CR 2006/44
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2006
Public sitting
held on Monday 8 May 2006, at 3 p.m., at the Peace Palace,
President Higgins presiding,
in the case concerning the Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)
________________
VERBATIM RECORD
________________
ANNÉE 2006
Audience publique
tenue le lundi 8 mai 2006, à 15 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 (Bosnie-Herzégovine c. Serbie-et-Monténégro)
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presieitgins
Vice-Presi-Kntasawneh
Shi Judges
Koroma
Parra-Aranguren
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda
Bennouna
Skotnikov
Judges ad hoc Mahiou
Kre ća
Couvgisrar
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : Mme Higgins,président
Al-K.vsce-prh,ident
ShiMM.
Koroma
Parra-Aranguren
Owada
Simma
Tomka
Abraham
Keith
Sepúlveda
Bennouna
Sjoteiskov,
MaMhou.,
Kre ća, juges ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of Bosnia and Herzegovina is represented by:
Mr. Sakib Softić,
as Agent;
Mr. Phon van den Biesen, Attorney at Law, Amsterdam,
as Deputy Agent;
Mr.Alain Pellet, Professor at the University of ParisX-Nanterre, Member and former Chairman of
the International Law Commission of the United Nations,
Mr. Thomas M. Franck, Professor of Law Emeritus, New York University School of Law,
Ms Brigitte Stern, Professor at the University of Paris I,
Mr. Luigi Condorelli, Professor at the Facultyof Law of the University of Florence,
Ms Magda Karagiannakis, B.Ec, LL.B, LL.M.,Barrister at Law, Melbourne, Australia,
Ms Joanna Korner, Q.C.,Barrister at Law, London,
Ms Laura Dauban, LL.B (Hons),
Mr. Antoine Ollivier, Temporary Lecturer and Research Assistant, University of Paris X-Nanterre,
as Counsel and Advocates;
Mr. Morten Torkildsen, BSc, MSc, Tork ildsen Granskin og Rådgivning, Norway,
as Expert Counsel and Advocate;
H.E. Mr. Fuad Šabeta, Ambassadorof Bosnia and Herzegovina to the Kingdom of the Netherlands,
Mr. Wim Muller, LL.M, M.A.,
Mr. Mauro Barelli, LL.M (University of Bristol),
Mr. Ermin Sarajlija, LL.M,
Mr. Amir Bajrić, LL.M,
Ms Amra Mehmedić, LL.M, - 5 -
Le Gouvernement de la Bosnie-Herzégovine est représenté par :
M. Sakib Softić,
coagment;
M. Phon van den Biesen, avocat, Amsterdam,
comme agent adjoint;
M. Alain Pellet, professeur à l’Université de ParisX-Nanterre, membre et ancien président de la
Commission du droit international des Nations Unies,
M. Thomas M. Franck, professeur émérite à lafaculté de droit de l’Université de New York,
Mme Brigitte Stern, professeur à l’Université de Paris I,
M. Luigi Condorelli, professeur à la fact de droit de l’Université de Florence,
Mme Magda Karagiannakis, B.Ec., LL.B., LL.M.,Barrister at Law, Melbourne (Australie),
Mme Joanna Korner, Q.C.,Barrister at Law, Londres,
Mme Laura Dauban, LL.B. (Hons),
M. Antoine Ollivier, attaché temporaire d’ense ignement et de recher che à l’Université de
Paris X-Nanterre,
comme conseils et avocats;
M. Morten Torkildsen, BSc., MSc., Tork ildsen Granskin og Rådgivning, Norvège,
comme conseil-expert et avocat;
S. Exc. M. Fuad Šabeta, ambassadeur de Bosn ie-Herzégovine auprès duRoyaume des Pays-Bas,
M. Wim Muller, LL.M., M.A.,
M. Mauro Barelli, LL.M. (Université de Bristol),
M. Ermin Sarajlija, LL.M.,
M. Amir Bajrić, LL.M.,
Mme Amra Mehmedić, LL.M., - 6 -
Ms Isabelle Moulier, Research Student in International Law, University of Paris I,
Mr. Paolo Palchetti, Associate Professor at the University of Macerata (Italy),
as Counsel.
The Government of Serbia and Montenegro is represented by:
Mr. Radoslav Stojanović, S.J.D., Head of the Law Council of the Ministry of Foreign Affairs of
Serbia and Montenegro, Professor at the Belgrade University School of Law,
as Agent;
Mr. Saša Obradović, First Counsellor of the Embassy of Serbia and Montenegro in the Kingdom of
the Netherlands,
Mr. Vladimir Cvetković, Second Secretary of the Embassy of Serbia and Montenegro in the
Kingdom of the Netherlands,
as Co-Agents;
Mr.Tibor Varady, S.J.D. (Harvard), Professor of Law at the Central European University,
Budapest and Emory University, Atlanta,
Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Member of the International Law Commission, member of
the English Bar, Distinguished Fellow of the All Souls College, Oxford,
Mr. Xavier de Roux, Master in law, avocat à la cour, Paris,
Ms Nataša Fauveau-Ivanović, avocat à la cour, Paris and member of the Council of the
International Criminal Bar,
Mr. Andreas Zimmermann, LL.M. (Harvard), Professor of Law at the University of Kiel, Director
of the Walther-Schücking Institute,
Mr. Vladimir Djerić, LL.M. (Michigan), Attorney at Law, Mikijelj, Jankovi ć & Bogdanovi ć,
Belgrade, and President of the International Law Association of Serbia and Montenegro,
Mr. Igor Olujić, Attorney at Law, Belgrade,
as Counsel and Advocates;
Ms Sanja Djajić, S.J.D., Associate Professor at the Novi Sad University School of Law,
Ms Ivana Mroz, LL.M. (Indianapolis),
Mr. Svetislav Rabrenović, Expert-associate at the Office of th e Prosecutor for War Crimes of the
Republic of Serbia, - 7 -
Mme Isabelle Moulier, doctorante en droit international à l’Université de Paris I,
M. Paolo Palchetti, professeur associé à l’Université de Macerata (Italie),
cocomnseils.
Le Gouvernement de la Serbie-et-Monténégro est représenté par :
M. Radoslav Stojanović, S.J.D., chef du conseil juridique du ministère des affaires étrangères de la
Serbie-et-Monténégro, professeur à la faculté de droit de l’Université de Belgrade,
coagment;
M. Saša Obradovi ć, premier conseiller à l’ambassade de Serbie-et-Monténégro au Royaume des
Pays-Bas,
M. Vladimir Cvetković, deuxième secrétaire à l’ambassade de Serbie-et-Monténégro au Royaume
des Pays-Bas,
comme coagents;
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,
M. Ian Brownlie, C.B.E., Q.C., F.B.A., membre de la Commission du droit international, membre
du barreau d’Angleterre, Distinguished Fellow au All Souls College, Oxford,
M. Xavier de Roux, maîtrise de droit, avocat à la cour, Paris,
Mme Nataša Fauveau-Ivanovi ć, avocat à la cour, Paris, et membre du conseil du barreau pénal
international,
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-et-Monténégro,
M. Igor Olujić, avocat, Belgrade,
comme conseils et avocats;
Mme Sanja Djajić, S.J.D, professeur associé à la faculté de droit de l’Université de Novi Sad,
Mme Ivana Mroz, LL.M. (Indianapolis),
M. Svetislav Rabrenovi ć, expert-associé au bureau du procureur pour les crimes de guerre de la
République de Serbie, - 8 -
Mr. Aleksandar Djurdjić, LL.M., First Secretary at the Ministry of Foreign Affairs of Serbia and
Montenegro,
Mr. Miloš Jastrebić, Second Secretary at the Ministry of Foreign Affairs of Serbia and Montenegro,
Mr. Christian J. Tams, LL.M. PhD. (Cambridge), Walther-Schücking Institute, University of Kiel,
Ms Dina Dobrkovic, LL.B.,
as Assistants. - 9 -
M. Aleksandar Djurdji ć, LL.M., premier secrétaire au ministère des affaires étrangères de la
Serbie-et-Monténégro,
M. Miloš Jastrebi ć, deuxième secrétaire au ministère des affaires étrangères de la
Serbie-et-Monténégro,
M. Christian J. Tams, LL.M., PhD. (Cambridge), Institut Walther-Schücking, Université de Kiel,
Mme Dina Dobrkovic, LL.B.,
comme assistants. - 10 -
The PRESIDENT: Please be seated. Judge Ranjeva, for a reason explained to me, is unable
to sit this afternoon. Professor Varady, you have the floor.
VMAr. ADY:
1. INTRODUCTION AND ISSUES OF U NITED N ATIONS MEMBERSHIP
OF S ERBIA AND M ONTENEGRO
A. Introduction
1.1. Madam President, distinguished Members of the Court. This afternoon, and for a
considerable part of the morning session tomorrow, we would like to address issues of access and
jurisdiction.
1.2. Madam President, addressing the same is sues in their second round presentations, and
endeavouring to substitute strength to their arguments, the Applicant tries to point out that it would
be somehow inopportune to decline jurisdiction. The argument was made that what is essential is:
“[b]ien sûr que justice soit faite, ce qui ne seait assurément le cas si vous reveniez sur votre
1
compétence” . It has also been said that a judgment on the merits should be rendered because
2
“[t]his is the time to get history right”nd that “[i]f the principal role of the law is to teach, then
the law must not only teach a few individuals . . . it must also teach the citizenry . . .”as also
submitted that a “[j]udgment for genocide would accelerate democratization of the society and help
abandon the ideology of conflicting with neighbours...” . In his concluding sentences in the
morning of 21 April, Professor Franck pleaded to the Court stating: “Permit me, if you will allow
me to be so bold, to encourag e you not to loose yourselves in the technicalities, to remind you just
once more of the central matter: this is a case about genocide.”
1.3. Let me first say that the political consider ations which the Applicant tries to bring to the
fore may very well justify opposite conclusions. It is certainly true that the fact that genocide was
1
CR 2006/37, p. 49, para. 38 (Pellet).
2CR 2006/35, p. 53, para. 13 (Franck).
3
Ibid., para. 15 (Franck).
4CR 2006/30 p. 14, para. 13 (Softić).
5CR 2006/35, p. 54, para. 16 (Franck). - 11 -
alleged invites a special responsiveness. But does this mean that less attention should be devoted
to the foundation of the proceedings, or should the gravity of the allegations rather invite more
procedural scrutiny? Are the fundamental precond itions to proceedings determined by the Charter
of the United Nations and the Statute mere techni calities? As far as de mocratization and peace
with neighbours are concerned, Professor Stojanović has pointed out in his introductory speech that
this is far from being a certain or even likely outcome of a judgment on genocide. As far as the
teaching function is concerned, let me say that fo r a decision to make history and to educate, it
obviously has to stand on procedurally unimpeachable rather than on questionable grounds. An
ultra vires decision cannot teach legal lessons.
1.4. Madam President, what decision would be more opportune and politically more helpful
is not a simple and obvious matter. Nothing in th is case is simple and obvious. But the point is
that we are facing issues of access and jurisdiction, and these have to be settled on grounds of legal
rather than political considerations. Instead of ar guing whether the issue of jurisdiction is more or
less important when we are dealing with the alle gation of genocide, we should concentrate on the
question whether this honoured Court does or does not have jurisdiction. The process of
dissolution of the FRY yielded human sufferings and crimes, and the same process yielded
unprecedented structural and institutional quandari es. Many questions are still unanswered.
Whether this case belongs to the jurisdiction of this Court is part of the truth which needs to be
established.
1.5. Madam President, our arguments presente d during the first round of pleadings were
questioned and contested by the Applicant. We trust that we have answers to the questions, and we
have arguments to rebut the contestations. We shall respectfully present our answers and
arguments.
1.6. This afternoon, I would like first to c ontinue this presentation by addressing the issue
whether the Respondent was or was not a Member of the United Nations between 1992 and 2000.
This issue is a critically important foothold of co nclusions in one or the other direction regarding
the question whether the FRY was or was not a party to the Statute in the relevant period of time,
and whether the FRY remained or became bound by Ar ticle IX of the Genocide Convention. Our
second speaker this afternoon will be Professor Zimmermann who will address the issue of good - 12 -
faith. Professor Zimmermann will also respond to the question raised by Judge Tomka but this will
be tomorrow. After ProfessorZimmermann, I would like to conclude our presentations this
afternoon endeavouring to demonstrate that an investigation of access and jurisdiction is not
impeded by res judicata considerations. Tomorrow morning, Mr. Djeric will demonstrate that the
Respondent did not have access to the Court at the relevant moment of time, and
ProfessorZimmermann will demonstrate that this C ourt has no jurisdiction in this case. These
presentations will be followed by my concludi ng remarks. With your permission, Madam
President, I will now continue with issues of United Nations membership.
B. The Respondent was not a Member of the United Nations
before 1 November 2000
1. Arguments for continuity rehashed
1.7. Addressing issues of United Nations memb ership in the period between 1992 and 2000,
I have to confess that we believed that this i ssue was settled once and for all. During the past
several years the position of the FRY was clarified. The position taken is finally unequivocal. The
FRY was not a Member of the United Nations since it came into being on 27 April 1992, and until
1 November 2000 when it became accepted as a new Member. This position was taken by the
Court in 2004, and the same position was taken by the General Assembly of the United Nations, by
the Security Council, by the Secretary-General of the United Nations ⎯ and also by the Applicant
itself.
1.8. It is true, of course, that the Respondent has also made endeavours to open issues which
appeared to be settled. But this was not a result of a legal gambit. This followed after a historic
change on 5 October 2000 which repr esented more than a simple ch ange of government. At that
juncture, after an appalling decade, our country had to reconsider basic premises, including its
relationship with the international community . Our position towards the United Nations and
towards treaties was also rethought and revis ited, and we opened issues of United Nations
membership, access to the Court and jurisdiction, in the light of new clarifications which led to a
widely shared view. The new Government of the FRY established in October 2000 never changed
its position, never adapted its pos ition towards different circumstances or different audiences. The
Applicant, however, is taking us back to the argum ents which were advanced in vain by the former - 13 -
Government of the FRY ⎯ and which the Applicant is still opposi ng outside this case. The circle
is full.
1.9. In her second round speech of 24 April 2006, Professor Stern tries to take us back to the
stage where uncertainties and legal difficulties obtained. One obvious way towards this purpose is
reliance on the arguments advanced by the former Government of Yugoslavia which insisted on
continuity. In a situation in which uncertainties and controversies did exist, the main points on
which the former Government of the FRY trie d to rely were some doubts as to whether the
designation “Yugoslavia” refers to the former Yugoslavia or to the FRY, and also reliance on some
belated or less than clear statements made by United Nations authorities and officials, and
failure ⎯ or alleged failure ⎯ of strict and timely implementation of some specific consequences
of the positions taken. These points were raised by the former Government of the FRY as an
argument purporting to demonstrate that continuity was somehow approved.
1.10. Professor Stern is not only relying on th e substance of these arguments, she is citing
them explicitly and extensively. She says, referri ng to the counsel of the former Government: “Il
apparaît opportun de commencer cette analyse du statut de RFY à l’ONU en laissant la parole aux
conseils de la Serbie-et-Monténégro, qui, mieux que moi, semblent détruire la thèse qu’ils
6
présentent aujourd’hui.”
1.11. After citing at some length the arguments of the former Government of the FRY,
7
Professor Stern concludes: “Voilà donc des ar guments fort pertinents et fort utiles.” These
arguments may be “fort utiles” from the point of view of the position of the Applicant, but they are
not valid. Of course, I cannot, and must not restrict myself to saying that these arguments are
wrong because these are the arguments of the Miloševi ć Government. I shall demonstrate that
these arguments are untenable, because they are lacking substance and foundation.
1.12. Let me mention, Madam President, that Professor Stojanovi ć, myself, and other
members of the present delegation of Serbia and Montenegro had already faced these arguments at
6
CR 2006/37, p. 13, para. 10 (Stern).
7
CR 2006/37, p. 14, para. 10 (Stern). - 14 -
the time when the opposition in Serbia contested the strong conviction and stance of the former
Government of the FRY regarding continuity. The circle is really full.
1.1 Arguments endeavouring to prove continuity by reliance on belated and inconsistent (or
seemingly inconsistent) actions of United Nations authorities and officials
1.13. Madam President, after the dissoluti on of the former Yugoslavia, Bosnia and
Herzegovina opted to seek United Nations member ship by applying as a new State, and it was
8
admitted on 22 May 1992 . The FRY decided not to take this path. It did not apply for
membership, but claimed instead continuity. This was rejected, but the FRY tried to argue that
some actions of the United Nations nevertheless confirmed continuity.
