Non-Corrigé
Uncorrected
CR 2008/11
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2008
Public sitting
held on Wednesday 28 May 2008, at 10 a.m., at the Peace Palace,
President Higgins presiding,
in the case concerning Application of the Convention on the Prevention
and Punishment of the Crime of Genocide
(Croatia v. Serbia)
________________
VERBATIM RECORD
________________
ANNÉE 2008
Audience publique
tenue le mercredi 28 mai 2008, à 10 heures, au Palais de la Paix,
sous la présidence de Mme Higgins, président,
en l’affaire relative à l’Application de la convention pour la prévention
et la répression du crime de génocide
(Croatie c. Serbie)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presieigtgins
Vice-Prsi-Kntasawneh
Ranjevaudges
Shi
Koroma
Parra-Aranguren
Buergenthal
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Judges ad hoc Vukas
Kre ća
Couevrisrar
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : Mme Higgins,président
Al-K.vsce-prh,ident
RaMjev.
Shi
Koroma
Parra-Aranguren
Buergenthal
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda-Amor
Bennouna
Sjoteiskov,
Vukas .
Kre ća, juges ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of the Republic of Croatia is represented by:
H.E. Mr. Ivan Šimonović, Ambassador, Professor of Law at the University of Zagreb Law Faculty,
as Agent;
H.E. Ms Andreja Metelko-Zgombić, Ambassador, Head of International Law Service, Ministry of
Foreign Affairs and European Integration,
Ms Maja Seršić, Professor of Law at the University of Zagreb Law Faculty,
H.E. Mr. Frane Krnić, Ambassador of the Republic of Croatia to the Kingdom of the Netherlands,
Cso-Agents;
Mr. James Crawford, S.C., Whewell Professor of In ternational Law, University of Cambridge, and
Barrister, Matrix Chambers,
Mr.PhilippeSands, Q.C., Professor of Law, Univ ersity College London, and Barrister, Matrix
Chambers,
as Counsel and Advocates;
Mr. Mirjan Damaska, Sterling Professor of Law, Yale Law School,
Ms Anjolie Singh, Member of the Indian Bar,
as Counsel;
Mr. Ivan Salopek, Third Secretary of the Embassy of the Republic of Croatia in the Kingdom of the
Netherlands,
MsJanaŠpero, Ministry of Justice, Directorat e for Co-operation with International Criminal
Courts,
as Advisers.
The Government of the Republic of Serbia is represented by:
Mr. Tibor Varady, S.J.D. (Harvard), Professor of Law at the Central European University,
Budapest and Emory University, Atlanta,
as Agent;
Mr. Saša Obradović, First Counsellor of the Embassy of the Republic of Serbia in the Kingdom of
the Netherlands,
Cso-Agent; - 5 -
Le Gouvernement de la République de Croatie est représenté par :
S. Exc. M. Ivan Šimonović, ambassadeur, professeur de droit à la faculté de droit de l’Université de
Zagreb,
comme agent ;
S. Exc. Mme Andreja Metelko-Zgombi ć, ambassadeur, chef du service de droit international du
ministère des affaires étrangères et de l’intégration européenne,
Mme Maja Seršić, professeur de droit à la faculté de droit de l’Université de Zagreb,
S. Exc. M. Frane Krni ć, ambassadeur de la République de Croatie auprès du Royaume des
Pays-Bas,
comme coagents ;
M. James Crawford, S.C., professeur de droit inte rnational, titulaire de la chaire Whewell à
l’Université de Cambridge, avocat, Matrix Chambers,
M. Philippe Sands, Q.C., professeur de droit au Un iversity College de Londres, avocat, Matrix
Chambers,
comme conseils et avocats ;
M. Mirjan Damaska, professeur de droit, titulaire de la chaire Sterling, Yale Law School,
Mme Anjolie Singh, membre du barreau indien,
comme conseils ;
M. Ivan Salopek, troisième secrétaire à l’ambassade de Croatie aux Pays-Bas,
Mme Jana Špero, direction de la coopération avec la Cour pénale internationale au ministère de la
justice,
comme conseillers.
Le Gouvernement de la République de Serbie est représenté par :
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,
comme agent ;
M. Saša Obradović, premier conseiller à l’ambassade de la République de Serbie au Royaume des
Pays-Bas,
comme coagent ; - 6 -
Mr. Andreas Zimmermann, LL.M. (Harvard), Professor of Law at the University of Kiel, Director
of the Walther-Schücking Institute,
Mr. Vladimir Djeri ć, LL.M. (Michigan), Attorney at Law, Mikijelj, Jankovi ć and Bogdanovi ć,
Belgrade, President of the International Law Association of Serbia,
as Counsel and Advocates;
H.E. Mr. Radoslav Stojanović, S.J.D., Ambassador of the Republic of Serbia to the Kingdom of the
Netherlands, Professor at the Belgrade University School of Law,
Ms Sanja Milinković, LL.M., Ambassador, Head of the International Legal Service of the Ministry
of Foreign Affairs of the Republic of Serbia,
Mr. Vladimir Cvetković, First Secretary of the Embassy of the Republic of Serbia in the Kingdom
of the Netherlands,
Ms Jelena Jolić, M.Sc. (London School of Economics and Political Science),
Mr. Igor Olujić, Attorney at Law, Belgrade,
Mr. Svetislav Rabrenović, LL.M. (Michigan),
Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), Walther-Schücking Institute, University of Kiel,
Ms Dina Dobrković, LL.B.,
as Advisers. - 7 -
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,
comme conseils et avocats ;
S. Exc. M. Radoslav Stojanović, S.J.D., ambassadeur de la République de Serbie auprès du
Royaume des Pays-Bas, professeur à la faculté de droit de l’Université de Belgrade,
Mme Sanja Milinković, LL.M., ambassadeur, chef du service juridique international du ministère
des affaires étrangères de la République de Serbie,
M. Vladimir Cvetković, premier secrétaire à l’ambassade de la République de Serbie au Royaume
des Pays-Bas,
Mme Jelena Jolić, M.Sc. (London School of Economics and Political Science),
M. Igor Olujić, avocat, Belgrade,
M. Svetislav Rabrenović, LL.M. (Michigan),
M. Christian J. Tams, LL.M., Ph.D. (Cambridge), Institut Walther-Schücking, Université de Kiel,
Mme Dina Dobrković, LL.B,
comme conseillers. - 8 -
The PRESIDENT: Please be seated. The Court meets this morning for the continuation of
the submissions of Croatia and I believe it is you I am to call, Professor Crawford.
Mr. CRAWFORD: Thank you, Madam President, Members of the Court:
4. THE COURT ’SJURISDICTION AND THE PRINCIPLE OF C ONTINUITY OF R ESPONSIBILITY
Introduction
1. It is an honour to appear on behalf of Croatia in these proceedings.
2. As foreshadowed by Dr.Šimonovi ć, it is my task in this presentation to deal with two
issues of admissibility. The first concerns Serbia’s second preliminary objection, relating to events
prior to 27 April 1992. The second concerns Serb ia’s argument that some of the remedies sought
by Croatia in its submissions are inadmissible.
3. Both objections are of course partial only. They would not prevent the Court hearing the
case ⎯ if it has jurisdiction. And we will come to jurisdiction, I can assure you. All they would do
is qualify the extent of your temporal jurisdiction or the remedies that could be awarded.
4. This presentation will be brief because iour view it is obvious that both arguments
pertain to the facts and the merits, and are not genuinely issues of admissibility, at least not beyond
a certain very elementary point. Madam President , you have warned the Parties twice now against
straying into the facts, and I will try to heed that warning. Hence the brevity!
Serbia’s second preliminary objection
5. I turn then to Serbia’s second preliminary ob jection, which is: “Croatia’s Application is
inadmissible as far as it refers to acts or omissi ons which occurred prior to 27April1992.” It is
striking that 27 April 1992 was a proclamation of continuity. It is now regarded by the Respondent
as a marked discontinuity.
6. On Monday we heard counsel, Mr.Djeri ć and ProfessorZimmermann, engage in an
elaborate logical pas de deux , or, if we count Serbia’s Agent, ProfessorVarady,pas de trois .
They all aimed at making responsibility for genocidal acts committed by Serbian entities prior to - 9 -
that date legally impossible F. But Serbia was not a newly independent State within the meaning of
the 1978 and 1983 Vienna Conventions, and it had no priv ilege of a clean slate, either in terms of
succession or responsibility. And these are the only two issues that are relevant ⎯ there is not a
third issue: the issue of succession; the issue of responsibility. International law in these two
areas is internally consistent: it aims to a void both gaps in treaty coverage and gaps in
accountability for breaches of treaty.
7. As to the issue of succe ssion, the question is simple: was the Respondent continuously
bound by the Genocide Convention? Professor Sands has shown that it was ⎯ indeed, it expressly
and unconditionally accepted that it was. Th e famous letter the Respondent sent to the
Secretary-General on 27April 1992 was not an offe r to those States who ag reed with the FRY’s
continuity thesis that the FRY would not commit genocide or otherwise breach its treaty
obligations. It was neither rela tive nor qualified. Nor was it expressed to be prospective; it was
drafted, as I have said, in terms of continuity. The Respondent was a party by succession to the
Genocide Convention from the beginning of its existence as a State.
8. I stress that succession is a distinct mode of transmission of treaty obligations. It is a
distinct mode of becoming a party to a treaty. Un like all the other modes it is retrospective to the
commencement of the successor State. It is not, as Serbia seemed to suggest on Monday, accession
in disguise. Nor is it excluded by Article XI of the Genocide Convention, which is concerned only
with signature ratification and accession, not with succession. In practice, numerous States have
succeeded to the Genocide Convention, including Croa tia: it has never been suggested before that
Article XI excluded this. To suggest, as counsel did on Monday, that Article XI has this effect was
2
an argument of desperation F .
9. As I have said, succession is a form of transmission of existing legal relations, not a mode
of acquiring new ones. And the point of successi on is to avoid discontin uity. Where a State
succeeds to a treaty it is bound by that treaty ab initio, and it is accountable for any breach of the
treaty which may be attributable to it under the international law rules of attribution.
1
See, inter alia, CR 2008/8, pp. 54 et seq. (Djerić); CR 2008/9, pp. 8 et seq. (Djerić); CR 2008/9, pp. 13 et seq.
(Zimmermann); CR 2008/9, pp. 32-33 (Varady).
2
See, inter alia, CR 2008/8, pp. 50-52. - 10 -
10. This is of particular importance in the case of universal treaties such as the Genocide
Convention. That was a declaratory, confirmatory Convention, not a synallagmatic bargain
between States. There are not two kinds of ge nocide, treaty genocide and customary genocide ⎯
as my colleagues opposite implied on Monday. Genoc ide is a unitary concept, contrary to both
treaty and custom. The Genocide Convention does no t refer to conduct contrary to the provisions
of this Convention, it refers instead to “genocide or any of the other acts enumerated in Article III”,
a formulation which was deliberate. And genocid e is as close as international law gets to an
absolute idea; it is not relative to one State or another. You cannot have genocide vis-à-vis Croatia
or anyone else. You just have ge nocide. There is just genocide by reference to the definition set
out in the Convention, and the object and purpose of the Convention dictates as wide as possible a
temporal application, as you pointed out in 1996.
11. The fundamental problem is that Serbia treats the system of international law as if it were
a gentlemen’s club, with definite and precise rules of entry and the exclusion of outsiders. The date
of proclamation of independence is treated as dispositive ⎯ before that date there can be no treaty
obligations and thus no responsibility for their breach.
12. Now where the dissolution of a State is an orderly, agreed process occurring at a precise
moment in time ⎯ as occasionally it can be, as it was with the former Czechoslovakia ⎯ this
approach might be more or less workable. But in fact, even in the case of Czechoslovakia, there
were problems ⎯ which the Court was careful to minimize or avoid entirely in the
Gabčíkovo-Nagymaros case. I note that the diversion of the Danube there occurred before the
formal dissolution of Czechoslovakia, that it occurred under the control of Slovakia not
Czechoslovakia, and that Hungary ’s international responsibility already incurred was, formally
speaking, a responsibility to Czechoslovakia, not to Slovakia. But all of those facts made no
difference to the result, whether in terms of succession or in terms of responsibility.
13. But where the dissolution is a vi olent, disorderly, disputed process ⎯ as it was here ⎯
the position is quite different. The dissolution of the SFRY was not at all like joining a
gentlemen’s club. The point is clearly made by ProfessorBrownlie in successive editions of his
textbook: - 11 -
“States not infrequently first appear as independent belligerent entities under a
political authority which may be called, and function effectively as, a provisional
government... [O]nce statehood is firmly established, it is justifiable, both legally
and practically, to assume the retroactive va lidation of the legal order during a period
prior to general recognition . . . when some degree of effective government existed . . .
[T]he principle of effectiveness dictates acceptance, for some legal purposes at least,
3
of continuity before and after statehood is firmly established.” FF
14. And one of the legal purposes for which “c ontinuity before and after statehood is firmly
established” is international responsibility. The re levant rule is, as Serbia accepts, codified in
Article10 of the ILC Articles on State Responsib ility, to which I will come shortly. I will
demonstrate that the second preliminary objec tion confuses genuinely preliminary issues of
admissibility with the merits of Croatia’s claim, and that it should be dismissed as a preliminary
objection. I accept that in so doing the Court will not decide ⎯ or even need to consider ⎯ what,
if any, conduct occurring before 27 April 1992 is attributable to the respondent State: attribution is
a question of merits and you will not prejudice the merits by dismissing the preliminary objection.
I also accept that the onus of establishing breaches of the Genocide Convention in respect of acts
occurring prior to that date will remain with Croatia . But questions of proof are matters of merits
too.
15. In short, Croatia maintains three propositions:
Proposition 1 ⎯ A State can be responsible for conduct committed by persons acting on its behalf
prior to the formal date on which it is established or proclaimed.
Proposition 2 ⎯ Whether the State is so responsible is a question of attribution.
Proposition 3 ⎯ Attribution of conduct is a matter of merits, not jurisdiction or admissibility.
It follows from these three propositions that the second preliminary objection pertains to the merits.
16. I appreciate that this may be thought a somewhat bloodless, abstract way of dealing with
the admissibility of a claim of genocide. But the issue of admissibility is a categorical one: it is
not whether the Respondent is in truth responsible ⎯ for the merits are suspended by the
Respondent’s own act. It is that a priori the Respondent cannot be responsible, and that is how
counsel put it on Monday.
