Croatia's comments on Serbia's written response to the question put to the Parties by Judge Abraham

Comments of the Republic of Croatia on the Republic ofSerbia's

further written observations of 6 June 2008

1. The Republic of Croatia notes the contents of the Republic of Serbia's 20-page response

wilh Sùrne surpris'ê. Contrary to established practice and against the background of its limited
first round arguments at the oral phase, the Respondent has taken the opportunity t.osummarise,

restate and then further develop the whole of its case on jurîsdiction ratione personae, and Lo

respond to arguments made by counsel for Croatia general ly on that subje<..:t.Hitherto, States

have not treated questions from the bench - helpful as they ofien are in clarifyîng pa1ticular

points - as an excuse for post-hearing briefs) for a further writLenround (or rounds) of pleading.

The Respondent has depmted from that practice. The Republic of Croatia respectfully invites the
Court to ignore those aspects of Serbia's written observations that are not responsi.veto .ludge

Abraham's question.

2. The Republic of Ct'Oatiaresponded to Judge Abraham's question, atthe firstopportunity,

on the final day of oral argument: see CR 2008/13) 30 May 2008, pp. 30-31 (Profossor

Crawford). He made two major points: (a) ln principle,under normal opcratîon of jurisdictional

requirements under Article 35(1) or (2) of the Statute anApplicant and a Respondent are treated

alike; (b) but it may well make a difference, at least in practice, in situation whcrc the

Mavrommatis principle isbeingrelied on.

3. The Respondent roargucsat lengtb that the Court have not scisinin this case. In response

tothose assertions, Republic of Croatia would make the following remarks. IL sbould be stressed

thatthese are întended to be responsive and arc without prejudice to the Republic of Croatia's

submissîons already made on Articles 35(1) and (2).

(a) The operation of the rules of scisi.n have the effect that a Respondent Statc has full

opportunity to objcct, or toconsent, to the Court's cornpetence to hear a case, or to its

jurisdictlon, after the case is commenccd. The Respondent must take the lcgal

conscquences of its own conduct in that regard,lù/VO l...lJVIV..t..In,., •vu-.>1 ...1v ......

present case was by preliminary objections filed on l Scptcmbcr 2002, long aftcr atl

the conditions for the Court's jurisdiction were fulfilled. On the basis that the

Genocide Convention was applicable (as the Respondent had previously affinned on
many occasions, and as the Cou1thas consistently held), ail those conditions were

fülfillcd,on anyview, on 1 Nove1nber 2000.

(c) lt itherefore not necessary for the Court to dccidcthe hypothetical question whether

the Respondent could have commenced proceedings against the Republic of Croatîa

in 1999. What is clear is that the Republic of Croatia had the capacîty to seise the

Court in the present case at that time, and the Court dealt with the case accordingly.
The Court is entitled to deal with the question of scisîn in accordance with ils

decisions given at the time füe question arises. How else can ît act? To argue that the

Court lackcd scisin in 1999 is inconceivable- If the Court has seisin lt .isentîtled to

deal withthe case in accordance with the applicable law,including the Mavrommatis

principle,
(d) Tf,at any time after the Republic of Croatia had commenced this case in 1999, the

Respondenthad filed a declaration under Security CounciJ resolution 9(1),jurisdiction

would have been incontestable. That declaration would not have conferred scisîn on

the Courl, any more than Turkey's later declaration did in The Lotus. In both cases

the Court already had seisin as a result of an application filed by a State Partyto the

Statute and the case had been duly entercd in the List
(e) Rather than filing a declaration, the Respondent took fo1111a sltcpsto become a Party

to the Statute (action that was without prejudice, in the view of the Republic of

Croatia~ to such attributes of membership of the lJnited Nations ît already cnjoyed

before that date), The effectwas - for the purposeof the present case - the same.

Ju1·isdictionbccame as incontestable as itwas in The Lotus.