The issue of sanctions
1.14. One of the arguments raised at that ti me by the former Government of the FRY was
that the sanctions imposed on the FRY indirectly prove that the FRY was a Member of the United
Nations, since sanctions can only be imposed on Me mbers. This is precisely the argument now
raised by Professor Stern. She says: “[L]a Ré publique fédérale de Yougoslavie a également fait
l’objet de sanctions en vertu du chapitre VII, dur ant toute la période du nettoyage ethnique et qu’il
n’a jamais été soutenu que ces sanctions s’adressaient à un Etat non membre de l’ONU.” 9
1.15. Madam President, there is no language in the Charter suggesting that the measures
contemplated in Chapter VII could only be invoked against Members. Accepting the submission of
the Applicant would also mean that use of arme d force under Chapter VII could also be directed
only against a Member ⎯ and never against a non-Member for the protection of the Member. This
is not what Chapter VII says, this is not what any other provision of the Charter says, and this is not
what logic says. What makes things even more obvious, Article2(6) of the Charter makes it
explicit that the Organization may take steps to en sure that States that are not Members will act in
accordance with the Principles of the Charter “so far as may be n ecessary for the maintenance of
international peace and security”.
8
United Nations doc. A/RES/46/237 of 22 May 1992.
9
CR 2006/37, p. 15, para. 11 (Stern). - 15 -
1.16. It is important to add, furthermore, th at the text of the resolution on sanctions imposed
10
on the FRY under Chapter VII on 30 May 1992 gives no support whatsoev er, not even implicit
support, to the contentions that the contemplated san ctions were sanctions against a Member State.
To the contrary, the resolution actually addressed the issue whether the FRY did or did not
continue membership status of the former Yugoslavia, and answered in the negative. This is just a
month after the claim for continuity was presented, and this is before the claim reached the agenda,
yet a preliminary position was already taken. It is stated in the preamble of United Nations
Security Council resolution 757: “Noting that the claim of the Federal Republic of Yugoslavia
(Serbia and Montenegro) to continue automatically the membership of the former Socialist Federal
Republic of Yugoslavia in the United Nations has not generally been accepted”. It is clear, Madam
President, that the sanctions imposed on Yugoslavia can in no way demonstrate, or even imply, that
the FRY was a Member of the United Nations by wa y of continuity, or in any other way between
1992 and 2000.
Appearance before the Security Council
1.17. Professor Stern further argues that the relations between the FRY and the Security
Council were not interrupted, and during the firs t three years the FRY was invited 13 times,
“autorisant le représentant de la RFY non seulement à assister aux réunions formelles, mais même
11
à y prendre la parole” . Sure. But this is in no way evidence of membership or even sui generis
membership, as this is suggested by Professor St ern. Article 32 of the United Nations Charter
makes it crystal clear and explicit that non-Member s of the United Nations shall be invited to
participate in a discussion (without a vote, of course) “if it is a party to a dispute under
consideration by the Security Council”. It is obvious that the FRY was a party to a dispute under
consideration by the Security Council in the period referred to by the Applicant, thus it could have
been invited in that capacity.
1.18. Furthermore, it is important to note that the Security Council was consistently mindful
of the fact that the representative of the FRY cannot be treated as a representative of a Member
1Security Council resolution 757 (1992) of 30 May 1992.
1CR 2006/37, p. 22, para. 29 (Stern). - 16 -
State. In practice, at the beginning of Security Council meetings, the President read a list of
invitees, stating the name of the representative a nd the name of the country it represents. But an
exception was made with regard to the person from the FRY, whose name was read without stating
any country. To take an example from one of th e 13 instances referred to by the Applicant, the
record shows that at the meeting of 19 April 1993, the list of invitees included, among others,
Mr.Sacirbey (Bosnia and Herzegovina)” and, af ter naming all invitees and their countries, the
President stated: “I have also received a request dated 19 April 1993 from Ambassador
DragomirDjokic to address the Council. With th e consent of the Council, I would propose to
invite him to address the Council in the course of its discussion of the item before it.” 12 This
treatment can hardly serve as evidence of the membership, or sui generis membership of the FRY,
the country of Ambassador Djokic.
The initial period
1.19. Another point where the Applicant borro ws the arguments of the former Government
of the FRY–– which arguments remained unsuccess ful–– is the issue of treatment of the FRY
during the first months since it came into being. In the words of Professor Stern:
“Sans doute ne faut-il pas négliger ce fait que pendant les six premiers mois de
son existence ⎯ et l’on dit souvent que les premiers mois de la vie sont déterminants
pour l’avenir ⎯ la République fédérale de Yougoslavie a été un Membre incontesté de
13
l’ONU exerçant toutes les prérogatives d’un Etat Membre de l’ONU.”
1.20. This is the same allegation whic h was repeated by Mr.Vladislav Jovanovi ć, Foreign
Minister in the former Government of the FRY, head of the diplomacy which tried to prove that the
1Provisional verbatim record of the 3201st Meeting, Security Council, United Nations doc. S/PV.3201,
19 April 1993, p. 3.
13
CR 2006/37, p. 15, para.11 (Stern). - 17 -
FRY did, indeed, continue the personality of the former Yugoslavia and, thus, remained a Member
14
of the United Nations .
1.21. Madam President, the allegation of Professor Stern and of Minister Jovanović is simply
not correct. First, it is not supported by any eviden ce and it is not true that the FRY exercised full
membership rights in this period. Furthermore, th e truth is that when the FRY came into being it
submitted a claim. It claimed continuity with the former Yugoslavia, and on this ground, it claimed
membership in the United Nations, membership in other international organizations, and party
position in treaties. It is not true, however, that this claim was accepted ⎯ tacitly or otherwise ⎯
for five or six months, or for any time. What is true is that the competent organs of the United
Nations ⎯ the Security Council and the General Assembly ⎯ took a position on this demand after
about five months, when they rejected the claim of the FRY.
1.22. There is no rule in the Charter or anywhe re else, and there is no rule of logic either
which would say or imply that if a State is claiming that it is a Member of the United Nations, then
it is a Member of the United Nations until the clai m was examined and rejected. It is true ⎯ and
probably understandable–– that before a position was taken, various United Nations officials
treated the representatives of the FRY and the doc uments submitted by representatives of the FRY
in a hesitant and somewhat inconsistent manner. But this certainly cannot make a State a Member
of the United Nations.
1.23. Let me add, Madam President, that the dilemmas and inconsistencies creating a
sui generis position were actually recognized by the Ge neral Assembly. The General Assembly
moved to qualify this situation, and this qualifi cation was mindful of the fact that the FRY was not
a Member. Thus, the term used is not “membership”, not even “ de facto membership”, but
“de facto working status”. In paragraph19 of reso lution48/88 of 29December 1993 the General
14Minister Jovanović published his arguments in scholarly papers as well. In 1998 he writes inFordham
International Law Journal:
“Between April 27, 1992, when the FRY was constituted on the part of the SFRY which remained
after the unilateral secession of the four feunits, and September 22, 1992, when the GA adopted
Resolution 47/1, the FRY exercised all the rights of a member State and actively participated in the work
of the United Nations, including regular voting. Tis borne out by the fact that the FRY was tacitly
accepted as a member State continuing the internaonal legal and political pers onality of the former
SFRY.” ⎯ Vladislav Jovanovic, “The Status of the Federal Republic of Yugoslavia in the United
Nations”, 21 Fordham International Law Journal 1719 (1998), p. 1724. - 18 -
Assembly: “Reaffirms its resolution 47/1 of 22 September 1992, and urges Member States and the
Secretariat in fulfilling the spirit of that resolution, to end the de facto working status of Serbia and
15
Montenegro.”
Circulation of documents
1.24. Madam President, endeavouring to come up with some appearance of continuity, the
Applicant raises the issue of circulation of documents. It refers to the letter of the
Secretary-General dated 27 December 2001, and cites the following passage: “[d]u 27 avril 1992
au 1 novembre 2000, le Gouvernement de la République fédérale de Yougoslavie . . . s’est prévalu
du droit dont jouissait l’ex-Yougoslavie en ta nt qu’Etat Membre de faire distribuer des
communications comme documents officiels de l’Organisation” 1. Professor Stern treats this
document as a discovery, and asks: “Le défende ur soutient-il que ces documents n’ont jamais
17
existé?”
1.25. Well, we shall certainly not say that these documents, or the document referring to
them, do not exist. As a matter of fact, I alr eady cited the letter of the Secretary-General of
27 December 2001 in my concluding remarks in the first round 18. Moreover, we very much intend
to rely on this document, and we have included it in our judges’ folders. But we shall point out the
context of the quotation used by Professor Stern, and we shall also cite what comes immediately
after the quotation.
1.26. Professor Stern cites part of a sente nce from paragraph7 of the document which you
can see in your judges’ folders ⎯ it is tab. 1, and I am referring to page 3 : it is paragraph 7 there.
But this paragraph ⎯ just as the previous one ⎯ does not state conclusions of the
Secretary-General. Instead it restates the argument of the former Government of the FRY.
Paragraph 6, starting on page 2, summarizes the cl aim of the FRY for continuity, and paragraph 7,
15United Nations doc. A/RES/48/88 of 20 December 1993, para. 19.
16
Nations Unies, doc. A/56/767, lettre datée du 27 décembre 2001, adressée au président de l’Assemblée générale
par le Secrétaire général, 9 janvier 2002, par. 7. Cited in CR 2006/37, p. 21, para. 26 (Stern).
17CR 2006/37, p. 21, para. 26 (Stern).
18CR 2006/13, p. 32, para. 3.50 and footnote 14 (Varady). - 19 -
on page 3, starts with the following: “In furthera nce of its claim, the Government of the Federal
Republic of Yugoslavia performed a large number of acts . . .” These acts are those which included
circulation of official documents. What Professor Stern cites is just a recapitulation by the
Secretary-General of the steps taken by the FRY in furtherance of its claim.
1.27. What is even more important, the very same letter of the Secretary-General dated
27December2001 addressed to the President of the General Assembly made it crystal clear that
the proposition of continuity was not accepted, that the FRY only became a Member State of the
United Nations on 1November2000, and that the State the membership of which was not
terminated was the former Yugoslavia, not the FRY. Professor Stern quoted the closing part of the
last sentence of paragraph7. Paragraph8 ⎯ still on page 3 of tab 1 ⎯ starts with the following
sentences:
“In its resolution 55/12 of 1 November 2000, the General Assembly decided to
admit the Federal Republic of Yugoslavia to membership in the United Nations. That
decision necessarily and automatically te rminated the membership of the former
Yugoslavia in the United Nations.” (Emphasis added.)
1.28. Let me add, Madam President, that this document has several appendixes.
AppendixIII is a letter dated 19 November2001 from the Permanent Representatives of all five
successor States. You will find it on page 4 of tab 1. This letter was also signed by
Mr. Mirza Kušljugić, Permanent Representative of Bosnia a nd Herzegovina to the United Nations.
In this letter it is stated: “The State known as Socialist Federal Republic of Yugoslavia has ceased
to exist and was succeeded by five equal success or States, none of which continued its legal
20
personality.”
The issue of membership fees
1.29. This takes us to the issue of membership fees, since the letter of the Secretary-General
of 27December2001, deals with “Unpaid assessed contributions of the former Yugoslavia”.
Madam President, whenever the point was made that there were inconsistencies in the handling of
1See the Letter dated 27 December 2001 from the Secretary- General addressed to the President of the General
Assembly, United Nations doc. A/56/767, para. 8.
20
Letter dated 19 November 2001 from the Permanent Re presentatives of Bosnia and Herzegovina, Croatia,
Slovenia, the former Yugoslav Republic of Macedonia and Yugoslavia, addresse d to the Under-Secretary-General for
Management, United Nations doc. A/56/767, Appendix III, pp. 11-12. - 20 -
the dissolution of the former Yugoslavia the questio n of membership dues emerged as an example.
This issue was also raised by Professor Stern ⎯ again relying on arguments raised earlier by the
former Government of the FRY 21. For a considerable time the treatment of membership dues
marked the sui generis situation and showed difficulties stemming from the less than clear legal
characterizations. Today, however, after clarifications given by competent United Nations
authorities, we have gained a much better perspective in approaching this issue.
1.30. It is a fact that the United Nations Secretariat ⎯ consistent with listing “Yugoslavia” as
a Member ⎯ imposed membership dues on “Yugoslavia”. Although the dues were imposed on
“Yugoslavia”, rather than on the FRY, the FRY ⎯ in line with its endeavour to posit itself as the
continuator of the personality of the former Yugoslavia ⎯ had paid some of these membership
dues between 1992 and 2000.
1.31. Of course, the practice of the Secret ariat cannot bind political organs or Member
States, but the question of membership dues gave ri se to conflicting interpretations and perplexity.
This is the point where clarifi cations were very much needed ⎯ and this is the point where the
clarifications, although not timely, are, indeed, clear and explicit.
1.32. After the FRY was accepted as a Member of the United Nations, the Secretariat took
steps to clarify who “Yugoslavia” was, and who owed payments on behalf of “Yugoslavia”. It has
been made clear and unequivocal that these were membership dues of the former Yugoslavia. The
former Yugoslavia was the Member. The FRY did not have any liability of its own. It was only
invited in 2001 as one of the successor States to join in paying the debts of the predecessor together
with other successors.
1.33. Consistent with this concept and per ception, in 2001, the United Nations sought arrear
payments (the debt of “Yugoslavia”) from all successor States. This is logical, since if the former
Yugoslavia had debts, and if no country continue d its personality, then liabilities (just as assets)
have to be divided among all successors.
1.34. After the admission of the FRY to th e United Nations on 1 November 2000, all five
successor States formally adopted a joint positi on regarding membership dues of the former
2CR 2006/37, pp.23-26, paras. 32-40 (Stern). - 21 -
Yugoslavia. In a lette r dated 19November 2001 ⎯ which we already referred to, and you can
follow this in our judges’ folders, tab 1, on page 4 ⎯ the FRY, Bosnia and Herzegovina and other
successor States spelled out and elaborated their common position. In this letter it was stressed:
“The State known as the Socialist Federal Republic of Yugoslavia has ceased to
exist and was succeeded by five equal successor States, none of which continued its
legal personality. This fact was confirmed by rele vant Security Council and General
Assembly resolutions of 1992.” 22 (Emphasis added.)
1.35. We finally got to the point where am biguous concepts and form ulations were left
behind. Both the United Nations authorities and the Parties to this dispute spelled out a clear
position and joint perception. It has become clear and uncontested that:
⎯ no State continued the personality and membership rights of the former Yugoslavia; and
⎯ the entity which kept some sui generis position and residual membership rights in the United
Nations, and which was referred to as “Yugoslavi a”, was actually the former Yugoslavia, not
the FRY.
1.36. Let me add that the clear and unequivo cal position taken by all five successor States
was repeated. It was repeated, inter alia , in the letter dated 9 August 2005 which prompted
JudgeTomka to raise his question. In this letter, all successor States ⎯ Bosnia and Herzegovina
included ⎯ stated: “The Federal Republic of Yugosl avia that came into existence on 27April
1992 became a United Nations Member not earlier than 1 November 2000; the State is presently
known as Serbia and Montenegro.” 23
1.37. Trying to explain the obvious contra diction between its position during this oral
hearing and an emphatic position taken by the same State less than a year ago, counsel for the
Applicant explains that “ce n’est pas du tout une question de principe, c’est une modeste question
d’argent” 24.
22
See the letter dated 19 November 2001, from the Perm anent Representatives of Bosnia and Herzegovina,
Croatia, Slovenia, the former Yugoslav Republic of Mace donia and Yugoslavia, addresse d to Under-Secretary-General
for Management, United Nations doc. A/56/767, App. III.
23See the letter dated 9 August 2005 fro m the Permanent Representatives of the former Yugoslav Republic of
Macedonia and the Chargés d’affa ires a.i. of Bosnia and Herzegovina, Croa tia, Serbia and Montenegro, and Slovenia,
addressed to Under-Secretary-General for Management, United Nations doc. A/60/140, Ann. IV, pp. 17-19.
24
CR 2006/37, p. 24, para. 36 (Stern). - 22 -
1.38. Not a principle but a modest question of money. Let me say first that this is not exactly
in line with the good faith rhetoric advanced by th e Applicant. But apart from that, this is not
credible either. Had there been continuity, ha d the FRY really continued the personality of the
former Yugoslavia, then it would have been quite obvious to argue that it is the FRY alone who has
to pay the membership dues of “Yugoslavia” between 1992 and 2000, and Bosnia and Herzegovina
would owe no money. It is obvious, however, th at continuity was simply not contemplated any
more by anyone as an option.
