when the FRY was constituted on the part of the SFRY which remained
after the unilateral secession of the four feunits, and September 22, 1992, when the GA adopted
Resolution 47/1, the FRY exercised all the rights of a member State and actively participated in the work
of the United Nations, including regular voting. Tis borne out by the fact that the FRY was tacitly
accepted as a member State continuing the internaonal legal and political pers onality of the former
SFRY.” ⎯ Vladislav Jovanovic, “The Status of the Federal Republic of Yugoslavia in the United
Nations”, 21 Fordham International Law Journal 1719 (1998), p. 1724. - 18 -

Assembly: “Reaffirms its resolution 47/1 of 22 September 1992, and urges Member States and the

Secretariat in fulfilling the spirit of that resolution, to end the de facto working status of Serbia and

15
Montenegro.”

Circulation of documents

1.24. Madam President, endeavouring to come up with some appearance of continuity, the

Applicant raises the issue of circulation of documents. It refers to the letter of the

Secretary-General dated 27 December 2001, and cites the following passage: “[d]u 27 avril 1992

au 1 novembre 2000, le Gouvernement de la République fédérale de Yougoslavie . . . s’est prévalu

du droit dont jouissait l’ex-Yougoslavie en ta nt qu’Etat Membre de faire distribuer des

communications comme documents officiels de l’Organisation” 1. Professor Stern treats this

document as a discovery, and asks: “Le défende ur soutient-il que ces documents n’ont jamais

17
existé?”

1.25. Well, we shall certainly not say that these documents, or the document referring to

them, do not exist. As a matter of fact, I alr eady cited the letter of the Secretary-General of

27 December 2001 in my concluding remarks in the first round 18. Moreover, we very much intend

to rely on this document, and we have included it in our judges’ folders. But we shall point out the

context of the quotation used by Professor Stern, and we shall also cite what comes immediately

after the quotation.

1.26. Professor Stern cites part of a sente nce from paragraph7 of the document which you

can see in your judges’ folders ⎯ it is tab. 1, and I am referring to page 3 : it is paragraph 7 there.

But this paragraph ⎯ just as the previous one ⎯ does not state conclusions of the

Secretary-General. Instead it restates the argument of the former Government of the FRY.

Paragraph 6, starting on page 2, summarizes the cl aim of the FRY for continuity, and paragraph 7,

15United Nations doc. A/RES/48/88 of 20 December 1993, para. 19.

16
Nations Unies, doc. A/56/767, lettre datée du 27 décembre 2001, adressée au président de l’Assemblée générale
par le Secrétaire général, 9 janvier 2002, par. 7. Cited in CR 2006/37, p. 21, para. 26 (Stern).

17CR 2006/37, p. 21, para. 26 (Stern).

18CR 2006/13, p. 32, para. 3.50 and footnote 14 (Varady). - 19 -

on page 3, starts with the following: “In furthera nce of its claim, the Government of the Federal

Republic of Yugoslavia performed a large number of acts . . .” These acts are those which included

circulation of official documents. What Professor Stern cites is just a recapitulation by the

Secretary-General of the steps taken by the FRY in furtherance of its claim.

1.27. What is even more important, the very same letter of the Secretary-General dated

27December2001 addressed to the President of the General Assembly made it crystal clear that

the proposition of continuity was not accepted, that the FRY only became a Member State of the

United Nations on 1November2000, and that the State the membership of which was not

terminated was the former Yugoslavia, not the FRY. Professor Stern quoted the closing part of the

last sentence of paragraph7. Paragraph8 ⎯ still on page 3 of tab 1 ⎯ starts with the following

sentences:

“In its resolution 55/12 of 1 November 2000, the General Assembly decided to

admit the Federal Republic of Yugoslavia to membership in the United Nations. That
decision necessarily and automatically te rminated the membership of the former
Yugoslavia in the United Nations.” (Emphasis added.)

1.28. Let me add, Madam President, that this document has several appendixes.

AppendixIII is a letter dated 19 November2001 from the Permanent Representatives of all five

successor States. You will find it on page 4 of tab 1. This letter was also signed by

Mr. Mirza Kušljugić, Permanent Representative of Bosnia a nd Herzegovina to the United Nations.

In this letter it is stated: “The State known as Socialist Federal Republic of Yugoslavia has ceased

to exist and was succeeded by five equal success or States, none of which continued its legal

20
personality.”

The issue of membership fees

1.29. This takes us to the issue of membership fees, since the letter of the Secretary-General

of 27December2001, deals with “Unpaid assessed contributions of the former Yugoslavia”.

Madam President, whenever the point was made that there were inconsistencies in the handling of

1See the Letter dated 27 December 2001 from the Secretary- General addressed to the President of the General
Assembly, United Nations doc. A/56/767, para. 8.

20
Letter dated 19 November 2001 from the Permanent Re presentatives of Bosnia and Herzegovina, Croatia,
Slovenia, the former Yugoslav Republic of Macedonia and Yugoslavia, addresse d to the Under-Secretary-General for
Management, United Nations doc. A/56/767, Appendix III, pp. 11-12. - 20 -

the dissolution of the former Yugoslavia the questio n of membership dues emerged as an example.

This issue was also raised by Professor Stern ⎯ again relying on arguments raised earlier by the

former Government of the FRY 21. For a considerable time the treatment of membership dues

marked the sui generis situation and showed difficulties stemming from the less than clear legal

characterizations. Today, however, after clarifications given by competent United Nations

authorities, we have gained a much better perspective in approaching this issue.

1.30. It is a fact that the United Nations Secretariat ⎯ consistent with listing “Yugoslavia” as

a Member ⎯ imposed membership dues on “Yugoslavia”. Although the dues were imposed on

“Yugoslavia”, rather than on the FRY, the FRY ⎯ in line with its endeavour to posit itself as the

continuator of the personality of the former Yugoslavia ⎯ had paid some of these membership

dues between 1992 and 2000.

1.31. Of course, the practice of the Secret ariat cannot bind political organs or Member

States, but the question of membership dues gave ri se to conflicting interpretations and perplexity.

This is the point where clarifi cations were very much needed ⎯ and this is the point where the

clarifications, although not timely, are, indeed, clear and explicit.

1.32. After the FRY was accepted as a Member of the United Nations, the Secretariat took

steps to clarify who “Yugoslavia” was, and who owed payments on behalf of “Yugoslavia”. It has

been made clear and unequivocal that these were membership dues of the former Yugoslavia. The

former Yugoslavia was the Member. The FRY did not have any liability of its own. It was only

invited in 2001 as one of the successor States to join in paying the debts of the predecessor together

with other successors.

1.33. Consistent with this concept and per ception, in 2001, the United Nations sought arrear

payments (the debt of “Yugoslavia”) from all successor States. This is logical, since if the former

Yugoslavia had debts, and if no country continue d its personality, then liabilities (just as assets)

have to be divided among all successors.

1.34. After the admission of the FRY to th e United Nations on 1 November 2000, all five

successor States formally adopted a joint positi on regarding membership dues of the former

2CR 2006/37, pp.23-26, paras. 32-40 (Stern). - 21 -

Yugoslavia. In a lette r dated 19November 2001 ⎯ which we already referred to, and you can

follow this in our judges’ folders, tab 1, on page 4 ⎯ the FRY, Bosnia and Herzegovina and other

successor States spelled out and elaborated their common position. In this letter it was stressed:

“The State known as the Socialist Federal Republic of Yugoslavia has ceased to

exist and was succeeded by five equal successor States, none of which continued its
legal personality. This fact was confirmed by rele vant Security Council and General
Assembly resolutions of 1992.” 22 (Emphasis added.)

1.35. We finally got to the point where am biguous concepts and form ulations were left

behind. Both the United Nations authorities and the Parties to this dispute spelled out a clear

position and joint perception. It has become clear and uncontested that:

⎯ no State continued the personality and membership rights of the former Yugoslavia; and

⎯ the entity which kept some sui generis position and residual membership rights in the United

Nations, and which was referred to as “Yugoslavi a”, was actually the former Yugoslavia, not

the FRY.

1.36. Let me add that the clear and unequivo cal position taken by all five successor States

was repeated. It was repeated, inter alia , in the letter dated 9 August 2005 which prompted

JudgeTomka to raise his question. In this letter, all successor States ⎯ Bosnia and Herzegovina

included ⎯ stated: “The Federal Republic of Yugosl avia that came into existence on 27April

1992 became a United Nations Member not earlier than 1 November 2000; the State is presently

known as Serbia and Montenegro.” 23

1.37. Trying to explain the obvious contra diction between its position during this oral

hearing and an emphatic position taken by the same State less than a year ago, counsel for the

Applicant explains that “ce n’est pas du tout une question de principe, c’est une modeste question

d’argent” 24.

22
See the letter dated 19 November 2001, from the Perm anent Representatives of Bosnia and Herzegovina,
Croatia, Slovenia, the former Yugoslav Republic of Mace donia and Yugoslavia, addresse d to Under-Secretary-General
for Management, United Nations doc. A/56/767, App. III.

23See the letter dated 9 August 2005 fro m the Permanent Representatives of the former Yugoslav Republic of
Macedonia and the Chargés d’affa ires a.i. of Bosnia and Herzegovina, Croa tia, Serbia and Montenegro, and Slovenia,
addressed to Under-Secretary-General for Management, United Nations doc. A/60/140, Ann. IV, pp. 17-19.

24
CR 2006/37, p. 24, para. 36 (Stern). - 22 -

1.38. Not a principle but a modest question of money. Let me say first that this is not exactly

in line with the good faith rhetoric advanced by th e Applicant. But apart from that, this is not

credible either. Had there been continuity, ha d the FRY really continued the personality of the

former Yugoslavia, then it would have been quite obvious to argue that it is the FRY alone who has

to pay the membership dues of “Yugoslavia” between 1992 and 2000, and Bosnia and Herzegovina

would owe no money. It is obvious, however, th at continuity was simply not contemplated any

more by anyone as an option.

1.39. The same position ⎯ which cannot be but a position of principle ⎯ was consistently

taken by Bosnia and Herzegovina ⎯ and not only when money was in question. To cite just one

25
example among many , we shall refer to another joint letter written by the successor States

including Bosnia and Herzegovina ⎯ this time without the FRY, since the letter was dated in 1999.

In this letter, Bosnia and Herzegovina protested against the notification of a declaration made by

the FRY under Article36(2) of the Statute, arguing that the FRY could not make a valid

declaration since it was not a Member of the United Nations, and was not a party to the Statute.

This time the context is not money but exactly the ability of the FRY to appear before this Court as

a party to the Statute. The letter states ⎯ and it is included in our judges’ folder, at tab 2, page 1:

“Our respective Governments would like to express our disagreement with the
content of the above-quoted notification. The notification can have no legal effect
whatsoever, because the Federal Republic of Yugoslavia (Serbia and Montenegro) is

not a State Member of the United Nations, nor is it a State party to the Statute of the
Court, that could make a valid declaration under Article 36, paragraph 2, of the Statute
of the Court.” 26

On behalf of Bosnia and Herzegovina this letter was signed by Ambassador Muhamed Ša ćirbej ⎯

who was at that time Agent of Bosnia and Herzegovina in this case.

25
Among many other examples of stat ements of Bosnia and Herzegovina emphasizing that the FRY did not
continue the personality of the former Yugoslavia, and was not a Member of the United Nations between 1992 and 2000,
see, e.g., United Nations docs: A/C.5/49/49 (8 D ecember 1994), A/49/853-S/1995/147 (17 February 1995), A/50/656 ⎯
S/1995/876 (19 October 1995), A/51/564 ⎯ S/1996/885 (1 April 1996), E.CN.4/1998/171 (22 April 1998), S/1999/120
(5 February 1999), S/1999/209 (26 February 1999), S/1999/639 (3 June 1999), A/54/L.62 (8 December 1999).

26
Letter dated 27 May 1999 from the Perman ent Representatives of Bosnia a nd Herzegovina, Croatia, Slovenia,
and the former Yugoslav of Macedonia to the United Nations addressed to the Secretary-General, United Nations
doc. A/53/992. - 23 -

1.2Parallels with the USSR and other countries, and the practice of the IMF and of the

World Bank

1.40. Madam President, I trust that it has alr eady been made sufficiently clear that there was

no continuity, the FRY was not a Member of th e United Nations between 1992 and 2000. Let me

address, nevertheless, very briefly, the argument based on alleged parallels between the dissolution

of the former Yugoslavia and the dissolution of the USSR and other countries.

1.41. Let me first say that these parallels ⎯ even if they were matching ⎯ certainly could

not prove continuity. They cannot possibly prove that the continuity claim of the FRY was

accepted, they could only indicate that the claim could have been accepted ⎯ although it was not.

1.42. But even this was not proven, because the parallels are not matching. Let us take as an

example only the case which occurred in the same time period. The claim of Russia regarding

continuity was accepted. Russia continued the pos ition of the USSR in the United Nations and in

the Security Council. But this happened after an unequivocal agreement of the successor States

was reached. In the 21December 1991 Alma At a Agreement, the successor States of the USSR

stated explicitly: “States of the Commonwealth support Russia’s continuance of the membership

of the Union of Soviet Socialist Republics in the United Nations including permanent membership

27
of the Security Council and other international organizations.” This makes an obvious difference.

In our case ⎯ unlike in the case of Russia ⎯ no other successor State supported the continuity

claim of the FRY.

