Bosnai Hercegoviy BosniaandHerzegovina
PREDSJEDNISTVO PRESIDENCY
sudompravdeu Haagunim Agent of BosniaandHerreaovina
Musab9, Sarajevo,Bosnai Hercegovlna EefotetheInternationalCourtofjustice
Tel.:(0387-33)&Q%O Musala9, Sarajevo,BosnlaandHerregovina
Fax.:(0387-33)664-954 Fax.:(û387-33)664-954
No: ........................................
Date: ................................... To the Registrarof the
InternationalCourt of Justice
Vredespaleis
2517 KJ Den Haag
Re: Bosnia and Herzegovinav. Yugoslavia
Dear Sir.
III the above-mentionetl case the Agent of Yugoslavia has on 4 May 2001
submitted a so-called 'Initiative'to the Courtrequesting that the Courtwould
recoilsiderex oficio itsjurisdictionin this case.
In this letter Bosnia and Herzegovina provides the Court with its views
regarding this 'Initiative:'.
General observations
1. First ofal1 Bosnia imd Herzegovina recalls thatby Judgment of 11 July
1996the Court has established itsjurisdiction in this case, while rejecting
al1Preliminary Objlectionsraised by Yugoslavia. This Judgmentis final
(Article60 Statuteof the Court).
2. The Statute provides foran exceptionto this rule of Judgrnentsbeing final:
Article61 opens up the possibilityof submittinga request for Revision of
any Judgment renderedby the Court.The conditions for this reopeningof
a closed, finalized and adjudgeddebate are welldefined in this provision.
Outside Article61 the Statutedoes notprovide for any other exceptions to
the rule that Judgments, indeed,are final.
3. It is for this reason alone that the requests put fonvard through this
'Initiative' should'berejected out of hand, without further debate or
consideration. Only in subsidiarysense,Bosnia and Herzegovina adds the
following. 3 December200 1,page 2
4. The 'Initiative'. as far as its substance is concerned, is nothing less and
nothingmore than a requestfor Revisionin disguise.This is not only clear
from the contents of the 'Initiative'. it becomes even clearer wllen
coiiipared to the Application for Revision. which was submiaed by
Yugoslavia in this very same case on 23 April 2001. The text of the
-Initiative'at one handand of the Applicationfor Revision at the other
eiicIosiire I hand are 95% idenitical.The enclosedMemorandumproduced by Bosnia
and Herzegovina dlrmonstratesthe similaritiesand differences betweenthe
two documents. Presumably Yugoslavia is aware of the fact tliat the
Application for Revision does not meet the standard laid down in Article
61 andtherefore feizlsurged to takerecoiirseto this self-designed,however
non-esisting. exceptiori to the rule that Jiidgments are final. This is not
acceptable. If theP~pplicationfor Revisionis declared inadmissibleby the
Court. or altogether rejected. that will be the end of the debate. The
Statute. rightly so, does not8providefor a Revision of earlier Judgments
outsidethe limits laid downin Article6 1 ofthe Statute.
5. Bosniaand Herzegovina enclosesa copyof its Written Observationswith
riiciosuI. regardsto the AppliicationforRevisiondated3 December 2001.AIso
eiiciosu3e enclosed is a copy of the Annexes tothese Written Observations. Ifthe
Court would contemplate to consider the contents of the 'Initiative', for
whiclithere is no basis in law. Bosnia andHerzegovina requests theCourt
to accept the contents of these WrittenObservations MZLI~CIInlutnndisas
part of Bosnia's responseto the 'Initiative'.
The nature of a Judgment on Prelimina~ Objections
6. The followingis also submittedbywayof subsidiary arguments.
7. In section D of the "Initiative'Yugoslaviasets out in stating that "[Ilnterim
j~idgments - like t1.ione on PreliminaryObjections - are by their nature
more readily revi.ewable than final judgments." (page 50 of the
'Initiative').There iisno basisin fact norin lawto sustain this proposition.
W11y"by their nqature"interim judgments would be "more readily
reviewable" is not explained by Yugoslavia,while there is no reason to
acceptthis peculiar statement.
Besides that. it is not correct to define a Judgment on Preliminary
Objections as an 'Interim Judgment';usually this term is reserved for
'InterimProtection'. which refers toan Order (not a Judgment) which the
Coiirt may give in response toa request for Provisional Measures.In any
event the Rules of Court state perfectly clear that the decision on
preliminaryobjections is çiven inthe form ofa Judgment, while theRules
do not provide for a basis for the suggestion that the value of this
Judginent is to be aippreciateddifferentlythan the value of a Judgment on
the merits of a certain case. Therefore, thereis no basis for Yugoslavia's
propositionthat this sort ofjudgment wouldbe "more readily reviewable".
On the contrary. as mentionedabove,this Judgment is "final and without
appeal" (Article 60 of the Statute).).Recentlythis was clearly confirrned 3December200 1.page 3
by the Court in its Judgment of 25 March 1999 in a case concerning
precisely a Judgnient on Preliminary Objections (Requas~ ,for
Inre~prerationof the Jiltigmenlof II June 1998 inthe ccrseconcerning ~he
Land and Maritime BoundarybetweenCanieroonand Nigeria (Cameroon
v. Nigeria), Preliniinary Objections)); the Court considered that "[tlhe
lansuape and structureof Article 60reflect the primacy ofthe principle of
/-e,udicata" (ICJ Rep. 1999,p. 36,para. 12).
