Non-Corrigé
Traduction
Uncorrected Translation
YUGONFR
CR 2004/21(traduction)
CR 200412(translation)
Jeudi 22 avril20à16h 10
Thursday 22pril2004 at 4.10 p.m. Mr. PELLET: Merci, Monsieur le président.
1.Mr. President,Members of the Court,the French delegationconsiders it pointlessto repeat
ad nauseam what has beensaid by other Respondents and weendorse the arguments presentedby
Ourcolleaguesas and when appropriate. It is also self-evidentthat the French Republic upholdsin
their entirety the arguments it advanced in its preliminary objections and during the first round of
oral argument - which arguments, however,the Republicof Serbia and Montenegro largelychose
to ignore.
2. Having made this remark and before Mr. Abrahamconcludes France's observations, 1
should likejust to maketwo brief points:
- first, 1shall show that Serbia and Montenegro seeksunsucceçsfullyto circumventthe problem
facing the Court at thispreliminary stage, or rather, 1shall Saya few more "pre-preliminary"
words about it;
- secondly, 1 shall try to show that, even from the eccentric standpoint which Serbia and
Montenegro would have you adopt, you can but find, Membersof the Court, that you do not
havejurisdiction on the veryasis of the Applicant'sreasoning yesterday.
1 shall start, with your permission,Mr. President, withthe second point.
1.THE QUESTION PUTTOTHE COURT BYTHEREPUBLICOF SERBIA AND MONTENEGRO
3. Ignoringthe fundamental question facing this Court in the very strange conditions Serbia
and Montenegro has createdand to which 1 shall return shortly, that country is asking you through
its Agent, Membersof the Court, "whether [the FRY'S]sui generis position vis-à-vis the United
Nations couldhave provided the link betweenthe new Stateand internationaltreaties the Statute
and the Genocide Convention in particular"'. Mr. Varady claims that his country is entitled to a
replyto this, as heees it, keyquestion2.
4. However, in asking it, the artful Agent of Serbiaand Montenegro"whispers"- 1almost
said "dictates"- the reply to you. And that reply is, on hisown admission, positive: "yes, the
admission of the FRY to the United Nations has altered the situation". According to him, on the
'CR 2004114,pp. 26-27,para.63
'lbidparas. 63-64. date on which the Court is called upon to rule, today, the situation is no longer whatit was before
Serbia and Montenegro's admission to the United Nations. Yetit is on the basis of the present
situation, not that in 1992, not that in 1996, not that in 19!)9,Members of the Court,that you must
decidewhether you havejurii;diction3.
5. Yesterday, Mr. Varady sketched an interestingoutline of the historical development.
Even ifone sometimes loses one's way a little in the former Yugoslaviasand the Federal Socialist
or non-Socialist Republics, at least this outline (provided, mark my words, by Serbia and
Montenegro) shows thatthercris a very clear distinction behveenthe two Yugoslavias,the oneprior
to 2000 andthe one before you today:
(1) prior to November 2000 (in other words, before the letter from the United Nations
Secretary-General of 2'7December 2001, of which Serbia and Montenegro makes such an
issue4),the situation was uncertain, obscure, markedby arnbiguities and hesitations5; the
question remained operi6and the Court rightly based itself on this sui generis situation in
finding that Yugoslavia was bound by the GenocideCionventionand partyto the Statuteof the
Court;
(2) since that date- November2000 - things have been clarified: the ghost of the former
Yugoslavia has ceasedto haunt the corridors of the glass edifice in Manhattan; the new
Yugoslavia, now Serbiiiand Montenegro, is not a continuation of it; it has only been a
Member of the United Nations since November2000 and did not accede to the Genocide
Conventionuntil March 2001.
8 Again, Mr. President, these are not my words but those of the Agent of Serbia and Montenegro
himself.
