INTERNATIONALCOURTOFJUSTICE
CASE CONCERNINGAPPLICATION OF THE CONVENTIONON THE
PREVENTIONAND PUNISHMENTOF THECRIME'OFGENOCIDE
(CROATIAv.YUGOSLAVIA)
PRELIMINARY OBJECTIONS
OFTHEFEDERAL REPUBLICOFYUGOSLAVIA
SEPTEMBER 2002 Table ofContents
LIST OF ANNEXES ..................... .......................7...
PartI
SHORTSUMMARYOFTHERELIEFSOUGHT
ANDOF THE GROUNDSFORRELIEF ..........................
15
PartI1
BACKGROUND. ...............................................1............
Part 111 - FirstPreliminaryObjection
THECOURTLACKS JURISDICTIONRATZONAE
PERSONAE............................................................23
.......
A. The FRY became a Contracting Party to the Genocide Convention
by accession onMarch 2001 (effective 10June 2001);
TheFRY never became bound bv Article IX
of the Genocide Convention ....................................24
..................................
B. Before it became a Contracting Party by accession
the FRY could not become, and did not become,
a Contracting Party to the Genocide Convention.................27.............
B.l The FRY was not even qualified to be a Contracting
Party to the Genocide Convention before the Application
was submitted, because it was not a Memberhe UN
and it never received an invitation in accordance
27
with ArticleI ofthe Genocide Convention ......................................
13.2 Even if the FRY were qualified to become a Contracting Party
to the Genocide Convention before the Application
was submitted, it did not become a Contracting to this Convention onanypossiblegroundsbefore 10June
2001;and,to reiterate, theFRYnever became boundby
ArticleIXof the GenocideConvention ...............................................
(a) The Vienna Conventiorzon State Succession in respect
of Treatieswasnot inforce when succession occurred ...................
No groundsfor retroactiveapplicationof the 1978
(6)
Vienna Conventiorzon State Sziccessionin respectof Treaties .......
(c) Thejzirisdictiorzof the Cozirtcannot be based on
erroneous assumptionsor declarationsof continuity ......................
(d) Thejurisdiction of the Courtcannot be basedon the
theory of automaticsuccessionof treaties ........................................
(1) The drafting history ofthe 1978 Vienna Convention on
State Succession in respectof Treatiesdemonstrates that
theproposition of automaticsuccession of human rights
treatieswasnot recognised irzilzternationallaw ....................
(2) Practiceof the Legal Counselof the UnitedNations .............
(3) Prerequisitesto establishirzga rule on automatic
succession ofhunzanrights treaties werenever met ..............
(4) Relevant Statepractice after the adoption of the
1978 Vienna Conventionon State Succession in
respect of Treatiessupportsthe viewthat human
rights treatiesare not subjectto automatic succession ..........
(5) Depositury practice.. .................................................................
(6) Statepractice withregardto theformer SFRY
contradictstheproposition of automatic succession ..............
(e) Even ifthe automaticsuccessionof rules of human rights
treaties were a generally accepted principlet,his could
not include the rule of Article IX of the Genocide Converztion ....... Cf) The allegedjr~risdictioizbused onArticle IX has I
l
no szlpportin theories on cccquiredrights of tlze l
population ofthe successorState................................................l... 81
\
PartIV - SecondPreliminaryObjection
i
THEAPPLICATION IS INADMISSIBLE !
ASFARAS IT REFERS TO ACTS
i
OK OMISSIONS PRIOR TO 27 APRIL 1992.....................93
A. The FRY did not exist before 2April 1992
The allegation that it was a "state in statu nascer,di"
is without foundation .............................................
.....3.9..................
B. No de facto identity between the FRY (Serbia and Montenegro)
and the SPRY..................................................
........9............
The dissolution oftheSFRY was an extended process
B.l
-its completion was only confirmed in July 1992..............................100
B.2 In 1991keyofficesof the SFRYwerenot held by Serbs; these
officesere functioning, often resisting Mr. MiloSeviC,
and they were co-operating with the international community.. ...... 10
(a) hz the SFRY diplomacyconstitzientrepublicsother than Serbia
and Montenegro werefairly representedin 19YI and early1992 ... 104
(6) In 1991 and iizeurly1992, the compositionofthe Constitutional
Courtof the SFRY wasizotSerb dominated;and itsfunctioning
wasnot characterisedby Upro-Serb bias.........................................
B.3 Territorial or ethnic origin of officeholders in
the SFRYcannotand does not support the allegation
of ade factoidentity of the SFRY with the FRY.............................. 109PartV - Third Preliminary Objection
SOMEOFTHEAPPLICANT'S
SPECIFIC SUBMISSIONSARE PER SE
INADMISSIBLE ANDMOOT......................................... 1....
A. The request tosubmitMr. MiloSeviito trial
"beforeappropriate judicialauthoritv"is inadmissibleand moot...115
B. The requestto provide informationon the whereabouts
of missing Croatiancitizensis inadmissibleand moot.............117..............
C. The requestfor returnof itemsof cultural property
is inadm~ssibleand mo..........................................120............................
.....
CONCLUDINGSUBMISSIONS. ..............................2.5 LISTOFANNEXES
Annex 1
Silber, Laura and Little, Allan: The Death of Yugoslavia, BBC Books, London, 1995,
pp.86, 125-126
Annex2
Official data of the SFRY Federal Agency for Statistics (Savezni zavod za statistiku).
See the Statistics Bulletin (StatistiEkibilt1934,NBelgrade, 1992
Annex 3
UNHCR, Cellsus of Refugees and other War-Affected Persons in the Federal Republic
of Yugoslavia, Belgrade, 1996, p20,22, 33
Annex 4
Croatian 2001 population census- population by ethnicity, by towns/ municipalities,
available at: http://www.dzs.hrEng/Census/census200l .htm
Annex5
Notification of Accession of the Federal Republic of Yugoslavia to the Convention on
the Prevention andPunishmentof the Crime of Genocide, dat6dMarch 2001
Annex6
Note of the Secretary-General dated 21 March 2001 confirming the receipt of the
instrument of accession sent by the Governmentthe FRY
Annex 7
Multilateral Treaties Deposited with the Secretary-General,Chapter IV, available
at:
http://untreaty.un.org/ENGLWbible/englishinternetbible/part 1./schaplerIV/treaty
Annex 8
Jescheck Hans-Heinrich, Die internationale Genocidium-Konvention vom 9. Dezember
1948 und die Lehre vom Volkerstrafrecht,Zeitschrift fiir die gesamte
Strali-echtswissenschaft, 1954,pp. 193-217Annex9
UNdoc. ST/LEG/SER.E/19:Multilateral Treaties depositedwith the Secretary-General,
Statusas at3l December 2000, Volume11, PartI, ChapterXXIII
Annex 10
UN Doc. A/51/318 - S/1996/706(1596):The Agreementon Normalizationof Relations
between theFRY and the Republicof Croatia, signedon 23August 1996
Annex 11
Badinter Arbitration Commission, Opinions Nos. 1,8 & l l,RGDIP 1993, vol. 97, No.
4, p. 1105
Annex 12
Multilateral Treaties Deposited with the Secretary General, Historical Information
Section, available at:
http://untreaty.un.org/ENGLISWbible/englishintemetbible/historicalinfo.a
sp
Annex 13
The Declaration of 27 April 1992 adopted at a joint session of the Assembly of the
SFRY, the Assemblyof the Republic Serbia and the Assemblyof Montenegro
Annex 14
UN Doc. S123877 (1992):The letter dated 27April 1992 from theChargCd'affaires a.i.
of the Permanent Mission of Yugoslavia to the United Nations addressed to the
President of the Security Council
Annex 15
UN Doc. AI461915(1992): The letter of GMay 1992from the Chargt d'affaires a.i. of
thePermanent Mission of Yugoslaviato the UnitedNations
Annex 16
Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties,
availableat: http://untreaty.un.org/ENGLISWsummary.asp
0Annex 17
UN Doc. S119941198 (1994): Letter dated 16 February 1994 from the Permanent
Representativeof Croatia toe United Nations addressedto the Secretary-General
Annex 18
UN Doc. A/50/75-El1995110(1995): Letter dated30 January 1995from the Permanent
Representativeof Croatia to the United Nationsaddressedto the Secretary-General
Annex 19
UN Doc. STILEGISER.El19, Multilateral Treaties depositedwith the Secretary-
General, Status as at December 2000, Volume I, Part I (United Nations Treaties),
Chap.IV(HumanRights), pp. 131-132
Annex 20
The letter of the President KoStunica27 October 2000 addressed to the Secretary-
Generalrequesting admissionof theRYto membershipof the United Nations
Annex21
UN Doc. S/RES 1326(2000): SecurityCouncilresolution 1326(2000)
and UN Doc. A/RES/55/12: GeneralAssernblyresolution55/12 (2000)
Annex22
List of Member Statesof the United Nations,as of 18December 2000
Annex23
The letterof the Legal Counselof the 8December 2000
Annex24
Yearbookof the InternationalLaw Commission,1974,Volume 11Part I, 43
Annex 25
United Nations, Conference on Succession of Statin Respect of Treaties, Official
Records, Volume 111,Documents of the Conference, Doc. A/CONF.80/C.l/L.22,
A/CONF.80/C.l/L.35, pp. 112-113Annex26
Yasseen, Mustafa Karnil: "La Convention de Vienne sur la succession d'Etats en
matikrede traitts", AFDI, 1978,p. 59, atp. 107
Annex 27
United Nations JuridicalYearbook,.1976,p. 219
Annex28
Multilateral Treaties deposited with the Secretary-General, Part I, Chap. IV, available
at:
http://untreaty.un.org/ENGLISWbible/englishinternetbible/partI/chapterIV
/treaty12.asp
Annex29
Multilateral Treaties deposited with the Secretary-General, Part IIV,available
at:
http://untreaty.un.org/ENGLISWbible/englishinternetbible/partJ1chapterI…
~katy8.asp
Annex30
Caflisch, Lucius: La pratique suisse en matikre de droit international public 1996,
SZlER 1997,p. 637, at p. 684
Annex31
CAHDI "La pratique de la France dkpositaire de traitks multilateraux en matdee
successiond'Etats", (94) 8,p. 2
Annex32
Kamminga,Menno T.:State Succession in Respect of Human Rights Treaties, 7 EJIL,
1996,pp.469-484
Annex33
UN Doc. S126349(1993): Aide Me'rnoirefrom the Permanent Missionof Croatia dated
23August 1993
Annex34
UNDoc. CERD/SP/51(1994): Note Verbale dated 14January 1994from the Permanent
Mission of the Republic of Croatia to the United Nations addressed to the Secretary-
GeneralAnnex35
UN Doc. CCPRlSPl40 (1994): Aide-Memoiresent to be circulated at the 131h~eetin~
of the State Partiesto the ICCPR
Annex 36
UN Doc. CCPRISPISR.18(1994): Summary Record of the 18" Meeting of the States
Parties to the InternationalCovenanton Civil and PoliticalRights on 16March 1994
Annex37
UN Doc. CCPRISPISR.19(1994): Summary Record of the 19"'Meeting of the States
Partiestothe InternationalCovenanton Civil and PoliticalRights on 9 December 1994
Annex 38
Schachier. Oscar: The Developmentof IniernationalLaw through theLegal Opinionsof
the UnitedNations Secretariat, BYIL,1948,p. 91-106
Annex 39
O'Connell,D. P.: State SuccessioinMunicipal Law andInternationalLaw, Volume11,
Cambridge,1967,pp. 213 & 301
Annex 40
O'Connell,D. P.: State Succession in Municipal Law andInternational Law, Volume I
(InternalRelations), 1967,p. 245
Annex41
UN Doc. ElCN.4/1998/171(1998):Note Verbale dated 20 Apr. 1998, signed on behalf
of Croatia by Mr. Darko BekiC,Ambassador, Permanent Mission of the Republic of
Croatia
Annex 42
Report of the International Law Commission, Official Records of the General
Assembly, Fifty-SixthSession,uppl.No. 10,doc.N56110 (2001)
Annex43
Brownlie,Ian:Principles of Public InternationalLaw, 5'%dition, Oxford 1998,p. 77 Annex44
"Yugoslavia Through Documents - From its Creation to itsDissolution", editedby
Sneiana Trifunovska,MartinusNijhoff, 1994,pp. 286, 310-315,and 334-337
Annex 45
Survey presented by the Personal and Legal Service of the FRY Federal Foreign
Ministry of 27 November 2001 (The list of ambassadors of the SFRY of non-Serbian
ethnic originn office betweenJuly 1991and April 1992)
Annex46
Survey of elections and terminationof offices of judges of the Constitutional Courtof
Yugoslavia (SFRY) from Slovenia, Macedonia, Croatia, andBosnia and Herzegovina
("Pregled izbora i prestanka funkcije sudijama Ustavnog suda Jugoslavije (SFRJ) iz
Republike Slovenije, Republike Makedonije, Republike Hrvatske i Republike Bosne 1
Hercegovine"), issued by the Constitutional Courtof Yugoslavia,14November 2001
Annex47
Decision of the Constitutional Court of the SFRY No. IU-83/1-91 of 16 October.1991,
Official Gazetteof the SFRYNo.86/1991of 29 Novernb.er1991,pp. 1363-1364
Annex48
Decision of the Constitutional Courtof Yugoslavia No. IIU-66/91 of 23 October 1991,
Official Gazette of the FRY No.311992of 10January 1992,pp. 29-30
I Annex49
l
Decision of the Constitutional Courtof Yugoslavia No.IU 18411-91,Official Gazette of
the SFlXYNo. 1911992of 20March 1992,pp. 285-286
Annex50
Decision of the Constitutional Court of YugosIavia,No. IU 9/1-91, Official Gazetteof
the SFRYNo. 19/92of 20 March 1992,pp.286-287
Annex 51
KadijeviC, Veljko: Moje vidjenje raspada ("My view of the dissolution"), Beograd,
1993, p. 151Annex52
The Official Gazette of SFRY of20December 1991, pp. 1437-38
Annex 53
Protocol on Cooperation between the Cornrn~ssionof the Government of the Federal
Republic of Yugoslavia for Humanitanan Issues gnd Missing Persons and the
Commission ofthe Government of the Republic of Croatia for Imprisoned and Missing
Persons of17April 1996
Annex54
A letter bMr. Maksim lcorad.,President of the Commission of FRY Government
for Humanitarian Issues and Missing Persons of 29 Nov. 2001, addressed FRYthe
Ministry of Foreign Affairs
Annex55
The Minutes of the meeting of the group of experts of the Commission of the
Government of the Federal Republic of Yugoslavia an Humanitarian Issues and Missing
Persons and the Office of the Government of the Republic of Croatia for Detained and
Missing Persons, Belgrade, 6-7 November 2001
Annex56
The Council of Europe, Parliamentary Assemb"War damage to the cultural heritage
in Croatia and Bosnia-Herzegovina", presented by the Committee on Culture and
Education, Seventh information report, Doc. 15May 1995
Annex57
Joint Statement of Mr. Goran SvilanoviC,Foreign Minister FRY,hand Mr. Tonino
Picula, Foreign Minister of the Republic of Croatia, issued on 11November 2001
Annex 58
The Minutes of thework of the group of experts for packing and hand overlreceipt of
museum property of the Vukovar Municipal Museum and other objects from Vukovar
depositedin the Vojvodina Museum and the City Museum of Novi Sad of 10 December
2001,and the Addendum to the Minutes of 13December 2001 PartI
SHORTSUMMARYOFTHERELIEFSOUGHT
AND OFTHEGROUNDSFORRELIEF
I
1 1.1. On 2 July 1999 the Republic of Croatia (hereinafter: "Croatia")
i
submitted an application to the International Court of Justice (hereinafter:
"the Court") instituting proceedings against the Federal Republic of
Yugoslavia (hereinafter: "FRY") for alleged violations of the 1948
!
1 Convention on the Prevention and Punishment of ihe Crime of Genocide
f (hereinafter: "Genocide Convention") by the FRY. On l March 2001,
j
I Croatia submitted a Memorial in which one of the claims was omitted,
:
while other allegations werefurther explained.
1
1.2.
In its Memorial of 1 March 2001 (hereinafter: "Memorial") Croatia
argues that the Court has jurisdiction pursuant to Article IX of the
Genocide Convention and Article 36(1) of the Statute of the Court.
1.3. In these Preliminary Objections, the FRY submits that this
honoured Court does not have jurisdiction over the FRY in the Case
Concerning the Application of the Convention on the Prevention and
P~~nishment of the Crime of Genocide (hereinafter: "Croatia v.
Yugoslavia"); and thatCroatia's Application is inadmissible.
1.4. The FRY shall demonstrate that this honoured Court has no
jurisdiction over the FRY in the present case. The FRY only became a
Contracting Party t~ the Genocide Convention on 10 June 2001 and it
never became boundby Article IX of this Convention. 1.5. The FRY shall also argue that, since it cam into being on 27 April
1992, acts or omissions prior to27 April 1992 cannot be considered as acts
or omissions of the FRY, and cannot be attributed to the FRY, simply
because there was no FRY before this date. Thus, it cannot be held
responsible for acts or omissions which occurred before 27 April 1992.For
these reasons, the Application is inadmissible as far as it refers to acts or
omissions prior to 27 April 1992.
1.6. The Respondent shall finally argue that three specific claims of the
Application are inadmissible, and - even ifthey had been admissible, quid
non -they have become moot. These claims are:
- Taking effective steps to submit to trial persons like Mr
Slobodan MiloBeviC;
- Providing information regarding the whereabouts of missing
Croatian citizens; and
- Return of cultural property.
1.7. The position of the Respondent is that this honoured Court has no
jurisdiction in this case, and that the claims submitted by the Applicant are
inadmissible. Should the Court arrive at a different conclusion, the
Respondent expressly reserves its right to bring counter-claims against the
Applicant, regarding acts of genocide committed by the Applicant on the
territory of the former Socialist Federal Republic of Yugoslavia
(hereinafter:"SFRY"). Part 11
BACKGROUND
2.1. The Applicant offered in its Memorial a view and an interpretation
of the tragic sequence of events in the former Yugoslavia and in its
successor states. A scrutiny of these subinissions belongs to the merits. The
i
i Respondent expressly reserves its right to contest these allegations.
3
Moreover, the Respondent reiterates its position that this honoured Court
@ has no jurisdiction in this case, and that the Applicant's claims are
3
I inadmissible.
7
2.2. Without entering into a discussion of the allegations pertaining to
the merits, the Respondent will briefly underline its position regarding the
nature of the conflict, and this for the sole purpose of contributing towards
a better understanding of the preliminary objections advanced in this
submission.
2.3. The Respondent agrees with the Applicant that the death of "the
long-term President of the Socialist Federal Republic of Yugoslavia, Josip
Broz Tito" was the "starting point" of key events. Tito's departure from the
scene opened the gates for many options, one of them being the dissolution
of Yugoslavia. Here, the Respondent would like to add that the departure of
Tito coincided with the beginning of the demise of communism in Eastern
Europe. Political leaders in the SFRY were striving for a new foothold for
their authority - and they found it in nationalism. After several decades in
which ethnic and cultural diversity were reasonably protected and fostered,slanderous types of ethnic intolerance brake loose. Hate speech aimed
towards other ethnic groups became a common vehicle of political success.
2.4. The new Government of the FRY has no reason to deny that this
venomous nationalism served *asa stepping-stone to Mr. MiloGeviC.The
Respondent would merely wish to add that Serbian nationalism was not
alone on the scene. Nationalist intolerance had also marked the rise of other
leaders, notably of Mr. Franjo Tudjman in Croatia.