1.39. The same position ⎯ which cannot be but a position of principle ⎯ was consistently
taken by Bosnia and Herzegovina ⎯ and not only when money was in question. To cite just one
25
example among many , we shall refer to another joint letter written by the successor States
including Bosnia and Herzegovina ⎯ this time without the FRY, since the letter was dated in 1999.
In this letter, Bosnia and Herzegovina protested against the notification of a declaration made by
the FRY under Article36(2) of the Statute, arguing that the FRY could not make a valid
declaration since it was not a Member of the United Nations, and was not a party to the Statute.
This time the context is not money but exactly the ability of the FRY to appear before this Court as
a party to the Statute. The letter states ⎯ and it is included in our judges’ folder, at tab 2, page 1:
“Our respective Governments would like to express our disagreement with the
content of the above-quoted notification. The notification can have no legal effect
whatsoever, because the Federal Republic of Yugoslavia (Serbia and Montenegro) is
not a State Member of the United Nations, nor is it a State party to the Statute of the
Court, that could make a valid declaration under Article 36, paragraph 2, of the Statute
of the Court.” 26
On behalf of Bosnia and Herzegovina this letter was signed by Ambassador Muhamed Ša ćirbej ⎯
who was at that time Agent of Bosnia and Herzegovina in this case.
25
Among many other examples of stat ements of Bosnia and Herzegovina emphasizing that the FRY did not
continue the personality of the former Yugoslavia, and was not a Member of the United Nations between 1992 and 2000,
see, e.g., United Nations docs: A/C.5/49/49 (8 D ecember 1994), A/49/853-S/1995/147 (17 February 1995), A/50/656 ⎯
S/1995/876 (19 October 1995), A/51/564 ⎯ S/1996/885 (1 April 1996), E.CN.4/1998/171 (22 April 1998), S/1999/120
(5 February 1999), S/1999/209 (26 February 1999), S/1999/639 (3 June 1999), A/54/L.62 (8 December 1999).
26
Letter dated 27 May 1999 from the Perman ent Representatives of Bosnia a nd Herzegovina, Croatia, Slovenia,
and the former Yugoslav of Macedonia to the United Nations addressed to the Secretary-General, United Nations
doc. A/53/992. - 23 -
1.2Parallels with the USSR and other countries, and the practice of the IMF and of the
World Bank
1.40. Madam President, I trust that it has alr eady been made sufficiently clear that there was
no continuity, the FRY was not a Member of th e United Nations between 1992 and 2000. Let me
address, nevertheless, very briefly, the argument based on alleged parallels between the dissolution
of the former Yugoslavia and the dissolution of the USSR and other countries.
1.41. Let me first say that these parallels ⎯ even if they were matching ⎯ certainly could
not prove continuity. They cannot possibly prove that the continuity claim of the FRY was
accepted, they could only indicate that the claim could have been accepted ⎯ although it was not.
1.42. But even this was not proven, because the parallels are not matching. Let us take as an
example only the case which occurred in the same time period. The claim of Russia regarding
continuity was accepted. Russia continued the pos ition of the USSR in the United Nations and in
the Security Council. But this happened after an unequivocal agreement of the successor States
was reached. In the 21December 1991 Alma At a Agreement, the successor States of the USSR
stated explicitly: “States of the Commonwealth support Russia’s continuance of the membership
of the Union of Soviet Socialist Republics in the United Nations including permanent membership
27
of the Security Council and other international organizations.” This makes an obvious difference.
In our case ⎯ unlike in the case of Russia ⎯ no other successor State supported the continuity
claim of the FRY.
1.43. The Applicant also submits ⎯ without any reference ⎯ that the IMF and the World
Bank considered all five States emerging from the dissolution of the former Yugoslavia as
continuator States 28. This point is more relevant because it contains an assertion as to how the FRY
was treated, rather than how it could have been tr eated. But the assertion is patently wrong. The
actual position taken by the World Ba nk and the IMF is the exact opposite ⎯ they did not accept
continuity. Let me quote the position taken by the IMF:
“[T]he Republic of Bosnia and Herzeg ovina, the Republic of Croatia and the
Federal Republic of Yugoslavia (Serbia/ Montenegro) are the successors to the assets
2Agreement concluded between former Soviet republics, reprinted United Nations doc. A/47/60-S/23329
(30 December 1991), Ann. V, p. 8; also in 31 ILM, p. 151.
28
CR 2006/37, p. 27, para. 45 (Stern). - 24 -
and liabilities of the SFRY... Each successor may forma lly succeed to the
membership of the SFRY in the IMF . . .” 29
The same position was taken by the World Bank as well 30. Positions taken by the IMF and the
World Bank do not support, but clearly contradict, the proposition of continuity.
1.3 Whose membership was not terminated?
1.44. Relying on the letter of the Legal Counsel of 29 September 1992, the Applicant states
that since resolution47/1 did not bring about e ither termination or suspension of membership
31
rights, the FRY remained a Member of the United Nations . This argument could, of course, only
stand on the assumption that the State the membership of which was neither terminated nor
suspended was the FRY ⎯ rather than the former Yugoslavia. We shall demonstrate that this is a
wrong assumption. The Applicant also argues that ⎯ although no suspension is mentioned in
resolution 47/1 ⎯ Article 5 of the Charter regulating su spension was nevertheless applied, and
32
since suspension is at issue, th e FRY must have been a Member . This is not only in evident
contradiction with the letter of the Legal Counsel of 29 September 1992 which says explicitly that
33
resolution 47/1 was not adopted pursuant to either Article5 or Article6 of the Charter , but it is
also a clear petitio principii. Instead of trying to prove that the FRY was a Member and was
suspended, the Applicant simply alleges that Ar ticle5 was applied towards the FRY, and this
allegation purports to be the proof that it was a Member.
1.45. These questions take us back to resolution 47/1 and to the letter of the Legal Counsel of
29 September 1992. Madam President, resolution 47/1 clearly does not recognize any rights or any
standing of the FRY. There is no sentence, or part of sentence, or hint, which would accord any
membership rights to the FRY. All dispositions c ontained in the resolution are rejections of the
claims of the FRY. The FRY submitted one singl e ground on which it claimed to be a Member of
29Ibidem; emphasis added.
30
See World Bank, Socialist Federal Republic of Yugos lavia Termination of Membership and Succession to
Membership, Executive Directors’ resolution No. 93-2 (25 February 1993); see also World Bank Press Release
No. 93/S43 (26 February 1993), and World Bank Press Release No. 2001/324/ECA.
31
CR 2006/37, p. 17, para. 17 (Stern).
32
Ibid,, p. 16, para. 14 (Stern).
33It is stated in the letter: “This explains the that resolution 47/1 was not adopted pursuant to Article 5
(suspension) nor under Article 6 (expulsion).” (United Nations doc. A/47/485.) - 25 -
the United Nations ⎯ this was the claim to continuity. Th e General Assembly rejected this claim
stating that the FRY “cannot automatically con tinue the membership of the former Socialist
Federal Republic of Yugoslavia in the United Na tions”. The General Assembly decided instead
that the FRY “should apply for membership in the United Nations” as other successor States of the
SFRY did . An explicit rejection just cannot indicate an implicit acceptance.
1.46. One could possibly say that it was not n ecessary to mention in resolution 47/1 that the
FRY shall not participate in the work of the General Assembly. This would have followed anyway
from the fact that the FRY’s claim to membership rights by way of continuity were rejected, and
that the FRY was instructed to apply for membersh ip if it wished to become a Member. But one
can certainly not infer any acceptance and right s from the mere fact that in addition to a general
rejection an unnecessary specific rejection was added to the text of the resolution. The General
Assembly added to the general denial of membership rights a specific denial of the right to
participate in its own work. This may have been ex abundanti cautela , or maybe because at the
given moment, before the General Assembly, partic ipation in the work of the General Assembly
was the most direct and most imminent issue.
1.47. Madam President, my aim is not to pr ove that all steps taken by United Nations
authorities and officials regarding the Yugoslav proble m were timely and logically coherent. It is
generally submitted that this was not the case, but this is not relevant either. The point is that some
belated or blurred steps taken just did not and could not make the FRY a Member of the United
Nations. The wording adopted by resolution 47/1 did contain a logical redundancy. It would have
been perfectly sufficient to stat e that the FRY did not continue the personality of the former
Yugoslavia and thus has to apply for membership if it wishes to be a Member. It was not necessary
to spell out specific consequences of this holding. But again, this redundancy may have blurred the
picture, but could not have made the FRY a Member of the United Nations.
1.48. Madam President, as far as references to “Yugoslavia” are concerned, the membership
of which, according to the Legal Counsel, was “neither terminated nor suspended”, these references
did not and could not have represented references to the FRY. This conclusion follows from logic,
3United Nations doc. A/RES/47/1 (22 September 1992). - 26 -
it follows from the wording of the letter of the Legal Counsel ⎯ and, most importantly, it follows
from explicit clarifications given by the competent United Nations authorities.
1.49. First of all, the Legal Counsel could not have referred to the membership of the FRY
when it said that the membership was neither terminated nor suspended. One just cannot terminate
or suspend or even contemplate termination or su spension of the membership of a State that just
presented a claim to membership by way of continuity ⎯ which claim was plainly denied.
1.50. It is the membership of the SFRY, the former Yugoslavia, which was formally neither
terminated nor suspended. This happened because the situation which resulted from the
disintegration did not fall into any of the patterns known by the Charter. It was clear that the FRY
had not automatically become a Member, but the question arose whether one could consider the
membership of an original Member as being extinguished without agreement of the successors, and
without reliance on procedures of expulsion or suspension.
1.51. The former Yugoslavia was an original Member, and neither the Security Council nor
the General Assembly took decisions which would have formally terminated this membership.
Explaining the emerging situation, Matthew Craven concludes that the former Yugoslavia was not
expelled or suspended, because there was no pr ovision in the Charter covering the emerging
situation35. This rather anomalous situation, in wh ich residual membership rights of the former
Yugoslavia were kept, lasted until a joint position between the successor States was taken.
1.52. What is also important, the letter of the Legal Counsel of 29 September 1992, although
it uses the unfortunately vague term “Yugoslavia”, it also gives indications regarding the entity to
which this designation refers. The Legal Coun sel identified the flag of the country whose
membership was neither terminated nor suspended, and made it plain that it was the flag of the
former Yugoslavia. The Legal Counsel explained that the flag which remains hoisted is “the flag
of the old Yugoslavia as it is the last flag of Yugoslavia used by the Secretariat”.
1.53. Let us add that while the designation “Yugoslavia” was typically left without
explanation by competent United Nations authorities, when an explanation was given, it was stated
3In the words of Craven: “The entity known as ‘Yugoslavi a’... has not formally been expelled or suspended
from the organization and is still listed as being a party to the Charter of the United Nations, having been one
continuously since 1945.” (M. Craven, “The Genocide Case, The Law of Treaties and State Succession”, 68 British Year
Book of International Law (1998), p. 133). An explanatory footnoteadded to this sentence: “This may well be
because the Charter makes no provision for such cases of extinction.” (Op. cit., FN 38). - 27 -
that “Yugoslavia” stands for the former Yugoslavia. For example, the 1998 Yearbook of the United
Nations which publishes an official “Roster of the United Nations”. And this roster includes
“Yugoslavia”, and explains in clear and simple terms that this name “[r]efers to the former Socialist
Federal Republic of Yugoslavia” . 36
1.54. Let me finally stress that today, there are no more ambiguities. The present version of
Historical Information on Treaties deposited with the Secretary-General makes it clear and explicit
that “Yugoslavia”, to which the Legal Counsel re ferred in his letter of 29 September 1992, was the
former Yugoslavia. This clarifying word was not included in the original letter, but now it is
stressed:
“The Legal Counsel took the view, however , that this resolution of the General
Assembly neither terminated nor suspended the membership of the former Yugoslavia
in the United Nations.” 37 (Emphasis added.)
2. The FRY only became a Member of the United Nations on 1 November 2000
1.55. Madam President, Members of the Court, it is common ground that the position of the
FRY and the reactions of United Nations authoritie s were not clear and unequivocal between 1992
and 2000. There were contradict ory references. But one cannot acquire membership by way of
contradictory references. It is a persistent fact that the claim of the FRY for continuity was
rejected. Thus it only could have become a Member of the United Nations by way of applying as a
new State ⎯ and this is what eventually happened. It is true that these facts are more clearly
discernible today than in 1993 or 1996. But the facts did not change. They were only clarified.
1.56. Due to lack of clarity a sui generis situation may have existed, but this did not, and
could not have amounted to membership. Professor Stern quotes with approval an important
characterization formulated in the Legality of Use of Force cases 3. I shall quote exactly the same
passage which was cited by Professor Stern:
“Il convient de préciser que la locution ‘sui generis’ employée par la Cour pour
qualifier la situation de la République fédérale de Yougosla vie dans la période allant
3Yearbook of the United Nations 1998, p. 1420, footnote 9.
37
Historical Information , http://untreaty.un.org/ENGLISH/bible/e nglishinternetbible/historicalinfo.asp ⎯ under
the heading “former Yugoslavia”.
38
CR 2006/37 p. 12, para. 5 (Stern). - 28 -
de 1992 à 2000 n’est pas une expression normative, dont découleraient certaines
conséquences juridiques bien définies, mais une expression descriptive...” (Affaire
relative à la Licéité de l’emploi de la force (Serbie-et-Monténégro c. Belgique) ,
exceptions préliminaires, arrêt du 15 décembre 2004, par. 74.)
1.57. This is true and exact. The sui generis qualification does not prescribe a distinct legal
standing. There is no third position between being a Member or not being a Member of the United
Nations. The qualification of the positi on of the FRY between 1992 and 2000 as a sui generis
position is descriptive, rather than prescriptive. It is, let me quote again, “not a... term from
which certain defined legal consequences accrue; it is merely descriptive of the amorphous state of
affairs in which the Federal Republic of Y ugoslavia found itself during this period” ( Legality of
Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment of
15 December 2004, para. 74).
1.58. Madam President, the FRY did not continue the personality and United Nations
membership of the former Yugoslavia. It became a new Member on 1 November 2000. I trust that
this is by now evident. It is also evident that it became a new Member without any hint or
suggestion that it may have been a Member before . To the contrary, all steps taken during the
procedure of admission as a new Member clearly excluded the hypothesis that the FRY may have
had membership status before.
1.59. The procedure of admission bears no trace or hint of a pre-existing membership or
quasi-membership position. There is no acknowledgmen t or hint of such a position in the letter of
39
President Koštunica seeking membership . There is no acknowledgment or hint of such a position
in either the procedure or in the resolutions yielded by the procedure.
1.60. President Koštunica does not mention any special standing or existing rights of the
FRY. Instead, he relies on Security Council resolution777 which stated that the FRY cannot
continue automatically the membership of the fo rmer Yugoslavia in the United Nations, and which
39
See the Application of the Federal Republic of Yugoslavia for Admission to Membership in the United Nations,
United Nations doc. A/55/528 S/2000/1043. - 29 -
recommended the General Assembly to decide that the FRY should apply for membership in the
United Nations .40
1.61. This was simply and unequivocally the admission of a new Member. No procedural
step prescribed for admission of new Members was avoided. The procedure was exactly the same
as the procedure of admission of Bosnia and Her zegovina. Let us add that admission took place
under agenda item 19 with the title: “Admission of new Members to the United Nations” 41. Upon
admission the United Nations official List of Member States makes it crystal clear that the FRY,
42
now Serbia and Montenegro, is a Member since 1 November 2000 .
1.62. Madam President, distinguished Members of the Court, the Respondent became a new
Member of the United Nations on 1 November 2000. It was not a Member before, it did not
continue the personality and membership of the fo rmer Yugoslavia. There have been five equal
successor States. There may have been imprec ise and ambiguous actions undertaken by United
Nations authorities and officials, there were c ontroversies, but these could not make the FRY a
Member of the United Nations. A sui generis situation may have emerged, but, as this was stressed
by this Court, “[the FRY] thus has the status of membership in the United Nations as from
1 November 2000 . . . it became clear that the sui generis position [of the FRY] could not have
amounted to its membership in the Organization” (Legality of Use of Force, op. cit., para. 78).
1.63. This honoured Court, the General Assembly, the Security Council, the
Secretary-General of the United Nations, made it clear that the FRY was not a Member of the
United Nations before it was accepted as a ne w Member on 1 November 2000. There was no
continuity. This was what ⎯ outside this case ⎯ the Applicant itself is saying emphatically and
consistently. This is what cannot be denied any more. Since there was no continuity, and since the
FRY became a new Member on 1November2000, the FRY could not have been a party to the
4See Application of the Federal Republic of Yugoslavia c ited in the preceding footnote. The letter of President
Koštunica refers to Rule 134 of the Rules of Procedure of the General Assembly, and to Rule 58 of the Provisional Rules
of Procedure of the Security Council. Both of these Rules are in chapters entitled “Admission of new members”. See
Chapter X of the Provisional Rules of Procedure of the Secu rity Council, and Chapter XIV of the Rules of Procedure of
the General Assembly.