17. But lest this be thought to be excessively bloodless, let me give just one factual example,
with all due apologies, Madam President. What I am about to say draws on public documents of
3I. Brownlie, Principles of Public International Law (6th ed. Oxford, 2003), 77. - 12 -
the Yugoslav Tribunal; the references are in the footnotes. In the judgment in the Babić case, it is
stated that in the period of the indictment, from about 1August1991 to 15February1992, Serb
forces composed of JNA units, local Serb units, police units from Serbia, and paramilitary units,
attacked and took control of towns, villages, and set tlements in the Krajina, that is to say, within
Croatia F4. According to Babi ć’s testimony in the Milošević case, all the relevant persons in
“Krajina” were under the control of former PresidentMiloševi ć and of Belgrade. The entire
military structure ⎯ JNA, police, territorial defence fo rces of Serbia and “Krajina”, as well as
paramilitary units, local and from Serbia FF⎯ that whole structure was under the control of
Milošević and of Belgrade. We do not ask you, of cour se, to find that but that is in the public
record. In the second indictment against former President Milošević, the prosecution asserted that
he was responsible, amongst other things, for pa rticipation in and effective control over other
participants in a joint criminal enterprise aimed at occupation of areas of Croatia and the forcible
removal of Croat and other non-Serb populations FF. The Judgment in the Martić case also showed
the direct involvement of the Respondent in the occupation of Croatia, through its State Security
Service (SDB) and Ministry of Interior F.
18. I stress again: we do not suggest that you need to enter into these facts and issues at this
stage. But make no mistake ⎯ there are facts and issues to be dealt with, if you have jurisdiction.
Serbia’s admissibility arguments ⎯ on which they spent, on Monday, rather more than half their
time, not counting repetition ⎯ are really an attempt to get a merits judgment in disguise, and
without the burden of having to file a counter-memorial.
I turn now to my three propositions.
4
Babić, IT-03-72-S, Trial Chamber Judgment, 29 June 2004, para. 14.
5
Milošević, IT-02-54-T, Transcript, 3 Dec. 2002, pp. 13737, 13740 and 13744.
6
Milošević, IT-02-54-T, Second Amended Indictment, 28 July 2004, paras. 25 and 26.
7
Martić, IT-95-11-T, Judgment, 12 July 2007, paras. 141 and 142. - 13 -
Proposition 1: A State can be responsible for conduct committed by persons acting on its
behalf prior to the formal date on which it is established or proclaimed
19. This possibility is of particular importa nce where, as in this case, the succession is a
process and not a single event. The governing principl e is stated in Article 10 of the ILC Articles,
which reads as follows:
“Conduct of an insurrectional or other movement
1. The conduct of an insurrecti onal movement which becomes the new
government of a State shall be considered an act of that State under international law.
2. The conduct of a movement, insurrectional or other, which succeeds in
establishing a new State in part of the territory of a pre-existing State or in a territory
under its administration shall be considered an act of the new State under international
law.
3. This article is without prejudice to th e attribution to a State of any conduct,
however related to that of the movement con cerned, which is to be considered an act
of that State by virtue of articles 4 to 9.”
20. I note first the distinction between paragra phs1 and 2. Paragra ph1 is concerned with
rebel movements in existing States ⎯ that is why it is limited to insurrectional movements. But
paragraph2 is concerned with the situation of a new State, and it is not limited to insurrectional
movements. It applies to the conduct of any movement, insurrectional or other, which succeeds in
establishing a new State, and that is what we ha d here. I emphasize the words “or other”, which
counsel for Serbia tended to ignore F.
21. The Commentary to Article 10 makes this clear:
“Where the insurrectional or other mo vement succeeds in establishing a new
State... the attribution to the new State of the conduct of the insurrectional or other
movement is again justified by virtue of the continuity between the organization of the
movement and the organization of the State to which it has given rise. Effectively the
same entity which previously had the charac teristics of an insurrectional or other
movement has become the government of the State it was struggling to establish. The
predecessor State will not be responsible for those acts. The only possibility is that the
new State be required to assume responsib ility for conduct committed w9th a view to
its own establishment, and this represents the accepted rule.” FF
I stress the very broad and factually based noti on of a “movement, insurrectional or other”.
Historically, there are lots of ways that movements can create new States ⎯ none more unusual
8See, inter alia, CR 2008/8, p. 54.
9
ILC, Commentary to Art. 10, para. (6); see also para. (8). - 14 -
than this one, one might say ⎯ and correspondingly the notion of a “movement” is intended to be a
broad one, not the very restrictive one which Serbia presumed.
22. A recent illustration of this principle is provided by a decision of the Eritrea/Ethiopia
Claims Commission, which held that Ethiopians of Eritrean ethnicity who registered to vote in the
Eritrean independence referendum thereby, by the ac t of registration, irrespective of whether they
voted or how they voted, acquired Eritrean nationality pursuant to an ordinance of 1992.
Obviously this was before the formal independence of Eritrea which ⎯ the Court will be relieved
to hear, only occurred after the referendum! Eritrea argued, inter alia, that since it did not come
into existence as a State until 1993 and sin ce these persons may have been opposed to
independence, an election for an as-yet undeterm ined nationality could not be assumed. The
Commission held that the persons concerned acquired Eritrean nationality in 1992, with
consequences for the application of the law of responsibility between the two States. It said:
“[T]he Commission is not . . . persuaded by Eritrea’s argument that registration
as an Eritrean national in order to par ticipate in the 1993 Referendum was without
important legal consequences. The governi ng entity issuing those cards was not yet
formally recognized as independent or as a Member of the United Nations, but it
exercised effective and independent contro l over a defined territory and a permanent
population and carried on effective and substan tial relations with the external world,
particularly in economic matters. In all these respects, it reflected the characteristics
of a State in international law.
Taking into account the unusual transiti onal circumstances associated with the
creation of the new State of Eritrea and bot h Parties’ conduct before and after the
1993Referendum, the Commission concludes th at those who qualified to participate
in the Referendum . . . became citi10ns of the new State of Eritrea pursuant to Eritrea’s
Proclamation No. 21/1992 . . .” F .
23. Madam President, Members of the Court, the lockstep logic of Serbia’s counsel would
not allow for such a result ⎯ citizenship effectively in advance of the State. But the life of
international law has not been logic, it has been experience, and the rule stated in Article10,
paragraph 2, as the ILC said, “represents the accepted rule”.
24. Applying the accepted rule to our case, it is perfectly clear that there was a process, a
governmental process, throughout. Moreover it was carried out, in fact, under the rubric of
continuity. Specific dates were not crucial and were not presented as such at the time. It is fair to
10Eritrea/Ethiopia Claims Commission, Partial Award, Civilian Claims (Eritrea’s Claims 15, 16, 23 & 27-32) ,
17 Dec. 2004, 44 ILM 601, 610-11 (paras. 48-49, 51). - 15 -
say that the FRY backed protesting into separate statehood. But that is no reason to absolve it from
responsibility for the conduct of its own personnel in the process.
Proposition 2: Whether the State is so responsible is a question of attribution.
25. I turn then to the second proposition. Given the possibility of responsibility, whether a
State is responsible is a question of attribution. Now that proposition is entailed by the first.
Whether the new State is responsible is a matter of attribution. Article10 is a special rule of
attribution dealing with a specific situation, whic h explains its placement after Article9, another
such special rule. It does not depend, as counsel for Serbia suggested on Monday, on continuity of
legal personality ⎯ it depends on continuity of effective cont rol. In fact outside the context of
decolonization, it is extremely rare for movements engaged in creating a new State to enjoy any
form of separate personality, and the Commentary mak es it clear that such issues are irrelevant to
the application of Article 10, paragraph 2 F1. Rather the question is one of fact and evidence in the
given case.
Proposition 3: Attribution of conduct to the State is a matter of merits, not jurisdiction or
admissibility
26. This brings me already to our third propos ition. Attribution of conduct to the State is a
matter of merits, not of jurisdiction or admissibility . Once the principle of Article 10, paragraph 2,
is accepted ⎯ and Serbia did not challenge it, though they misunderstood and misapplied it ⎯ then
it follows as the night the day that this admissib ility challenge must fail. The factual examples I
gave ⎯ I could have given others ⎯ shows that the issue here is a live one. It is pleaded. For the
purposes of admissibility, that is all that matters. The evaluation of the facts is a matter for another
day; it is not for this phase of the proceedings.
27. Madam President, Members of the Court, to summarize, the law of responsibility allows
that the conduct of a movement of any character is attributed to a State which ⎯ at the time the
conduct occurred ⎯ was in the process of formation. This rule of attribution, embodied in
Article 10, paragraph 2, of the ILC Articles on State Responsibility, depends on the specific facts,
which cannot be investigated at this stage. Serbia’s admissibility argument must fail.
11ILC, Commentary to Article 10, para. 2. - 16 -
The third preliminary objection: Admissibility of submissions
28. I turn now, and even more briefly, to my second task, which is to respond to Serbia’s
argument that some of the remedies sought by Croatia in the submissions are inadmissible not only
because they are moot but because they are not ava ilable as a matter of principle. The Agent for
Croatia has dealt with the matter of mootness; I should say something as to the admissibility of the
submissions in principle. This is dealt with in Chapter 4 of our Written Observations, which I will
not repeat but to which there is little to add.
29. On Monday, Serbia made particular compla int as to the submission relating to the return
of cultural property. Paragraph 2 (c) of our submissions requests the Court, as a consequence of
any finding of responsibility for genocide, to order the Respondent, inter alia:
“forthwith to return to the Applicant any items of cultural property within its
jurisdiction or control which were seized in the course of the genocidal acts for which
it is responsible” F12.
Serbia makes the point that since seizure of cultu ral property cannot be genocide, an order for the
return of cultural property is outside the scope of the Genocide Convention and thus inadmissible F3.
30. I should first comment that this issue only arises if the Court, first, upholds its
jurisdiction over the claim and, secondly, upholds the claim itself on the facts. The question what
conduct is then required of the Respondent as a ma tter of full reparation will then arise. That
question will have to be determ ined in light of the facts as found and the arguments of the
Parties ⎯ and it will include developments that may take place up to the closure of the oral
argument on the merits. For the Court in effect to be asked now, as a matter of admissibility, to
edit Croatia’s final submissions on remedies is prem ature, to say the least. The ragbag category of
admissibility should not be expanded unduly, nor s hould it be used to bring in advance issues
which pertain to the merits. Otherwise every c ontentious case will be preceded by a contentious
preliminary phase in which ⎯ without benefit of full pleading on the facts ⎯ the Court is
effectively asked to anticipate which remedies are to be excluded in limine. I do not say that power
does not exist; I do say that it should be exercised only in a very clear case. This is not such a
case.
1MC, p. 414.
13
See, inter alia, CR 2008/9, p. 29 (Zimmermann). - 17 -
31. Turning to our case, it is true th at Croatia is not only interested in ⎯ indeed not even
primarily interested in ⎯ financial compensation, though that remains an issue. Besides
compensation to the victims ⎯ in its capacity as parens patriae ⎯ Croatia in its submissions
requests remedies derived both from the needs of th e victims and their families and the Genocide
Convention and international law.
32. Of course, establishing that genocide w as committed is a prerequisite for all other
remedies, including financial compensation It is also a remedy in itself, as you have frequently
found.
33. Trying those apparently responsible for genocidal acts is the essence of the Convention
in both its aspects: prevention and punishment.
34. To reveal the whereabouts of missing pe rsons who were victims of genocide is an
obligation well grounded in the Genocide Convention. People have been abducted, murdered or
simply “disappeared” within the framework of a genocidal campai gn. Revealing the truth about
such missing persons is a part of establishing responsibility for genocide. It is also, once
responsibility has been established, an important remedy for the targeted ethnic group and their
families.
35. Now, the question can be asked: can de privation of the targeted group’s cultural
heritage, its deliberate destruction and looting cons titute genocide, as defined in international law?
I will not even try to address this difficult question in general terms. It suffices to say that the
claimant perceives the deliberate destruction and lo oting of cultural property as part of a broader
plan or pattern of activities, including physical extermination, aimed at the extinction of the
Croatian ethnic group from the occupied territories a nd carried out with the relevant intent. An
order for return is not a priori inadmissible as a remedy for genocide as defined in the Convention.
Whether it is an appropriate remedy is, again, a matter for another day.
36. Madam President, Members of the Court, th at concludes this rather summary treatment
of issues which will undoubtedly require much more profound treatment in due course ⎯ assuming
you have jurisdiction ratione personae over the Respondent by reason of Article 35 of the Statute.
That question, the real question in this ph ase of the case, on day3, we at last reach. - 18 -
ProfessorSands and I will now explore that question, starting, with your permission, Madam
President, with Professor Sands.
The PRESIDENT: Thank you, Professor Crawford. I now call Professor Sands.
SANr.DS:
THE FRY' S SPECIAL STATUS WITHIN THE UNITED NATIONS
I. Introduction
1. Madam President, Members of the Court, in this second presentation on behalf of the
Republic of Croatia I will address the issue of access to the Court under Article35(1) of the
Court’s Statute. Professor Crawford will then d eal with the question of access and Croatia’s rights
under Article 35 (2). These arguments are distinct and are presented as alternatives.
2. That Article35 of the Court’s Statute has to be addressed at all— at this stage of these
proceedings ⎯ is perhaps surprising. Croatia filed its Application on 2July1999. By then the
Court had already made clear its view ⎯ unanimously ⎯ that there was no Article35 bar to
Croatia’s Application, whether on grounds of jurisdiction ratione personae or on the grounds of
“access to the Court”. In the two 1993 Orders on Provisional Measures, the Court ruled that it did
not have to “determine definitively” at that stage of the proceedings whether Yugoslavia was a
party to the Statute of the Court: the Article35(1 ) issue, as we will refer to it. It found it had
prima facie jurisdiction under Article35(2), give n that prima facie participation of Bosnia and
Herzegovina and Yugoslavia in the Genocide Conv ention, which could be regarded as “a special
provision contained in a treaty in force” (Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional
Measures, Order of 8 April 1993, I.C.J. Reports 1993 , p. 14, paras. 19 and 20; also Application of
the Convention on the Prevention and Punishme nt of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Provisional Me asures, Order of 13Septem ber1993, I.C.J. Reports
1993, p. 338, para. 25). The Orders attracted no dissent. Three years later, in its 1996 Judgment on
Preliminary Objections, the Court said nothing explicit about Article 35 of the Statute. Yugoslavia
had raised no preliminary objection in relation tothat provision, and apparently no judge felt a
necessity to express a view as to any difficulties in relation to Article 35 (1) or 35 (2). That silence - 19 -
was not without consequence: logically, the C ourt must have proceeded on the basis that the
conditions established by either Article 35 (1) or Article35(2), or both, had been met; and this
seems to be the point you made in paragraph133 of your Judgment in2007. Now, it is true that
three years after the 1996 Judgment, in your Order of 2 June 1999, you found that you did not have
prima facie jurisdiction to entertain an app lication for provisional measures from Yugoslavia
against a number of NATO members; but you did so on very different grounds, namely: first, that
there was no jurisdiction ratione temporis under Article35(2) of the Statute, and second the acts
alleged against the Respondent were not prima facie capable of coming within the Genocide
Convention (Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of
2 June 1999, I.C.J. Reports 1999 (I), p.135, para.30 and p.138, para.41). The Court concluded
that it need not address the question of whether the requirements of Article35(1) were then met.