6.1 am not quite sure by which Yugoslaviathe Application was made - but what 1do know
is that this analysis shows that, in any event the Court, according to the Applicant, lacks
jurisdiction to entertainit:
3~ee,forexample,theJudgtnentof 3 Febmary2003,Application forRevisionof theJudgment ofII Ju[y1996 in
the Case concerning Applicationof the Conventionon the Preventionand Punishrnentof the Crimeof Genocide,
para.70. Seealsothe jurisprudence quotiendCR2004112,p. 13,paras.20and21.
4~eeCR2004/14,p.24,para.52.
5~bid., . 23,para.48.
6~bid, . 25,para.57. - if the Application was madeby the new Yugoslavia,that Statewas no more partyto the Statute
than it was to the GenocideConvention,to which it accededonly with a reservation excluding
yourjurisdiction;
- if the Application was from the former Yugoslavia, that State no longer exists and,as
Professor Varadysaid yesterday, "the present proceduralsetting is different from thatin which
earlier decisions wererendered~'. "It is now clear" [emphasisadded]he alsosaid
"that the FRY did not remain bound by treaties, and did notremain a member of the
UN ... on ground of continuity. The FRY did not continue membership or treaty
position of the former Yugoslavia. It has also become clearthat the 'Yugoslavia'the
membershipof whichwas formally notterminated was theformer ~u~oslavia."~
7. But, Mr. President, it was on the basis of the former situation that the Court ruled in the
case brought before itby Bosnia and Herzegovina; it is thatsui generis situation which prompted it
to recognize that it had jurisdiction in 1996- and with al1 the less hesitation because the
Respondenthad refrained fromcontestingitsjurisdiction in that respect9. As Mr.Varadyalso said,
not withouta certain understatement: "the treaty-statusof the FRY was not conte~ted"'~.And this
was also why the Court had no reason to revise its Judgment in 2003 - which Serbia and
Montenegro now seems to acceptl1. As the Court said, in paragraph 71 of its decision on the
Application for revision,alsoquoted yesterdayby Mr. Varady:
"General Assembly resolution55/12 of 1 November2000 cannot have changed
retroactively the sui generis position which the FRY found itself in vis-à-vis the
United Nations over the period 1992to 2000, or its position in relationto the Statute
9
of the Court andthe Genocide on vent ion"'^.
But, while the FRY'S admission did not retroactively change that position, it did do so
prospectively. 1repeat: speakingthrough its Agent, Yugoslavia has itselfso claimed.
8. Incidentally, Mr. President, 1 have addressed the new question raised bySerbia and
Montenegro only because that question was the heart, to be honest the whole point, of
ProfessorVarady's statement of yesterday moming. But, in truth, assuming that questionto be
'CR2004/14,p. 21,para.40.
8~~ 2004114,pp.24-25,para.54.
9~f.theJudgmentsof 1996(I.C.J.Reports 1996(II),p. 610,para.17)andof 3 February2003(para.62)
''CR 2004114,p. 26,para.59.
ICf.CR2004114, pp.25-26,paras.56-60.
I2para.1, quotedinCR2004114,p.25,para.58 (emphasis added). relevant, you would beable to address it onlyif you respondedin the negativeto another question,
one necessarily preliminaryto al1others: dothe present proceedingsstill have any object, if ever
they did? It is this "pre-preliminary" question, totally disregarded by Ouropponents, to which 1
would like brieflyto return to concludemy remarks.
II. THE "PRE-PRELIMINARY"QUESTION POSED'TO THE COURT AT THIS STAGE
INTHE PROCEEDIN(;S
9. As 1tried to explain on ~uesda~l~,the only issue, the real"key question"'4,posed to the
Court at this pre-preliminarystage is whether, giventhe position taken by the Applicant itself in its
Written Observationsdated ;18December 2002 and in itsletîer of 28 February 2003, there are any
"issues that stillividethe pa.rties"'5.
