CR 2004/7
International Court Cour internationale
of Justice de Justice
THE HAGUE LA HAYE
YEAR 2004
Public sitting
held on Monday 19 April 2004, at 11.55 a.m., at the Peace Palace,
President Shi presiding,
in the case concerning the Legality of Use of Force
(Serbia and Montenegro v. Netherlands)
________________
VERBATIM RECORD
________________
ANNÉE 2004
Audience publique
tenue le lundi 19 avril 2004, à 11 h 55, au Palais de la Paix,
sous la présidence de M. Shi, président,
en l’affaire relative à la Licéité de l’emploi de la force
(Serbie et Monténégro c. Pays-Bas)
____________________
COMPTE RENDU
____________________ - 2 -
Present: President Shi
Vice-President Ranjeva
Judges Guillaume
Koroma
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Elaraby
Owada
Tomka
Judge ad hoc Kreća
Registrar Couvreur
- 3 -
Présents : Shi, président
M. Ranjeva, vice-président
MM. Guillaume
Koroma
Vereshchetin
Mme Higgins
MM. Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Elaraby
Owada
Tomka, juges
M. Kreća, juge ad hoc
M. Couvreur, greffier
- 4 -
The Government of Serbia and Montenegro is represented by:
Mr. Tibor Varady, Chief Legal Adviser at the Federal Ministry of Foreign Affairs of Serbia and
Montenegro, Professor of Law at the Central European University, Budapest and Emory
University, Atlanta;
as Agent, Counsel and Advocate;
Mr. Vladimir Djerić, Adviser to the Minister for Foreign Affairs of Serbia and Montenegro,
as Co-agent, Counsel and Advocate;
Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Chichele Professor of Public International Law (Emeritus),
University of Oxford, Member of the International Law Commission, member of the English
Bar, member of the Institut de droit international,
as Counsel and Advocate;
Mr. Saša Obradović, First Secretary, Embassy of Serbia and Montenegro, The Hague,
Mr. Vladimir Cvetković, Third Secretary, International Law Department, Ministry of Foreign
Affairs of Serbia and Montenegro,
Ms Marijana Santrač,
Ms Dina Dobrković,
as Assistants;
Mr. Vladimir Srećković, Ministry of Foreign Affairs,
as Technical Assistant.
The Government of the Kingdom of the Netherlands is represented by:
Mr. J. G. Lammers, Legal Adviser of the Ministry of Foreign Affairs,
as Agent;
Mr. N. M. Blokker, Legal Counsel of the Ministry of Foreign Affairs,
as Co-Agent. - 5 -
Le Gouvernement de la Serbie et Monténégro est représenté par :
M. Tibor Varady, S.J.D. (Harvard), conseiller juridique principal au ministère fédéral des affaires
étrangères de la Serbie et Monténégro, professeur de droit à l’Université d’Europe centrale de
Budapest et à l’Université Emory d’Atlanta,
comme agent, conseil et avocat;
M. Vladimir Djerić, LL.M. (Michigan), conseiller du ministre fédéral des affaires étrangères de la
Serbie et Monténégro,
comme coagent, conseil et avocat;
M. Ian Brownlie, C.B.E., Q.C., F.B.A., professeur émérite de droit international public à
l’Université d’Oxford, ancien titulaire de la chaire Chichele, membre de la Commission du droit
international, membre du barreau d’Angleterre, membre de l’Institut de droit international,
comme conseil et avocat;
M. Saša Obradović, premier secrétaire à l’ambassade de Serbie et Monténégro à La Haye,
M. Vladimir Cvetković, troisième secrétaire, département de droit international, ministère des
affaires étrangères de Serbie et Monténégro,
Mme Marijana Santrač, LL.B. M.A. (Université d’Europe centrale),
Mme Dina Dobrković, LL.B.,
comme assistants;
M. Vladimir Srećković, ministère des affaires étrangères de Serbie et Monténégro,
comme assistant technique.