Yugoslavia nevertheless addressed that questi on. And on 12May1999, Yugoslavia’s Agent,
Mr.Etinski, duly authorized by the respondent St ate as its representative, addressed this Court in
this room. Yugoslavia was a Member of the Unite d Nations, he submitted, and had “the right to
participate in the work of [United Nations] organs other than Assembly bodies” F4: and I emphasize
those last four words.
3. Madam President, Members of the Court, it was against this background of judicial
decision by this Court and argument by the FRY that Croatia filed its Application on 2 July 1999.
Now, before looking in more detail at that Appli cation, it is appropriate to say something about the
FRY’s sui generis relationship to the United Nations ⎯ and the Statute of the Court ⎯ during the
period in question. I would like to be able to reply to the arguments that Serbia made on
Article35(1) on Monday, but I am unable to do so. Beyond bald assertion, Serbia presented no
detailed arguments.
II. The FRY’s relationship with the United Nations 1992 to 2000
4. The Court is by now very well aware of the facts concerning the break-up of the SFRY,
the emergence of the FRY, and the FRY’s relations hip with the United Nations. There is no need
for us to revisit this issue in any great de tail. The essence is that between 1992 and 2000 ⎯
1CR 99/25, p. 24. - 20 -
including the date on which Croatia filed its Application in these proceedings ⎯ the FRY had a
special and unique relationship with the United Nations. In our submission, the relationship
included attributes of membership, and included an entitlement to appear before the Court under
the conditions envisaged by Article35(1) of the Court’s Statute. That Article, you will recall,
provides that: “The Court shall be open to the States parties to the present Statute.”
5. The SFRY was an original Member of the United Nations. Its membership continued for
more than 45 years until, as described in Croatia’s Memorial, break-up began in mid-1991 F5. Now
the key dates are shown on the screen behind me and of course there is a tab in your judges’ folder,
tab7 [slide]. On 19 May 1991, a referendum held in Croatia vot ed overwhelmingly in favour of
16
independence F . On 25 June 1991, the Croatian Parliament, the Sabor, proclaimed Croatia “a
17
sovereign and independent State” F . On 29 November 1991 the Badinter Commission expressed
18
the view that the SFRY was then “in the process of dissolution” F . On 27 April 1992 the Republic
of Serbia and Montenegro proclaimed the fo rmation of the FRY, declaring that the FRY
“continuing the State, international legal and political personality of the [SFRY], shall strictly abide
by all the commitments that the SFRY assumed internationally” F9. The following month on
22 May 1992 the Republic of Croatia was admitted to me mbership of the United Nations. Then on
30 May 1992 the United Nations Security Council adopted resolution757(1992), noting that “the
claim by the [FRY] to continue automatically the membership of the former [SFRY] in the
UnitedNations has not been generally accepted”. On 19 September 1992 Security Council
resolution777 stated that the FRY “cannot automa tically continue the membership of the former
[SFRY]”. And three days later, on 22 September 1992, General Assembly resolution 47/1 adopted
the terms of that resolution and decided that th e FRY “should apply for membership in the United
20
Nations and that it shall not participate in the work of the General Assembly” F F[slide off]. Now,
on 29 September 1992, the Under-Secretary-General and United Nations Legal Counsel, in a letter
15
MC, Chap. 2, pp. 41 et seq.
16Ibid., para. 2.113.
17Ibid., para. 2.114.
18Opinion No. 1 of December 1991; MC, para. 2.120.
19United Nations doc. A/46/915; MC, para. 2.138.
20
The resolution was adopted by 127 votes to 6, with 26 abstentions. - 21 -
addressed to the permanent representatives of Bosnia and Herzegovina and of Croatia, stated that
“the only practical consequence that [resolution 47/ 1] draws is that the [FRY] shall not participate
in the work of the General Assembly” and that it was “clear, therefore, that representatives of the
[FRY] can no longer participate in the work of th e General Assembly, its subsidiary organs, nor
conferences and meetings convened by it.” He went on:
“On the other hand, the resolution neither terminates nor suspends Yugoslavia’s
membership in the Organization. Consequently , the seat and nameplate remain as
before, but in Assembly bodies representatives of the [FRY] cannot sit behind the sign
‘Yugoslavia’. Yugoslav missions at Unite d Nations Headquarters and offices may
continue to function and may receive and ci rculate documents. At Headquarters, the
Secretariat will continue to fly the flag of the old Yugoslavia as it is the last flag of
Yugoslavia used by the Secretariat. The resolution does not take away the right of
Yugoslavia to participate in the work of organs other than Assembly bodies. The
admission to the United Nations of a new Yugoslavia under Article4 of the Charter
21
will terminate the situation created by resolution 47/1.” FF
On 29 April 1993, General Assembly resolution 47/ 229 decided that the FRY “shall not participate
in the work of the Economic and Social Council”. The fact that this resolution had to be adopted at
all, and its limited and narrow scope , is inconsistent with the conc lusion that the FRY did not on
that date ⎯ 29 April 1993 ⎯ have other attributes of membersh ip of the United Nations including
a right of access to the Court under Article 35 (1).
6. No further restrictions were placed on th e participation of the FRY in the work of the
United Nations. Nor did they adopt any measures that would prevent the FRY from participating
in the work of any other United Nations organs, or programmes, or bodies, including its principal
judicial organ, the International Court of Justice. There can be no dispute as to the facts over two
phases: from 27April1992 until 22September1992 there were no restrictions on the full
participation of the FRY in the work of all United Nations bodies, including the General Assembly.
And then from 22 September 1992 onwards (until 1 November 2000, when the FRY was admitted
to membership of the United Nations), the FRY w as not subject to restrictions on participation in
any body except in respect of the General Asse mbly and the Economic and Social Council. There
was no restriction placed on its participation in the work of this Court.
7. Throughout this period the FRY exercised ⎯ and was perceived as exercising ⎯ the
attributes of membership of the United Nations. Some examples:
2United Nations doc. A/47/485; emphasis in the original. - 22 -
22
(a) it claimed to be a Member of the United Nations F ;
(b)a number of other Members of the United Nations ⎯ including the Russian Federation and
China ⎯ acted on the basis that the decision to suspend the FRY from limited activities did not
23
amount to expulsion or non-membership F ;
(c) the annual edition of the I.C.J. Yearbook treated Yugoslavia as bei ng a Member of the United
Nations F4;
(d) the FRY occupied the seat of the former Yugoslavia in participating in the work of other United
Nations organs and bodies, whose seat, name and missions subsisted;
(e)the FRY was able to circulate documents w ithin the United Nations system under the same
conditions as other Members (except in the limite d context of the General Assembly and the
Economic and Social Council), and it received documents circulated by other Members;
(f) the Permanent Mission of the FRY, at the same address as the former mission of the SFRY,
appeared on the list of missions prepared by the United Nations;
(g)the FRY continued to participate in the work of other United Nations organs, including the
Security Council and the International Court of Justice, as well as other United Nations bodies,
such as the ICTY, in a manner that was not di stinguishable from the participation of other
25
Members F F; and
(h) throughout this entire period the FRY was assessed for United Nations budgetary contributions,
it paid assessments, and acted as being liable (as continuator) for certain unpaid contributions of
the SFRY (less the amounts owed by successor States, which of course became contributors in
their own right) F26.
22
See e.g., the FRY’s Memorial in the Legality of Use of Force cases, 5 January 2000. Part 3 of that Memorial is
entitled “The FR of Yugoslavi a is a Member State of the United Nations.” See also CR 99/25, p. 24 (Etinski) who
unequivocally stated that “The Federal Republic of Yugoslavia is a Member State of the United Nations.”
2See e.g., the view expressed by Mr. Vorontsov, Permanent Representative of the Russian Federation, who
states:
“The decision to suspend the participation of th e Federal Republic of Yugoslavia in the work of
the General Assembly will in no way affect the possibility of participation by the Federal Republic of
Yugoslavia in the work of other organs of the United Nations, in particular the Security Council...”
(Security Council, Provisional Verbatim Record of the 3116th Meeting, S/PV .3116, 19 September 1992,
4-5.) (Legality of Use of Force, Memorial, para. 3.1.1.)
Also the view of the Permanent Representative of the People’s Republic of China, Mr. Li Daoyu:
“The resolution just adopted does not mean the expulsion of Yugoslavia from the United Nations.
The name-plate ‘Yugoslavia’ will be kept in the General Assembly hall ... The Federal Republic of
Yugoslavia will continue to issue its documents in the United Nations.” (Security Council, Provisional
Verbatim Record of the 3116th Meeting, S/PV.3116, 19 September 1992, pp. 14-15.) ( Legality of Use of
Force, Memorial, para. 3.1.2.)
2See e.g., Legality of Use of Force, Memorial, para. 3.1.17.
2See the arguments adduced by the FRY in its 5 January 2000, Legality of Use of Force , Memorial, para.3.1.1
et seq. See also the arguments of the Agent of the FRY in th is very Hall on 12 May 1999 in the hearing for the request
for provisional measures in the Legality of Use of Force case, CR 99/25, p. 24 et seq.
26
See, inter alia, CR 99/25, pp. 24-25 with regard to the payment of contributions by the FRY. - 23 -
8. I would note that throughout this period four of the SFRY’s successor States, including
Croatia, objected to this special status enjoyed by the FRY but their efforts at changing it were
unsuccessful.
III. Croatia’s Application and the FRY’s change of direction
9. This was the context in which Croatia filed its Application with the Court, on 2 July 1999.
By that time there had been other, even more significant developments, which gave rise to
expectations on which Croatia relied. Specifi cally, this Court had handed down Orders and
Judgments ⎯ in 1993, 1996 and 1999 ⎯ which identified no bar to the exercise by the Court of its
jurisdiction under Article 35 (1) or Article 35 (2) or both. In the context of those proceedings the
FRY had publicly proclaimed its entitlement to bring proceedings before the International Court of
Justice, and it raised no preliminary objections based on Article35 of the Statute. Croatia was
entitled to rely on the words of Mr. Etinski, the FR Y’s Agent, spoken in this same room just weeks
before Croatia filed its Application. “The Federal Republic of Yugoslavia is a Member State of the
United Nations,” said Mr. Etinski, and all the requi sites of the Court’s Statute and Rules had been
satisfied F7. As to the effect of the General Assembly resolutions, Mr. Etinski was crystal clear, and
I quote:
“The conclusion is clear: the Federal Republic of Yugoslavia cannot participate
in the work of the General Assembly and the [ECOSOC]. That is all. There are no
other consequences.”
He also reminded the Court that “the I.C.J Yearbook informs that Yugoslavia is one among
185 Member States of the United Nations on 31 July 1997”.
10. Those undertakings by the distinguished Agent gave rise to an expectation on which
Croatia was entitled to rely: it is instructive to co mpare Croatia’s Application of 2 July 1999 with
Bosnia’s Application of 20March1993. Croa tia invoked the same provisions of the Genocide
Convention, of the Court’s Statute and the Court’s Rules F8. That is the material distinction
27
CR 99/25, p. 23.
28
Croatia’s Application of 2 July 1999 provided: - 24 -
between this case and that brought by the FRY against NATO members, which was based on an
Article36(2) declaration that the Court decided ⎯ rightly, we would submit ⎯ could not, on its
own terms, apply retroactively F9.
11. Between the date of the filing of the Appli cation (2 July 1999) and the date of the filing
of Croatia’s Memorial (1March2001) came a new development. On 24September2000,
Mr.Koštunica was elected President of the FRY. On 27October2000 he sent a letter to the
Secretary-General requesting admission of the FRY to membership in the United Nations, in the
“wake of fundamental democratic changes” that took place in the FRY F0. On 31 October 2000 the
Security Council recommended to the General Assemb ly that the FRY be admitted to membership
31
in the United Nations F . On 1November2000, the General Assembly, by resolution55/12,
decided to “admit the Federal Republic of Yugoslavia to membership in the United Nations”.
12. Four months later, on 1 March 2001, Croatia filed its Memorial in this case. Chapter 6 of
the Memorial dealt with jurisdiction. Basing its arguments squarely on the Court’s Judgment of
1996, Croatia saw no need to make any mention of Article 35 of the Court’s Statute. Croatia had
no reason to doubt, as the Memorial stated, that “as at the date of Croatia’s application to the Court
the FRY was bound by the Genocide Convention” in conditions that entitled it to have access to the
Court. It is important to point out that this submission was stated to be “without prejudice to
Croatia’s consistent position rej ecting the FRY’s claim to be the continuation of the SFRY”, a
“On behalf of the Republic of Croatia and in accord ance with Article 40 (l), of the Statute of the
International Court of Justice and Article 38 of the Ru les of Court, I respectfully submit this Application
instituting proceedings in the name of the Republic of Croatia against the Government of the Federal
Republic of Yugoslavia for violations of the Conv ention on the Prevention and Punishment of the Crime
of Genocide (hereinafter called the ‘Genocide Conve ntion’). The Court has jurisdiction pursuant to
Article 36 (1) of its Statute and Article IX of the Genocide Convention.” (Para. 1.)
Bosnia’s Application of 20 March 1993 provided:
“I have the honour to refer to Article IX of the Convention on the Prevention and Punishment of
the Crime of Genocide of 9 December 1948 (hereinafter referred to as the ‘Genocide Convention’).
Under the jurisdiction thereby conferred upon the Cour t, and in accordance with Article36(1) and
Article 40(1) of the Statute of the Court and Article 38 of the Rules of Court, I hereby submit on behalf
of the Republic of Bosnia and Herzegovina, an A pplication instituting proceedings against Yugoslavia
(Serbia and Montenegro) for violating the Genocide Convention in the following case.”
29See FRY Application filed on 29 April 1999:
“Legal grounds for jurisdiction of the Court
The Government of the Federal Republic of Yugoslavia invokes Article 36, para. 2, of the Statute
of the International Court of Justice as well as Article9 of the Convention on the Prevention and
Punishment of the Crime of Genocide.”
30United Nations doc. A/55/528-S/2000/1043.