2.5. Within the escalating spiral of national intolerance, minorities
found themselves in a particularly precarious position. Being a Croat in
Serbia under Tito was not a disadvantage; it became one during the rule of
Mr. MiloSeviC. Likewise, in times of ostentatious and aggressive
nationalism, Serbs in Croatia reacted with anxiety to the prospect of
becoming a minority inMr. Tudjman's Croatia, divorced from Yugoslavia.
2.6. The Applicant submits that the fears of the Serbs in Croatia were
spurred by Mr. MiloSeviC7spropaganda. This is difficult to deny. One is
compelled to add, however, that the fear and apprehension of Serbs in
Croatia, and their reluctance to accept an independent Croatia as their
home, were not fuelled solely by propaganda originating from Belgrade.
This reluctance was also instigated by hostile stereotypes about Serbs in the
Croatian media, and by Croatian authorities who challenged and impaired
the right of ethnic Serbs to maintain their cultural identity, just as they
challenged and impaired some of their basic human rights.
2.7. The political slogans which advocated Croatian independence
typically excluded, rather than included, ethnic Serbs living in Croatia,
18insisted on ethnic difference, and often contained animosity and slurs. To
usejust one characteristic illustration, in one of his campaign speeches,Mr.
Tudjrnan found it helpfil to emphasise: "ThnrzkGod, my wij2 isneither n
,1
Serb nor nJew.
2.8. The tragic events which took place cannot be reduced to a one-
dimensional conflict featuring one villain and one victim. It is important to
stress that at the end of the sequence of tragic events, a Croatian state was,
indeed, created, and was recognised internationally. The new government
of the FRY is no exception; it also recognises the sovereign statehood of
Croatia. At the same time, the Serbian minority was vanishing from Croatia
as the Croatian State was being created. Accordiiig to the 1991 population
census there were 580,762 Serbs living in croatiaq2This number has been
dramatically reduced. The main wave of exodus was prompted by
"Operation Storm", which started on 4 August 1995.
2.9. The International Criminal Tribunal for the former Yugoslavia
(hereinafter: "ICTY") issued indictments against Croatian generals for
crimes against humanity committed against the Serbian population of
Croatia - in particular during "Operation Storm". After this operation
alone, approximately 200,000 Serbs were forced to leave Croatia.
According to the ICTY indictment against the Croatian General Ante
Gotovina:
1See L.Silber and A. Little, TheDeathY~igoslavi, BC Books,London, 1995, p. 86
(Annex 1).
2Official data of the SFRY Federal AgenforStatistics (Savezni zavzastatistiku).
See the Statistics Bulletin (StatistiCki bNo. 1934, Belgrade, 1992 (Annex 2)
(figures referredmarked). "Between 4 Azlg~ist1995 and 15 November 1995, those who
remained in, or returned to, their homes in weeks after the
oflensive were ultimatelyforced toflee the areaas a result of
contin~ted killing, arson, looting, harassmmt, terror and
threals ofphysical har?i toperson and property committedby
Croatianforces. The cumulative effect of these ~tnlawfulacts
was a large-scale deportation and/or displacement of m
estimated 150,000 - 200,000 Krajina Serbs to Bosnia
Herzegovina and ~erbia."~
2.10. These data are corroborated by data of the UNHCR, according to
which, in a contemplated period between 1 July 1995 and 31 December
1995 (which includes the period of "Operation Stom"), 195,703 refugees
fled from Croatia to ~u~oslavia.~ccordin~ to the same UNHCR
publication, the total number of Serbian refugees from Croatia who moved
to the FRY between 1991 and 1996 was 281 ,642.5 The Respondent notes
that theFRY was not the only country of destination of Serbian refugees
from Croatia. The UNHCR states:
"The largest movement of refugees to Serbia occurred in the
second half-'of 1995 after the Croatian army launched an
attack that eventuallyforced more than 180,000 Serbs from
See ICTY Indictment in the case Prosecutor v. Ante Gotovina IT-01-45, sec. 20,
available http:llwww.un.orglicty/indictment 106en8.hts.h/go~-iiO
4
See the UNHCR publication CensofRefugeesand other War-Affected Persons in
rheFederalRepzibliof YugoslaviBelgrade, 1996p. 2(Annex 3).
See UNHCR, op.cit., p.(seeAnnex3).
20 Crontin to jlee their homes in tlze Krnjirtn region in the
world's single largest exodh~s."~
2.11. The official figures of the 2001 Croatian population census
published on 17 June 2002 show a dramatic decrease in the number of
Serbs. Between 1991and 2001, about two-thirds of the Serbian population
of Croatia disappeared. According to the 1991 population census, the
S
'i number of Serbs in Croatia was 580,762 (or 12,2 %). According to the
1
2 A
1
6
See UNHCR, op.cit.,p. 33(see Annex 3). I I
'See data of the 2001 Croatian population census, made public on 17 June 2002, at:
http://www.dzs.hr/EnglCensus/census200I .htm (Annex 4). The 1991 data arecontained
in the Bulletin of the SFRY FederaAgency for Statistics (Annex 2).
I
2
21 Part 111
FirstPreliminary Objection
THECOURTLACKSJURISDICTIONRATIONAE
PERSONAE
3.1. The Applicant alleges that both Croatia and tFRY were bound by
the Gei~ocideConvention at the time of Croatia's Application, which was
submitted on 2 July1999 (Memorial: 6.06).Based on these allegations, the
Applicant contends that the Court has jurisdiction over this dispute
pursuant to ArticlIX of the Genocide Convention and Article36(1) of the
Statuteof the Court (Memorial:6.01).
3.2. The Applicant advanced the following arguments in support of its
allegations:
(a)"During the dissol~ltion ojhthe SFRY, Croatin as well as other
successor states of theFRY, incl~ldingthe FRY, became bo~indby
the ter~nsof the Genocide Convention.
The basic principle inthis regard is laid down in the terms of Article
34 of the Vienna Coizvention on State Succession in Respect of
Treaties(.,)"(Memorial: 6.06 and 6.07)
(b) "[ilis gene)-allyaccepted that thepopulation on territory entitled to
enjoy the protection of certain human rights flowing from basic
h~1rnai.lights treaties may not be deprived of'such rights by mere
fact of the succession of n state in respect of that territory."
(Memorial: 6.07)3.3. The Applicant also submits that its position is supported by the
Judgement of this Court of 11 July96 in theCaseBosnia-Herzegovinav.
Yugoslavia(PreliminaryObjections) (Memorial: 6.09).
3.4. The Applicant's allegations are unfounded. The Respondent will
demonstrate that it did not become bound by the Genocide Convention in
any way before 10June 2001; and that it never became bound by ArtIXle
of this Convention.
A. The FRY became a Contracting Party to the Genocide
Convention bv accession on 12 March 2001 (effective 10 dune
2001);
The FRY never became bound by Article IX of the Genocide
Convention
3.5. The FRY became a member of the UN on 1November 2000. After
it became a Member of the United Nations, thFRY sent a notification of
accession to the Genocide Convention onMarch 20018, which containsa
reservationto ArticleIX.The text of this Notification reads as fol.ows:
"NOTIFICATION OF ACCESSION TO THE CONVENTION
ON THE PREVENTION AND PUNISHMENT OF THE
CRIME OFGENOCIDE(1948)
WHEREAS the Federal Republicof Yugoslavia had declared
on April27, 1992, that 'theFederal Republic of Yugoslavia,
continuing the State, international legal and political
personality of the Socialist Federal Republic of Yugoslavia,
SeeAnnex 5. slzallstrictly abide by all the cornrnitmeiztsthat the Socialist
Federal Republic of Y~igoslaviaassumed internationally',
WHEREAS this contention of continuity also inclclded the
nss~tmptiorz that the Federal Republic of Y~igoslavia
conti~zuedthe membership in the ~n;ted Nations of the
Socialistedeml Rep~iblicof Yugoslavia,
3
B WHEREAS the contention and nss~imptionof continuity vvas
jf
eventually not accepted by the United Nations, nor was it
1 accepted by other successor States of the Socialist Federal
Republic of Y~tgoslavia,and thus itproduced no effects,
FURTHERMORE this sit~iationbecame finally clarified on
l November 1, 2000 when the Federcl1Republic of Y~tgoslavin
1
L was acceptedas anew mernberState ofthe UnitedNations,
a
NOW it has been established that the Federal Republic of
Ycigoslaviahas not sctcceededorzApril 27, 1992, or on nrzy
Interdate, to treaty membership, rights and obligations of the
Socialist Federal Republic ofY~lgoslaviain the Convention
on the Prevention and Punishmentof the Crime of Genocide
on the assumption ofcontinued membership in the United
Nations and continued state, international legal and political
personality oj'theSocialist Federal Republuf Y~tgoslavia,
THEREFORE, Iam submitting on behalf of the Government of
the Federal Republic of Y~~goslnviathis notiJication of
accession to the Convention on the Prevention and
Punishment of the Crimeof Genocide, inpLlrsuanceof Article XI of the said Convention and with thefollowing reservation
on Article IX of the said Convention: 'TheFederal Rep~lblic
of Y~tgoslaviadoes 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 Rep~rblicof Yugoslavia is a party may be
validly submitted to thejurisdictionof the International Court
of Justice under this Article, the specific and explicit consent
of theFRY is required ineach case.'
(Signed by Gorun Svilanovid, Minister of Foreign Affairs,
FRY) "
3.6. In a note dated 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-General states:
"The above instrument was deposited with the Secretary-
General on 12March 2001,the date of its receipt.
Due note has been taken of the reservation contained in the
instrument.
In accordance with Article XIII(3/, the Convention will enter
into force for Yugoslavia on the ninetieth day following the
date of deposit of the instrument, i.e., on 10 June 2001."9
(emphasis added)
see thfulltextoftheNote of the Secretary-GeneralAnnex 6. 3.7. The Secretary-General- acting in his capacity as deposi-athus
accepted theaccessio~iof theFRY, and official records of the depositary
state unequivocally that Yugoslavia acceded to the Genocide Convention
on 12 March 2001 .l0According to ArticleXI11of the Convention, the
accession of the FRY became effective 10 June2001.
1 3.8. The FRY never became bound by Article IX of the Genocide
1 Convention.
B. Before it became a Contracting Party by accession the FRY could ,,
EI
not become, and did not become, a Contracting Party to the \
Genocide Convention
I
1
I3.1 The FRY was not even qualified to be a Contracting Party to
the Genocide Convention before the Application was
submitted, because it was not a Member of the UN and it
never received an invitation in accordance with Article XI of
the Genocide Convention
3.9. The FRY was not a Contracting Party to the Genocide Convention
on, or before, 2 July 1999 (as alleged in the Application). Not every State
I
can become a Contracting Party to the Genocide Convention. The
I Convention, of which the Secretary-General of UNeis the Depositary, is I
( I
'OMidtilaterai treuties deposittheSecretaiy-General, UN Treaty Web-ite
www.untreaty.un.org/ENGLISWbiblelenb epashicnhapeeVb1treal.asp.,
visited 7Aug.2002 (Annex 7).
27unconditionally open to Members of thUN. Non-members have to receive
an invitation. According to ArtiXIeof the Convention:
"The present Convention shall be open until 31 December
1949 for signature on behalf of any member of the United
Nations and of any non-member State to which an invitation
to sign has been addressed bythe GeneralAssembly.
After 1January 1950, thepresent Convention may be acceded
to on behalf of any member of the United Nations and of any
non-member State which has received an invitation as
aforesaid. Instruments of accession shall be deposited with the
Secretary Generalof the UnitedNations."
3.10.On 3December 1949,the UN General Assembly issued aresolution
by which it confirms the principle stated in ArtXIleand authorises the
Secretary-General to dispatch specific invitations to any of those countries
which are not Members of the UN and which meet certain criteria.
According to the resolution, the General Assembly:
"Considering that it is desirable to send invitations to those
non-member States which, by their participation in activities
related to the United Nations, have expressed a desire to
advance international cooperation, 1. Decides to request the Secretary-General to dispatch
the invitations above mentioned to each non-member State
which is or hereufrer becomes an active member of one or
more of the specinlized agencies of the United Nations, or
2 which is or herearfer becomes a Party to the Statute of the
3 International Courtof ~lrstice."'
3.11. This resolution was observed and confirmed in practice. For
example, on 20 December 1950, the Federal Republic of Germany received
l
a specific invitation from the Secretary-General to join the Genocide I11
Convention as aContracting party. l2 l
d
fl
3.12. It isnow settled that theFRY was not a Member of the UN when
i the dissolution of the SFRY took place in 1992, and it is a plain fact that
1
i the FRY never received an invitation from either the General Assembly or l
from the Secretary-General to become a Contracting Party to the Genocide
Convention. For these reasons, the FRY could not have become a
Contracting Pany to the Genocide Convention before it became a Member
I
of the United Nations. Subsequent to it becoming a Member of the UN, the
FRY acceded to the Genocide Convention, with reservation to Article IX.
i
1 " See GeneralAssembly Resolutio368 (W) of3 Dec. 1949.
12
See H. H. Jescheck,Die internatioizale Genocidium-Konvention vomDezember
1948 und die Lehrr von~ Volkerstrafrecht, Zeitschriftfiir die gesamte
Strafrechtswissenscha1954,pp. 193-217(Annex 8)(textreferredto marked). 8.2 Even if the FRY were qualified to become a Contracting
Party to the Genocide Conventionbefore the Applicationwas
submitted, it did not become a Contracting Party to this
Convention on any possible grounds before 10 June 2001;
and, to reiterate,the-FRYnever became boundby ArticleIX
of the GenocideConvention
3.13. Neither of the alternative premises advanced by the Applicant
(Memorial: 6.06 and 6.07)'~ can support the contention that the FRY
became a Contracting Party to the Genocide Convention (and that it
became bound by its Article IX) by succession,
In the following, it will be demonstrated that:
(a) the Vienna Convention on State Succession in respect of Treaties
was not in force when the succession of the former SFRY
occurred;
(b) the Vienna Convention on State Succession in respect of Treaties
cannot be applied retroactively;
(C) the jurisdiction of the Court cannot be based on erroneous
assumptions or declarationsof continuity;
(d) the jurisdiction of the COU~cannot be based on the theory of
automatic succession with regard to human rights treaties;
(e) in particular, there cannot be, and there was no automatic
succession regarding ArticleIX of the Genocide Convention;
l3Cited in para. ofthese Preliminary Objections. ( the allegation that thejurisdiction of the Court is based on Article
IX of the Genocide Convention has no support in theories on
acquired rights of the populationof the successor State.
i (a) The Vienna Convention on State Succession in respect of Treaties
<
wasnotinforce whensuccession occurred
t
1 3.14. The Memorial suggests that the FRY became a Contracting Party to
'i
the Genocide Convention by virtue of Article 34 of the 1978 Vienna
l
1 Convention on State Succession in respect of Treaties (Memorial: 6.07).
L The Applicant did not argue - nor could it have argued - that Article 34 l'
9 represented customary international law. Instead, the Applicant cites the i
1 1
text of Article 34 of the 1978 Vienna Convention, and relies on it. +
However,this Convention could not, and did not, apply to the succession of
the SFRY, because it was not yet in force when the succession occurred.
i
3.15. Article 7(1) of this Convention makes it abundantly clear that the
rules of the Convention apply solely in respect of a succession of States
occurring afterthe entry into force of the Convention (which took place on
6 November 1996).'%ccording to Article 7(1):
"Witho~ltprej~judice to the ~zpplicationof any ofthe ntles set
forth in the present Convention to whicll the effects of the
succession of States would be sclbject independently of the
Convention, the Convention applies only in respect of n
2
14See M~~ZtiluterTlreaties Deposilwiththe Secretary-General, Stutusat 31 Dec. f
r
2000, Vol.11,Par t(United Nations Treaties), ChXXIII (The Law ofTreaties)UN i"
Doc. ST/LEG/SER,E/19,p.275 (Annex9). V
1 s~iccessionof States which bus occclrred after the entry into
force of the Conventionexcept as may be otherwise agreed."
(emphasis added)
3.16. The succession of the FRY clearly occurred before that date. The
exact dates on which various republics succeeded the SFRY may vary, but
it is beyond doubt that with regard to the FRY succession took place on 27
April 1992,i.e. on the dateon whichthe FRYwas formed.
3.17. According to the definition adopted in the 1978 Vienna Convention
itself, the
"[the] date of the succession of States' means the date upon
~vhiclzthe successor State replaced thepredecessor State in
theresponsibilityfor the internationalrelations of'the territory
to which the s~lccessionof States rel~tes".'~
The FRY clearly manifested that it took over responsibility for the
international relations on its territoryter April 1992 and before November
1996, by, inter nlin,concluding a large number of treaties. Among these
treaties concluded between April 1992 and November 1996 there are 108
bilateral agreements, including the Agreement on Normalization of
Relations between the FRY and the Republic of croatia.16
l5Article 2(l)(eofthe 1978 Vienna Conven:ian on Succession oStatesin respect of
Treaties.
16
See Agreemeat on NornlalizatiorzoRelationsbetween theFRY and the Republic of
Croutia, signedon 23 Aug. 1996;English text inUN Doc. AI511318 - S/1996/706
(1996) (Annex 10). 3.18. Moreover, the fact that succession had taken place by 1992 has
actnally never been contested, and international documents have time and
again reiterated this fact.
+
; 3.19. For example, the Badinter Arbitration. Commission (Commission
I
d'ilrbitrage dela corlff'rencrpour lc~Paix en Yougoslavie), relied upon
i
frequently by the Applicant, stresses in its Opinion No. 11:
I
I
"En cons&quence,la Commission d 'Arbitrge est d'avis: I
l
l
- que les dates auxquelles les Etnts issub dc l'ancienne l1
R.S.F.Y.ont succkcli L?celle-cisont les suivantes:
lr 8 octobre 1991 pour LaRkpublique de Croatie et la
Rkp~ibliq~le de Slove'nie,
Le17Novembre 1991po~lrl'ex-Rkpubliqueyougoslave de
Machdoine,
le 6 nmrs1992 pour la ~kpubli~ur Bos~zie-Herzkgovine,
et le 27 avril 1992 pour La Re'publiquefederale de
Yougoslavir (~erbie-~ontknn~~ro).~~
3.20. The 1978 Vienna Convention on the Succession of States in respect
of Treaties was clearly not in force at any of these dates, and could not
govern the resolution of the issue of succession in respect of treaties.
Para. 10 of Opinion No. 11, reprintedin RGDIP 1993, vol. 97, No. 4, at p. 1105
33Recognising this plain fact, no successor state of the former SFRY relied
on Article 34 of the 1978 Vienna Convention for the purpose of succession
of treaties. Instead, all successor state- including both Croatia and the
FRY - decided to submit specific notifications of succession, or accession,
to treaties to which theormer SFRY had been aparty.''
(b) No grounds for retroactive application of the 1978 Vienna
Convention on StateSziccessioninrespectof Treaties
3.21. There is only one vehicle in the 1978 Vienna Convention which
could conceivably allow its retroactive application, but this has clearly no
relevance in this case. Article 7(2) of the1978 Vienna Convention allows
any State to make a declaration
"[tlhat it wilapply the provisions of the present Convention
in respect of its own succession which has occurred bcyj-ore
the entry intforce oj'theConvention."
Such a declaration19 would have been the sole way to extend the
effectiveness of the Convention to the succession of the FRY. Such a
declaration was, however,nevergivenbythe FRY.
18Croatia submitted on27 July1992 a notification of succession accompanied by a
specific list of multilateral treaties to which Croatia intended to succeed. See
Multilateral Treaties Deposited wtlze Secretary Geneml"lstoricalInformation",
UN Treaty Website: http:J/untreaty.un.orgiENGLISWbible/englishintemetbible/
historicalinfo.asp,visite9January2002 (Annex 13).
l9 Such declarations were only given by the Czech Republic and Slovakia.The
Declaration given by the Czech Republic reads: The jurisdiction of the Court cannot be based on erroneous
asszrmptionsor declarationsof continuity
: 3.22. Applicant relies on a ~eclaration~' adopted on 27 April 1992 at a
5
joint session of the Assembly of the SFRY," the National Assembly of the
Republic of Serbia, and the Assembly of Montenegro. The Memorial of
t
Croatiacites a part of this Declaration which stated:
9
"The Federal Rep~~blicof Y~tyoslavin,continuing the State
international, legal and political personali~j of the Socialist
Feder~rlRep~tblicof Yugoslavia,shall strictly abicleby all the
cotnnlitnzents that the Socialist Federal Republic of
I
Yugoslaviaassztmedinternationnlly". (Memorial: 2.138) L
111a footnote added to this citation, the Memorial stresses, however:
i 6
"Pursuu/ittoArticle 7,paragraph 2 und 3, oftha Viz~znnCo~ivmtiunon Succession of
1 t
States in respect ofTreaties, adopted inViennc~ onAugzrst 23. 1978, the CzechRepublic :a.
declares that it will apply the provisions of the Convention in respect of its own
succession of Slams which occwrred before the entry bztoforce of the Convention in
'5
relution to uny other Contructing State of State Party to the Corzventionaccepting the ?r"
cleclurutio/z. Ts
The CzechXepablic ~im~lltuneouslydeclares its acceptanceof the declaration made by
l the Slovak Rrpzrblicat the time oj'its rati/icutiun uf tile Conventionpursuunt to Article
7,parugruph 2 c~nd 3 thereqF"
See Multilateral Treaties Deposited with the Secretury General, Status ss at 31 Dec.
2000,Vol. 11,Part I,Chap. XXIII, UN Doz. ST/LEGISER.E/19,p. 275 (Annex 9).
20
See the text of the Declaration in Annex 13.
2I
At that time, itwas contested whether the SFRY Federal Assembly stilexisted.
35
$F9*.-%------ .-- " -*--
I-. --' --- - - --
Ci.
;:
I.
7 *3 -
2:*- "Neither Crontin nor any of'the other Republics of SFRY
which became independent accept that FRY was the
'contin~lation'in a legal sense of the SFRY." (Memorial
2.138, footnote 220)
3.23.The Declaration of 27 April 1992 was brought to the attention of the
United Nations by a Note. Relying on this Note and on the Declaration
("Proclamation"), Croatia asserts that
"[tlhe Note of 27 April 1992 referring to the FRY'S
proclamation can be treated as n notification of s~tccession
to the Genocide Convention." (Memorial: 6.09, footnote 9)
3.24. The Respondent will demonstrate that the Declaration of 27 April
1992, and the Note which accompanied it to the UN, did not intend to serve
the purpose of treaty succession, and were not capable of serving this
purpose.
There are three independent reasons, each of which is in itself sufficient to
demonstrate that neither the Declaration nor the Note were instruments of
succession:
- Neither the text nor the context of either the Declaration or of the
Note give any support to the proposition that theywere instruments
of succession. Instead, they contradict this hypothesis;
- The Declaration and the Note did not and could not represent
relevant treaty action, because they lacked specific reference to any
treaty, and did not emanate from competent authority; - Neither the Declaration nor the Note were perceived as instruments
of succession.
The Respondent will further demonstrate that the claim actually advanced
in the Declaration and in the Note (the claim to continuity, i.e. identity)
remained unaccepted and without effects.
l
Neither the text nor the context of either the Declaration or of
the Note give any support to the proposition that they were
l
instruments of succession. Instead, they contradict this l
l
hypothesis. I
'l
l
3.25. There is absolutely nothing indicating succession in either the
i
Declaration or in the Note. As a matter of fact, the word or notion of I B
"silccession" is completely missing from both the text and from the context t
1
of both the Declaration and of the Note. What is asserted, instead, is the j:
i
viewthat the FRY continued the personality of the SFRY.
f
3.26. The Declaration purported to be an azsertion of "views on policy
objectives". In the text of the Declaration 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 authors. 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 that guided the opinions expressed in the
Declaration wasclearly the perceptio!: that Yugoslavia continued to exist,that the FRY was the same State as the SFRY, and that it continued the
identity of theSFRY.
3.27. The explicitly stated purpose of the Declaration was to state the
views of the participants on policy objectives. As stressed in the
introductory part of the Declaration:
"Rernairzirzgstrictlycommitted to the peaceful resolution of
the Yugoslav crisis, wish to state in this Declaration their
views on the basic, immediate and lasting objectives of the
policy of their common state, and its relations with the former
Yugoslav Republics." (emphasis added)
3.28. The first such "view" stated was the one that was cited and relied
upon by the Applicant:
"The Federal Republic of Yugoslavia, continuing the State,
international legal and political personality of the Socialist
Federal Republic of Yugoslavia,shall strictly abide by all the
cornntitments that the SFR of Yugoslavia assumed
internationally."
i
3.29. Furthermore, the destination of the Declaration of 27 April 1992
was not the Depositary, but the President of the Security Council, $
consistent with the fact that this wasa policy statement, rather than atreaty i
action.22The Declaration and the Note were transmitted by a letter of 6 1
?
22See the letter date27 Apr. 1992 from the Charg6 d'affaires a.ofthe Permanent 1
Mission of Yugoslavia tothe UN addressedto the Presidenof the SecurityCouncil, j
UN Doc. S/23877(1992) (Annex 14). May 1992 to the Secretary-General, aslung the Secretary-General to
circulate the Declaration and the Note "as an official document of the
General ~s~ernbl~".'~ This is again indicative of the fact that both the
i Declaration and the Note were political documents, rather than treaty
*I action.
3.30. Even more importantly, just as the content of the Declaration, the
content of the Note leaves no dortbt whatsoever, and makes it crystal clear
that the assumption on which the FRY asserted to continue the obligations
of the SPRY was the assumption of continued personality (identity). The
Note alleges that:
"[oln the basis of the continuing personalityof Yugoslavia
and the legitimate decisions by Serbia and Montenrgro to
continue to livetogetlzerin Yugoslaviu, the Socialist Federal
Rrp~iblic of Y~igoslavia is tmns$ormed into the Federal
Republic oj'Yugoslr~via,consisting of the Republic of Serbia
and the Republic ofMontenrgro." (emphasis added)
3.31. Based on this allegation, and unequivocally stressing the
proposition of continued personality as the sole basis for assuming the
obligations of the SFRY, the Note states:
"Strictly respecting the continuity of the international
personality of Yugoslavia, the Federal Republic of
23See the Letter datedMay 1992 from theCharge d'affairea. i. of tPermanent
Missionof Yugoslaviatthe UnitedNationsUN Doc. M461915 (1992)(Annex 15). Yugoslavia shall continue tojitlfill all the rights conferred to,
and obligations assumed by, the Socialist Federal Republic of
Y~~goslavin in international relations, including its
membership in all international organizations and
participation in internaiiolzallreaties ratified or acceded to
by Yugoslavia. " (emphasis added)
In line with this assumption, the Note considered the FRY to be "a
founding Memberof the United ~ations".~~
The Declaration and the Note were policy statements (advancing a claim to
continuity) rather than treaty action.
The Declaration and the Note did not and could not represent
relevant treaty action,because they lacked specific reference to
anytreaty,and didnot emanatefromcompetent authority
3.32. Another reason why the Declaration and the Note were completly
unsuited to bring about treaty action is that they did not identify any
treaty. No specific treaty was either mentioned or referred to and no list of
relevant treaties was added or appended either. In order to bring about
succession, specific declarations or references to specific treaties are
needed.
3.33. This has clearly been confirmed by the Secretary-General, acting as
depositary of multilateral treaties. Taking a position on "general
declarations of succession" the Secretary-General stresses:
24
Note dated 27Apr. 1992 from the Pernlanent Missioof Yugoslavia to the United
Nations(Annex 15). "Frequently, newly indepencleiztStates will ~ubmit to the
*
Secretary-General "general" declarations of szlccession,
t
~iszlallyreqzlesting that the declaration be circulated to all
i:
i States Members of the UnitedNations, TheSecretary-General,
f
cl~llycomplies with ~'ucha req~lest (...)b~itdoes not consider
such a declaration as a valid instrument of succession to any
I
of the treaties deposited with hint, and he so informs the
Govenzmeizt ofthe new State concerned In so doing, the
Secretary-General is g~tidedby thefi~llowingconsiderations.
The deposit of an instrument of s~tccessionresz~ltsin having
the succeeding State beconzebound, in its own name, by the
treaty to whichthe successiorlcrpplies,with exactly the same
rightsand obligations as ifthat State had ratified or acceded
to, or otherwise accepted, the treaty. Consequently, it has
always been the position of the Secretary-General, in his
capacity as depositary, to record u sllcceecling State as n
party to a given treaty solely on the basis of U formal
document similar to instrunzents of mti$cation, accession,
etc., that is, atification emanating from the Head of State,
the Head of Government or the Minister for Foreign
Affairs, which should specify the treaty or treaties by which
the State concerned recognizes itself to be bound. General declamtions are not s~lflicientlyn~ithnritntiveto have
the States concerned listed as parties in the p~lblicntion
Multilateral TreatiesDeposited with tlze~ecreta~-~eneral."~~
(emphasis added)
3.34. The Declaration and the Note of 27 April 1992, were general
declarations - not even "general declarations of succession", but general
policy declarations. They did not refer to any treaty, and they did not
emanate from any of the authorities considered by the Depositary to be
competent authorities. At the end of the text of the Declaration "The
participants of the joint session of the SFRY Assembly, the National
Assembly of the Republic of Serbia, and the Assembly of the Republic of
Montenegro" are indicated as authors. The Note emanated from the
"Permanent Mission of the SFRY (FRY) to the United Nations". Both the
Declaration and the Note were transmitted to the Secretary-General by a
letter written by the Charge d'affaires ad interim of the "Permanent
Mission of Yugoslavia to the UN"~~, asking the Secretary General to
distribute them as officials documents of the General Assembly. Thus,
neither the Declaration nor the Note emanated from authorities recognised
as competent authorities. For this additional reason, the Declaration and the
Note could not bring about succession.
25 SummaryofPractice of rheSecretary-Gelzerul us Lleposi~ury of Multilaterul Treuties,
paras. 303-305 (footnote omitted), at: http://untreaty.un.orgENGLIS Wsummary.asp
(Annex 16).
26 See Annex 15.
.
--. . . .--...-?-.",....
, ..
c.: .. , . .. -. -
. -....%A..",.-:. . .. .........I ....... The Declaration and the Note were by their contenta claim to
continuity,and they werealso perceivedas a claim to continuity
ratherthan as a notificatioof succession
, 3.35. The Declaration and the Note have'been perceived in accordance
i with their true content. They have been perceived as a claim, as an
I
assertion that FRY continued the personality of the forSFRY, and
i
that it thus continued the membership of the fomSFRY in theUN and
other international organisations, and that it also continued treaty
membership of the SFRY.
This proposition of continuity and its consequences were understood, but
I
1 have not been accepted. Croatia and other former Yugoslav republics
I
1 vigorously contested the assertion thaFRYhecontinued the membership
of theSFRY in the United Nations and in other international organisations,
and contested that theRY sustained the international standing, rights and
obligations of tSFRY.
3.36. To cite one example, on16 February 1994, in a letter27addressed
to the Secretary General, the Permanent Representative of Croatia to the
United Nations takes a position on t"[dleclaration adopted o27 April
1992 at the jointsessionof the National Assembly of the Republic of
Serbia and the Assembly ofthe Republic of Montenegro".This letter cites
l
27See UNDoc. S/1944/198 (19(Annex 17).
43the Declaration, explains why did Croatia not react earlier, and underlines
in no uncertain terms that Croatia opposes the claim to continuity
formulated in the Declaration:
"The Repslblicof Croatinstrongly objects to thepretension of
the Federal Repziblicof Y~tgoslavia(Serbia and Montenegro)
to continue the state, international, legal and political
personality of the former Socialist Federal Republic of
Yugoslavia."
3.37. The same letter makes it clear that Croatia rejected even the
I
hypothesis that the Declaration could have had effects of a notification of
succession. The letter adds (in the conditional tense), that Croatia would l
I
only accept a notification of succession, if sucha notification were to be
given:
"[ilf the Federal Republic of Yugoslavia (Serbia and
Montenegro) expressed its intention to be considered, in
respect of its territory, n parby,virtue of succession to the
Socialist Federal Republic of Yugoslavia, to treaties of'the
predecessor State with e#ectfrom 27 April 1992, the date on
which the Federal Republic of Yugoslavia (Serbia and
Montenegro) as a new State, css!&rned responsibility for its
international relations, theRepublic of Crontin would fctlly
respect that t~otijicationofswcc~ssion."(emphasis added)
Ibid.Obviously, Croatia did not perceive the Declaration, or the Note, as a
notification of succession- or asan act having the effects of a notification
of succession.
3.38. A year later, in a letter o30 January-1995, Croatia still refers to
notification of succession as a step thatould be taken in the future, and
reiterates its position, according to which Croatia would consider a
notification of successionf theFRY wereto givesuch a notification. This,
again, implies that in Croatia's view such a notification of succession was
not given by the Declaration or by the Note of 27 April 1992; and that
neitherdid the FRY become a Contracting Party to multilateral treaties to
which the former SFRY was a party inany other way. The letter states:
"Should the Federal Republic of Yugoslavia (Serbia and
Montenegm) express its intention to be considered aparty,
by virtue of succession, to the multilateral treaties of the
predecessor State with efsectas oj27 April 1992, the date on
which the Federul Republic of Yugoslavia (Serbia and
Montenegro) as a new State, assrimed responsibility for its
international relations, theRep~lblicof Croatin would take
note of thatnotificatioof s~ccession."~~(emphasis added)
3.39. Depositary practice also confirms that neither the Declaration nor
the Note of 27 April 1992 have ever been treated as an instrument of
succession. Before it became clear that theRY only became a Member of
29
SeeUN Doc.A/50/75- E/1995/10 (1995) (Anne18).the United Nations on l November 2000, depositary practice did show
"Yugoslavia" as a member State of the UN and as a contracting party to
treatiesThis practice may have created ambiguities, and the appearance of
membership - yetthe only appearance which could have been created was
that of acontinued membership: The date written beside the membership
of "Yugoslavia" was always the one on which the former Yugoslavia (and
not the FRY) had become a Member of the UN, or a contracting party to a
treaty. Had succession been contemplated, the date indicated would have
-
been that of the succession, such as itis today with respect to theFRY,
with respect to Croatia, and other member States. Until thFRY became a
Member of the UN in November 2000, "Yugoslavia" was listed as a
Member of the UN from 26 June 1945; this may have created the
appearance of the FRY continuing the personality of the formeSFRY, but
this could not have created even the appearance of membership of a
successorStatewhich cameinto beingon 27 April 1992.
3.40. Likewise, before the situation regarding the FRY was clarified,
"Yugoslavia" was listed as a Contracting Party to the Genocide i
B
Convention, stating the date of signature as 11 December 1948, and the
3a
date of ratification as 29 August 1950." The same survey indicates that
Croatia became a Contracting Party on 12 October 1992 by succession. 31
9
Again, the reference to "Yugoslavia" as a Contracting Party since 1950
t
'OMultilateral Treaties deposited with the Secretary-General, Sta31 Dec.at
2000,Vol. I,PartI (United Nations TreatieChap.IV (Human Rights), UN Doc.
ST/LEG/SER.E/19,p. 132.(Annex19)
31 i
Ibid.p. 131. Inay have created the appearance of the continued existence of a
"Yugoslavia" as a Contracting Party, but it could nothave supported in
any way the hypothesis, or even the appearance that,by declaration,
automatically,or otherwise,the FRYhad becamea ContractingParty
i bywayof succession.
,1
3.41. By now, the situation has been clarified. In the publication
i
1 "Multilateral Treaties Deposited with the Secretary-General", in section
t "Historical ~nformation"~~the Depositary offers explanation,showing that
the Declaration and the Note were clearly perceived as a claim to
continuity.
3.42. It is stated in the "Historical Information" that:
"Yugoslavia came into being on 27 April 1992following the
promulgation of the corzstitutioof the Fedeml Republic of
Yugoslavia on that day. Yugoslavia nevertheless advised the
Secretary-General on 27 April 1992 that it claimed to
continue the international legal personality of the former
Yugoslavia. Yugoslavia accordinglyclaimed to be a member
of those intemutional organizations cfwhich the former
Yugoslavia had been a member.It also claimed thatall those
treaty acts that had been performed by the former
Yugoslavia were directly attributable to it, as being thesame
State (...)Bosnia and Herzegovina, Croatia, Slovenia and
32
M~~ltilateralTreaties Deposwiththe Secretary-General, "Historical Information",
UN Treaty Website, at: http://untreaty.un.org/ENGLISWbible/englishinternetbible/
historicalinfo.asp, visited on2002.See Annex 12. theformer YugoslavRepziblicof Macedonia.. .[olbjected to
thisclaim." (emphasis added)
Thus, the pretention expressed in both the Declaration and the Note was
that of identity (continued personalit-)and this is how it was perceived.
These documents were not meant to make the FRY a member of the UN,
or to make ita party to treaties. Both documents expressed instead a
political aspiration to continuity (identity). The assertion of identity
(continued personality) endeavours toconfirm a perceived state of affai-s
the FRY is the same personas the fonner Yugoslavia, and accordingly, the
FRY remains a member of the UN and remains a pmy to treaties ratified
by the former Yugoslavia -rather than pretending to create commitments,
rights or obligations.
The Declaration and the Note were not meant to be treaty action, theyre
not perceived to be treaty acti-nand they were no treaty action.
The claimactually advancedin the Declaration and in the Note
(the claim to continuity, i.e. identity)remained unaccepted and .
withouteffects.
3.43. The attempt of the former Government of the FRY to be "accepted
as a continuation of the international legal personality of the former
SFRY", and to assume membership of international organisations and to
treaties on this ground failed. The political "views" expressed in the
Declaration of 27 April 1992, and in the Note by which this Declaration was presented to the UN, could not, and did not, change this fact. State
succession did, of course, take place, but not on the grounds, and according
to the terms, of a declaration which was not meant to be, and could not be
considered to be, a declaration of succession. It was clearly a declaration of
continuity. In the Declaration of 27 April 1992 the FRY did not claim, and
did not even suggest that it would be a member of international
organisations, or that it would be bound by treaties, otherwise but on the
assumptionof continuingthepersonalityof theSFRY.
3.44. The FRY'S claim that it remained a member of international
organisations and party to treaties continuing the State, international legal
and political personality of the Socialist Federal Republic of Yugoslavia
I
did receive some encouragement, there were uncertainties and mixed
l l
j responses, but no conclusive acceptance.
I I l
3.45. In this situation, the new Government of the FRY took the sole
remaining course of action. On 27 October 2000, President KoStunica
6
addressed a letter to the Secretary-General requesting admission of the
FRY to membership of the United ~ations.'~ Upon recommendation of the
Security Council, the General Assembly decided on 1 November 2000 to
admit the FRY to membership of the United ~ations.~~
f
l 35SeeAnnex20.
34 See Security Council Resolution1326 (2000) and General Assembly Resolution
55/12 (2000) (Annex21). I
L I3.46. The decision of the General Assembly of1 November 2000 finally
resolved the dilemmas and uncertainties, and closed the door to the
possibility that theY may have been a Member ofthe United Nations
before 1 November 2000. The FRY became a new Member ofthe United
Nations -clearly implying that it had not hitherto been a Member.