1.43. The Applicant also submits ⎯ without any reference ⎯ that the IMF and the World

Bank considered all five States emerging from the dissolution of the former Yugoslavia as

continuator States 28. This point is more relevant because it contains an assertion as to how the FRY

was treated, rather than how it could have been tr eated. But the assertion is patently wrong. The

actual position taken by the World Ba nk and the IMF is the exact opposite ⎯ they did not accept

continuity. Let me quote the position taken by the IMF:

“[T]he Republic of Bosnia and Herzeg ovina, the Republic of Croatia and the

Federal Republic of Yugoslavia (Serbia/ Montenegro) are the successors to the assets

2Agreement concluded between former Soviet republics, reprinted United Nations doc. A/47/60-S/23329

(30 December 1991), Ann. V, p. 8; also in 31 ILM, p. 151.
28
CR 2006/37, p. 27, para. 45 (Stern). - 24 -

and liabilities of the SFRY... Each successor may forma lly succeed to the
membership of the SFRY in the IMF . . .” 29

The same position was taken by the World Bank as well 30. Positions taken by the IMF and the

World Bank do not support, but clearly contradict, the proposition of continuity.

1.3 Whose membership was not terminated?

1.44. Relying on the letter of the Legal Counsel of 29 September 1992, the Applicant states

that since resolution47/1 did not bring about e ither termination or suspension of membership

31
rights, the FRY remained a Member of the United Nations . This argument could, of course, only

stand on the assumption that the State the membership of which was neither terminated nor

suspended was the FRY ⎯ rather than the former Yugoslavia. We shall demonstrate that this is a

wrong assumption. The Applicant also argues that ⎯ although no suspension is mentioned in

resolution 47/1 ⎯ Article 5 of the Charter regulating su spension was nevertheless applied, and

32
since suspension is at issue, th e FRY must have been a Member . This is not only in evident

contradiction with the letter of the Legal Counsel of 29 September 1992 which says explicitly that

33
resolution 47/1 was not adopted pursuant to either Article5 or Article6 of the Charter , but it is

also a clear petitio principii. Instead of trying to prove that the FRY was a Member and was

suspended, the Applicant simply alleges that Ar ticle5 was applied towards the FRY, and this

allegation purports to be the proof that it was a Member.

1.45. These questions take us back to resolution 47/1 and to the letter of the Legal Counsel of

29 September 1992. Madam President, resolution 47/1 clearly does not recognize any rights or any

standing of the FRY. There is no sentence, or part of sentence, or hint, which would accord any

membership rights to the FRY. All dispositions c ontained in the resolution are rejections of the

claims of the FRY. The FRY submitted one singl e ground on which it claimed to be a Member of

29Ibidem; emphasis added.

30
See World Bank, Socialist Federal Republic of Yugos lavia Termination of Membership and Succession to
Membership, Executive Directors’ resolution No. 93-2 (25 February 1993); see also World Bank Press Release
No. 93/S43 (26 February 1993), and World Bank Press Release No. 2001/324/ECA.

31
CR 2006/37, p. 17, para. 17 (Stern).
32
Ibid,, p. 16, para. 14 (Stern).

33It is stated in the letter: “This explains the that resolution 47/1 was not adopted pursuant to Article 5
(suspension) nor under Article 6 (expulsion).” (United Nations doc. A/47/485.) - 25 -

the United Nations ⎯ this was the claim to continuity. Th e General Assembly rejected this claim

stating that the FRY “cannot automatically con tinue the membership of the former Socialist

Federal Republic of Yugoslavia in the United Na tions”. The General Assembly decided instead

that the FRY “should apply for membership in the United Nations” as other successor States of the

SFRY did . An explicit rejection just cannot indicate an implicit acceptance.

1.46. One could possibly say that it was not n ecessary to mention in resolution 47/1 that the

FRY shall not participate in the work of the General Assembly. This would have followed anyway

from the fact that the FRY’s claim to membership rights by way of continuity were rejected, and

that the FRY was instructed to apply for membersh ip if it wished to become a Member. But one

can certainly not infer any acceptance and right s from the mere fact that in addition to a general

rejection an unnecessary specific rejection was added to the text of the resolution. The General

Assembly added to the general denial of membership rights a specific denial of the right to

participate in its own work. This may have been ex abundanti cautela , or maybe because at the

given moment, before the General Assembly, partic ipation in the work of the General Assembly

was the most direct and most imminent issue.

1.47. Madam President, my aim is not to pr ove that all steps taken by United Nations

authorities and officials regarding the Yugoslav proble m were timely and logically coherent. It is

generally submitted that this was not the case, but this is not relevant either. The point is that some

belated or blurred steps taken just did not and could not make the FRY a Member of the United

Nations. The wording adopted by resolution 47/1 did contain a logical redundancy. It would have

been perfectly sufficient to stat e that the FRY did not continue the personality of the former

Yugoslavia and thus has to apply for membership if it wishes to be a Member. It was not necessary

to spell out specific consequences of this holding. But again, this redundancy may have blurred the

picture, but could not have made the FRY a Member of the United Nations.

1.48. Madam President, as far as references to “Yugoslavia” are concerned, the membership

of which, according to the Legal Counsel, was “neither terminated nor suspended”, these references

did not and could not have represented references to the FRY. This conclusion follows from logic,

3United Nations doc. A/RES/47/1 (22 September 1992). - 26 -

it follows from the wording of the letter of the Legal Counsel ⎯ and, most importantly, it follows

from explicit clarifications given by the competent United Nations authorities.

1.49. First of all, the Legal Counsel could not have referred to the membership of the FRY

when it said that the membership was neither terminated nor suspended. One just cannot terminate

or suspend or even contemplate termination or su spension of the membership of a State that just

presented a claim to membership by way of continuity ⎯ which claim was plainly denied.

1.50. It is the membership of the SFRY, the former Yugoslavia, which was formally neither

terminated nor suspended. This happened because the situation which resulted from the

disintegration did not fall into any of the patterns known by the Charter. It was clear that the FRY

had not automatically become a Member, but the question arose whether one could consider the

membership of an original Member as being extinguished without agreement of the successors, and

without reliance on procedures of expulsion or suspension.

1.51. The former Yugoslavia was an original Member, and neither the Security Council nor

the General Assembly took decisions which would have formally terminated this membership.

Explaining the emerging situation, Matthew Craven concludes that the former Yugoslavia was not

expelled or suspended, because there was no pr ovision in the Charter covering the emerging

situation35. This rather anomalous situation, in wh ich residual membership rights of the former

Yugoslavia were kept, lasted until a joint position between the successor States was taken.

1.52. What is also important, the letter of the Legal Counsel of 29 September 1992, although

it uses the unfortunately vague term “Yugoslavia”, it also gives indications regarding the entity to

which this designation refers. The Legal Coun sel identified the flag of the country whose

membership was neither terminated nor suspended, and made it plain that it was the flag of the

former Yugoslavia. The Legal Counsel explained that the flag which remains hoisted is “the flag

of the old Yugoslavia as it is the last flag of Yugoslavia used by the Secretariat”.

1.53. Let us add that while the designation “Yugoslavia” was typically left without

explanation by competent United Nations authorities, when an explanation was given, it was stated

3In the words of Craven: “The entity known as ‘Yugoslavi a’... has not formally been expelled or suspended
from the organization and is still listed as being a party to the Charter of the United Nations, having been one
continuously since 1945.” (M. Craven, “The Genocide Case, The Law of Treaties and State Succession”, 68 British Year
Book of International Law (1998), p. 133). An explanatory footnoteadded to this sentence: “This may well be

because the Charter makes no provision for such cases of extinction.” (Op. cit., FN 38). - 27 -

that “Yugoslavia” stands for the former Yugoslavia. For example, the 1998 Yearbook of the United

Nations which publishes an official “Roster of the United Nations”. And this roster includes

“Yugoslavia”, and explains in clear and simple terms that this name “[r]efers to the former Socialist

Federal Republic of Yugoslavia” . 36

1.54. Let me finally stress that today, there are no more ambiguities. The present version of

Historical Information on Treaties deposited with the Secretary-General makes it clear and explicit

that “Yugoslavia”, to which the Legal Counsel re ferred in his letter of 29 September 1992, was the

former Yugoslavia. This clarifying word was not included in the original letter, but now it is

stressed:

“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.” 37 (Emphasis added.)

2. The FRY only became a Member of the United Nations on 1 November 2000

1.55. Madam President, Members of the Court, it is common ground that the position of the

FRY and the reactions of United Nations authoritie s were not clear and unequivocal between 1992

and 2000. There were contradict ory references. But one cannot acquire membership by way of

contradictory references. It is a persistent fact that the claim of the FRY for continuity was

rejected. Thus it only could have become a Member of the United Nations by way of applying as a

new State ⎯ and this is what eventually happened. It is true that these facts are more clearly

discernible today than in 1993 or 1996. But the facts did not change. They were only clarified.

1.56. Due to lack of clarity a sui generis situation may have existed, but this did not, and

could not have amounted to membership. Professor Stern quotes with approval an important

characterization formulated in the Legality of Use of Force cases 3. I shall quote exactly the same

passage which was cited by Professor Stern:

“Il convient de préciser que la locution ‘sui generis’ employée par la Cour pour
qualifier la situation de la République fédérale de Yougosla vie dans la période allant

3Yearbook of the United Nations 1998, p. 1420, footnote 9.

37
Historical Information , http://untreaty.un.org/ENGLISH/bible/e nglishinternetbible/historicalinfo.asp ⎯ under
the heading “former Yugoslavia”.
38
CR 2006/37 p. 12, para. 5 (Stern). - 28 -

de 1992 à 2000 n’est pas une expression normative, dont découleraient certaines

conséquences juridiques bien définies, mais une expression descriptive...” (Affaire
relative à la Licéité de l’emploi de la force (Serbie-et-Monténégro c. Belgique) ,
exceptions préliminaires, arrêt du 15 décembre 2004, par. 74.)

1.57. This is true and exact. The sui generis qualification does not prescribe a distinct legal

standing. There is no third position between being a Member or not being a Member of the United

Nations. The qualification of the positi on of the FRY between 1992 and 2000 as a sui generis

position is descriptive, rather than prescriptive. It is, let me quote again, “not a... term from

which certain defined legal consequences accrue; it is merely descriptive of the amorphous state of

affairs in which the Federal Republic of Y ugoslavia found itself during this period” ( Legality of

Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment of

15 December 2004, para. 74).

1.58. Madam President, the FRY did not continue the personality and United Nations

membership of the former Yugoslavia. It became a new Member on 1 November 2000. I trust that

this is by now evident. It is also evident that it became a new Member without any hint or

suggestion that it may have been a Member before . To the contrary, all steps taken during the

procedure of admission as a new Member clearly excluded the hypothesis that the FRY may have

had membership status before.

1.59. The procedure of admission bears no trace or hint of a pre-existing membership or

quasi-membership position. There is no acknowledgmen t or hint of such a position in the letter of

39
President Koštunica seeking membership . There is no acknowledgment or hint of such a position

in either the procedure or in the resolutions yielded by the procedure.

1.60. President Koštunica does not mention any special standing or existing rights of the

FRY. Instead, he relies on Security Council resolution777 which stated that the FRY cannot

continue automatically the membership of the fo rmer Yugoslavia in the United Nations, and which

39
See the Application of the Federal Republic of Yugoslavia for Admission to Membership in the United Nations,
United Nations doc. A/55/528 S/2000/1043. - 29 -

recommended the General Assembly to decide that the FRY should apply for membership in the

United Nations .40

1.61. This was simply and unequivocally the admission of a new Member. No procedural

step prescribed for admission of new Members was avoided. The procedure was exactly the same

as the procedure of admission of Bosnia and Her zegovina. Let us add that admission took place

under agenda item 19 with the title: “Admission of new Members to the United Nations” 41. Upon

admission the United Nations official List of Member States makes it crystal clear that the FRY,

42
now Serbia and Montenegro, is a Member since 1 November 2000 .

1.62. Madam President, distinguished Members of the Court, the Respondent became a new

Member of the United Nations on 1 November 2000. It was not a Member before, it did not

continue the personality and membership of the fo rmer Yugoslavia. There have been five equal

successor States. There may have been imprec ise and ambiguous actions undertaken by United

Nations authorities and officials, there were c ontroversies, but these could not make the FRY a

Member of the United Nations. A sui generis situation may have emerged, but, as this was stressed

by this Court, “[the FRY] thus has the status of membership in the United Nations as from

1 November 2000 . . . it became clear that the sui generis position [of the FRY] could not have

amounted to its membership in the Organization” (Legality of Use of Force, op. cit., para. 78).

1.63. This honoured Court, the General Assembly, the Security Council, the

Secretary-General of the United Nations, made it clear that the FRY was not a Member of the

United Nations before it was accepted as a ne w Member on 1 November 2000. There was no

continuity. This was what ⎯ outside this case ⎯ the Applicant itself is saying emphatically and

consistently. This is what cannot be denied any more. Since there was no continuity, and since the

FRY became a new Member on 1November2000, the FRY could not have been a party to the

4See Application of the Federal Republic of Yugoslavia c ited in the preceding footnote. The letter of President
Koštunica refers to Rule 134 of the Rules of Procedure of the General Assembly, and to Rule 58 of the Provisional Rules
of Procedure of the Security Council. Both of these Rules are in chapters entitled “Admission of new members”. See
Chapter X of the Provisional Rules of Procedure of the Secu rity Council, and Chapter XIV of the Rules of Procedure of

the General Assembly.

4United Nations doc. A/55/PV.48, The record of th e 48th Plenary Meeting of the General Assembly,
1 November 2000, p. 26.

42
The List of Member States, www.un.org/Overview/unmember.html ⎯ status as of 6 May 2006. - 30 -

Statute in 1993, and the FRY could not have re mained bound by the Genocide Convention, and

could not have become bound either before 1 November 2000.

Madam President, thank you very much for the attention and I would like to ask you now to

give the floor to Professor Zimmermann. Thank you.

The PRESIDENT: Thank you, Professor Varaday. I do now call to the Bar

Professor Zimmerman.