31United Nations doc. S/RES/1326. - 25 -
statement that nevertheless recognized the appr oach adopted by the Court as to the FRY’s sui
generis status vis-à-vis the United Nations. I shall return to that point shortly.
13. In September2002 the FRY filed its prelimin ary objections, of which there were three.
Abandoning the position it had cons istently adopted for eight years, until the events of
November 2000, the FRY now argued that it “never became bound by Article IX of the Genocide
Convention” F3F. It is most striking, however, that the FRY’s preliminary objections are totally silent
about Article 35 of the Court’s Statute. The FRY mentions only ⎯ en passant ⎯ that: “It is now
settled that the FRY was not a Member of the United Nations when the dissolution of the SFRY
took place in 1992.” F3F But on Article 35 (1) the preliminary objections say nothing. As the Court
has recently noted, the written pleadings in this case are silent on this point, and that is for an
obvious reason: never before had there been an issue. Again on Monday, Serbia was virtually
silent on this point.
14. The FRY raised the same argument in its Application for Revision of the 1996 Judgment,
which was submitted on 24April2001. On 3Februa ry2003, five months after the preliminary
objections in this case were filed, the Court gave its Judgment in that case (Application for Revision
of the Judgment of 11July1996 in the Case concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment , I.C.J. Reports 2003 ,
p.7). The FRY’s arguments were given short sh rift. The Court referred to “the FRY’s special
situation that existed between September1992 and November2000” (ibid., p. 22, para.45),
emphasizing “the sui generis position which the FRY found itself in vis-à-vis the UnitedNations
over the period1992 to2000” (ibid., p. 31, para.71). You also emphasized that United Nations
General Assembly resolution55/12 of 1Novemb er2000 “cannot have changed retroactively the
sui generis position... or its position in relation to the Statute of the Court and the Genocide
Convention” (ibid.). Now that, we say, is a crucial point, and it is one that must be right, both as a
matter of legal logic and policy. A party to a case cannot change its position ⎯ its political
position ⎯ and then expect a court to allow such a cha nge to have retroactive effect. On another
32Preliminary Objections, para. 3.8.
33
Ibid., para. 3.12. - 26 -
issue, on Monday we heard a great deal from Serbia against any non-retroactivity, but on this issue,
where retroactivity is the foundation of its entire argument, Serbia suddenly drops into silence and
emerges as retroactivity’s secret friend. In any ev ent, the Court’s approach in2003 must also be
right, we submit, for this case: whatever may be the prospective effects of any developments that
occurred in 2000, they cannot retroactively transform the legal or factual situation as it pertained on
2 July 1999.
15. Croatia took careful and full account of th e Court’s Judgment of 3February2003, in
preparing its Written Statement of 29 April 2003, ju st a couple of months later, in response to the
FRY’s preliminary objections. Croatia understood the Judgment of February2003 to be saying
that the conclusions that the Court had adopted in1993, 1996 and1999, in relation to the legal
situation as it pertained on those dates, could not be affected by actions taken by the FRY in 2000,
or by the United Nations in that year or in fo llowing years. In this regard, it is of central
importance for these proceedings that the critical legal date is ⎯ subject to what might be called
the Mavrommatis point ⎯ 2July1999, the date on which Croatia filed its Application. In
determining its jurisdiction, or issues of access to the Court, we respectfully submit that the Court
must consider the legal situation ⎯ and the issues of jurisdiction and access ⎯ as at that date. The
logical approach taken by the2003 Judgment has inevitable consequences. If the actions of the
FRY and the United Nations General Assembly cannot have had retroactive effect on the sui
generis position of the FRY vis-à-vis the United Nations over the period 1992 to 2000, in terms of
the FRY’s relations with Bosnia, it is difficult to see on what basis a different conclusion might
now be reached in relation to Croatia.
16. It was this logic which inspired Croatia to adopt the approach it did in its Written
Observations of 29 April 2003. These observations simply could not have predicted the judgment
that came a year later. It came totally out of the blue, a judicial tremblement de terre. As to the
2003Judgment, Croatia expressed the view th at “the Court’s reasoning is unimpeachable” F3. It
concluded that the reasoning was applicable “without distinction to the legal situation governing
relations between Croatia and the FRY ⎯ Serbia and Montenegro ⎯ in the period up to and
34Written Observations, 29 April 2003, para. 2.12. - 27 -
including 2 July 1999” F5. It was on this basis Croatia conclude d that on the date of the filing of its
Application the Court had jurisdiction over the FRY pursuant to Article IX, as it had in relation to
Bosnia and Herzegovina, and that the first preliminary objection of the FRY was without merit and
should be rejected. On Monday we heard nothing fr om Serbia in response to this argument, which
stands unchallenged. As with the Bosnia and Herzegovina case, Article 35 of the Court’s Statute
required no mention in Croatia’s Written Observations, since it was not mentioned by the FRY in
its preliminary objections, which were filed after the events of November 2000.
IV. The Court’s change of direction
17. So we come to the Court’s change of di rection. I have described how matters stood at
the close of the written pleadings in this phase of the case. In all normal circumstances, that is how
one would expect matters to stand today, some fi ve years after that 2003 Judgment. Indeed, over a
period of ten years the jurisprudence of the Court had been constant in its approach to Article 35: it
posed no bar to the exercise of jurisdiction, it ra ised no issues of admissibility. The solitary
exception to that jurisprudence intervened unexpectedly and, Cr oatia would respectfully submit,
unnecessarily, on 15 December 2004, when the Court gave its Judgment in the cases brought by the
FRY against various NATO members, concerning Legality of Use of Force . The Court by a
narrow majority abandoned its previous approach to Article35. It adopted a new approach. It is
difficult to see how the new approach can be rec onciled with what had come before. We are
confronted, apparently, with irreconcilable Judgments, a fact that Serbia seeks to ignore and which
places both the Bench and the Bar in some difficulty.
18. The 2004 Judgment merits careful attention. Fourteen judges and one ad hoc judge sat in
that case. Unanimously, they concluded that the Court did not have jurisdiction (Legality of Use of
Force (Serbia and Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports
36
2004, p. 1011, para. 128) F F. They did so, however, for very different reasons.
19. The Court devoted 46 paragraphs of its J udgment to the issues raised by Article35(1)
(ibid., paras.44-90). Most of these were devoted to a recapitulation of the factual events that
35
Ibid.
36
Similar Judgments were also handed down in several other cases. - 28 -
pertained between1992 and2000 (paras.53-81). The Court characterized the events it described
as doing no more than “testify to the rather confused and complex state of affairs that obtained
within the United Nations surrounding the legal status of the Federal Republic of Yugoslavia in the
Organization during this period” (ibid., p. 1040, para. 72), and it found that the qualification of the
FRY’s position as “ sui generis” was merely “descriptive of the amorphous state of affairs” and
“not a prescriptive term from which certain defined legal consequences accrue” ( ibid., p.1040,
para. 73). According to the majority that sat on that Court, the development of 2000 ⎯ the FRY’s
application for acceptance into me mbership of the United Nations ⎯ ended the FRY’s sui generis
position ( ibid., p.1041, para.77) and clarified “the thus far amorphous legal situation” ( ibid.,
p. 1042, para. 78). The Court rule d that its earlier Judgment of 2003 ⎯ in which it concluded that
the development of 2000 “cannot have changed retroactively the [FRY’s] sui generis position” ⎯
“cannot . . . be read as findings . . . in relation to the United Nations and the Genocide Convention”
(ibid., p.1045, para.87). We say that is a cryptic ruling that seems difficult to square with legal
logic. At paragraph 90 of its Judgment, the Court ruled that “for all these reasons” at the time of its
filing of its Application, Serbia and Montenegro was not a Member of the UnitedNations and,
consequently, was not on that basis a party to the Statute of the Court.
20. Much could be said about this Judgment, but for the moment it suffices to mention just
one aspect: the Court seems not to have actually gi ven reasons for the conclusion it came to, or an
explanation as to why it chose to abandon its earlie r jurisprudence, or any indication of how to
reconcile its new approach with its old for other cases that were still pending. It remains something
of a mystery to us why these 46 paragraphs were thought to be necessary at all: all of the judges
agreed that the Court did not have jurisdiction ratione temporis , and that would have been
sufficient to dispose of the cases without causing the perturbations that have now ensued.
21. Croatia most respectfully submits that the Court’s Judgment of 2004 raises serious issues
for this distinguished body, the “principal judi cial organ” of the UnitedNations. For counsel
appearing in this case it poses considerable difficulties, having regard to the very great respect with
which each Member of the Court is held. But I cannot avoid referring to the joint declaration made
by the then Vice-President and six judges of the Court, underscoring the need, in the exercise of the
judicial function, for a court to follow three key pr inciples: first, consistency in case law; second, - 29 -
the need for certitude, and third, the implications for other pending cases ( Legality of Use of Force
(Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, joint
declaration of Vice-President Ranjeva, Judges Guillaume, Higgins, Kooijmans, Al-Khasawneh,
Buergenthal and Elaraby, p. 330, para. 3). We say it is difficult to see how these vital principles
were respected by the 2004 Judgment. The auth ors of the joint declaration characterized the
Court’s conclusions as “doubtful” ( ibid., p.330, para.3), as being “contrary” to the position
adopted by the Court in its 1999 Order ( ibid., p.332, para.8), and as amounting to “a change of
position” (ibid., p. 332, para. 9). Croatia considers th at the Court’s reasoning was indeed “at odds
with judgments or orders previ ously rendered by the Court” ( ibid.), and that the grounds adopted
by the majority were “less certa in” than others open to it ( ibid., p.333, para.12). Of crucial
importance for this case, the authors of the declaration noted that, contrary to the view stated by the
majority, the Court had “previously found in200 3 that the Federal Republic of Yugoslavia could
appear before the Court betw een1992 and2000”, and that this position was not changed by
subsequent developments ( ibid., p.332, para.10). As regards the majority’s assertion that it was
“clear that the sui generis position of the Applicant could not have amounted to its membership in
the Organization”, the authors of the declaration stated that they found this proposition “far from
self-evident”, adding that “we cannot trace the steps of the reasoning” (ibid., p. 333, para. 12).
22. A number of judges wrote separate opinions, and each of course merits the most careful
attention. But it may be that the opinions of two of the judges, who no longer sit on this
distinguished Bench, but who di stinguished the Court with their presence over many years, are
worthy of note. Judge Kooijman’s separate opinion is of particular interest, since back in 1999, at
the provisional measures phase of that case, he had indicated that decisions taken in 1992 by organs
of the United Nations raised serious doubts as to whether the FRY was cap able of accepting the
compulsory jurisdiction of the Co urt as a party to the Statute ( ibid., separate opinion of
Judge Kooijmans, p. 343, para. 2). And he noted that the Court’s approach in 1999 had now been
“abandoned” in favour of the one he suggested at the time. And yet, with his characteristically
independent spirit, he concluded that “far from be ing elated by this change of approach” he now
felt “concerned” ( ibid., p.344, para.3). JudgeKooijmans was “not persuaded” that a thorough
analysis and careful evaluation had “convincingl y demonstrated” that the events of2000 had - 30 -
clarified the “amorphous legal situation” back in 1992-2000 (ibid., p. 344, para. 4). We have noted
this aspect of Judge Kooijman’s opi nion: he concluded that the Court’s finding did not seem to be
based on a thorough analysis and careful evaluation of the legal effect of statements made by the
FRY before2000 ( ibid., p.344, para.5), or of the factual circumstances that pertained
between1992 and2000, to which I drew the C ourt’s attention in the opening part of this
presentation.
23. At the very least, in the absence of any decision to suspend its right to participate in other
organs of the United Nations, including the Inte rnational Court of Justice, Croatia hoped for a
detailed explanation by the Court as to the manner in which the FRY’s sui generis status at the
United Nations changed. In this respect, Croatia also finds much with which to agree in the
separate opinion of Judge Elaraby and, in particular, his conclusion that the Court’s judicial act of
transforming the FRY’s sui generis position from 1992 to 2000 into non-membership of the United
Nations throughout that period “lacks a solid legal basis” ( ibid., separate opinion of Judge Elaraby,
p. 357, para. 13). In his view, an approach b ased on the law of the United Nations Charter and the
established practice of that Organization “would ha ve led the Court to find that the FRY was a
member of the United Nations when, in 1999, it filed its application”, leading to the conclusion that
the Court was open to the FRY under Article 35 (1) (ibid., p. 358, para. 13).
V. Croatia’s approach
24. Madam President, Croatia very much regr ets that its Application should now place the
Court at something of a crossroads. And we hope that you, and all of the Members of the Court,
will understand that Croatia has no desire to place the Court in any sort of difficulty. If these
hearings had taken place at any time between1996 and2003, it seems that the Court would not
have been faced with this issue. Until the Judgm ent of 2004, the Court had developed a consistent
jurisprudence, based on the proposition that there was no bar to the FRY’s access to the Court,
there was no bar to the Court exercising jurisdicti on over the FRY on the basis of Article 35 of the
Court’s Statute. The Court recognized the particular ⎯ and peculiar ⎯ circumstances that
followed the break-up of the SFRY, and it charact erized the position of the FRY vis-à-vis the
United Nations as sui generis. It is notable that the Court’s appr oach to the exercise of jurisdiction - 31 -
over the FRY had not attracted general criticism either by States or by commentators. The
sui generis character of the FRY’s situation accomm odated a political and legal reality that
balanced recognition of attributes associated with membership of the United Nations with a
pragmatic avoidance of descending into detail. Wi th great respect, we would say that it is the
2004 Judgment that is the source of the difficulty, and not the five judgments and orders that came
both before and after.
VI. Conclusions
25. Madam President, Members of the Court, th e Parties received a letter dated 6 May 2008
from the Registrar, inviting them to argue these issu es of access. We understood that letter to refer
to the issues arising in relation to Article 35 of the Statute, having regard to the facts, having regard
to the law and also of course, the Court’s jurisp rudence. In fact, we had already undertaken to
address these very issues, as we recognized them to be material and important. We were therefore
very grateful to receive the letter from the Registrar. We had expected to hear from Serbia on these
issues. And perhaps we will hear from Serbia in the second round as to how it proposes the Court
might resolve the conflict as between these judgmen ts. Be that as it may, our conclusion on the
first issue is simple: we submit that in fact and in law, the situation was that on 2July1999 the
FRY had a special relationship with the United Nations, properly characterized as sui generis. The
attributes of that relationship were tantamount to membership. It may not have been able to
participate in the General Assembly or in ECOSOC, but it was not barred from participating in any
other organ of the United Nations or any other United Nations bodies or any other United Nations
programmes, and there was no bar on its right of acce ss to the Court under Article 35, paragraph 1.