10.Mr.Varady did not respondto this crucial question,other than to repeat that his country
has not formallysought discontinuance andto stressthe factthat the Applicant hasnot "inform[ed]
the Court in writing that it [was] not going on withthe proceedings"16. True enough! But that is
not sufficient,Mr. President! Not only is "[tlhe Court, whosejurisdiction is international, ...not
bound to attach to matters of form the same degree of importance which they might possessin
municipal law"" but also, pi-ocedurally,what a State actually does is more important than what it
10 says it is doing- and it is for the Court itselfto decide, in the performance of its judicial duties,
the true significanceof the Piirties'ositions'8.
11. The Agent of Serbia and Montenegro asks usto allow the State he represents to specify
what it said and meant ("allow usto state ourselveswhat we actually said or meant to say"I9). But
precisely, the Applicant's written pleadings speak for it. And those pleadings are crystal clear:
they assert that it follows from Serbia and Montenegro's admission to the United Nations in
November2000 that it was not a Member previously and, accordingly,that it was not a partyto the
"CR2004112,pp. 12-17,paras.19-29.
I4C~2004114,p. 26,para.63.
".Art.60,para.1,of theRuliesof Court.
I6~rt.89,para.1,of theRullesof Court.SeeCR2004114,pp. 18-19,paras.29 and30
I7~udgmenotf 30August1924,Mavrommatis,P.C.I.JSerieA.No. 2,p. 34.
I8seeCR2004112, pp.9-10,paras.11and12,andthereferences ctherein.
1 9 ~2004114,p. 19,para.32.Statute of the Court either; and, because it does not continue the legal personality ofthe former
Yugoslavia, nor wasit, at the time it filed its Application, partyto the Genocide Convention - to
which itdid moreover accede,as 1have alreadysaid, making a reservationto thejurisdiction ofthe
Court.
12.In the person of its Agent,its most authoritativemouthpiece,Serbia andMontenegrotold
us yesterday that it had not adaptedor modified itsobservations or "manipulated" its positions20.
Would that we could believe that, Mr. President. What ismore, were itonce again to change its
mind, this new about-face would haveno consequence whatsoeverin law: "you cannot blow both
hot and cold atonce". As JudgeAlfaro explained in a passage which 1hold dear, complete with its
Latin maxims, from the weighty separate opinion he appendedto the Court's second Judgmentin
the Temple case, regardless of the terms employed to designate this principle, "estoppel",
"preclusion", "forclusion","acquiescence",
"its substance is always the same: inconsistency between claimsor allegations put
forward by a State, and its previous conduct inconnectiontherewith, is not admissible
(allegans contraria nonaudiendusest). Its purpose is alwaysthe same: a State must
not be permitted to benefit by its own inconsistencyto the prejudice of another State
(nemopotest mutareconsiliumsuum inalterius injuriam) ... Finally, the legal effect
of the principle is always the same: the party which by its recognition,its
representation, its declaration, its conductor its silencehas maintained an attitude
manifestly contrary to the right it is claiming before an international tribunal is
precluded fromclaimingthat right(venirecontrafactum propriumnon al et)"^'.
13. Let me make myself perfectly, Mr.President: it is not the FRY'S admission to the
United Nations which could give rise to estoppel, contraryto what Mr.Varady would havethe
Respondents say22;rather, what could doso is the "repudiation" of the position explicitlytaken by
Serbia and Montenegro in its written pleadingsto the effect that there is no basis for the Court's
jurisdiction.
14. Now, once again, we do not suspect Serbia and Montenegro of "manipulation". But it
must assume the consequencesof its positions withoutdisavowing or distorting them: Serbiaand
Montenegro did not wonder about the effects of its admission to the United Nations on
1November 2000; it did notponder whether or not it was a partyto the Statute or to the 1948
'O~eeCR2004114,p. 19,para.34
21~.~.Reports 1962,p. 40.
'*CR2004114,p. 20,para.36. Convention. No. It acknowledged, in the clearest possible way,that there was no jurisdictional
basis on whichthe Court could adjudicateupon its Application. France concurs. That is the endof
the matter.
15. Thus, in the opinion of the French Republic,the Court cannot but find that, failing any
disagreement betweenthe Parties as to the Court's lack of jurisdiction in the present case, these
Preliminary Objections are without object and, accordingly, the Court cannot but order the case
removed fromthe List.
16. Mr. President, the Republic of Serbia and Montenegro has taken two positions in tum;
while different,they are not incompatible:
- in its written pleadings onthe Preliminary Objections, it acknowledged the lack of any basis
for the Court's jurisdiction;
- during its oral statement of yesterday moming, it recognized that its admission to the United
Nations had changed the context of the present case by "revealing" that it was neither a
Memberof the UnitedNations nor a partyto the Statuteof the Court or the 1948Convention.
It cannot in al1honesty go back on either of these positions, which, in fact, buttress each other.
Each - the first "pre-preliniinarily", the second "merely" preliminari-y can only lead you to
find, in accordance with the positions taken by the Applicant, that you cannot rule on the
12 Application. That is also the position of France- whose general conclusionwill now be
presentedby Mr. Abraham, if you would be so kind,Mr. President,as to give himthe floor.
Membersof the Court., 1thank youmostsincerelyforyour kind attention.
Merci, M. le Professeur. Je donne maintenant la parole a M. Ronny
Le PRESIDENT:
Abraham, Agentde la RépubIliquFerançaise.
Mr. ABRAHAM:
17. Mr. President, Members of the Court, the time has come for me to bring to a close the
observationsof the French Republicon the PreliminaryObjections.
18. To that end, please allow me, Mr. President,to retum simply and briefly to the crux of
the matter. For the Court, what is the presentstageof the proceedingsabout? 19. In April 1999 the Federal Republic of Yugoslavia presented to you an Application
against France. France asserted Preliminary Objections to that Application in July 2000, the
principal one being that the Court lackedjurisdiction to rule on the substance of the Applicant's
claims.
20. In responseto such an objection,it would normally be for the Applicant State,in orderto
enablethe Courtto decide the prelirninary issue,to clearly indicate the legalbasis whichit believed
gave the Court jurisdiction to deal with the dispute. In the debate initiated by an objection to
jurisdiction, the State having referred the matter to the Court is not expectedto confine itself to
commenting, no rnatter how interesting those cornmentsmight be academically,on its opponent's
arguments. It is expected to state - or reiterate- in the clearest, unequivocalterms the basis on
which it claimsthe Court'sjurisdiction is founded.
21. It is true that in the specific phase of proceedings devoted to arguing preliminary
objections, the author of the objection, the respondent in the main proceedings, becomes,in a
rnanner of speaking, the applicant, which places upon itintea rlia the obligation, an adrnittedly
rather peculiar one in the present circumstances,to state its case first at the hearings, while the
applicant becornes, again in a rnanner of speaking, the respondent, answering the arguments
asserted against it.
22. But it is neverthelesstrue that, under a fundamental procedural principle applicablein
international fora, the party bringingthe proceedings must unambiguously indicatethe basis of
jurisdiction on which it clairns entitlernentto act and must show that thisjurisdictional basis applies
to the case in question. The party against whomthe application is brought is not requiredto prove
that there is no basis for jurisdiction, which would require it- and it would beabsurd to ask this
of it- as a matterof courseto examineal1possible bases.
23. Thus, Mr. President, even inthe preliminary debate on the court's jurisdiction, the
applicant doesnot entirely ceaseto bethe applicant, nor the respondent the respondent. It is indeed
the applicant Statewhich bearsthe burdenof establishingthejurisdiction of the Court.
24. Now, what hasour opponent said and done since France raised itsobjections? It has
done nothing of what would be expected of a State anxious to show the Court that it does have
jurisdiction todealwith the Application; rather, it hasdone exactly theopposite. 25. In its Written Observations of December 2002, the Federal Republic of Yugoslavia
explained thatYugoslavia'sIiegalstatus in April 1999 prevented itfrom seising the Court, in other
words thatthe Courtwas without jurisdictionto deal withthe dispute.