Le Gouvernement du Royaume des Pays-Bas est représenté par :
M. J. G. Lammers, conseiller juridique du ministère des affaires étrangères,
comme agent;
M. N. M. Blokker, conseiller juridique, ministère des affaires étrangères,
comme coagent. - 6 -
The PRESIDENT: Please be seated. I now give the floor to Professor Lammers, Agent of
the Netherlands.
Mr. LAMMERS:
I. Introduction
1. Mr. President, distinguished judges of the International Court of Justice, may it please the
Court. My name is Johan Lammers. I am the Legal Adviser of the Ministry of Foreign Affairs of
the Netherlands and Head of the International Law Department of that Ministry. I am the Agent for
the Netherlands in the present case brought by Serbia and Montenegro formerly known as the
Federal Republic of Yugoslavia in its Application addressed to the Registrar of the Court on
29 April 1999 against the Kingdom of the Netherlands for “violation of the obligation not to use
force”.
2. First of all, I would like to express my respect to this most distinguished international
legal body, the principal judicial organ of the United Nations. Indeed, it is a great honour for me to
address the Court.
3. In its Preliminary Objections of 5 July 2000 in the present case, the Netherlands requested
the Court to adjudge and declare that:
Serbia and Montenegro is not entitled to appear before the Court;
the Court has no jurisdiction over the claims brought against the Netherlands by Serbia and
Montenegro; and/or
the claims brought against the Netherlands by Serbia and Montenegro are inadmissible.
4. In its oral statement, the Netherlands will not repeat in detail what has been put forward in
its Preliminary Objections by which it stands fully today. According to Article 60, paragraph 1, of
the Rules of Court, the oral statement made on behalf of each party must be directed to the issues
that still divide the parties. However, as the Netherlands will indicate this morning, this is difficult,
if not impossible. One of the key elements of our observations this morning will be that there is in
fact agreement between Serbia and Montenegro and the Netherlands that the Court has no - 7 -
jurisdiction in the present case and that there is no longer a dispute between the Parties concerning
the jurisdiction of the Court.
5. This morning the Netherlands intends first to comment on Serbia and Montenegro’s
Written Observations of 18 December 2002 and the implications of these observations for the
jurisdiction of the Court. Secondly, the Netherlands will briefly discuss the legal consequences for
the present case of Serbia and Montenegro becoming a Member of the United Nations on
1 November 2000. Thirdly, the Netherlands would like to inform the Court of the outcome of
consultations with Serbia and Montenegro on the remaining in force of bilateral treaties concluded
between the Netherlands and Yugoslavia.
II. Serbia and Montenegro’s Written Observations:
implications for the jurisdiction of the Court
6. Mr. President, distinguished Members of the Court, on 18 December 2002, Serbia and
Montenegro submitted its Written Observations. These refer to “newly discovered facts” that
“have been revealed in the light of the acceptance of the Federal Republic of Yugoslavia as a new
member of the United Nations on 1 November 2000”. Serbia and Montenegro requests the Court
to decide on its jurisdiction “considering the pleadings formulated in these Written Observations”.
This request was repeated in its subsequent letter of 28 February 2003. In this connection the
Netherlands would already like to emphasize that in its Written Observations Serbia and
Montenegro chose not to contest the Netherlands objections to the jurisdiction of the Court and to
the admissibility of the claims of Serbia and Montenegro. Serbia and Montenegro did not ask the
Court to reject the Netherlands submissions. It did not, more generally, ask the Court to find that it
had jurisdiction.
7. According to Serbia and Montenegro’s Written Observations, there are two “newly
discovered facts”. Firstly, with regard to Articles 35 and 36 of the Statute of the Court, with regard
to the Genocide Convention, and with regard to bilateral conventions in the cases against Belgium
and the Netherlands, Serbia and Montenegro submits that it is now clear that before
1 November 2000, Serbia and Montenegro was not and could not have been a party to the Statute
of the Court by way of United Nations membership. Secondly, with regard to the Genocide
Convention, Serbia and Montenegro submits that it did not continue the personality and treaty - 8 -
membership of the former Yugoslavia, and was therefore not bound by the Genocide Convention
until it acceded to that Convention, with a reservation to Article IX, in March 2001.