Putting it another way, you did not identify in Artic le35(1) a bar in relation to Bosnia’s case
against the FRY, in 1993, or in 1996, or in 2003, or in 2007. We do not see why you should
proceed any differently in this case.
26. Madam President, that concludes my presentation, and I thank you and the Members of
the Court for your attention. I have noted the time and I do not know whether this is an appropriate
moment for a break or for Professor Crawford to start. - 32 -
The PRESIDENT: If it is convenient for Prof essor Crawford to go the full 60minutes, we
might take our break now. The Court now rises. Thank you.
The Court adjourned from 11.15 to 11.30 a.m.
The PRESIDENT: Please be seated. Yes, Professor Crawford.
Mr. CRAWFORD: Madam President, Members of the Court:
VI. SERBIA S A CCESS TO THE COURT
Introduction
1. In this presentation I will deal with targuments concerning access to the Court, the
matter on which the Court asked us to deal inits letter of 6May2008. That was an unusual ⎯
though understandable ⎯ request: in fact we were going to deal extensively with Article 35 in any
event. But on Serbia’s part your letter led to an unusual and far less understandable response. Our
opponents said nothing about Article35, paragraph2, other than briefly to refer to theNATO
Judgments. There was no analysis of those Judgments, of the separate and dissenting opinions or
of the subsequent discussion in your 2007 Judgment. No analysis whatever. So in dealing with my
two arguments I cannot be responsive to Serbia. Not for the first time Serbia has refused to argue a
point it should have argued. So I will simp ly respond to your invitation, unassisted ⎯ as the Court
is unassisted ⎯ by Serbia.
2. The first of the two arguments concernthe consequences to be drawn from the evident
fact that this case was indeed commenced and existed as a case before the Court from the date of its
commencement in 1999, and that it continued to do so after the Respondent was admitted to the
United Nations on November 2000. Any defi ciency that may have existed before
1 November 2000 was thereby cured.
3. The second argument concerns Article35, pa ragraph2, of the Court’s Statute and the
decision of the Court on Article35(2), in thNATO cases. Assuming, quod non, that the Court
only has jurisdiction if the necessary conditionwere met in 1999, at the time this case was
commenced, I will argue that the Respondent had a ccess to the Court under Article35(2) at the - 33 -
time and irrespective of its status relative to the United Nations. This is because Article IX of the
Genocide Convention was a special provision contained in a treaty in force at that time.
4. For reasons that will appear, I will call the first argument, the Mavrommatis argument,
although I might, with respect, more properly have called it the Tomka argument ( Application of
the Convention on the Prevention and Punishme nt of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro) , Judgment of 26February2007, separate opinion of
JudgeTomka, paras.24-36). The second I will ca ll the “treaties in force” argument. On either
argument the Court has jurisdiction.
5. Underlying both arguments there are, or should be, two points which are fundamental and
which ought to be common ground.
6. The first point is that the Respondent in th e present case is now and at all relevant times
has been a State in inte rnational law. No question arises as to the fundamental qualification, the
real question of capacity, to be a party to a case be fore the Court. It is laid down separately and
distinctly by Article 34, paragraph 1, of your Statut e. The Court would have to satisfy itself of this
requirement in any case, if necessary of its own motion. That requirement is satisfied in this case.
The Respondent is, as I have explained, and was, at all material times, a State.
7. The second fundamental point is that it is, so to speak, the right State ⎯ by which I mean
the right respondent State. The responsibility which Croatia invokes in the present case is the
responsibility of this State, the Respondent opposite. I have already demonstrated the continuity of
this responsibility under the Genocide Convention. No doubt the Respondent denies responsibility
but that is a matter of merits. The present point is that the State you have before you is the same
State as it was in 1992. Consistently throughout th is time the respondent State affirmed that it was
bound by the Genocide Convention. It was only on 12March2001, some weeks after the
Memorial in this case was filed, that the Respondent put into effect its plan to avoid accountability
under the Genocide Convention. By then, Madam President, Members of the Court, it was too late.
A. The Mavrommatis principle: all the substantive requirements for the Court’s
jurisdiction were united on 1 November 2000
8. I turn then to my first argument, based on what I have called the Mavrommatis principle.
Putting it as simply as I can, it is that all the s ubstantive requirements for the Court’s jurisdiction - 34 -
were united, at the latest, when the Responde nt was admitted to the United Nations on
1November2000. There was a case duly filed before the Court by Croatia, so there was seisin.
The Respondent was at relevant times a party to the Genocide Convention, so there was an
apparent basis of claim. The Respondent was a State which had in force an unqualified consent to
jurisdiction under the Genocide Convention, so there was consent to jurisdiction. The Respondent
was, at least as from 1November 2000, a party to the Court’s Statute, so there was access to the
Court. One: seisin; two: basis of claim; three: consent to jurisdiction; four: access to the Court.
Who could say there is a fifth requirement for you to hear a case? The Mavrommatis principle is
the principle that provided these four substantial elements are united at any given time, the order in
which this occurred is a pure matter of form and does not affect your jurisdiction.
[Graphic]
9. The chronology of the Mavrommatis case (Mavrommatis Palestine Concessions, P.C.I.J.
Series A, No. 2, 1924 , p. 34) is shown on the screen: for y our convenience, these and later slides
are at tab8 in your folders. Greece filed its Application in Mavrommatis on 13May 1924. On
6August 1924 there was the deposit of ratifica tions of the Treaty of Lausanne including
Protocol XII.
10. Great Britain objected that there was no jurisdiction because when the Application was
filed Protocol XII was not in force. The Court replied in the following terms:
“In the same connection it must also be considered whether the validity of the
institution of proceedings can be disputed on the ground that the application was filed
before Protocol XII had become applicable. This is not the case. Even assuming that
before that time the Court had no juri sdiction because the international obligation
referred to in Article II was not yet effectiv e, it would always have been possible for
the applicant to re-submit his application in the same terms after the coming into force
of the Treaty of Lausanne, and in that c ase, the argument in question could not have
been advanced. Even if the grounds on which the institution of proceedings was based
were defective for the reason stated, this would not be an adequate reason for the
dismissal of the applicant’s suit. The Court, whose jurisdiction is international, is not
bound to attach to matters of form the sa me degree of importance which they might
possess in municipal law. Even, therefore, if the applicant were premature because the
Treaty of Lausanne had not yet been ratified, this circumstance would now be covered
by the subsequent deposit of th e necessary ratifications.” ( Mavrommatis Palestine
Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 34.)
I stress the words “this circum stance would now be covered” ⎯ “ce fait aurait été couvert”. The
question is whether the requirements for jurisdiction to be exercised are “covered” ⎯ that is to say, - 35 -
whether they exist ⎯ at the relevant time, not the temporal order in which they came into
existence.
[End graphic]
11. The Court took a similar approach, more summarily, in Certain German Interests in
Polish Upper Silesia. The Factory at Chorzów was one of the German interests, and Poland made
a preliminary objection that “the existence of a di fference of opinion in regard to the construction
and application of the Geneva Convention had not been established before the filing of the
Application” ( Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgment No.6,
1925, P.C.I.J., Series A, No. 6 , p.13). The Court noted that Ar ticle 23 of the Geneva Convention
of 1922 did not lay down any specific procedure by way of notification or negotiation before
application was made to the Court. But it went on to say:
“Even if, under Article 23, the existence of a definite dispute were necessary,
this condition could at any time be fulfilled by means of unilateral action on the part of
the applicant Party. And the Court cannot allow itself to be hampered by a mere
defect of form, the removal of which depends solely on the Party concerned.” ( Ibid.,
p. 14.)
The Court said the same thing as concerns the second part of the case, the large agricultural Estates:
“even if the application were on this ground declared premature, the German Government would be
free to renew it immediately afterwards” (ibid., p. 22).
12. Your Court has taken the same line in several cases. In Nicaragua (Military and
Paramilitary Activities in and a gainst Nicaragua (Nicaragua v. United States of America) ,
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984 , p. 392), the United States objected
to the invocation by Nicaragua in its Memori al of the 1956bilateral Treaty of Friendship,
Commerce and Navigation as a complementary gr ound for the Court’s jurisdiction, when
Nicaragua had failed to specify this ju risdictional basis in the Application ( ibid., p. 426,
paras. 77-78). The Court responded:
“Taking into account [the relevant] Articl es of the Treaty of 1956, . . .there can
be no doubt that, in the circumstances in which Nicaragua brought its Application to
the Court, and on the basis of the facts ther e asserted, there is a dispute between the
Parties, inter alia, as to the ‘interpretation or applica tion’ of the Treaty. That dispute
is also clearly one which is not ‘satisf actorily adjusted by diplomacy’ within the
meaning of Article XXIV of the 1956 Treaty . . . In the view of the Court, it does not
necessarily follow that, because a State has not expressly referred in negotiations with
another State to a particular treaty as having been violated by conduct of that other - 36 -
State, it is debarred from invoking a compromi ssory clause in that treaty. The United
States was well aware that Nicaragua alleged that its conduct was a breach of
international obligations before the present case was instituted; and it is now aware
that specific articles of the 1956 Treaty are alleged to have been violated. It would
make no sense to require Nicaragua now to institute fresh proceedings based on the
Treaty, which it would be fully entitled to do.” (Ibid., pp. 428-429, para. 83.)
The Court cited the passage which I have already referred to from Certain German Interests in
Polish Upper Silesia, and concluded:
“Accordingly, the Court finds that, to th e extent that the claims in Nicaragua’s
Application constitute a dispute as to the interpretation or the application of the
Articles of the Treaty of 1956 desc37bed... the Court has jurisdiction under that
Treaty to entertain such claims.” F F
13. In the Bosnia case (Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections,
Judgment, I.C.J. Reports 1996 (II), p. 595), the timeline was more complex. It was as follows.
[Graphic]
⎯ 6 March 1992: independence of Bosnia and Herzegovina;
⎯ 22 May 1992: Bosnia and Herzegovina becomes a Member of the United Nations;
⎯ 29 December 1992: notice of succession in relatio n to the Genocide Convention with effect
from 6 March 1992;
⎯ 18 March 1993: notification to the parties of the succession of Bosnia and Herzegovina;
⎯ 20 March 1993: Bosnia and Herzegovina files Application;
⎯ 14 December 1995: entry into force of the Dayton-Paris Agreement.”
14. Yugoslavia submitted that, even supposing that Bosnia and Herzegovina had been bound
by the Convention in March 1993 when the Applica tion was filed, it could not then have entered
into force between the parties, because the two States did not recognize each other and the
conditions necessary to found the consensual basis of the Court’s jurisdiction were therefore
lacking. The Respondent argued that the Conven tion was not operative between the parties until
their mutual recognition by the entry into force on 14December1995 of the Dayton-Paris
Agreement (ibid., pp. 612-613, para. 25). In rejecting this argument, you said:
“It is the case that the jurisdiction of the Court must normally be assessed on the
date of the filing of the act instituting pr oceedings. However, the Court, like its
predecessor, the Permanent Court of Interna tional Justice, has always had recourse to
3Ibid., p. 429. - 37 -
the principle according to which it should no t penalize a defect in a procedural act
which the applicant could easily remedy.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
In the present case, even if it were esta blished that the Parties, each of which
was bound by the Convention when the Application was filed, had only been bound as
between themselves with effect from 14 December 1995, the Court could not set aside
its jurisdiction on this basis, inasmuch as Bosnia and Herzegovina might at any time
file a new application, identical to the present one, which would be unassailable in this
respect.
In the light of the foregoing, the Court considers that it must reject Yugoslavia’s
third preliminary objection.” (Ibid., pp. 613-614, para. 26.)
[End graphic]
15. Madam President, Members of the Court, to summarize, the Mavrommatis principle is
the principle that even if jurisdictional conditions are satisfied in the wrong temporal order, this
does not prevent your exercising jurisdiction provided that they are in fact eventually satisfied at
some point of time. Premature applications are “covered by the subsequent deposit of the
necessary ratifications” ( Mavrommatis Palestine Con cessions, Judgment No.2, 1924 , P.C.I.J.,
Series A, No. 2, p. 34).
[Graphic]
16. I turn to the facts of the present case. You can see the time-line on the screen but you are
well familiar with it by now:
⎯ 12 January 1951: SFRY became a party to the Genocide Convention without reservation.
⎯ 27 April 1992: FRY affirms that it “will strictly abide by all the commitments” of the SFRY
assumed internationally.
⎯ 22 May 1992: Croatia admitted as a Member of the United Nations.
⎯ 12 October 1992: Croatia notifies its succession to the Genocide Convention, with effect from
8 October 1991.
⎯ 2 July 1999: Application filed by Croatia.
⎯ 1 November 2000: FRY admitted as a Member of the United Nations.
Even if there may have been defects in the position of the respondent State prior to
1 November 2000 ⎯ and we say there were none ⎯ they were curable and they were cured on that
day. On 2 November 2000, there remained a case on th e Court’s list. The case was against this - 38 -
respondent State. The Respondent was a party to the Court’s Statute on that day. It was a party to
the Genocide Convention without any reservation. All the conditions for the Court to hear the
merits were united on that day. To dismiss that case on the ground that the conditions were united
in the wrong order would contradict the Mavrommatis principle.
17. It should be stressed that the Respondent’s argument is raised only now, and it is raised
by a State in no way lacking in capacity or in the righ t of access to this Court. In effect it relies on
an incapacity that it no longer has, and which as from 1 November 2000 lost all relevance. To
uphold Serbia’s claim would be not merely to hold that its reservation to ArticleIX of the
Genocide Convention is valid, which, as Professor Sa nds has shown you, is not the case. It would
be to give it retrospective effect. Whatever pr ospective effect reservations may have, no one gives
them retrospective effect.
18. It may be argued that, while admittedly Croatia could have started this very case on
1March2001 when the Respondent’s unqualified consent to jurisdiction under the Genocide
Convention was still on any view in play, it failed to do so. What did Croatia do on 1 March 2001?
It filed a Memorial! To argue that instead of f iling a memorial it should have filed an application
would be pure formalism, rejected by the Court in Mavrommatis and in later cases. In none of
Mavrommatis, Upper Silesia, Nicaragua or Bosnia did the Court require a new case to be filed.
19. Why, in any event, should Croatia ha ve engaged in such apparently redundant
formalities? The Court had by 1 March 2001 une quivocally upheld the Respondent’s capacity to
be a party to proceedings under Article IX of the Genocide Convention. In the period from 1992 to
the date of its admission to the United Nations, the respondent State filed ⎯ by my count ⎯
40 applications, pleadings, requests or analogous docum ents before the Court, more than any other
State. That is a rather impressive catalogue. You wi ll find the list of its 40 filings at tab 9 of your
folders. I apologize to my colleagues opposite if I have understated their impressive forensic
output during this period. And all this ⎯ they now say ⎯ by a State that had no access to the
Court! If that is what States with no access to the Court do, heaven knows what States do when
they do have access!