S. On page 50 of the 'Initiative',Yugoslaviagoes on to suggest that "[Tlhe
Court may return l:othis issue [ofjurisdiction] any time, upon initiative,
orproprio motu. In the ICAOCouncilAppealcase the Court emphasized:
(..)" (bold print added). As evidence for this proposition Yugoslavia
refers to the Judginent of this Court of 18 August 1972 in the Case
concernina the Appeal relatingto the Jurisdiction of the ICAO Council.
However. thisJudgrnei~tdoes not provide for any supportwhatsoever for
Yugoslavia's proposition:
First, in the ICAO-case there was no question that the Court was
'returning' to the jurisdiction-issue; the issue had not been addressed
before;
Second. in the ICAO-case there wasno question of a so-called
'initiative:
Third. in the 1CAO-case there was no question of the Court
en7phnsizingthat it mayrerurnto thejurisdiction issueproprio motu.
Fourth. in the ICAO-casethe Court explicitly pointed out that "it is
desirable that jiirisdictional objections Should -be put forward as
preliminary objections".
Neither in the w-Council Appeal case nor. for that matter, anywhere
else there is any supportto be found for Yugoslavia'ssuggestions that the
Court wouid have to revisit this issue whenever questions about
jurisdictioncome up one way or the other. Apart from that Yugoslaviais
wrong in assuming that 'always' in the quoted section of the ICAO-
Judgment would be .thesameas 'continuously',which it is not.
Yugoslavia, therefore. erroneously pretends that there would be sorne
principle (page 51 of the 'Initiative') compellingthe Court to revisit
jurisdiction questionsona continued basis.
Theother Yugoslav-cases pending before the Court
9. The followingis also submittedby ways ofsubsidiaryarguments.
10.Yugoslavia notes that currently it is involved in three (better: ten) cases
before this Court, referringto the case against Yugoslavia filed by Croatia
and to the cases filed by Yugoslaviaitself againstvarious member-States
ofNATO. Whateverthe precisemeaningof this notso clearreference may
be. the main point h.ereis that it is part of the jurisdictional system under
which this Court furictions that thequestion of jurisdiction isjudged on it
~neritsseparately in eachseparatecase.This way the Court is able to take
intoaccount in each case thepeculiarities that arespecifically relevant to 3December200 1,page 4
the jurisdiction question in each separate case. There is no reason
wliatsoever whythe Court in thesetl~ree(better:ten) cases should try and
conle to one single Judgment on jurisdiction for al1 of these cases
regardless of the position taken by each of the States (including
Yugoslavia) in each of these separate cases and regardless of the
circiunstances in each of these separatecases. Allof this is also reflected
in Article9 of the:StatutewhichStates:
"The decision of the Court has no binding force except between the
parties andin respect of thatparticularcase".
Also from the perspective of this provision there is no basis for
Yugoslavia's requctstto the Courtto reconsiderits jurisdiction in the light
oftlleother cases rnentionedbyYugoslavia.
1 1.For that matter, Bosnia notes tha- if an? consistency would be at stake
here- it would have been minimallyconsistent for Yugoslavia to notify
the Court and the State parties involvedthat it, in the 'NATO cases'.
withdraws its reference to the Genocide Convention as a basis for
jurisdiction. Yugoslavia has not done so. which makes its calling for
coiisistency evenmore difficultto comprehend.
Conclusion
Al1of the above leadsto the conclusionthatthereis no basis in fact nor in law
to honour this so-called 'Initiative'. Bosnia and Herzegovina, therefore
requeststhe Courtto inform bothparties involvedinthis case:
that it responds in the negative to the request embodied in the
-Initiative';
tllat it will not entertain any request for Revision other than the one
submitted by Yugoslaviaon23April2001;
that the Court rejects the propositionscontainedin the 'Initiative'.
Accept,Sir,the assurances ofmy highest esteem.
Prof.Dr.Kasim Trnka
Agentof Bosnia and Herzegovina
beforethe InternationalCourt ofJustice Enclosure1
MEMORANDUM
ondifferencesbetweenthe ApplicationforRevisionof 23April2001
and the "Initiativenof 4 May 2001
CONTENTS(pagesi, ii (and iii))
1. PartA and B are the sarnt:in botlidocuments.
2. Tliemain differences are to be foiindin PartC. especiallyin the headings and sub-
headings.
3. TtieInitiative (further: 1) hasa separatDson admissibility. (the admissibility-
issiieegarding the Revision (furR)eis addressedin Part CR.
4. Part DofR is the sarne as PErof.1.
5. PartE ofR is the same as PaFtof1.
Test (pages 1-5(R) and 1-55(1)
6. Tlie terminology used in both documentsis "ApplicaRtand "TheFRY" in 1.Along
the saineines the words "Applicati(R)and "Submission" (1)are used.
PartA
7. $1 and s3 are the same in bothdocuments.The sameis tru§2except that Rnthe
issueof admissibility is lirikedto Article61of the Statute,while in 1the admissibility-
issueis linked to exoqfcio-practiceof the Court.
Part B
S. PartB is entirely the same inbothdocuments.
Part C
9. 322 inR discusses Article 61 ofthe Statuteand providessorneinterpretation on this of
this Article.
10.$2; ofR is identical to $2;!and $23of 1(exceptforthe first sentences of the latter).
11. 524-835ofR are identical to $24-93I(exceptfor the subheadings).
Part D
12.The partD which is to be found in 1is not to be foundR.tal1in
Finalparts
13.PartD ofR is identical toEpof 1.
14.PartE ofR is almost entirety identical Foof 1.
Annexes
15.Tlieannexes to both docurrientsareentirelyidentical.
Letter from the Agent of Bosnia and Herzegovina