Public sitting held on Thursday 22 April 2004, at 10.45, at the Peace Palace, President Shi presiding

CR 2004/16

International Court Cour internationale

of Justice de Justice

THE HAGUE LA HAYE

YEAR 2004

Public sitting

held on Thursday 22 April 2004, at 10.45 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 jeudi 22 avril 2004, à10 h 45, 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, S.J.D. (Harvard), Chief Legal Adviser at the 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, LL.M. (Michigan), 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. Slavoljub Carić, Counsellor, Embassy of Serbia and Montenegro, The Hague

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 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 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. Slavoljub Carić, conseiller à l’ambassade de Serbie et Monténégro à La Haye,

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: I give the floor to the Agent of the Netherlands, Mr. Lammers.

Mr. LAMMERS: Mr. President, distinguished judges of the International Court of Justice,

may it please the Court.

1. Before the start of the present oral proceedings there was one main question. This question

was phrased in different words by the eight Respondents, and most succinctly by Canada: why are

we here? One of the key elements of our observations on Monday has been that there is in fact

agreement between Serbia and Montenegro and the Netherlands that the Court has no jurisdiction

in the present case and that there is no longer a dispute between the Parties concerning the

jurisdiction of the Court. As we have stated on Monday during the first round of pleadings, it was

therefore difficult, if not impossible, to direct our oral statements to the issues that still divide the

Parties, in accordance with Article 60, paragraph 1, of the Rules of Court.

2. For the purpose of the first round of pleadings, the Netherlands had therefore decided not

to repeat its written Preliminary Objections  which it fully maintains —, but to concentrate on

three issues. First of all, Serbia and Montenegro’s Written Observations and their implications for

the jurisdiction of the Court. Secondly, the legal consequences for the present case of Serbia and

Montenegro becoming a Member of the United Nations. Thirdly, the consultations between the

Netherlands and Serbia and Montenegro on the remaining in force of bilateral treaties.

3. The gist of our oral statement on Monday was that there is no longer a dispute between the

Parties on the jurisdiction of the Court. The Netherlands had already, inter alia, put forward in its

Preliminary Objections of 5 July 2000 that the Court has no jurisdiction. Serbia and Montenegro in

its Written Observations of 18 December 2002 seems to share this view  we see no room for any

other conclusion. As this Court has emphasized in the Nuclear Tests cases, “[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 dispute brought before it

must “continue to exist at the time when the Court makes its decision” (Nuclear Tests cases, I.C.J.

Reports 1974, p. 271 and p. 476). This is what the Netherlands has emphasized during the first

round of pleadings, in reaction to Serbia and Montenegro’s Written Observations of

18 December 2002. - 7 -

4. In offering our comments to the oral arguments presented yesterday by Serbia and

Montenegro, the Netherlands wants to start by stating that there is an imbalance in the present

proceedings. On 5 July 2000 the Netherlands submitted 67 pages of Preliminary Objections in this

case. Almost two-and-a-half years later, Serbia and Montenegro presented its Written

Observations comprising a little more than one page. This little more than one page in our view —

as stated on Monday — seems to allow for no other conclusion than that there is no basis for

jurisdiction of the Court in the present case. Serbia and Montenegro did not even begin to address

our Preliminary Objections raised almost two-and-a-half years earlier. It was only yesterday that

Serbia and Montenegro, during three hours of oral presentations, responded to these Preliminary

Objections. Serbia and Montenegro has in fact left unused what would have been the normal

opportunity to address our Preliminary Objections, that is the moment when Serbia and

Montenegro filed its Written Observations.

5. In its Order of 2 June 1999 relating to Yugoslavia’s request for provisional measures in

the present case, this Court has referred to the principle of procedural fairness and the sound

administration of justice. This reference was made in the context of the invocation by Yugoslavia

of a new basis of jurisdiction shortly before the second round of oral argument on Yugoslavia’s

request for provisional measures, when the Netherlands had less than one day available to prepare

its objections. Now, again, less than one day of preparations has been available since Serbia and

Montenegro presented yesterday its three hours of oral arguments. The Netherlands claims that the

principle of procedural fairness and sound administration of justice, the need of efficiency, and the

need to address all issues as much as possible before the start of the oral proceedings require a

reasonable degree of stability in the position of the Parties. In the light of these circumstances our

observations this morning will be brief.