20. But if, Madam President, Members of the Court, if some affirmative action by Croatia
was required after 1 November 2001, at a time when all the conditions for the Court’s jurisdiction - 39 -
were certainly met, this requirement was satisfied by the filing of the Memorial. What more
unequivocal affirmation could there be of an app lication than filing a memorial in support of the
application, giving content to it? It could have been annexed. Perhaps in future everyone will
annex their application as Annex 1 to the memorial, just to make sure. International law does not
require the repetition of procedural steps ⎯ but this was a procedural step if ever there was one.
[End graphic]
21. For these reasons, in Croatia’s submission, your jurisdiction can be upheld in this case,
quite simply on the ground that when the res pondent State became a party to the Statute, any
deficiency that may previously have existed w as “covered”, to use the term the Permanent Court
used in Mavrommatis. If you do that, you will not have to resolve the issues raised by other aspects
of Article 35.
B. Access to the Court under Article 35 (2) of the Statute
22. Madam President, Members of the Court, it is with some trepidation that I now turn to
my second argument. This concerns the access of the Respondent to the Court under Article 35 (2)
of the Statute by reason of its participation at all relevant times to the Genocide Convention. It is
not often that it becomes the duty of counsel to argue before the Court that an express recent
decision of the Court was wrong. In doing so today ⎯ in relation to your decision on the meaning
of Article 35 (2) of the Statute ⎯ I hope you will accept that I mean no disrespect to the Court as
an institution or to the individual judges who participated in that case.
23. But the Article35(2) point was not argued by any of the States parties in the NATO
cases, not even by Serbia itself, the Applicant to those cases. In the circumstances the Court will, I
am sure, understand my arguing it now. I do so on the footing that Serbia was at all relevant times
a party to the Genocide Convention, and that Croatia raises a claim of genocide against persons for
whose conduct the Respondent is or may be available.
[Graphic]
24. Let me start, as one must, with the actual language of Article 35. It reads as follows:
“Article 35
1. The Court shall be open to the States parties to the present Statute. - 40 -
2. The conditions under which the Court shall be open to other States shall, subject to
the special provisions contained in treaties in force, be laid down by the Security
Council, but in no case shall such conditio ns place the parties in a position of
inequality before the Court.
3. When a State which is not a Member of the United Nations is a party to a case, the
Court shall fix the amount which that part y is to contribute towards the expenses
of the Court. This provision shall not apply if such State is bearing a share of the
expenses of the Court.”
25. Now it must be stressed that every other phrase in Article35 plainly has its normal
meaning. Each phrase refers to some element of Article35 which applies from day to day, as to
things as they are, not as they were when the Charter was concluded, 26 June 1945, or on the day
when it happened to enter into force. In fact the Charter entered into force on 24 October 1945 but
as this Court pointed out in Barcelona Traction , its entry into force might have been very
considerably delayed ( Barcelona Traction, Light and Power Company, Limited (New
Application: 1962) (Belgium v. Spain), Preliminary Objections, Judgment, I.C.J. Reports 1964 ,
p. 35). The Court is open to States parties to the Statute as they are from time to time. The “other
States” identified in Article 35 (2) are other States no t parties to the Statute from time to time. The
conditions laid down by the Security Council under Article 35 (2) are those laid down from time to
time. All these phrases refer to the position as it is from time to time, not the position as it was on a
given day in 1945.
26. And so must the phrase “the special provisions contained in treaties in force”. Literally
interpreted, that means treaties in force at the relevant time, the time when the other State comes
before the Court. It is clear that it does not mean to give permanent effect to treaties in force on
26June1945 or 24October1945, which then confe rred jurisdiction on the Court. In fact, after
extensive research, we have been unable to find a ny such treaties in existence on either of those
days. Not one of the dozen or so national treat y lists we have consulted lists any such treaty ⎯ the
United Nations Treaty Series does not; the Court’s own publications do not. Treaties conferring
jurisdiction on the Permanent Court are dealt with in Article37, not in Article 35(2) ⎯ I will
revert to Article 37 shortly.
27. Let us assume, however, contrary to the fact s, that there was a treaty already in force on
26 June 1945 or on 24 October 1945, which made special provision for this Court’s jurisdiction.
That treaty would on any view be covered by Article 35 (2). Let us further assume that the treaty - 41 -
was subsequently terminated or replaced ⎯ a not unlikely contingency. It is obvious that it could
no longer be relied on. The phrase “treaties in force” in Article 35 (2) cannot simply mean “treaties
which were in force when the Charter was concl uded”. A treaty cannot be relied on unless it is in
force at the time it is relied on: that is preci sely why the normal meaning of the phrase “treaties in
force” is as I have stated. Instead the Respondent is compelled to interpret the phrase “treaties in
force” as meaning “treaties in force on 26June 1945 or perhaps it is 24 October 1945, which
continue to be in force at the relevant time”. With respect, that is not to interpret the phrase; it is to
rewrite it completely.
28. Another indication is given by Article 35 (3). This provides that it is the Court ⎯ I stress
the Court ⎯ which fixes the amount which non-Members of the United Nations are to contribute,
unless the State in question is already “bearing a sh are of the expenses of the Court”. Now there
are two ways in which a State which is not a Me mber of the United Nations might have access to
the Court, apart from the treaties-in-force clause. One way would be for it to become a party to the
Statute under Article93(2) of the Charter, in which case the conditions, including expenses
payable, are laid down by the General Assembly on the recommendation of the Security Council.
Another way is for the State to take advantage of the conditions laid down by the Security Council
under Article35(2), in which case the Security Co uncil could fix the expenses payable: in fact
Security Council resolution9(I) of 1946 does not mention expenses, but it could have done so.
Why involve the Court on the issue of expenses? Because there is a thir d avenue of access, not
involving the General Assembly or the Security Council ⎯ that is, through the treaties in force
clause. The involvement of the Court in assessing expenses for other States is a sign of openness,
not closure.
[End graphic]
29. Now let us look at the context of the Statut e as a whole. References to treaties or other
instruments being in force occur four times in the Statute, as follows:
[Graphic]
“Article 35 (2)
“[S]ubject to the special provisions contained in treaties in force”. - 42 -
Article 36 (1)
“[A]ll matters specially provided for . . . in treaties and conventions in force”.
Article 36 (5)
“Declarations made under Article36 of the Statute of the Permanent Court of
International Justice and which are still in force . . .”
Article 37
“Whenever a treaty or convention in force provides for reference of a matter to
a tribunal to have been instituted by the L eague of Nations, or to the Permanent Court
of International Justice . . .”
30. These four provisions fall into two very clearly defined groups. One group, consisting of
Article 36, paragraph 5, and Article37, addresses the specific problem of optional clause
declarations and treaties providing for the juri sdiction of the Permanent Court. A second group,
consisting of Article 35, paragra ph 2, and Article 36, paragraph 1, contain quite general references
to jurisdiction specially conferred by tr eaties in force. These two provisions ⎯ Article 35 (2) and
Article 36(1) ⎯ use exactly the same vocabulary: “sp ecial provisions”/“specially provided”;
“treaties in force”/”treaties and conventions in fo rce”. One must presume that the same words or
phrases in these paragraphs have the same meaning.
31. Now it is obvious ⎯ and the majority in the NATO cases expressly accepted ( I.C.J.
Reports 2004, p. 319, para. 101) ⎯ that the phrase “treaties and conventions in force” in Article 36,
paragraph 1, means treaties which are in force from time to time: it does not mean treaties in force
when the Charter was concluded. The same should follow for the comparable language of
Article 35, paragraph 2.
32. What about the other group of references, Article36, paragraph5 and Article37? Let
me deal with them in turn.
33. Article 36, paragraph 5, provides:
“5. Declarations made under Article 36 of the Statute of the Permanent Court of
International Justice and which are still in force shall be deemed, as between the
parties to the present Statute, to be accepta nces of the compulsory jurisdiction of the
International Court of Justice for the pe riod which they still have to run and in
accordance with their terms.”
The language is not at all like Article 35, paragraph 2. It refers to declarations by definition made
in the past. The last declaration made under Article 36 of th e Statute of the Permanent Court was - 43 -
made in 1940. It uses the phrase “still in force”. In the English text, the word “still” is used twice
in what is a classic transitional provision: the more elegant French version is satisfied with a single
“encore”. Furthermore, Article36, paragraph5, deals expressly with the issue of the continuing
validity of such declarations: “for the period wh ich they still have to run and in accordance with
their terms”. There is no equivalent la nguage in Article35, paragraph2, but ⎯ on the
Respondent’s view ⎯ there should have been.
34. The question whether Article36, paragr aph5, continued to operate after 1945 was
addressed by the Court in the Aerial Incident case (Aerial Incident of 27July1955 (Israel v.
Bulgaria), Judgment, I.C.J. Reports 1959, p. 127). The question was whether a Bulgarian optional
clause declaration made in 1921 was “still in force” in 1955, when Bulgaria was admitted to the
United Nations and became a party to the Court’s St atute. The majority held that it was not, and
that Article36, paragraph5, was a merely tran sitional provision, effective only so far as the
original members of the Charter were concerned. The reasoning is fairly reflected in the following
passage of the Judgment. Referring to Article 36, paragraph 5, the Court said:
“By its nature and by its purpose, that transitional provision is applicable only
to the transitory situation it was intended to deal with, which in volved the institution
of a new Court just when the old Court was being dissolved. The situation is entirely
different when, the old Court and the appearance of its compulsory jurisdiction having
long since disappeared, a State becomes a party to the Statute of the new Court: there
is then no transitory situation to be de alt with by Article36, paragraph5.” ( Ibid.,
p. 139.)
35. In contrast with Article 36, paragraph 5, which is expressly and in its terms a transitional
provision, Article 35, paragraph 2, is not at all a transitional provision. There may always be States
which are not parties to the Statute or Members of the United Nations: there are several now.
T3hu.s Israel v. Bulgaria does not even begin to suggest th at the words “treaties in force”
are to be limited to treaties in force in 1945 or 1946. That issue was not addressed by the Court in
that case.
37. Moreover, the decision in Israel v. Bulgaria had no restrictive effect on the Court’s
interpretation of the second transitional provision, Article37. In 1964, in the Barcelona Traction
case (Preliminary Objections), you made it clear that the phrase “treaty or convention in force” in
Article 37 was to be applied from time to time, and that it was not limited to treaties in force at the - 44 -
time of the adoption of the Charter. As the Court said, “[t]he case of Israel v. Bulgaria was in a
certain sense sui generis” (I.C.J. Reports 1964, p. 29). It concerned unilateral declarations; it did
not concern treaties. Above all, “certain gene ral multilateral conventions of great importance
which seem likely to continue in fo rce” to quote the Court’s words in Barcelona Traction (ibid.).
Article 37 was not to be restrictively interpreted so that any fortuitous gap in time meant a loss of
jurisdiction. Accordingly the words “treaty or c onvention in force” in Article 37 meant a treaty or
convention in force at the relevant time, in this case, in 1955, when Spain became a Member of the
United Nations.
38. Factors the Court took into account in 1964 in reaching this conclusion included the need
not to create inequality or to discriminate in favour of those becoming parties to the Statute after
1946 (see ibid., p.36). But giving the ordinary and na tural meaning to Article35, paragraph2,
does not do this. Only the parties to the treaty in force are bound by it, so the principle of consent
is maintained. One cannot become a party to th e optional clause system by way of Article35,
paragraph2. There is no freeriding, since the Court can determine the issue of costs under
Article 35, paragraph 3.
[End graphic]
39. The Court has up to now emphasized its openn ess to all States, whether or not parties to
the Statute, without drawing artificial or arbitrary distinctions or insisting on pure points of form.
That was the practice of the Permanent Court, and until the decisions in the NATO cases in 2004 it
was your practice as well.
40. As to the Permanent Court, let me take two examples, the Polish Upper Silesia case and
the Lotus case.
[Graphic]
41. The time-line in the Polish Upper Silesia case appears on the screen:
⎯ 1 September 1921: the Permanent Court Statute entered into force;
⎯ 15 May 1922: the Upper Silesia Convention ⎯ often referred to as the Geneva Convention ⎯
was concluded, it came into force on 3 June 1922;
⎯ 15May 1925: Germany lodged an Application against Poland, relying on Article23 of the
1922 Convention; - 45 -
⎯ 8 September 1926: that is after the Application was lodged, Germany joined the League of
Nations;
⎯ 11 March 1927: it ratified the Permanent Court Statute.
42. If the position taken by the Court in the NATO cases was correct, the Court in Polish
Upper Silesia should have declined jurisdiction. But of course it upheld its jurisdiction ⎯ as every
law student knows. It said, among other things:
“Before considering the preliminary objections made by Poland, it should be
observed that the two Parties agree in recognizing that Article23 of the Geneva
Convention falls within the category of ‘mat ters specially provided for in treaties and
conventions in force’, mentioned in Article 36 of the Court’s Statute, and the Polish
Government does not dispute the fact that the suit has been duly submitted to the
Court in accordance with Articles35 and 40 of the Statute.” (Certain German
Interests in Polish Upper Silesia (Preliminary Objections) , P.C.I.J., Series A, No.6
(1925), p. 11.)
43. Now it is true that the initial reference in th e passage I have just r ead is to “treaties and
conventions in force” mentioned in Article36 of the Statute, and not to “treaties in force” in
Article35. But Germany’s access to the Court in that case could only have been based on
Article 35, and the Court expressly recognized this when it went on to refer to Article 35. In 1925
Germany was not a party to the Statute, it was not a Member of the League. It was not listed in the
Annex to the Covenant. Jurisdiction was based on Article23 of the Geneva Convention, which
was concluded and entered into force after the Pe rmanent Court’s Statute entered into force.
Germany did not make a particular or general declaration accepting the jurisdiction of the Court, in
terms of the Council’s resolution of 17 May 1922 made pursuant to Article 35. Only three States
made such declarations: Liechtenstein and Mon aco made general declarations; Turkey made a
specific declaration, in circumst ances to which I will come shortly . For its part Germany never
made such a declaration. Instead Germany relied exclusively on the terms of special provisions in
treaties in force, and the Court accepted the reliance.