26. And in its oral statement yesterday- which,we must admit, we were awaiting with
impatient curiosity, given the extraordinary situation- Serbia and Montenegro did not cal1into
questionthe substanceof its Written Observations. It did ~iotseekto demonstratethe existenceof a
basis for jurisdiction, and rrioreover,as has been explainedat length, it could not have done so
without violatingthe principle of good faith in judicial ilebate. Its Agent and counsel provided
commentary, legal analyses which were sometimes interesting and often debatable, but nothing,
absolutely nothing, whichcould found abasis ofjurisdiction for yourCourt in the present case.
27. We must therefort: necessarily ask ourselvesthe following question: what does Serbia
and Montenegro want,what is it seekingto obtain?
28. Based on its Written Observations of December 2002, the meaning of which was not
changed - 1stress - by th(:oral statements made yesterday,the response would appear to be, or
rather logically is,the following: Serbia and Montenegro is seeking from the Court a decision
whereby the Court declares itself to be without jurisdiction to deal with the Application, but
14 naturally not just on anygroiind,but on the grounds reliedon by the Applicant since what might be
called its changeof mind in Ilecember 2002.
29. Yetthat isnot exactlywhat its Agent told us yesterday. No doubt aware that it would be
impossible, and even absurd, for a State to request of the Court a decision that the Court lacks
jurisdiction overthat State's own application, my collcague more subtly sought to assert the
legitimate interestwhich Serbiaand Montenegro would havein a decision of the Court ruling on its
jurisdiction. What interest? That of obtaining clarification, elucidation, of the uncertain,
controversial, complex questionof the legal status of Yugoslavia,or, dare 1say, of the successive
. Yugoslaviassincethe disappearanceof the former Socialist FederalRepublic.
30. In other words, to confine ourselves to the oral statements of yesterday, Serbia and
Montenegro is not exactly asking the Court to declare itself without jurisdiction (even if the
arguments which it now advances necessarily lead to that conclusion), nor - let alone, 1would
say - is it askingthe Court to find that it does havejurisdiction; it is asking the Court to rule onthe issue of its jurisdiction, because Serbia and Montenegro is interestedin the answer to that
question.
31.That itshould be interestedin it, we can al1understand. But is that what mightbe called
a legitimate legalinterest in contentiousproceedings? Definitelynot.
32. Mr. President, it became glaringly apparent yesterday from the oral statemenbty the
Agent of Serbia and Montenegro that the Applicant is seeking to obtain from the Court, under
cover of contentious proceedings in which itno longer believesand which in reality it does not
wish to pursue, a sort of advisory opinion which would shedsome light on a question that it
considers obscure,and from which it could perhapsderivesome futurebenefit.
33. That, Mr. President, is nothing other than an attempt to pervert the purpose of
contentious proceedings, whichis not to deliver opinions clarifying a particular questionof law or
to accommodatescholars, but tosettleconcrete disputes betweenthe Parties.
34. A State cannot appear before the Court in contentious proceedings and confine itselfto
asking the Court to take a position, to adjudicateon a question; it must tell the Court at the same
time how it is asking the Court to rule, failing whichit does not make any real submissionsto the
Court and manifestsits lackof interest in the outcomeof the proceedings,as a meansof resolvinga
concrete dispute. Clearly,the Court cannot accept this.
35. Mr. President, Membersof the Court, itis now my responsibilityto set out France's final
submissionsupon the conclusionof theseproceedings.
For the reasons it has set out orally and inits wriîten pleadings,the French Republic requests
the InternationalCourt of Justiceto:
- principally,removethe case from the List;
- in the alternative,decidethat it lacksjurisdictionto rule on the Application filed by the Federal
Republicof Yugoslaviaagainst France; and,
- in the further alternative,decidethat the Application is inadmissible.
Mr. President, Membersofthe Court, 1thank you for your attention. Le PRESIDENT : Je vous remercie, M. Abraham La Cour prend acte des conclusions
finales que vous venez de lire au nom de la République française. Voilà qui clôt le second tour de
plaidoiries de la RépubliqueFrançaise.
L 'audienceestlevéea 16h 35.
Traduction