Mr. ZIMMERMANN: Thank you, Madam President.

2.ISSUES OF GOOD FAITH

2.1. Madam President, Members of the Court, may it please the Court. Following up on the

issues related to United Nations membership, I will now address the Applicant’s arguments based

on good faith. Let me start with some general remarks.

A. General observations as to the Applicant’s arguments relating to good faith

2.2. In his pleading of 21 April, counsel for the Applicant, and in particular Professor

Thomas Franck, at length elaborated on why the Respondent should be precluded from raising

objections based on questions of access and jurisd iction at this stage of the proceedings. The

fundamental line of reasoning underlying his pleading ⎯ recurring so often that the Applicant’s

Co-Agent would no doubt ha ve spoken of a “mantra” ⎯ was the issue of good faith. This good

faith argument was couched in diffe rent legal concepts, which were used almost interchangeably:

throughout the two rounds of pleadings, counsel for the Applicant notably argued that

“Yugoslavia” ⎯ the term apparently being used with deliberate lack of precision ⎯ “perhaps

created a situation of estoppel” 4, that it violated the principle of good faith , that it created “a form

45
of forum prorogatum”, that Serbia and Montenegro put itself in a situation of estoppel , that the

Court should apply the “concept of equitabl e estoppel and the obligation of good faith” 46, that the

43
CR 2006/3, para. 19 (Pellet).

4Ibid.

4CR 2006/35, para. 21 (Pellet).

46
CR 2006736, para. 3 (Franck). - 31 -

47
Respondent has “acquiesced” in the exer cise of jurisdiction by this Court , or that its behaviour

might amount to “preclusion” or “foreclusion” 48, a “tacit recognition” of the Court’s jurisdiction or,

49
finally, a “waiver of rights” . Along similar lines, counsel on the other side have also argued that

the principles of venire contra factum proprium non potest, of allegans contraria non audiendus

est or finally nullus commodum capere de sua injuria propria should apply to the present case 50.

2.3. Interestingly, while providing the Court with a whole arsenal of legal concepts, counsel

for the Applicant said very little about the conditi ons governing their application. What is more,

Professor Franck seemed to argue that the “go od faith considerations”, whether in their

acquiescence, estoppel or other form, precluded th e Applicant not only from raising objections

directed against jurisdiction under ArticleIX of the Genocide Convention, but also from bringing

arguments concerning the question of access to the Court. This reasoning of course was in line

with the Applicant’s general approach of blurring issues of access and jurisdiction into a matter of

“compétence”, but it is clearly not in line with your own jurisprudence.

2.4. In short, counsel for the Applicant proposed extremely far-reaching consequences while

never telling the Court what are the exact legal re quirements in order for the very concept of good

faith to be applied. To support this rather casual approach with respect to legal concepts,

ProfessorFranck first and foremost stressed th e nature of the Respondent’s pleas, which he

51
denounced as references to “technicalities” or “evasion” . Yet, his approach does not take into

account the position of this Court, which has made it clear in its correspondence with the Parties in

this case that they are entitled to raise jurisdictional issues at this point in time if they wish do so.

2.5. Madam President, it is on the basis of th is understanding that I will now submit to you a

number of reasons why the Applicant’s good faith arguments should not meet with success. In

doing so, I will attempt to follow the different legal requirements governing the arguments based

on good faith. This also means that I will appro ach the matter on the basis of your jurisprudence,

47Ibid., paras. 12 and 17 (Franck).

48
Ibid., para. 23 (Franck).
49
Ibid., para. 25 (Franck)

50CR 2006/37, para. 15 (Pellet), respectively para. 36 (Pellet).

51
See CR 2006/35, p. 52, paras. 11-12, and CR 2006/36, p. 31, para. 21, respectively (Franck). - 32 -

in which you have frequently made clear that c oncepts such as estoppel or acquiescence and other

related notions presuppose the existence of certain specific legal requirements. As I will

demonstrate, at least three of these requirements are not fulfilled in our case.

2.6. First, the concepts of acquiescence, estoppel or preclusion only operate and apply in

interstate relations and with regard to subjective rights and obligations between the States

concerned. Thus they do not apply to objective statutory requirements, which the parties cannot

dispose of.

2.7. Second, acquiescence, estoppel and other related notions presuppose either clear and

unambiguous conduct on behalf of the State that is said to have lost its right, or a clear and

unambiguous situation in which that State could have been reasonably expected to assert its right.

2.8. Third and finally, estoppel, acquiescence and other related notions presuppose a reliance

on the part of the other State ⎯ that is the State pleading estoppel or acquiescence ⎯ that the right

in question would no longer be asserted.

2.9. As I will show in the following, not one of these three elements is met in the present

case. The Applicant’s reliance on general notions of good faith ⎯ whether in their acquiescence,

estoppel or other form ⎯ therefore is unjustified, and therefore it cannot meet with success. Before

exploring these issues in turn, let me make tw o further brief observations. Both concern the

relation between the different arguments advanced, and are intended to chart the course for their

evaluation that will then follow.

2.10. For once, I would like to stress that the arguments directed against the Applicant’s

pleadings on good faith are alternative arguments. Although I submit to your attention three

considerations, I would like to clarify that each si ngle one of them is sufficient to undermine the

Applicant’s pleading. Having invoked the gene ral concept of good faith, the Applicant has to

establish that all its requirements are met in the present case. I believe that none of them can be

sustained, but it would of course be sufficient if only one of them was not met.

2.11. Furthermore, it bears repeating that our arguments relating to access and jurisdiction

are also alternative arguments. As I have noted , various counsel for the Applicant, in their

respective pleadings, often seemed to blur matters of access and jurisdiction. But their alternative

character is neatly brought out in your 2004 Judgments in the Legality of Use of Force cases, and in - 33 -

particular in the brief phrase: “only those St ates which have access to the Court can confer

jurisdiction upon it” .2

2.12. Madam President, Members of the Court, I hope you forgive me for commenting on

these rather evident issues. However, they seem to me, at least, to be necessary comments on the

Applicant’s rather generalized assertions of general legal concepts ⎯ concepts that produce broad

legal consequences but that apparently are not governed by specific legal conditions.

2.13. Let me now begin with the more speci fic considerations aimed at countering the

Applicant’s good faith argument. The first cons ideration is that the notions of estoppel and

acquiescence are simply not applicable with respect to issues of access to the Court.

B. Estoppel and acquiescence are not applicable with regard to issues of access

2.14. The essence of my argument in that rega rd is this: a State can only acquiesce in the

loss of a right, or be estopped from invoking it, in relation to another State, or other States.

Acquiescence and estoppel presuppose a legal relation be tween actors of international law. In his

separate opinion in the Temple of Preah Vihar case, on which counsel for the Applicant so much

focused his attention, Judge Alfaro made this clear by pointing to the quintessential example of

53
bilateral treaties . In the Land, Island and Maritime Frontier Dispute case, a Chamber of this

Court described the essentially bilateral nature of estoppel when describing it as: “a statement or

representation . . . by one party to another and reliance upon it by that other party to his detriment

54
or to the advantage of the party making it.”

2.15. More generally, it is surely no coinciden ce that international courts and tribunals have

usually been faced with claims based on acqui escence or estoppel in cases involving territorial

disputes or disputes concerning boundaries. What these disputes have in common is that the

disputed right (in whose loss one State may have acquiesced, or that that State may be estopped

from invoking) can form the subject of inter partes negotiation. It is surely up to the two (or more)

52
Case concerning Legality of the Use of Force (Serbia and Montenegro v. Belgium), para. 46.
53
I.C.J. Reports 1962, p. 42.

54Case concerning Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to
Intervene, Judgment, I.C.J. Reports 1990, p. 118, para. 92. - 34 -

parties to the dispute to agree on the course of their boundary, or on the territorial status of a

disputed piece of land.

2.16. But the same considerations do not apply to the rights that are at issue in the present

case, namely the right to raise arguments based on the lack of one party’s access to the Court. The

statutory requirements concerning access are simply not subject to rules of estoppel or

acquiescence, as the parties are not in a position to dispose of them. Access to the Court is not

subject to the discretion of the parties. It excl usively concerns the relationship between a State (in

this case, the Respondent), on the one hand, and the Court, on the other.

2.17. Whilst acquiescence and estoppel concern subjective legal positions, access is an

objective condition ⎯ a requirement whose fulfilment is to be assessed exclusively by this Court,

as the guardian of the Statute.

2.18. Madam President, Members of the Court, already during the first round of our

pleadings, my colleague and friend Vladimir Dj eric has explored your jurisprudence on the

question of access. I will certainly not repeat what he has said nor deal with your jurisprudence in

any detail. Instead, I would simply reiterate that your jurisprudence clearly establishes access as

the most fundamental condition of proceedings, and one that any State appearing before this Court

must fulfil in each and every case at the relevant time.

2.19. In his pleading, Mr.Djeric has also analysed the mi nimum requirements governing

access to the Court, listed in Article 93 of the Ch arter of the United Nations and Articles 34 and 35

of the Statute, and he has shown that this Cour t has already determined that the Respondent does

not meet these minimum requirements with rega rd to cases brought before its admission to the

United Nations in 2000.

2.20. Counsel for the Applicant contend the Respondent is barred from now arguing lack of

access. But this ignores the basic distinction be tween, on the one hand, subjective legal positions

subject to acquiescence or estoppel, and, on the other, objective requirements of inter-State

litigation that can only be determined by the C ourt, and to which acquiescence and estoppel do not

apply.

2.21. Madam President, allow me to further ela borate on this crucial distinction. It is a

distinction that is widely recognized by writers an alysing the Court’s law and procedure. I do not - 35 -

wish to present to you an exhaustive analysis of th e literature on the topic, but would like to draw

your attention to two very pertinent remarks. The first is by Georg Schwarzenberger, who

observed in no unclear terms that: “if a party to a dispute is a State to which the Court is closed,

55
this suffices to prevent the case from receiving consideration by the Court” .

2.22. Second, the distinction between subjective f actors capable of modification through

inter partes conduct and objective factors to which acquiescence and estoppel do not and did not

apply, was also accepted by Professor Thirlway. Writing on forum prorogatum, that is, a form of

party conduct that like acquiescence is said to establish consent, he stated:

“ Forum prorogatum only operates to provide the element of agreement
constitutive of jurisdiction; thus it cannot make up for a jurisdictional or procedural
defect which cannot be cured by the agreement of the parties, e.g., lack of status as a
56
party to the Statute.”

2.23. But what is by far more important is of course your own jurisprudence on the matter.

In fact, in your 2004 Judgments in the cases concerning Legality of Use of Force , you

unequivocally clarified that it is upon the Court, and not upon the parties, to determine the question

whether a given State has access to the Court or not:

“The question is whether as a matter of law Serbia and Montenegro was entitled

to seize the Court as a party to the Statute at the time when it instituted proceedings in
these cases. Since that question is independent of the views or wishes of the Parties,
even if they were now to have arrived at a shared view on the point, the Court would

not have to accept that view as necessarily the correct one. The function of the Court
to enquire into the matter and reach its ow n conclusion is thus mandatory upon the
Court irrespective of the consent of the Par ties and is in no way incompatible with the
57
principle that the jurisdiction of the Court depends on consent.”

2.24. It is thus ex officio that the Court can, and indeed has to, examine whether the

Respondent could validly be brought before this Court in the present case. Arguments based on

acquiescence, estoppel or forum prorogatum, even if their requirements were otherwise fulfilled ,

quid non, cannot apply and in particular cannot absolve the Court from considering the matter.

2.25. Madam President, allow me to put fo rward two further arguments supporting this

conclusion. The first is a simple comparison; it is aimed at reinforcing the importance of the

55
G. Schwarzenberger, International Law as applied by international courts and tribunals, Vol. IV, p. 434.
56
H. Thirlway, “The Law and Procedure of the International Court of Justice 1960-1989”, BYBIL, 1998, 1, p. 27.
5Case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium) , Judgment of
15 December 2004, para. 36; emphasis in the original. - 36 -

fundamental distinction to be drawn between s ubjective legal positions governed by acquiescence

or estoppel, and objective requirements of inter-State litigation outside the parties’ competence.

2.26. If we assume for a moment that the pa rties could decide on access to the Court, by

means of estoppel, acquiescence, or through some other form of conduct, what would be the

consequences of such a line of reasoning? On e would have to accept that just as access, other

objective conditions could be de termined by them. If we look at the provisions setting out

objective requirements of proceedings before this Court, namely Article 93 of the Charter and

Articles 34 and 35 of the Statute, we for example, fi nd in Article 34, paragraph 1, that the Court is

only open to States. Now, could that requirement also be subject to a determination by the parties?

Could two sub-State entities, or two groups, decide that they would regard each other as States in

the sense of Article34 of the Court’s Statute, and argue their dispute here, in the Great Hall of

Justice? I believe it is safe to assume that they could not.

2.27. To take another example: could States agree on a certain meaning of the term “treaties

in force”, and then simply bring a case on the basi s of Article35, paragraph2, of the Court’s

Statute?

2.28. These questions, at least at first glance, might seem far-fetched and of course can only

be answered in the negative. But I believe they illustrate that there are certain conditions of

proceedings before this Court that are objective conditions which are not subject to the conduct of

the parties ⎯ whatever form such conduct might take. Among these objective conditions that have

to be fulfilled is, as you clarified, also the question of access to the Court.

2.29. Madam President, Members of the Court, there is a second argument justifying the

distinction between objective and subjective factors. I could elaborate now on that point or we

could take the break. I am in your hands, Madam President.

The PRESIDENT: Why not continue for just a while longer?

Mr.ZIMMERMAN: Thank you. As I said, there is a second argument justifying the

distinction between objective and subjective factors and that concerns the institutional set-up of the

United Nations. One of the recurring themes of th is case is the close relation between issues of

United Nations membership and proceedings before this Court, the United Nations “principal - 37 -

judicial organ” . The United Nations Charter of course deliberately divides the powers and

competencies of its main organs. Not always does it do so in a very clear and unambiguous

manner. But it is very clear in one respect: in its Articles 4 to 6 , it entrusts decisions about

membership, including admission, to two of the main organs, namely the Security Council and the

General Assembly. This Court has emphasized this in the Advisory Opinion on Conditions of

Admission of a State to Membership in the United Nations . In your Opinion of 28 May 1948, you

first noted the material conditions for membership under Article 4, paragraph1, of the Charter.

You then went on to observe: “All these c onditions are subject to the judgment of the

Organization” ( I.C.J. Reports 1948 , p. 62); and then further noted: “The judgment of the

59
Organization means the judgment of the two orga ns mentioned in paragraph 2 of Article 4” : that

is the General Assembly and the Security Council.

2.30. In our case, which is so charged with membership issues, the role of the General

Assembly and the Security Coun cil and the interrelation between the different United Nations

organs should not be overlooked. It was said by Judge Lachs in 1992 that, while the various main

organs of the United Nations do each have their variou s roles to play in a situation or dispute, they

should act: “in harmony though not, of course, in concert and that each should perform its

functions with respect to a situation or dispute, different aspects of which appear on the agenda of

each, without prejudicing the exercise of the other’s powers” ( Questions of Interpretation and

Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan

Arab Jamahiriya v. United Kingdom), Provisional Measur es, Order of 14April1992, I.C.J.

Reports 1992; separate opinion of Judge Lachs, p. 27).

2.31. Admittedly, the Security Council and th e General Assembly were in part responsible

for what you described as an “amorphous legal si tuation concerning the status of the Federal

Republic of Yugoslavia vis-à-vis the United Nations” 6.

58Cf. Art. 92, United Nations Charter.

59
Ibid.
60
Case concerning Legality of the Use of Force (Serbia and Montenegro v. Belgium), para. 79. - 38 -

2.32. However, your jurisprudence also show s that the amorphous legal situation has not

been indefinite. It came to an end on 1November2000, with the admission of the FRY to the

Organization. In line with the procedure established by the United Nations Charter, that admission

61
was the result of a recommendation by the Security Council and a subsequent decision by the

General Assembly 62. One should also note that the approach adopted by the two main organs was

based on a deliberate decision to make use of the regular Article 4 admissions procedure rather than

any other form. This clear-cut approach chosen by both organs is even more relevant since the

cases of Indonesia and the dissolution of the Unite d Arab Republic have demonstrated that the

organs of the United Nations may also simply reconfirm otherwise doubtful membership

situations ⎯ if, indeed, they considered that one St ate was still a Member. Besides, as we all

know, after the Dayton Peace Agreement, discussion s had been underway within the organization

to do just this, namely to simply confirm th at “Yugoslavia” was still a Member of the United

Nations. But this was not done: the two United Na tions organs apparently considered that there

was no Yugoslav membership which could be confirmed.

2.33. This new development, this new admission, instead of a reconfirmation of membership,

also finally clarified the status quo ante. Again, I can restrict myself to citing what you stated in

December 2004:

“in light of the legal consequences of th e new development since 1November2000,

the Court is led to the conclusion that Se rbia and Montenegro 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 Application to institute the present
63
proceedings before the Court on 29 April 1999”

and, one may add, as it seems to be a necessary im plication, at any other point in time between

27 April 1992 and 1 November 2000.

2.34. Madam President, Members of the Court, could I ask you to consider for a moment the

consequences of a judgment based on acquiescen ce or estoppel or any other party-oriented

6United Nations doc. S/RES/1326 of 31 October 2000.

62
General Assembly res. 55/12 of 1 November 2000.
63
Case concerning Legality of the Use of Force (Serbia and Montenegro v. Belgium), para. 79. - 39 -

mechanism holding that, notwithstanding the Secu rity Council and General Assembly decisions,

the Respondent could be treated as a State party to the Statute of the Court in the present case.

2.35. It is evident that to hold that by virtue of estoppel or acquiescence or otherwise, the

parties could have themselves agreed on a certai n interpretation of the FRY’s membership issue

would completely ignore the United Nations Charter’s division of powers. If membership was

negotiable for the parties, what would become of Article4 of the Charter whose fundamental,

indeed constitutional, importance you so rightly underlined in the 1948 Admissions Advisory

Opinion?

2.36. What is more, what signal would a j udgment by this Court, ratifying a “party

agreement” on membership issues, send to the ot her main organs of the United Nations? Would

such a judgment really be in line with the late Judge Lachs’ plea for inter-institutional respect?

2.37. The Respondent submits that App licant’s arguments on good faith ignore the

constitutional set-up of the United Nations Charter in that they fail to accept the political organs’

competence to decide issues of membership. This again shows that Applicant’s pleading on the

issue of good faith is based on a fundamentally flawed conception of the underlying legal notions,

of the rights and obligations that can form the subject of acquiescence and estoppel, and of the

function of membership within the Organization.

2.38. Let me conclude this part of my ar gument by observing that even if one were to

otherwise consider, be it only arguendo, that due to considerations of good faith Respondent could

not argue a lack of jurisdiction now, it would still not have access to the Court. This fundamental

requirement for the Court to decide this case on its me rits is simply not subject to the wish of the

States involved in the current proceedings ⎯ whatever position they might have taken inside or

outside this Great Hall of Justice, be it individually or be it jointly.

I have hereby concluded my first argument and I would now move on either to my second

argument or we take the usual break.

The PRESIDENT: I think now will be a good moment for the break. Thank you.

Mr. ZIMMERMAN: Thank you. - 40 -

The PRESIDENT: The Court now rises.

The Court adjourned from 4.25 to 4.45 p.m.

The PRESIDENT: Please be seated. Yes, Professor Zimmermann.

Mr. ZIMMERMANN: Thank you, Madam President. Madam President, Members of the

Court, I hope I have demonstrated that issues of access to the Court are not subject to acquiescence,

estoppel and other party-oriented mechanisms in the first place.

2.39. I will now move on to my second argument directed against the Applicant’s good faith

pleadings. I will demonstrate that the Respondent never expressly or implicitly accepted that it

would not raise jurisdictional arguments, that accordingly there was never a clear and unambiguous

expression of a loss of right.

C. No clear and unambiguous expression of a loss of right

2.40. Madam President, Members of the Court, issues of estoppel and acquiescence are to be

viewed in the context of the issue we are considering ⎯ and we are focusing on issues of

jurisdiction. From the very beginning of these proceedings the Respondent has always challenged

the Court’s jurisdiction. This was formally ac knowledged by the Court when it stated in its

1996Judgment on jurisdiction that the Responde nt had “consistently contended during the

subsequent proceedings 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 to the

provisional measures stage of the case, I.C.J. Reports 1993, pp. 341-342).

2.41. As a matter of fact the Applicant itself complained that the Respondent had time and

again claimed that the Court has no jurisdiction. It is already for this reason that it seems

far-fetched to argue that the Respondent would now be estopped to do just this ⎯ argue that the

Court lacks jurisdiction. As this Court observed in the Nicaragua case:

“estoppel may be inferred from the conduct, d eclarations and the like made by a State
which . . . clearly and consistently evinced acceptance by that State of a particular

régime” (I.C.J. Reports 1984, p. 415, para. 51) (emphasis added).

2.42. In our case, counsel for Bosnia and He rzegovina however attempted to focus on one

specific point in the Respondent’s c onduct relating to jurisdiction ⎯ namely, its alleged failure to - 41 -

raise the question of its treaty membership in th e Genocide Convention at an earlier stage of these

proceedings. By doing so, counsel for the Appli cant has however unduly restricted the scope of

analysis. Let me again quote this Court’s statement from the Nicaragua case. In that case, this

Court required the “acceptance by . . . State of a particular régime” (ibid.). In the present case, the

relevant régime is that of the Court’s jurisdic tion. The question to be answered therefore is

whether or not the Respondent has “clearly and consistently” accepted that régime ⎯ that is, your

jurisdiction. But taking the procedural history of this case into account, can one really say that the

Respondent has clearly and consistently accepted th at this honourable Court has jurisdiction? I

believe the answer to this question is obvious ⎯ the Respondent has never done so.

2.43. Madam President, Members of the Court, but even if we follow, for the time being,

the restricted focus the Applicant is proposing, the circumstances of the present case are still not of

such a nature as to give rise to estoppel or acqui escence. According to the Applicant all that the

Respondent should have done is to rai se “the most obvious defence” available ⎯ that is its status

within the United Nations Char ter and the Genocide Convention 64. Yet given the ambiguities that

surrounded the legal status of the Respondent, it simply could not have been expected to discuss its

own status. It is true that to ProfessorFranck , the matter seemed clear. But, as we know, many

things appear clear in retrospect, and yet were fa r from obvious at the relevant point in time. It

seems to me that ProfessorFranck, looking back at the earlier stages of these proceedings, may

have presented a rather simplified picture of a highly complex situation: one that does not do

justice to the uncertain state of affairs obtaining in 1996.

2.44. Had matters indeed been as obvious as Professor Franck now suggests, the Respondent

could indeed now be barred from relying on a differe nt legal position. However, if matters were

not quite as clear, then one might view the Respo ndent’s conduct in a quite different light. The

FRY was then arguing on the basis of a certain assumption which at that time was perfectly tenable

but later proved to be incorrect. If that is th e correct position, I submit that the Respondent’s

decision not to raise all possible preliminary objec tions in 1996 cannot be held against it now, and

cannot be interpreted as forming the basis for acquiescence or estoppel.

6CR 2006/36, p. 27, para. 9. - 42 -

2.45. Fortunately, there is much on record that corrects Professor Franck’s rereading of this

case’s history. You, yourself, first pronoun ced on the matter in your Order on provisional

measures of 8 April 1993 where you already not ed the “legal difficulties” to which the

Respondent’s status within the United Nations had given rise (I.C.J. Reports 1993, p. 14, para. 8).

2.46. Later, in your Judgments of 15 December 2004 in the Legality of Use of Force cases,

you again recalled this state of af fairs when observing that “the sui generis position of the Federal

Republic of Yugoslavia within th e UnitedNations... had been fraught with ‘legal difficulties’

throughout the period between 1992 and 2000” (case concerning the Legality of Use of Force

(Serbia and Montenegro v. Belgium), para. 78).

2.47. Looking back to that period, you spoke of an “amorphous legal situation” and admitted

that had you had

“to determine definitively the status of the [FRY] vis-à-vis the United Nations [at that
time], [your] task of giving such a determin ation would have been complicated by the

legal situation, which was shrouded in uncer tainties relating to that [very] status”
(ibid., para. 79).

2.48. I submit that these two statements provide a much more accurate description of the

situation obtaining between 1992 and 2000 than the one given by counsel for the Applicant.

However, it is interesting to observe that at an earlier stage of the proceedings, the Applicant itself

had accepted that matters were far more complex than it is now prepared to acknowledge. For

example, in the Memorial, the Applicant “admitte d that... the governing bodies of the United

Nations have not made yet a final decision re garding the status of Yugoslavia (Serbia and

65
Montenegro) in the United Nations” .

2.49. And indeed, if we look at the Applican t’s present position, the matter even seems to

remain controversial to this very date. Alread y, during the first round of pleadings, my colleagues

and I have argued that your more recent jurisp rudence clearly establishes that Serbia and

Montenegro was not a Member of the United Nations between 1992 and 2000. But

notwithstanding this jurisprudence, counsel for th e Applicant have maintained the opposite. In her

pleading Professor Stern vigorously argued that the Respondent had remained a Member of the

6Memorial of 15 April 1994, para. 4.2.3.14. - 43 -

66
United Nations . I note in passing that these views can hardly be brought in line with other

statements made by representatives of the Applicant ⎯ a matter about which I will speak in a

minute. But for the moment, the more important point to note is, that according to counsel for the

Applicant, still, even today, the Respondent’s status within the United Nations, between 1992 and

2000, remains controversial.

2.50. Now, that may be so. But if indeed there was ⎯ and apparently there still is ⎯ what

67
Professor Stern called “une bataille de qualification” , could one really fault one Party in this

litigation for having initially opted for one of the defensible positions ⎯ one that later turned out to

be incorrect? I submit that the Respondent’s position, in 1996, was ⎯ to say the least –– plausible,

and it should not now be faulted for having taken it in the first place.

2.51. Madam President, Professor Pellet has advanced an additional argument ⎯ possibly

because he was himself not sure of the apparent “clarity” of the situation obtaining in 1993 or 1996.

In his pleading of 21April, he argued the Resp ondent could have eas ily clarified the legal

68
uncertainties which prevented the Court from taking a definitive stance on the matter . But again,

I submit, this argument fails to accept that in 1996, matters simply were not clear. And besides ⎯

and possibly more importantly –– it vastly overestimates the Respondent’s powers.

2.52. Let me begin with this latter point. As you observed in 1993 and affirmed in 2004, it

was not one State’s insistence on a certain reading of history that caused problems. Rather, the

“legal difficulties” to which you referred flowed from the course deliberately adopted by the United

Nations two main political organs at the time. Cl early, the only conduct that could have clarified

the legal situation would have been a decision by t hose two political organs. In fact, the matter is

rather clearly recognized in the Applicant’s Memorial, where it is stated: “ the governing bodies of

the United Nations have not yet made a final decision regarding the status of the Respondent” 6.

2.53. In short, while the Respondent’s view was certainly one of the factors complicating the

legal assessment, the Respondent was not alone in that, and ⎯ more importantly ⎯ it could not

66
CR 2006/37, pp. 10 et seq.

67CR 2006/27, p. 12, para. 6 (Stern).

