Application instituting proceedings

INTERNATIONAL COURT OF JUSTICE

APPLICATION

INSTITUTING PROCEEDINGS

filed in the Registry of the Court
on 24 April 2001

APPLICATION FOR REVISION
OF THE JUDGMENT OF 11 JULY 1996
IN THE CASE CONCERNING APPLICATION
OF THE CONVENTION ON THE PREVENTION
AND PUNISHMENT OF THE CRIME

OF GENOCIDE (BOSNIA AND HERZEGOVINA
v. YUGOSLAVIA),PRELIMINARY OBJECTIONS

(YUGOSLAVIv.BOSNIA AND HERZEGOVINA)

COUR INTERNATIONALDE JUSTICE

INTRODUCTIVE D'INSTANCE

enregile 24 avril 2001e la Cour

DEMANDE EN REVISION
DE L'ARRÊT DU 11 JUILLET 1996
EN L'AFFAIRE RELATIVE À L'APPLICATION
DE LA CONVENTION POUR LA PRÉVENTION
ET LA RÉPRESSION DU CRIME DE GÉNOCIDE
JBOSNIE- HERZÉGO VINE C.YOUGOSLA VIE),
EXCEPTIONS PRÉLIMINAIRES

(YOUGOSLAVIE c. BOSNIE-HERZÉGOVINE) 2000
General List
No. 122

1. THE FEDERAL MINISTER FORFOREIGN AFFAIRSOF THE
FEDERAL REPUBLICOFYUGOSLAVIA TOTHE REGISTRAR
OF THE INTERNATIONAL COURTOF JUSTICE

Belgrade,24April2001.

1 am pleased to inform you that Professor Tibor Varady, Chief Legal
Advisor, Federal Ministry of Foreign Affairs, and Mr. Vladimir Djerik, Advi-
sor to the Federal Minister for Foreign Affairs, have been appointed as Agents
in the proceedings relating to the Application for Revision of the Judgment of
11 July 1996 in the case concerning Application of the Conventionon the Pre-
vention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia.

(Signed) Goran SVILANOVIC. II. THE AGENT OFTHE FEDERAL REPUBLIC
OF YUGOSLAVIATOTHE REGISTRAR
OFTHE INTERNATIONALCOURTOF JUSTICE

1 have the honour to submit to the Court the Application for Revision of the
Judgment of 11July 1996in the case concerning Applicationof the Conventionon
the Prevention and Punishmeno tf the Crime of Genocide(Bosnia and Herzego-
vinav. Yugoslavia),dated 23April2001, as wellas one volume of Annexes '.
The Application is filed in accordance and within the time-limit set out in
Article 61 of theStatute. In accordance with the respective Rules and practice
of the Court, 1submit a certified copyof the Application.

1am pleased to certify that the copies of the annexed documents are true copies
of the originals.

(Signed) Professor Tibor VARADY,
Agent of the Federal Republic of Yugoslavia
before the International Court of Justice.

'See footnote on page 58. [Note by the Regisrry.] III. APPLICATIONINSTITUTING PROCEEDINGS

CONTENTS

Page
A. Short summary of the relief sought and of the ground for relief . . . . 8
B. Background and sequence of the relevant facts . . . . . . . . . . . . . . 10
The cessation of the SFRY, and courses of action taken by successor
States in order to acquire or confirm statehood . . . . . . . . . . . .

International responses to the FRY'Sclaim to continuity . . .. . . . .
Membership dues paid to the United Nations . . . . . . . . . . . . . .

The issue of continuity and the membership of the FRY in treaties .

The issues of continuity and of the standing of the FRY in the
United Nations and in international treaties, as they have arisen
before this Court . . . . . . . . . . . . .. . . . . . . . . . . . . . . .
Continued lack of clarity and continued lack of conclusive facts
regarding the status of the FRY . . . . . . . . . . . . .. . . . . . .
ConNations and in international treaties of th. . . .n.t. . . . . . . . . . . . .

C. Admissibility of the Application for Revision of the Judgment of
11July 1996,on ground of Article 61 of the Statute . . . . . . . . . . .
C.1.New fact "of such a nature to be a decisivefactor" . . . . . . . . .
The FRY has not become a party to the Statute on ground of
Article 93 (2)of the United Nations Charter . . . . . . . . . . . .
Jurisdiction over the FRY could not have been established on
ground of Article 35 (2) of the Statute . . . . . . . . . . . . . . . .
Even under a most extensive reading of Article 35 (2), considering
the facts of this case, jurisdiction over the FRY cannot be estab-
lished on ground of "special provisions contained in treaties in
force" . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . .
C.2. Fact "unknown to the Court and to the party claiming revision
at the time of the judgment" . . . . . .. . . . . . . . . . . . . . . .
D. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E. Submissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
List of Annexes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. SHORTSUMMARY OF THE RELIEFSOUGHT
AND OF THE GROUND FOR RELIEF

1. In its Judgment of 11July 1996in the caseconcerningthe Application of the
Convention on thePreventionand Punishment of the Crime of Genocide, dealing
with preliminary objections,the Court found that it had jurisdiction rationeper-
sonaeover Yugoslaviaon ground of Article IX of the Convention on the Preven-
tion and Punishment of the Crime of Genocide. This ruling was explained in

paragraph 17 of the Judgment. Paragraph41 states that the Court was unable
to uphold any additional basis of jurisdiction other than the one provided by
Article IXof the saidConvention.
In this Application the Government of the Federal Republic of Yugoslavia
(hereinafter: "the FRY") arguesthat this honoured Court did not have and does
not havejurisdiction overYugoslaviain the caseconcerningthe Application of the
Conventionon the Prevention andPunishment of the Crimeof Genocide(here-
inafter: "Bosnia-Herzegovinav. Yugoslavia").
2. Applicant shall argue that this submission is admissible on the following
ground :

the facts and the circumstancesof the caseprovide adequate foundation for
an Application for Revision of the Judgment of 11July 1996on ground of
Article 61 of the Statute of the Court.

3. Applicant shallarguethat therearethree clearand conclusive reasonswhich
lead to the conclusionthat this honoured Court has no jurisdiction over the FRY
in the present case:

(a) The FRY was not a Member of the United Nations on 20 March 1993when
the Application of the Republic of Bosnia and Herzegovina was filed, or at
anylatermoment until the Judgment of 11July 1996wasrendered(norwas it
a Member thereafter,until 1November 2000) ;
(b) The FRY was not a State party to the Statute of this Court on 20 March
1993,or at any later date until the Judgment of 11July 1996was rendered
(nor was it a Member thereafter,until 1 November 2000). Also, the FRY
never submitted a declaration in pursuance to Article 35 of the Statute
and in accordancewith the resolution of the Security Council of 15Octo-
ber 1946, which declaration could have represented a basis for jurisdiction
over the FRY as a non-party to the Statute ;
(c) The FRY was not a contracting party to the Convention on the Prevention
and Punishment of the Crime of Genocide (hereinafter :"the Genocide Con-
vention") on either20March 1993or at any latermoment until the rendering

of the Judgment of 11July 1996.(Nor has it been a Contracting State there-
after,until this date.)According to Article XI of the GenocideConvention, it
is only open to Members of the United Nations, or to non-Member States to
which an invitation to sign or accede has been addressed by the General
Assembly.The FRY wasnot a Member of the United Nations until 1Novem-
ber 2000, and it never receivedan invitation from the General Assembly to
signor accede.Furthermore,the FRY neveracceptedArticle IXof the Geno-
cide Convention. (The FRY did senda notification of accessionon 8 March
2001,which hasnot yet become effective - and whichmakes a reservationto
Article IX.) B. BACKGROUN DND SEQUENCE OF THE RELEVANT FACTS

The Cessation of theSFRI: and Coursesof ActionTaken
by SuccessorStates in Orderto Acquire
or ConjïrmStatehood

4. During 1992 the Socialist Federal Republic of Yugoslavia (hereinafter :
SFRY) ceased to exist. Former republics of the SFRY took different courses
of action endeavouring to acquire or confirm statehood. The former Govern-
ment of the FRY insisted on continuity and asserted that it continued the
statehood and personality of the SFRY. Before 27 October 2000, the FRY
did not seek admission to the United Nations, and did not give notifications
of accession to treaties, neither did it give notifications of succession to the
treaties ratified by the SFRY (as other successor States did). The FRY
asserted instead that it was a Member of the United Nations automaticallv
(continuing the membership of the SFRY), and suggested that it also
continued treatv membershi~ of the SFRY automaticallv. The former
Government of*the FRY stiessed repeatedly that the FRY (consisting of
Serbia and Montenegro) continued the statehood of the SFRY from which
other republics had seceded.