(f) lt may be asked how the Court ceases to have scisin, once a case has been entered on

the Court's list. The aflswer is to be found in the Court' s practicc in Request for an
Examînation of the Situation. France forthwi.th objected to the New Zcaland

application. The Coutt entered Lhe application 011 the List, for the purpose of

determining whether it was propcrly filed in accordancc with its judgment of 1974.li.J,'VI...VVVIV,11..1 '"'

Having determined that itwas not, the Court directed that the case be removed from

the List: see ICJ Reports 1995 p. 288 at p. 306 (para. 66). That wa.i:an exercise of

compete11ce-cornpetence,

4. The conclusion reached in paragraph 3 above, finds support in Article 41 of the Rules of

Court, which reads:

"Theinstitutionof proceeclings by a State which is not a party to the Statute but
which, undet Article 35, para.graph2, thereof, has accepted the jurisdiction of the
Court by a declaration made in accordance with any resolution adopted by the
Security CouncHunder that Article, shalI be 1:1.ccornpaniebdy a dcposît of the

declaration in question, unlcss the latter has previously been deposited with the
Registrar." (emphasis added)

As observed by Rosenne, "The Rules c()lllai110 parallel provision regarding the liling of a

dcclaration by a Respondent which is nota party to the Statute/' (TheLawandPracticeofthe
th
International Court, 1920-2005 (4 edn, Nîjhoft 2004), vol. 2, .Jurisdictîon, p. 619). The

absence of any provision in the Rules conceming a Respondent State which is nota party to the

Statute clearly supports the view that the Court may acquire seisin at the instance of an Applicant

State which isa party to the Statute. In this way, and as applicable in this case, an important
consequence arises to indicate a material difference between the situation of an Applicant, on the

one hand, and that of a Respondcnt, on the other, in relation to the interpretation and application

of Articles 35(1) and (2)."

5. For these rcasons, the Court has jurisdiction on any view of the matter, and inespective of

whcthcr the Court tinds it necessary to addrcss Croatîa's arguments as to the interpretation and
application of Articles 35(1) and (2) in Hght of itsjurisprudence.

6. The Respondent's lengthy "rcply" to Judge Abraham's question calls only for a brief

rcsponse, as follows:

(a) The Respo11de1 a1gues that the Court 1ackedseisin in the NATO Cases C'Rcsponse'',

paras. 1-7). But that was not what the Court said. Thus in the Provisional Mcasures

phase against the United States, the Court held (havîng examincd its jurisdiction) tlmt

"within a system of consensual jwisdiciion, to maintain on the General List a case upon which itappears cettain that the Court wilJ not be able to adjudicate on the
merits would most assuredly not contribute to the sound administration of justice":

TCJReports 1,999at p. 925 (para. 29, emphasis added). This responded to the actual

position tak.en by the Parties and did not amount to a finding that the Court lacked

seisirt. Nor was any such findîng made at the Jurisdictional phase of the remaînîng
cases: see e.g. the Belgian case, lCJ Reports 2004 at p. 294 (para. 33) p. 296 (para.
1
40), pp. 297-8 (para. 44), The Comt exercised itsjurisdiction, dealt with the case a11d

found (unanimou$ly, though for different reasons) that it lacked jurisdiction: atp. 328

(para. 129). There was nothing retrospective in this <lecision, which is
indistinguishable in fonn to all other cases iu which a prelimirtary objection to

jurîsdiction is succcssfully maintaincd. Nor dîd the decision have automatic

consequences for other cases on the Court's List, having regard to Article 59 of the

Statute.

(b) The Respondent invents the concept of "negative jus stancli''("Response", para. l0).

Tttreais the m~jorlty's fi.nding in the NATO cases on access as a trump card. But- as

pointed out above - a Statewhich is brought before the Court under aprimaftzcie

validjurisdiclional titlebutwhîch may not be a party to the Statute still has to deal
with the Court in order to clarifythe situation. The case exists on the T,ist(as Se.rbîa

now co11cedes). lt îs not voîd. The Respm\dent can resolve the question of access

(assuming itexists) by making a declaration under Security Councit resolution 9(1),or

by becoming a party to the Statute. TnThe Lotus, Turkey did the former: in the

present case, this Rcspondent did the latter. Therc was and is no "ncgative jus
standi'',Uke a black hole eliminating not mcrely Article 36(6) of the Statute but the

orderly procedures applicd by the Court to ascertain its jurisdîctîon.

(c) The Respondent submits that there is no difference beLween Applicants and

Respondents as concerns the basic qualification of statehood in Article 34(1): see

'~Response", para. 14. This is obvious -·· but the Republic of Croatia has never

suggested otherwise. The Respondent was at all relevant times a State, respon.siblc for

its conduct in accordance with the international law of State responsibility, including
attribution.(d) The Respondent relies on the requirement of "'general consent to participatc in the

judîcial system established by the Charter and the Statute" ("Response", para. 22).

The Republic of Croatia will not repeat what itsa.id on Article35(2) inthe oral phase:

that issue was not raised by Judge Abraham's question. for present purposes, and
assuming, arguendo, lhatthe Respondent lacked at.:cessto the Courtin 1999,it could

have rcmcdied that deficiency at any time white the case was listed by making a

dcclaration under Security Council resolution 9(1); such a declaration could be made

ad hoc and solcly for the purposes of the case - as was Turkey's declaration in The

Lotus. lnstead îtchose to become a party to the Statute. Any pre~existing defect was
thereby cured, in accordance with the Mavrommatis principle. There is accordîngly

no violation of any ('fundamental principle of international adjudication" ("Rcsponse",

para.23) on a.nyview. This dcals also wîth the purelyprotesta.tivc arguments made in

paragraphs 24-28 of the "Response".

(e) ltis not the case that the procedural point made by the Republic of Croatia in

paragraph 2(b) above leads to ''fondamental inequafüy between States in relation to

proceedîngs before the Cûurl" ("Responsc", para. 29). If a case is placed on the List,
all the Respondent has to do is to object citing any applicable ground of objection,

whether rclated to access or otherwise. That is what France did in Request for an

Examinalion of the Situation. The Respondent did not do so hcre. The Court also has

certain powers to act proprio rnotu, but ît dîd not exe1'ciscthem (had itdone so the
Respondcnt would have been the first to complain!). The fundamental cquality of

States is protectedby the duc process of the Court.

(f) Having apparently accepted (''Response", para 3) that the Court has seisin in the

present case, the Respondent tries to diminish its effect by labclling it as ''unilateral
seisin" ("Rcsponse", pa.ra 43), which is apparent1ysomething less than seisin. In

other words, the case is only apparent/y on the List. But listing a case, acquiring

seisin ovcr ît, îs a matter for the Court to decidc - a decision whîch it may make

explidtly on a provisiona.1 bac;;ibut which, whether or not provisional, is subject to

the Court's powers and pmcedures for determining objections to cornpetencc. There
is only one fonn of scisin and the Court has itInthe present case.(g) The ''automatic" character of the Respondent's position is clearly e.xposed in para. 46

of its Response when it says that: "the Court bas no competence ta decide on its
competence ifany of the States parties to the dispute is outside the rea]m of the

judiciniautl1orîtyof the Court". But itis for the Court to decide whethertha.is the

situation, not for the Respondent too so. h1 the present case the Republic of Croatia
has given three distinct and credible grounds for affi.nningjurisdiction:

• on the basis of Article 35, para. 1 (the Respondent enjoyed sui generis status in
1992 -2000 period - inGluding access to the Court, which could not have been

changed t'etroactively),

e on the basis of A1ticle35, para 2 (ArticleIX of the Genocide Convention is a

"treatyin force"),and

11!on the basis of application of Mavrommatis prînciple (in the present case all

procedural requirements for the Courtis jurisdiction were in any -case met on 1

November 2000).

Now it is for the Cou1i to deoide. To suggest that indoin.g so the_Court is not

exercising its authority under Article 36(6) of_Statute is absurd.

Respectfully submitted.

~ ' ~/
_\\r--- -·-
Profe~or Ivan Siroonovié
Agent of e Republic of Croatîa

13June 2008 before theIn -ernational Court of Justice