4United Nations doc. A/55/PV.48, The record of th e 48th Plenary Meeting of the General Assembly,
1 November 2000, p. 26.
42
The List of Member States, www.un.org/Overview/unmember.html ⎯ status as of 6 May 2006. - 30 -
Statute in 1993, and the FRY could not have re mained bound by the Genocide Convention, and
could not have become bound either before 1 November 2000.
Madam President, thank you very much for the attention and I would like to ask you now to
give the floor to Professor Zimmermann. Thank you.
The PRESIDENT: Thank you, Professor Varaday. I do now call to the Bar
Professor Zimmerman.
Mr. ZIMMERMANN: Thank you, Madam President.
2.ISSUES OF GOOD FAITH
2.1. Madam President, Members of the Court, may it please the Court. Following up on the
issues related to United Nations membership, I will now address the Applicant’s arguments based
on good faith. Let me start with some general remarks.
A. General observations as to the Applicant’s arguments relating to good faith
2.2. In his pleading of 21 April, counsel for the Applicant, and in particular Professor
Thomas Franck, at length elaborated on why the Respondent should be precluded from raising
objections based on questions of access and jurisd iction at this stage of the proceedings. The
fundamental line of reasoning underlying his pleading ⎯ recurring so often that the Applicant’s
Co-Agent would no doubt ha ve spoken of a “mantra” ⎯ was the issue of good faith. This good
faith argument was couched in diffe rent legal concepts, which were used almost interchangeably:
throughout the two rounds of pleadings, counsel for the Applicant notably argued that
“Yugoslavia” ⎯ the term apparently being used with deliberate lack of precision ⎯ “perhaps
created a situation of estoppel” 4, that it violated the principle of good faith , that it created “a form
45
of forum prorogatum”, that Serbia and Montenegro put itself in a situation of estoppel , that the
Court should apply the “concept of equitabl e estoppel and the obligation of good faith” 46, that the
43
CR 2006/3, para. 19 (Pellet).
4Ibid.
4CR 2006/35, para. 21 (Pellet).
46
CR 2006736, para. 3 (Franck). - 31 -
47
Respondent has “acquiesced” in the exer cise of jurisdiction by this Court , or that its behaviour
might amount to “preclusion” or “foreclusion” 48, a “tacit recognition” of the Court’s jurisdiction or,
49
finally, a “waiver of rights” . Along similar lines, counsel on the other side have also argued that
the principles of venire contra factum proprium non potest, of allegans contraria non audiendus
est or finally nullus commodum capere de sua injuria propria should apply to the present case 50.
2.3. Interestingly, while providing the Court with a whole arsenal of legal concepts, counsel
for the Applicant said very little about the conditi ons governing their application. What is more,
Professor Franck seemed to argue that the “go od faith considerations”, whether in their
acquiescence, estoppel or other form, precluded th e Applicant not only from raising objections
directed against jurisdiction under ArticleIX of the Genocide Convention, but also from bringing
arguments concerning the question of access to the Court. This reasoning of course was in line
with the Applicant’s general approach of blurring issues of access and jurisdiction into a matter of
“compétence”, but it is clearly not in line with your own jurisprudence.
2.4. In short, counsel for the Applicant proposed extremely far-reaching consequences while
never telling the Court what are the exact legal re quirements in order for the very concept of good
faith to be applied. To support this rather casual approach with respect to legal concepts,
ProfessorFranck first and foremost stressed th e nature of the Respondent’s pleas, which he
51
denounced as references to “technicalities” or “evasion” . Yet, his approach does not take into
account the position of this Court, which has made it clear in its correspondence with the Parties in
this case that they are entitled to raise jurisdictional issues at this point in time if they wish do so.
2.5. Madam President, it is on the basis of th is understanding that I will now submit to you a
number of reasons why the Applicant’s good faith arguments should not meet with success. In
doing so, I will attempt to follow the different legal requirements governing the arguments based
on good faith. This also means that I will appro ach the matter on the basis of your jurisprudence,
47Ibid., paras. 12 and 17 (Franck).
48
Ibid., para. 23 (Franck).
49
Ibid., para. 25 (Franck)
50CR 2006/37, para. 15 (Pellet), respectively para. 36 (Pellet).
51
See CR 2006/35, p. 52, paras. 11-12, and CR 2006/36, p. 31, para. 21, respectively (Franck). - 32 -
in which you have frequently made clear that c oncepts such as estoppel or acquiescence and other
related notions presuppose the existence of certain specific legal requirements. As I will
demonstrate, at least three of these requirements are not fulfilled in our case.
2.6. First, the concepts of acquiescence, estoppel or preclusion only operate and apply in
interstate relations and with regard to subjective rights and obligations between the States
concerned. Thus they do not apply to objective statutory requirements, which the parties cannot
dispose of.
2.7. Second, acquiescence, estoppel and other related notions presuppose either clear and
unambiguous conduct on behalf of the State that is said to have lost its right, or a clear and
unambiguous situation in which that State could have been reasonably expected to assert its right.
2.8. Third and finally, estoppel, acquiescence and other related notions presuppose a reliance
on the part of the other State ⎯ that is the State pleading estoppel or acquiescence ⎯ that the right
in question would no longer be asserted.
2.9. As I will show in the following, not one of these three elements is met in the present
case. The Applicant’s reliance on general notions of good faith ⎯ whether in their acquiescence,
estoppel or other form ⎯ therefore is unjustified, and therefore it cannot meet with success. Before
exploring these issues in turn, let me make tw o further brief observations. Both concern the
relation between the different arguments advanced, and are intended to chart the course for their
evaluation that will then follow.
2.10. For once, I would like to stress that the arguments directed against the Applicant’s
pleadings on good faith are alternative arguments. Although I submit to your attention three
considerations, I would like to clarify that each si ngle one of them is sufficient to undermine the
Applicant’s pleading. Having invoked the gene ral concept of good faith, the Applicant has to
establish that all its requirements are met in the present case. I believe that none of them can be
sustained, but it would of course be sufficient if only one of them was not met.
2.11. Furthermore, it bears repeating that our arguments relating to access and jurisdiction
are also alternative arguments. As I have noted , various counsel for the Applicant, in their
respective pleadings, often seemed to blur matters of access and jurisdiction. But their alternative
character is neatly brought out in your 2004 Judgments in the Legality of Use of Force cases, and in - 33 -
particular in the brief phrase: “only those St ates which have access to the Court can confer
jurisdiction upon it” .2
2.12. Madam President, Members of the Court, I hope you forgive me for commenting on
these rather evident issues. However, they seem to me, at least, to be necessary comments on the
Applicant’s rather generalized assertions of general legal concepts ⎯ concepts that produce broad
legal consequences but that apparently are not governed by specific legal conditions.
2.13. Let me now begin with the more speci fic considerations aimed at countering the
Applicant’s good faith argument. The first cons ideration is that the notions of estoppel and
acquiescence are simply not applicable with respect to issues of access to the Court.
B. Estoppel and acquiescence are not applicable with regard to issues of access
2.14. The essence of my argument in that rega rd is this: a State can only acquiesce in the
loss of a right, or be estopped from invoking it, in relation to another State, or other States.
Acquiescence and estoppel presuppose a legal relation be tween actors of international law. In his
separate opinion in the Temple of Preah Vihar case, on which counsel for the Applicant so much
focused his attention, Judge Alfaro made this clear by pointing to the quintessential example of
53
bilateral treaties . In the Land, Island and Maritime Frontier Dispute case, a Chamber of this
Court described the essentially bilateral nature of estoppel when describing it as: “a statement or
representation . . . by one party to another and reliance upon it by that other party to his detriment
54
or to the advantage of the party making it.”
2.15. More generally, it is surely no coinciden ce that international courts and tribunals have
usually been faced with claims based on acqui escence or estoppel in cases involving territorial
disputes or disputes concerning boundaries. What these disputes have in common is that the
disputed right (in whose loss one State may have acquiesced, or that that State may be estopped
from invoking) can form the subject of inter partes negotiation. It is surely up to the two (or more)
52
Case concerning Legality of the Use of Force (Serbia and Montenegro v. Belgium), para. 46.
53
I.C.J. Reports 1962, p. 42.
54Case concerning Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to
Intervene, Judgment, I.C.J. Reports 1990, p. 118, para. 92. - 34 -
parties to the dispute to agree on the course of their boundary, or on the territorial status of a
disputed piece of land.
2.16. But the same considerations do not apply to the rights that are at issue in the present
case, namely the right to raise arguments based on the lack of one party’s access to the Court. The
statutory requirements concerning access are simply not subject to rules of estoppel or
acquiescence, as the parties are not in a position to dispose of them. Access to the Court is not
subject to the discretion of the parties. It excl usively concerns the relationship between a State (in
this case, the Respondent), on the one hand, and the Court, on the other.
2.17. Whilst acquiescence and estoppel concern subjective legal positions, access is an
objective condition ⎯ a requirement whose fulfilment is to be assessed exclusively by this Court,
as the guardian of the Statute.
2.18. Madam President, Members of the Court, already during the first round of our
pleadings, my colleague and friend Vladimir Dj eric has explored your jurisprudence on the
question of access. I will certainly not repeat what he has said nor deal with your jurisprudence in
any detail. Instead, I would simply reiterate that your jurisprudence clearly establishes access as
the most fundamental condition of proceedings, and one that any State appearing before this Court
must fulfil in each and every case at the relevant time.
2.19. In his pleading, Mr.Djeric has also analysed the mi nimum requirements governing
access to the Court, listed in Article 93 of the Ch arter of the United Nations and Articles 34 and 35
of the Statute, and he has shown that this Cour t has already determined that the Respondent does
not meet these minimum requirements with rega rd to cases brought before its admission to the
United Nations in 2000.
2.20. Counsel for the Applicant contend the Respondent is barred from now arguing lack of
access. But this ignores the basic distinction be tween, on the one hand, subjective legal positions
subject to acquiescence or estoppel, and, on the other, objective requirements of inter-State
litigation that can only be determined by the C ourt, and to which acquiescence and estoppel do not
apply.
2.21. Madam President, allow me to further ela borate on this crucial distinction. It is a
distinction that is widely recognized by writers an alysing the Court’s law and procedure. I do not - 35 -
wish to present to you an exhaustive analysis of th e literature on the topic, but would like to draw
your attention to two very pertinent remarks. The first is by Georg Schwarzenberger, who
observed in no unclear terms that: “if a party to a dispute is a State to which the Court is closed,
55
this suffices to prevent the case from receiving consideration by the Court” .
2.22. Second, the distinction between subjective f actors capable of modification through
inter partes conduct and objective factors to which acquiescence and estoppel do not and did not
apply, was also accepted by Professor Thirlway. Writing on forum prorogatum, that is, a form of
party conduct that like acquiescence is said to establish consent, he stated:
“ Forum prorogatum only operates to provide the element of agreement
constitutive of jurisdiction; thus it cannot make up for a jurisdictional or procedural
defect which cannot be cured by the agreement of the parties, e.g., lack of status as a
56
party to the Statute.”
2.23. But what is by far more important is of course your own jurisprudence on the matter.
In fact, in your 2004 Judgments in the cases concerning Legality of Use of Force , you
unequivocally clarified that it is upon the Court, and not upon the parties, to determine the question
whether a given State has access to the Court or not:
“The question is whether as a matter of law Serbia and Montenegro was entitled
to seize the Court as a party to the Statute at the time when it instituted proceedings in
these cases. Since that question is independent of the views or wishes of the Parties,
even if they were now to have arrived at a shared view on the point, the Court would
not have to accept that view as necessarily the correct one. The function of the Court
to enquire into the matter and reach its ow n conclusion is thus mandatory upon the
Court irrespective of the consent of the Par ties and is in no way incompatible with the
57
principle that the jurisdiction of the Court depends on consent.”
2.24. It is thus ex officio that the Court can, and indeed has to, examine whether the
Respondent could validly be brought before this Court in the present case. Arguments based on
acquiescence, estoppel or forum prorogatum, even if their requirements were otherwise fulfilled ,
quid non, cannot apply and in particular cannot absolve the Court from considering the matter.
2.25. Madam President, allow me to put fo rward two further arguments supporting this
conclusion. The first is a simple comparison; it is aimed at reinforcing the importance of the
55
G. Schwarzenberger, International Law as applied by international courts and tribunals, Vol. IV, p. 434.
56
H. Thirlway, “The Law and Procedure of the International Court of Justice 1960-1989”, BYBIL, 1998, 1, p. 27.
5Case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium) , Judgment of
15 December 2004, para. 36; emphasis in the original. - 36 -
fundamental distinction to be drawn between s ubjective legal positions governed by acquiescence
or estoppel, and objective requirements of inter-State litigation outside the parties’ competence.
2.26. If we assume for a moment that the pa rties could decide on access to the Court, by
means of estoppel, acquiescence, or through some other form of conduct, what would be the
consequences of such a line of reasoning? On e would have to accept that just as access, other
objective conditions could be de termined by them. If we look at the provisions setting out
objective requirements of proceedings before this Court, namely Article 93 of the Charter and
Articles 34 and 35 of the Statute, we for example, fi nd in Article 34, paragraph 1, that the Court is
only open to States. Now, could that requirement also be subject to a determination by the parties?
Could two sub-State entities, or two groups, decide that they would regard each other as States in
the sense of Article34 of the Court’s Statute, and argue their dispute here, in the Great Hall of
Justice? I believe it is safe to assume that they could not.
2.27. To take another example: could States agree on a certain meaning of the term “treaties
in force”, and then simply bring a case on the basi s of Article35, paragraph2, of the Court’s
Statute?
2.28. These questions, at least at first glance, might seem far-fetched and of course can only
be answered in the negative. But I believe they illustrate that there are certain conditions of
proceedings before this Court that are objective conditions which are not subject to the conduct of
the parties ⎯ whatever form such conduct might take. Among these objective conditions that have
to be fulfilled is, as you clarified, also the question of access to the Court.
2.29. Madam President, Members of the Court, there is a second argument justifying the
distinction between objective and subjective factors. I could elaborate now on that point or we
could take the break. I am in your hands, Madam President.
The PRESIDENT: Why not continue for just a while longer?
Mr.ZIMMERMAN: Thank you. As I said, there is a second argument justifying the
distinction between objective and subjective factors and that concerns the institutional set-up of the
United Nations. One of the recurring themes of th is case is the close relation between issues of
United Nations membership and proceedings before this Court, the United Nations “principal - 37 -
judicial organ” . The United Nations Charter of course deliberately divides the powers and
competencies of its main organs. Not always does it do so in a very clear and unambiguous
manner. But it is very clear in one respect: in its Articles 4 to 6 , it entrusts decisions about
membership, including admission, to two of the main organs, namely the Security Council and the
General Assembly. This Court has emphasized this in the Advisory Opinion on Conditions of
Admission of a State to Membership in the United Nations . In your Opinion of 28 May 1948, you
first noted the material conditions for membership under Article 4, paragraph1, of the Charter.
You then went on to observe: “All these c onditions are subject to the judgment of the
Organization” ( I.C.J. Reports 1948 , p. 62); and then further noted: “The judgment of the
59
Organization means the judgment of the two orga ns mentioned in paragraph 2 of Article 4” : that
is the General Assembly and the Security Council.
2.30. In our case, which is so charged with membership issues, the role of the General
Assembly and the Security Coun cil and the interrelation between the different United Nations
organs should not be overlooked. It was said by Judge Lachs in 1992 that, while the various main
organs of the United Nations do each have their variou s roles to play in a situation or dispute, they
should act: “in harmony though not, of course, in concert and that each should perform its
functions with respect to a situation or dispute, different aspects of which appear on the agenda of
each, without prejudicing the exercise of the other’s powers” ( Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. United Kingdom), Provisional Measur es, Order of 14April1992, I.C.J.
Reports 1992; separate opinion of Judge Lachs, p. 27).
2.31. Admittedly, the Security Council and th e General Assembly were in part responsible
for what you described as an “amorphous legal si tuation concerning the status of the Federal
Republic of Yugoslavia vis-à-vis the United Nations” 6.
58Cf. Art. 92, United Nations Charter.
59
Ibid.