5. This was first stated in a Declaration' sent to the General Assembly of
the United Nations. This Declaration was adopted on 27 April 1992 at a

joint session of the Assembly of the SFRY *,the National Assembly of the
Republic of Serbia, and the Assembly of Montenegro. In the text it was
indicated that this was a Declaration of "the representatives of the people of
the Republic of Serbia and the Republic of Montenegro" - at the end of
the text, "the participants of the joint session" were identified as signatories.
The opening sentence of this Declaration stresses that the citizens of Serbia
and Montenegro expressed their common will "to stay in the common state
of Yugoslavia". The underlying political idea which conditioned the opinions
expressed in the Declaration was clearly the perception that Yugoslavia
continued to exist, that the FRY was the same State as the SFRY, and
continued the identity of the SFRY.
The purpose of the Declaration was to state the views of the participants on
policy objectives.As stressedin the introductory part of the Declara:ion

"Remaining strictly comrnitted to the peaceful resolution of the Yugoslav
crisis,wish to state in thisDeclaration their views onthe basic, immediate and
lasting objectives of the policy of their common state, and its relations with
the former YugoslavRepublics."

The first "view"stated wasthe one which wascited and reliedupon by the Court
in its Judgment of 11July 1996:
"The Federal Republic of Yugoslavia, continuing the State, international
legaland political personality of the SocialistFederal Republic of Yugoslavia,
shall strictly abide by al1 the commitments that the SFR of Yugoslavia
assumed internationally."

*At that time,it was contested whetherthe SFRY and its National Assembly stillexisted. The Declaration wasbrought to the attention of the United Nations by a Note.

The sender was identifiedas "Permanent Mission of the Socialist Federal Repub-
lic of Yugoslavia(Federal Republic of Yugoslavia)". The Note stresses that under
the newlypromulgated Constitution

"[oln the basis of the continuing personality of Yugoslaviaand the legitimate

decisions by Serbia and Montenegro to continue to live together in
Yugoslavia, the Socialist Federal Republic of Yugoslavia is transformed into
the Federal Republic of Yugoslavia,consisting of the Republic of Serbia and
the Republic of Montenegro."

This Note considers the FRY to be a founding Member of the United
Nations 3.
The postulate of continuity was consistently maintained and reiterated by the
former Government of the FRY
6. Other former republics of the SFRY adopted a different approach,
seeking admission to the United Nations and to other international organi-
zations as new States. The approach taken by Bosnia-Herzegovina, and
by other former republics with the exception of Serbia and Montenegro,
resulted in their United Nations membership. Bosnia-Herzegovina was
admitted to the United Nations as a new Member on 22 May 1992 4.

At the same time, these former republics - and specificallyBosnia-Herzego-

vina - contested the assertion that the FRY continued the membership of the
SFRY in the United Nations and in other international organizations, and con-
tested that the FRY sustained the international standing, rights and obligations of
the SFRY on the assumption of continuity.
To cite an example, when the standing of the FRY became an issue in the
General Assembly of the United Nations, in the debate which preceded General
Assembly resolution 4711 (1992), Mr. Sakirbej, the Representative of Bosnia-
Herzegovina stressed :

"[tlhe former Socialist Federal Republic of Yugoslavia has ceased to exist.
Serbia and Montenegro are not legally entitled to succeed to the position of
the former SocialistFederal Republic of Yugoslavia.This is a plicable to this
body as wellas to other similar international organizations."P

The FRY'Sclaim to continuity was consistently denied by other successor
States of the former SFRY.To cite just one more example, on 28 October 1996,
the Permanent Representatives of Bosnia-Herzegovina, Croatia, Macedonia
and Slovenia wrote a letter to the Secretary-General, in which they once again
challenged the concept of continuity and automatic succession of the FRY, and
contested that the FRY could become a Member of the United Nations other-
wise but by seeking admission as other successor States did. After referring to
Security Council resolution 77711992 of 19 September 1992, the Permanent
Representatives asserted that :

Note dated 27 April 1992 from the Permanent Mission of Yugoslavia to the United
Nations addressedto the Secretary-General, UN doc. A1461915(Annex 2).

Security Council resolution755 (1992) and General Assembly resolution 461237
(Annex 3).
UN doc. Al47lPV.7, atp.156 (Annex 4). "Al1states that haveemergedfrom the dissolution of the former Socialist
Federal Republic of Yugoslavia, whichhas ceased to exist are equal successor

States.The Federal Republic of Yugoslavia(Serbia and Montenegro) also has
to follow the procedure for admission of new Member States to the United
Nations which would enable the Organization to make its judgment on
whether the conditions set out in Article 4 of the Charter of the United
Nations are met."

International Responsesto the FRY'S Claim to Continuity

7. The claim of United Nations membership on the assumption of conti-
nuity advanced by Yugoslavia was met by a mixed response. On 19 Sep-
tember 1992, the Security Council adopted its resolution 777, in which it was
stated :
"Consideringthat the State formerlyknown as the Socialist Federal Repub-
licof Yugoslaviahas ceased to exist,

Recalling in particular its resolution 757 (1992) which notes that 'the
claim by the Federal Republic of Yugoslavia (Serbia and Montenegro)
to continue automatically the membership of the former Socialist Fed-
eral Republic of Yugoslavia in the United Nations has not been generally
accepted',
1. Considersthat the Federal Republic of Yugoslavia (Serbia and Monte-

negro) cannot continue automatically the membership of the former Socialist
Federal Republic of Yugoslavia in the United Nations ; and therefore recom-
mends to the General Assembly that it decide that the Federal Republic of
Yugoslavia (Serbia and Montenegro) should apply for membership in the
United Nations and that it shall not participate in the work of the General
Assembly ;
2. Decidesto consider the matter again before the end of the main part of
the forty-seventh session of the General Assembly."

Security Council resolution 777 (1992)is obviously an argument against conti-
nuity, but not without some vagueness. (It recalls that Yugoslavia's continuity
claim "has not generally been accepted", and decides that the matter willbe con-
sidered again.)
Resolution 4711(1992) of the General Assembly of 22 September 1992states
that the General Assembly :

"Considers that the Federal Republic of Yugoslavia (Serbia and Monte-
negro) cannot continue automatically the membership of the former Socialist
Federal Republic of Yugoslavia in the United Nations ;and therefore decides
that the Federal Republic of Yugoslavia (Serbia and Montenegro) should
apply for membership in the United Nations and that it shall not participate
in the work of the General Assembly ;

Takes note of the intention of the SecurityCouncil to consider the matter
again before the end of the main part of the forty-seventh session of the
General Assembly."

UN doc. Al511564-SI1996188(5Annex 5).
'See the fulltext in Annex 6.
See the full text in Annex 7. This resolution represents again a strong argument against continuity. At the
same time, however, not consistent with the logic of the basic position taken
(the FRY will only become a Member after it applies and gets admitted), the
consequence which is spelled out ("shall not participate in the work of the
General Assembly") is limited ; it is much more narrow than what would follow
from the elementary fact that the FRY is simply not yet a Member of the

United Nations. Some further uncertainty is created by taking note of the
intention of the Security Council to reconsider the matter.

8. The uncertainties and dilemmas became even more pronounced in the light
of further developments. On 29 April 1993the General Assembly adopted reso-
lution 471229 in which the Assembly decided that "the Federal Republic of
Yugoslavia (Serbia and Montenegro) shall not participate in the work of the
Economic and Social Counciln9. This measure does not make much sense on
the assumption that the FRY never was a Member of the United Nations; it
looks more like the suspension of certain rights of a Member. (If the FRY
werenot a Member of the United Nations, itcould ipsofacto not participate in any
of the United Nations organs.)

Some other measures and decisions gave (at least arguably) even some direct
support to the contentions of the FRY - and added to the intricacy of the
matter. In a letter of the Under-Secretary-General and Legal Counsel of the
United Nations to the Permanent Representatives to the United Nations of
Bosnia-Herzegovina and Croatia, it was stated in connection with General
Assembly resolution 4711that :

"On the other hand, the resolution neither terminates nor suspends
Yugoslavia's membership in the Organization. Consequently the seat and
nameplate remain as before, but in Assembly bodies representatives of
the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot sit
behind the sign 'Yugoslavia'. Yugoslav missions at United Nations Head-
quarters and offices may continue to function and may receive and circu-
late documents. At Headquarters, the Secretariat will continue to fly the
flag of the old Yugoslavia as it is the last flag of Yugoslavia used by the
Secretariat." 'O(This letter is reproduced in more detail in this Application
in paragraph 15, presenting portions as they were cited by the Court in its

Order of 8 April 1993.)

Furthermore, even after the adoption of Security Council resolution 777 and
General Assembly resolution 4711 (1992), the Secretary-General, as depositary
of multilateral treaties, listed Yugoslavia without any footnotes or explana-
tions". One could possibly explain the reference to Yugoslavia in two ways -

none of which explanation is really satisfactory. This could be a reference to
the former SFRY, but this interpretation would be most difficult to reconcile
with Security Council resolution 777 of 19 September 1992 in which it was
clearly stated that the SFRY ceased to exist I. the understanding of the FRY,

SeeAnnex8.
IoUN doc. A1471485A , nnex.See thefull texof thisletterin Annex 9.
"MultilateralTreatiesDepositedfwithtthe Secretary-General,Statusas at 31 Decemberin
1996",at p. 3, UN doc. STILEGISER.EII5(Annex10).the designation "Yugoslavia" had a different meaning, it was a reference to the
FRY - but this understanding also encounters difficulties, since the General
Assemblyresolution 4711referred to above states that "the Federal Republic of
Yugoslavia (Serbia and Montenegro) cannot continue automatically the mem-
bership of the former Socialist Federal Republic of Yugoslavia in the United
Nations".