3.47. The FRY was admitted as a new Member on 1 November 2000,
and so ended the period in which contradictory indications allowed
different interpretations. All that remainedhe unequivocalfactthat the
FRY did not continue the personality of thSFRY, and had not been a
Member of the UN before 1 November 2000. According to the most recent
List of Member States published by the UN (updated on 18 December
2000), "Yugoslavia" appears as a Member State, with the date of admission
indicatedas 1November 2000. An explanatory note states:
"The Socialist Federal Republic of Y~lgoslavia was an I
original Member of the United Nations, the Charter having 1
been signed on itsbehalf on 26 June 1945 and ratified 19 4
1
October 1945, until itsdissolutionfollowing the establishment
and subsequent admission as new members of Bosnia arld
Herzegovina, Croatia, the Republic of Slovmia, the fornzer
I
Yugoslav Republic qfMacedonia, and the Federal Republic 2
i
ofYugoslavia. (emphasis added)
i
50 1
f
i The Fedeml Republic of Y~~goslaviawas cldmitted as a
Member of the United Nations by General Assembly
resol~ltioz/RES/55/12 of1 November 2000."~~
3.48. Following admission, the Legal Counsel of the United Nations
invited the FRY to decide whether or not to assume the rights and
obligations of the formerSFRY in international treatieInhis letter of8
December 2000,~~the Legal Counsel states:
"Itis the Legal Connsel's view that the Federal Republicof
Ytigoslavia should now undertake treaty actions, as
appropriate, in relation to the treaties concerned, if its
intention is to assume the relevant legal rights and
obligationsas a successorState."(emphasis added)
3.49. It is important to add that the letter of the Legal Counsel was
accompanied by alist of treaties with respect to whichFRY, in order to
become a party, should undertake treaty action. This list included the
GenocideConvention. Thereby itbecame confirmed that theFRY was not
a party to the Genocide Convention before. Thus, in December 2000 the
FRY was in a position to choose whether to succeeor acceed or whether
instead not to succeed (nor to acceed) to treaties to which the fonner
Yugoslavia was a party.
3sSeeatwww.un.org/Overview/unmembe ee.htmex22.
36see Annex 23.3.50. Before November 2000, in the list of treaty actions published by the
Depositary, the short name "Yugoslavia" was used for both the former
Yugoslavia and for the FRY. This created a situation which was rightly
characterised by this Court as ''notfree from legal diffi~ulties"Now as it
has become clear that the FRY'S claim to continuity remained
unsuccessful, treaty actions of the former Yugoslavia are not listed
anymore under a designation which could be confounded with the FRY. In
the "Historical Inforrnation" published by the Secretary-General as
depositary it is now explained that:
"Treaty actions ~~ndertnken by Y~~goslavia are now listed in
thispublication against the designation "Y~~goslavi "a.
Treatyactions bindertaken by theformer Y~~goslavia appear in
7,738
footnotes, against the designation yorrnerY~igoslavia.
3.51. In short, the Declaration of 27 April 1992, the Note by which it
was submitted to the UN, the reaction of the Depositary,and the unresolved
status of Yugoslavia inthe UN, did create dilemmas asto whether the FRY
did or did not continue the personality, membership in the UN and treaty
membership of the SFRY. However, this Declaration, the Note, and the
practice of the Depositary never even suggested (but rather contradicted)
membership of the FRY by succession to the treaties to which the former
37Court Orderof8 Apr. 1993I.C.J. Reports 1993, p. 14.
38See Annex 23. SFRY was a party. Today it is clear that the FRY did not continue the
personality, UN membership and treaty membership of the SFRY. The
P FRY became a new member of the UN on 1 November 2000; it became a
: Contracting Party to the Genocide Convention by accession on 10 June
1
is 2001 - with reservation to Article IX.
4i I
4: l
l
(d) Thejurisdiction of the Court cannot be based on the theory of l
automaticszlccessionoftreaties l
3.52. As demonstrated above, the Respondei.,: has never given a
notification of succession to the Genocide Convention.
3.53. It will now be further demonstrated that the Respondent never
became bound by the Genocide Convention by automatic succession, since
no such rule existed prior to the enactment of the 1978 Vienna Convention
on State Succession in respect of Treaties, nor has such a rule since
developed. This is confirmed by:
(1) the drafting history of the1978 Vienna Convention;
(2) the practice of the Legal Counsel of the United Nations;
(3) the absence of the prerequisites to establishing a rule on
automatic succession of human rights treaties;
(4) relevant State practice;
(5) depositary practice; and
(6) State practice (including that of the Applicant itself) with regard
to the fonner SFRY.(1) The drajling history of the 1978 Vienna Convention on State
Succession in respectof Treatiesdemonstrates that theproposition
of automatic successionof humanrights treaties wasnot recognised
in internationallaw
3.54. During the preparatory work of the International Law Commission
for the 1977178 Diplomatic Conference at which the Vienna Convention on
State Succession in respect of Treaties was finally adopted, the
International Law Commission considered whether the principle of
automatic succession should apply to law-making treaties such as, for
example, the 1949 Geneva Conventions. Such a proposition was not
accepted. The International Law Commission, after having devoted
considerable time to the issue, stated in that regard that
"it was not the practice forthe principle of continuance to be
applied (...)"39
Indeed, the conclusion reached by the International Law Commission was
that
"the evidence of State practice appeared to be unequivocally
in conflict with the thesis that a newly independent State is
under an obligation to consider itself bound by a general law-
making treaty applicable in respect of its territory prior to
independen~e."~'
39See Yearbook of theInternational Law Commission (hereafter: "YbILC"1974, Vol.
11.No, l,p.43. (Annex 24)
40Ibid. : 3.55. The International Law Commission further analysed State practice
. with respect to the 1949 Geneva Conventions, and found that while a
1 number of States had notified their succession, a large number of States had
also become parties by way of acce~sion~~,.whichclearly contradicts the
! proposition of automatic succession.
1
4
2
1 3.56. In particul& the International Law Commission stressed the point
I
1 that law-making treaties cannot be subjected to a regime of automatic
succession since
1 "such treaties may containpurely contractualprovisions such
t l
i as,for ample, n provisionfur the compulsoryadjudication l
1 ofdisputes. "" (emphasis added) I
9 l
f l
1 Accordingly, the International Law Commission did not include in l
D 3.57. i
its draft articles any specific provision relating to automatic succession with ;I
j:
regard to the category of law-making treaties, which - if introduced -
1I
might have also covered the Genocide Convention. 1l
i
!
3.58. )
During the 1977-1978 Vienna Diplomatic Conference, similar I
'l
proposals contemplating automatic succession regarding law-malung il
Ibid p,p.43-44.
1 42Ibidp ..44. 1
l l
t
55 1
"- -- -
g;:
",*'
*Itreaties submitted by the USSR and the etherl land sere withdrawn,
when it became obvious that they would not receive sufficient support.44
(2) Practice of the Legal Copnselof the UnitedNations
3.59. This approach is also in line with the view taken by the Legal
Counsel, who in 1976 had already stated with regard to the Geneva
Convention relating to the Status of Refugees that:
"(.,.,lit is the practice ofthe Secretary-General, as depositary
of international agreements, to consider the would-be
successor State as a party to an agreement only after a
notification of succession specifically mentioning the
agreement succeeded to has been deposited with him. (...)
Failing succession, the normal means of participation
explicitly provided for by the 1951 Conventioriand the 1967
Protocol (namely accession) is still available to the State
~oncerned."~~
43See United Nations, Conference orzSuccession of States in respect of 08eaties,
Rec., Vol. 111, Documents of the Conference, docs. A/CONF.80IC.l/L.22 &
NCONF.80IC.1lL.35, pp. 112-113(Annex25).
44
M. Yasseen,"La Convention de Vienne sur lasuccession d'Etats en matikre de
traitis", AFDI, 19p.59, ap. 107(Annex26).
45
See UnitedNations Juridical Yeurbook, 1p. 219 (Annex 27).(3) Prerequisitesto establishinga rule onaz~tomatic szcccessionof
human rightstreatieswerenever met
3.60. As demonstrated above, until 1978no mle of automatic succession
with regard to human rights treaties was established. The Respondent
submits that in the relevant period between 1978 and 1992, i.e. in less than
fifteen years, no rule of customary international law providing for such
automatic succession was developed either.
3.61. In the well-known holding of this Court in the North Sea
Continental Shelf Case, the Court stated with regard to a similarly short
period of eleven years, i.e. the period between1958 and 1969:
"Although thepassage of only crshort period of time is not
necessarily, or ofitself;a bar to thformation of a new rule of
customaly international law () an indispensable
requirement wouldbe that within theperiod in question, short
though it might be, State practice, includingthat of States
whose interestsare speciallyaffected, should have beenboth
extensiveand virtually unij%rrn (...)."4(emphasis added)
3.62. This standard was clearly not attained, nor could it be in the present
case. The State practice which has developed is far from being "virtually
uniform", neither has it been extensive. Moreover, State practice in general,
46 North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal
Republicof Germany/Nrtherlunds), Judgement o20Feb. 1969,I.C.J. Report1969, p.
43,para.74.and State practice regarding theFRY in particular, havecontradicted the
proposition of automatic succession.
3.63. It has to be noted first, that in the case of treaty succession with
regard to human rights treaties, there was almost no State practice
whatsoever until the early 1990s, given that an extremely small number of
cases of State succession arose between1978 and 1990.
3.64. The existing State practice, and in particular the practice of
successor States (the"States whose interests are specially afected),does
not support the proposition of automatic succession. To the contrary,
relevant State practice offers backing to the position thathuman rights
treatiesarenot subject to automatic succession.
(4) RelevantState practiceaftertheadoptionof the 1978 Vienna
Conventionon State Succession in respect of Treatiessupportsthe
viewthathumanrightstreatiesare notsubject to automatic
succession
Practice with regard to thesuccessor States ofthe former USSR
3.65. The practice of successor States of the former USSR is not
"virtually uniform", and contradicts the theory of automatic succession.
Some States submitted specific notifications of succession, some others
have taken no position. Most importantly, a large number of successor
States which came into existence on the territory of thermer USSR have
acceded to the various human rights treaties such as:*
: - the International CovenantonCivil andPolitical ~i~hts",
E
'i
- the International Covenant on Economic, Social and Cultural
1
I ~i~hts~~,
- the Convention on the Elimination of All Forms of Discrimination
against omen", !
- the Convention against Torture and other Cruel, Inhuman or
DegradingTreatment or punishmentso,
- the Convention on the Rights of the childs1, l
47 The following countries have become ContractingParties by way of accession: I
I
Armenia (23 June 1993), Azerbaijan (13 Aug. 1992), Georgia (3 May 1994), 1
Kyrgyzstan (7 Oct. 1994), Moldova (26 Jan. 19931, Tajikistan (4 Jan. 1999), I
Turkmenistan(l May 1997) Uzbekistun(28Sep. 1995). I
I
48 The following countries have become Contracting Parties by way of accession:
Armenia (13 Sep. 1993), Azerbaijan (13 Aug. 1992), Georgia (3 May 1994),
Kyrgyzstan (7 Oct. 1994), Moldova (26 Jan. 1993), Tajikistan (4 Jan. 1999),
Turkntenistan(1May 1997),Uzbekistan(28Sep. 1995).
49 The following countries have become Contract~ngParties by way of accession:
Armenia (13 Sep. 1993), Azerbaijnn (10 July 1995), Georgia (26 Oct. 1994), I
\
Kazakhstan (26 Aug. 1998), Kyrgyzstan (10 Feb. 1997), Moldova (1 July 1994), 1'
Tajikistan(26 Oct. 1993),Turkmenistan(1May 1997),Uzbekistan(19July 1995). I1
50
The following countries have become Contracting Partiesby way of accessian:
Arntenia (13 Sep. 1993), Azerbaijan (16 Aug. 1996), Georgia (26 Oct. 1994),
Kazakhstan (26 August 1998), Kyrgyzstan (5 Sep. 1997), Moldova (28 Nov. 1995),
Tajikistan(l 1Jan. 1995),Turkmenistan(25June 1999),Uzbekistan (28 Sep. 1995).
51 The following countries have become Contracting Parties by way of accessiolz:
Armenia (23 June 1993), Azerbaijan (13 Aug. 1992), Kyrgyzstan (7 Oct. 1994),
Moldova (26 Jan. 1993), Tajikistan (26 Oct. 1993), Turki~zenistan(20 Sep. 1993),
Uzbekistan(29June 1994). - the Convention on the Elimination of All Forms of Racial
~iscrirnination~~,
- the Convention on the Non-applicability of Statutory Limitations to
War Crimes and Crimes against urna an it^^^,
- the International Convention on the Suppression and Punishment of
the Crime of arthe he id^^.
All of these treaties had previously been ratified by the USSR. This
confirms that the successor States of theUSSR have not become bound by
the various human rightstreaties by way of automatic succession.
The same position was taken with respect to the Genocide Convention.
(See infr3 a.71-3.73 focusing on specific State practice with regard to the
Genocide Convention.)
3.66. Practice of third States confirms the conclusion that there is no
automatic succession with regard to human rights treaties. Inter din, the
Respondent would like to draw to the attention of the honoured Court a
The following countries have become Contracting Parties by way of accession:
Armenia (23 June 1993), Arerbaijnn (16 Aug. 1996), Georgia (2 June 1999),
Kazakhstan (26 Aug.l998), Kyrgyzstan (5 Sep. 1997), Moldova (26 Jan. 1993),
Tajikistan(l l Jan. 1995),Turkmenistan(29 Sep. 1994),Uzbekistan(28Sep. 1995).
53 The following countries have become Contracting Parties by way of accession:
Armenia (23 June 1993), Azerbaijan (16 Aug. 1996), Georgia (31 Mar. 1995),
Moldova (26Jan. 1993).
54 The following countriehave become Contracting Partieby way ofaccession:
Armenia (23June 1993),Azerbaijan(16 Aug.1996),Kyrgyzstan (5Sep. 1997).decision of the Swiss Federal Court (TribunalFtdtral) which found that
Kazakhstanhad not succeeded to the International Covenant onCivil and
Political Rights (hereinafter: "ICCPR") due to a lack of a notification of
succession.The decision stated:
"(.. .)La Rkpublique du Kazaklzstnn est, juridiq~iement, l'un
des Etats successeurs de l'ancienne Union des Rkpubliques
socialistes sovidtiques (URSS) (..). En tnnf qu'Etat
successeur de Z'ancienneURSS,ZaRipublique du Kazakhstan
est libre d'exprimer ou non son consentement h Btrelie'epar
les trait& nuxquels I'Etat dont elle est isszle est partie.
L'expression de ce consentementpeut prendre Informe ditne
simple de'claration de succession. (...) Jusqu'ici, Ee
Kazakhstan n 'a pas exprimi, selon lesmodalitis de'crites,son
consentement a 2tre lie'par Le Pacte ONU II ou par la
Convention des Nations-Unies contre In torture et les autres
traitements oupeines inhumains, cruels ou dkgradants, du 10
de'cembre1984 (..)""(emphasis added).
Practice in the case of Germanreunfication
3.67. The practice of the Federal Republic of Germany (hereinafter:
"FRG) also indicates that thosehuman rights treaties to which only the
former German Democratic Republic (hereinafter:"GDR") had been a
contracting party did not continueto be in force on the temtory of the
former GDR after the said territoryhad become part of the FRG. This
---
55SeeBGE,vol. 12311,p.511, atpp.518-519.practice therefore contradicts the perception of the theory of acquired rights
as outlinedby the Applicant.
3.68. In particular it has to be noted that the had already ratified the
United Nations Convention against Torture in 1987~~whilst the FRG
ratified it only on 31 October 1990. Yet both the reply by the German
representative to the Committee against Torture made during its 48th
session57 and the first German report on the implementation of the
on vent io inp^y that the previous ratification by the GDR did not
continue to have effect on the territory othe former GDR. Accordingly,
the FRG had thereby taken the position that the principle of automatic
succession to human rights treaties did not apply.
3.69. The fact that theFRG did not and does not consider itself bound by
human rights treaties previously ratified by the former GDR is further
confirmed by the practice of the FRG with regard to the International
Convention on the Suppression and Punishment of the Crime ofApartheid,
which had been ratified by the former GDR in 1974.~~This Convention is
56 See Multilateral Treaties deposited witlz the Secretary-General, Part I (United
Nations Treaties), Chap.(Human Rights)- notes6 and 7 of the text appearingat:
http://untreaty.un.org/ENGLIS~ible/englishintemetbib1 l2.sp.achapterIV/treaty
visited on 12Aug. 2002 (Annex 28).
57Report oftlzcCommittee against Torture, I3fficial&ofthe General Assembly,
Forty-EighthSession, Suppl.No. 44,Doc. N48134 (199330..
58SeeUNDoc. CAT/C/12/Add. l,of17Mar. 1992,p. 1.
59 See Multiluteral Treaties deposited with the Secretary-General, Part I (United
Nations treaties), Chap.V (Human Rights) - n. 1 of the textappearing at:
http://untreaty.un.org/ENGLISHlbible/englishintemetbible/p~~chapterIV/~…
ty8.asp.
visitedon 12Aug. 2002 (Annex29). not mentioned in the official German listing of treaties in force, thus
confirming the position of the FRG that treaty obligations under the
International Convention on the Suppression and Punishment of the Crime
of Apartheid - which, like the Genocide Convention, establishes an
international crime (in this case the crime of apartheid) - had not been
inherited, not even with regard to the territory and the population of the
former GDR.
Prnctice of newly irzdependnztStatrs, inpartic~llarwith regard to the
Geneva Conventionrelating to the Status oJ'Refugees
3.70. Respondent reiterates that until l990 state practice regarding
automatic succession was scarce. More examples exist for the period after
1990, but their number is still limited - and they do not lend support to the
idea of automatic succession. It has to be noted that a very high number of
newly independent States - although they had been in a position to notify
l
their succession with regard to the Geneva Conveiltion relating to the Stat~ic: l
of Ref~igees,have instead - both before and after 1978- acceded to it.
The States concerned include Papua New ~uine$', the former French 1
I
dependent territories Burkina Faso, Cambodia, Chad ,Gabon, Madagascar I
and ~auritania~' as well as the former British dependent territories
l
l
l
60Australia had effective 22 January 1954 extended theGenocide Convention to Papua I
New Guinea; stilPapua New Guinea acceded to the Convention asof 17July 1986. l
61 France had effective 23 June 1954 extended the applicability of the Genocide
1I
Convention to its dependent territories; sBtirkinn Faso acceded on 18 June 1980, l
Cambodia on October 1992, Chad on 19 August 1981, Gabon on 27 April 1964,
Madagascaron 18December 1967; and Mauritania on 5 May 1987
! 63
1
IBahamas, Belize, Dominica, Kenya, Seychelles, Solomon Islands, United
Republic of Tanzania and ~imbabwe~~.
Specificpractice with regard to the Genocide Convention
3.71. With regard specifically to the Genocide Convention, there is also
ample State practice that contradicts the idea of automatic succession,
given that a great number of successor States have acceded to the
Convention. Other successor States either gave specific notifications of
succession or have undertaken no treaty action whatsoever. All this clearly
shows an absence of a uniform, or even prevailing practice. The existing
practice gives no support to, but rather contradicts, the proposition of
automatic succession.
3.72. Successor States which acceded to the Genocide Convention
include: ~wanda~~,~on~a", ~l~eria~~, B ar@ade~h~~,the majority of the
The United Kingdom had effective lMarch 1954 extended the applicabilityof the
Genocide Convention to its dependent temtories; still thernas acceded on 15
September 1993,Belize on 27 June 1990,Dominicaon 17February 1994,Kenya on 16
May 1966,the Seychelleson 23 April 1980,the Solomon Islandson 28 February 1995;
the UnitedRepublicof Tanzarziaon 12May 1964;andZiinbabweon 25 August 1981. ,
63By declaration dated 13 Mar. 1952 Belgium had extended the applicability of the
1
Genocide Conventionto the Trust Territory of Rwanda-Burundi; still Rwanda acceded
on 16Apr. 1975.