60
Case concerning Legality of the Use of Force (Serbia and Montenegro v. Belgium), para. 79. - 38 -
2.32. However, your jurisprudence also show s that the amorphous legal situation has not
been indefinite. It came to an end on 1November2000, with the admission of the FRY to the
Organization. In line with the procedure established by the United Nations Charter, that admission
61
was the result of a recommendation by the Security Council and a subsequent decision by the
General Assembly 62. One should also note that the approach adopted by the two main organs was
based on a deliberate decision to make use of the regular Article 4 admissions procedure rather than
any other form. This clear-cut approach chosen by both organs is even more relevant since the
cases of Indonesia and the dissolution of the Unite d Arab Republic have demonstrated that the
organs of the United Nations may also simply reconfirm otherwise doubtful membership
situations ⎯ if, indeed, they considered that one St ate was still a Member. Besides, as we all
know, after the Dayton Peace Agreement, discussion s had been underway within the organization
to do just this, namely to simply confirm th at “Yugoslavia” was still a Member of the United
Nations. But this was not done: the two United Na tions organs apparently considered that there
was no Yugoslav membership which could be confirmed.
2.33. This new development, this new admission, instead of a reconfirmation of membership,
also finally clarified the status quo ante. Again, I can restrict myself to citing what you stated in
December 2004:
“in light of the legal consequences of th e new development since 1November2000,
the Court is led to the conclusion that Se rbia and Montenegro was not a Member of
the United Nations, and in that capacity a State party to the Statute of the International
Court of Justice, at the time of filing its Application to institute the present
63
proceedings before the Court on 29 April 1999”
and, one may add, as it seems to be a necessary im plication, at any other point in time between
27 April 1992 and 1 November 2000.
2.34. Madam President, Members of the Court, could I ask you to consider for a moment the
consequences of a judgment based on acquiescen ce or estoppel or any other party-oriented
6United Nations doc. S/RES/1326 of 31 October 2000.
62
General Assembly res. 55/12 of 1 November 2000.
63
Case concerning Legality of the Use of Force (Serbia and Montenegro v. Belgium), para. 79. - 39 -
mechanism holding that, notwithstanding the Secu rity Council and General Assembly decisions,
the Respondent could be treated as a State party to the Statute of the Court in the present case.
2.35. It is evident that to hold that by virtue of estoppel or acquiescence or otherwise, the
parties could have themselves agreed on a certai n interpretation of the FRY’s membership issue
would completely ignore the United Nations Charter’s division of powers. If membership was
negotiable for the parties, what would become of Article4 of the Charter whose fundamental,
indeed constitutional, importance you so rightly underlined in the 1948 Admissions Advisory
Opinion?
2.36. What is more, what signal would a j udgment by this Court, ratifying a “party
agreement” on membership issues, send to the ot her main organs of the United Nations? Would
such a judgment really be in line with the late Judge Lachs’ plea for inter-institutional respect?
2.37. The Respondent submits that App licant’s arguments on good faith ignore the
constitutional set-up of the United Nations Charter in that they fail to accept the political organs’
competence to decide issues of membership. This again shows that Applicant’s pleading on the
issue of good faith is based on a fundamentally flawed conception of the underlying legal notions,
of the rights and obligations that can form the subject of acquiescence and estoppel, and of the
function of membership within the Organization.
2.38. Let me conclude this part of my ar gument by observing that even if one were to
otherwise consider, be it only arguendo, that due to considerations of good faith Respondent could
not argue a lack of jurisdiction now, it would still not have access to the Court. This fundamental
requirement for the Court to decide this case on its me rits is simply not subject to the wish of the
States involved in the current proceedings ⎯ whatever position they might have taken inside or
outside this Great Hall of Justice, be it individually or be it jointly.
I have hereby concluded my first argument and I would now move on either to my second
argument or we take the usual break.
The PRESIDENT: I think now will be a good moment for the break. Thank you.
Mr. ZIMMERMAN: Thank you. - 40 -
The PRESIDENT: The Court now rises.
The Court adjourned from 4.25 to 4.45 p.m.
The PRESIDENT: Please be seated. Yes, Professor Zimmermann.
Mr. ZIMMERMANN: Thank you, Madam President. Madam President, Members of the
Court, I hope I have demonstrated that issues of access to the Court are not subject to acquiescence,
estoppel and other party-oriented mechanisms in the first place.
2.39. I will now move on to my second argument directed against the Applicant’s good faith
pleadings. I will demonstrate that the Respondent never expressly or implicitly accepted that it
would not raise jurisdictional arguments, that accordingly there was never a clear and unambiguous
expression of a loss of right.
C. No clear and unambiguous expression of a loss of right
2.40. Madam President, Members of the Court, issues of estoppel and acquiescence are to be
viewed in the context of the issue we are considering ⎯ and we are focusing on issues of
jurisdiction. From the very beginning of these proceedings the Respondent has always challenged
the Court’s jurisdiction. This was formally ac knowledged by the Court when it stated in its
1996Judgment on jurisdiction that the Responde nt had “consistently contended during the
subsequent proceedings that the Court lacked jurisdiction whether on the basis of the Genocide
Convention or on any other basis” ( I.C.J. Reports 1996(II) , pp.620-621; see also, as to the
provisional measures stage of the case, I.C.J. Reports 1993, pp. 341-342).
2.41. As a matter of fact the Applicant itself complained that the Respondent had time and
again claimed that the Court has no jurisdiction. It is already for this reason that it seems
far-fetched to argue that the Respondent would now be estopped to do just this ⎯ argue that the
Court lacks jurisdiction. As this Court observed in the Nicaragua case:
“estoppel may be inferred from the conduct, d eclarations and the like made by a State
which . . . clearly and consistently evinced acceptance by that State of a particular
régime” (I.C.J. Reports 1984, p. 415, para. 51) (emphasis added).
2.42. In our case, counsel for Bosnia and He rzegovina however attempted to focus on one
specific point in the Respondent’s c onduct relating to jurisdiction ⎯ namely, its alleged failure to - 41 -
raise the question of its treaty membership in th e Genocide Convention at an earlier stage of these
proceedings. By doing so, counsel for the Appli cant has however unduly restricted the scope of
analysis. Let me again quote this Court’s statement from the Nicaragua case. In that case, this
Court required the “acceptance by . . . State of a particular régime” (ibid.). In the present case, the
relevant régime is that of the Court’s jurisdic tion. The question to be answered therefore is
whether or not the Respondent has “clearly and consistently” accepted that régime ⎯ that is, your
jurisdiction. But taking the procedural history of this case into account, can one really say that the
Respondent has clearly and consistently accepted th at this honourable Court has jurisdiction? I
believe the answer to this question is obvious ⎯ the Respondent has never done so.
2.43. Madam President, Members of the Court, but even if we follow, for the time being,
the restricted focus the Applicant is proposing, the circumstances of the present case are still not of
such a nature as to give rise to estoppel or acqui escence. According to the Applicant all that the
Respondent should have done is to rai se “the most obvious defence” available ⎯ that is its status
within the United Nations Char ter and the Genocide Convention 64. Yet given the ambiguities that
surrounded the legal status of the Respondent, it simply could not have been expected to discuss its
own status. It is true that to ProfessorFranck , the matter seemed clear. But, as we know, many
things appear clear in retrospect, and yet were fa r from obvious at the relevant point in time. It
seems to me that ProfessorFranck, looking back at the earlier stages of these proceedings, may
have presented a rather simplified picture of a highly complex situation: one that does not do
justice to the uncertain state of affairs obtaining in 1996.
2.44. Had matters indeed been as obvious as Professor Franck now suggests, the Respondent
could indeed now be barred from relying on a differe nt legal position. However, if matters were
not quite as clear, then one might view the Respo ndent’s conduct in a quite different light. The
FRY was then arguing on the basis of a certain assumption which at that time was perfectly tenable
but later proved to be incorrect. If that is th e correct position, I submit that the Respondent’s
decision not to raise all possible preliminary objec tions in 1996 cannot be held against it now, and
cannot be interpreted as forming the basis for acquiescence or estoppel.
6CR 2006/36, p. 27, para. 9. - 42 -
2.45. Fortunately, there is much on record that corrects Professor Franck’s rereading of this
case’s history. You, yourself, first pronoun ced on the matter in your Order on provisional
measures of 8 April 1993 where you already not ed the “legal difficulties” to which the
Respondent’s status within the United Nations had given rise (I.C.J. Reports 1993, p. 14, para. 8).
2.46. Later, in your Judgments of 15 December 2004 in the Legality of Use of Force cases,
you again recalled this state of af fairs when observing that “the sui generis position of the Federal
Republic of Yugoslavia within th e UnitedNations... had been fraught with ‘legal difficulties’
throughout the period between 1992 and 2000” (case concerning the Legality of Use of Force
(Serbia and Montenegro v. Belgium), para. 78).
2.47. Looking back to that period, you spoke of an “amorphous legal situation” and admitted
that had you had
“to determine definitively the status of the [FRY] vis-à-vis the United Nations [at that
time], [your] task of giving such a determin ation would have been complicated by the
legal situation, which was shrouded in uncer tainties relating to that [very] status”
(ibid., para. 79).
2.48. I submit that these two statements provide a much more accurate description of the
situation obtaining between 1992 and 2000 than the one given by counsel for the Applicant.
However, it is interesting to observe that at an earlier stage of the proceedings, the Applicant itself
had accepted that matters were far more complex than it is now prepared to acknowledge. For
example, in the Memorial, the Applicant “admitte d that... the governing bodies of the United
Nations have not made yet a final decision re garding the status of Yugoslavia (Serbia and
65
Montenegro) in the United Nations” .
2.49. And indeed, if we look at the Applican t’s present position, the matter even seems to
remain controversial to this very date. Alread y, during the first round of pleadings, my colleagues
and I have argued that your more recent jurisp rudence clearly establishes that Serbia and
Montenegro was not a Member of the United Nations between 1992 and 2000. But
notwithstanding this jurisprudence, counsel for th e Applicant have maintained the opposite. In her
pleading Professor Stern vigorously argued that the Respondent had remained a Member of the
6Memorial of 15 April 1994, para. 4.2.3.14. - 43 -
66
United Nations . I note in passing that these views can hardly be brought in line with other
statements made by representatives of the Applicant ⎯ a matter about which I will speak in a
minute. But for the moment, the more important point to note is, that according to counsel for the
Applicant, still, even today, the Respondent’s status within the United Nations, between 1992 and
2000, remains controversial.
2.50. Now, that may be so. But if indeed there was ⎯ and apparently there still is ⎯ what
67
Professor Stern called “une bataille de qualification” , could one really fault one Party in this
litigation for having initially opted for one of the defensible positions ⎯ one that later turned out to
be incorrect? I submit that the Respondent’s position, in 1996, was ⎯ to say the least –– plausible,
and it should not now be faulted for having taken it in the first place.
2.51. Madam President, Professor Pellet has advanced an additional argument ⎯ possibly
because he was himself not sure of the apparent “clarity” of the situation obtaining in 1993 or 1996.
In his pleading of 21April, he argued the Resp ondent could have eas ily clarified the legal
68
uncertainties which prevented the Court from taking a definitive stance on the matter . But again,
I submit, this argument fails to accept that in 1996, matters simply were not clear. And besides ⎯
and possibly more importantly –– it vastly overestimates the Respondent’s powers.
2.52. Let me begin with this latter point. As you observed in 1993 and affirmed in 2004, it
was not one State’s insistence on a certain reading of history that caused problems. Rather, the
“legal difficulties” to which you referred flowed from the course deliberately adopted by the United
Nations two main political organs at the time. Cl early, the only conduct that could have clarified
the legal situation would have been a decision by t hose two political organs. In fact, the matter is
rather clearly recognized in the Applicant’s Memorial, where it is stated: “ the governing bodies of
the United Nations have not yet made a final decision regarding the status of the Respondent” 6.
2.53. In short, while the Respondent’s view was certainly one of the factors complicating the
legal assessment, the Respondent was not alone in that, and ⎯ more importantly ⎯ it could not
66
CR 2006/37, pp. 10 et seq.
67CR 2006/27, p. 12, para. 6 (Stern).
68CR 2006/36, p. 23, para 58 (Pellet).
69
Memorial of 15 April 1994, para. 4.2.3.14. - 44 -
simply have clarified matters. Very briefly, I submit that in any event, one cannot fault the
Respondent now for its failure to abandon its claim to identity at the preliminary objections stage.
As your jurisprudence shows, matters simply were not that clear. True, the Respondent’s reading
was not the one that eventually was to become accepted. But in 1996, it seemed to be a tenable
position. Besides a State certainly could not be required to give up its claim of continuity in a
situation which was so much shrouded with uncer tainties and where mixed signals were at that
time being sent out by the organs of the United Nations.
2.54. It was a somewhat curious turn of events that in her pleading of 24 April,
ProfessorStern has placed before you much of the evidence supporting the interpretation and the
claim of continuity previously made by the FRY itself. Let me be precise: the Respondent does
not follow her in her conclusion that the FRY w as a United Nations Member in the period between
1992 and 2000. As my friend and colleague, Tibor Varady, has shown, that indeed seems to be a
rather far-fetched conclusion. However, Prof essor Stern’s comprehensive presentation of the
evidence at least establishes one matter, namely that in 1996, the membership situation still awaited
a final clarification, and that different positions could still be taken and that the Respondent can
accordingly not now be barred from raising this very issue.
2.55. Lastly, in order to support their argument on good faith, counsel for the Applicant have
made much of the counter-claims raised in this case. To Professor Franck, the Respondent thereby
70
“actively asserted its adherence to the Convention” . But is that really a convincing evaluation of
the Respondent’s conduct?
2.56. What would have been Professor Franck ’s advice to a government whose preliminary
objections had just been rejected? Would one not rather have to say that after the 1996 Judgment
had been rendered, Serbia and Montenegro simply had no other choice than to proceed with the
case ⎯ even though its own position as to jurisdiction had not changed a iota.
2.57. And can one really fault a State for av ailing itself of a procedural right to bring
counter-claims ⎯ a right whose existence this Court affirmed, over the Applicant’s objections, in
its Order of 17 December 1997?
7CR 2006/36, p. 29, para. 12. - 45 -
2.58. We would submit that the FRY’s count er-claims, which in any event were later
withdrawn after the FRY had been admitted to the United Nations and after its legal status had thus
been clarified, were nothing but a logical consequence of the Court’s 1996 Judgment on
jurisdiction. More generally, th e Respondent submits that the exercise of rights either expressly
provided for in the Statute or the Rules of this h onourable Court or developed in its jurisprudence
should be presented as what they are: an exerci se of rights specifically recognized, but not an
illegitimate delaying strategy or a sign of bad faith.
2.59. Madam President, estoppel and acqui escence are exceptional constructions. They
should not be applied to a situation wh ich was “shrouded in legal uncertainties” 71even more so
when the Respondent has consistently taken a certa in position namely that the Court does not have
jurisdiction. That brings me to my last point namely that moreover there simply was no legitimate
reliance on the side of the Applicant.
D. No legitimate reliance on the part of the Applicant
2.60. Madam President, distinguished Members of the Court, even if you followed
Professor Franck’s interpretation, and held that everything was obvious in 1993 or 1996, I submit
that the Applicant’s argument based on good faith still would not and could not succeed. In order
to explore this, allow me, Madam President, to d eal with a third argument. It is based on the
Applicant’s own perception of the ⎯ allegedly so obvious ⎯ legal situation. While he did not say
so expressly, I do not think that counsel for the Applicant would dispute that estoppel and
acquiescence presuppose a certain form of conduct on behalf of the State invoking it.
2.61. The State claiming estoppel and acquiescence ⎯ the Applicant in this case ⎯ must
have legitimately relied on the appearance allegedly created. After all, as Professor Franck noted,
good faith arguments ultimately are based on notions of fairness 72. Fair conduct in litigation
however is a basic rule that applies to both pa rties to the dispute, and when assessing one party’s
behaviour, one should not ignore the other party’ s conduct. Within the legal régime governing
estoppel and acquiescence, this basic condition is most commonly phrased in terms of a “legitimate
71
Cf. case concerning Legality of the Use of Force (Serbia and Montenegro v. Belgium), para. 79.
72
See e.g. CR 2006/36, p. 32, para. 22. - 46 -
reliance”. With respect to estoppel and preclusion, Judge Fitzmaurice, in his separate opinion in
the Temple of Preah Vihar case, referred to this in the following sense:
“The essential condition of the operation of the rule of preclusion or
estoppel . . . is that the party invoking the rule must have ‘relied upon’ the statement or
conduct of the other party, either to its own detriment or to the other’s advantage.” 73
2.62. In rather similar terms, this Court observed in the Nicaragua case ⎯ in the passage to
which I have already referred:
“estoppel may be inferred from the conduct, d eclarations and the like made by a State
which not only clearly and consistently evinced acceptance by that State of a
particular régime, but also had caused another State... in reliance on such conduct,
74
detrimentally to change position or suffer some prejudice” .