[End graphic]
[Graphic]
44. The Permanent Court’s publication, Extracts from International Agreements affecting the
Jurisdiction of the Court , listed a number of agreements to which non-League Members such as
Germany were parties, and wh ich were concluded after the Statute entered into force on - 46 -
1 September 1921. We have located approximately 30 such treaties. Let me give some examples.
One was the London Agreement of 30 August 1924 between the Allied Governments and Germany
38
to carry out the Experts’ Plan F . The London Agreement concerned the stabilizing of Germany’s
currency, and Article 10 provided for the submis sion of disputes between the Allies and Germany
to the Permanent Court.
45. Another example, a heartbreaking example, was the famous Arbitration Agreements of
Locarno of 1925: you can see them listed on the scr een now. Arbitration treaties were concluded
on the same day between Germany and four other European States, Belgium, France, Poland and
39
Czechoslovakia F . These treaties depended for their lega l effect on secure and rapid access to the
Permanent Court, expressly referred to in Articles 1, 16 and 19 of each of them. Locarno was the
high point of hope of the interwar internationa l system. Jurisdictionally the Locarno Treaties
depended at the time they were concluded on the ordinary and natural meaning of the phrase
“treaties in force” in Article 35, paragraph 2, of the Court’s Statute!
“The Locarno Arbitration Treaties, 16 October 1925
Arbitration Convention between Germany and Belgium, 54 LNTS 303,
Articles 1, 16, 19.
Arbitration Convention between Germany and France, 54 LNTS 315,
Articles 1, 16, 19.
Arbitration Treaty between Germany a nd Poland, 54 LNTS 327, Articles 1, 16,
19.
Arbitration Treaty between German y and Czechoslovakia, 54 LNTS 341,
Articles 1, 16, 19.”
[End graphic]
[Graphic]
38Belgium, British Empire, France, Italy, etc. and Germ any, Agreement between the Allied Governments and the
German Government to carry out the Experts’ Plan of 9 April, 1924, London, 30 August 1924: 30 LNTS 75.
39Arbitration Convention betwee n Germany and Belgium, 54 LNTS 303, Articles1, 16, 19; Arbitration
Convention between Germany and France, 54 LNTS 315, Articles1, 16, 19; Arbitr ation Treaty between Germany and
Poland, 54 LNTS 327, Articles 1, 16, 19; Arbitration Treaty between Germany and Czechoslovakia, 54 LNTS 341,
Articles1, 16, 19; see also Extracts from International Agreements affecting the Jurisdiction of the Court (Third
Edition), P.C.I.J., Series D, No. 5, 1926, pp. 297-301. - 47 -
46. Madam President, Members of the Court, let me turn to a second famous case of this
period, the Lotus case (Judgment No. 9, 1927, P.C.I.J., Series A, No. 10). Here the time-line was as
follows:
⎯ 1 September 1921: P.C.I.J. Statute enters into force
⎯ 12 October 1926: Special Agreement concluded
⎯ 4 January 1927: Turkey and France file a case b ased on the Special Agreement. (Turkey was
not, of course a party to the League of Nations in 1927)
⎯ 4 January 1927: Registrar acknowledges receipt in accordance with the Statute and calls on
Turkey to nominate an ad hoc judge
⎯ 24 January 1927: Turkey files a declaration “i n accordance with the terms of paragraph 2 of
Article 35 of the Rules”.
47. The point here is different from the Upper Silesia case, and more procedural than
substantive. Article 35, paragra ph 2, of the revised Rules required that the declaration referred to
in the Council’s resolution of 17 May 1922 be filed “n ot later than the time fixed for the deposit of
the first document of the written procedure”. So the case could be filed and become part of the
Court’s dossier prior to acceptance of the Court’s jurisdiction. In fact this was not what the
Council resolution of 17 May 1922 said: it requi red that the declaration must have been
“previously... deposited with the Registrar”, i.e., before the declaring State had access to the
Court. But the Court was content for this to be don e at a later stage. The procedural issues were
relaxed. Meanwhile the case was before the Court and was part of its dossier.
[End graphic]
48. Thus the Court was on solid ground when in the provisional measures phase of the
Bosnia case, you expressed the view that Article 35 (2) provided a prima facie basis of jurisdiction
(Application of the Convention on the Prevention and Punishment of the Crime of Genocide ,
(Bosnia and Herzegovina v. Yugoslavia) , Provisional Measures, Order of 8 April 1993 , I.C.J.
Reports 1993, pp. 14-16, paras. 20-26), and when in th e preliminary objections phase you accepted
the Respondent’s capacity to plead ⎯ in short, its access to the Court ⎯ on the same ground
(Application of the Convention on the Preven tion and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Preliminary Object ions, Judgment, I.C.J. Reports - 48 -
1996 (II), pp.610-614, paras.17-26). In doing so you were acting consistently with the practice
and jurisprudence of your predecessor, the Permanent Court.
49. Perhaps the principal reason given by the majority in the NATO cases for a restrictive
interpretation of the phrase “treaties in force” in Article 35(2) is that the travaux préparatoires
support that interpretation (Legality of Use of Force (Serbia and Montenegro v. Belgium) ,
Preliminary Objections, Judgment, I.C.J. Reports 2004, pp. 318-328, paras. 100-114) . Before I
take you to the travaux two preliminary remarks are in order.
50. The first preliminary remark is that the relevant travaux were not those of 1945 but of
1920, that of the Permanent Court, not your Cour t. In 1945 there were no examples of existing
jurisdictional provisions referring to the new C ourt: no saving clause was necessary because there
was nothing to save. It is suggested that the language of Article35 of the Permanent Court’s
Statute was blindly copied over, without consideration of the fact that ⎯ according to your
decisions of 2004 ⎯ the reference to treaties in force in 1945 was entirely null and lacking in
significance. Now it is true that there was a lo t of copying from the Permanent Court Statute to
your Statute, but it was not blind copying. In Article35, for example, two of the four sentences
were changed and paragraph num bers were conveniently inserted. Moreover there was the
substantial and well-documented experience of a Court which, though not an organ of the League,
had been a relative success amongst pre-war bodies. The drafters of your Statute must be taken to
have been well aware of the Permanent Court’s practice in providing access to non-Member States,
most notably Germany before 1926. Two of the mo st famous cases of the Permanent Court, the
Upper Silesia case and the Lotus, involved non-Members. There are two possible views: the
affirmative view, that the drafters of Article 35, paragraph2, were re laxed about non-Member
States having access by treaty, or the negative view, wh ich is that they wanted to deny such access
but omitted to notice that the phrase “subject to the special provisions contained in treaties in force”
was, on that assumption, not merely unnecessary but actually damaging. If they wanted to deny
access to non-Members by treaty, the way to do so was not to copy the phrase, it was to leave it
out! Not merely does the negative view deny the principle of effet utile; it does very little credit to
drafters who were both able and well-informed. - 49 -
51. But let us assume, for the sake of argument, that the drafters of 1945 had no intention at
all other than to replicate the meaning of th e second sentence of Article35 of the Permanent
Court’s Statute, whatever it may have meant. That brings me to my second preliminary remark.
52. When the Permanent Court’s Statute wa s drafted in 1920 and 1921, the framers were
already aware that they faced a huge problem with non-Members of the League. It was not merely
that the Central Powers, ex-enemy States such as Germany and Turkey, were not eligible at that
stage. Russia and the United States were also ex cluded, for different reasons. The United States
Senate rejected the Treaty of Versailles on 19 November1919 and then again, and finally, on
19 March 1920. If the Permanent Court was merely a court of the League, a court of a gentleman’s
club, it risked failure; foreseeably, many disputes would arise between Members and
non-Members, as indeed they did. The drafting hist ory of Article35 has to be read against that
fundamental fact.
53. I turn then to the drafting history. The Court will be familiar with the old joke about
drafting history. According to some, it is only n ecessary to interpret the words of a text when the
drafting history is ambiguous or obscure! In this case, you will be pleased to learn, the drafting
history is clear and unambiguous.
54. Of course there were two phases to the drafting history of the Permanent Court’s Statute:
first before the Advisory Committee of Jurists, secondly before the League Assembly and various
committees, though there was some overlap in personnel, they were distinct phases.
55. Within the Committee of Jurists there we re at least two views on the issue of access.
One view, which was represented by the President of the Committee, BaronDescamps, favoured
leaving all questions of access of non-League Me mbers to the Council. Others, in particular
Messrs. Loder and Hagerup, favoured a wider view. For example, Mr. Loder
“thought that Article 17 of the Covenant was drawn up with the intention of extending
the jurisdiction of the Court as widely as possible. States other than Members of the
League of Nations should be admitted, though of course with special conditions
regarding the costs of the procedure” F0.
40Permanent Court of International Justice, Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of
the Committee, 16 June-24 July 1920 (The Hague, 1920), 10th meeting, 26 June 1920, p. 220. - 50 -
As against the wider “Hagerup/Loder” view, Ba ronDescamps stressed the need for a special
procedure of admission, though he accepted “that lastly the Court should be competent to deal with
41
the particular cases mentioned in the Treaties of Peace” F . Following an intervention by
Mr. Hagerup, the broader view was again put by Mr. Loder: “why . . . shut [the doors of the Court]
42
to [non-Member States] if they agree to submit their disputes to the Court” F Fsaid the later
President Loder. Baron Descamps, with support fro m some other Members, did his best to enforce
his Members-only view, but at a subsequent mee ting Mr.Hagerup (with Mr.Loder’s agreement)
proposed that the Court be required to hear cases “[a]s the result of an agreement between two
43
non-Member States” F . Mr.Ricci-Busatti noted that the peace treaties alr eady referred cases
44
involving non-Members to the Court F . Baron Descamps agreed but said these were only isolated
45
cases and that the Council could invite non- League Members “under certain conditions” F . At a
later meeting, BaronDescamps and LordPhillimore tried to halt debate on the question but
Mr. Ricci-Busatti was persistent.
[Graphic]
“Mr. Ricci-Busatti observed that there were cases where it would be impossible
to make access to the Court, in the case of States which were not Members of the
League of Nations, subject to special c onditions as laid down in Article17 of the
Covenant. Such cases were, for instance, those in which recourse to the Court on the
part of all the contracting parties, without distinction, was directly provided for by the
Treaties of Peace.
The members of the Committee acknowledged the accuracy of
Mr. Ricci-Busatti’s observation, which would be duly considered in the drafting of the
46
Article.” F F (Emphasis added.)
56. This passage calls for two observations. Th e first is that Mr.Ricci-Busatti’s comment
was not limited to the existing peace treaties: he simply used them as an illustration (he said “for
instance”). The second is that the drafting committee, from which Mr. Ricci-Busatti was excluded,
ignored his point ⎯ despite the fact that its validity had b een acknowledged. Not for the last time,
41Ibid.
42Ibid., p. 221.
43Ibid., p. 291 (13th meeting, 1 July 1920).
44
Ibid., p. 291.
45
Ibid., p. 292.
46
Ibid., p. 540 (24th meeting, 14 July 1920). - 51 -
Madam President, Members of the Court, someone left off the drafting committee had their views
47
ignored. Article 28 as it emerged from the drafting committee ignored Mr. Ricci-Busatti’s point F .
[End graphic]
57. That was the background to the draft presen ted by the Advisory Committee of Jurists to
the TenthSession of the Council in Brussels in Oc tober1920, which marked the end of the first
phase of the Advisory Committee and the beginning of the second phase in the League Assembly
and its committees. Draft Article32 declared roundly “other States may have access to the
Court” ⎯ “elle est accessible aux autres Etats”. It al so provided for the conditions for access to be
laid down by the Council in accordance with Article 17 of the Covenant. It did not refer separately
to treaties in force F8. The Council made various amendments to the Advisory Committee’s text,
but none to Article 32.
58. The amended text was then considered by a sub-committee presided over by
Mr. Hagerup ⎯ who you will remember favoured the broader view. The sub-committee had the
advantage of comments on the Brussels draft from the British Government, calling among other
things for further elaboration of draft Article 32 F4. The subsequent debate is of great interest. The
crucial meetings of this sub-co mmittee were the 6th and 7th, and I have placed the whole of the
minutes of those meetings in your folders at tab10. I will only mention the highlights.
SirCecilHurst, the British Legal Adviser, later a judge of the Court “asked for explanations
regarding the distinction between the States to wh ich the Court is open by right, and those which
might have access to it”. Mr.Hagerup responded by saying “it was chiefly a question of the
50
distribution of expenses” F . Then SirCecilHurst remarked “under the Treaties of Peace the
Central Powers would often be Parties before the Court”; he said the existing text did not take
47
Ibid., p. 566 (25th meeting, 19 July 1920).
48
Draft scheme for the Institution of the Permanent Court of International Justice Mentioned in Article 14 of the
Covenant of the League of Nations, presented to the Council of the League by the Advisory Committee of Jurists, Annex
to 32nd Meeting of the Advisory Committee of Jurists in Procès-Verbaux of the Proceedings of the Committee,
16 June-24 July 1920, p. 679 (hereafter, “Procès-Verbaux”).
49
British Amendments to Brussels text of Draft Scheme in Documents concerning the action taken by the Council
of the League of Nations under Article14 of the Covenant and the adoption by the Assembly of the Statute of the
Permanent Court (hereafter, “Documents”), pp. 70-71.
50Minutes of Subcommittee, 6th Meeting, 29 November 1920 in Documents, p. 140. - 52 -
sufficient account of this fact F1. It was following this key observation that the reference to “treaties
in force” was included.
[Graphic]
59. We now come to the crucial juncture. Mr.Hagerup introduced as one group three new
draft Articles; 32, 33 and 34 F5. They would become Articles35, 36 and 37 of the Statute;
relevantly they are now Articles 35 (2), 36 (1) and (for a different purpose) 37 of your Statute. You
can see Mr. Hagerup’s draft Articles on the screen.
“Article 32
The Court shall be open of right to the States mentioned in the Annex to the
Covenant, and to such others as shall subsequently enter the League of Nations.
The conditions under which the Court shall be open to other States shall, subject
to special conditions contained in treaties in force, be laid down by the Council.
When a State which is not a Member of the League of Nations is a party to a
dispute, the Court shall fix the amount which that party shall contribute towards the
expenses of the Court.”
This was the first appearance of the phrase “subject to special provisions contained in treaties in
force” and it was caused by Sir Cecil Hurst’s remark.
“Article 33
The jurisdiction of the Court comprises all cases which the parties refer to it and
all matters specially provided for in treaties and conventions in force.
Article 34
When a treaty or convention in force pr ovides for the reference of a matter to a
tribunal to be instituted by the League of Nations, the Court will be such tribunal.”