64 e
By declaration dated 2 June 1970 the United Kingdom of Great Britain and
Northern Ireland had extended the applicability of the Genocide Convention to the
KingdomofTonga; stillTongaaccededon 16Feb. 1972.
65The Genocide Convention had enteredinto force with regard to France on 14 Oct.
1950;Algeria accededto the Conventiono31 Oct. 1963.
66Pakistanhad ratified the GenocideConventiby 12Oct. 1957;Bangladeshacceded
on 5 Oct. 1998.
9successor States of the USSR, (i.e. Azerbaijan, Armenia, Georgia,
Kazakhstan,Kyrgyzstan, Moldova,~zbekistan)" and the Respondent itself.
3.73. It is of particular importance that - with the only exception of
Croatia and Bosnia and Herzegovina with regard to the accession of the
FRY - no other contracting party to the Genocide Convention has until
today ever objected to accessions by successor States to the Genocide
Convention. Moreover, the Applicant itself has acquiesced in such
practice, with regard to seven such accessionsby successor States of
the former USSR, which have taken place after Croatia itself had
become a contractingpartyto the GenocideColi~t?ntion.
l
31
(5) Depositary practice
I
3.74. Depositary practice similarly indicates that the principle of l
automatic succession does not apply to human rights treaties. 1
l
Pmctice of the Swiss Government as depositary ofthe Geneva I
Conventionsof 1949and itsAdditionalProtocols
3.75. The Swiss Government has consistently taken the position that, in
order for a successor State to be listed as a contracting party of either the
67 The following countries have become contracting parties by way of accession:
Azerbaijan (16 Aug. 1996), Armenia (23 June 1993), Georgia (11 Oct. 1993),
Kazakhstan (26 Aug. 1998), Kyrgyzstan (5 Sep. 1997), Moldova (26 Jan. 1993),
Uzbekistan(9Sep. 1999).
Tajikistanand Turkmenistanhave takenno treaty actionwhatsoever.
Belarus and Ukraine had become contracting parties of their own right in 1954.
Estonia,Lutviaand Lithuania do notconsider themselvesto be successor States the
USSR.four Geneva Conventions of 1949 or one of its Additional Protocols, the
said State must have submitted a specific notification referring to the
treaties to which the respective State wanted to succeed. The Swiss
Government considers that, in this respect, no distinction. can be made
between different kinds of multilateral treaties. This is confirmed by a
statement with regard to the practice of Switzerland from the (then) Legal
Adviser of the Swiss Government L. Caflisch:
"~lle~~n'opkre h cet &gad aucune distinction selon la nature ou
l'objet du traitk. En matikre de succession dlEtats aux conventions
de Gtnkve, La pratique du dkpositaire suisse est identiquei celle
qu'il observe pour d'autres trait& ouverts h l'ensemble de la
communaut6 internationale, telle, par exemple, la Convention sur
le commerce international des espkces de faune et de flore
sauvages menackes d'extinction (cITEs)."~~
Practice of the French Government as depositary of the 1925
Geneva Protocol for the Prohibition of the Use in War of
Asphyxiating,Poisonousor Other Gases
3.76. Quite similarly, the French Government, acting in its function as
depositary of the 1925 Geneva Protocol for the Prohibition of the Use in
War of Asphyxiating, Poisonous or Other Gases, has considered a
68This refers toSwitzerland (footnoteadded).
69L. Caflisch, "La pratique suisse en mdedroit international public1996",SZIER
1997,p.637, at p684 (Annex30).1
r
S
1 successor State to be bound by the said treaty only if it had previously
submitted a specific notification of succession with regard to that treaty.70
Practice ofthe UnitedNations Secretary-Generalas depositary
3.77. The same is true for the United Nations Secretary-General. Indeed,
it is the considered view of the Secretary-General that even if a successor l
State had either entered into a so-called devolution agreement or submitted
a general notification of succession, it could not be regarded as a l
contracting party by virtue of s~ccession.~'
l
l
(6) State practice with regard to the former SFRY contradicts the 1
proposition of automatic succession l l
'
3.78. State practice of the States whose interests are specially affected -
i.e. State practice in the case of the dissolution of the former SFRY -
clearly contradicts the proposition of automatic succession. The Applicant
itself (together with other successor States of the former Yugoslavia) has 1
consistently opposed the suggestion that the FRY could have become a
1
contracting party to human rights treaties by way of automatic succession.
3.79. Croatia is relying on one scholarly article in support of the concept
of automatic succession in the realm of human rights treaties. This is the
'OSee CAHDI"La pratique dela Francedkpositaire dtraitis rnultilaterauxrnatikre
de successiond'Etats"CAHDI (94) 8, p.2 (Annex31).
71SeeAnnex 16.
67
larticle by M. Kamminga, "State Succession in Respect of Human Rights
Treaties". In this very article Mr. Kamminga reveals that Croatia has
consistently opposed the proposition that the FRY became a member of
humanrights treaties by automatic succession.In Karnminga7swords:
"Croatia, Bosnia-Herzegovina and Slovenia have argued that
the FRY cannot be regarded as a party to treaties such as the
International Covenant on Civil and Political Rights, the
International Conventionon the Elimination of all Forms of
Racial Discrimination and the Convention on the Elimination
of Discrimination against Women. They base this conclusion
on the argument that, on the one hand, the FRY cannot
automatically continue the legal personality of the SFRY and,
on the other hand, the FRY refi~sedto jbrrnally succeed to
these treaties. Because this approach has prevailed at
meetings of State parties of these treaties the FRY has been
barredfrom attending
3.80. Indeed, Croatia (togetherwith Bosnia-Herzegovina and Slovenia)
repeatedly and consistently argued that theFRY could not be regarded as a
party to treaties because theFRYcould not automatically continue thelegal
personality of the SFRY, and because the FRY did not submit a formal
notification of succession. This logic clearly excludes automatic
succession.
72M. T. Kamminga,"State Succession inRespect of Human Rights Treaties7 EJlL
(1996),p.469, at 477 (Annex 32). 3.81. Already in 1993, Croatia takes a clear-cut general position. In a
letter dated 23 August 1993from the Croatian Minister of Foreign Affairs
addressed to the President of the Security Council, Croatia argues thatthe
FRY "has not been automatically accepted"to international treaties, since
"the depositaries consider it as just one of the successor States", and
concludes:
"As a result of the dissolutionoftheformer State, the country
known as the Federal Republic of Yugoslavia (Serbia and
Montenegro) will have to deposit an instr~:nentof succession
to all the international treaties it wishes to continue tobe a
party to.v73
3.82. The same argument was raised repeatedly, and in particular in
connection with human rights treaties. To give an illustrationof the
argument, in itsAide MGmoireof 14January 1994,the Permanent Mission
of Croatiato the United Nations stressed:
"Since the so-called 'FederalRepublic of Yugoslavia' (Serbia
and Montenegro) has not notifiedthe Secretary General of
its succession to the International Convention on the
Elimination of all Forms of Racial Discrimination 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 thefifteenth meeting of the State Parties to the
l
73SeeUNDoc. S126349(1993) (Annex 33).
/
t International Convention on the Eliminationof All Forms of
Racial ~iscrimination."7"emphasis added)
3.83. As a result of such initiatives and actions,FRYe was barred from
attending meetings of States parties to treaties. This pattern can be
demonstrated through many examples.
3.84. For example, in Croatia7sAide-Mkmoire sent tobe circulated at the
13'~Meeting of the State Parties to tICCPR, Croatia stressed that:
"Since the Federal Republic of Yugoslavia (Serbia and
Montenegro) has not notified the Secretary-Generalof its
succession to the Znternational Covenant on Civil and
Political Rightsa.rone of the successor States of the former
Socialist Federal Republic of Yugoslavia, it cannot be
consideredto be a party to the said Covenant.Therefore, as
a non-party, the said delegation has no right toparticipate in
the thirteenth meeting of States parties to the International
Covenanton Civil and Political ~i~hts."~'(emphasis added)
3.85. During the 18" Meeting of States parties to the International I
l
Covenant on Civil and Political Rights on 16 March 1994, Mr. ~akirbej 1
proposed on behalf of Bosnia-Herzegovina
h
"[tlhat the State parties should decide that the Federal
Republic of Yugoslavia (Serbiu and Montenegro) sho~ildnot
74
SeeUN Doc. CERDlSP151 (1994)p.3 (Annex34).
SeeUNDoc. CCPRlSPl40 (1994),p. (Annex 35). participate in the work of the Meeting of the States parties to
the ~uvenant.'"~
Mr.MateSid,the representative of Croatia, addedthat
"lf the Federal Republic of Y~~goslavin (Serbia and
Montenegro) wished to be consideredaparty to the Covenant,
it must notify the Secretav-General, in his capnciv as i
depositary of international treaties, of its s~lccessionas one of
the successor States of theformer Socialist FederalRepublic l
of Yugoslavia. Currently it was not a party therrto, and thus
had no right toparticipate inthe~eetin~."'~ !
l
Following these arguments, Bosnia-Herzegovina's proposalto exclude the l
l
FRY from the Meeting was adopted by 51 votes for, 1 against and 20 I
I
abstentions .78 l
l
3.86. This sequence of arguments and events was repeated on a number 1
1
of occasions. During the 19'" Meeting of the States Parties to the
International Covenant on Civil and Political Rights,Mr. MiSiC, the
representativeofBosnia-Herzegovina proposedthat
"the Stute Parties should decide that the Federal Republic of
Y~igoslavia(Serbia and Montenegro) should notparticipate in
76
See UNDoc. CCPR/SP/SR. 18 (1994),p.3,pm. 2(Annex36).
77Ibidem, p.6,para.21.
78
Ibidem, p. 7para. 23.
71 the work of the meeting of' the States Parties to the
ovena ant^,^^,
This proposal was endorsed and further explained by the representative of
Croatia (Mr. MateSic),who stated that theFRY
"[hlad not notvied the Secretary-General, in his capacity as
the clepositaryof international treaties, of its accession to the
Covenant. That State therefore, should not be allowed to
participate in themeetings ofState
The motion of Bosnia-Herzegovina was adopted, and the FRY was barred
from participating in theeetin~.~'
3.87. In all of these cases, the proposition of automatic succession would
have yielded a different conclusion (namely that theFRY should, indeed,
have attended meetings of State Parties). Yet Croatia has, along with other
member States of human rights treaties, repeatedly asserted the opposite
view, stating thatthe FRY could not have acquired treaty membership in
human rights treaties (to which the SFRY was a member) without formal
notification of accession or succession - and this is the view which
prevailed.
3.88. Finally, the Respondent draws attention of the Court to a letter
dated 30 January 1995 from the Permanent Representative of Croatia to the
P-
79seeUN Doc. CCPR/SP/SR.19 (1994),at p.3 (Annex 37).
Ibidem,atp.4.
Ibidem,p.8.UN~',a letter which representasummary of the Applicant's position taken
regarding the issue of the possible membership of theRY tohuman rights
treaties. This letter was addressed to the Secretary-General in his capacity
as depositaryof multilateral treaties, commentinon a document regarding
the "status of succession, accession or ratification of human rights treaties
by States successors to the former Yugoslavia, the former Soviet Union,
and theformer Czechoslovakia". In this letter Croatia "strongly objects" to
the listing of "Yugoslavia" as aparty to human rights treaties, since this
designation might be interpreted as a reference to the FRY. The letter
reiterates that[iln accordance with the relevantresolutions of the Security
Council (...Iand the General Assembly (...)and general rules of
international law on the succession of States..."the FRY could not be
considered automatic successor of the former SFRY with respect to
multilateral treaties. The Croatian letter recalls that
"[tlhe representativesof theFederal Republic of Yugoslavia
(Serbia and Montenegro) have been prevented from
participating in international meetings nnd conferences of
State parties to multilateral treaties in respect of which the
Secretary-General acts as depositary (i.e. Convention on
Prohibitions and restrictions of the Use of Certain
Conventional Weapons which May be Deemed to be
Excessively Injurious or to Have Indiscriminate Effects,
Convention on the Rights oj' the Child, International
Convention on Elimination of All Forms of Racial
X2
SeeUNDoc. A/50/75 - E/1995/10 (Anne18). Discrimination, I~iter~zntionClovenant on Civil and Political
rights, etc.)as the Federal Republic of Y~tgoslavin(Serbia
and Montenegro) had not acted according to international
rules of successionof States. Namely,the Federal Republic
of Yugoslavia (Serbia and Montenegro) had tried to
participate in international forumsas a State party withoz~t
having notifieditssuccession,. ."(emphasis added)
Croatia stresseslateronin the same letter:
"Should the Federal Republic of Yugoslavia (Serbia and
Montenegro) express its intentionto be considered a party,
by virtue of succession, to the multilateral treaties of the
predecessor State with efSectas of 27April 1992, the date on
whichthg Federal Republic of Yugoslavia (Serbia and
Montenegro), as a new State, assumed responsibility for its
international relations,theRepublic of Croatia would take
note of that notvication of'succession(emphasis added)
3.89. It is beyond doubt that Croati- along with other successor State-
consistently and unequivocally denied that theFRY could have become a
contracting party to human rights treaties, otherwise but by a specific
notification. It is also clear that the notification expectedoatia was a
notification of succession. Suchnotification was not given by thFRY.
3.90. The former Government of the FRY did argue that the FRY
continued to be a member of the UN and a contractingparty of treaties to
which the SFRY had been a party (including human rights treaties); but it did so consistently and exclusively on the basis of the assumption of
continuing the personality of theFRY, which assumption proved to be an
erroneous one. The FRY did not claim or purport to be a member of treaties
by way of succession.
3.91. At the same time, Croatia's declarations were given exactly in the
context of succession. Croatia clearly and consistently denied that the
I I
could have become a member State of treaties by way of automatic l
l
succession, emphasizing and repeating that the FRY could not be I
considered to be a party to human rights trczfies without a formal
notificationof succession. This position was not a position taken on the
basis of some flawed assumption. The logic of the denial of automatic l
succession was not based on a perception of the dissolution of the SFRY Il
1I
which would have proved to be a misperception. There was no l
1
misunderstanding of any kind. Having in mind the interpretation of the i
dissolutionof the SFRY that eventually proved to be the correct one, i
1
Croatia emphatically denied the possibility of automatic succession to t
human rights treaties. Croatia, therefore, cannot now, in good faith, assert i
the opposite.
(e) Even if the automaticsuccessionof rules of human rights treaties
werea generally acceptedprinciple, thiscould not includethe rule
ofArticle IX of the GenocideConvention
3.92. The Respondent will now demonstrate that, even if it did indeed
become bound, quid non, by the Genocide Convention by virtue of
75automatic succession, such succession could only extend to the substantive
guarantees of the Convention, and cannot include Article IX of the
Convention. This conclusion is inevitable because:
- firstly, instruments providing for the peaceful settlement of disputes
are not subject to automatic succession; and
- secondly, treaty clauses providing for the jurisdiction of
international supervisory mechanisms can be separated from the
substantive provisions of the treaty.
Instrzlmerztsprovidingfor thepeacef~ilsettlenzentof disputes are not
subject toa~itomaticsuccession
3.93. In 1947,the Legal Counsel of the United Nations stated that:
"(...it has been clear that no succession occurs in regard to
rights and duties of the old State which arise from. political
treaties such as treaties(...ofpacific ~rttlernent."~~
3.94. As already mentioned, this approach was also adopted by the
International Law Commission during its work on the codification of the
law on State succession with regard to treaties. It did not create a specific
category of so-called law-making treaties which would have been made
subject to the principle of automatic succession specifically since
83Quoted by 0. Schachter, "The Development of InternationalLaw through the Legal
:
Opinions of theUnited Nations Secretariat", BYIL,194p.91, atp.106 (Annex 38). "such treaties may containp~trelycontrnct~talprovisions such
as,Jbr example, a provision for the compulsoryadjudication
of disputes. (emphasis added)
3.95. This view was also further confirmed by a decision of the Pakistani
Supreme Court which stated that:
"(...)as U general rule a new State soformed will succeed to
rights and obligations arising only under treatiesspecifically
relating to its territories (...) bzit not to rights and
obligations under treaties affecting the State (...) e.g.
treaties of (..) arbitration (...)"85(emphasis added)
3.96. Such position that contractual obligations regarding the settlement
of disputes, which are essentially political obligations, are not transmissible
under international law is also confirmed by the view of eminent authors.
According to D. P. OYConnell,one of the leading authorities in the field,
the question as to whether treaty obligations devolve depends on their
respective subject-matter. O'Connelltakes note of the fact that treaties are
ranging in subject-matter from renunciation of war and peaceful settlement
" SeeAnnex 24,p. 44.
85Supreme Court of Palustan, Yangtze(Lo~zdon) Ltd.v.Barlas Brothers (Karuchi) and
CO.J,udgementof 6 June 1961 (seeMaterialson StateSuccession,United Nations Legal
Series Doc. ST/LEG/SER.B/14, p. 137 et seq.; also quoted in Statement of the
Governnzeiztof India in CorztinuarzofitsStatement of28 May 1973 and in Answer to
Pukistan'sLetterof25 May 1973,I.C.J. Pleadings, Triulof Pakistani Prisoners of War
(PcrkistaV.India),1973, p. 139, at pp147-148).of international disputes, through copyright and counterfeiting, to weights
and measures, and points out:
"Clearly not all these treaties are transmissible: no State has
acknowledged its succession to the General Act for the
Pacific Settlement of International ~is~rrtes."~~
3.97. Thus, both practice and considered scholarly opinion clearly show
that treaty clauses providing for peaceful settlement of disputes are not
subject to automatic succession. The Respondent therefore submits that
Article IX of the Genocide Convention is not subject to the principle of
automatic succession and that the FRY is accordingly not bound by it, even
if theCoua finds, qaid non, that the substantive provisions of the Genocide
Convention are subject to the principle of automatic treaty succession.
The issue of succession with regardto Article X of the Genocide
Convention can be separatedfrom an assumed automutic succession'
with regard to the substantiveprovisiorzsof the Convention
3.98. D. P. O'Connell states that the transmissible portions of a treaty
may be severed from the intransrnissible ones, if the two portions
(a) dealwith separate subject-matters;
(b) do not depend upon each other; and
D. P.O'Connell,State S~~ccessiinMunicipalLaw and InternationLaw, Vol. 11,
Cambridge, 1967,p. 213 (footnote omitted) (Annex 39). (C)are not inseparably connected in the scheme of treaty
87
He concludes by giving a convincing example:
"An arbitration clause in a dispositive treaty cozrld be regarded as
ancillary and evera able."^^ I
3.99. All three of the conditions described by O'Connellare fulfilled with
regard to ArticleIX of the Genocide Convention.
3.100. ArticlesI through V111 deal with the definition of genocide, the
substantive obligations of the parties to punish thecrime of genocide and
the co-operation of the Contracting Parties. In clear contrast thereto, Article
IX deals neither with individual rights nor with the co-operation of States
parties. Instead it grants the International Court of Justice jurisdiction for
resolving disputes between the Contracting Parties that accepted such
jurisdiction, addressing thereby a completely different area.
3.101. The different provisions of the Genocide Convention neither
depend on each other nor are they inseparably connected in the scheme of
treaty performance. Indeed the substantive provisions of the Genocide
Convention retain their normative value and may be enforced by regular
mechanisms provided by international law.
ibidp.,301,
id.3.102. Thus, even if thisCourt should find - contrary to the position of the
Respondent - that the FRY became a Contracting Party to the Genocide
Convention by virtue of automatic succession, such succession would only
cover the substantive obligations contained in the Convention but not its
Article IX.