2.63. Finally, with respect to acquiescence, ess entially the same requirement is contained in
the frequent statements that the State invoking acquiescence must have been entitled to perceive the
other State’s silence as amounting to an abandonment of a right.
2.64. Applying this requirement of reliance once again to the context of jurisdiction let me
state first that only reliance on acceptance of jurisdic tion can be relevant. But there can have been
no such reliance since Respondent had continuously challenged the Court’s jurisdiction. Since the
Applicant was aware of this it agai n attempted to focus on other points. But even with regard to
those other points ⎯ can one really say that the Appli cant has actually relied on the previous
position taken by the FRY as to its status vis-à-vis the former Yugoslavia? Can one really say that
Bosnia and Herzegovina relied that the FRY did c ontinue the international legal personality of the
former Yugoslavia? Can one really say that Bosn ia and Herzegovina relied that no notification of
succession or accession was needed in order for the Respondent to become a contracting party to
the Genocide Convention? And, finally, can one really say that Bosnia and Herzegovina relied that
the FRY continued to be a Member of the United Nations and thus had access to the Court?
2.65. I would submit that the answer to all these questions is “no”, and that this is yet another
reason why the Applicant’s good faith argument must fail. As a matter of fact, while going on at
some length about the Respondent’s conduct, both Pr ofessors Franck and Pellet, in their pleadings
of 21 and 24 April respectively, were remarkably brief in their comments on the Applicant’s own
73
I.C.J. Reports 1962, p. 62.
74
I.C.J. Reports 1984, p. 415, para. 51; emphasis added. - 47 -
conduct. In fact, it is telling that in his plead ing, Professor Franck did not once seek to establish
that the Applicant had relied upon the Respondent’s alleged failure to raise arguments based on
access and jurisdiction. In fairness, he did briefly mention the Applicant’s position at the
beginning of his pleading. He there noted that in 1996 and thereafter “Bosnia, of course, would
75
have had no reason to raise the issue.”
2.66. Strictly legally speaking, that may be correct. Of course, Bosnia was not obliged as a
matter of law to raise arguments that might even tually benefit the Respondent. But this does not
mean that Bosnia’s conduct was irrelevant fo r the purposes of acquiescence and estoppel. If we
look at the statements just quoted, from your ju risprudence and from Judge Fitzmaurice’s separate
opinion in the Temple of Preah Vihar case, we realize that the question is not whether the party
invoking a good faith argument was under an obligation to clarify the alleged appearance itself, and
to do so within the context of an on-going litigation.
2.67. Rather and instead, the test is a much more general one: it must be assessed whether
the party invoking a good faith argument in fact re lied upon the other party’s statement, or absence
of statement. The reason for this is obvious, and it goes back precisely to the concepts of decency
and moral conduct that Professor Franck has emphasized so forcefully. These concepts require that
the party invoking a good faith argument must have itself been acting in good faith.
2.68. The Respondent submits this is not wh at Bosnia and Herzegovina has done. For the
purpose of this litigation, and for the purpose of this litigation only –– as indeed Professors Pellet
and Franck seem to admit ––, Bosnia and Herzegovi na has accepted that Serbia and Montenegro is
identical with the former Yugoslavia ⎯ a conduct which was adopted with the clear goal of
avoiding certain “procedural problems”. Yet, outsi de this courtroom, Bosnia and Herzegovina has
always ⎯ and consistently ⎯ argued that the FRY cannot con tinue the international legal
personality of the former Yugoslavia. It is well known that Bosnia and Herzegovina has in the past
consistently, and indeed successfully, opposed the claim of the FRY to be identical with the former
Yugoslavia. It is largely due to that position ta ken by the other successor States of the former
Yugoslavia ⎯ and Bosnia and Herzegovina itself in particular ⎯ that the FRY’s original claim to
7CR 2006/36, p. 27, para. 9 (Franck). - 48 -
be identical with the former Yugoslavia failed to gain acceptance by the international community.
With respect, more specifically, to the Res pondent’s position within the United Nations, the
Applicant has on numerous occasions stated very clearly that in order to become a United Nations
Member ⎯ and consequently ipso facto a party to the Statute of the Court ⎯ Serbia and
Montenegro would have to apply for membership in line with the procedure set out in Article 4 of
the Charter. I do not think I have to recite the string of statements to which Professor Varady made
reference.
2.69. Madam President, Members of the Court, to be very clear: none of this is intended to
suggest that Bosnia and Herzegovina was under an obligation itself to raise arguments based on
access or jurisdiction in the present case. As Professor Franck states, of course, it was not obliged
to do so. But certainly, its own inconsistent c onduct is relevant in the context of estoppel and
acquiescence. As Professor Franck stated, both con cepts are grounded in good faith. But in terms
of good faith, and when assessing whether the Applicant relied on the appearance allegedly created,
it hardly seems possible to me to distinguish ⎯ as Professor Franck seems to imply ⎯ between its
position within this courtroom and its position taken elsewhere.
2.70. There simply do not exist two Bosnias, to paraphrase Professor Franck “this Bosnia”
and “that Bosnia”, one Bosnia pleading in this Great Hall of Justice, the other Bosnia taking
political and legal positions elsewhere in the Un ited Nations. There is only one Bosnia. And
certainly, within the context of a good faith argu ment, this one Bosnia which has consistently
claimed that the Respondent was not a United Na tions Member, which has always required the
Respondent to submit specific notifications of succession ⎯ this one Bosnia cannot now argue that
the Respondent’s acceptance of precisely this very same position is a “last minute shift” of
76
position .
2.71. As Professor Pellet stated, taking up a well-known description, acquiescence and
77
estoppel preclude parties from blowing hot and cold: “on ne peut souffler le chaud et le froid” .
But blowing hot and cold is precisely what the Applicant has done over the years. It cannot in
fairness and decency now preclude the Responde nt from taking a position that it itself has
76
Cf. CR 2006/36, p. 30, para. 15 (Franck).
7CR 2006/37, p. 39, para. 15 (Pellet). - 49 -
advanced for years. Put differently, in the terminology of Judge Fitzmaurice’s opinion in the
Temple of Preah Vihar case, the Applicant has simply not “relied on” the Respondent’s alleged
failure to raise procedural arguments at an earlie r stage. That, Madam President, Members of the
Court, is the third reason why I believe Bosnia’s good faith argument must necessarily fail.
E. Summary of argument
2.72. Madam President, let me now conclude by summarizing my argument.
2.73. First, we have demonstrated that the very concepts of estoppel and acquiescence or any
other similar party-oriented mechanisms are not a pplicable with regard as to whether the FRY has
access to the Court or not. Instead, this is a purel y objective question to be decided ex officio by
the Court regardless of the position the Parties have taken.
2.74. Second, we have also demonstrated that th e behaviour of the Respondent did not
amount to a clear and unambiguous expression of a loss of right since the Respondent has
consistently questioned the Court’s jurisdiction throughout th e whole case. In such a situation, the
simple fact of not raising one jurisdictional ar gument cannot amount to estoppel or acquiescence
with regard to jurisdiction even more so if this argument was less than obvious given the
uncertainties surrounding the status of the Respondent at the time. The Respondent therefore has
neither acquiesced in the exercise of jurisdiction by this Court nor is it estopped from continuing to
raise arguments as to the Court’s jurisdiction.
2F.i7n5a.lly, third, I have also demonstrated that Bosnia and Herzegovina may not claim to
have legitimately relied on the position allegedly taken by the Respondent given its own behaviour
outside these proceedings.
2.76. Madam President, Members of the Court, this brings me to the end of my presentation
for today. I thank you for your kind attention and would now propose that you, Madam President,
call once again upon my colleague, Tibor Varady, who will then address the issue of res judicata.
The PRESIDENT: Thank you, Professor Zimmerman. Professor Varady. - 50 -
VMAr. ADY:
3. THE 1996 J UDGMENT ON JURISDICTION AND THE ISSUE OF RES JUDICATA
A. The assumption on which the 1996 Judgment on jurisdiction was based
3.1. Madam President, distinguished Members of the Court, the Applicant argued that we
78
have deprived the 1996 Judgment on jurisdiction of its meaning , and adds that the 1996 Judgment
is res judicata , and it bars the investigation of access and jurisdiction at this stage of the
proceedings. We would like to face these arguments.
3.2. First, Professor Pellet sees “dénaturation” in the fact that we submitted that the only
assumption on which the 1996 Judgment was based “is the assumption that the FRY had remained
bound by Article IX of the Genocide Convention continuing the treaty status of the former
Yugoslavia”. Professor Pellet does not deny this. He says that this is partially true, but he submits
that the decision of the Court is based on two elements: “l’ intention exprimée par la RFY d’être
79
liée, d’une part; et, l’absence de contestation opposée à cette intention d’autre part”
3.3. Madam President, let me repeat once again that it is well known that envisaging a link
between the FRY and the Genocide Convention, in 1996 the Court found a starting point in the
undisputed fact that the SFRY (the former Yugosla via) signed this Convention in 1948. This can
only be relevant with regard to the position of the FRY if the FRY continued the personality and
treaty status of the Yugoslavia which signed the Convention in 1948. And this is, indeed, the
sequence of logic the Court follows. “L’intention exprimée par le FRY...” is not an abstract
intention “d’être liée”. This is the intention to continue the pers onality of the former Yugoslavia
expressed in a declaration of 27 April 1992. The C ourt quotes this declaration, and cites the exact
part which insists on continuity:
“The Federal Republic of Yugoslavia, continuing the State, international legal
and political personality of the Socialist Fede ral Republic of Yugoslavia, shall strictly
abide by... the commitments that the Socialist Federal Republic of Yugoslavia
assumed internationally.”
78
“Le défendeur dénature le sens de l’arrêt de 1996”, CR 2006/36, p. 11 (Pellet).
79
CR 2006/36 p. 13, para. 31 (Pellet). - 51 -
3.4. Immediately after quoting this part of the declaration of continuity, the Court starts the
next sentence by saying “This intention thus e xpressed by Yugoslavia ...” (case concerning
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia), Preliminary Objecti ons, Judgment, I.C.J. Reports 1996 (II),
p.610, para.17). It is crystal clear that “this intention thus expressed” expresses the claim for
continuity. The intention the Court is referring to is the intention to continue the international legal
and political personality of the former Yugoslavia. This only confirms that the assumption on
which the 1996 Judgment on jurisdiction was based is that of continuity ⎯ the only plausible
assumption on which the FRY could have been linked to the Genocide Convention in 1996.
3.5. The Applicant is uncomfortable with this assumption, because after the 1996 Judgment
was rendered, it has become evident that this assu mption was an erroneous one. This is clearly
conceded by Professor Pellet himself. He speak s without any reservation about the “‘présomption
de continuité’ ⎯ qui eût été erronée et, de plus, contra ire à la position de la Bosnie-Herzégovine,
80
qui n’en avait jamais fait mystère” .
3.6. Demonstrating that the assumption on which the 1996Judgment on jurisdiction was
based is that of continuity, we submitted that w ith regard to the FRY, and with regard to the
intention expressed by the FRY, the Court uses the “remained bound” language, which is consistent
with the assumption of continuity, while with regard to Bosnia and Herzegovina, the “became
bound” language is used, which is consistent with the assumption of treaty action undertaken by
Bosnia and Herzegovina as a successor State. Th e inference is obvious, but the Applicant tries to
mitigate its importance, by saying that the distinct ion between “être lié” et “devenir lié” is purely
academic 81. Let me say first that the distinction between “être lié” et “devenir lié” could really be
somewhat more volatile than the distinction be tween “remained bound” and “became bound”. But
the Court in fact, does not use the “être lié” la nguage when it says what was the intention of
Yugoslavia. The French and the English texts are consistent. Instead of using the term “être lié”
which would better suit the arguments of the Appli cant, the Court speaks of the intention of the
80
CR 2006/36, p. 12, para. 30 (Pellet).
81
CR 2006/36, p. 16, para. 39 (Pellet). - 52 -
FRY “de demeurer liée” ( Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, I.C.J.
Reports 1996 (II), para. 17 (in French)) ⎯ exactly to “remain bound” which is only consistent with
the assumption of continuity.
3.7. The Applicant also mentions as a purported basis of the 1996 Judgment “l’absence de
contestation opposée à cette intention”. Madam Presiden t, first of all it is clear that the “intention”
which was not contested is the intention to conti nue the personality of the former Yugoslavia. We
are still talking about the same assumption of cont inuity. Furthermore, absence of contestation
could conceivably represent a self-supporting basis only if jurisdiction itself were not contested. In
this hypothesis ⎯ if all conditions were met ⎯ it could conceivably amount to acquiescence or
forum prorogatum. But this is not what we are talking ab out, and this is not what the Court was
talking about. Jurisdiction was contested. Moreove r, this hypothesis was clearly discarded by the
Court and has just been cited by my colleague, Professor Zimmerman.
3.8. In the context of the 1996 Judgment “l’absence de contestation opposée à cette
intention“ is nothing else but a supporting observation, and this is what the Court exactly says. In
the words of the Court: “The Court observes, furt hermore, that it has not been contested...”
(Ibidem, para. 17.) In the given exact context, absen ce of contestation was clearly not the basis of
jurisdiction. It was only an observation supporting the assumption of continuity on which the
1996 Judgment on jurisdiction was based.
B. The res judicata argument
3.9. Turning to the res judicata argument, let me first say that, contrary to what the
82
Applicant suggests, we are certainly no t trying to negate the principle of res judicata . That
would, of course, make no sense. Res judicata is, no doubt, a principle of paramount importance,
but it is not without limitations, and it does not im pede the investigation of all findings in all
judgments.
82
See section B in the presentation of Professor Pellet entiLe défendeur conteste le principe même de
l’autorité de la chose jugée”, CR 2000/36, pp. 13-17. - 53 -
3.10. Devoting due attention to the issue of res judicata, we shall demonstrate that within the
exact procedural setting of this case there are no impediments which would prevent the
investigations of access and jurisdiction in the merits phase.
1. Decisions on preliminary objections do no t and cannot have the same consequences as
decisions on the merits
3.11. Madam President, the Applicant is taki ng for granted that judgments on preliminary
objections have the same effects as judgments on the merits. It relies on several citations from
secondary sources, and on two judgments of this Court. We shall demonstrate that these sources do
not substantiate the assertion of the Respondent, and we shall also demonstrate that there is much
more support in both scholarly writings and court practice proving that it is, indeed, possible to
raise or re-raise issues of access and jurisdiction in the merits phase.
3.12. Just as in the first round of oral pleadings, the Applicant is relying on the 1949 Corfu
Channel case and on the 1999Cameroon v. Nigeria case. We have already presented our
arguments regarding these cases during the first round, and these arguments have not been rebutted.
3.13. As far as the Nigeria v. Cameroon case is concerned, it does contain a passage on
res judicata in the context of a judgment on prelimin ary objections, but as this is admitted by
83
Professor Pellet this can only be a dictum, sin ce the judgment is dealing with interpretation . As
far as the Corfu Channel cases are concerned, while in the third phase, a preliminary objection was,
indeed, dismissed on grounds that the same object ion was already dealt with earlier, the second
decision ⎯ the one rendered on the merits ⎯ actually supports the assumption that a judgment on
preliminary objections does not create res judicata impediments, since after preliminary objections
were rejected in the first phase ⎯ the preliminary objections phase ⎯ new objections regarding
jurisdiction were raised in the merits phase ⎯ and these objections were, indeed, duly considered
(Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949 , p. 26.).
Thus, the Corfu Channel cases actually lend more support to our position.
3.14. In his closing pleadings of 24April 2006, Professor Pellet also makes reference to
paragraph18 of the ICAO Council Judgment in support of his contention that the res judicata
8CR 2006/36, p. 14, para. 35 (Pellet). - 54 -
84
principle is “[f]ermemant contenu par la jurisprudence de la Cour” . But this is probably just an
oversight, because paragraph 18 does not speak at a ll about the judgments of this Court, it speaks
about the effects of the decisions of the ICAO Council itself. Let me add that the ICAO Council
Judgment provides full justification to our approach ⎯ but I shall return to this case later.
3.15. The Applicant also relies on scholarly writings, but almost all of these sources only
confirm some uncontested general principles, without addressing the specific issue we are facing.
Nagendra Singh is only cited to confirm that: “One of the most important characteristics of the law
85
declared by courts and tribunals must be stability.” Charles De Visscher is cited in support of the
proposition that “il est de l’intérêt général que les litiges ne recommencent pas indéfiniment
relativement au même objet” 86.