What added to the confusion (and offered added support to the position
taken by the FRY) was the fact that the list of conventions deposited with the
Secretary-General of the United Nations in which there was a reference to
"Yugoslavia" as a party included not only conventions regarding which treaty
action was taken by the SFRY, but also conventions regarding which treaty
action was taken after April 1992by the FRY 12.

The complex and unresolved nature of the whole matter prompted initiatives
to seek an advisory opinion from the Court, but no such request was eversub-
mitted 13.

Membership DuesPaid to the United Nations

9. Another indication supporting the FRY'Sclaim to continued membership
(and creating dilemmas) could be found in the circumstance that membership

dues were requested by the United Nations, and paid to the United Nations by
the FRY On 22 December 1997, for example, the General Assembly adopted
resolution 521215 on "Scale of assessments for the apportionment of the
expenses of the United Nations". This resolution starts with the following
introduction :

"Recognizing the obligation of Member States under Article 17 of the
Charter of the United Nations to bear the expenses of the Organization as
apportioned by the General Assembly".

"Yugoslavia" was on the list of Member States among which apportionment
was made. The contributions expected from Yugoslavia were :0.060 for 1998,
0.034for 1999,and 0.026 for 2000 14.The only practically possible addresseeof
this duty of paying membership contributions for 1998-2000 was the Federal
Republic of Yugoslavia.

Furthermore, specific requests were sent to the representatives of the FRY
for payment of membership dues 15,such dues were indeed paid by the FRY,

l2See Annex 11 - "List of Conventions deposited with the Secretary-General of the
United Nations to which Yugoslavia is a signatory or participant", at pp. 1-4, shows
those treaty actions which were identified by the Secretary-General as treaty actions of
"Yugoslavia", and which were undertaken after the SFRY was dissolved and after the
FRY was formed.
l3For example, during the meeting of the General Assembly of 22 September 1992,
Mr. Nyakyi suggested on behalf of the United Republic of Tanzania to refer the matter
of the standing of the FRY to the International Court of Justice for an advisory
opinion. SeeUN doc. Al47lPV.7, at p. 177 (Annex 12).
I4See General Assembly resolution 521215- the text of this resolution is presented as
Annex 13.
l5See letters of the United Nations Secretary-General requesting membership dues in
1994, 1995, 1996, 1997, and 1998 (Annex 14).and receipt vouchers were issued confirmingpayment made by the Government
of the FRY 16.

TheIssue of Continuityand theMembership
of the FRY in Treaties

10. Controversies and dilemmas were extended to treaty membership of
the FRY as well after April 1992. Bosnia-Herzegovina (together with Croatia
and Slovenia) continuously argued that the FRY could not be regarded as a
party to treaties because the FRY could not automatically continue the legal
personality of the FRY, and because the FRY had not formally succeeded to
the treaties. This logicextends to al1 treaties to which the SFRY was a party,
and to which the FRY did not succeed or accede by a proper notification.
The argument was raised in particular in connection with human rights
treaties.

11. To give an illustration of the argument, in its Aide Mémoireof 14 Jan-
uary 1994, the Permanent Mission of Croatia to the United Nations stressed :

"Since the so-called 'Federal Republic of Yugoslavia' (Serbia and Mon-
tenegro) has not notified the Secretary-General of its succession to the

International Convention on the Elimination of Al1Forms of Racial Dis-
crimination as one of the successor States of the former SFRY, it cannot
be considered as one of the parties to the said convention. Therefore, as a
non-party, the said delegation has no right to participate at the fifteenth
meeting of the State Parties to the International Convention on the Elimi-
nation of Al1Forms of Racial Discrimination." l7

12. As a result of such initiatives and actions, the FRY was barred from
attending meetings of States parties to treaties. This pattern can be demon-
strated on many examples. During the 18th Meeting of States parties to the
International Covenant on Civil and Political Rights on 16 March 1994,
according to the minutes of the Meeting, Mr. Sa~irbej moved on behalf of
Bosnia-Herzegovina and proposed "[tlhat the State parties should decide that
the Federal Republic of Yugoslavia (Serbia and Montenegro) should not ar
ticipate in the work of the Meeting of the States parties to the Covenant" y8.-
This proposa1 was supported by Mr. Türk, the representative of Slovenia,

who argued that :
"[tlhe Federal Republic of Yugoslavia (Serbia and Montenegro) continued
to assert the automatic continuity of the legal personality of the former
Socialist Federal Republic of Yugoslavia, a State that had ceased to exist.
This assertion had been disputed by the other successor States and by

other members of the international community. Under the circumstances,
the Federal Republic of Yugoslavia was attempting to take advantage of
the international treaties and concerns of the international community
for human rights to buttress its assertion of automatic continuity of the

l6See, forexample,the receipt voucher confirmitnhgepaymentmadebytheGovernment
of theFRY in theamountof USS588476-value date16September1998(Annex 15).
l7UN doc. CERDISPISI,at p. 3(Annex16).
UN doc.CCPRISPISR.18,at p. 3, para. (Annex 17). former Socialist Federal Republic of Yugoslavia. Slovenia believed that
such an assertion should be rejected, and for that reason he would support
the proposa1 of Bosnia and Herzegovina." l9

Mr. MateSiC,the representative of Croatia added that :
"If the Federal Republic of Yugoslavia (Serbia and Montenegro) wished
to be considered a party to the Covenant, it must notify the Secretary-

General, in his capacity as depositary of international treaties, of its suc-
cession as one of the successor States of the former Socialist Federal
Republic of Yugoslavia. Currently it was not a party thereto, and thus had
no right to participate in the Meeting." 20
After these arguments, Bosnia-Herzegovina's proposa1 to exclude the FRY

from the Meeting was adopted by 51 votes for, 1 against and 20 absten-
tions 21.
13. This sequence of arguments and events was repeated on a number of
occasions. During the 19th Meeting of the States parties to the International
Covenant on Civil and Political Rights, Mr. MiSiC, the representative of
Bosnia-Herzegovina, proposed that "the States Parties should decide that the
Federal Republic of Yugoslavia (Serbia and Montenegro) should not artici-

pate in the work of the meeting of the States Parties to the C~venant"~. This
proposai was endorsed and further explained by the representative of Croatia
(Mr. MateSiC)who stated that the FRY
"[hlad not notified the Secretary-General, in his capacity as the depositary

of international treaties, of its accession to the Covenant. That State,
therefore, should not be allowed to participate in the meetings of State
parties." 23
The motion of Bosnia-Herzegovina was adopted, and the FRY was barred

from participation 24.Consistent with denial of membership, the FRY informed
the Human Rights Committee that it would refuse to submit its fourth
periodic report 25.

l9UN doc. CCPRISPISR.18,at p. 3,para. 3.
20Ibid.at p.6, para. 21.
2'Ibid.at p.7, para. 23.
22UN doc. CCPRISPISR.19(9December1994), atp. 3(Annex 18).
23Ibid., at 4.
The sameargumentwasadvanced by both Bosnia-Herzegovina andCroatia on other
occasionsas well. For example,in Croatia's aide-mémoire sent to be circulatedat the
13thMeetingof the State Partiesto the ICCPR,Croatiastressed :

"Sincethe FederalRepublicof Yugoslavia(Serbiaand Montenegro)has not noti-
fied the Secretary-Generalof its successionto the InternationalCovenanton Civil
and Political Rightsas oneof the successorStatesof the former SocialistFederal
Republicof Yugoslavia,it cannotbe considered tobe a party to thesaidCovenant.
Therefore,as a non-party,the saiddelegation has no rightto participateinthe thir-
teenthmeetingof States partiesto theInternationalCovenanton Civiland Political
Rights."
See UN doc. CCPRISPI40,at p. 3(Annex19).
24UN doc. CCPRlSPlSR.19, atp. 8 (Annex 18).
25Reportof the HumanRights Committee, UN doc. Al50140,para. 53 (Annex20). The Issues of Continuity and of theStanding of the FRY
in the United Nationsand in International Treaties,
as They Have Arisen beforeThis Court

14. This Court was also confronted with the predicament of mixed signals
when facing the issue of the membership of the FRY in the United Nations
and the question as to whether it was a State party to the Statute of the
Court and to the Genocide Convention. At the time when this Court
rendered its Order regarding the Request for the Indication of Provisional
Measures on 8 April 1993 - just as at the time of the Judgment of 11 July
1996 - it was common ground that the FRY did not seek acceptance to the
membership of either the United Nations, or to the Statute, or to the Geno-

cide Convention 26.
The FRY vigorouslycontested thejurisdiction of the Court, but did so on other
grounds, without raising the issueof the FRY'Smembership and standing.
15. This Court had faced and recognized these issues in its Order of
8 April 1993 dealing with provisional measures. Since with respect to provi-
sional measures there was no need to take a conclusive position, the Court
introduced its considerations on jurisdiction by stating in paragraph 14 :

"Whereas on a request for provisional measures the Court need not,
before deciding whether or not to indicate them, finally satisfy itself that it
has jurisdiction on the merits of the case,..."

The dilemmas regarding jurisdiction ratione personae were investigated in
paragraph 15 of the Order. It was observed that the Application stated that
both Bosnia-Herzegovina and the FRY were members of the United Nations
and of the Statute, but added at the same time that continuity of the FRY
with the SFRY (the assumption on which the FRY based its claim for
membership) "has been vigorously contested by the entire international
community ".
In the following paragraphs the Court scrutinized various acts of the
United Nations in order to clarify the question of (continued or other) mem-
bership of Yugoslavia in the United Nations and to the Statute. The persist-
ing dilemma was convincingly mirrored in the letter of the Under-Secretary-
General and Legal Counsel of the United Nations of 29 September 1992

addressed to the Permanent Representatives to the United Nations of Bosnia-
Herzegovina and Croatia. Relevant parts of this letter cited in the Order
read as follows:

"While the General Assembly has stated unequivocally that the
Federal Republic of Yugoslavia (Serbia and Montenegro) cannot auto-
matically continue the membership of the former Socialist Federal
Republic of Yugoslavia in the United Nations and that the Federal
Republic of Yugoslavia (Serbia and Montenegro) should apply for

membership in the United Nations, the only practical consequence that

26The FRY did not applyfor UnitedNationsmembershipuntil 27 October 2000;on
8 March 2001 the FRY presenteda Notificationof Accessionto the Conventionon
the Preventionand Punishmentof the Crime of Genocide - with a reservationon
Article IX(seeAnnex 28). the resolution draws is that the Federal Republic of Yugoslavia (Serbia
and Montenegro) shall not participate in the work of the General

Assembly. It is clear, therefore, that representatives of the Federal
Republic of Yugoslavia (Serbia and Montenegro) can no longer partici-
pate in the work of the General Assembly, its subsidiary organs, nor
conferences and meetings convened by it.
On the other hand, the resolution neither terminates nor suspends
Yugoslavia's membership in the Organization. Consequently, the seat and
nameplate remain as before, but in Assembly bodies representatives of the
Federal Republic of Yugoslavia cannot sit behind the sign 'Yugoslavia'.
Yugoslav missions at the United Nations Headquarters and offices may
continue to function and may receive and circulate documents. At Head-
quarters, the Secretariat will continue to fly the flag of the old Yugoslavia
as it is the last flag of Yugoslavia used by the Secretariat. The resolution

does not take away the right of Yugoslavia to participate in the work of
organs other than Assembly bodies. The admission to the United Nations
of a new Yugoslavia under Article 4 of the Charter will terminate the
situation created by resolution 4711." 27

Considering the complex and rather controversial indications, the Court
found it more appropriate not to adopt a conclusive position regarding the
FRY'Scontinued membership in the United Nations and standing as a party
to the Statute, and formulated the following conclusion in paragraph 18 of
the Order (following the citation from the letter of the Under-Secretary-
General) :

"Whereas, while the solution adopted is not free from legal difficulties,
the question whether or not Yugoslavia is a Member of the United
Nations and as such a party to the Statute of the Court is one which the
Court does not need to determine definitively at the present stage of pro-
ceedings."

(In the following section, considering the option described in Article 35 of
the Statute - and staying within the ambit of prima facie considerations -
the Court investigated another possible basis for jurisdiction, and noted that

"whereas accordingly if Bosnia-Herzegovina and Yugoslavia are both par-
ties to the Genocide Convention, disputes to which Article IX applies are
in any event prima facie within the jurisdiction ratione personae of the
Court") 29.
The Applicant believes that it is fair to Say that given the quite unprece-

dented complexities and controversies regarding the issue of the membership of
the FRY in international organizations and to international treaties, the Court
was not in a position to conclude in its Order whether the membership (or the
lack of membership) of the FRY in the United Nations and in relevant treaties,
was an established fact.

*'UN doc. Al471485 - as citein paragraph 17of the Court Order of 8 April 1993
(I.C.J. Reports1993,3at pp. 13-14).
28CourtOrderof 8 April1993 (1.C.J Reports1993, 3 at p. 14).
29 Ibid. 16. In the Judgment of 11 July 1996, dealing with the issue of jurisdiction
over the FRY ratione personae - and facing a situation which was still not
clarified- the Court relied on the Declaration of the FRY Government in
which the assumption of continuity was asserted. In paragraph 17 of the
Judgment, the Court first established that the Genocide Convention was

signed and ratified by the SFRY, and then established a link, adding that the
FRY adopted a forma1 declaration on 27 April 1992 to the effect that:

"The Federal Republic of Yugoslavia, continuing the State, international
legal and political personality of the Socialist Federal Republic of Yugo-

slavia, shall strictly abide by al1 commitments that the Socialist Federal
Republic of Yugoslavia assumed internationally." 30

Following the same line of argument, the Court observes :

"This intention thus expressed by Yugoslavia to remain bound by the
international treaties to which the former Yugoslavia was a party was con-
firmed in an official Note of 27 April 1992from the Permanent Mission of
Yugoslavia to the United Nations, addressed to the Secretary General."

To this, a supporting observation was added : "The Court observes, further-
more, that it has not been contested that Yugoslavia was a party to the Geno-
cide Convention." This observation was not developed further, and it was not
posited as a possible independent basis of jurisdiction.
It may be true that the concept of continuity was never explicitly articulated
by the Court itself, but it is also true that the Court relied exactly on declara-
tions stressing the assumption of continuity in determining jurisdiction ratione
personae over the FRY It may not be crystal clear what impact the position of
the Court has on the former FRY Government's claim regarding continuity ;it

is absolutely clear, however, that the hypothesis that the FRY was not a
Member of the United Nations, and that it was not a Member State to the
Statute or to the Genocide Convention, was not perceived and was not recog-
nized as a fact by either the FRY or by the Court until and at the time when
11 July 1996Judgment was rendered.

Continued Lack of Clarity and Continued Lack of Conclusive Facts
regarding the Status of the FRY

17. Controversies and conflicting signals continued after the 11 July 1996
Judgment as well. To cite just one example, on 8 December 1999, three
successor States of the SFRY (Bosnia-Herzegovina, Croatia, and Slovenia)
joined by Jordan, Kuwait, Malaysia, Morocco, Qatar and Saudi Arabia,

submitted a draft resolution with the endeavour to clarify the ambiguous
position of the FRY in the sense of denying the proposition of continuity.
The submitted proposal explains that "the abbreviated name 'Yugoslavia' as
used by the United Nations, refers only to the former Socialist Federal
Republic of Yugoslavia". According to this draft resolution, the General
Assembly should declare that it

Citation from paragraph 17 of the 11July 1996 Judgment (C.J .eports1996, 595
at p. 610).unanimity and certainty regarding the FRY'Sclaim of continuity ("the claim
by 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 been generally accepted"), and
which resolution suggests that the FRY should apply for membership in the
United Nations.
The course of action which the United Nations followed was that established
by Article 4 of the United Nations Charter and by Article 134 of the Rules of

Procedure of the General Assembly, provided for acceptance of newMembers.
Following the procedure established by Article 4 of the United Nations
Charter, the request of the FRY reached the Security Council Committee on
the Admission of New Members, and this Committee recommended to the
Security Council the ado tion of a resolution which would recommend the
admission of YugoslaviaP*. Upon recommendation of the Security Council,
the General Assembly decided on 1November 2000 to admit the FRY to mem-
bership of the United Nations 37.
19. The decision of the General Assembly of 1 November 2000 îïnally
dismissed the dilemmas and uncertainties, and put an end to the theory that
the FRY may have been a Member of the United Nations before 1 November

2000 "continuing the State, international legal and political personality of
the SFRY". A new fact took shape. The FRY became a new Member of the
United Nations (clearly implying that it was not a Member earlier).

After the FRY was admitted as a new Member on 1 November 2000, the
dilemmas have been resolved, and a period ended in which contradictory
indications allowed different interpretations. It was not veiled anymore, but
became an unequivocal fact that the FRY did not continue the personality
of the SFRY, and was not a Member of the United Nations before
1 November 2000. According to the most recent (updated 18 December
2000) List of Member States published by the United Nations, "Yugoslavia"

appears as a Member State, the date of admission indicated is 1 November
2000.
An explanatory note States:
"The Socialist Federal Republic of Yugoslavia was an original
Member of the United Nations, the Charter having been signed on its
behalf on 26 June 1945 and ratiîïed 19 October 1945, until its dissolu-

tion following the establishment and subsequent admission as new
members of Bosnia and Herzegovina, Croatia, the Republic of Slovenia,
The former Yugoslav Republic of Macedonia, and the Federal Republic
of Yugoslavia.
The Federal Republic of Yugoslavia was admitted as a Member of
the United Nations by General Assembly resolution AIRES155/12 of
1 November 2000." 38

(The very same explanatory note is added after Bosnia-Herzegovina, Croatia,
Slovenia and Macedonia.)