3.103. The principle of separation, and the need for separating substantive
principles from jurisdictional provisions, were clearly confirmed in the
Order ofthe Court of 10July 2002 in theCase concerning Armed Activities
on the Territory oj.the Congo - New Application: 2002 (Democratic
Republic of the Congo v. ~wnnda).~~ In paragraph 71 of this Order -
referring tounderlying principles ratherthan to specific treaty provisions -
the Court stated that the principles underlyingthe Genocide Convention
'"re principles recognized by civilized nations as binding on
States, even without any corzventionczolbligation."
The Court also pointed out - citing it195 1Advisory Opinion -that
"the rights and obligations enshrined by the Convention are
rights and obligationserga ommes."
But the Court added right away, and in no uncertain tern that jurisdiction
is a different thing. The Court also stressed in the sarne paragraph 71 of the
Order that:
S9
Court Orderof1 0 J~i2002, at:
http://www.icj-.org/icww w/idocket/icrw/icrworder/icrw~ liodf.200207 "[ilthas jurisdiction in respect of Srntesonly to the extent that
they have consented thereto; and whereas, when a
cornpromissory clause in a treaty provides for the Court's
jurisdiction, that jurisdiction exists only in respect of the
parties to the treaty who are bound by that clause and within
the limitsset in that cln~se;"~~
!
The Court further stressed in paragraph 72, that the Genocide Convention l
does not prohibit reservations, and that a reservation to ArticleIX l
l
"does not bear on the substance of the law, but only on the
Court's jurisdiction; whereas therefore it does not appear
contrary to the object and purposeof thel~onvention."91
V) The alleged jurisdiction based on Article IX has no support in
l
theories on acquiredrightsofthepo.'lationof the successorState
l
3.104. Endeavouring to present theories which might justify its position, i
l
the Applicant also refers to the concept of acquired rights (Memorial: 6.07). i
l
The authority the Applicant relies on, is an article by M. Kamminga. l
Explaining his argument that human rights treaties may not be affected by
/
State succession, M. Kamminga, the author quoted by the Applicant,
endeavours to find support in
il
90Ibid pp,.25-26,para. 71.
Ibid., 26, para. 72. "[~lhe doctrine of acqtlired rights, as applied by the
Permanent Cocirt oj' International Justice in the German
Settlers case,"92
3.105. The Respondent submits that the German Settlers case offers no
support to the position of the Applicant for several reasons. First of all, the
German Settlers case does not contemplate at all succession of rights
acquired under treaties. Instead, the issue was whether private lights of
individuals acquired by contracts in which the other side was a State
(Germany) would continue to exist after change of sovereignty. The main
issue was formulated very clearly:
"The principal question with which the Coctrt is now
confronted is the jbllowing: The sovereignty and the
ownership oJ'Stateproperly having changed, is the settler who
had concl~~cled a Rentengutsvertrag with the Prussian State
entitled to claim frorn the Polish Government as the new
owner the extlc~ttionof the contract, including theco~npletion
ofthe tmnsfer by Auflassung .-)7793
3.106. The impact of the 25 June 1919 Versailles Peace Treaty and ofthe
"Minority Treaty" (signed on the same day) was also considered, but no
one suggested that the rights at issue would have been acquired under these
92Kamminga, op.cit.,p. 472(Annex32).
93Advisory opinion given bthe P.C.I.J. on 10 Se1923 on certain questions relating
to settlersof German origin inthe territoryceded by GermaPoland,P.C.I.J. Ser. B
No. 6, p. 35.treaties. The P.C.I.J. took note of the circumstance that the contracts
(Rentengutsvertrage and Pachtvertriige) concluded before the Armistice of
11 November 1918 allowing possession of Gerrnan settlers brought about
"Germanisation" of certain territories, and also noted that "[die-
Germanization wo~lldresult from requiring the settlers in question to
!
abandon their homes". The P.C.I.J. added:
"But, although such a measure may be comprehensible, it is
precisely what the Minorities Treaty was intended to
prevent."94
The P.C.I.J. further stressed:
"But the political motive originally connected with the I
jl
Rentengutsvertage does not in any way deprive them of their i
1'
character as contracts under civillaw, (...)"95 l
3.107. As Kamminga recognises himself, the P.C.I.J. only dealt with a
specific category of rights, different from those which are at issue in the
present case. The German Settlers case dealt with privaterights (property
rights) acquired under the respective domestic law of the predecessor
State. As stated in the Opinion:
"Private rights acquired under existinglaw do not cease on a
change of sovereignty. No one denies that the German Civil
Law, both substantive and adjective, has continued without
94ibidp .,.25-26.
95Ibid p.,39. interr~tptionto operate in the territory in question. It can
hardly be maintained that, althoclghtlze Zavv survives, private
rights acquired under it hnvrperished,(.. .)"96
3.108. It is clear that the P.C.I.J. did not identify a general rule of
succession of any acquired rights - and it did not deal at all with treaty
succession, or succession of rights acquired under treaties. The context of
the P.C.I.J. advisory opinion is such that it can have no bearing on human
rights treaties. Explaining what "private rights" mean in this context,
O'Connell makes it clear that:
"Acquired rights, therefore, as understood in international
law, are any rights, corporealor incorporeal,properly vested
ina natztml orjuristic person, andof an assessable monetary
This concept of acquired rights has no relevance in the present case.
Applicant's argumentjbcusing on continued h~lmnnrights of the
population of the successor State cannots~lpportthe proposition of
autoinnticsucce,s,~ion incl~tdingArticle IX
3.109. Searching for a foothold forjurisdiction, the Applicant advances the
following proposition in line with the concept of acquired rights:
" Ibidp ..36.
97
D. P.O'Connell, op.cif., Vol.(Internal Relat~ons),196p.245 (Annex 40). "Moreover, it is generally accepted that thepopulation of a
territory entitleio enjoy the protection of certain h~lmnn
rightsflowing from thebasic hurnnrzrights rrentiemay not be
clepnverlofsuch rightsby the merefact of the succession ofa
state in respect ofthat territor(Memorial: 6.07)
The Respondent has already demonstrated above that the proposition of
automatic succession - and that of automatic succession with regard to
ArticleIX in particula- are not accepted in international laThe concept l
l
of continuing human rights of the population of a successor State does not l
lend any additional support to the assertion of jurisdiction on the grounds
of ArticleX of the Genocide Convention. l/
;j,
/l
1 . 3.110. The obvious aim of Applicant's argument is to show that theFRY i
remained bound by the Genocide Convention, and by Article IX in i
I i
particular, even after it became a separate state, distinct from its
predecessor, the SFRY. However, the argument - in addition to being
totally contrary to the position repeatedly advanced by Croatia regarding
1 11
the issueofthe membership of the FRY in human rights treatiesg- has no 1
i
I foothold in established rules of international law; the Applicant did not l
even attempt to demonstrate <general acceptance". Moreover, the
argument, even if one were to adopt it, simply does not yield the intended
98See aboveparas3.78-3.91.
853.1 11. The line of reasoning suggested by the Applicant is shifting the
focus of attention from the equities of States to the equities of the
population. Such a focus tends to find a way around established
considerations, such as the principle that treaty obligations in international
law have to be anchored in the consent of States. By-passing this principle
is a most consequential proposition. The argument is based on respectable
concerns, but it remains to be tested - and has not (or at least, not yet)
become a rule of international law. Moreover, the Respondent will
demonstrate that even if international law were to adopt the proposition that
human rights enjoyed by the population of a certain territory continue toe
available to that population after State successionthis could not serve as
a footholdfor thejurisdictionof theCourtin this case.
3.112. Even if one were to accept the focus on population, and the
proposition of continued protection of human rights flowing from treaties
and acquired by the population of a certain territory, this only makes sense
if one contemplates the substantive rights accorded to the population by
the relevant provisions of human rights treaties. Human rights of the
population have nothing to do with the technical structure of treaties,
including techniques of notification, official languages (none of which may
be the language of the given population), or modalities of dispute
settlement between States. In other words, the logical inference from the
suggested approach (even ifit were an accepted one) cannot be the en bloc
succession of treaties, but rather the continuation of substantive human
rights. ArticleIX does not formulate a substantive human right, rather it
establishes a specific jurisdictional avenue, which is added to otherjurisdictional options provided by national and international law (the
number of which has been increasing in recent years).
3.113. It is important to add that Article IX never became a generally ,
l
accepted principle. Itdoes not formulate a basic human right, rather it 1
l
formulates one of the options regarding the peaceful settlement of disputes
among States. Even among States that have ratified the Genocide l
l
Convention, adherence to this jurisdictional avenue remains simply one of
1
the possible options (rather than becoming a generally accepted rule). This
1
is confirmed by the fact that a significant numbe; nf Contacting Parties - I
including the Respondent - entered reservations with regard to Article IX
to the Genocide Convention, and thus have not become bound by the said
provision.g9
3.114. Moreover, if one precisely follows the focus and the argument
suggested by the Applicant in the case of the succession of the FRY, one
comes to the following deduction. While the territory of the FRY (Serbia
and Montenegro) belonged to the SFRY, its population enjoyed "the
protection of certain human rights flowing from human rights treaties"
ratified by the SFRY (including the protection against genocide). The
V9 A reservation to Article IX was made by Albania, Algeria, Argentina, Bahrain,
Bangladesh, Belarus, Bulgaria, China, Czechoslovakia, Hungary, India,Malaysia,
Morocco, Mongolja, Philippines, Poland, Romania, Rwanda, Russia,Singapore, Spain,
Ukraine,UnitedStatesof America, Venezuela,VietNam, Yemen,and the FRY.
At this date, a reservation to Articismaintained by Algeria, Argentina, Bahrain,
Bangladesh, China, India, Malaysia, Morocco, Philippines,Rwanda, Singapore, Spain,
UnitedStatesof America, Venezuela,Viet Nam, Yemen,nd the FRY(Annex7).argument goes that "by the Inere fact of succession of a state in respect of
that territory" (i.e. the territory that upon succession became the territory of
the FRY) the population of the successor State should not be deprived from
protection of human rights acquired while that territory belonged to the
SFRY. This clearly means that the population of the FRY should not be
deprived of such protection.
3.115. This is exactly the understanding explainedby Croatia itself and by
other successor States of the formerSFRY.In a Note Verbale presented on
20 April 1998 to the UN Commission on Human Rights on behalf of the
Permanent Missions of Bosnia-Herzegovina, the Republic of Croatia, the
Republic of Macedonia, and the Republic of Slovenia, it was stressed:
"Consequently FRY should notifL its succession to all relevant
international instr~tmentsincludiuzghuman rights instruments
as was done by other successor stcztes.
All succeeding states ure nevertheless obliged to protect and
respect human rights of their citizens at the level that has
been achieved at the time of dissolution of the jbnner state,
having in mind principles of international customary lawand
universality of human rights.,,l0(emphasis added)
This confirms again Croatia's position that a notification of succession is
needed in order to succeed treaty membership. Furthermore, it is stated in
no uncertain terms what is meant by continuation of "acquired rights" (i.e.
looNote Verbale date20Apr. 1998,UN Doc. E/CN.4/1998/171 (1998) (Anne41).human rights achieved at the time of dissolution of the former State). It is
suggested that what succeeding Statesare "nevertheless" (in the absence of
treaty membership) obliged to protect and respect, are human rights of l
their citizens (in the case of the FRY, the citizens of the FRY) in
accordance with general human rights standards.
lI
I
3.116. Even if one were to accept this lineof reasoning, this has simply
nothing to do with Article IX. Article IX provides no rights to the
population of the successor State (the FRY). Rather, it provides a l
specific procedural avenue for other States in disputes against the FRY
l
regarding interpretation, application or fulfilment of the Convention. The 1
claim submitted by the Applicant also seeks reparations to be paidby the
population of the successor State. Being a respondent confronted with such
a claim is hardly an entitlement toenjoy the protection ofcertain human
rightsflowing from human rights treaties."
3.117. The line of reasoning offered by the Applicant simply does not
yield the intended conclusion. The fact is that the procedural avenue
formulated in Article IX may only be established by anexpress and special
undertaking of successor States; it is clearly not a human right accorded to
the populationof the successor State (thFRY).
It followsthat:
a) The FRY became amemberState of the UN on 1 November
2000. Before it became a Member ofthe UN the FRY could
not have become a Contracting Party to the Genocide Convention without a specific invitation extended by the
General Assembly or by the Secretary-General, Such an
invitation was never extended to the FRY. After it became a
member State of the UN, on 10June 2001 the FRY became a
Contracting Party to the Genocide Convention by accession,
without becoming bound by Article IX, since the Notification
of Accession contained a clear reservation to ArtiIX.
b) The FRY never became a Contracting Party to the Genocide
Convention by virtue of Article 34 of the 1978 Vienna
Convention on State Succession in respect of Treaties,
because this Convention applies solely to successions which
occurred after the entry into force of the Convention. The
FRY succeeded the SFRY in 1992, while the Convention
came into force in 1996. Furthermore, there is clearly no
basis for retroactive application of the 1978 Vienna
Convention regarding the FRY.
c) The FRY never became a Contracting Party to the Genocide
Convention as a result of the Declaration "of the
representatives of the people of the Republic of Serbia and
the Republic of Montenegro", or of the Note of the
"Permanent Mission of the Socialist Federal Republic of
Yugoslavia (Federal Republic of Yugoslavia)". The
Declaration and the Note of 27 April 1992 were policy
statements rather than treaty actions. Furthermore, they cannot have consequences regarding treaties, because they
did not contain any reference to any named treaty, and
because they did not emanate from competent authorities.
Even if these policy statements were pertinent, they did not
claim or imply succession, their substance and content were
merely an expression of the aspiration of the representatives
of Serbia and Montenegro to automatically continue the
international legal personality of the SFRY. This claim was
strongly and consistently opposed by Croatia and by other
successor States. The claim to continuity proposed by the
Declaration and by the Note was eventually rejected and
failed to produce effects.
d) The FRY did not become a Contracting Party to the
Genocide Convention on grounds of'automatic succession.
Automatic succession with regard to human rights treaties is
not a generally accepted rule; it is rather a contested
proposition. State practice and depositary practice have not
endorsed this proposition. State practice regarding the
succession of the former SFRY, including State practice of
Croatia - and State practice with respect to human rights
treaties in particular - has clearly rejected the proposition of
automatic succession.
e) Furthermore, even if automatic succession of human rights
treaties were a generally accepted rule,uid non, and even if human rights pertaining to the population of a territory were
to continue automatically after State succession, this would
not and could not encompass Article IX of the Genocide
Convention. Instruments providing for peaceful settlement of
disputes are not subject to automatic succession.Article IX is
by its nature intransmissible, and may be severed from
transmissible portions of the treaty. Moreover, the norm
contained in Article IX is not generally accepted, not even
among Contracting Parties to the Convention. Furthermore,
Article IX does not formulate substantive human rights of
the population ofthe FRY; it would instead provide a specific
procedural avenue to other States in disputes against the
FRY,
f') The FRY became a Member of the UN on 1 November 2000.
The FRY joined the Genocide Convention as a new State by
a notification of accession dated 12 March 2001, This
notification of accession includes an unequivocal reservation
to Article IX. The FRY never became bound by Article IX of
the Genocide Convention. Accordingly, the jurisdiction ofthe
Court in this case cannot be based on Article IX of the
Genocide Convention. Since no other basis of jurisdiction
was alleged - or could have been alleged - the Respondent
maintains that the Court has nojurisdiction in this case.PartIVstntu nascendi from mid-l99 1" (Memorial; 1.22). This has, however, not
been demonstrated. Furthermore, the way it is described by authorities
referred to in the Memorial, the concept of states in statu nascendi is
evidently not appropriateforthis case.
4.3. The Applicant seeks support for its proposition in Articl10 of the
ILC Draft Articles on State Responsibility, and in a brief passage from
Professor Brownlie's Principles of P~iblicInterncltionalLCLW (Memorial:
8.42).
4.4. Irrespective of the question as to whether the a~lthoritiesreferred to
above could, in principle, provide sufficient guidance to settle a dispute, in
the actual case these authorities not lend supportto the proposition that
the FRY may be liable for acts or omissions which took place before the
FRY was formed.
4.5. The Memorial of Croatia relies on Draf t rticleson which the ILC
was working. Since the Memorial was submitted, the Draft Articles have
been redrafted. In the July 2001 ver~ion'~', Article 10 on which the
Applicant relies reads as follows:
"Conduct of an insurrectionalor other movement
1. The cond~lctof an insurrectional or other movement
which becomes the new government of a State shall be
considered an act of that State under internationallaw.
2. The conduct of a movement, ins~trrectionalor other,
which s~lcceeds in establishing a new State in part of the
l''See UNDoc. A/CN.4/L.602/rev. l. ten-it09 of n pre-existing State or in (1 territory under its
arlministrntion shall be considered an act of the new State
~lnderirzter~zntionnllaw.
i
4.6. The rules of the present ILC Draft are not generally recognised l
norms of customary international law (certainly not at this moment, and it l
l
is uncertain whether they would become such norms in the future ).But I
even if they were, they could not serve as a basis for the proposition
advanced by the Applicant. The context of the ILC Draft is completely l
different from the pattern of events in the former Yugoslavia.
t
4.7. The Memorial relies on Draft Article 10(2), which deals with
movements which succeeded in establishing a new State. It refers to"the
condrlct of any movement which succeeds in establishing a new state on
certain territory" (Memorial: 8.33). These are not the exact words of the
present Draft Article 10(2), but the difference is not critical. Citing Draft
Article 10, the Applicant argues that a conduct involving a breach of an
international obligation may be attributable to a State if this was a conduct
of a movement which succeeded in establishing a new State, even if the
conduct took place before the definitive establishment of the new State
(Memorial: 8.33).
4.8. This argument is misplaced in the Yugoslav context. According to
the commentary which accompanies Draft Article 10 in the 2001 ILC
Report, paragraph 2 of Article10 addresses the scenario
"(w]hare the strtlct~tres of the insurrectional or other
revolutionary movement become those of a new State, constituted by secession or decolonization in part of the
territory which was previously subject tu the sovereignty or
administration ofthepredecessor ~tute."'~' (emphasis added)
The context of the ILC draft article is completely different from the pattern
of events that led to the creation of the FRY. The conceptual framework
and the notions on which this framework was built ("insurrectional or other
revolutionary movement", "secession or decolonization") are simply not
corresponding. Serbia and Montenegro were no colonies, and did not want
to secede. Moreover, following the position suggested by the Applicant, the
question arises as to whichinsurrectional orother movement one should
consider, and on what territory one should focus. There was no movement
during the Yugoslav crisis (insurrectional or similar), which endeavoured to
establish a new state on theterritoryof theFRY.
4.9. The passage quoted by the Applicant from Professor Brownlie, only
confirms that the in staru rzascendi concept is not matching in this case.
Applicant quotes Professor Brownlie stating that
"[sltates not iigrequently first appear as independent
belligerent entities under a political authority which may be
called and function efectively as a provisional government.
(..)" (Memorial: 8.42)
It is clear that- as with the ILC Draft Articles - the context is that of
liberation or insurrection movements fighting for independence and
102Report of the Inter~zatiolaw Conzmission,Oficial Recordsof tlz(;A,Fib-Sixdz
Session,Suppl.No. 10,UN doc.M56110(2001), p. 114 (Annex 42).eventually gaining control overa territory, which is a radically different
setting from the context of the dissolution of the SFRY, and the
establishmentof the FRY. No movementwas fightingfor the independence
ofthe FRY.