3.16. More to the point is the quotation from Rosenne in the context of the South-West Africa
case, but here Rosenne actually confirms that pre liminary objections may, indeed, be raised in the
merits phase, even after the Court has upheld its jurisdiction in the preliminary objections
proceedings, on the condition that the new objecti on does not raise issues that have been decided
with the force of res judicata 87.
3.17. Shabtai Rosenne is even more unequivo cal when he treats this issue outside the
specific context of the South-West Africa case. He concludes that preliminary objections may be
raised, or re-raised in the merits phase. He sp eaks of the “non-exhaustive nature” of preliminary
objections, and stresses:
“[w]hether or not matters of jurisdiction have been raised at the stage of preliminary
objections, they may still be raised later, even by the Court proprio motu . The
‘non-exhaustive quality of the preliminar y objections proceedings’ means that the
party raising an objection does not exhaust its ability to try and bar a decision on the
merits simply by invoking the preliminary objection in good time, though once out of
time it cannot prevent proceedings on the me rits which will revert to their normal
88
course from the point at which they were suspended.”
84
CR 2006/37, p. 45, para. 29 (Pellet).
85CR 2006/36, p. 21, para. 52 (Pellet).
86
CR 2006/36, p. 22, para. 56 (Pellet).
87
CR 2006/35, pp. 60-61, para. 14 (Pellet).
88S. Rosenne, The Law and Practice of the Inter national Court 1920-2005, Jurisdiction , Vol.II, Nijhoff,
Leiden/Boston, 2006, p. 876. - 55 -
Thus, preliminary objections may, indeed be ra ised after the preliminary objections stage,
they just cannot suspend the proceedings on the merits anymore, but will be heard together with the
arguments on the merits.
3.18. Madam President, our case has not been shaped along common patterns, and thus the
existing scholarly analyses are rarely inspired by cases or situations with a matching pattern. But
there are such analyses, and in order to find a pertinent point of reliance, I would like to focus ⎯ in
addition to the opinion of Rosenne ⎯ on those scholarly opinions which are addressing the exact
pattern which we are facing in our case.
3.19. A further example of scholarly opini ons based on a matching pattern is that of
Georg Schwarzenberger. He states:
“If in the interlocutory judgment the Court affirms its jurisdiction, but
subsequently, finds that it lacks jurisdiction, it would be contrary to the jus aequum
character of the relations between the Cour t and the parties to treat the judgment on
jurisdiction as irreversible.” 89
Further on, Schwarzenberger gives even more emphasis to the same point:
“In the absence of the requisite jurisdiction, any proceedings before the Court
are ultra vires and a nullity. Thus irrespective of whether the duty is expressly stated,
it is incumbent on the Court to examine ex officio this conditio sine qua non of its
activities.”90
3.20. The same position is endorsed and explaine d by Marten Bos. Discussing the range of
Article60 of the Statute, he states: “[c]ela nous paraît à tel point absurde que la Cour, en pleine
connaissance de cause, puisse être obligée de prononcer ultra vires que nous considérons ledit
article 60 comme n’étant pas applicable aux arrêts préliminaires” . 91
3.21. Madam President, there are strong arguments in favour of allowing a reconsideration of
issues of access and jurisdiction during the merits phase. These arguments are particularly forceful
with regard to situations which are matching the pattern of our case.
89
G. Schwarzenberger, International Law as Applied by International Courts and Tribunals , Vol.IV, London
1986, pp. 447-448.
90Op. cit., p. 511.
91
M. Bos, Les conditions de procès en droit international public , Bibliotheca Visserania, Vol. 19, Leiden, Brill,
1957, p. 321. - 56 -
2. There is no res judicata within the exact setting of this case
2.1.The issue of the access to the Court and the issue whether the Respondent was bound by
Article IX were not raised or considered as preliminary objections ⎯ and, thus, cannot
be res judicata
3.22. Let us now turn our attention even more closely to the exact setting of this case which
yields a number of reasons, any and all of them leading to the conclusion that the res judicata
principle does not impede the Court to investigat e issues of access and jurisdiction in the merits
phase of our case. To begin with, it is important to point out that the specific issues pertaining to
access and jurisdiction we are initiating to be ra ised in this phase of the case had not been
addressed beforehand ⎯ at least not in this case.
3.23. During the preliminary proceedings , the Respondent submitted seven preliminary
objections, and these are the objections which define the range and the scope of the 1996 Judgment.
Some of these objections dealt with jurisdiction ratione personae over the Applicant, but none of
the seven preliminary objections dealt with jurisdiction ratione personae over the Respondent. It is
a fact that none of the preliminary objections dealt with the issue whether the FRY had access to
the Court, and none of these objections raised the question whether the Respondent was bound by
Article IX of the Genocide Convention.
3.24. Madam President, Article 79 (9) of the cu rrent Rules of Court, as well as Article 79 (7)
of the Rules as they apply to our case, make it clear in identical terms what is the subject-matter
and what is the range of a judgment on preliminary objections. It is stated that “the Court shall
give its decision in the form of a judgment, by which it shall either uphold the objection, reject it,
or declare that the objection does not possess, in the circumstances of the case, an exclusively
preliminary character”.
3.25. The 1996 Judgment contains a decision in the form of a judgment on preliminary
objections ⎯ which objections did not address the ques tion whether the Court had jurisdiction
ratione personae over the Respondent, and whether the FRY had access to the Court.
3.26. Addressing the issue as to what does a judgment on jurisdiction cover and settle, the
Applicant submits that the 1996 Judgment on jurisdiction has two “dispositifs”: one which is in - 57 -
line with Article 79 of the Rules and rejects the preliminary objections raised, and another which
says that the Court has jurisdiction under Article IX of the Genocide Convention . 92
3.27. This argument is not in accordance with th e wording of Article 79, and it is contrary to
the position taken by Rosenne cited by Professor Pellet 93. In the passage cited by Professor Pellet,
Rosenne says “[i]n an appropriate case objections can be raised after the Court upheld its
jurisdiction in the preliminary objections proceedi ngs and after the proceedings on the merits have
94
been resumed” . What is the dispositif which is here contemplated? If the dispositif were the
broad ascertainment upholding jurisdiction, rather than the position taken on the specific issues and
objections raised, then what Rosenne says about raising new objections would just make no sense
once the Court upheld its jurisdiction. But Rosenne speaks of new objections that “[do] not raise
issues that have been decided with the force of res judicata in the judgment on preliminary
95
objections” . He assumes that jurisdiction once upheld may be challenged by new objections ⎯
and this is perfectly in line with the wording of Article 79, and with the assumption that a decision
on particular objections is the decision which may become res judicata in a judgment on
preliminary objections.
3.28. Let me finally add, Madam President that , even if one were to accept the definition of
dispositif offered by Professor Pellet, it would not cover the issue of access, which is not mentioned
in those sentences in the 1996 Judgment whic h Professor Pellet considers to be the dispositif. This
point will be further developed by my colleague Djeric.
3.29. Accordingly, the specific issues we rai sed in our initiative had not been raised as
preliminary objections, and they are not covered by the 1996 Judgment on preliminary objections.
The application for revision was denied, and the Court did not reach the stage in which the
proposed issues could have been considered. It fo llows that, even if one would not distinguish the
effects of a judgment on jurisdiction from the effects of a judgment on the merits, quid non, neither
92CR 2006/36, pp. 16-17, para. 41 (Pellet).
93
CR 2006/35, p. 60, para. 14 (Pellet).
94Rosenne, op. cit., p. 865.
95
Rosenne, op. cit., p. 865. - 58 -
the question of access to the Court of the Respondent nor the question of jurisdiction
ratione personae over the Respondent based on the Genoc ide Convention could have become res
judicata.
2.2.It is a well-established principle that the Court must always be satisfied that it has
jurisdiction
3.30. Madam President, let me present a furthe r argument and demonstrate that even if one
were to assume that decisions on preliminary objections may have res judicata effects between the
parties, and even if one were to assume that th ese effects even extend to objections which were not
raised in the preliminary phase, quid non, this could not impede the Court from addressing issues of
access and jurisdiction during the merits phase of the case.
3.31. The distinct character of a decision on jurisdiction follows from the Statute itself.
Article 59 of the Statute which defines the nature and the range of the res judicata effect states that:
“The decision of the Court has no binding force exce pt between the parties and in respect of that
particular case.” In other words the binding force of the judgment is clearly limited to the rights and
duties of the parties.
3.32. In our case, however, we are talking ab out access and jurisdiction, and this is not
simply a matter of rights and duties of the Parties. It is primarily a right and duty of the Court.
There is no binding force imposed by Article 59 impeding the Court to open or reopen
proprio motu the issue of its own authority to proceed, if this appears to be necessary under the
specific circumstances of the case ⎯ and this is what we are initiating.
3.33. This understanding has been clearly confirmed by Professor Bernhardt. In his
comment on Article 59 of the Statute, under the title “Binding Force with Regard to the Court?”, he
states: “Article 59 does not concern the binding force of a decision for the Court itself.” 96
3.34. This takes us back to the compelling logic of the ICAO Council Judgment ( Appeal
Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports
1972, p. 46) which addresses and answers the questi on whether the Court itself may raise the issue
of its jurisdiction ⎯ and whether it has to do so under appropriate circumstances. The Court
96
A. Zimmermann, E. Tomuschat, K. Oellers-Fram (Eds), The Statute of the Interna tional Court of Justice: A
Commentary, Oxford 2006, p. 1240. - 59 -
confirmed unequivocally that jurisdictional objectio ns may, indeed, be raised during the merits
phase, and that the Court must always be satisfied that it has jurisdiction.
3.35. Let me state once again what this Court said:
“It is certainly to be desired that objections to the jurisdiction of the Court
should be put forward as preliminary objec tions for separate decision in advance of
the proceedings on the merits. The Court must however always be satisfied that it has
jurisdiction, and must if necessary go into that matter proprio motu.” (Ibidem, p. 52,
para. 13.)
3.36. The Applicant does not contest this principl e. Professor Pellet states: “il ne fait aucun
doute, que la Cour ‘doit . . . toujours s’assurer de sa compétence’” . He submits, however, that the
98
fact that the Court may examine its jurisdiction does not mean that it may also re-examine it ; and
adds that the fact that the Court must always be satisfied that it has jurisdiction does not mean that
it can return to it “à tout moment”. Professor Pellet submits: “La Cour doit s’assurer de sa
compétence: l’arrêt de 1996 lui a donné l’occasion de le faire; elle ne peut, aujourd’hui, remettre
en question sa propre autorité.” 99 He also makes the point that “Il ne suffit pas qu’une règle
permissive permette à la Cour de s’assurer de sa compétence pour qu’elle puisse le faire sans aucun
autre fondement juridique; . . . ” 100
3.37. Madam President, let me start with th e last sentence. If there is an uncontested
principle stating that the Court must always be sa tisfied that it has jurisdiction and that it must if
necessary go into the matter proprio motu, then, obviously, this legal principle set by the Court is
the “fondement juridique” to do so. It is a di fferent question whether the Court will see sufficient
reasons in the circumstances of the case to undert ake an investigation and to take a different
position on access and jurisdiction. We shall demonstrate that there are abundant reasons to do so.
3.38. A second line of argument of the Applicant is that “always” does not mean “at any
moment”; that the right and duty to examine does not imply the right and duty to re-examine, and
97CR 2006/35, p. 57, para. 8 (Pellet).
98
Ibid., pp. 58-59, para. 10 (Pellet).
99CR 2006/37. p. 47, para. 30 (Pellet).
100CR 2006/36, p. 24, para. 61 (Pellet). - 60 -
that the Court somehow forfeited the possi bility to examine access and jurisdiction proprio motu
after it did not seise this occasion in 1996.
3.39. Madam President, these arguments have no foundation whatsoever in either the text, or
in the context or logic of the ICAO Council Judgment. First, let me ask that if “always” does not
mean “at any time” what could it then mean? In the ICAO Council case the question arose whether
objections to jurisdiction can be raised at a late r moment, in the merits phase, and the answer was
yes, because the Court must “always be satisfied that it has jurisdiction ”, obviously including the
merits phase as well.
3.40. Our case cannot be distinguished from the ICAO Council case on that ground either
that in the ICAO case objections to jurisdiction were only ra ised by the Respondent in the merits
phase, while in our case the Respondent already contested jurisdiction in the preliminary objections
phase. This circumstance is irrelevant, first of all because we are not raising the same objections
which were raised in the preliminary objections phase. Furthermore ⎯ and most importantly ⎯
the established principle is independent not onl y from the timing of party motion or from the
circumstance whether the party is raising or re-raising certain jurisdictional issues, the principle is
independent from party motion altogether . The ICAO Council Judgment speaks of the right and
duty of the Court to act proprio motu.
3.41. The remaining question is whether the Court can somehow forfeit this right by not
raising the issue proprio motu in the preliminary objections phase. The answer is, again, clearly
negative. First of all, the ICAO Council Judgment does not talk about a privilege which would be
lost if the first occasion was not seised. The ICAO Council Judgment says that the Court must
“always be satisfied that it has jurisdiction, and must if necessary go into that matter proprio motu”.
Furthermore, the whole point is that since the Court cannot act ultra vires, it therefore has to
consider new information and clarifications emerging after the preliminary objections phase, and to
decline jurisdiction if it is not satisfied that it has jurisdiction.
3.42. In our case there was no sufficient in formation in 1996 which would have prompted
and answered the questions which are prompted a nd which can be answered today. In 1996, the
failure to contest the assumption of continuity w as just not a failure to raise the obvious, which
failure would yield some sort of forum prorogatum for the Respondent and an impossibility to raise - 61 -
the question of jurisdiction proprio motu for the Court. It has been described and repeated many
times that the situation was not transparent, that it was anomalous. But there can be no stronger
evidence to this than the attitude of the Appli cant during these very proceedings. Several counsel
of the Applicant still maintain that there was continuity.
3.43. Madam President, let me address at th is point another argument advanced by the
Applicant, this time referring not to the founda tions but to the possible implementation of the
principle set in the ICAO Council Judgment. Professor Pellet states that there are no criteria to
establish what circumstances are exceptional, and this could have a destabilizing effect 10.
3.44. The term “special circumstances” is, of course, a general standard, one of the many,
which has to be interpreted in given cases. Let me mention that the same general standard has been
used by other international courts as well, such as the European Court of Human Rights. I shall
return to the practice of other courts in a few mome nts. At this point, let me just say that it is
difficult to imagine a case in which new develo pments and new information would be as special
and as consequential as in this case. To begin with, one of the key underlying issues is United
Nations membership of the FRY between 1992 and 2000, and since 1November 2000 we have a
pronouncement of the competent authority, the General Assembly. Also, it is generally recognized
that legal uncertainty and unclarity were preva iling at the time when the Judgment on preliminary
objections was rendered, and that this has come to an end. It cannot be maintained any more that
the FRY was a party to the Statute until 1 Novemb er 2000, or that it remained or became bound by
ArticleIX of the Genocide Convention. This new perspective, based on newly emerging
information, was unequivocally confirmed in the 2004 Legality of Use of Force Judgments, which
established that the Respondent was not a party to the Statute, had no access to the Court between
1992 and 2000, and opened the question whethe r the Respondent could have been bound by
Article IX of the Genocide Convention. These circumstances, without precedent and most unlikely
to ever get repeated, are certainly special, a nd it is clear that under these circumstances it is
necessary to undertake an investigation of issues of access and jurisdiction.
10CR 2006/36, p. 19, paras. 47-48 (Pellet). - 62 -
3.45. Madam President, Members of the Court, the rule and principle spelled out in the ICAO
Council Judgment makes it clear that the Court may and should open the issue of jurisdiction in the
merits phase if this is prompted by the special circumstances of the case. This is why in its
correspondence with the Parties in this case, the Court referred exactly to the ICAO case in its letter
of 12 June 2003 permitting the Respondent to presen t further arguments on jurisdictional questions
during the oral proceedings on the merits.
2.3.The special circumstances of this case make a new investigation of the issues of access and
jurisdiction unavoidable
3.46. Madam President, I would like to present another independent reason showing that the
special circumstances of our case make unavoidable the investigation of the issues of access and
jurisdiction in the merits phase.
3.47. So far, we have been discussing the issue of whether the Statute does or does not
provide a foothold for res judicata effects at all ⎯ and towards the Court in particular ⎯ if we are
talking about a judgment on preliminary objections . In other words, we were discussing whether
the restrictions imposed by Articles 59 and 60 of the Statute, which would impede the parties or the
Court to raise or re-raise the issue of jurisdicti on in the merits phase, when serious indications
emerge showing that the perceived basis of jurisdiction did not and does not exist.