8. Serbia and Montenegro’s Written Observations are fundamentally different from its
original Application. In its original Application, dated 29 April 1999, Serbia and Montenegro
invoked, as legal grounds for jurisdiction of the Court, Article 36, paragraph 2, of the Statute of the
Court as well as Article IX of the Genocide Convention. In a Supplement to the Application dated
12 May 1999, Serbia and Montenegro invoked, as an additional basis for the jurisdiction of the
Court, Article 4 of the 1931 Treaty of Judicial Settlement, Arbitration and Conciliation between the
Kingdom of the Netherlands and the Kingdom of Yugoslavia. In Part 3 of its Memorial of
5 January 2000, Serbia and Montenegro further explained these alleged grounds for jurisdiction.
9. However, in its Written Observations of 18 December 2002 Serbia and Montenegro
essentially no longer takes the view that these are indeed grounds for jurisdiction of the Court. It
supplemented and in fact revised its original Application in a fundamental way. It may be recalled
that Serbia and Montenegro has reserved its right to do so at the very end of its original
Application, as follows: “[t]he Government of the Federal Republic of Yugoslavia reserves the
right to amend and supplement this Application”. This is what now has happened in the Written
Observations of 18 December 2002.
10. Mr. President, distinguished judges of the Court, with regard to Serbia and Montenegro’s
Written Observations, the Netherlands would like to submit the following:
(a) Serbia and Montenegro and the Netherlands now in fact agree that the Court has no jurisdiction
in the present case;
(b) Serbia and Montenegro and the Netherlands in fact agree that there is no longer question of a
dispute between the Parties on the jurisdiction of the Court;
(c) from an objective point of view there is no longer question of a dispute between the Parties on
the jurisdiction of the Court.
(a)Serbia and Montenegro and the Netherlands now in fact agree that the Court has no
jurisdiction in the present case
11. With regard to Articles 35 and 36 of the Statute of the Court, Serbia and Montenegro
now has the same view as has been expressed by the Netherlands in its Preliminary Objections, - 9 -
namely, at the time when Serbia and Montenegro filed its Application in the Registry of the Court,
29 April 1999, Serbia and Montenegro was not a party to the Statute of the Court. Therefore, the
Court cannot have jurisdiction in this case on the basis of Article 35, paragraph 1, of the Statute,
providing that the Court “shall be open to the States parties to the present Statute”. Furthermore, as
Serbia and Montenegro was not a party to the Statute at the time, it did not have the right under
Article 36, paragraph 2, of the Statute to make a declaration to recognize the jurisdiction of the
Court.
12. Next, both Serbia and Montenegro and the Netherlands now agree that the Court has no
jurisdiction in this case on the basis of the Genocide Convention. It is true that this common view
is partly based on different grounds. According to Serbia and Montenegro, the Court has no
jurisdiction in this case on the basis of the Genocide Convention because, inter alia, Serbia and
Montenegro did not continue the personality and treaty membership of the former Yugoslavia, and
was therefore not bound by the Genocide Convention until it acceded to that Convention, with a
reservation to Article IX, in March 2001. However, according to the Netherlands, the Court has no
jurisdiction in this case on the basis of the Genocide Convention for another reason: Serbia and
Montenegro has completely failed to substantiate its claim that the Netherlands has breached the
Genocide Convention. Serbia and Montenegro simply alleges that a genocidal intent existed, but
does not even make a beginning of substantiating such allegations. As this Court has stated in
paragraph 38 of its Order of 2 June 1999:
“[w]hereas, in order to determine, even prima facie, whether a dispute within the
meaning of Article IX of the Genocide Convention exists, the Court cannot limit itself
to noting that one of the Parties maintains that the Convention applies, while the other
denies it; and whereas in the present case the Court must ascertain whether the
breaches of the Convention alleged by Yugoslavia are capable of falling within the
provisions of that instrument and whether, as a consequence, the dispute is one which
the Court has jurisdiction ratione materiae to entertain pursuant to Article IX”.