60. Now the Court will note that all three draf t Articles, introduced together, used the phrase
“traités en vigueur”; the latter two added “et c onventions” but the difference was not commented
on. In the subsequent discussion, which covered al l three Articles, reference was made to existing
treaties and to future treaties, including a future treaty of general arbitration ⎯ it had by now been
definitively decided that the Court would not have inherent or compulsory jurisdiction and it was
hoped in future that there would be a treaty of gene ral arbitration. Mr. Fromageot, later a judge of
51
Ibid., p. 141.
52
Minutes of Sub-Committee, 7th Meeting, 1 December 1920, ibid., p. 143. - 53 -
the Court, referred to existing treaties in the fiel d of labour, transit, minorities and air navigation,
but without suggesting that only existing tr eaties were covered by the second sentence F3. The
President, Mr. Hagerup, said he would mention these in his report.
[End graphic]
[Graphic]
61. The minutes then read as follows:
“In reply to a question of Mr. Huber, Mr. Fromageot (France) declared that the
expression ‘Treaties in force’ meant not on ly the Treaties in force now but at any
given moment in future.” (Minutes of S ubcommittee, 7th meeting., 1 December 1920
in Documents, p. 144.)
Thus we have one future judge telling another futu re judge what the words in draft Article 32 were
intended to mean F4. Note that Mr.Fromageot, in the passage on the screen, used the phrase
“treaties in force” ⎯ “les traités en vigueur”. He was taking the phrase from draft Article 32, not
the phrase “treaties and conventions in force” from the other two Articles. He was talking about a
formulation which began ⎯ as the final text would begin ⎯ with the phrase “sous réserve”,
“subject to”. No one disagreed with Mr. Fromageot.
[End graphic]
62. Following this debate, Mr.Hagerup presen ted his report to the Third Committee of the
55
League F . The report was approved by that Committee and then by the Assembly. The relevant
passages were subsequently incl uded by the Permanent Court in its official publication Extracts
from International Agreements aff ecting the Jurisdiction of the Court (P.C.I.J., Series D, No.3 ,
pp. 7-10). On Article32 of the Brussels draft, th e Subcommittee said that its wording “seemed
lacking in clearness, and the Subcommittee has re -cast it in an effort to express clearly what
follows”.
[Graphic]
63. The new version was numbered Article35. Paragraph1 dealt, as before, with the
Members of the League, present and future. Paragraph 2 read as follows:
53
Minutes of Subcommittee, 7th Meeting., 1 Dec. 1920 in Documents, p. 143.
54
Ibid., p. 144.
5Report submitted to the Third Committee by Mr. Hagerup on behalf of the Subcommittee in Documents, p. 206. - 54 -
“2. The access of other States to the Court will depend either on the special
provisions of the Treaties in force (for example the provisions of the Treaties of Peace
concerning the rights of minorities, labour, etc.) or else on a resolution of the Council.
Such resolution may lay down conditions of access in conformity with Article17 of
the Covenant, but in no case must these conditions result in any inequality of the
Parties before the Court.”
64. Now it is true that the final drafting of the second sentence of Article 35 in the Permanent
Court’s Statute differed from that proposed by th e Subcommittee: it reverted to the formulation
which had been discussed by Mr. Huber and Mr. Fromageot ⎯ that is the “sous réserve”/“subject
to” formulation with which we are familiar. But all the main ideas were retained: (1)for other
States access to the Court depended either on trea ties in force or on the Council; (2)the Council
could lay down conditions for access; but (3), these were not to place any party in a position of
inequality. So also was retained much of the language, notably the crucial phrase “des dispositions
particulières des traités en vigueur” ⎯ “the special provisions contained in treaties in force”. This
remained unchanged in the final version of the Statute. It is unchanged today.
65. Two things are crystal clear from the Subcommittee’s draft of Article 35 (2), as approved
by the League Assembly and as later reproduced by th e Court itself. The first thing is that treaties
in force and a Council resolution were straightforward alternatives: “leur accès à la Cour dépendra
ou bien des dispositions particulières des traités en vigueur ou bien d’une résolution du conseil”.
There is no reason to give a restrictive interpreta tion to the mode of access by treaty any more than
to the mode of access by resolution. They were treated as equivalent; indeed treaties came first.
66. The second thing is that the phrase “des dis positions particulières des traités en vigueur”
was not limited to existing treaties. Y ou can see this from the phrase in brackets “( par exemple ⎯
for example ⎯ les dispositions dans les traités de paix c oncernant le droit des minorités, le travail,
etc.)”. The provisions of the peace treaties on minorities and on labour conditions were merely
illustrative: they were not intended to be exclusive, and that was entirely consistent with the debate
that had occurred.
[End graphic]
67. Where in the drafting history of Article35 is there to be found any departure from the
intention so clearly displayed in this text, approved by the Assembly itself? Nowhere.
Mr. Fromageot’s explicit reply to Max Huber’s ques tion was clear, definitive and was explained to - 55 -
the Assembly in the same way by Mr. Hagerup ⎯ himself a proponent of the broader view ⎯ as he
had said he would do.
68. If the drafters of Article35 of the Statute had wished to limit the treaty access by
non-League Members to treaties concluded before September 1921 ⎯ there is no evidence
whatever that they did ⎯ they could easily have said so e xpressly. Articles26 and 27 of the
Statute dealt with provisions of the peace treatie s concerning labour, transit and communications.
It would have been easy to refer to the peace treatie s or to other treaties already in force. But in
fact in September 1921, not all the peace treaties had been concluded. In August 1920, Turkey had
refused to ratify the Treaty of Sèvres, and the form the eventual peace tr eaty with Turkey would
take was not yet settled. Not all the minority tr eaties or declarations had been concluded in
September1921. There is no basis for treating September1921 as any sort of cut-off point. In
1923, the Court published its first compilation of international agreements governing its
jurisdiction: this included a number of treaties concluded after 1 September 1921 with non-League
Members, for example, in the field of railways, the Agreement for the Regulation of International
56
Railway-traffic of November1921, to which Hungary was a signatory F ; and river transit, the
57
Statute of Navigation of the Elbe of February 1922, to which Germany was a signatory F . No one,
least of all the Court, treated 1 September 1921 as having any significance; as constituting any sort
of cut-off and, as I have said, there are more than 30 treaties in this category.
69. When the Treaty of Lausanne was eventually concluded ⎯ the peace treaty with
Turkey ⎯ it contained Article 44, referring minorities disputes to the Permanent Court. The Treaty
of Lausanne was signed on 24 July 1923 and entere d into force on 6 August 1924. Turkey was not
then, and would not be for many years, a Member of the League. The Treaty of Lausanne was
quite certainly a “treaty in force” for the purposes of Article 35 (2) of the Statute, as Fachiri in his
58 59
study of the Court expressly accepted F . Yet it was a later treaty F .
56
See Agreement for the Regulation of International Railway-traffic, Porto Rosa, 23 November 1921: P.C.I.J.,
Series D, No. 3, p. 59 (Hungary).
57See Statute of Navigation of the Elbe, 22 Feb. 1922, 26 LNTS 220: P.C.I.J., Series D, No. 3, p. 60 (Germany).
58A.F. Fachiri, The Permanent Court of International Justice (OUP, London, 1932) p. 67.
5928 LNTS 13. - 56 -
70. For all these reasons, there is no basis to read the relevant words in Article 35 (2) of your
Statute as if they were not there, or were si mply a mistaken copying of words from 1921 which
could have no meaning in the context of the new Court. Everything points to their having their
normal and natural meaning ⎯ the meaning they have elsewhere in the Statute, the meaning they
have in Article 36 (1), the meaning the Permanent Court in the Upper Silesia case treated them as
having ⎯ treaties in force from time to time.
71. Let me however address one final, unspoken co ncern. It is conceivable that the phrase
“subject to the special provisions contained in treaties in force” in Article 35, paragraph 2, might be
used in an attempt to give the Court jurisdic tion between entities whose international status is
uncertain and disputed ⎯ and perhaps over the very subject of that dispute. A bilateral agreement
between two such dubious entities would be, arguably, a treaty in force, and it would cast upon the
Court the task of saying that one or both of the parties were not States as required by Article34,
paragraph1, of the Statute. This concern might, I suppose, be taken to justify a narrow
interpretation of Article 35, paragraph 2. Membership of the United Nations, and of the Statute, is
a matter for decision by the Security Council and the General Assembly. The drafting of the
Permanent Court’s Statute showed no intention to give the Council a monopoly but this concern
might support such a proposition. According to th is unstated argument, the phrase “subject to the
special provisions contained in treaties in force” should be treated as an exception to political
control, and construed as narrowly as possible ⎯ if necessary, construed out of existence.
72. There are, I respectfully suggest, three answers to this concern.
73. The first is that the fundamental conditio n of access to the Court, the real question of
capacity, is statehood: Article 34, paragraph 1. This applies at all times and in all circumstances; it
is a continuing requirement that is plainly met in this case but might not be in another. Under the
Statute this is a matter for the Court –– the Court has control.
74. The second reason is that the political or gans, first of the League, then the United
Nations, have never sought a monopoly control over access as against the Court. The League
Council resolution of 17 May 1922 was very liberal in allowing any State not a League Member to
deposit a particular or general declaration accepting ju risdiction. It did not subject the status of
entities making declarations under the resolution to any form of political control. Exactly the same - 57 -
is true of Security Council resolution9(I) of 15October1946. The political bodies have
consistently and for 80years left this question to the Court, by means of the regulation in
Article34, paragraph1. They have never asserted a control. It is for this Court, not the political
organs of the United Nations, to ensure that the conditions for access are met, including, especially,
under Article 34, paragraph 1.
75. The third reason for rejecting this unstated concern is that our case bears no resemblance
to a bilateral treaty between two entities of doubtful st atus. This case is between two parties to the
Genocide Convention, a major multilateral conve ntion concluded as a result of and in the
immediate aftermath of the Second World War. It is not too much to say that the Genocide
Convention is part of the post-war settlement. Th e Convention is declaratory in terms, as I have
said. The obligations of States to punish genocide apply to genocide wherever committed. It is the
paradigm of the universal convention. As you said in Reservations case:
“The origins of the Convention show that it was the intention of the United
Nations to condemn and punish genocide as ‘a crime under international law’
involving a denial of the right of existen ce of entire human groups, a denial which
shocks the conscience of mankind and results in great losses to humanity, and which is
contrary to moral law and to the spirit and aims of the United Nations... A...
consequence is the universa1 character bot h of the condemnation of genocide and of
the co-operation required ‘in order to liberate mankind from such an odious
scourge’... The Genocide Convention was therefore intended by the General
Assembly and by the contracting parties to be definitely universal in scope.”
(Reservations to the Convention on the P revention and Punishment of the Crime of
Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23.)
Your reasoning in that case was based on a presumption against “[t]he complete exclusion from the
Convention of one or more States” (ibid., p. 24).
76. There is accordingly no reason to adopt an interpretation of Artic le 35, paragraph 2,
which is not in accord with its ordinary and natu ral meaning. Further, the ordinary and natural
meaning is fully confirmed, as I have shown, by the travaux préparatoires.
77. There is also a countervailing considerati on of policy, which involves the position of the
Court in the world. The Court was conceived in 1920 against the background of a league which, it
was already clear, would have partial membership. The Court was conceived as a Court for all
States, whether or not members of the league, and that conception was followed in 1945. There
was the same problem of the exclusion of the ex-e nemy States in 1945 as there was in 1920. It is - 58 -
true that we have achieved a situation where United Nations membership is virtually universal. But
that is a contingency: there can be new States; existing Members can leave the United Nations.
This Court is a court for bad times as well as good. What is needed in bad times is more access to
the Court, not less. Moreover in times of politi cal discontinuity we need legal continuity. The
presumption of continuity adopted by the Court in the preliminary objections phase of the Bosnia
case (I.C.J. Reports 1996 , p. 610, para. 17) was ⎯ with profound respect ⎯ profoundly right.
What treaties like the Genocide Convention need is continuity of protection, and for that we need
continuity of access.
78. Madam President, Members of the Court, a colleague of mine described your decision in
the NATO cases as “in many ways an unsettling judgm ent and one which threatens to undermine
the authority of the International Court of Justice” F0. Now, the Court is, of course, used to criticism
and is rightly resistant, as a general matter, to changes in course. Let the critics come into line with
the Court, rather than the other way round. But not always: there may be times, there have been
times, when further reflection may cause second thoughts. I suggest, with the greatest of respect,
that this is such an occasion. For the reasons I have explained, the words of Article35,
paragraph 2, of the Statute mean, and should be held to mean, precisely what they say.
79. Madam President, Members of the Court, th is concludes the first round presentations of
Croatia. Thank you Madam President, Members of the Court, for your attention.
The PRESIDENT: Thank you, Professor Crawford.
That indeed brings to an end the first round of oral argument. I shall now give the floor to
Judge Abraham, who has a question for the Parties.
M. ABRAHAM : Merci, Madame le président. Ma question s’adresse aux deux Parties.
Les Parties se sont référées, entre autres, aux affaires relatives à la Licéité de l’emploi de la
force, dans lesquelles la Cour a jugé en2004 qu’e lle n’avait pas compétence pour connaître des
requêtes de la Serbie-et-Monténégro, au motif que cet Etat ne remplissait pas les conditions d’accès
à la Cour.
60C. Gray (2005) 54 ICLQ 787, 794. - 59 -
Dans ces affaires, la Serbie-et-Monténégro venait devant la Cour comme demanderesse.
Dans la présente affaire, la Serbie se présente en qualité de défenderesse.
Y a-t-il, selon les Parties, des conséquences à tirer, et si oui lesquelles, de cette différence de
situation, en ce qui concerne les conditions pr évues aux paragraphes1 et2 de l’article35 du
Statut ? Merci.
The PRESIDENT: Thank you. The text of this question will be sent to the Parties as soon
as possible. The Parties may decide if they d eem it convenient to respond to the question during
the second round of oral argument. It will also be possible for them to provide written responses to
the question by 6 June 2008 at the latest, and I would add that any comments a Party may wish to
make in accordance with Article 72 of the Rules of Court on the response by the other Party must
be submitted no later than 13 June 2008.
The Court will meet tomorrow at 10 a.m. to hear the second round of oral argument. Serbia
will present its reply tomorrow and Croatia on Friday, at 10 a.m. Each Party has at its disposition a
three-hour period. I would add that the purpose of the second round of oral argument is to enable
each of the Parties to respond to the arguments raised by the other Party during the first round. The
second round should not, therefore, constitute a repetition of past statements.
The Court now rises.
The Court rose at 12.45 p.m.
___________
Public sitting held on Wednesday 28 May 2008, at 10 a.m., at the Peace Palace, President Higgins presiding, in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia)