Non- Corrigé Traduction
Unco rrected Translation
YUGONPO
CR 2004/18 (traduction)
CR 2004118 (translation)
Jeudi 22 avril 2001h 45
Thursday 22April2004 at 11.45a.m.8 Le PRESIDENT :Je donne à présent la parolàM. Luis Tavares, agent du Portugal.
M. TAVARES :
1.Monsieur le président, Madame et Messieurs de la Cour, avant de demanderà Monsieur le
président d'appelerà la barre notre conseil, qui formulera certaines observations en réponsà
l'exposé oral présenté hier plr demandeur,je ne puis m'empêcher de commenter brièvemena t,u
nom demon gouvernement, certainspoints évoqués par la Serbie et Monténégro.
2. Non seulementje relèvele comportement erroné,du point de vue procédural, quela Partie
adverse continue d'adopter, et dont notre conseil aura l'occasion, dans un moment, de tirer les
conséquences pertinentesen droit, mais aussi je me dois d'apporter une réponse auxarguments
principaux développésdans les plaidoiries de la Serbie et Monténégro.A plusieurs reprises, les
Etats défendeursont étéaccusésd'avoir commis des crimes de génocide.
3. Il s'agit là de trèsgraves allégations et nous devons lesrejeter avec force. Ces dernières
décennies,en intervenant dans le cadre de plusieurs instances internationales, en particulier de
l'OTAN, les défendeurs ont contribué de manière décisiv au maintien de la paix en Europe. Ce
sont aussi des pays -avec lesquels le Portugal est fier de coopérer pleinementqui témoignent
d'un engagement permanent àpromouvoir et à protéger les droits de l'homme etl'ordre public. Et
cet engagement n'est plus à démontrer. Il fait désormais partie de l'histoirede ces dernières
décennies.
4. La participation active et constructive du Portugàl'organisation des Nations Unies,à
l'OTAN, au Conseil de l'Europe, à I'OSCE et àl'Union européenne confirme ce queje viens de
dire.
5. Monsieur le président, Madame et Messieurs dela Cour, la Serbie et Monténégropersiste
àaccuser le Portugal de génocide. De toute évidence,une telle accusation ne repose sur aucun
argumentde fait ni de droit, et nous la rejetons totalement. 6.Force est de souligner que,àl'occasion dela vislte dans notre pays, il y a cinq mois,du
présidentde la Serbie et Monténégro,les Parties ont signéun traité, danslequel elles proclamaient
leur désir ((d'intensifierleur relation d'amitié)) et s'assignaientpour ((objectifs de favoriser une
relation fondéesur un climat de coopération,sur la base des principes de respect mutuel, de
souverainetéet d'égalité)).
7. Monsieur le président, Madame et Messieurs dela Cour, je me permets de le rappeler,
notre coagent a soulignédans son exposé que l'opération«force alliée))menée par l'OTAN était
destinéeà mettre fià une cataistrophehumanitaire.
8.
«[s]i l'intervention humanitaire constitue effectivementune atteinte inadmissàbla
souveraineté, comment devons-nous réagir face à cles situations comme celles dont
nous avons été témoins ;auRwanda ou à Srebrenica. devant des violations flagrantes,
massives et systématiques des droits de l'homme,qui vont à l'encontre de tous les
principes sur lesquels est fondéenotre condition d'êtres humains
-ce sont là les termes employés en 1999 par le Secrétaire général del'organisation des
NationsUnies, Kofi Annan, devant l'Assemblée générale de Nsations Unies («La responsabilitéde
protéger)),rapport de laComrniissioninternationalede l'intervention et de la souveraineté des Etats,
2001,p. vii).
9. La Serbie et Monténégroa déclaré et soulignédatis ses plaidoiries que son propre peuple
avaitjetéles bases de la démocratie. Et,une fois ces bases établies, cepays chercheésentune
nouvelle place au sein de la communauté internationale. Cela veut dire notamment, de toute
évidence, que ce paysse rapproche de certaines organisations internationales mentionnées plus
haut, comme l'OTAN. Ce sont des événements dontle Portugal se félicite et auxquels nous
attachonsune grande valeur.(h l'OTAN a certainementjouéun rôle dans cette action.
10. Depuis l'intr~ducti~onde ces instances, le Portugal, heureusement, n'a pas changé.
Heureusementvous, la Serbie et Monténégro,vous avezchangé.
11. En conclusion,Moi~sieurle président,je vous demanderais de bien vouloir donner la
parole à notre conseil, M. Miguel GalvaoTeles, qui va répondre, au nom de la République
portugaise,à l'exposé oral ]présentéhier par la Serbie et Monténégro. A l'issue de cette
intervention, si vous me le permettez, Monsieur le président,je reprendrai la parole pour lire les
conclusionsfinales duPortuga,l. Le PRESIDENT :Merci, Monsieur Tavares. Je donne maintenant la parole àM. Teles.
Mr. GALVAO-TELES: Mr. President, Members of the Court.
INTRODUCTION
1.If what is happening in the present case were not a violation of fundamentalprinciples of
procedure, 1 might just Say that it is no easy matter to be the Respondent vis-à-vis Serbia and
Montenegro and leave it at that. Not by virtue of the weight of the Applicant's argument- it has
none -, but simply because it is impossibleto know what to expect.
2. In its Application, and in its request forthe indication of provisional measures,the Federal
Republic of Yugoslavia strongly asserted that the Court had jurisdiction - even though the Court
consideredit did not, not even prima facie.
10 One of the three parts of the Memorial (the submissions excluded) was devoted to the vain
attemptto establish the jurisdiction of the Court.
Portugal, like the other Respondents in the parallel cases, raised preliminary objections.n
accordance with Article 79, paragraph 3, of the Rules of Court, depending on which text was in
force when Serbia and Montenegro was notified (now paragraph 5 of Article 79), the Court gave
the Applicant an opportunity to present Written Observations and Submissions on the Preliminary
Objections.
It did so and, on18December 2002, filed its Observations and Submissions.
3. 1 shall retum in a moment to the interpretation of these Written Observations and
Submissions. Al11shall Sayfor now is that Serbia and Montenegro patently considered that the
Courtdid not havejurisdiction to rule on the merits and that it was callingfor a legal decisionwith
negative content. Such was the interpretation of al1the Respondents and the one that would be
made byanyone of good faith.
Further, Serbia and Montenegro has remained completely silent on the Preliminary
Objectionsraised by Portugal and bythe other Respondents in the parallel cases.
4. Suddenly, Serbia and Montenegro tells you, Mr. President, Members of the Court, that it
was actually seeking apositive or negative decisionby the Court on whether it has jurisdiction-
"to decide on the merits as well, if it hasjurisdiction" (CR 2004/14, p. 20, para. 37). It adds:
"we are aware of the fiactthat these are issues pertaining to jurisdiction disputed
between the parties, other than those referred to in Our18December 2002 submission.
The Respondents have raised objections regarding jurisdiction ratione materiae and
ratione temporis as well, and we shall take a cleiir position with respect to these
issues, confronting the allegations of the Respondents." (CR 2004114,p. 20,para. 38.)
It was in its firstround of oral argument - following the first round of the Respondents' oral
arguments- and not in the Written Observations that the Applicant takes issue with the
Preliminary Objections raised by Portugal.
5. The least that can be isaidabout Serbia and Montenegro's procedural conduct is that it is
utterly erratic. This is not all, as will be seen. But as a fiirther illustration of this erratic attitude,
allow me,Mr. President, Members of the Court, to refer to the instability - let us put it like th-t
of Serbia and Montenegro with respect to the notion of dispute.
As 1pointed out in the :Lirstround of oral argument (CR 200419,p. 15, paras. 2.5 and 2.6),
the Federal Republic of Yugoslavia had put fonvard two conflicting theories of the dispute: one,
defended in the oral arguments relating to the request for the indication of provisional measures,
and which might be tenned a t,heoryof mini-disputes, whic:hthe Court rejected in its Order on that
request and which Serbia and Montenegro abandoned in the Memorial (CR 2004/9, para. 2.7); a
second one, presented in the Memorial (para. 3.2.16), which might be tenned the theory of the
dispute unresolved when the Application instituting proceedings wasfiled and which Portugal
analysed in its written pleading (paras. 87-91), as well as in the first round of oral argument
(CR 200419,paras. 2.8 and 2.9').
Then hey presto, in the second round of its oral argument, through the voice of
Professor Brownlie, Serbia and Montenegro just as e:uplicitly abandons this second theory
(CR 2004114, p. 43, para. 59) in favour of a third theory, which might be characterized as the
theory of the dispute created /!ythe Application.institutingproceedings. 1sincerely hope, during
Serbia and Montenegro's second round of oral argument, that we will not be treated to a
description, explicit or covert, of a fourth theory. 1.INTERPRETATION OF SERBIA AND MONTENEGRO W'SRITTEN OBSERVATIONS AND
SUBMISSION PR,OCEDURAL ESTOPPEL,LACK OF LEGAL INTEREST
AND POINTOF THE PROCEEDINGS
1.l.Mr. President, Members of the Court, a1 said a moment ago, there is, in Serbia and
Montenegro's procedural conduct, far more than sheer erraticism. Let me start with the
interpretationof the Written Observations and Submissionsof the Federal Republic of Yugoslavia.
1.2. As the Court has asserted on several occasions, it is for it to interpret the Parties'
submissions.
It said this clearly in the case concerningFisheries Jurisdiction, Preliminaly Objections:
12 "Thus it is the Court's duty to isolate the real issue in the case and to identify
the object of the claim. It has never been contested that the Court is entitled to
interpret the submissions of the Parties, and in fact isbound to do so; this is one of the
attributes ofits judicial functions." (Nuclear Tests (New Zealand v. France),
Judgment, I.C.J. Reports974,p. 466, para. 30; see also Requestfor an Examination
of the Situation in Accordance with Paragraph63 of the Court's Judgment of
20December 1974 in the Nuclear Tests (New Zealand v. France) Case, Order of
22 September 1995, I.C.J. Reports 1995, p. 304, para. 55) (I.C.J. Reports 1998,
para. 30.)
1.3. Serbia and Montenegro's written submission is worded as follows: "The Federal
Republic of Yugoslavia requests the Court tocide on its jurisdiction considering the pleadings
formulatedin these Written Observations."
In other words, in the light of the pleadings or arguments set forth. And what are these
arguments?
1 note that the Agent of Serbiaand Montenegro was careful not to reproduce them.
Although, Mr. President, Members of the Court, you are very familiar with them, let us
reproduce them, starting with the last sentence of the first paragraph of the part entitled "Written
Observations":
"The Federal Republic of Yugoslavia submits that it is now clear [clear1
emphasize] that
(a) With regard to Articles 35 and 36 of the Statute of the Court, with regard to the
Genocide Convention (and with regard to bilateral conventions in the cases
against Belgium and The Netherlands),
as the Federal Republic of Yugoslavia became a new Member of the
United Nations on 1November 2000, it follows that it was not a member before
that date. Accordingly [1emphasize], it became an established fact that before
1November 2000, the Federal Republic of Yugoslavia was not and couid not
have been a party to theatute of the Courtby way of UN membership. (b) With regard to the CienocideConvention,
the Federal Republiicof Yugoslavia did not continue the personality and treaty
membership of the formerYugoslavia,and thus specifically, it [1emphasize] was
not bound by the Genocide Convention untilit acceded to that Convention (witha
reservationto ArticleIX) in March 2001 ."
What can the conclusion of these argumentsbe but that the Court lacksjurisdiction to mle on the
merits of thecase?
13 1.4. As the Court has said, "whether there exists an international dispute is a matter for
objective determination" (Interpretationof Peace Treatie~with Bulgaria, Hungaryand Romania,
Advisory Opinion,I.C.J.Reports 1950,p. 74).
Viewed objectively, following the Observations alid Written Submissions by Serbia and
Montenegro there is no longeirany dispute regarding the jurisdiction of the Court, whatever the
argumentson which the parties;'agreement isbased.
1.5.Let us also note that Serbia and Montenegro's silence with regard to the Respondents'
Preliminary Objections was nothing more than the effect of its position. If it agreed with the
Respondentsthat the Court has;nojurisdiction, what wasthe point of discussing arguments?
In addition, one of the general principles of law to which Article 38, paragraph 1 (c), of the
Statuterefers is that as a mle the absenceof a challenge means acceptance.
1.6.Inthe first round of oral pleadings Portugal stressedthat even if, ex abundanticautela,it
will retum to
"some aspects of the F'reliminaryObjections it has raised, it relies on Serbia and
Montenegro's agreement as to the Court's lack of j~irisdictionand on its admission of
the Preliminary Objections not explicitly dealt with in its Observations and
Submissions. By virtue of waiver and estoppel, Serbia and Montenegro is now
precluded fromchanging its position." (CR200419,p. 13,para. 1.6.)
Serbiaand Montenegro asserts that there areno groiindsfor estoppel. But of course it exists.
Inaccordancewith thejurispnidence of the Court, forestoppelto applythe conductof one party on
which the other relies mustlead to benefit for the former or to detriment for the latter (North Sea
ContinentalShelf,I.C.J. Rep0i.t~1969,p. 26, para. 31; Military and Paramilitary Activities inand
against Nicaragua, Jurisdiction and Admissibility, I. C.J. Reports 1984, pp. 414-415, para. 51;
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intewening), I.C.J. Reports 1990,p. 118,para. 63). Serbia andMontenegro obtained an advantage and Portugal
suffered damage,due solely to the fact that Portugal did nothave proper notice of the observations
on its PreliminaryObjections now enteredby Serbia and Montenegro.
14 The principle of good faithis well established ininternational law (case conceming theLand
and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary
Objections, I.C.J. Reports 1998, para.38), which also holds good in the area of procedure.
Procedural faimess is an objective requirement.
1.7. The Agent of Serbia and Montenegro now tells us that "we are asking the Court to
undertake a definitive investigation, and to establish conclusively the position of the FRY in
relation to the Statute and the Genocide Convention between 1992 and 2000" (CR2004114,
p. 20-21, para.40). And further: "A judgment on jurisdiction based on the elucidation of the
position of the FRYbetween 1992 and 2000 could create an anchor point of orientation. Thus
Serbia andMontenegro has a clear legal interest in the rendering of a judgrnent on jurisdiction."
(CR2004114,p. 27, para. 64.)
A legal interest in what precisely? In being elucidated? This might be very interesting, but
the appropriate course would be to seek an advisory opinion. However, Serbia and Montenegro
has no powerto do so, and contentious proceedings arean unsuitable forum for elucidation.
1.8.Mr. President, Members of the Court, Serbia andMontenegro no longer has anyrelevant
legal interest and is no longer concemed with thepurpose ofthe proceedings: let it seeka negative
jurisdictionaldecision or quite simply ask for the legal position of the Federal Republic of
Yugoslavia between 1992and 2000to be elucidated.
II. THE RESERVATIONRATZONETEMPORISONTHEDECLARATION
OFACCEPTANCEOFJURISDICTION
2.1. Serbiaand Montenegro Statesthat its intention in filing the declaration of acceptance of
the Court's jurisdiction was tonitiate the present proceedings and that the declaration shouldbe
interpretedin accordance with that intention.
2.2. However, the Court has never stated that declarations of acceptance of its compulsory
jurisdiction have to be interpreted having regardsolelyto the intention of their originators. In the case conceming the Temple of Preah Viht~ar(Preliminary Objections) the Court
stated, as Professor Brownlie himself has pointed out, ttzat it "must apply its normal canons of
15 interpretation, the first of which, according to the established jurisprudence of the Court, is that
words are to be interpreted according to their natural and cbrdinarymeaning in the context in which
they occur" (1.C.J. Reports 1961,p. 32).
Similarly, in the case cloncemingthe Anglo-Iranian Oil Co., the Court stated that it must
"seek the interpretation which is in harmony with anatural and reasonable way of reading the text,
having due regard to the intention of the Govemment of Iran at the time when it accepted the
compulsory jurisdiction of thle Court" (I.C.J. Reports 1952, p. 104). In the case concerning
Fisheries Jurisdiction, the Court reiterated that it interprets "the relevant words of a declaration
including a reservation contairiedtherein in a natural and 1,easonableway, having due regard to the
intention of the State concemed at the time when it accepted the compulsory jurisdiction of the
Court" (1.C.J. Reports 1998, para. 49).
2.3. In these three case:; the Court took the view that the "natural and reasonable way" of
reading the text led to the result arrived at, so that seeking theintention of the Statewhich made the
declaration merely served to confirm that result.
In the present case, the actual text of the declarationby Serbia and Montenegro presents no
ambiguity. Its only possible ineaning is that the Court has jurisdiction only to entertain disputes
arising after the date of signature of theid declaration.
2.4. Serbia and Montenegro is fully aware of this. With its third theory of the dispute it is
trying a conjuring trick which would ultimately lead to deletion from its declaration of acceptance
of jurisdiction of part of a sentence, namely, "in al1disptites arising or which may arise after the
signature of the presentdeclar,ationW.
The conjuring trick lies in the assertion that a dispute is produced only by the filing of the
Application.
2.5. Mr. President, Members of the Court: if the word "dispute" inthe Yugoslav declaration
meant something that would be produced only by the Application instituting proceedings, the part
of the sentence "al1 disputes arising or which may arise after the signature of the present
declaration" would be utterly .pointlessor meaningless. The Federal Republic of Yugoslavia could16 not institute proceedings before the filing of the declaration and any application by a third State
based on Article 36, paragraph 2, of theStatute could rely on this ground ofjurisdiction only if it
were filed afterthe filing of the optional declaration. Therewas no application based on Article 36,
paragraph 2.
2.6. As the Court stated in the case concerning East Timor (I.C.J. Reports 1995, p. 100,
para. 22), to establish "the existence of a disp... it mustbe shown that the claim of oneparty is
positively opposed by the other" (South WestAfrica, Preliminary Objections, I.C.J. Reports 1962,
p. 328).
For a dispute to exist, one party must make a claim and that claim must be expressly or
impliedlyrejected by the otherparty.
Mr. President, Members of the Court: if a dispute could be established only throughjudicial
channels, the Application instituting proceedings would never be enough. Opposition by the
respondent would be needed. We would have to wait for the Counter-Memorial!
How then could the Statute require the Application instituting proceedings to indicate the
subjectof the dispute if, by definition, that dispute could not yet exist (M. 40, para. 2)?
2.7. The dispute must predate the proceedings. Such is thejurisprudence of the Court and of
its predecessor,established, as Portugal pointed outin the first round 200419,p. 17,para. 2.9),
ever since the case conceming the Electricity Company of Sofia and Bulgaria, Preliminary
Objections(P.C.I.J., Series A/B,No. 77,p. 83).
In itself the dispute is not a pleading. It is during the proceedings that it is legally defined.
2.8. Serbia and Montenegro asserts that its intention in the present case, which it wished to
refer to the Court, was to give the Courtjurisdiction.
However, by the very nature of the optional clause embodied in Article 36, paragraph 2, of
the Statute, a State cannot file a declaration only to become an applicant. As the Court stressed in
the case concerning the Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria), PrelirninaryObjections,a State
"in adhering to the jurisdiction of the Court in accordance with Micle 36,
paragraph 2, acceptsjurisdiction in its relations with Statespreviously having adhered
to that clause. At the same time, it makes a standing offer to the other States party
17
to the Statute which have not yet deposited a declaration of acceptance."
(I.C.J.Reports 1998,p. 300,para. 45.) It was this which led Serbia and Montenegro to exclude disputes arising before the date of
signature of the declaration.
If the Federal Republic olfYugoslavia was trying to square the circle, it did not succeed.
111.ARTICLE IX OFTHE GENOCIDE CONVENTION
3.1. Mr. President, Mem.bersof the Court, just a brief word now on the non-applicability of
Article IX of the Genocide C:onvention. First of all, Serbia and Montenegro seems to have
abandoned the eleventh submission in its Memorial concerningacts subsequent to 10June 1999. It
has not said a word on the non-admissibility of that submission alleged by Portugal, among other
Respondents, and has expressly revoked its second theory of the dispute, which relied on those
events subsequent to 10June.
3.2. On thetheme of the imaginary genocide,Profes,jorBrownlie repeatedly stressed that the
purpose of the air strikes was to force acceptance of the demands of the Contact Group and to
intimidate Yugoslavia and its nationals into accepting the demands made during the Rambouillet
talks. He said as much in paragraphs 20, 21 and 23 of his statement (CR 2004114,pp. 33-34).
1wouldjust like toquote two passages:
"these tactics, and these weapons, were not used in a ground war, they were used in a
bombing campaign with the stated purpose of intiniidating the people of Yugoslavia
and its government, as a group, as a national unit" (para. 20, p. 33).
"The position is that the group of NATO States using the threat of force, and,
ultimately, an aerial bornbardment of targets throughout Serbia and Montenegro, had
the objective of intimidating Yugoslavia and its nationals into accepting the demands
made during the Rambouillet talks." (Para. 23, p. 34.)
3.3. Mr. President, Mernbers of the Court, at this stage,ill not discuss the facts. 1will
simplyaddress the allegations of Serbia andMontenegro.
The intention tointimidate is not the same as the intention to destroy. On the contrary, to
intimidate someone into doing something,that someone must first exist.
3.4. There is no link between the allegations madeby Serbia and Montenegro and Article IX
of the Genocide Convention. IV. THEMONETARG YOLD RULE
18 4.1. Portugal has invoked the Monetary Goldrule in relation to NATO, stressing that there
were indeed otherbases prior to that for the Court not to rule on the merits of the case. Let mejust
make a fewpoints about the statement of Mr. Vladimir Djerii.
4.2. The fundamental argument of Serbia andMontenegro is that
"both the application of this principle (theetary Goldprinciple) andthe reasoning
behind it have been linked exclusively to States.In its jurisprudence, the Court has
consistently referred to States. There is not even a hint that the principle could be
appliedto other subjects of international law." (CR 2004/14, p.50, para. 13.)
Let me ask a question. In the current state of international law, can an international
organizationbe subject to thejurisdiction of the Court without consenting to it? Ifhitherto we have
only been speakingof the consent of States, is this not because the question has hitherto only arisen
in relation to States?
4.3. Serbia and Montenegro invokes Article 5 of the North Atlantic Treaty, asserting that, in
military actions, it is the parties which act, individually and in concert with the other parties
(CR 2004/14, p. 52, para. 22). Such military activities thus would not be acts attributable to the
organization.
This argument - as 1might cal1it- which echoesGeneral de Gaulle's standpoint in 1966,
does not take into account NATO's long development. A reading of the 1949Treaty,
independently of subsequent developments shows it was inconceivable that the Council would
delegate the initiative for military operations to a SecretaryGeneral who, moreover, did not even
exist at the beginning. The Council itself was simply an organ for dealing with questions relating
to the application of the Treaîy. NATO started out as simply an alliance, which later became an
international organization.
As Professor Pelletsaid, in a passage quoted by Portugal in the first round of oral argument,
"the institutionalisation [ofNATO] was empirical and gradual".
It was indeed NATO, as such, which initiated the "Allied Force" operation, under the orders
of the Secretary General and the cornrnand ofthe "SACEUR. Moreover, Serbia and Montenegro
has acknowledged this. In paragraph 1.19 of the Memorial,entitled "Facts related to issue of the
imputability", it is the military control by political "leaders" (which one-? 1 wonder) that it
19 invokes. And inparagraph 2.8, what it alleges is that theNATO organs - and 1stress, the NATOorgans - take their decisions by consensus and that each military plan in which a member State
participates must be approved by that State. It concludes: "Whereas NATO acts are under the
political and military guidance and control of the Respondents; its acts(i.e., the acts of NATO) are
imputable to the Respondents."' (Para. 2.8.1.1.5.)
In the Memorial, what Serbia and Montenegropleads is the responsibility of member States
through the acts of an international organization.
It seems to have changetl its position here too. But it was indeed NATO which entered into
an agreementwith the Federal Republic of Yugoslaviaconc:erningthe Kosovo verification mission.
4.4. The fact that it is the States themselves that freely make their armed forces available to
NATO is of no consequence. 'Thesame happens with theIJnited Nations and nobody questions the
fact that theresponsibility for peacekeeping operations lies with that Organization.
4.5. With respect to the authority to approve the choice of targets, 1will not address any
points of fact at this stage. would simply observe that itis an authority exercised by States, when
they do so, within the NATO aagans.
4.6. Serbia and Mantenegr0 quoted a passage from the report by the then
Professor Rosalyn Higgins to the Institut de droit international with which Portugal totally agrees.
However, while there is no nom stipulating that member States "bear no legal liability to third
parties for the non-fulfilment by international organizations of their obligations to third parties",
that means, at least, that they are not in principle liable by virtue of the acts of international
organizations.
The resolution of the Institut de droit international adopted in Lisbon in 1995 provides for
exceptions, in particular in cases where the organizatiori has acted as an "agent" of the State,
whether in law or in fact (Arî:.5 (c); see also Annuaire, Vol. 66, 1, 1995, p. 413). Here one can
diaw an analogy with Article 17 of the draft articles on.the international responsibility of States
adoptedby the International Law Commissionin 2001.
This notwithstanding, a relationship of "agency" on the part of an international organization
cannot be established with al1its member States. Leadership and control by al1member States are
inherent in the very nature of an international organization. Moreover, even when there is a relationship of agency, or leadership and control by one or
more of the members, the organization does not cease to be responsible, except when there are
circumstancesprecluding wrongfulness such asforce majeure or necessity. This is aptly stressed
in paragraph 9 of the Intemational Law Commission's commentary to draft Article 17 on State
responsibility.
4.7. in any event, and from the perspective of the Monetary Gold principle, there should
always be a preliminary ruling on the responsibility of the internationalorganization, in the present
case NATO, or at least on the question whether the acts are attributable thereto as a preliminary
indication of the possible responsibility of member States without NATO having consented to
jurisdiction.
V. CONCLUDIN POINTS
5.1. My conclusion will be very brief. Portugal has not sought to rehearse al1the aspects
considered in its written pleadings and during the first round of oral argument. As far as the oral
argument of Serbia and Montenegro is concemed, it has focussed on the points it considers most
important or which are related to arguments it has set out. The Portuguese Republic states that it
wishes to benefit from the further arguments of the other Respondents in the cases parallel to this
one.
5.2. The Court will probably have realized that the procedural conduct of Serbia and
Montenegro has been determined by other cases to which Portugal is not a party. Procedural
choices that are made cannot but have consequences.
5.3T.o surnmarizethe Portugueseposition in general:
First, as a result of the absenceof any dispute as tojurisdiction, the absence of legal interest
on the part of the Applicant and the non-pursuanceof the purpose of the proceedings, the Court is
not called upon to give aecision on the claimsof Serbia and Montenegro; in the alternative,
22 Secondly:
(a) (i) Serbia and Montenegro has no locusstandi before the Court, nor is the Court open to it,
and Serbia and Montenegro cannot,by its renunciation, invoke Article 36,paragraph 2, of
the Statute;
in the alternative,
(ii) the Court has no junsdiction on the basis of Article 36, paragraph 2, of the Statute,
because of the temporal reservation in the Yugoslav declaration;
(b) (i) Serbia and Monteneiyo cannot, by its renunciai.ion,invoke Article iX of the Genocide
Convention;
in the alternative,
(ii) the Court has nojuirisdiction, ratione materiae and ratione personae, on the basis of
Article LX of the GeniocideConvention;
(c) the Court has nojurisdiction or the submissionsare iriadmissible,because NATO did not give
its consent tojurisdiction;
(d) the submission concerning events subsequentto 10June 1999,if not abandoned by Serbiaand
Montenegro, is not admissible.
Thank you, Mr. President, Members of the Court, for your attention; 1apologize for having
taken up so much time. Mr. I'resident, 1 would now ask you to give the floor to the Agent of the
PortugueseRepublic for his presentation of Portugal's final submissions. Thank you.
Le PRESIDENT : Merlci, Monsieur Teles. Je doilne maintenant la parole a M.Tavares,
agent duPortugal.
M. TAVARES :Merci, Monsieur le président.Mo~isieurle président,Madame etMessieurs
de la Cour, pour les motifs indiqués dans les exposés oraux présentés au nodmu Portugal au cours
de ces audiences et dans les exceptions préliminairesdujuillet 2000, voici les conclusions finales
de la République portugaise : Plaiseà la Cour dire et juger qu:premièrement, il ne lui est pas demandé de se prononcer
sur les prétentions de laSerbie et Monténégro;à titre subsidiaire, deuxièmement, la Cour n'est
compétente:a) ni en vertu du paragraphe 2 de l'article 36,du Statut; b) ni en vertu de l'IXticle
de la convention sur le génocide; et les demandes sont irrecevables.
22 Monsieur le président,Madame et Messieurs de la Cour, au nom de mon gouvernementje
tiensàvous remercier de votre patience etj'adresse mes complimentsà la délégation dla Serbie
et Monténégro et aux délégations des autres Etats défendeurs. Merci beaucoup, Monsielu er
président.
Le PRESIDENT :Merci, Monsieur Tavares. La Cour prend acte des conclusionsfinales que
vous venez de lire au nom du Portugal. Cet exposé met fin au second tour de plaidoiries du
Portugaletà la séancede ce matin.
La Cour reprendra ses audiences cet après-midà15heures, pour entendre le secondtour de
plaidoiries du Royaume-Uni, de l'Allemagne, de la France et del'Italie. Merci.
La séanceest levée.
La séance estlevéea 12 h 35.
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