6. Mr. President, Members of the Court, our observations during this second round will also

be brief for another reason. The Netherlands has listened carefully to the oral arguments presented

yesterday by Serbia and Montenegro. Even though we could not analyse these arguments in great

detail, the Netherlands has come to the conclusion that hardly anything essentially new has been

put forward by the Applicant that would lead to other conclusions than we have already drawn on

Monday. Nevertheless there are a few points that the Netherlands would like to mention briefly. - 8 -

7. Firstly, as the Netherlands has stated on Monday, 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. The Written Observations by Serbia and Montenegro

cannot be interpreted in any other way, and Serbia and Montenegro did not change its views on this

point in its oral arguments presented yesterday. At the time when Serbia and Montenegro filed its

Application in the Registry of the Court on 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. Serbia and Montenegro and the Netherlands agree on these

issues.

8. Mr. President, Members of the Court, the Netherlands has in Chapter 4 of its Preliminary

Objections extensively dealt with the ratione temporis limitation of the declaration of Serbia and

Montenegro accepting the jurisdiction of the Court on the basis of Article 36, paragraph 2, of the

Statute. There is no need to repeat what has already been said there. Are we really to believe  as

Serbia and Montenegro wanted us to yesterday again — that “it was only when the Application was

filed on 29 April 1999 that the constituent elements of the dispute before the Court could come into

existence” and that “only then did the legal dispute crystallize” (paragraph 45 of the first round

speech by Professor Brownlie)?

9. In this regard we would not only like to refer to what the Netherlands has already said in

its Preliminary Objections, but also to what the Court itself has already noted in its Order of

2 June 1999 about the subject-matter of the dispute and on the point of time at which the dispute

arose, namely: “that a ‘legal dispute’ . . . ‘arose’ between Yugoslavia and the Respondent . . . well

before 25 April 1999 concerning the legality of those bombings as such, taken as a whole”

(paragraph 28 of the Order of 2 June 1999).

10. Article 14 of the Draft Articles on State Responsibility of the International Law

Commission to which Serbia and Montenegro yesterday referred (paragraph 48 of the speech by

Professor Brownlie) distinguishes between acts having a continuing character and those not having - 9 -

such a character amounting to a breach of an international obligation. In the first case the

subject-matter of the dispute must have arisen well before 29 April 1999 and in the second case we

seem to be again confronted with the thesis of Serbia and Montenegro that each individual air

attack must be deemed to have given rise to a separate subsequent dispute, a thesis which was also

already rejected by the Court in its Order of 2 June 1999 (paragraph 29 of the speech by

Professor Brownlie).

11. Finally, it may be recalled that the temporal limitation in the declaration of Serbia and

Montenegro relates to “all disputes arising or which may arise after the signature of the present

Declaration . . .”. Serbia and Montenegro tries to limit the concept of “disputes” in its pleadings of

yesterday giving the concept an unnatural restricted scope (paragraphs 53 et seq. of the speech by

Professor Brownlie). With this latter view of the matter, we are confronted with yet another theory

on the concept of dispute and the time of its coming into existence, setting aside what has been

argued by the Applicant in its Memorial. Mr. President, Members of the Court, are we not seeing

here a perfect example of what Professor Brownlie in his statement yesterday (paragraph 42) has so

nicely called an “analysis [involving] an invented superstructure”?

12. Mr. President, next the Netherlands would like to make a few observations with regard to

Article IX of the Genocide Convention. In its Preliminary Objections as well as in the first round

of pleadings, the Netherlands has recalled paragraph 38 of the Order of 2 June 1999, in which the

Court stated that it “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”. The Netherlands also recalled paragraph 41 of the Order, in which the Court stated

that at that stage of the proceedings it was not in a position to find that the acts imputed by

Yugoslavia to the Respondent were capable of coming within the provisions of the Genocide

Convention and could not accordingly constitute a basis on which the jurisdiction of the Court

could prima facie be founded.

13. Almost five years later, Serbia and Montenegro has still not presented an arguable case

under Article IX of the Genocide Convention. In its Memorial of 5 January 2000, as well as in its

Written Observations of 18 December 2002, Serbia and Montenegro completely failed to - 10 -

substantiate its claim that the Netherlands has breached the Genocide Convention. Yesterday,

Serbia and Montenegro addressed again the issue of genocidal intent, but did not provide any new

information on the basis of which prima facie evidence of genocidal intent on the part of the

Netherlands could be assumed. According to Serbia and Montenegro the purpose of the extensive

bombing by NATO States was to intimidate the people and government of Serbia and Montenegro

to force them to accept the political demands of the Contact Group. The military action  it was

noted — ceased when the demands were accepted (paragraph 29 of Professor Brownlie’s statement

in the first round of pleadings). Mr. President, Members of the Court, is this fact in itself not

already proof that there was no intention on the part of the NATO States to destroy the people of

Serbia and Montenegro as such? The Netherlands therefore maintains that the Court has no

jurisdiction ratione materiae in the present case on the basis of the Genocide Convention.