68CR 2006/36, p. 23, para 58 (Pellet).

69
Memorial of 15 April 1994, para. 4.2.3.14. - 44 -

simply have clarified matters. Very briefly, I submit that in any event, one cannot fault the

Respondent now for its failure to abandon its claim to identity at the preliminary objections stage.

As your jurisprudence shows, matters simply were not that clear. True, the Respondent’s reading

was not the one that eventually was to become accepted. But in 1996, it seemed to be a tenable

position. Besides a State certainly could not be required to give up its claim of continuity in a

situation which was so much shrouded with uncer tainties and where mixed signals were at that

time being sent out by the organs of the United Nations.

2.54. It was a somewhat curious turn of events that in her pleading of 24 April,

ProfessorStern has placed before you much of the evidence supporting the interpretation and the

claim of continuity previously made by the FRY itself. Let me be precise: the Respondent does

not follow her in her conclusion that the FRY w as a United Nations Member in the period between

1992 and 2000. As my friend and colleague, Tibor Varady, has shown, that indeed seems to be a

rather far-fetched conclusion. However, Prof essor Stern’s comprehensive presentation of the

evidence at least establishes one matter, namely that in 1996, the membership situation still awaited

a final clarification, and that different positions could still be taken and that the Respondent can

accordingly not now be barred from raising this very issue.

2.55. Lastly, in order to support their argument on good faith, counsel for the Applicant have

made much of the counter-claims raised in this case. To Professor Franck, the Respondent thereby

70
“actively asserted its adherence to the Convention” . But is that really a convincing evaluation of

the Respondent’s conduct?

2.56. What would have been Professor Franck ’s advice to a government whose preliminary

objections had just been rejected? Would one not rather have to say that after the 1996 Judgment

had been rendered, Serbia and Montenegro simply had no other choice than to proceed with the

case ⎯ even though its own position as to jurisdiction had not changed a iota.

2.57. And can one really fault a State for av ailing itself of a procedural right to bring

counter-claims ⎯ a right whose existence this Court affirmed, over the Applicant’s objections, in

its Order of 17 December 1997?

7CR 2006/36, p. 29, para. 12. - 45 -

2.58. We would submit that the FRY’s count er-claims, which in any event were later

withdrawn after the FRY had been admitted to the United Nations and after its legal status had thus

been clarified, were nothing but a logical consequence of the Court’s 1996 Judgment on

jurisdiction. More generally, th e Respondent submits that the exercise of rights either expressly

provided for in the Statute or the Rules of this h onourable Court or developed in its jurisprudence

should be presented as what they are: an exerci se of rights specifically recognized, but not an

illegitimate delaying strategy or a sign of bad faith.

2.59. Madam President, estoppel and acqui escence are exceptional constructions. They

should not be applied to a situation wh ich was “shrouded in legal uncertainties” 71even more so

when the Respondent has consistently taken a certa in position namely that the Court does not have

jurisdiction. That brings me to my last point namely that moreover there simply was no legitimate

reliance on the side of the Applicant.

D. No legitimate reliance on the part of the Applicant

2.60. Madam President, distinguished Members of the Court, even if you followed

Professor Franck’s interpretation, and held that everything was obvious in 1993 or 1996, I submit

that the Applicant’s argument based on good faith still would not and could not succeed. In order

to explore this, allow me, Madam President, to d eal with a third argument. It is based on the

Applicant’s own perception of the ⎯ allegedly so obvious ⎯ legal situation. While he did not say

so expressly, I do not think that counsel for the Applicant would dispute that estoppel and

acquiescence presuppose a certain form of conduct on behalf of the State invoking it.

2.61. The State claiming estoppel and acquiescence ⎯ the Applicant in this case ⎯ must

have legitimately relied on the appearance allegedly created. After all, as Professor Franck noted,

good faith arguments ultimately are based on notions of fairness 72. Fair conduct in litigation

however is a basic rule that applies to both pa rties to the dispute, and when assessing one party’s

behaviour, one should not ignore the other party’ s conduct. Within the legal régime governing

estoppel and acquiescence, this basic condition is most commonly phrased in terms of a “legitimate

71
Cf. case concerning Legality of the Use of Force (Serbia and Montenegro v. Belgium), para. 79.
72
See e.g. CR 2006/36, p. 32, para. 22. - 46 -

reliance”. With respect to estoppel and preclusion, Judge Fitzmaurice, in his separate opinion in

the Temple of Preah Vihar case, referred to this in the following sense:

“The essential condition of the operation of the rule of preclusion or
estoppel . . . is that the party invoking the rule must have ‘relied upon’ the statement or
conduct of the other party, either to its own detriment or to the other’s advantage.” 73

2.62. In rather similar terms, this Court observed in the Nicaragua case ⎯ in the passage to

which I have already referred:

“estoppel may be inferred from the conduct, d eclarations and the like made by a State
which not only clearly and consistently evinced acceptance by that State of a
particular régime, but also had caused another State... in reliance on such conduct,
74
detrimentally to change position or suffer some prejudice” .

2.63. Finally, with respect to acquiescence, ess entially the same requirement is contained in

the frequent statements that the State invoking acquiescence must have been entitled to perceive the

other State’s silence as amounting to an abandonment of a right.

2.64. Applying this requirement of reliance once again to the context of jurisdiction let me

state first that only reliance on acceptance of jurisdic tion can be relevant. But there can have been

no such reliance since Respondent had continuously challenged the Court’s jurisdiction. Since the

Applicant was aware of this it agai n attempted to focus on other points. But even with regard to

those other points ⎯ can one really say that the Appli cant has actually relied on the previous

position taken by the FRY as to its status vis-à-vis the former Yugoslavia? Can one really say that

Bosnia and Herzegovina relied that the FRY did c ontinue the international legal personality of the

former Yugoslavia? Can one really say that Bosn ia and Herzegovina relied that no notification of

succession or accession was needed in order for the Respondent to become a contracting party to

the Genocide Convention? And, finally, can one really say that Bosnia and Herzegovina relied that

the FRY continued to be a Member of the United Nations and thus had access to the Court?

2.65. I would submit that the answer to all these questions is “no”, and that this is yet another

reason why the Applicant’s good faith argument must fail. As a matter of fact, while going on at

some length about the Respondent’s conduct, both Pr ofessors Franck and Pellet, in their pleadings

of 21 and 24 April respectively, were remarkably brief in their comments on the Applicant’s own

73
I.C.J. Reports 1962, p. 62.
74
I.C.J. Reports 1984, p. 415, para. 51; emphasis added. - 47 -

conduct. In fact, it is telling that in his plead ing, Professor Franck did not once seek to establish

that the Applicant had relied upon the Respondent’s alleged failure to raise arguments based on

access and jurisdiction. In fairness, he did briefly mention the Applicant’s position at the

beginning of his pleading. He there noted that in 1996 and thereafter “Bosnia, of course, would

75
have had no reason to raise the issue.”

2.66. Strictly legally speaking, that may be correct. Of course, Bosnia was not obliged as a

matter of law to raise arguments that might even tually benefit the Respondent. But this does not

mean that Bosnia’s conduct was irrelevant fo r the purposes of acquiescence and estoppel. If we

look at the statements just quoted, from your ju risprudence and from Judge Fitzmaurice’s separate

opinion in the Temple of Preah Vihar case, we realize that the question is not whether the party

invoking a good faith argument was under an obligation to clarify the alleged appearance itself, and

to do so within the context of an on-going litigation.

2.67. Rather and instead, the test is a much more general one: it must be assessed whether

the party invoking a good faith argument in fact re lied upon the other party’s statement, or absence

of statement. The reason for this is obvious, and it goes back precisely to the concepts of decency

and moral conduct that Professor Franck has emphasized so forcefully. These concepts require that

the party invoking a good faith argument must have itself been acting in good faith.

2.68. The Respondent submits this is not wh at Bosnia and Herzegovina has done. For the

purpose of this litigation, and for the purpose of this litigation only –– as indeed Professors Pellet

and Franck seem to admit ––, Bosnia and Herzegovi na has accepted that Serbia and Montenegro is

identical with the former Yugoslavia ⎯ a conduct which was adopted with the clear goal of

avoiding certain “procedural problems”. Yet, outsi de this courtroom, Bosnia and Herzegovina has

always ⎯ and consistently ⎯ argued that the FRY cannot con tinue the international legal

personality of the former Yugoslavia. It is well known that Bosnia and Herzegovina has in the past

consistently, and indeed successfully, opposed the claim of the FRY to be identical with the former

Yugoslavia. It is largely due to that position ta ken by the other successor States of the former

Yugoslavia ⎯ and Bosnia and Herzegovina itself in particular ⎯ that the FRY’s original claim to

7CR 2006/36, p. 27, para. 9 (Franck). - 48 -

be identical with the former Yugoslavia failed to gain acceptance by the international community.

With respect, more specifically, to the Res pondent’s position within the United Nations, the

Applicant has on numerous occasions stated very clearly that in order to become a United Nations

Member ⎯ and consequently ipso facto a party to the Statute of the Court ⎯ Serbia and

Montenegro would have to apply for membership in line with the procedure set out in Article 4 of

the Charter. I do not think I have to recite the string of statements to which Professor Varady made

reference.

2.69. Madam President, Members of the Court, to be very clear: none of this is intended to

suggest that Bosnia and Herzegovina was under an obligation itself to raise arguments based on

access or jurisdiction in the present case. As Professor Franck states, of course, it was not obliged

to do so. But certainly, its own inconsistent c onduct is relevant in the context of estoppel and

acquiescence. As Professor Franck stated, both con cepts are grounded in good faith. But in terms

of good faith, and when assessing whether the Applicant relied on the appearance allegedly created,

it hardly seems possible to me to distinguish ⎯ as Professor Franck seems to imply ⎯ between its

position within this courtroom and its position taken elsewhere.

2.70. There simply do not exist two Bosnias, to paraphrase Professor Franck “this Bosnia”

and “that Bosnia”, one Bosnia pleading in this Great Hall of Justice, the other Bosnia taking

political and legal positions elsewhere in the Un ited Nations. There is only one Bosnia. And

certainly, within the context of a good faith argu ment, this one Bosnia which has consistently

claimed that the Respondent was not a United Na tions Member, which has always required the

Respondent to submit specific notifications of succession ⎯ this one Bosnia cannot now argue that

the Respondent’s acceptance of precisely this very same position is a “last minute shift” of

76
position .

2.71. As Professor Pellet stated, taking up a well-known description, acquiescence and

77
estoppel preclude parties from blowing hot and cold: “on ne peut souffler le chaud et le froid” .

But blowing hot and cold is precisely what the Applicant has done over the years. It cannot in

fairness and decency now preclude the Responde nt from taking a position that it itself has

76
Cf. CR 2006/36, p. 30, para. 15 (Franck).
7CR 2006/37, p. 39, para. 15 (Pellet). - 49 -

advanced for years. Put differently, in the terminology of Judge Fitzmaurice’s opinion in the

Temple of Preah Vihar case, the Applicant has simply not “relied on” the Respondent’s alleged

failure to raise procedural arguments at an earlie r stage. That, Madam President, Members of the

Court, is the third reason why I believe Bosnia’s good faith argument must necessarily fail.

E. Summary of argument

2.72. Madam President, let me now conclude by summarizing my argument.

2.73. First, we have demonstrated that the very concepts of estoppel and acquiescence or any

other similar party-oriented mechanisms are not a pplicable with regard as to whether the FRY has

access to the Court or not. Instead, this is a purel y objective question to be decided ex officio by

the Court regardless of the position the Parties have taken.

2.74. Second, we have also demonstrated that th e behaviour of the Respondent did not

amount to a clear and unambiguous expression of a loss of right since the Respondent has

consistently questioned the Court’s jurisdiction throughout th e whole case. In such a situation, the

simple fact of not raising one jurisdictional ar gument cannot amount to estoppel or acquiescence

with regard to jurisdiction even more so if this argument was less than obvious given the

uncertainties surrounding the status of the Respondent at the time. The Respondent therefore has

neither acquiesced in the exercise of jurisdiction by this Court nor is it estopped from continuing to

raise arguments as to the Court’s jurisdiction.

2F.i7n5a.lly, third, I have also demonstrated that Bosnia and Herzegovina may not claim to

have legitimately relied on the position allegedly taken by the Respondent given its own behaviour

outside these proceedings.

2.76. Madam President, Members of the Court, this brings me to the end of my presentation

for today. I thank you for your kind attention and would now propose that you, Madam President,

call once again upon my colleague, Tibor Varady, who will then address the issue of res judicata.

The PRESIDENT: Thank you, Professor Zimmerman. Professor Varady. - 50 -

VMAr. ADY:

3. THE 1996 J UDGMENT ON JURISDICTION AND THE ISSUE OF RES JUDICATA

A. The assumption on which the 1996 Judgment on jurisdiction was based

3.1. Madam President, distinguished Members of the Court, the Applicant argued that we

78
have deprived the 1996 Judgment on jurisdiction of its meaning , and adds that the 1996 Judgment

is res judicata , and it bars the investigation of access and jurisdiction at this stage of the

proceedings. We would like to face these arguments.