3UN doc.S/2000/1051(Annex 24).
"SeeSecurity Council resolutio1326(2000) and GeneralAssemblyresolution55/12
(A3See www.un.org/Overview/unmember (.nnmel26). 20. Following admission, b a letter of the Legal Counsel of the United
Nations of 8 December 2000 38 the FRY was invited to decide whether or not
to assume rights and obligations of the former SFRY in international treaties.
In thisletter, the Legal Counsel Stat:s

"It is the Legal Counsel's view that the Federal Republic of Yugoslavia
should now undertake treaty actions, as appropriate, in relation to the
treaties concerned, if its intention is to assume the relevant legal rights and
obligations as a successor State."

Thus in December 2000 the FRY came to a position to choose whether to
succeed and confirm, or whether not to succeed and not to confirm treaty
actions of the former SFRY.
21. On 8 March 2001 as a new Member of the United Nations, the FRY
sent to the Secretary-General of the United Nations a Notificationof Acces-
sion to the Convention on the Prevention and Punishment of the Crime of
Genocide in pursuance of Article XI of the said Convention 40.This Notifica-
tion includes a reservation on Article IX. The text of the Notification reads as

follows:

"NOTIFICATION OF ACCESSION TO THE CONVENTION
ON THE PREVENTION AND PUNISHMENT
OF THECRIME OF GENOCIDE(1948)

WHEREASthe Federal Republic of Yugoslavia had declared on April 27,
1992,that 'the Federal Republic of Yugoslavia, continuing the State, inter-
national legal and political personality of the Socialist Federal Republic of
Yugoslavia, shall strictly abide by al1 the commitments that the Socialist
Federal Republic of Yugoslavia assumed internationally',

WHEREASthis contention of continuity also included the assumption
that the Federal Republic of Yugoslavia continued the membership in the
United Nations of the Socialist Federal Republic of Yugoslavia,

WHEREASthe contention and assumption of continuity was eventually
not accepted by the United Nations, nor was it accepted by other succes-
sor States of the Socialist Federal Republic of Yugoslavia, and thus it pro-
duced no effects,
FURTHERMORE this situation became finally clarified on November 1,

2000 when the Federal Republic of Yugoslavia was accepted as a new
member State of the United Nations,
NOW it has been established that the Federal Republic of Yugoslavia
has not succeeded on April 27, 1992, or on any later date, to
treaty membership, rights and obligations of the Socialist Federal
Republic of Yugoslavia in the Convention on the Prevention and
Punishment of the Crime of Genocide on the assumption of continued
membership in the United Nations and continued state, international

39SeeAnnex 27.
40SeeAnnex 28. legal and political personality of the Socialist Federal Republic of
Yugoslavia,

THEREFORE,1am submitting on behalf of the Government of the Fed-
eral Republic of Yugoslavia this notification of accession to the Conven-
tion on the Prevention and Punishment of the Crime of Genocide, in pur-
suance of Article XI of the said Convention and with the following
reservation on Article IX of thesaid Convention :'The Federal Republic

of Yugoslavia does not consider itself bound by Article IX of the Con-
vention on the Prevention and Punishment of the Crime of Genocide,
and, therefore, before any dispute to which the Federal Republic of
Yugoslavia is a party may be validly submitted to the jurisdiction of the
International Court of Justiceunder this Article, the specific and explicit
consent of the FRY is required in each case.'
[Signed by Goran SVILANOVIC M,inister of Foreign Affairs.]"

In a note of 21 March 2001, the Secretary-General confirmed the receipt of
the instrument of accession sent by the Government of the FRY. The note of
the Secretary-Generalstates:

"The above instrument was deposited with the Secretary-General on
12 March 2001, the date of this receipt.
Due note has been taken of the reservation contained in the instrument.
In accordance with ArticleII1 (3), the Convention will enter into force
for Yugoslavia on the ninetieth da following the date of deposit of the
Le., on 10 June 2001.8
instrument,

C. ADMISSIBILITY OF THEAPPLICATION FOR REVISION
OF THE JUDGMENT OF 11 JULY1996,
ON GROUND OF ARTICLE61 OF THESTATUTE

22. Article 61 (1) of the Statute of the International Court of Justice
states:

"(1) An application for revision of a judgment may be made only when
it is based upon the discovery of some fact ofsuch a nature as to be a
decisive factor, which fact was, when thegment was given, unknown to
the Court and also to the party claiming revision, always provided that
such ignorance was not due to negligence."

The requirements of admissibility of an application for revision are, thus,
the following:

(a) the application has to be based on a new fact of such a nature as to be a
decisive factor, and
(b) this has to be a fact which was unknown to both the Court and to the
party claiming revision at the time when the judgment was given.

4'See the full text of the Note of the Secretary-Generalin Annex 29 C.1. New Fact "of such a nature to be a decisivefactor"
23. The admission of the FRY to the United Nations as a new Member

on 1 November 2000 is certainly a new fact. It can also be demonstrated,
and the Applicant submits, that this new fact is of such a nature as to be a
decisive factor regarding the question of jurisdiction ratione personae over
the FRY.
After the FRY was admitted as a new Member on 1 November 2000, dilem-
mas concerning its standing have been resolved, and it has become an unequi-
vocal fact that the FRY did not continue the personality of the SFRY, was
not a Member of the United Nations before 1November 2000, was not a State
party to the Statute, and was not a State party to the Genocide Convention.
Since membership in the United Nations, combined with the status of a party
to the Statute and to the Genocide Convention (including its Article IX),
represent the only basis on which jurisdiction over the FRY was assumed, and
could be assumed, the disappearance of this assumption and the proof of the
disappearance of this assumption are clearly of such a nature to be a decisive
factor regarding jurisdiction over the FRY - and require a revision of the
Judgment of 11 July 1996.

The admission of the FRY to the United Nations as a new Member clears
ambiguities and sheds a different light on the issue of the membership of the
FRY in the United Nations, in the Statute and in the Genocide Conven-
tion. Since the 11 July 1996 Judgment based jurisdiction on one ground
(Article IX of the Genocide Convention), new facts which show that the
FRY was not and could not have been bound by Article IX of this Con-
vention, are decisive.
Applicant further submits that jurisdiction over the FRY could not have
been asserted without United Nations membership and without the FRY being
a State party to the Statute and to the Genocide Convention at the time of the
Il July 1996 Judgment. The FRY asserts that no alternative basis existed
or could have existed. Theoretically, there are two bases which could serve
as a precondition for the jurisdiction of the Court to be extended to a non-
Member of the United Nations or a non-party to the Statute. These are set in
Article 93 (2) of the United Nations Charter and in Article 35 (2) of the
Statute respectively. The Applicant shall demonstrate that under the circum-
stances of the case it is absolutely clear that neither of these two grounds could
have justified jurisdiction over the FRY.

The FRY has not become a party to the Statute on ground of Article 93 (2) of
the UnitedNations Charter

24. It is generally understood that the International Court of Justice is open
to the States which are parties to the Statute (Article 35 (1) of the Statute).
Article 93 (1) of the United Nations Charter States that al1 Members of the
United Nations are ipsofacto parties to the Statute. Accordingly, States which
are not Member States of the United Nations are not Member States to the
Statute (or, at least not automatically). Article 93 (2) provides one possible way
in which a non-Member of the United Nations may become a party to the
Statute, and it also specifies the requisite conditio:s

"A State which is not a Member of the United Nations may become a
party to the Statute of the International Court of Justice on conditions to
be determined in each case by the General Assembly upon the recommen-
dation of the Security Council." It is uncontested that the FRY never applied to become a party to the
Statute under Article 93 (2) of the Charter, and it is also uncontested that the
Security Council and the General Assembly never had such a claim or initiative
on their agenda. Accordingly, it is obvious that the FRY did not become a
Member State of the Statute under Article 93 (2) of the United Nations Char-
ter and jurisdiction could not have been asserted over the FRY by reliance on
Article 93 (2).

Jurisdiction over the FRY could not have been established on ground of
Article 35 (2) of the Statute

25. According to Article 35 (2) :
"The conditions under which the Court shall be open to other States
[Le.States which are not parties to the Statute] shall, subject to the special
provisions contained in treaties in force, be laid down by the Security
Council, but in no case shall such conditions place the parties in a position
of inequality before the Court."

This provision is quite clear. Access is in principle possible to a State
which is not a party to the Statute, but only on conditions laid down by the
Security Council, and subject to special provisions contained in treaties in
force.
The Security Council laid down appropriate conditions and procedures in its
resolution of 15 October 1946 42.Section (1) of the resolution states :

"The International Court of Justice shall be open to a State which is not
a party to the Statute of the International Court of Justice, upon the fol-
lowing condition, namely, that such State shall previously have deposited
with the Registrar of the Court a declaration by which it accepts the juris-
diction of the Court, in accordance with the Charter of the United

Nations and with the terms and subject to the conditions of the Statute
and Rules of the Court, and undertakes to comply in good faith with the
decision or decisions of the Court and to accept al1 the obligations of a
Member of the United Nations under Article 94 of the Charter."
The resolution specifies further that such a declaration may be particular
(accepting the jurisdiction in one particular case) or general ("accepting the

jurisdiction generally in respect of al1 disputes or of a particular class of dis-
putes which have already arisen or which may arise in the future"). It is also
added that a State when making a declaration in pursuance of the Security
Council resolution of 15 October 1946and under Article 35 (2) of the Statute,
may also in accordance with Article 36 of the Statute recognize as compulsory
the jurisdiction of the Court.
It is perfectly clear that Article 35 (2) and the Security Council resolution of
15 October 1946 only provides for explicit declarations as a vehicle through
which the jurisdiction of the Court may be extended to a non-party to the
Statute. Moreover, the content of such declarations is predetermined, and so is
their form (submission to the Registrar). This means that only such party
behaviour, i.e. such party declarations which are identified by the Security
Council as a suficient condition, may bring a party within the Court's scope of

42See Annex 30.authority. Other party conduct - like bringing a claim, defending or not
defending a claim, submitting a counterclaim, raising or not raising an objec-
tion - are without consequence and cannot yield jurisdiction over a party who
is not a party to the Statute.

The FRY never deposited with the Registrar of the Court any declaration
within the meaning of Article 35 (2) of the Statute and complying with the

15October 1946Security Council resolution. No declaration whatsoever (com-
plying or non-complying with the Security Council resolution) concerning
jurisdiction over the FRY was deposited before the Judgment of 11 July was
rendered.
26. On 25 April 1999,the former Government of the FRY submitted a dec-
laration regarding jurisdiction. The text of the Declaration reads :

"1 hereby declare that the Government of the Federal Republic of
Yugoslavia recognizes, in accordance with Article 36, paragraph 2, of the
Statute of the International Court of Justice, as compulsory ipso facto
and without special agreement, in relation to any other State accepting the
same obligation, that is on condition of reciprocity, the jurisdiction of the
said Court in al1disputes arising or which may arise after the signature of
the present Declaration, with regard to the situations or facts subsequent
to this signature, except in cases where the parties have agreed or shall
agree to have recourse to another vrocedure or another method of vacific
settlement. The present ~eclaratiôn does not apply to disputes relating to
auestions which, under international law, fall exclusivelv within the iuris-

diction of the ~ederal Republic of ~u~oslavia, as well ai to territorial dis-
putes.
The aforesaid obligation is accepted until such time as notice may be
given to terminate the acceptance." 43
It is clear that this Declaration cannot be regarded as a declaration made

within the meaning of Article 35 (2) and it cannot possibly have any bearing
on this case for the following reasons :
(a) It is not a declaration made in pursuance of Article 35 (2) of the Statute
and Security Council resolution of 15 October 1946. Instead of making
a declaration as a State which is not a party to the Statute and wants
to avail itself access to the Court, the former Government of the FRY

purported to use an opportunity which is only open to parties to the
Statute. The declaration was made under and with explicit reference to
Article 36 (2) of the Statute on the assumption that the FRY was a party
to the Statute.
(b) Supposing that the Declaration of 25 April 1999produced effects, it could
not have had effects on this case because of the terms of the Declaration
itself. By its own terms the Declaration clearly restricts its application to
disputes arising after the signature of the Declaration (which means
after 25 April 1999),and to "situations and facts subsequent to this signa-
ture" (Le. situations and facts emerging after 25 April 1999). Furthermore,
the acceptance of jurisdiction in the Declaration is conditioned by
reciprocity - and this requirement is not satisfied regarding Bosnia-
Herzegovina.

43See "Multilateral Treaties Depositedwith the Secretary-General,Status as at
30April 1999",at pp. 13 and 28, UN doc.STILEGISER.El17(Annex31). 27. To summarize: The Declaration of 25 April 1999 is not a declaration
made under Article 35 (2) of the Statute in pursuance of which a non-party of
the Statute could possibly invoke the jurisdiction of the Court. Whatever the
nature of the Declaration is, it is without effects in the present case. Even if it
had effects, these effects are clearly restricted by the terrns of the Declaration
itself to future disputes and future events, and it could not have any effects on
the Bosnia-Herzegovinav. Yugoslaviacase.

Even under a most extensive reading of Article 35 (2), considering thefacts of
this case,jurisdiction over theFRY cannotbe established on groundof "special
provisions containedin treazies inforce"

28. In its Order of 8 April 1993concerning the Request for the Indication of
Provisional Measures, the Court mentions another conceivable basis on which
jurisdiction could be assumed over a non-party to the Statute. In paragraph 19
of this Order after citing Article 35 (2) of the Statute, the Court took the fol-
lowing position :

"whereas the Court therefore considers that proceedings may validly be
instituted by a State against a State which is a party to such a special pro-
vision in a treaty in force, but is not a party to the Statute, and indepen-
dently of the conditions laid down by the Security Council in its resolu-
tion 9 of 1946 .. .".

The Court found that the compromissory clause of Article IX of the Geno-
cide Convention could be regarded prima facie as a relevant "special provision
contained in a treaty in force". Taking as a~ossioe assumption that both
Bosnia-Herzegovina and Yugoslavia could be parties to the Genocide Con-
vention including its Article IX, the Court concluded that "[dlisputes to which
Article IX applies are in any event prima facie within the jurisdiction ratione
personae of the Court".
This interpretation of Article 35 (2) could conceivably allow jurisdiction
ratione personae over the FRY even without the FRY being a Member of the
United Nations and a party to the Statute (assuming that the FRY could have
become a Contracting Party of the Genocide Convention otherwise). One has
to bear in mind, however, that the findings of the Court in its Order are prima
faciefindings and they are indicated as such, thus they are reviewable and they
are not conclusive. Furthermore, the wording is not unconditional. Moreover,
the FRY respectfully submits the contention that : (a) this interpretation goes
beyond the meaning of Article 35 (2), and (b) even if this interpretation were

the correct one, it cannot result in jurisdiction ratione personae over the FRY
given the facts of the case.

29. The Applicant submits that a treaty provision cannot in itself provide
for access to the Court to a non-Member of the Statute without such elemen-
tary conditions as those provided in Security Council resolution 9 of 1946. A

44The languageof the Court is :

"whereas accordingly if[emphasis supplied] Bosnia-Herzegovina an Ydugoslaviaare
anyhevent primafacie withinthejurisdictionraiionepersonaeof the Court",s areI.C.J.
Reports 1993, 3 at p.14.party which is not a Member of the United Nations and is not a party to the
Statute is not bound, for example, by Article 94 (1) of the United Nations
Charter which obliges each Member of the United Nations to comply with the
decision of the Court in any case to which it is a party. It is exactly for these

reasons that Security Council resolution 9 of 1946specified the elements of a
declaration which may result in jurisdiction over a non-party to the Statute 45.
Furthermore, the principle of equality of the parties is one of the most per-
vasive principles underlying procedure before any court. In order to safeguard
this principle between States whichare parties to the Statute and States which
are not, Article 35 (2) stresses that the conditions laid down by the Security
Council shall in no case place the parties in a position of inequality before the
Court. It is evident that inequality would emergeif some parties to proceedings
before the Court would not be bound by conditions which parties to the

Statute already accepted. The International Court of Justice was established by
the United Nations Charter "as the principal judicial organ of the United
Nations" (Article 1 of the Statute). It can only adjudicate disputes involving
States which are Member States of the United Nations, or States which have
accepted conditions laid down by organs of the United Nations.
30. The referenceto "special provisions of treaties in force" should be under-
stood in the context of the drafting history of the Statute. A convin-

cing explanation was provided by Sh. Rosenne. He recalls that Article 35 (2)
of the Statute contains the same provision as the corresponding provision
of the Permanent Court (with only one word changed in order to bring
the English text in line with the Fren~h)~~.Rosenne continues by observing
that :

"The expressionin paragraph 2 of the Statute of the Permanent Court sub-
ject to specialprovisionsof treaties inforce apparently was intended to refer
to the Peace Treaties after the First World War. They contained several
provisions giving the Permanent Court jurisdiction over disputes arising
from them, and they were in force before that Statute was adopted.
Article 35, paragraph 2, made it possible for litigation to take place with

the former enemy Powersdespite the fact that at the time the Protocol was
adopted, they were not qualified to become parties to that instrument.
Accordingly, 'inforce'meant that the treaty had to be in force on the date
of entry into force of the Statute of the Permanent Court (taken as
1September 1921)." 47

He reiterates the same point later in the text by stressing :
"Since no change of substance was introduced in 1945, the words sub-

ject to the special provisions of treaties in force in the present Statute

45In order to safeguard equality, the resolution makes it clear that that declaration of
acceptance has to specify that it was made

to the conditions of theStatute and Rules of the Court, and undertakes to complybject
in good faith with thecision or decisionsof the Courtand to accept al1the obligations
of a Member of the United Nations under Article 94 of the Charter".