3.h8e. ICAO Council Judgment made it plain that that the effects yielded by the Statute
cannot impede the Court itself to consider the issue of jurisdiction proprio motu in the merits
phase. The facts of our case open an even more funda mental question. In our case there is a truly
exceptional circumstance that has a consequential impact on the ability of the Court to decide on its
jurisdiction with a binding force, and on the effects of such a judgment. The question is not only
what are the exact effects of Articles 59 and 60 regarding a judgment on jurisdiction, but whether
the Statute could have endowed the 1996Judgment with any effects at all, since the Respondent
was not a party to the Statute.
3.49. Madam President, while domestic courts have an anchor of their power to decide in the
sovereign authority of the forum State, the corres ponding anchor of this honoured Court is a treaty,
the Statute of the Court. This is the foundatio n which endows the decisions of the Court with
specific consequences. But the rights and duties established by the Statute flow from the consent - 63 -
of the States who are parties to the Statute. What makes our case so exceptional is that the essential
foundation and framework were simply missing when the 1996 Judgment was rendered. Hence in
our case, the question is not only what specific conclusions are supported by the foothold in the
Statute, but whether such a foothold existed at all.
3.50. Today it is known that in 1996 when the decision on preliminary objections was
rendered, the Respondent was not a party to the Statute. Thus, there was no foothold,
Articles36(6), 59, and 60 did not represent a binding treaty provision providing a possible basis
for deciding on jurisdiction with res judicata effects.
3.51. Our position is, and we trust that this has been demonstrated, that there are no
impediments to investigating or reinvestiga ting access and jurisdiction in the merits phase ⎯
particularly not when such an investigation is undertaken by the Court itself, proprio motu. This
conclusion is even more manifest in a case in which the very anchor for exercising judicial function
was missing, since the competence of the Court to decide on its jurisdiction in the preliminary
phase was not based on the Statute, and the eff ects of the pronouncement were not determined
either by the Statute.
3.52. Madam President, our position is that the principles rightly set by the ICAO Council
Judgment allow the Court to consider issues of ac cess and jurisdiction in the merits phase even if
the Respondent had been a party to the Statute wh en preliminary objections were considered, and
when the Judgment on jurisdiction was rendered. The specific, unusual, but clearly established
circumstance that the Respondent was not a party to the Statute in 1996 when the Judgment on
jurisdiction was rendered provides a strong added reason for holding that the 1996 Judgment
cannot be conclusive. Thus, it is clearly justified to consider in this phase of the proceedings issues
of access and jurisdiction in the light of conseque ntial new information which was not available in
1996, and which was recognized in the 2004 Legality of Use of Force Judgments.
3. Treaties, rules, and practice of international courts
3.1 Treaties and rules
3.53. Madam President, addressing our submission that it is, indeed, possible to investigate
access and jurisdiction in the merits phase afte r the 1996 Judgment was rendered, our esteemed - 64 -
colleague Professor Pellet submits that this would mean that “l’arrêt du 11 juillet 1996 serait tout à
fait exceptionnel, non seulement dans la jurisprudence de la Cour mais dans les annales judiciaires,
toutes juridictions confondues . . .” 102 The same line of argument returns in the closing
observations of Professor Pellet. He submits “aucun corps judiciaire ne peut deux fois sur le métier
remettre son ouvrage” 103.
3.54. With due respect but this is simply not true. What we are suggesting is not a unique
oddity, unknown in international jurisprudence. We shall demonstrate that the right of the Court to
reinvestigate its jurisdiction during the merits phase under circumstances like those which have
arisen in our case, is not a strange exception, but pretty much a mainstream solution, widely
accepted in treaties and rules. The practice of othe r international courts is in harmony with the
principle set in the ICAO Council Judgment.
3.55. First of all, the principle according to which an international court may consider or
reconsider the issue of jurisdiction at any stage of the proceedings has e xpressly been stated in
international conventions and rules of interna tional tribunals. For example, the European
Convention for the Protection of Human Right s and Fundamental Freedoms provides in its
Article35, paragraph4: “The Court shall rej ect any application which it considers inadmissible
under this Article. It may do so at any stage of the proceedings.” (Emphasis added.)
3.56. In the same vein, the Statute of the In ternational Criminal Court makes it also clear
that ⎯ if this is prompted by exceptional circumstances ⎯ the issue of jurisdiction may be brought
up at any stage of the proceedings, and it may be brought up more than once. According to
Article 19 (4) of the Rome Statute:
“The admissibility of a case or the jurisdiction of the Court may be challenged
only once by any person or State referred to in paragraph 2. The challenge shall take
place prior to or at the commencement of the trial. In exceptional circumstances, the
Court may grant leave for the challenge to be brought more than once or at a time
later than the commencement of the trial.” (Emphasis added.)
3.57. To cite one more important example, th e Rules of the European Court of Justice have
also given explicit recognition to this principle. According to Article 92 (2):
102
CR 2006/36, p. 11, para. 27 (Pellet).
103
CR 2006/37, p. 47 para. 31 (Pellet). - 65 -
Cmoart at any time of its own motion consider whether there exists any
absolute bar to proceeding with a case or d eclare, after hearing the parties, that the
action has become devoid of purpose and that there is no need to adjudicate on it”
(emphasis added).
3.2 Practice of other international courts
3.58. Madam President, the principle is clear, and it follows from the nature of the power of
international courts, and from the jus aequum character of the relationship between the parties and
the court. An international court must always be satisfied that it has jurisdiction. The principle
according to which the Court may decide on its ow n competence is not limited to the preliminary
phase, and the power of the Court to control its competence is not limited to one pronouncement.
An earlier position taken by an international court cannot substitute a basis of jurisdiction, the court
cannot just rely on its own earlier stance, but must always be satisfied that it has power to decide
the case.
3.59. This principle was clearly phrased by President McNair in the Anglo Iranian Oil Co.
case. The wording extends to international courts in general, but the primary focus is, of course, on
this Court. In the words of President McNair:
“An international tribunal cannot regard a question of jurisdiction solely as a
question inter partes. That aspect does not exhaust the matter. The Court itself,
acting proprio motu, must be satisfied that any State which is brought before it . . . has
consented to the jurisdiction.” (Anglo-Iranian Oil Co. case (United Kingdom v. Iran),
Preliminary Objections, Judgment, I.C.J. Reports 1952, p. 116.)
The reasons behind this principle are even stronger when the international court is not a part of a
multilevel system, and thus it has to supervise it self whether preconditions for adjudication were
met.
3.60. One may point out that there have to be compelling reasons to depart from the sensible
proposition that preliminary questions should be an swered in the preliminary phase. The number
of cases in which such compelling exceptional reasons may possibly emerge is scarce. At the same
time, evidence shows that when such exceptional circumstances did emerge, the issue of
jurisdiction was considered or reconsidered at a later stage of the proceedings. - 66 -
104
3.61. In the case Storck v. Germany brought before the European Court of Human Rights,
a committee of three judges declared the appli cation inadmissible on 15 October 2002. The
Applicant asked the Court to reopen the proceedi ngs. On 28 January 2003 the same committee of
three judges decided to reopen the proceedings. In its decision of 26October2004 the Court
changed its ruling on admissibility, and declared the application admissible against the objections
of the German Government and against the argument that the 2002 decision on admissibility is res
judicata, and that the case cannot be reopened . The ECHR held: “However, in exceptional
circumstances, . . ., the Court does have, in the intere st of justice, the inherent power to re-open the
105
case which had been declared inadmissible and to rectify those errors.”
3.62. It is important to mention that in this case the Court changed its decision from
inadmissibility to admissibility, which is actually a harder test of the limits of the power to
reconsider preliminary matters. If preliminary obj ections are rejected, the case continues, and the
only question is whether objections to jurisdiction ma y be raised again at a later stage of the same
proceedings. If preliminary objections are sustained, the matter is concluded, and the whole case
has to be reopened in order to allow the reconsider ation of the issue of admissibility. This is why
several authors advocating the possibility to reopen th e issue of jurisdiction restrict their opinion to
cases in which jurisdiction was initially upheld and where the case will, thus, normally continue 106.
3.63. In the Storck case, after admissibility was reconsidered, the same issue was raised once
again ⎯ thus a third time ⎯ in the merits phase, and again be fore the same judges who rendered
the earlier decisions. Germany requested the Cour t to declare the application inadmissible, and
repeated its argument that the case was res judicata after the first decision, and that the Court did
not have the right to reopen the case after the app lication was once declared inadmissible. In its
104
Waltraud Storck v. Germany , ECHR, Application No. 61603/00, Decision on Admissibility of
26 October 2004.
10Ibidem, p. 12.
106
For example, Lamberti Zanardi, “Il procedimento sulle eccezioni preliminari nel processo devanti alla Corte
internazionale di Giustizia”, Rivista di diritto internazionale, 1965, fasc. 4, 537, at 559. - 67 -
decision of 16 June 2005 the Court considered the objection, but rejected this argument, citing its
own reasoning according to which the court has “[t]he inherent power to reopen a case” 107.
3.64. The practice of the ECHR clearly show s that the question of jurisdiction may be
considered or reconsidered at any stage of the proceedings, in all situations, either on party motion,
108
or proprio motu . As a further example, I would like to mention a most recent ECHR decision, in
which the underlying fact pattern was different, but the problem and the position taken was the
109
same. In the case of Blečić v. Croatia finally decided on 8 March 2006, the question arose
whether the Government of Croatia can raise pre liminary objections in the merits phase of the
proceedings, after it failed to do so in the preliminary phase ⎯ and after the same question of
jurisdiction was raised in the preliminary phase by the Court itself, and the Court held that it had
jurisdiction. The Grand Chamber remained faithful to the principle that the Court may reconsider
issues of jurisdiction at any stage of the proceedings, it consid ered the objections to jurisdiction
raised by Croatia, and finally decided that it had no jurisdiction. The ECHR held, and I’m quoting:
“Accordingly, the Court, . . . has to satisfy itsel f that it has jurisdiction in any case brought before
it, and is therefore obliged to examine the quest ion of its jurisdiction at every stage of the
proceedings.” 110
3.65. Madam President, Members of the Court, the same principle which found expression in
international conventions as well as in rules and pr actice of international courts, was also adopted
in arbitration cases where this was necessitated by the special circumstances of the case. In the
Von Tiedemann case, which was shaped along the very same pattern as our case, the obtaining
exceptional circumstances prompted the Mixed Ar bitral Tribunal to reconsider its decision on
jurisdiction and to declare lack of jurisdiction.
107Storck v. Germany , ECHR, Application No. 61603/00, Judgment (Merits and Just Satisfaction) of
16 June 2005, p. 8.
108
See, among other cases, Azinas v. Cyprus (Grand Chamber), No.56679/00, para. 32, ECHR 2004-III;
Odièvre v. France (Grand Chamber), No. 42326/98, para. 22, ECHR 2003-III; Nielsen v. Denmark , No. 343/57,
Commission decision of 2 September 1959, Yearbook 2, p. 454.
109Blecic v. Croatia, ECHR (Grand Chamber), Application No. 59532/00, Judgment of 8 March 2006.
110
Ibidem, p.17, para. 67. - 68 -
3Th6e. Von Tiedemann problem is a mirror image of our problem. We have included this
case in our judges’ folders at tab 3.
Madam President, I will probably have to go about five or six minutes beyond time, if you
allow me to do so.
The PRESIDENT: Yes, certainly.
Mr. VARADY: Thank you very much.
The Mixed Arbitral Tribunal was faced with a complex of several cases in which the same
question was raised. The issue was that of the capacity of one of th e parties. As in our case, the
German-Polish Mixed Arbitral Tribunal first declar ed itself competent, rejecting the preliminary
objections of the Polish State 11. After that, and before reaching the merits in the Von Tiedemann
case, the Mixed Arbitral Tribunal had to decide on its jurisdiction in six other parallel cases which
were based on the very same fact pattern ⎯ again a situation which is practically the same as the
situation which developed following the Legality of Use of Force cases. In these six cases (Kunkel
and others), the Tribunal declined jurisdiction.
3.67. The reason for declining jurisdiction is, again, most familiar. It pertains to the capacity
of the applicants. As th is was summarized in the Von Tiedemann decision ⎯ and this can be
followed in tab 3 on page 4:
“Par arrêt du 2 décembre 1925 en cause K unkel et consorts c. Etat polonais . . .
le Tribunal a posé en principe qu’il est in compétent pour statuer sur les réclamations
formées contre l’Etat polonais en tant que les requérants les fondent sur leur qualité
prétendue de ressortissants polonais.” 112
3.68. After dismissal of jurisdiction in six parallel cases, Poland m oved for reconsideration
of jurisdiction in the Von Tiedemann case in which the issue was the same as in the six other cases.
The applicant opposed reconsideration, arguing th at the issue of jurisdiction cannot be revisited
because it was definitively settled by the earlier de cision on jurisdiction. The Tribunal opted to
reconsider its own previous decision on jurisdiction, and eventually it declared itself being without
jurisdiction in the Von Tiedemann case too. The Tribunal stated that in order to follow the
111
Von Tiedemann v. Polish State, Rec. TAM, t. VI, pp. 997-1003.
112
Ibidem, p. 1000. - 69 -
principle of res judicata it would be obliged to commit an “excès de pouvoir” 113, and this would
114
render the decision ultra vires and non-binding upon the parties .
3.69. The Tribunal made its position crystal clear –– you may follow this citation at tab3,
page 5:
“le tribunal estime que, dans l’intérêt de la sécurité du droit, il importe que ce qui a été
jugé, soit, en principe, tenu pour définitif.
Mais la question se présente sous un aspect tout particulier lorsque le jugement
préliminaire rendu est un jugement affirmant la compétence du Tribunal et que
celui-ci constate dans la suite, mais avant le jugement au fond, qu’en réalité il est
incompétent. En pareil cas, s’il s’était obligé de se regarder comme lié par sa
première décision, il serait amené à statuer sur une matière dont il reconnaît cependant
qu’elle échappe à sa juridiction. Et lorsque ⎯ comme en l’espèce ⎯ il a entre-temps
proclamé son incompétence dans des causes identiques, il se mettrait en contradiction
irréductible avec lui-même en jugeant néanmo ins au fond et il s’exposerait au risque
de voir l’Etat défendeur s’autoriser de l’aveu d’incompétence émanant du tribunal
même pour refuser d’exécuter sa sentence . . .
En d’autres termes, pour rester fidèle au principe du respect de la chose jugée, il
115
devrait commettre un abus manifeste de pouvoir.”
3.70. The very same logic applies to our case as well. The authority of a decision on
preliminary objections cannot substitute the bases of jurisdiction defined in the Statute ⎯ even less
can it substitute preconditions for access.
C. Conclusions
3.71. Madam President, distinguished Members of the Court, let me conclude first of all that
the 1996 Judgment was based on the assumption of continuity, that is, on the assumption that the
FRY continued the personality, United Nations me mbership and treaty status of the former
Yugoslavia. By now, it has become evident that this assumption was erroneous. This is conceded
by our opponent Professor Pellet as well.
3.72. The 1996 Judgment does not impede this Court to investigate access and jurisdiction in
the merits phase of this case. It does not, because
113
Ibidem, p. 1001.
11Ibidem.
11Ibidem. - 70 -
⎯ first, decisions on preliminary objections do not have the same effects as final decisions on the
merits;
⎯ secondly, the issues whether the Respondent ha d access to the Court and whether it was bound
by Article IX of the Genocide Convention were not raised as preliminary objections, and were
not decided;
⎯ thirdly, the uncontested principle stated in the ICAO Council Judgment makes it clear that the
Court must always be satisfied that it has juri sdiction and that it can investigate this issue
proprio motu in the merits phase as well;
⎯ fourthly, at the time when the 1996 Judgment was rendered, the Statute was not a binding
treaty between the parties, thus the Statute could not have endowe d this Judgment with res
judicata effects;
⎯ and fifthly, reinvestigation of access and jurisd iction in the merits phase after a judgment on
preliminary objections was rendered, is not only in line with the principle stated by this Court
in the ICAO Council case, it is also perfectly in line with rules and practice of other
international courts.
We have also demonstrated that special circumstances which make an investigation of access
and jurisdiction necessary, clearly exist.
This concludes our presentation this afternoon, and I thank you very much for your attention.
The PRESIDENT: Thank you, Professor Varady.
The Court now rises. The hearings will resume at 10 o’clock tomorrow morning.
The Court rose at 6.05 p.m.
___________
Public sitting held on Monday 8 May 2006, at 3 p.m., at the Peace Palace, President Higgins presiding