It may in this connection also be recalled that in paragraph 41 of its Order of 2 June 1999 the Court
itself, albeit prima facie, has come to the conclusion that
“the Court [was] . . . not in a position to find . . . that the acts imputed by Yugoslavia
to the Respondent are capable of coming within the provisions of the Genocide
Convention; and [that] . . . Article IX of the Convention . . . cannot accordingly
constitute a basis on which the jurisdiction of the Court could prima facie be founded
in this case”. - 10 -
Thus, although it may be true that the parties on this point in part use different grounds, it is
according to the Netherlands decisive that they arrive at the same conclusion: viz. that the Court
has no jurisdiction in the present case on the basis of the Genocide Convention.
13. Finally, Serbia and Montenegro now also agrees with the Netherlands that with regard to
the 1931 bilateral Treaty of Judicial Settlement, Arbitration and Conciliation, it is now clear that
before 1 November 2000, it was not and could not have been a party to the Statute of the Court by
way of United Nations membership. As the Netherlands has indicated in paragraph 6.4 of its
Preliminary Objections, one of the reasons why this bilateral treaty does not provide a basis for
jurisdiction of the Court is that Serbia and Montenegro was not a party to the Statute when it filed
its Application in 1999.
(b)Serbia and Montenegro and the Netherlands in fact agree that there is no longer question
of a dispute between the Parties on the jurisdiction of the Court
14. Mr. President, Members of the Court, Serbia and Montenegro and the Netherlands in fact
agree that there is no longer question of a dispute between the Parties on the jurisdiction of the
Court. As the Court has emphasized: “[t]he Court, as a court of law, is called upon to resolve
existing disputes between States. Thus the existence of a dispute is the primary condition for the
Court to exercise its judicial function;”. The Court has furthermore emphasized that the dispute
brought before it must “continue to exist at the time when the Court makes its decision”, it said so
in the Nuclear Tests cases (Nuclear Tests cases, I.C.J. Reports 1974, p. 271 and p. 476).
15. In the case concerning Mavrommatis Palestine Concessions, the Permanent Court of
International Justice has defined a dispute as “a disagreement on a point of law or fact, a conflict of
legal views or of interests between two persons” (1924, P.C.I.J., Series A, No. 2, p. 11). The
International Court of Justice has used this definition of a dispute in its case law, for example in the
Advisory Opinion concerning the Applicability of the Obligation to Arbitrate under Section 21 of
the United Nations Headquarters Agreement (I.C.J. Reports 1988, p. 27).
16. In the present case there appears to be according to the parties no longer a disagreement
or conflict of legal views. In its Preliminary Objections the Netherlands has concluded that the
Court has no jurisdiction in the present case. Serbia and Montenegro no longer contests this
conclusion in its Written Observations. Neither does it ask the Court to find that it has jurisdiction. - 11 -
Therefore, the conclusion is warranted that according to the Parties there is no longer a dispute
between the Parties as to the jurisdiction of the Court in the present case.
(c)From an objective point of view there is no longer question of a dispute between the
Parties on the jurisdiction of the Court
17. From an objective point of view, even when the Court were to conclude that it is not
sufficiently clear whether according to the Parties there is no longer a dispute between the Parties
on the lack of jurisdiction of the Court, the Court still has to decide whether or not there is
sufficient disagreement or conflict of legal views between the Parties with regard to the jurisdiction
of the Court so as to qualify this as a dispute. As the Court has observed in the case concerning
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, “whether there exists an
international dispute is a matter for objective determination” (I.C.J. Reports 1950, p. 74; emphasis
added). It is for the Court to decide whether or not from an objective point of view the Parties are
still in dispute. The Netherlands submits that from an objective point of view there is no longer a
dispute between the Parties on the jurisdiction of the Court.
18. For the reasons set forth in the preceding paragraphs the Netherlands respectfully
submits that the Court has no jurisdiction or should decline to exercise jurisdiction in the present
case.
19. Should the Court, however, come to the conclusion that there is still a disagreement
between the Parties on the jurisdiction of the Court and a dispute on jurisdiction to be settled by a
decision of the Court, in accordance with Article 36, paragraph 6, of the Court’s Statute, the
Netherlands requests the Court to adjudge and declare that for the reasons indicated in its
Preliminary Objections and supplemented during the present hearings Serbia and Montenegro is
not entitled to appear before the Court, the Court has no jurisdiction in the present case, and/or the
claims of Serbia and Montenegro are inadmissible.