4.10. These differences become even more clear if one considers a
description given by Professor Brownlie just one sentence before the
passage quoted by the Applicant. The subsection of Brownlie's book
dealingwith states in statu nascendi starts withthe following observation:
"Apolitical community with considerableviabilirycontrolling
a certain area of territory and having statehood as its
objective may go through a period of travail before that
objective has been achieved.,,l03
4.11. This is logical, but completely unfittingto the case of the FRY. No
movement or "political community" in the Yugoslav conflict had as its
objectivethe creation of the FRY.
4.12. The independence of a State which wouldhave encompassed the
present territory of the FRY was neither the stated goal nor the secret aim
of any of the participants of the conflict. The creation of theFRY was not
on the banner of any "insurrectional or other" movement; there was no
party to the conflict which would have adopted this objective. Trying to
bridge the obvious gap, the Applicant submits a rather confusing
lo3I. BrownliePrincipl efPublic InternationLaw,5thEdition, Oxford 1998, p. 77
(Annex 43).construction. It suggests that the JNA (Army of the SFRY) operated as de
facto Serbian Army, promoting Serbian interests. (Memorial: 3.02).
According to the Applicant these interests included "the ambitions of the
FRY whichwas at that point in statu nascendi for a 'Greater SerbiaJJ'
(Memorial: 3.02) Again, the elements are just not fitting. Accordinto the
ILC Draft, or according to the citation from the Brownlie treatise, the
objective of the movement is, of course, statehood of the statewhich isin
statu nascendi. According to the construct suggested by the Memorial,
there was a State in statu nascendi (the FRY), but its objective was the
statehood of another territory, that of a "Greater Serbia".
The precepts of the in stntu nascendi concept just cannot be fitted to the
actual sequence of facts which marked the dissolution of theSFRY and the
creation of theFRY.
4.13. The Memorial also refers to the insurgent movement of Serbs in
Croatia (Krajina Serbs), stating that they were in complicity with Mr.
MiloSeviC, and that they were part of the "MiloSevii: scheme". The
definition used in Article 10(2) of thILC Draft Articles and the quotation
from Professor Brownlie's book would actually be much more relevant
regarding the Serbian "Krajinas" - Serbian controlled regions which were
established on the territory of Croatia (Memorial:.89, 2.90, 2.100,2.115).
Here - no matter how would one judge their cause - one could, indeed,
speak of an "insurrectional movement" aspiring to statehood. But the state
which the Krajina Serbs were aspiring for was evidently not the FRY
(Serbia and Montenegro, which does not include the Krajinas) - and it is also well known that these movements did not "succeed in establishing a
new state".
l
( B. No de facto identity between the FRY (Serbia and Montenepro) l
andthe SFRY
4.14. The Memorial argues that the federal authorities of the SFRY,
authorities of the Republic of Serbia, and Serbian insurgents in Croatia,
were indeed one and the same party to the conflict (Memorial:.01, 8.40,
etc.). The Respondent submits that this was not the czse, and no identity
can be assumed between the former SFRY and the FRY. It shall be
demonstrated in the following paragraphs1thatin 1991,and even in 1992,
authoritieof theSFRY (such asthe Government, the Constitutional Court,
diplomatic service) included office holders frall constituent republics,
including Bosnia-Herzegovina, Macedonia, Slovenia, and Croatia. The
aims and the considerations of these office holders were not, and could not
have been, the same. The majority of these office holders ceased to in
1
office once theFRY was created, and did not even become citizens or
residentof theFRY.
4.15. The Applicant alleges that from mi1991 p1
"[alnd inparticular from October1991, the relevant organs
of'the government and otherfederal authorities of the SFRY
ceased tofunction as such and became de facto organs and
IoSeebelow paras4.17.ff. authorities ofthe emerging FRY crctirlgunder direct control of
the Serbian leadership.. ." (Memorial: 8.40)
This is not substantiated by the actual facts and events. The Respondent
shall demonstrate that in 1991 and early 1992 federal authorities continued
to function, their structure was not reduced to Serbian office holders, and
their acts were not acts undertaken in simple furtherance of Serbian or
Montenegrin interests.
B.l The dissolution of the SFRY was an extended process - its
completion was onlyconfirmedin July 1992
4.16. As late as 29 November 1991, Opinion No. 1 of the Badinter
Commission stated that "the SFRY is in the process of dissolution" ("ln
Rkpublique ftdkrative de Yo~~goslavie est engagte dans un processus de
dissolution 3)10. This was a long and complicated process during which
constituent republics and provinces were still represented in federal
institutions, while federal authorities enjoyed some international support,
and showed resistance to instrumentalisation. It was only on 4 July 1992
that the Badinter Commission formulated in its Opinion No, 8 the
following position:
"En conskquence, la CommissiondlArbitmge est d'avis:
que leprocessus de dissolcitionda InR.S.F.Y, rnentionnkdons
1'AvisNo. l du 29 Novembre 1991 est arrive'ii son terme et
qu'ilfaut constnter que laR.S. F.Y n'existeplus. 77106
'OSAnnex l l.
'06RGDIP 1993, vol. 97No. 2, atp. 590 (Annexll).Before the dissolution was completed, the efficiency of federal institutions
may have been gradually impaired, leaving more and more manoeuvring
room outside constitutional structures. Butthe federal institutions were still l
I
functioning,the SFRY still existed. I
!
I
B.2 In 1991key officesof the SFRYwerenot heldby Serbs;these l
offices were functioning, often resisting Mr. MiloHeviC,and
they wereco-operatingwiththe internationalcommunity I
l
4.17. During 1991,the most important federaloLfificials i.,e. the President
of the SFRYPresidency, (Mr.Stipe MesiC- now President of Croatia),the
Federal Prime Minister (Mr. Ante MarkoviC), and the Foreign Minister
(Mr. Budirnir LonEar),were Croats. Quite obviously, the most important
offices- and the most important office holders - were not, as stated in the
Memorial (8.40) "de fncto organs and authorities of the emerging FRY
underdirect controlof the Serbianleadership".
4.18. It may very well be that Mr. MiloSeviCtried to establish control
over the Yugoslav institutions. Yet, this was not an easy task to
accomplish. The Memorial admits that during the March1991 session of
the Presidency of the SFRY,Federal Defence Minister GeneralKadijeviC
requested that the Presidency of the SFRYproclaim a state of emergency.
The Memorial confirms that the request was not adopted. The Memorial
suggests thatthe request "was apparently a result of the March 1991 events
in Pakrac", in Croatia (Memorial: 3.32). As a matter of fact, it is morelikely that the request for a state of emergency was prompted by massive
anti-Miloievib demonstrations in Belgrade on 9 March 1991. 107This
demonstration of the Serbian opposition prompted clashes with the police,
and JNA tanks were eventually deployed against several hundreds of
thousands of Belgrade demonstrators. Following this, on 12 March 1991,
the request for a state of emergency was submitted. It is clear that Mr.
Milogevidhad influence over some members of the Federal Presidency,but
this was insufficient.Itis important to add that the dividing lines among the
members of the Federal Presidency did not coincide with ethnic affiliation.
The crucial vote against the request (and thus, against Milosevie) was cast
by a Bosnian Serb, Mr. Bogic BogiCeviC. lo8
4.19. In June 1991 the European Community still expressed optimism
regarding the ability of Yugoslav political actors to keep the events in
Yugoslavia under control. According to an EC Statement of 8 June 1991 :
"The Comm~tnityand its member States have noted with
satisfaction theoLltcomeofthe meeting of the six Presidentsof
the Republics, held June 6, in Sarajevo. This is an
encouraging steptowards return to constitutional order and a
107Indeed, thiswas the interpretation giveby Mr. Stipe Mesik, member of the
Presidency from Croatia, see. Silberand A. Little, The DeathofYugoslaviu, BBC
Books, London 1995, at p125 (Annex 1).
logThese factsare uncontested. Among many sources confirming this sequence of
events, see L.lberand A. Littleibid .,pp.125-126 (Annex 1). pencef~il dialogue on the jittiire of strztctLwes in
Yz~goslnvin 7.,109
4.20. In 1991- and to a lesser extent at the beginning of 1992 - the SFRY
was still functioning, and the maintenance of the SFRY in some fonn was
still a relevant option.On 7 July 1991 the "Brioni Accord" (Declaration of
the EC Troika and the Parties Directly Concerned with the Yugoslav
~risis"') very much relied on the Presidencyof the SFRY, and stressed as
one of the principles which "will have to be fully followed" that:
the Collegiate Presidency must exercise its full capacity
and play its political and constitutional role, notably with
regard to the Federal Armed ~orces."~ l'
4.21. On 1 September 1991, in order to stop the armed conflicts in
Croatia, a cease-fire was signed in Belgrade. The signatories included the
Presidents of all six constituent republics, the Presidency of the SFRY, and
Mr. A. MarkoviC,the Federal Prime Minister, in addition to Mr. Hans van
den Broek, on behalf of the EC. Mr. Stipe Mesii., the President of the
Presidency of the SFRY (and member from Croatia) signed this Agreement
"for the Presidency of the SFRY, acting also in capacity of Collective
Supreme Commander of the Armed Forces 9,12
Once more, the SFRY
lo9EC Press Release P.54191,published inYugosluvioThrough Documents - From its
Creution toitsDissolution, edby SneganaTrifunovska,Martinus Nijhoff 1994, p.286
(Annex 44).
"O Trifunovska,op.cit.pp. 311-315 (Annex 44).
'l'Trifunovska, op. cip.312 (Annex 44).
112
Trifunovska, op. cip. 335(Annex 44).clearly appears as an actor which is different, and hasa different position
from the Serbian leadership. The person acting on behalf of the "Collective
Supreme Commander of the Armed Forces" of the SFRY was the
representative of Croatia.
(a) In the SFRY diplomacy constituent republicsother than Serbiaand
Montenegrowerefairly representedin 1991 and early 1992
4.22. The SFRY diplomacy was still active in the second half of 1991,
and it was by no means a simple nlterego of the Serbian diplomacy. The
Foreign Minister was Mr. Budimir LonCar(from Croatia). TheHeadof the
SFRY Mission to the UN in New York was Mr. Darko ~ilovi~ (from
Croatia); he was recalledaslate as 12March 1992,''~
4.23. In 1991, and in early 1992, the SFRY had 41 ambassadors from
republics other than Serbia and ~0ntene~ro.l'~
(b) In 1991 and in early 1992, thecomposition of the Constitutional
Courtof the SFRYwas not Serbdominated; anditsfunctioning was
notcharacterisedby apro-Serb bias
4.24. The Constitutional Court of Yugoslavia (SFRY) was also still
active in 1991 and early 1992. In this period, a growing number of
legislative acts in Croatia and Sloveiiia in particular, but also in Serbia,
began to contest the constitutional system of the SFRY. In 1991 and 1992,
'l3See theSurvey presentedbythe Personal and LegaServiceof the FRY Federal
MinistryofForeignAffairsdated 2Nov. 2001 (Annex45).
'llbid. I these acts were declared unconstitutional. Many, but by no means allof
I
( them, were Croatian or Slovenian acts. In a very significant number of l
decisions (as many as 24 in 1991 alone!), the Constitutional Court of I
l
Yugoslavia decided that Serbian acts were un~onstitutional."~
j
""hese arethe following decisions: (1) Decision of the Constitutional Court of
Yugoslavia No. 11-U-87/90of 19 Feb. 1991, published in the Official Gazette of the
SFRY No. 37/91; (2) Decision of the Constitutional Courtof YugoslaviaNo. IU-10811-
90 of 14 Mar. 1991, Off. Gaz. of the SFRY No. 50191; (3) Decision of the
Constitutional Courtof Yugoslavia No. IU-13011-90of 10 Apr. 1991,Off. Gaz. of the
SFRY No. 40191;(4) Decision of the Constitutional Courtof Yugoslavia No. IU-7811-
90 of 10Apr. 1991,Off. Gaz. of the SFRYNo.45/91; (5)Decisionof the Constitutional
Courtof Yugoslavia No.IIU-103190of 10Apr. 1991,Off. Gaz, of the SFRY No. 45191 ;
(6) Decision of the Constitutional Court of Yugoslavia No. 11-U-101190of 10 Apr.
1991, Off. Gaz. of the SFRY No. 59191;(7) Decision of the Constitutional Court of
Yugoslavia No. IU-11/1-91 of 24 Apr. 1991, Off. Gaz. of the SFRY No. 44/91; (8)
Decision of the Constitutional Courtof YugoslaviaNo. IU-13111-90of 24 Apr. 1991,
Off. Gaz. of the SFRY No. 44/91; (9) Decision of the Constitutional Court of
Yugoslavia No. 11-U-9/91of 24 Apr. 1991, Off. Gaz. of the SFRY No. 45/91; (10)
Decision of the Constitutional Courtof YugoslaviaNo. IU-12811-90of 14 May 1991,
Off. Gaz. of the SFRY No. 44/91; (11) Decision of the Constitutional Court of
Yugoslavia No. IU-84/1-90 of 14 May 1991, Off. Gaz. of the SFRY No. 50191;(12)
Decision of the Constitutional COU~of Yugoslavia No. 11-U-121190,113190and II-U-
120190, 112190 of 29 May 1991,Off. Gaz. of the SFRY No. 51/91; (13) Decision of the
Constitutional Courtof Yugoslavia No. 11-U-104190 of12 June 1991, Off. Gaz. of the
SFRY No. 57191; (14) Decision of the Constitutional Court of Yugoslavia No. IU-
12411-90of 10 July 1991, Off. Gaz. of the SFRY No. 62/91; (15) Decision of the
Constitutional Court of Yugoslavia No. W-12511-90, IU-12512-90,IU-12513-90,IU-
12514-90,IU-12515-90,IU-12516-90,IU-6/1-91 and IU-1011-91of 10 July 1991, Off.
Gaz. of the SFRY No. 62191;(16) Decision of theConstitutional Court of Yugoslavia
No. 11-U-102190of 10July 1991,Off. Gaz. of the SFRYNo. 62/91; (17) Decision of the
1054.25. Without entering into a detailed alialysis of the decisions of the
Constitutional Court of the SFRY in 1991 and in early 1992, the
Respondent would like to highlight some unmbiguous patterns:
a) In 199 1 and early 1992, the Constitutional Court of Yugoslavia
was clearly trying to protect the constitutional system of the
SFRY, rather than fostering or even allowing an "FRY in stutu
nascendi ";
b) the composition of the Constitutional Court of Yugoslavia still
reflected the SFRY -judges who participated in the rendering of
Constitutional Court of YugoslaviaNo. IU-66/1-91 of 11 Sep. 1991, Off. Gaz. ofthe
SFRY No. 77/91; (18) Decision of the Constitutional Court of Yugoslavia No. IIU- '
10/91 of 2 Oct. 1991, Off. Gaz. of the SFRY No. 1/92; (19) Decision of the
Constitutional Court of Yugoslavia No. IU-83/1-91 of 16 Oct. 1991, Off. Gaz. of the
SFRY No. 86/91; (20) Decision of the Constitutional Courtof Yugoslavia No. IIU-
66/91 of 23 Oct. 1991, Off. Gaz. of the SFRY No. 3/92; (21) Decision of the
Constitutional Court of Yugoslavia No. IIU-106/90 of 23 Oct. 1991, Off. Gaz. of the
SFRYNo. 13/92;(22) Decision of theConstitutional Courtof Yugoslavia No. IU-72/1- I
91 of 24 Oct. 1991,Off. Gaz. of the SFRYNo. 2/92;(23) Decision of theConstitutional
1
Court of YugoslaviaNo. IU-58/1-90of 1 l Dec. 1991,Off.Gaz. of the SFRY No. 25/92; i
(24) Decision of the Constitutional Court of Yugoslavia No. 11-U-41/91of 24 Dec.
1991,Off. Gaz. of the SFRY No. 16/92. i
I
(Since the Respondent does not intend to analyse the content of these decisions, and i
does not rely on specific arguments, but merely wants to demonstr~rtethat the 1
j
Constitutional Court of Yugoslavia rendered a most signij5cant number ofdecisions I
against Serbian acts and interest- and since these decisions are a mutter of public
record - the Respondent is rzotsubnzittiat this monzentthe text of these decisionsas
annexes. The Responderzt will, of course, pronzptly prepare such annexes, if such a 1
request wereto be made.) these decisions were not from Serbia and Montenegro alone,
neither were they ethnic Serbs and Montenegrins alone;
c) in most of these cases, the initiative (for declaring Croatian,
Serbian, or other acts as unconstitutional) came from the Federal
Government, whose Prime Minister was Mr. Ante MarkoviC, a
Croat from Croatia.
4.26. The Constitutional Court of the SFRY was composed of fourteen
judges: two from each of the six republics, and one from each of the two
provinces within Serbia (~ojvodina"~ and ~osovo"~). TJntil27 April 1992,
the Constitutional Court of Yugoslavia functioned at near to full
composition. Until 1 August 1991 all fourteen judges remained in office.
Eleven out of fourteen judges stayed in office until the termination of the
SFRY,i.e. until the founding of the FRY on 27 April 1992.'18
In the following paragraphs the Respondent offers a few examples of
decisions in 1991and 1992.
4.27. In 1991, in the same manner as other Republics, Serbia also
attempted to channel more funds into its own budget (instead of
l lThe rights of the Autonomous Provinceof Vojvodinawere radically curtailed under
MiloSeviC,but it stillmaintained theright to nominatejuthesConstitutional Court
of theSFRY.
"'
Like Vojvodina, Kosovo also kept the entitlementof sending judges to the
Constitutional Court of Yugoslavia, although the autonomyosovo was drastically
reducedunder MiloSeviC.
118
See in Annex 46 the Survey ("Pregled") issuedby the Constitutional Court of
Yugoslaviaon 14 Nov. 2001.channelling them to the budget of the Federation). The Federal Government
under Mr. Ante MarkoviCsubmitted initiatives to the Constitutional Court
of Yugoslavia, asking the Court to declare these acts unconstitutional. In
most cases, the Court ruled that these Serbian acts were, indeed,
unconstitutional. For example, on 16 October 1991 - acting upon initiative
of the Federal Government - the Constitutional Court of the SFRY found
that the 1991 Serbian act which provided for the channelling of the
turnover tax into the Serbian (rather than into the SFRY) budget, was
unconstitutional.'l9
4.28. In the same vein (and again upon initiative of the Federal
Government), the Constitutional Court of Yugoslavia held on 23 October
1991, that the provisions of another 1991 Serbian act - which directed
revenue from customs and import taxes to the Serbian rather than to the
Federal budget - were unconstitutional. lZO
4.29. On 12 January 1992, the Constitutional Court of Yugoslavia
declared unconstitutional a Croatian act by which several federal acts
pertaining to economic organisations were taken over as acts of the
Republic of Croatia (thus asserting Croatian legislative competence over
matters which were regulated byfederal acts).121
Decision of the ConstitutioCour tf the SFRY No. IU-83/1-91of 16Oct. 1991,
Off.Gaz. of theFRYNo. 86/91of 29 Nov. 1991,pp. 1363-1364(Annex47).
'" Decision of the Constitutional Courtof Yugoslavia No. IIU-66/91Gaz.of the
SFRYNo. 3/92 of 10Jan. 1992,pp.29-30 (Annex48).
12'Decision otheConstitutionalCoun of YugoslaviaNo1U 18411-91,Off.Gaz.of the
SFRYNo. 1911992of 20 Mar. 1992,pp.285-286 (Annex49).4.30. As late as in February1992,the Constitutional Court of Yugoslavia
was still endeavouring to uphold the Constitution of theRY, and on 12
February 1992 it declared unconstitutional the Croatian act which gave to
the Croatian Government powers to enact provisional measures for the
protection of Croatian economic interests.lZ2
4.31. In 1991 and inearly 1992, the Constitutional Court of theSFRY
was not Serb dominated. It was not a simple instrument of Serbian
interests either. In the critical period, both Croatian and Serbian
authorities endeavoured to defy and disregard federal norms and
procedures. The Constitutional Court of thSFRY challenged and resisted
such endeavours.