46Sh. Rosenne, The Law and Practice of the International Court, 1920-1996Vol. II, at
p. 628.
47Rosenne, op. cit.at p. 629. should be interpreted as meaning treaties that were in force on the date
when the Statute entered into force, that is 24 October 1945." 48

That the phrase "treaties in force" was intended to have a limited meaning
was also confirmed by Judges Anzilotti and Huber 49.During the discussion on
the Revision of the Rules of the Permanent Court (Eleventh Session, Twenty-

Second Meeting), the record States that Anzilotti stressed :
"[tlhe peace treaties in certain cases imposed the Court's jurisdiction on
the central States ; in other cases these States had been given the right of

themselves instituting proceedings before the Court. That being so, to
allow the Council to impose other conditions would amount to modifying
the peace treaties, which could not be done. The clause in question had in
mind the peace treaties."

Anzilotti added that
"[tlhere is a reason which made it impossible to read the clause as cover-
ing everything except special agreements: for it would be difîïcult to

understand why a privileged position should be accorded, for instance to
Turkey and Russia, supposing that, tomorrow, they were to come before
the Court under a treaty concluded between them" 50.

President Huber agreed with Anzilotti and stated that "[tlhe exception stated
in Article 35 could only be intended to cover situations provided for by the
treaties of peace" 51.
31. Even if one were to adopt, for argument's sake, a broader interpretation
of Article 35 (2), and even if jurisdiction could be assumed over a non-party to
the Statute on ground of Article IX of the Genocide Convention only, this
could not justify jurisdiction rationepersonae over the FRY.

After 1 November 2000 it became clear that the FRY did not continue the
SFRY's membership in the United Nations, and did not become party to the
treaties which were ratified by the SFRY. Accordingly, the FRY did not
continue the membership of the SFRY in the Genocide Convention either.
Moreover, according to Article XI of the Genocide Convention, the FRY
could not have become a party to the Genocide Convention without being a
Member of the United Nations, or without having received a special invita-
tion of the General Assembly. The prohibition of genocide may very well be

a principle which must not be disregarded by anyone, but this does not
necessarily mean that the specific provisions of the Convention are automati-
cally binding, and it certainly does not mean that the procedural stipulations
of the Genocide Convention (like that of Article IX) are binding without
specific acceptance.
The FRY expressed its intention to become a party to the Genocide Con-
vention only in its Notification of Accession on ground of Article XI (3) of the
Convention (which provides for new accessions). This did not happen before
the 11 July 1996 Judgment was rendered ; this happened on 8 March 2001.

The documents of accession were received by the Secretary-General on

48Rosenne, op. cil., at630.
49See PCIJ, Series D (Acts and Documents concerning theOrganizationof the Court,
No. 2- Add.), at pp.104-106.
50PCIJ, Series D, No. 2 (Add.), at p. 105.
PCIJ, Series D, No. 2 (Add.), at p106.12 March 2001. Due note has been taken of the reservation contained in the
instrument of accession. The Secretary-General informed the FRY that the
Convention will enter into force regarding the FRY on 10 June 2001.
Accession has no retroactive effect. Even if it had a retroactive effect, this
cannot possibly encompass the compromissory clause in Article IX of the
Genocide Convention, because the FRY never accepted Article IX, and the

FRY'Saccessiondid not encornpassArticle IX. What the FRY did accept is the
Genocide Convention without Article IX. In its Notification of Accession the
FRY made an unequivocal reservation to Article IX. (There is a significant
number of parties to the Genocide Convention which accepted the Convention
with reservation on Article IX. Today - after some countries withdrew their
reservation - Yugoslavia belongs to a group of 16 countries which made the
reservation, and have maintained this reservation so far 52.) The reservation
made by the FRY reads :

"The Federal Republic of Yugoslavia does not consider itself bound by
Article IX of the Convention on the Prevention and Punishment of the
Crime of Genocide and, therefore, before any dispute to which the Federal
Republic of Yugoslavia is a party may validly be submitted to the jurisdic-
tion of the International Court of Justice under this Article, the specific
and explicit consent of the FRY is required in each case."

It clearly follows that even if one were to adopt an extensive interpretation
of Article 35 (2) of the Statute including treaties which came to force after the
adoption of the Statute, and even if Article IX of the Genocide Convention
could be considered as one of such "special provisions contained in treaties in

force", thejurisdiction ofthe Court could not bebased on this "specialprovision"
because it was neveraccepted by the FRY.
It follows that:

32. The fact that the FRY gained admission to the United Nations on
1 November 2000 as a new Member (instead of continuing the membership
of the SFRY since April 1992) put the issue of jurisdiction ratione personae
over Yugoslavia in an entirely different perspective and context. The assump-
tion of the continued membership in the United Nations and continued

status as party to the Genocide Convention, which came to expression in the
Declaration of the former Government of the FRY, was critical, because
there was no other assumption which could justify jurisdiction over the FRY
rationepersonae.
The new facts have brought conclusive clarification to the effect that :

(a) The FRY was not a Member of the United Nations before 1 November
2000.
(b) The FRY did not become a party to the Statute on ground of Article 93 (2),
or on any other ground before the Judgment of 11 July 1996was rendered,
or at any later date before 1November 2000.
(c) The FRY was not and is not a contracting party to the Genocide Conven-
tion. (It is expected to become a party on 10 June 2001 with a reservation
to Article IX.)

52Algeria, Argentina, Bahrain, Bangladesh, China, India, Malaysia, Morocco,
Rwanda, Singapore,Spain, the United States of America, Venezuela, VietNam,
Yemen - and the FRY. Furthermore, the FRY did not become at any time subject to the jurisdiction
of the Court on ground of Article 35 (2) of the Statute.
The assumption of a continued membership of theFRY and continued standing
as a party to the Statute and to the Genocide Convention(continuing the mem-
bership and the standing of the SFRY) were the only assumptions on which
jurisdiction ratione personae over the FRY could have been based.A fact which
gives decisive evidenceof the reversa1of this assumption is therefore clearlya
decisive factor.

C.2. Fact "unknown to the Court and to the party claiming revision
at the time of thejudgrnent"

33. The fact that the FRY was admitted to the United Nations as a new
State on 1 November 2000 was obviously unknown to both the Court and to
the Applicant at the time of the 1996Judgment.
The Applicant believes that this is quite sufficient to confirm that this con-
dition to the admissibility of the request for revision ("unknown to the Court
and to the party claiming revision") was satisfied.
In our case, this new fact becomes relevant in the following way. There was
a genuine dilemma as to whether the FRY did or did not continue the mem-
bership of the SFRY in the United Nations and the status of the SFRY as
party to the Statute and to the Genocide Convention. This dilemma was
resolved by the new fact of admission of the FRY to the United Nations as a
new State, and by accession of the FRY to the Genocide Convention, again as

a new State. The new fact - clearly unknown earlier - has become decisive
because it confirmed a different resolution of the dilemma - not the one
which served as an assumption in the Judgment.
34. For the sake of argument, the Applicant wants to demonstrate that the
dilemma was a legitimate one, the position taken by the FRY regarding conti-
nuity with the SFRY was not a frivolous one, or one based on negligence. The
FRY was consistent in asserting this position which was corroborated by some
facts and circumstances, while it was challenged by some other facts and cir-
cumstances. Al1facts and circumstances relating to the issue of continuity were
a matter of public record, equally accessible to the Court and to the parties.

There are no facts or circumstances which the FRY would have, or could have,
withheld, since the issue was that of the international recognition of the FRY'S
claim on continuity with the SFRY. The essence of the matter is that, before
the status of the FRY was finally clarified, these facts and circumstances did
allow different conclusions, and the possible solutions were - in the words of
the Court - "not free from legal difficulties" 53.

35. The concept of continuity advanced by the former Government of the
FRY proved to be wrong, but it was not implausible and it was not the
product of some manipulation. To the contrary, since the FRY arduously con-
tested the jurisdiction of the Court, it would have been in its interest to show
that the FRY did not continue the membership of the SFRY in the United
Nations and did not continue automatically to be a party to the Statute and
to the Genocide Convention.