20. Mr. President, distinguished Members of the Court, it is then with regard to two issues
that the Netherlands would like to supplement its Preliminary Objections. Firstly, the Netherlands
will discuss the legal consequences for the present case of Serbia and Montenegro becoming a
Member of the United Nations on 1 November 2000. Secondly, the Netherlands would like to - 12 -
inform the Court of the outcome of consultations with Serbia and Montenegro on the remaining in
force of bilateral treaties concluded between the Netherlands and Yugoslavia.
III. Legal consequences for the present case of Serbia and Montenegro
becoming a Member of the United Nations
21. The Netherlands does not feel the need to discuss this issue extensively. Its more
detailed observations have been put forward in Chapter 3 of its Preliminary Objections and the
correctness of these observations has only been confirmed by subsequent United Nations practice.
22. As the Netherlands has stated in its Preliminary Objections, Serbia and Montenegro was
not a Member of the United Nations when it filed its Application on 29 April 1999. At that time, it
was therefore not an ipso facto party to the Statute of the Court in accordance with Article 93,
paragraph 1, of the Charter of the United Nations. Neither has it become a party to the Statute in
any other way, nor has it accepted the jurisdiction of the Court by making a declaration pursuant to
Security Council resolution 9 (1946).
23. The organs exclusively competent to decide on admission to membership and expulsion
from the United Nations are the Security Council and the General Assembly. In September 1992,
both organs considered that “the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot
continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in
the United Nations” (Security Council resolution 777; General Assembly resolution 47/1). Both
organs also decided “that the Federal Republic of Yugoslavia (Serbia and Montenegro) should
apply for membership of the United Nations”.
24. This is precisely what Serbia and Montenegro has done in the year 2000. In a letter
dated 27 October President Kostunica of Serbia and Montenegro requested admission to
membership in the United Nations. On 31 October the Security Council recommended to the
General Assembly that Serbia and Montenegro be admitted to membership, and the next day, on
1 November 2000, the General Assembly decided to admit Serbia and Montenegro to membership
in the United Nations.
25. In its Judgment of 3 February 2003 in the Yugoslavia v. Bosnia and Herzegovina case
(Application for Revision of the Judgment of 11 July 1996), the Court has observed that, during the
period between 22 September 1992 and 1 November 2000, the legal position of Serbia and - 13 -
Montenegro remained complex. In this Judgment, the Court mentions a number of examples
illustrating this complexity.
26. The Netherlands submits that these examples aptly demonstrate how difficult it has been
in practice to deal with the status of Serbia and Montenegro correctly and consistently. However,
this cannot detract from the unequivocal legal requirement laid down in Article 93, paragraph 1, of
the United Nations Charter, according to which membership of the United Nations is a prerequisite
for being an ipso facto party to the Statute of the Court. Whatever other implications the complex
legal position of Serbia and Montenegro in the period between 1992 and 2000 may have, with
respect to the jurisdiction of the Court it must be concluded that Serbia and Montenegro was not a
party to the Statute at the time it filed its Application.
27. Therefore, subsequent United Nations practice, in particular the admission to
membership in the United Nations of Serbia and Montenegro, has confirmed the correctness of
what has been put forward in the Preliminary Objections of the Netherlands. The declaration of
Serbia and Montenegro deposited with the Secretary-General of the United Nations on
26 April 1999 accepting the jurisdiction of the Court is invalid and does not establish jurisdiction of
the Court on the basis of Article 36, paragraph 2, of the Statute vis-à-vis the Netherlands.
IV. Consultations with Serbia and Montenegro on the remaining
in force of bilateral treaties
28. The second issue on which the Netherlands would like to elaborate in addition to what it
has already stated in its Preliminary Objections relates to the outcome of consultations with Serbia
and Montenegro on the remaining in force of bilateral treaties concluded between the Netherlands
and Yugoslavia.