3.2. First, Professor Pellet sees “dénaturation” in the fact that we submitted that the only

assumption on which the 1996 Judgment 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”. Professor Pellet does not deny this. He says that this is partially true, but he submits

that the decision of the Court is based on two elements: “l’ intention exprimée par la RFY d’être

79
liée, d’une part; et, l’absence de contestation opposée à cette intention d’autre part”

3.3. Madam President, let me repeat once again that it is well known that envisaging a link

between the FRY and the Genocide Convention, in 1996 the Court found a starting point in the

undisputed fact that the SFRY (the former Yugosla via) signed this Convention in 1948. This can

only be relevant with regard to the position of the FRY if the FRY continued the personality and

treaty status of the Yugoslavia which signed the Convention in 1948. And this is, indeed, the

sequence of logic the Court follows. “L’intention exprimée par le FRY...” is not an abstract

intention “d’être liée”. This is the intention to continue the pers onality of the former Yugoslavia

expressed in a declaration of 27 April 1992. The C ourt quotes this declaration, and cites the exact

part which insists on continuity:

“The Federal Republic of Yugoslavia, continuing the State, international legal
and political personality of the Socialist Fede ral Republic of Yugoslavia, shall strictly
abide by... the commitments that the Socialist Federal Republic of Yugoslavia

assumed internationally.”

78
“Le défendeur dénature le sens de l’arrêt de 1996”, CR 2006/36, p. 11 (Pellet).
79
CR 2006/36 p. 13, para. 31 (Pellet). - 51 -

3.4. Immediately after quoting this part of the declaration of continuity, the Court starts the

next sentence by saying “This intention thus e xpressed by Yugoslavia ...” (case concerning

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia

and Herzegovina v. Yugoslavia), Preliminary Objecti ons, Judgment, I.C.J. Reports 1996 (II),

p.610, para.17). It is crystal clear that “this intention thus expressed” expresses the claim for

continuity. The intention the Court is referring to is the intention to continue the international legal

and political personality of the former Yugoslavia. This only confirms that the assumption on

which the 1996 Judgment on jurisdiction was based is that of continuity ⎯ the only plausible

assumption on which the FRY could have been linked to the Genocide Convention in 1996.

3.5. The Applicant is uncomfortable with this assumption, because after the 1996 Judgment

was rendered, it has become evident that this assu mption was an erroneous one. This is clearly

conceded by Professor Pellet himself. He speak s without any reservation about the “‘présomption

de continuité’ ⎯ qui eût été erronée et, de plus, contra ire à la position de la Bosnie-Herzégovine,

80
qui n’en avait jamais fait mystère” .

3.6. Demonstrating that the assumption on which the 1996Judgment on jurisdiction was

based is that of continuity, we submitted that w ith regard to the FRY, and with regard to the

intention expressed by the FRY, the Court uses the “remained bound” language, which is consistent

with the assumption of continuity, while with regard to Bosnia and Herzegovina, the “became

bound” language is used, which is consistent with the assumption of treaty action undertaken by

Bosnia and Herzegovina as a successor State. Th e inference is obvious, but the Applicant tries to

mitigate its importance, by saying that the distinct ion between “être lié” et “devenir lié” is purely

academic 81. Let me say first that the distinction between “être lié” et “devenir lié” could really be

somewhat more volatile than the distinction be tween “remained bound” and “became bound”. But

the Court in fact, does not use the “être lié” la nguage when it says what was the intention of

Yugoslavia. The French and the English texts are consistent. Instead of using the term “être lié”

which would better suit the arguments of the Appli cant, the Court speaks of the intention of the

80
CR 2006/36, p. 12, para. 30 (Pellet).
81
CR 2006/36, p. 16, para. 39 (Pellet). - 52 -

FRY “de demeurer liée” ( Application of the Convention on the Prevention and Punishment of the

Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, I.C.J.

Reports 1996 (II), para. 17 (in French)) ⎯ exactly to “remain bound” which is only consistent with

the assumption of continuity.

3.7. The Applicant also mentions as a purported basis of the 1996 Judgment “l’absence de

contestation opposée à cette intention”. Madam Presiden t, first of all it is clear that the “intention”

which was not contested is the intention to conti nue the personality of the former Yugoslavia. We

are still talking about the same assumption of cont inuity. Furthermore, absence of contestation

could conceivably represent a self-supporting basis only if jurisdiction itself were not contested. In

this hypothesis ⎯ if all conditions were met ⎯ it could conceivably amount to acquiescence or

forum prorogatum. But this is not what we are talking ab out, and this is not what the Court was

talking about. Jurisdiction was contested. Moreove r, this hypothesis was clearly discarded by the

Court and has just been cited by my colleague, Professor Zimmerman.

3.8. In the context of the 1996 Judgment “l’absence de contestation opposée à cette

intention“ is nothing else but a supporting observation, and this is what the Court exactly says. In

the words of the Court: “The Court observes, furt hermore, that it has not been contested...”

(Ibidem, para. 17.) In the given exact context, absen ce of contestation was clearly not the basis of

jurisdiction. It was only an observation supporting the assumption of continuity on which the

1996 Judgment on jurisdiction was based.

B. The res judicata argument

3.9. Turning to the res judicata argument, let me first say that, contrary to what the
82
Applicant suggests, we are certainly no t trying to negate the principle of res judicata . That

would, of course, make no sense. Res judicata is, no doubt, a principle of paramount importance,

but it is not without limitations, and it does not im pede the investigation of all findings in all

judgments.

82
See section B in the presentation of Professor Pellet entiLe défendeur conteste le principe même de
l’autorité de la chose jugée”, CR 2000/36, pp. 13-17. - 53 -

3.10. Devoting due attention to the issue of res judicata, we shall demonstrate that within the

exact procedural setting of this case there are no impediments which would prevent the

investigations of access and jurisdiction in the merits phase.

1. Decisions on preliminary objections do no t and cannot have the same consequences as
decisions on the merits

3.11. Madam President, the Applicant is taki ng for granted that judgments on preliminary

objections have the same effects as judgments on the merits. It relies on several citations from

secondary sources, and on two judgments of this Court. We shall demonstrate that these sources do

not substantiate the assertion of the Respondent, and we shall also demonstrate that there is much

more support in both scholarly writings and court practice proving that it is, indeed, possible to

raise or re-raise issues of access and jurisdiction in the merits phase.

3.12. Just as in the first round of oral pleadings, the Applicant is relying on the 1949 Corfu

Channel case and on the 1999Cameroon v. Nigeria case. We have already presented our

arguments regarding these cases during the first round, and these arguments have not been rebutted.

3.13. As far as the Nigeria v. Cameroon case is concerned, it does contain a passage on

res judicata in the context of a judgment on prelimin ary objections, but as this is admitted by
83
Professor Pellet this can only be a dictum, sin ce the judgment is dealing with interpretation . As

far as the Corfu Channel cases are concerned, while in the third phase, a preliminary objection was,

indeed, dismissed on grounds that the same object ion was already dealt with earlier, the second

decision ⎯ the one rendered on the merits ⎯ actually supports the assumption that a judgment on

preliminary objections does not create res judicata impediments, since after preliminary objections

were rejected in the first phase ⎯ the preliminary objections phase ⎯ new objections regarding

jurisdiction were raised in the merits phase ⎯ and these objections were, indeed, duly considered

(Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949 , p. 26.).

Thus, the Corfu Channel cases actually lend more support to our position.

3.14. In his closing pleadings of 24April 2006, Professor Pellet also makes reference to

paragraph18 of the ICAO Council Judgment in support of his contention that the res judicata

8CR 2006/36, p. 14, para. 35 (Pellet). - 54 -

84
principle is “[f]ermemant contenu par la jurisprudence de la Cour” . But this is probably just an

oversight, because paragraph 18 does not speak at a ll about the judgments of this Court, it speaks

about the effects of the decisions of the ICAO Council itself. Let me add that the ICAO Council

Judgment provides full justification to our approach ⎯ but I shall return to this case later.

3.15. The Applicant also relies on scholarly writings, but almost all of these sources only

confirm some uncontested general principles, without addressing the specific issue we are facing.

Nagendra Singh is only cited to confirm that: “One of the most important characteristics of the law

85
declared by courts and tribunals must be stability.” Charles De Visscher is cited in support of the

proposition that “il est de l’intérêt général que les litiges ne recommencent pas indéfiniment

relativement au même objet” 86.

3.16. More to the point is the quotation from Rosenne in the context of the South-West Africa

case, but here Rosenne actually confirms that pre liminary objections may, indeed, be raised in the

merits phase, even after the Court has upheld its jurisdiction in the preliminary objections

proceedings, on the condition that the new objecti on does not raise issues that have been decided

with the force of res judicata 87.

3.17. Shabtai Rosenne is even more unequivo cal when he treats this issue outside the

specific context of the South-West Africa case. He concludes that preliminary objections may be

raised, or re-raised in the merits phase. He sp eaks of the “non-exhaustive nature” of preliminary

objections, and stresses:

“[w]hether or not matters of jurisdiction have been raised at the stage of preliminary

objections, they may still be raised later, even by the Court proprio motu . The
‘non-exhaustive quality of the preliminar y objections proceedings’ means that the
party raising an objection does not exhaust its ability to try and bar a decision on the

merits simply by invoking the preliminary objection in good time, though once out of
time it cannot prevent proceedings on the me rits which will revert to their normal
88
course from the point at which they were suspended.”

84
CR 2006/37, p. 45, para. 29 (Pellet).

85CR 2006/36, p. 21, para. 52 (Pellet).

86
CR 2006/36, p. 22, para. 56 (Pellet).
87
CR 2006/35, pp. 60-61, para. 14 (Pellet).

88S. Rosenne, The Law and Practice of the Inter national Court 1920-2005, Jurisdiction , Vol.II, Nijhoff,
Leiden/Boston, 2006, p. 876. - 55 -

Thus, preliminary objections may, indeed be ra ised after the preliminary objections stage,

they just cannot suspend the proceedings on the merits anymore, but will be heard together with the

arguments on the merits.

3.18. Madam President, our case has not been shaped along common patterns, and thus the

existing scholarly analyses are rarely inspired by cases or situations with a matching pattern. But

there are such analyses, and in order to find a pertinent point of reliance, I would like to focus ⎯ in

addition to the opinion of Rosenne ⎯ on those scholarly opinions which are addressing the exact

pattern which we are facing in our case.

3.19. A further example of scholarly opini ons based on a matching pattern is that of

Georg Schwarzenberger. He states:

“If in the interlocutory judgment the Court affirms its jurisdiction, but

subsequently, finds that it lacks jurisdiction, it would be contrary to the jus aequum
character of the relations between the Cour t and the parties to treat the judgment on
jurisdiction as irreversible.” 89

Further on, Schwarzenberger gives even more emphasis to the same point:

“In the absence of the requisite jurisdiction, any proceedings before the Court

are ultra vires and a nullity. Thus irrespective of whether the duty is expressly stated,
it is incumbent on the Court to examine ex officio this conditio sine qua non of its
activities.”90

3.20. The same position is endorsed and explaine d by Marten Bos. Discussing the range of

Article60 of the Statute, he states: “[c]ela nous paraît à tel point absurde que la Cour, en pleine

connaissance de cause, puisse être obligée de prononcer ultra vires que nous considérons ledit

article 60 comme n’étant pas applicable aux arrêts préliminaires” . 91

3.21. Madam President, there are strong arguments in favour of allowing a reconsideration of

issues of access and jurisdiction during the merits phase. These arguments are particularly forceful

with regard to situations which are matching the pattern of our case.

89
G. Schwarzenberger, International Law as Applied by International Courts and Tribunals , Vol.IV, London
1986, pp. 447-448.

90Op. cit., p. 511.

91
M. Bos, Les conditions de procès en droit international public , Bibliotheca Visserania, Vol. 19, Leiden, Brill,
1957, p. 321. - 56 -

2. There is no res judicata within the exact setting of this case

2.1.The issue of the access to the Court and the issue whether the Respondent was bound by
Article IX were not raised or considered as preliminary objections ⎯ and, thus, cannot
be res judicata

3.22. Let us now turn our attention even more closely to the exact setting of this case which

yields a number of reasons, any and all of them leading to the conclusion that the res judicata

principle does not impede the Court to investigat e issues of access and jurisdiction in the merits

phase of our case. To begin with, it is important to point out that the specific issues pertaining to

access and jurisdiction we are initiating to be ra ised in this phase of the case had not been

addressed beforehand ⎯ at least not in this case.

3.23. During the preliminary proceedings , the Respondent submitted seven preliminary

objections, and these are the objections which define the range and the scope of the 1996 Judgment.

Some of these objections dealt with jurisdiction ratione personae over the Applicant, but none of

the seven preliminary objections dealt with jurisdiction ratione personae over the Respondent. It is

a fact that none of the preliminary objections dealt with the issue whether the FRY had access to

the Court, and none of these objections raised the question whether the Respondent was bound by

Article IX of the Genocide Convention.

3.24. Madam President, Article 79 (9) of the cu rrent Rules of Court, as well as Article 79 (7)

of the Rules as they apply to our case, make it clear in identical terms what is the subject-matter

and what is the range of a judgment on preliminary objections. It is stated that “the Court shall

give its decision in the form of a judgment, by which it shall either uphold the objection, reject it,

or declare that the objection does not possess, in the circumstances of the case, an exclusively

preliminary character”.

3.25. The 1996 Judgment contains a decision in the form of a judgment on preliminary

objections ⎯ which objections did not address the ques tion whether the Court had jurisdiction

ratione personae over the Respondent, and whether the FRY had access to the Court.

3.26. Addressing the issue as to what does a judgment on jurisdiction cover and settle, the

Applicant submits that the 1996 Judgment on jurisdiction has two “dispositifs”: one which is in - 57 -

line with Article 79 of the Rules and rejects the preliminary objections raised, and another which

says that the Court has jurisdiction under Article IX of the Genocide Convention . 92

3.27. This argument is not in accordance with th e wording of Article 79, and it is contrary to

the position taken by Rosenne cited by Professor Pellet 93. In the passage cited by Professor Pellet,

Rosenne says “[i]n an appropriate case objections can be raised after the Court upheld its

jurisdiction in the preliminary objections proceedi ngs and after the proceedings on the merits have

94
been resumed” . What is the dispositif which is here contemplated? If the dispositif were the

broad ascertainment upholding jurisdiction, rather than the position taken on the specific issues and

objections raised, then what Rosenne says about raising new objections would just make no sense

once the Court upheld its jurisdiction. But Rosenne speaks of new objections that “[do] not raise

issues that have been decided with the force of res judicata in the judgment on preliminary

95
objections” . He assumes that jurisdiction once upheld may be challenged by new objections ⎯

and this is perfectly in line with the wording of Article 79, and with the assumption that a decision

on particular objections is the decision which may become res judicata in a judgment on

preliminary objections.

3.28. Let me finally add, Madam President that , even if one were to accept the definition of

dispositif offered by Professor Pellet, it would not cover the issue of access, which is not mentioned

in those sentences in the 1996 Judgment whic h Professor Pellet considers to be the dispositif. This

point will be further developed by my colleague Djeric.

3.29. Accordingly, the specific issues we rai sed in our initiative had not been raised as

preliminary objections, and they are not covered by the 1996 Judgment on preliminary objections.

The application for revision was denied, and the Court did not reach the stage in which the

proposed issues could have been considered. It fo llows that, even if one would not distinguish the

effects of a judgment on jurisdiction from the effects of a judgment on the merits, quid non, neither

92CR 2006/36, pp. 16-17, para. 41 (Pellet).

93
CR 2006/35, p. 60, para. 14 (Pellet).

94Rosenne, op. cit., p. 865.

95
Rosenne, op. cit., p. 865. - 58 -

the question of access to the Court of the Respondent nor the question of jurisdiction

ratione personae over the Respondent based on the Genoc ide Convention could have become res

judicata.

2.2.It is a well-established principle that the Court must always be satisfied that it has
jurisdiction

3.30. Madam President, let me present a furthe r argument and demonstrate that even if one

were to assume that decisions on preliminary objections may have res judicata effects between the

parties, and even if one were to assume that th ese effects even extend to objections which were not

raised in the preliminary phase, quid non, this could not impede the Court from addressing issues of

access and jurisdiction during the merits phase of the case.

3.31. The distinct character of a decision on jurisdiction follows from the Statute itself.

Article 59 of the Statute which defines the nature and the range of the res judicata effect states that:

“The decision of the Court has no binding force exce pt between the parties and in respect of that

particular case.” In other words the binding force of the judgment is clearly limited to the rights and

duties of the parties.

3.32. In our case, however, we are talking ab out access and jurisdiction, and this is not

simply a matter of rights and duties of the Parties. It is primarily a right and duty of the Court.

There is no binding force imposed by Article 59 impeding the Court to open or reopen

proprio motu the issue of its own authority to proceed, if this appears to be necessary under the

specific circumstances of the case ⎯ and this is what we are initiating.

3.33. This understanding has been clearly confirmed by Professor Bernhardt. In his

comment on Article 59 of the Statute, under the title “Binding Force with Regard to the Court?”, he

states: “Article 59 does not concern the binding force of a decision for the Court itself.” 96

3.34. This takes us back to the compelling logic of the ICAO Council Judgment ( Appeal

Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports

1972, p. 46) which addresses and answers the questi on whether the Court itself may raise the issue

of its jurisdiction ⎯ and whether it has to do so under appropriate circumstances. The Court

96
A. Zimmermann, E. Tomuschat, K. Oellers-Fram (Eds), The Statute of the Interna tional Court of Justice: A
Commentary, Oxford 2006, p. 1240. - 59 -

confirmed unequivocally that jurisdictional objectio ns may, indeed, be raised during the merits

phase, and that the Court must always be satisfied that it has jurisdiction.

3.35. Let me state once again what this Court said:

“It is certainly to be desired that objections to the jurisdiction of the Court
should be put forward as preliminary objec tions for separate decision in advance of

the proceedings on the merits. The Court must however always be satisfied that it has
jurisdiction, and must if necessary go into that matter proprio motu.” (Ibidem, p. 52,
para. 13.)

3.36. The Applicant does not contest this principl e. Professor Pellet states: “il ne fait aucun

doute, que la Cour ‘doit . . . toujours s’assurer de sa compétence’” . He submits, however, that the

98
fact that the Court may examine its jurisdiction does not mean that it may also re-examine it ; and

adds that the fact that the Court must always be satisfied that it has jurisdiction does not mean that

it can return to it “à tout moment”. Professor Pellet submits: “La Cour doit s’assurer de sa

compétence: l’arrêt de 1996 lui a donné l’occasion de le faire; elle ne peut, aujourd’hui, remettre

en question sa propre autorité.” 99 He also makes the point that “Il ne suffit pas qu’une règle

permissive permette à la Cour de s’assurer de sa compétence pour qu’elle puisse le faire sans aucun

autre fondement juridique; . . . ” 100

3.37. Madam President, let me start with th e last sentence. If there is an uncontested

principle stating that the Court must always be sa tisfied that it has jurisdiction and that it must if

necessary go into the matter proprio motu, then, obviously, this legal principle set by the Court is

the “fondement juridique” to do so. It is a di fferent question whether the Court will see sufficient

reasons in the circumstances of the case to undert ake an investigation and to take a different

position on access and jurisdiction. We shall demonstrate that there are abundant reasons to do so.

3.38. A second line of argument of the Applicant is that “always” does not mean “at any

moment”; that the right and duty to examine does not imply the right and duty to re-examine, and

97CR 2006/35, p. 57, para. 8 (Pellet).

98
Ibid., pp. 58-59, para. 10 (Pellet).

99CR 2006/37. p. 47, para. 30 (Pellet).

100CR 2006/36, p. 24, para. 61 (Pellet). - 60 -

that the Court somehow forfeited the possi bility to examine access and jurisdiction proprio motu

after it did not seise this occasion in 1996.

3.39. Madam President, these arguments have no foundation whatsoever in either the text, or

in the context or logic of the ICAO Council Judgment. First, let me ask that if “always” does not

mean “at any time” what could it then mean? In the ICAO Council case the question arose whether

objections to jurisdiction can be raised at a late r moment, in the merits phase, and the answer was

yes, because the Court must “always be satisfied that it has jurisdiction ”, obviously including the

merits phase as well.

3.40. Our case cannot be distinguished from the ICAO Council case on that ground either

that in the ICAO case objections to jurisdiction were only ra ised by the Respondent in the merits

phase, while in our case the Respondent already contested jurisdiction in the preliminary objections

phase. This circumstance is irrelevant, first of all because we are not raising the same objections

which were raised in the preliminary objections phase. Furthermore ⎯ and most importantly ⎯

the established principle is independent not onl y from the timing of party motion or from the

circumstance whether the party is raising or re-raising certain jurisdictional issues, the principle is

independent from party motion altogether . The ICAO Council Judgment speaks of the right and

duty of the Court to act proprio motu.

3.41. The remaining question is whether the Court can somehow forfeit this right by not

raising the issue proprio motu in the preliminary objections phase. The answer is, again, clearly

negative. First of all, the ICAO Council Judgment does not talk about a privilege which would be

lost if the first occasion was not seised. The ICAO Council Judgment says that the Court must

“always be satisfied that it has jurisdiction, and must if necessary go into that matter proprio motu”.

Furthermore, the whole point is that since the Court cannot act ultra vires, it therefore has to

consider new information and clarifications emerging after the preliminary objections phase, and to

decline jurisdiction if it is not satisfied that it has jurisdiction.

3.42. In our case there was no sufficient in formation in 1996 which would have prompted

and answered the questions which are prompted a nd which can be answered today. In 1996, the

failure to contest the assumption of continuity w as just not a failure to raise the obvious, which

failure would yield some sort of forum prorogatum for the Respondent and an impossibility to raise - 61 -

the question of jurisdiction proprio motu for the Court. It has been described and repeated many

times that the situation was not transparent, that it was anomalous. But there can be no stronger

evidence to this than the attitude of the Appli cant during these very proceedings. Several counsel

of the Applicant still maintain that there was continuity.

3.43. Madam President, let me address at th is point another argument advanced by the

Applicant, this time referring not to the founda tions but to the possible implementation of the

principle set in the ICAO Council Judgment. Professor Pellet states that there are no criteria to

establish what circumstances are exceptional, and this could have a destabilizing effect 10.

3.44. The term “special circumstances” is, of course, a general standard, one of the many,

which has to be interpreted in given cases. Let me mention that the same general standard has been

used by other international courts as well, such as the European Court of Human Rights. I shall

return to the practice of other courts in a few mome nts. At this point, let me just say that it is

difficult to imagine a case in which new develo pments and new information would be as special

and as consequential as in this case. To begin with, one of the key underlying issues is United

Nations membership of the FRY between 1992 and 2000, and since 1November 2000 we have a

pronouncement of the competent authority, the General Assembly. Also, it is generally recognized

that legal uncertainty and unclarity were preva iling at the time when the Judgment on preliminary

objections was rendered, and that this has come to an end. It cannot be maintained any more that

the FRY was a party to the Statute until 1 Novemb er 2000, or that it remained or became bound by

ArticleIX of the Genocide Convention. This new perspective, based on newly emerging

information, was unequivocally confirmed in the 2004 Legality of Use of Force Judgments, which

established that the Respondent was not a party to the Statute, had no access to the Court between

1992 and 2000, and opened the question whethe r the Respondent could have been bound by

Article IX of the Genocide Convention. These circumstances, without precedent and most unlikely

to ever get repeated, are certainly special, a nd it is clear that under these circumstances it is

necessary to undertake an investigation of issues of access and jurisdiction.

10CR 2006/36, p. 19, paras. 47-48 (Pellet). - 62 -

3.45. Madam President, Members of the Court, the rule and principle spelled out in the ICAO

Council Judgment makes it clear that the Court may and should open the issue of jurisdiction in the

merits phase if this is prompted by the special circumstances of the case. This is why in its

correspondence with the Parties in this case, the Court referred exactly to the ICAO case in its letter

of 12 June 2003 permitting the Respondent to presen t further arguments on jurisdictional questions

during the oral proceedings on the merits.

2.3.The special circumstances of this case make a new investigation of the issues of access and
jurisdiction unavoidable

3.46. Madam President, I would like to present another independent reason showing that the

special circumstances of our case make unavoidable the investigation of the issues of access and

jurisdiction in the merits phase.

3.47. So far, we have been discussing the issue of whether the Statute does or does not

provide a foothold for res judicata effects at all ⎯ and towards the Court in particular ⎯ if we are

talking about a judgment on preliminary objections . In other words, we were discussing whether

the restrictions imposed by Articles 59 and 60 of the Statute, which would impede the parties or the

Court to raise or re-raise the issue of jurisdicti on in the merits phase, when serious indications

emerge showing that the perceived basis of jurisdiction did not and does not exist.

3.h8e. ICAO Council Judgment made it plain that that the effects yielded by the Statute

cannot impede the Court itself to consider the issue of jurisdiction proprio motu in the merits

phase. The facts of our case open an even more funda mental question. In our case there is a truly

exceptional circumstance that has a consequential impact on the ability of the Court to decide on its

jurisdiction with a binding force, and on the effects of such a judgment. The question is not only

what are the exact effects of Articles 59 and 60 regarding a judgment on jurisdiction, but whether

the Statute could have endowed the 1996Judgment with any effects at all, since the Respondent

was not a party to the Statute.

3.49. Madam President, while domestic courts have an anchor of their power to decide in the

sovereign authority of the forum State, the corres ponding anchor of this honoured Court is a treaty,

the Statute of the Court. This is the foundatio n which endows the decisions of the Court with

specific consequences. But the rights and duties established by the Statute flow from the consent - 63 -

of the States who are parties to the Statute. What makes our case so exceptional is that the essential

foundation and framework were simply missing when the 1996 Judgment was rendered. Hence in

our case, the question is not only what specific conclusions are supported by the foothold in the

Statute, but whether such a foothold existed at all.

3.50. Today it is known that in 1996 when the decision on preliminary objections was

rendered, the Respondent was not a party to the Statute. Thus, there was no foothold,

Articles36(6), 59, and 60 did not represent a binding treaty provision providing a possible basis

for deciding on jurisdiction with res judicata effects.

3.51. Our position is, and we trust that this has been demonstrated, that there are no

impediments to investigating or reinvestiga ting access and jurisdiction in the merits phase ⎯

particularly not when such an investigation is undertaken by the Court itself, proprio motu. This

conclusion is even more manifest in a case in which the very anchor for exercising judicial function

was missing, since the competence of the Court to decide on its jurisdiction in the preliminary

phase was not based on the Statute, and the eff ects of the pronouncement were not determined

either by the Statute.

3.52. Madam President, our position is that the principles rightly set by the ICAO Council

Judgment allow the Court to consider issues of ac cess and jurisdiction in the merits phase even if

the Respondent had been a party to the Statute wh en preliminary objections were considered, and

when the Judgment on jurisdiction was rendered. The specific, unusual, but clearly established

circumstance that the Respondent was not a party to the Statute in 1996 when the Judgment on

jurisdiction was rendered provides a strong added reason for holding that the 1996 Judgment

cannot be conclusive. Thus, it is clearly justified to consider in this phase of the proceedings issues

of access and jurisdiction in the light of conseque ntial new information which was not available in

1996, and which was recognized in the 2004 Legality of Use of Force Judgments.

3. Treaties, rules, and practice of international courts

3.1 Treaties and rules

3.53. Madam President, addressing our submission that it is, indeed, possible to investigate

access and jurisdiction in the merits phase afte r the 1996 Judgment was rendered, our esteemed - 64 -

colleague Professor Pellet submits that this would mean that “l’arrêt du 11 juillet 1996 serait tout à

fait exceptionnel, non seulement dans la jurisprudence de la Cour mais dans les annales judiciaires,

toutes juridictions confondues . . .” 102 The same line of argument returns in the closing

observations of Professor Pellet. He submits “aucun corps judiciaire ne peut deux fois sur le métier

remettre son ouvrage” 103.

3.54. With due respect but this is simply not true. What we are suggesting is not a unique

oddity, unknown in international jurisprudence. We shall demonstrate that the right of the Court to

reinvestigate its jurisdiction during the merits phase under circumstances like those which have

arisen in our case, is not a strange exception, but pretty much a mainstream solution, widely

accepted in treaties and rules. The practice of othe r international courts is in harmony with the

principle set in the ICAO Council Judgment.

3.55. First of all, the principle according to which an international court may consider or

reconsider the issue of jurisdiction at any stage of the proceedings has e xpressly been stated in

international conventions and rules of interna tional tribunals. For example, the European

Convention for the Protection of Human Right s and Fundamental Freedoms provides in its

Article35, paragraph4: “The Court shall rej ect any application which it considers inadmissible

under this Article. It may do so at any stage of the proceedings.” (Emphasis added.)

3.56. In the same vein, the Statute of the In ternational Criminal Court makes it also clear

that ⎯ if this is prompted by exceptional circumstances ⎯ the issue of jurisdiction may be brought

up at any stage of the proceedings, and it may be brought up more than once. According to

Article 19 (4) of the Rome Statute:

“The admissibility of a case or the jurisdiction of the Court may be challenged
only once by any person or State referred to in paragraph 2. The challenge shall take
place prior to or at the commencement of the trial. In exceptional circumstances, the

Court may grant leave for the challenge to be brought more than once or at a time
later than the commencement of the trial.” (Emphasis added.)

3.57. To cite one more important example, th e Rules of the European Court of Justice have

also given explicit recognition to this principle. According to Article 92 (2):

102
CR 2006/36, p. 11, para. 27 (Pellet).
103
CR 2006/37, p. 47 para. 31 (Pellet). - 65 -

Cmoart at any time of its own motion consider whether there exists any
absolute bar to proceeding with a case or d eclare, after hearing the parties, that the

action has become devoid of purpose and that there is no need to adjudicate on it”
(emphasis added).

3.2 Practice of other international courts

3.58. Madam President, the principle is clear, and it follows from the nature of the power of

international courts, and from the jus aequum character of the relationship between the parties and

the court. An international court must always be satisfied that it has jurisdiction. The principle

according to which the Court may decide on its ow n competence is not limited to the preliminary

phase, and the power of the Court to control its competence is not limited to one pronouncement.

An earlier position taken by an international court cannot substitute a basis of jurisdiction, the court

cannot just rely on its own earlier stance, but must always be satisfied that it has power to decide

the case.

3.59. This principle was clearly phrased by President McNair in the Anglo Iranian Oil Co.

case. The wording extends to international courts in general, but the primary focus is, of course, on

this Court. In the words of President McNair:

“An international tribunal cannot regard a question of jurisdiction solely as a

question inter partes. That aspect does not exhaust the matter. The Court itself,
acting proprio motu, must be satisfied that any State which is brought before it . . . has
consented to the jurisdiction.” (Anglo-Iranian Oil Co. case (United Kingdom v. Iran),
Preliminary Objections, Judgment, I.C.J. Reports 1952, p. 116.)

The reasons behind this principle are even stronger when the international court is not a part of a

multilevel system, and thus it has to supervise it self whether preconditions for adjudication were

met.

3.60. One may point out that there have to be compelling reasons to depart from the sensible

proposition that preliminary questions should be an swered in the preliminary phase. The number

of cases in which such compelling exceptional reasons may possibly emerge is scarce. At the same

time, evidence shows that when such exceptional circumstances did emerge, the issue of

jurisdiction was considered or reconsidered at a later stage of the proceedings. - 66 -

104
3.61. In the case Storck v. Germany brought before the European Court of Human Rights,

a committee of three judges declared the appli cation inadmissible on 15 October 2002. The

Applicant asked the Court to reopen the proceedi ngs. On 28 January 2003 the same committee of

three judges decided to reopen the proceedings. In its decision of 26October2004 the Court

changed its ruling on admissibility, and declared the application admissible against the objections

of the German Government and against the argument that the 2002 decision on admissibility is res

judicata, and that the case cannot be reopened . The ECHR held: “However, in exceptional

circumstances, . . ., the Court does have, in the intere st of justice, the inherent power to re-open the

105
case which had been declared inadmissible and to rectify those errors.”

3.62. It is important to mention that in this case the Court changed its decision from

inadmissibility to admissibility, which is actually a harder test of the limits of the power to

reconsider preliminary matters. If preliminary obj ections are rejected, the case continues, and the

only question is whether objections to jurisdiction ma y be raised again at a later stage of the same

proceedings. If preliminary objections are sustained, the matter is concluded, and the whole case

has to be reopened in order to allow the reconsider ation of the issue of admissibility. This is why

several authors advocating the possibility to reopen th e issue of jurisdiction restrict their opinion to

cases in which jurisdiction was initially upheld and where the case will, thus, normally continue 106.

3.63. In the Storck case, after admissibility was reconsidered, the same issue was raised once

again ⎯ thus a third time ⎯ in the merits phase, and again be fore the same judges who rendered

the earlier decisions. Germany requested the Cour t to declare the application inadmissible, and

repeated its argument that the case was res judicata after the first decision, and that the Court did

not have the right to reopen the case after the app lication was once declared inadmissible. In its

104
Waltraud Storck v. Germany , ECHR, Application No. 61603/00, Decision on Admissibility of
26 October 2004.

10Ibidem, p. 12.

106
For example, Lamberti Zanardi, “Il procedimento sulle eccezioni preliminari nel processo devanti alla Corte
internazionale di Giustizia”, Rivista di diritto internazionale, 1965, fasc. 4, 537, at 559. - 67 -

decision of 16 June 2005 the Court considered the objection, but rejected this argument, citing its

own reasoning according to which the court has “[t]he inherent power to reopen a case” 107.

3.64. The practice of the ECHR clearly show s that the question of jurisdiction may be

considered or reconsidered at any stage of the proceedings, in all situations, either on party motion,

108
or proprio motu . As a further example, I would like to mention a most recent ECHR decision, in

which the underlying fact pattern was different, but the problem and the position taken was the

109
same. In the case of Blečić v. Croatia finally decided on 8 March 2006, the question arose

whether the Government of Croatia can raise pre liminary objections in the merits phase of the

proceedings, after it failed to do so in the preliminary phase ⎯ and after the same question of

jurisdiction was raised in the preliminary phase by the Court itself, and the Court held that it had

jurisdiction. The Grand Chamber remained faithful to the principle that the Court may reconsider

issues of jurisdiction at any stage of the proceedings, it consid ered the objections to jurisdiction

raised by Croatia, and finally decided that it had no jurisdiction. The ECHR held, and I’m quoting:

“Accordingly, the Court, . . . has to satisfy itsel f that it has jurisdiction in any case brought before

it, and is therefore obliged to examine the quest ion of its jurisdiction at every stage of the

proceedings.” 110

3.65. Madam President, Members of the Court, the same principle which found expression in

international conventions as well as in rules and pr actice of international courts, was also adopted

in arbitration cases where this was necessitated by the special circumstances of the case. In the

Von Tiedemann case, which was shaped along the very same pattern as our case, the obtaining

exceptional circumstances prompted the Mixed Ar bitral Tribunal to reconsider its decision on

jurisdiction and to declare lack of jurisdiction.

107Storck v. Germany , ECHR, Application No. 61603/00, Judgment (Merits and Just Satisfaction) of
16 June 2005, p. 8.

108
See, among other cases, Azinas v. Cyprus (Grand Chamber), No.56679/00, para. 32, ECHR 2004-III;
Odièvre v. France (Grand Chamber), No. 42326/98, para. 22, ECHR 2003-III; Nielsen v. Denmark , No. 343/57,
Commission decision of 2 September 1959, Yearbook 2, p. 454.

109Blecic v. Croatia, ECHR (Grand Chamber), Application No. 59532/00, Judgment of 8 March 2006.

110
Ibidem, p.17, para. 67. - 68 -

3Th6e. Von Tiedemann problem is a mirror image of our problem. We have included this

case in our judges’ folders at tab 3.

Madam President, I will probably have to go about five or six minutes beyond time, if you

allow me to do so.

The PRESIDENT: Yes, certainly.

Mr. VARADY: Thank you very much.

The Mixed Arbitral Tribunal was faced with a complex of several cases in which the same

question was raised. The issue was that of the capacity of one of th e parties. As in our case, the

German-Polish Mixed Arbitral Tribunal first declar ed itself competent, rejecting the preliminary

objections of the Polish State 11. After that, and before reaching the merits in the Von Tiedemann

case, the Mixed Arbitral Tribunal had to decide on its jurisdiction in six other parallel cases which

were based on the very same fact pattern ⎯ again a situation which is practically the same as the

situation which developed following the Legality of Use of Force cases. In these six cases (Kunkel

and others), the Tribunal declined jurisdiction.

3.67. The reason for declining jurisdiction is, again, most familiar. It pertains to the capacity

of the applicants. As th is was summarized in the Von Tiedemann decision ⎯ and this can be

followed in tab 3 on page 4:

“Par arrêt du 2 décembre 1925 en cause K unkel et consorts c. Etat polonais . . .

le Tribunal a posé en principe qu’il est in compétent pour statuer sur les réclamations
formées contre l’Etat polonais en tant que les requérants les fondent sur leur qualité
prétendue de ressortissants polonais.” 112

3.68. After dismissal of jurisdiction in six parallel cases, Poland m oved for reconsideration

of jurisdiction in the Von Tiedemann case in which the issue was the same as in the six other cases.

The applicant opposed reconsideration, arguing th at the issue of jurisdiction cannot be revisited

because it was definitively settled by the earlier de cision on jurisdiction. The Tribunal opted to

reconsider its own previous decision on jurisdiction, and eventually it declared itself being without

jurisdiction in the Von Tiedemann case too. The Tribunal stated that in order to follow the

111
Von Tiedemann v. Polish State, Rec. TAM, t. VI, pp. 997-1003.
112
Ibidem, p. 1000. - 69 -

principle of res judicata it would be obliged to commit an “excès de pouvoir” 113, and this would

114
render the decision ultra vires and non-binding upon the parties .

3.69. The Tribunal made its position crystal clear –– you may follow this citation at tab3,

page 5:

“le tribunal estime que, dans l’intérêt de la sécurité du droit, il importe que ce qui a été
jugé, soit, en principe, tenu pour définitif.

Mais la question se présente sous un aspect tout particulier lorsque le jugement
préliminaire rendu est un jugement affirmant la compétence du Tribunal et que
celui-ci constate dans la suite, mais avant le jugement au fond, qu’en réalité il est

incompétent. En pareil cas, s’il s’était obligé de se regarder comme lié par sa
première décision, il serait amené à statuer sur une matière dont il reconnaît cependant
qu’elle échappe à sa juridiction. Et lorsque ⎯ comme en l’espèce ⎯ il a entre-temps

proclamé son incompétence dans des causes identiques, il se mettrait en contradiction
irréductible avec lui-même en jugeant néanmo ins au fond et il s’exposerait au risque
de voir l’Etat défendeur s’autoriser de l’aveu d’incompétence émanant du tribunal

même pour refuser d’exécuter sa sentence . . .

En d’autres termes, pour rester fidèle au principe du respect de la chose jugée, il
115
devrait commettre un abus manifeste de pouvoir.”

3.70. The very same logic applies to our case as well. The authority of a decision on

preliminary objections cannot substitute the bases of jurisdiction defined in the Statute ⎯ even less

can it substitute preconditions for access.

C. Conclusions

3.71. Madam President, distinguished Members of the Court, let me conclude first of all that

the 1996 Judgment was based on the assumption of continuity, that is, on the assumption that the

FRY continued the personality, United Nations me mbership and treaty status of the former

Yugoslavia. By now, it has become evident that this assumption was erroneous. This is conceded

by our opponent Professor Pellet as well.

3.72. The 1996 Judgment does not impede this Court to investigate access and jurisdiction in

the merits phase of this case. It does not, because

113
Ibidem, p. 1001.

11Ibidem.

11Ibidem. - 70 -

⎯ first, decisions on preliminary objections do not have the same effects as final decisions on the

merits;

⎯ secondly, the issues whether the Respondent ha d access to the Court and whether it was bound

by Article IX of the Genocide Convention were not raised as preliminary objections, and were

not decided;

⎯ thirdly, the uncontested principle stated in the ICAO Council Judgment makes it clear that the

Court must always be satisfied that it has juri sdiction and that it can investigate this issue

proprio motu in the merits phase as well;

⎯ fourthly, at the time when the 1996 Judgment was rendered, the Statute was not a binding

treaty between the parties, thus the Statute could not have endowe d this Judgment with res

judicata effects;

⎯ and fifthly, reinvestigation of access and jurisd iction in the merits phase after a judgment on

preliminary objections was rendered, is not only in line with the principle stated by this Court

in the ICAO Council case, it is also perfectly in line with rules and practice of other

international courts.

We have also demonstrated that special circumstances which make an investigation of access

and jurisdiction necessary, clearly exist.

This concludes our presentation this afternoon, and I thank you very much for your attention.

The PRESIDENT: Thank you, Professor Varady.

The Court now rises. The hearings will resume at 10 o’clock tomorrow morning.

The Court rose at 6.05 p.m.

___________

Document Long Title

Audience publique tenue le lundi 8 mai 2006, à 15 heures, au Palais de la Paix, sous la présidence de Mme Higgins, président

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