53Bosnia and Herzegovinav. Yugoslavia, Request for the Indication of Provisional
Measures, Orderof the Court of 8 April 1993,para. 18. The sequence of events proved that the assumption of continuity eventu-
ally failed. But it has to be said that it was a principled position which had
at least some support in facts. The mixed signals coming from the United
Nations and from the international community (see paragraphs 8-9) gave
reasons to the FRY to persist and to expect that the inconsistencies will
eventually be resolved in favour of the proposition of continuity. Yugoslavia
maintained some limited participation in the work of the United Nations,
the Yugoslav flag was kept in front of the United Nations Headquarters,
Yugoslavia was still listed as a Member to treaties of which the Secretary
General is a depositary. Interpreting the listing of "Yugoslavia" as a refer-

ence to the FRY (in spite of the fact that the General Assembly and the
Security Council did not adopt the proposition of continuity), was certainly
not less logical than the understanding that this reference continues the
membership of a State which undeniably ceased to exist. Seeking of payment
by the United Nations and actual payment of membership dues by the FRY
could not have been discarded as a symbolic gesture towards the (non-
existing) SFRY.

The expectations of the FRY were not met. But the dilemmas persisted until
1November 2000 when it became clear the FRY became a new Member of the
United Nations and that it was not a Member before. After the letter of the
Legal Counsel of 8 December 2000 54it also became clear and confirmed that
the FRY was not a Member of the treaties on ground of the fact that they were

ratified by the SFRY, but could gain access to these treaties as a new State, by
notifications of succession or accession.

36. Until the date of the 11 July 1996 Judgment, the FRY never declared,
indeed never even suggested, that it would be bound by treaties otherwise than
on the assumption of continuing the personality of the SFRY. As one of the
successor States of the SFRY, the FRY had an option to join treaties by a noti-
fication of succession, but it did not do so. The FRY, like any other State, also
had an option to join treaties by notifications of accession, but failed to do so.
37. On 1 November 2000, the FRY became a Member of the United
Nations as a new State. Thereby, it also became a party to the Statute of the
Court. On 8 March 2001 the FRY submitted to the Secretary-General a notifi-

cation seeking accession to the Genocide Convention with reservation to Arti-
cle IX. After years of conflicting signals from various actors and indications
which never became conclusive, it became clear that the FRY did not continue
the membership of the SFRY in the United Nations, neither did it continue the
status of the SFRY as a State party to the Statute and as a State party to the
Genocide Convention. Consequently, it also became clear that from the
moment the FRY was constituted on 27 April 1992, until 1 November 2000,
the FRY was not a Member of the United Nations, it was not a State party to
the Statute, and until 8 March 2001 it did not accede to membership of the

54See Annex27Genocide Convention. (When it did submit a notification of accession, it did

so without accepting Article IX.)

38. This sequence of changes is clearly demonstrated in official records.
Until December 2000, official listings of the United Nations included
Yugoslavia as an original Member, with membership status since 24 October
1945, and without explaining whether the designation "Yugoslavia" was or was
not a reference to the FRY. This fact maybe did not compel, but it certainly
allowed the interpretation according to which the designation "Yugoslavia"
came to refer to the Federal Republic of Yugoslavia, rather than to the Social-
ist Federal Republic of Yugoslavia (which had ceased to exist). This interpreta-
tion - supported by some events, challenged by others - allowed conclusions
according to which the FRY continued the membership of the SFRY in the
United Nations, and that the FRY continued the status of the SFRY as a party
to the Genocide Convention. This interpretation (or elements of this interpre-
tation) formed the underlying assumption of the 11July 1996Judgment.
Today, according to the officia1listing of 8 December 2000, the designation
("Yugoslavia") is the same, however "Yugoslavia" is listed as a Member since

1 November2000 - and theexplanatory notemakes it clearthat this isa rejèrence
to the FRY. This is a new fact of such a nature to be a decisive factor,
unknown to both the Court and to the Applicant at the time when the Judg-
ment of 11 July 1996 was given. The issue of jurisdiction over Yugoslavia
rationepersonae is put into a wholly different perspective, and a revision of the
Judgment has become compelling.

For the reasons advancedabove the Federal Republic of Yugoslavia requests
the Court to adjudgeand declare that :

there is a newfact of such a character as to lay the case open to revisionunder
Article 61 of the Statute of the Court.

Furthermore,Applicant is respectjiullyasking the Court to suspend proceedings
regardingthe merits of the case until a decision on this Application is rendered.

23 April 2001.
(Signed) Professor Tibor VARADY,
Agent of the Federal Republic
of Yugoslavia. LIST OF ANNEXES '

Annex 1. UN doc. Al461915,Annex II :Declaration adopted on 27 April 1992
at a joint session of the Assembly of the SFRY, the National Assembly of
the Republic of Serbia, and the Assembly of Montenegro.

Annex 2. UN doc. AI461915, Annex 1: Note dated 27 April 1992 from the
Permanent Mission of Yugoslavia to the United Nations addressed to the
Secretary-General.
Annex 3. UN doc. SIRES1755(1992) :Security Council resolution 755 (1992) ;
and UN doc AIRES1461237 :General Assembly resolution 461237(1992).

Annex 4. UN doc. Al47lPV.7 :General Assembly, Provisional verbatim record
of the 7th meeting, 22 September 1992.
Annex 5. UN doc. AI511564-SI19961885 : Letter dated 28 October 1996 from
the Permanent Representatives of Bosnia and Herzegovina, Croatia, the
former Yugoslav Republic of Macedonia and Slovenia to the United Nations
addressed to the Secretary-General.
Annex 6. UN doc. SIRES1777(1992) : Security Council resolution 777 (1992).

Annex 7. UN doc. AIRES14711: General Assembly resolution 4711(1992).

Annex 8. UN doc. AIRES1471229 :General Assembly resolution 471229(1993).

Annex 9. UN doc. Al471485,Annex : Letter dated 29 September 1992from the
Under-Secretary-General, the Legal Counsel, addressed to the Permanent
Representatives of Bosnia and Herzegovina and Croatia to the United
Nations.
Annex 10. UN doc. STILEGISER.EI15 : "Multilateral Treaties Deposited with
the Secretary-General, Status as at 31 December 1996".
Annex II. "List of Conventions deposited with the Secretary-General of the
United Nations to which Yugoslavia is a signatory or participant", from UN
data base.
Annex 12. UN doc. Al47lPV.7 :General Assembly, Provisional verbatim record
of the 7th meeting, 22 September 1992.
Annex 13. UN doc. AIRES152121 5: General Assembly resolution 52/215
(1997).
Annex 14. Letters of the United Nations Secretary-General requesting mem-
bership dues in 1994, 1995, 1996, 1997,and 1998.

Annex 15. Receipt Voucher confirming the payment made by the Government
of the FRY, value date 16 September 1998.

'The Annexes will be published in two separate volumes, one containing the docu-
ments as submitted by Yugoslavia and the other containing the French versions or
translations thereof. [Note by the Registry.]Annex 16. UN doc. CERDlSP151 :Note verbale dated 14 January 1994 from
the Permanent Mission of the Republic of Croatia to the United Nations
addressed to the Secretary-General.
Annex 17. UN doc. CCPRlSPlSR.18 :CCPR, Summary record of the 18th
meeting, 16 March 1994.
Annex 18. UN doc. CCPRISPISR.19: CCPR, Summary record of the 19th
meeting, 8 September 1994.

Annex 19. UN doc. CCPRlSPl40 : Note verbale dated 15 March 1994from the
Permanent Mission of the Republic of Croatia to the United Nations
addressed to the Secretary-General.
Annex 20. UN doc. A150140 : Report of the Human Rights Committee.

Annex 21. UN doc. Al54lL.62 : Bosnia and Herzegovina, Croatia, Jordan,

Kuwait, Malaysia, Morocco, Qatar, Saudi Arabia and Slovenia :draft reso-
lution - "The equality of al1 îïve successor States to the former Socialist
Federal Republic of Yugoslavia".
Annex 22. EU Non Paper relating to the Draft resolution contained in UN
doc. Al541L.62.
Annex 23. Letter dated 27 October 2000 from President KoStunica to the
Secretary-General requesting admission of the FRY to the membership of
the United Nations.
Annex 24. UN doc. S1200011051 : Report of the Committee on the Admission
of New Members concerning the application of the Federal Republic of
Yugoslavia for admission to membership in the United Nations.

Annex 25. UN doc. SIRES11326 (2000): Security Council resolution 1326
(2000); and UN doc. AIRESl55112: General Assembly resolution 55/12
(2000).
Annex26. List of Member States of the United Nations, updated 18December
2000.
Annex 27. Letter of the Legal Counsel of the United Nations dated 8 Decem-
ber 2000 and Non Paper on Admission of the Federal Republic of Yugo-
slavia to the United Nations on 1 November: Implications for Treaties
Deposited with the Secretary-General.
Annex 28. Notification of Accession to the Convention on the Prevention and
Punishment of the Crime of Genocide of the Federal Republic of Yugo-
slavia, dated 6 March 2001 and transmitted on 8 March 2001.
Annex 29. Note dated 21 March 2001 from the Secretary-General conîïrming
the receipt of the instrument of accession sent by the Government of the
FRY.
Annex 30. UN doc. SIRES19(1946) :Security Council resolution 9 (1946).

Annex 31. UN doc. STlLEGlSER.El17 : "Multilateral Treaties Deposited with
the Secretary-General, Status as at 30 April 1999".