29. In a letter of 12 May 1999, the Agent of Serbia and Montenegro submitted to the Court a
“Supplement to the Application” of his Government, in which Serbia and Montenegro invoked as
an additional basis for the jurisdiction of the Court Article 4 of the Treaty of Judicial Settlement,
Arbitration and Conciliation between the Kingdom of the Netherlands and the Kingdom of
Yugoslavia, which was signed at The Hague on 11 March 1931 and entered into force on
2 April 1932. - 14 -
30. In its Order of 2 June 1999, the Court stated that it could not take into consideration this
new title of jurisdiction, as the invocation at such a late stage of the proceedings seriously
jeopardized the principle of procedural fairness and the sound administration of justice.
31. It may be recalled that in Chapter 6 of its Preliminary Objections, the Netherlands
submitted that for various reasons the 1931 Treaty of Judicial Settlement, Arbitration and
Conciliation did not provide a basis for jurisdiction of the Court. One of the reasons was that the
1931 Treaty could not be deemed to have automatically remained in force after the succession of
Serbia and Montenegro to the Socialist Federal Republic of Yugoslavia. It was further submitted
that apparently also in the view of Serbia and Montenegro the 1931 Treaty would not have
automatically remained in force. On the basis of that understanding, consultations at the initiative
of Serbia and Montenegro took place in July 1996, at the level of legal experts of the Ministries of
Foreign Affairs of the Netherlands and Serbia and Montenegro, during which no agreement was
reached as to the continued application of the 1931 Treaty.
32. Subsequently, after the Netherlands had presented its Preliminary Objections, further
consultations took place between legal experts of the Netherlands and Serbia and Montenegro. In
2002, agreement was reached concerning the continuance of bilateral treaties. This agreement is
laid down in an Exchange of Notes between Serbia and Montenegro and the Netherlands, dated
9 and 20 August 2002, reproduced in the bundle of Further Documents submitted by the
Respondents pursuant to Article 56 of the Rules of the Court (No. 12). Two attachments are
annexed to this Exchange of Notes. Attachment A comprises seven bilateral treaties that are
considered to be treaties in force between Serbia and Montenegro and the Kingdom of the
Netherlands. Attachment B comprises six bilateral treaties which, as explicitly stated in the
Exchange of Notes, “will not be considered in force between the Federal Republic of Yugoslavia
and the Kingdom of the Netherlands”. The first treaty listed in Attachment B is the 1931 Treaty.
This subsequent development only confirms what has already been submitted on this issue by the
Netherlands in its Preliminary Objections, that is that the 1931 Treaty does not provide a basis for
jurisdiction of the Court. - 15 -
V. Summary of submissions and conclusions
33. Mr. President, distinguished judges of the Court. I would like to draw some conclusions
and summarize the submissions of the Netherlands.
(i) In the light of Serbia and Montenegro’s Written Observations of 18 December 2002, the
Netherlands submits that in the present case the Court has no jurisdiction or should decline
to exercise jurisdiction as the parties in fact agree that the Court has no jurisdiction or as
there is no longer a dispute between the Parties on the jurisdiction of the Court.
(ii) However, should the Court decide that there is still a dispute between the Parties on the
jurisdiction of the Court in the present case, the Netherlands requests the Court, on the
basis of what has been put forward in its Preliminary Objections and supplemented during
the present hearings, to adjudge and declare that:
Serbia and Montenegro is not entitled to appear before the Court;
the Court has no jurisdiction over the claims brought against the Netherlands by
Serbia and Montenegro; and/or
the claims brought against the Netherlands by Serbia and Montenegro are
inadmissible.
Mr. President, distinguished judges of the Court, I thank you for your attention.
The PRESIDENT: Thank you, Mr. Lammers. This statement brings to a close the first
round of arguments for the Netherlands. The Court will resume at 3 o’clock this afternoon, when it
will hear the oral pleadings of Canada, Portugal and the United Kingdom.
The sitting is now closed.
The Court rose at 12.25 p.m.
___________
Public sitting held on Monday 19 April 2004, at 11.55 a.m., at the Peace Palace, President Shi presiding