14. Mr. President, Members of the Court, I now would like to make some brief observations

regarding the bilateral 1931 Treaty concluded between the Netherlands and Yugoslavia, which

Serbia and Montenegro has invoked as a ground for jurisdiction. In the first place, the Netherlands

agrees with Serbia and Montenegro, that the 1978 Vienna Convention on the Succession of

Treaties is not applicable in the present case, as neither the Netherlands nor Serbia and Montenegro

are parties to it.

15. Serbia and Montenegro stated yesterday (paragraphs 37-42 of the pleadings by

Co-Agent Djerić), that the Netherlands has contended that the rules of the 1978 Vienna Convention

pertaining to “newly independent States” should apply in this case as customary international law.

This is without foundation. As is expressly stated in paragraph 6.12 of its Preliminary Objections,

the Netherlands does not consider Serbia and Montenegro as a “newly independent State”. In

paragraphs 6.8 to 6.11 the Netherlands indeed substantiates that the “clean slate rule” constitutes a

generally accepted rule or principle of international law in respect of bilateral treaties whether

involving “newly independent States” or other successor States (except of course in the case of

treaties establishing boundary or other territorial régimes) and that henceforth the consent of the

other party is required for the continuation of a bilateral treaty. Serbia and Montenegro shares this

view. As mentioned in paragraph 6.16 of the Netherlands Preliminary Objections, the FRY  in

its Memorial in the Genocide case — has itself extensively set forth that the “clean slate principle” - 11 -

should be applied to the Genocide Convention. While the Genocide Convention concerns a

multilateral treaty, the “clean slate principle” should a fortiori be applied in the case of a bilateral

treaty. This is precisely why Serbia and Montenegro and the Netherlands decided to initiate

consultations on the continuance of bilateral treaties.

16. Mr. President, Members of the Court, I come now to the part of Serbia and Montenegro’s

pleadings, which deal specifically with the 1931 Treaty. The Diplomatic Note of 20 May 1997 of

the Kingdom of the Netherlands to which Serbia and Montenegro referred yesterday, was already

mentioned in paragraph 3.3.10 of the FRY’s Memorial and annexed to it as Attachment No. 318.

In paragraph 6.22 of its Preliminary Objections, the Netherlands set forth that the Note was merely

a report of consultations which took place in July 1996 between legal experts of the Netherlands

and the FRY. In reaction to the contention in Serbia and Montenegro’s pleadings, the Netherlands

submits that Serbia and Montenegro quoted selectively from the Note in question, as the part which

refers to the Note’s character as a report of consultations was left out. A careful reading of the

Note shows, that it was suggested at that meeting by the Dutch side that some treaties would

continue to be applicable, some would not continue to be applicable, while others would still be

under discussion. The Netherlands submitted already in its Preliminary Objections, and it needs

not be repeated, that the Note in question, which remained unanswered by the FRY  I repeat,

which remained unanswered by the FRY , did not contain an agreement to the extent that any

treaty represented therein would constitute a treaty in force between the Kingdom of the

Netherlands and the FRY. The Netherlands maintains this position. Against this background the

Netherlands also maintains that it cannot possibly have been its intention  as alleged yesterday

by Serbia and Montenegro — to give to the passage “will not be considered in force” in the

Exchange of Notes of 9 and 20 August 2002 the meaning that the treaties in Attachment B of the

Note would not be in force only as from 20 August 2002. Moreover, the word “will” in the

paragraph just quoted does not refer to the words “in force”, as apparently suggested by Serbia and

Montenegro, but to the word “considered”. The parties simply stated that, whereas the treaties on

List A were to be considered in force from the moment of the coming into existence of the FRY,

those on List B were not to be considered to be so in force. - 12 -

17. Mr. President, distinguished judges of the Court. I would now like to summarize again

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. The Court takes note of the final submissions

which you have now read on behalf of the Kingdom of the Netherlands. This brings to an end the

second round of oral argument by the Kingdom of the Netherlands.

The Court now goes into recess for 10 minutes, after which it will hear the second round of

oral argument of Canada.

The Court rose at 11.05 a.m.

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