B.3 Territorial or ethnic origin of office holders in the SFRY
cannot and does not support the allegation of a de facto
identityof the SFRY withthe FRY
4.32. The Memorial contends that from October 199 1 federal authorities
ofthe SFRY were
"acting under the direct control of the Serbian leadership,
embodied in particular in the President of Serbia, but
extending also to relevant oficials in Ministrieof Defense
and Interior." (Memorial:8.40/b)
12'Decisioof theConstitutioCourt of Yugoslavia,No. 9/1-91, OffGaz.ofthe
SFRYNo. 19/92of20Mar. 1992,pp.286-287(Annex50).It is very difficult to follow the notion and concept of "Serbian leadership",
when it implies, in addition to leaders of the Republic of Serbia, leaders of
the SFRY, many of whom were not from Serbia. In order to make this
argument more plausible, the Applicant suggests that one should focus
solely on the "relevant" federal functions - implicitly excluding from the
concept of "relevant functions", among others, the functions of the
President of the Presidency, of the Prime Minister, of the Foreign Minister,
or of the Minister of Justice. This is, of course, difficult to accept, but even
if one were to adopt the focus suggested by the Applicant, one would find
leaders who were not fromSerbia but from other republics.
4.33. For example, the Federal National Defence Secretary at that time -
who was singled out in the Memorial - was General Veljko Kadijevit from
Croatia. What makes him a "Serbian leader"'?Ethnic origin may have been
a possible implied added criterion. Could this define "Serbian leadership",
and give reason for speculations that the SFRY was under the control of
"Serbian leadership"? Let us state for the record, the ethnic origin of Mr.
Kadijevid is actually mixed: Serbian and Croatian. 123 The Memorial views
General Kadijevid as an exponent of Serbian interests. The Respondent
does not intend to take a position regarding thedeeds, or the inclinations of
123
Mr. KadijeviC was born on 21 Nov. 1925 in Croatia. His fatherwas Mr. DuSan
KadijeviC(an ethnic Serb from Croatihis mother was Ms. Ja~ljaPatrlj (an ethnic Croat
from Croatia). Inhismemoirs, KadijeviC states: "There have been spec~~latioabout
my national afJiliation.Myfather is a Senzy nzotherisU Croat... Bymy convictionI
am a Yugoslav. Notwithstaizding what is huppenitzg andwhclt willIzuppen,I shull
remain the same." (V. Kadijevic, Moje vidjenje raspa/My View of the Dissolution/
Beograd, 1993,p. 151)(Annex 51) (translated text marked). General KadijeviC.The question is that of the link towards the (hture) I
FRY - and this is difficult to follow, let aloneto accept. Could Kadijevi-
an SFRYgeneral from Croatia - be considered a protagonist of the "FRY
instntz~nascendi" because one of his parents was a Serb?
4.34. During many of the tragic events describedin the Memorial, the \
President of the Presidency of the SFRY, and the Head of the Collective
SupremeCommander of the YugoslavArmed Forces was Mr. StipeMesiC,
the representative of Croatia (and the current President of Croatia). Until
his resignation on 20 December 1991, the Federal Prime Minister of the
SFRYwas Mr. Ante MarkoviC,a Croat from Croatia.124Until December
1991, the Minister of Foreign Affairs was Mr. Budimir LonEar (also a
Croat from Croatia), while the Minister of Justice was Mr. Vlado
Kambovslufom Macedonia.
il
1
4.35. The Respondent does not try to suggest that Mr. MesiC, Mr. L-
MarkoviC,Mr.LonCaror Mr.Karnbovskishould be regarded as the persons
F
/ responsible for the misdeeds in Croatia. Such a proposition would be 11 I
I incorrect - and possibly even cynical. The point is that in the violent 1 l
turmoil that took place on the territory of the former Yugoslavia, one 1
cannot simply establish truth and justice by tying consequences and L
t
I responsibilityto functions, structures,or entities. !
'l
i
12Mr. Ante MarkoviC was Prime Minister otheSFRYuntil 20 December 1991when li
l heresigned (this is confirminAppendix 5 to the Memorial on p. 21) The Official :I
I Gazette of the SPRYof 20 Dec. 1991 still published decrees signed by Prime Minister L
1 Markovik on17 Dec. 1991(Annex52).
i4.36. The Army which held Vukovu and Dubrovnik ~~nder siege in1991
was the Army of theSFRY, not the Army of the FRY. Individuals who
comitted misdeeds during the conflict are liable, no matter in which army
they were, and no matter whether they became citizens of the FRY, of
Croatia, or of some other successor State. Croatia consistently argued that
theFRY was not identical with thSFRY, but that it was simply one of its
five equal successors. This position became generally accepted one. The
FRY came into being on 27 April 1992, and is responsible for its own acts
or omissions since thatate.It followsthat:
Until 27 April 1992the FRY did not exist.
There is no established concept of states in statu nascendi, and
there is no established rule on liability of "statesn statu nascendi" in
international law,
The "in statu nascendi" concept is misplaced in the context of
the dissolution of the SFRY and of the emergence ofthe FRY.
The concept referred to by the Applicant, even if it were
enshrined in a rule of international law, is incompatible with the
pattern of facts of this case.
Moreover, one simply cannot predate the emergence of the FRY
by alleging its identity with the SFRY. The SFRY was neither dejure,
nor de facto identical with the FRY. The territory was different.
Federal authorities were not identical with Serbian or Montenegrin
authorities. The affiliation of office holders cannot create or change
state identity, but even if it could, the actual data contradictsthe point
the Applicant tries to make. Until the end of 1991, most of the key
office holders who represented the SFRY, were not from Serbia, and
were not Serbs. It is thus not possible to reduce the SFRY and the
institutions of the SFRY to Serbia and Montenegro (or to the futureFRY)on the grounds of either territorial affiliation or of ethnic origin
of office holders.
Furthermore, no movement, no aim of insurrection, no
secession, no de facto situation was formalized by the creationofthe
FRY.
The FRY is not identical with the SFRY. It is one of its five
equal sucessors.
The FRY cannot be responsible for acts or omissions which
took place before the FRY came into being. Part V
ThirdPreliminaryObjection
SOMEOFTHEAPPLICANT'SSPECIFICSUBMISSIONS
AREPERSE INADMISSIBLE AND MOOT
l l
l 1
A. The request to submit Mr. MiloSevif to trial "before appropriate I
l l
l judicial authority"is inadmissibleand moot l
l
5.1. In its closing submissio2/a,the Applicant requests theFRY
"to take immediate and eff'ectivesteps to submit to trial before
appropriatejudicial authority, those citizensor other persons
within itsjurisdiction who are suspected onprobable grounds
of having committed acts of genocide as referred to in
paragraph (])(a), or any of the other acts referred to in
paragraph (I)(@ inparficular Slobodan MiloSeviCtheformer
President of the Federal Republicof Yugoslavia,and to ensure
that those persons are duly punished for their crimes."
(Submission 2/a,Memorial: page 4 14)
5.2. Individual indictments have, indeed, been issuedby the prosecutor
of the International Criminal Tribunal for the former Yugoslavia
(hereinafter:"ICTY") against both FRY and Croatian actors. Since the
Memorial was submitted, an indictment was issued (in October 2001)
1
115against Mr. MiloSeviC "nctitzgnlo/irntldin concert with other members of.
thejoint criminal enterprise.7,12The crimes ascribed to Mr. MiloSevidand
others in relation to the territory of Croatia incl~tde crimes against
humanity,breaches of the Geneva conventions and violations of the laws or
customs of war - but not genocide. In no cases has the ICTY indicted
anyone for the crime of genocide allegedly committed in Croatia. (Even if
it had, individual responsibility and intent of a natural person are a
completely different matter and cannot be equated with State responsibility
and intent of a State.)
5.3. The Respondent submits that, while it is perfectly legitimate to seek
effective prosecution and punishment of those who committed crimes
during the hostilities in the former Yugoslavia, the appropriate setting for
the raisingof these issues are not the present proceedings before this Court,
where the alleged (and contested)jurisdiction andprocedural framework is
set by ArticleIX of the Genocide Convention.
5.4. Moreover, Mr. MiloSevid was overthrown by the citizens of the
FRY during the autumn of 2000, he was arrested by the new Yugoslav
authorities in April 2001, and was transferred to the ICTY on 28 J~lne
2001. Mr. MiloSeviC isnow in The Hague, in the custody of theICTY. On
11 April 2002 the FRY enacted an Act on Cooperation with the Hague
Tribunal. After this Act was adopted, a number of persons have been l
12'ICTY,Indictmentof Oct.2001 in thcase Prosecutor v. SloboMiloSeviC,IT-01-
50-1,sec26 -see ath~tp://www.un.org/icty/indictment/english/rnil-ii011008e.htm. transferred to thICTY by the FRY authorities, and a number of persons
residing in theRY and indicted by theICTY have voluntarily surrendered.
These persons include General MrkSicaccused for acts during the siege of
Vukovar, and Mr. Milan MartiCaccused for the shellinofZagreb.
5.5. For these reasons, the Applicant's submission 2(a) is inadmissible
and moot.
B. The requestto provide informationon the whereaboutsof missing
Croatiancitizens isinadmissible andmoot
5.6. The next specific submission of Croatia is the request
"to provide forthwith to the Applicant all information within
its possessionor control as to the whereabouts of Croatian
citizenswho rue missing asn result of the genocidal actsfor
which it is responsible, and generally to cooperate with the
authorities of the Republic of Croatia tojointly ascertain the
whereabou~sof the said missing persons or their remains;"
(Submission 2/b, Memorial: p.414)
5.7. This is also a request which falls outside the scofetheGenocide
Convention - and which has, in addition, become moot. It is true that
several years after the end of the armed conflict there are still Croatian
citizens missing,just as there are missing Yugoslav citizens. The new
Government of the FRY is co-operating with Croatia in establishing thewhereabouts of these missing persons. As a matter of het, co-operation
started even before the new Government of the FRY took office. An
Agreement on co-operation in the search for missing persons was already
reached between Mr. Milutinovic, Foreign Minister of the FRY, and Mr.
GraniC, Foreign Minister of Croatia on 17 November 1995 in Dayton,
Ohio. Inthe process of the implementation of this Agreement, on 17 April
1996 the Commission of the FRY Government on Humanitarian Issues and
Missing Persons on one side, and the Commission of the Croatjan
Government for Imprisoned and Missing Persons on the other side, signed
a "Protocol on ~ooperation".'~~ This Protocol provides for a mutual
obligation to exchange data about missing persons (Article 2), and also
provides for a mutual release of prisoners of war, detained officers, soldiers
and civilians (Article3).
5.8. On 23 August 1996, an "Agreement on Normalization of the
,3127
Relations between the FRY and the Republic of Croatia was concluded,
which provided for a speedy process of exchange of information on
missing persons. Article 6 of this Agreement makes it absolutely clear that
the exchange of information about missing persons is an obligation of
,,128
"bothparties .
126See thetextof this Protocol (Annex 53).
127
SeeAnnex 10.
128According to Artic6: "The Contracting Parties undertake to sup forthwiththe
processof solving the questions of missing persons, and both Contracting Parties shall
immediately exchange all availableinformation about thesens." 5.9. Since then considerable progress has been made. In accordance
with the Protocol on Cooperation of 17 April 1996, Croatian and FRY
commissions held eight joint meetings since November 1996 (in most cases
with theparticipation of the representatives of the International Red Cross).
During these meetings, the FRY handed over to the Croatian side 1093
complete protocols about persons who perished during the Vukovar
military operations. 12'
5.10. The task is a difficult one, there were some mutual reproaches for
less than full co-operation, but bona fide efforts have undeniably been
made. The International Committee of the Red Cross (ICRC) and the ICTY
are also engaged in this task, and both the FRY and Croatia are currently
co-operating with the ICRC and the ICTY. Recently, on 7 November 2001,
Mr. Maksim KoraC, President of the FRY Commission for Humanitarian
Issues and Missing Persons, and Colonel Ivan GrujiC, President of the
Croatian Commission for Detained and Missing Persons, signed Minutes of
a meeting which took place in Belgrade on 6-7 November 2001, at which
the representatives of the ICRC and of the International Committee for
Missing Persons were present. These Minutes show most considerable
progress and a high level of understanding.13'
l
1 '29 see a letter by Mr. Maksim Korac, President of the Commission of the FRY
I Governmentfor Humanitarian Issues and Missing Persons of 29 Nov. 2001. addressed
l to theFRY Ministry of Foreign Affairs. This letter rcfers to eight joint meetings, and
statesthat 1093protocols havebeen handed overto theCroatian side(Annex 54).
! 13'For thetextof theMinutes seeAnnex 55.5.11. During years of mutual work, neither Croatia nor theFRY proposed
or even hinted that the established avenue of ongoing co-operation
regarding missing persons (i.e. co-operation of two State commissions with
the participation of international humanitarian organisations) were
inappropriate, or that some international mechanism was required to
replace or supplement it. The proper framework for the remaining
implementation is not a dispute before the International COLI~of Justice.
This submission of the Applicant is inadmissible and moot.
C. The request for return of items of cultural property is
inadmissibleand moot
5.12. A further specific submission of Croatia is the request for the
return of
"[alny items of ciiltural property withirz its j~~risdictionor
control which were seized in the course of thegenocidal ncts
for which it is responsible;" (Submission 2/c, Memorial,p. 414)
The Respondent stresses that one cannot possibly stretch the alleged
jurisdiction regarding genocide to property claims regarding objects of art.
This claim is, thus, inadmissible.
5.13. The Respondent notes that it is indeed true that some objects of
cultural property which belong to Croatia came under "[the] jurisdiction or
control" of theFRY. These objects came to Yugoslavia during the years of
hostilities. There may be conflicting interpretations regarding the manner in which these objects arrived in the FRY. According to the Yugoslav
explanation, these objects were evacuated and brought under safe shelter
from devastated and unprotected areas (which in 1991 were still within the
same country). This explanation is not an uncontested one. However,
whichever interpretation is correct, for the present Government of the FRY
it is beyond debate that cultural property which has its rightful owners in
Croatia should be returned to Croatia.
5.14. Some dilemmas have arisen merely with respect to sacral objects
taken from a number of Serbian orthodox churches in Croatia. As these
churches were destroyed, damaged, or abandoned, sacral objects were
brought to the territory of the FRY. The Serbian Orthodox Church claims
to be the owner of these objects, but it is willing to return them to where
they came from, i.e. to Serbian orthodox churches in Croatia after these
churches become capable of resuming their intended function. In line with
its position, the FRY has been engaged in bona fide negotiations with
respect to the return of these items of cultural property to Croatia,
5.15. The issue of return of cultural property was on the agenda of several
discussions between Yugoslav and Croatian representatives.13' It is
1 uncontested that the objects taken from Croatia (mostly from Vukovar)
l
! 131 Such discussions tookplace, for example on 25 May 2001 between FRY Foreign
i
MinisterMr. SvilanoviCand Croatian ForeignMinisterMr.Piculain Split; on 18and 19
I Sep. in Belgrade, between FRY Assistant Foreign Minister Ms. JoksimoviC and
,
I Croatian Assistant Foreign MinisteMr.Paro.
l
l
1 121were in appropriate custody and under due care in the City Museum in
Novi Sad, and in the Museum of Vojvodina. This was confirmed by Mr.
Imhoff, on behalf of a fact finding commission of the Council of ~uro~e.'~' I
For a while, the remaining difference was in the perceived sequence of
steps. According to one proposition, the return of cultural property should
have been the subject of a cultural agreement between theFRY and Croatia
I
(this was the Yugoslav position as stated in the proposed Cooperation
,
Agreement between the FRY and Croatia in the Domains of Culture and ' I
Education, presented tothe Croatian side on 12 June 2001). The Croatian
1 I
side defended the position that the FRY should first return the "Bauer i l
Collection", as a separate act outside other arrangements.
5.16. These ininor differences in approach did not yield a deadlock. On
l lNovember 200 1, Mr. Goran SvilanoviC, Foreign Minister of the FRY,
and Mr. Tonino Picula, Foreign Minister of Croatia, issued a Joint
Statement in New York. In this Statement it is stressed: [I
132Council of Europe, ParliamentaryAssembly, "Wardamage to the cultural heritagein
Croatia and Bosnia-Herzegovina", Seventh information report, Doc. 7308, 15 May
1995.The relevant findings of the fact-findingmission leadby Mr. Imhoff arein paras.
33-43. In para. itis stressed e.g. "The thousu~zdsof VMMobjects urzditems, mainly
archeological ceramic frugments, deposited in nztlseurnare irzszlitable environment,
well orgu~zizedinto well-used space, appurerztlycorrectly recorded, kept professionally,
and handled careJi~lly."(VM- "Vukovar Municipal Museum").Regarding the Bauer
collection, paragraphofthe Report states "The several hutzdredpaintings and works
ofcirare being given curefill curatorial attention. Theirphysical harzdlbegseems to
correct unddoriecareful"y(The futext othereport is in Annex 56). l
"AS resrtlt of enco~irogingadvances in co-operation between
experts of institutions from both countries, the Ministers
I
anno~rncedthe urgent return of V~rkovar's art collections, and
discrtssrd about the commencement of negotiations for the
Agreement on Cultural Co-operation, and about the retztrnof
cultuml heritage to the Serbs and the Serbian Orthodox
i Ch~rrch in Croatia. 7,133
l!
Ij
I
5.17. As announced, "urgent return of Vukovar's art collections" took j!
ij
place. On 13 December 2001, not only the "Bauer collection", but other 11
ii
objects of cultural property belonging to Vukovar museums and galleries, 1l
1 as well as objects of art and sacral objects belonging to catholic churches
I and to one orthodox church, were duly returned to Croatia - and this has
1 been properly confirmed by Crortian authorities."* It is clcvr that Yugoslav
and Croatian authorities are perfectly capable of bringing this question to a
I satisfactory resolution.
5.18. For these reasons, Applicant's submission 2/c is inadmissible and
moot.
i
133Pre-last paragraph of the Joint Statement Picula-SvilanoviC of 11 Nov. 2001
134See the Minutes of the work of the group of experts of 10 Dec. 2001, and the
Addendum of 13 Dec. 2001 (Annex 58).
l 1.23
i It followsthat:
The Applicant's submissions regarding
- the taking of effective stepsto submit to trial persons like Mr.
MiloSeviC,
- providing information regarding the whereabouts of missing
Croatiancitizens, and
- return of cultural property,
are inadmissible,and havebecomemoot. CONCLUDING SUBMISSIONS
For thereasonsadvanced above,theFederalRepublicof
Yugoslaviais askingthe Court:
to uphold the First Preliminary Objection and to adjudge and declare
that it lacks jurisdiction over the claims brought against the Federal
Republic of Yugoslavia by the Republic of Croatia.
Or, in the alternative,
a) to uphold the Second Preliminary Objection and to adjudge and
declare that claims based on acts or omissinns which took place
before the FRY came into being (i.e. before 27 April 1992) are
inadmissible;
and
b) to uphold the Third Preliminary Objection, and to adjudge and
declare that specific claims referring to:
- taking effective steps to submit to trial Mr. Milobevit and other
persons,
- providing information regarding the whereabouts of missing
Croatian citizens, and
- return of cultural property,
are inadmissible and moot.
The Respondent reserves its right to supplement or amend its submissions
in the lighof further pleadings.
September 2002 Professor Tibor Varady
Agent of the Federal Republic of Yugoslavia
Preliminary Objections of the Federal Republic of Yugoslavia