Response to the Question raised by Judge Ab1 aham
On 28 May 2008, Judge Abraham posed the following question to both parties:
Les Parties se sont référées, entre autres, aux affaires rs la Licéité de l'emploi de la
force, dans lesquelles la Cour ajugé en 2004 qu'elle n'avait pas compétence pour connaître des
requêtes de la Serbie-et-Monténégro, au motif que cet Etat ne remplissait pas les conditions à lacès
Cour.
Dans ces affaires, la Serbie-et-Monténégro venait devant la Cour comme demanderesse.
Dans laprésente affaire, la Serbie seprésente en qualité de défenderesse.
Y a-t-il, selon les Parties, des conséquences à tirer, et si oui lesquelles, de cette différence de
situation, en ce qui concerne les conditions prévues auxparagraphes 1 et 2 de l'article 35 du
Statut?
In response to the question posed by Judge Abraham, Serbia respectfully submits the following
answer:
A. Introductory Observations
1. We would like to submit that in the LegaHty of Use of Force cases, the same fact (the fact
that Serbia and Montenegro was not a party to the Statute) received two qualifications which
are coherent. The fact that Serbia and Montenegro was not a party to the Statute was
perceived as a fundamental shortcoming within the concept of access and within the concept
of seisin as well. The Court held that the fact that Serbia and Montenegro was not a party to
the Statute at the time of the application was a shortcoming that thwarted both a valid access
and a valid seisin. The same shortcoming led to denial ofjurisdiction.
2. In the Legality of Use of Force cases Serbia and Montenegro was the applicant. The
question is whether the logic on which the Court relied would also apply in a situation in
which the respondent is a State which is not a party to the Statute - and is not qualified to
1 appearbefore the Court on the ground of some other vehicle either. We are submitting that
the same logic applies. This follows, first of all, from the clear wording of the Court in the
ce cases. S eakin of access as a recondition to the exercise of
judicial function, the Court does not single out one party (the Applicant), but speaks
consistentlyin plural:
"The Court can exercise its judicial function only in respect of States which have
access tait under Article 35 of the Statute. And only those States which have access ta
the Court can conferjurisdiction upon it." 1
Laterin this text, we shall add furtherargumentsto this point.
The Legality of Use of Force Judgments made it also clear that the relevant moment in
tüne when the preconditions for seisin need to be assessed, is the moment of the application, of
the institution of the proceedings. Not the time when the Memorial was submitted, or any other
possible later time. The question was de:finedby the Court in no uncertain terms: "The question
whether Serbia and Montenegro was or was not aparty ta the Statute at the time of the institution
2
of theproceedings is afundamental one."
We would like to refer to our pleadings (CR 2008/12 pp. 18-22, paras 33-45) in which we
offered further arguments showing that the time of the application is the only relevant moment of
time with regard to access and seisin.
3. With regard to seisin, we would first like to call the attention of the Court to two
mischaracterisations presented by the Applicant: one pertaining to the Respondent, and the
other pertaining to the Court. During his closing arguments on 30 May 2008, Professer
Crawfordpointed out that the Respondent (Professer Varady) argued that the Court was not
validly seised in this case, and then he said: "In other words, he said the case was wrongly
entered in the List". 3 This certainly not what Professer Varady said or hinted. This
1Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports
2004, para. 46. Exactly the same text can be found in the other 2004 Legality of Use of Force Judgments as well: in
para. 45 of the cases with France, Canada, Italy, The Netherlands, and Portugal; and in para. 44 of the cases with
Germany and the United Kingdom.
2 Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminmy Objections, Judgment, I.C.J. Reports
2004, para. 30. Exactly the same text can be found in the other 2004 Legality of Use of Force Judgments as well: in
para. 29 of the cases with France, Canada, Italy, The Netherlands, and Portugal; and in para.28 of the cases with
Germany and the United Kingdom.
3CR 2008/13, p. 28, para 17
2 misinterpretation is linked to another inaccurate reference concerning the Court. At the
beginning of para 19 of his pleadings on 30 May 2008, Professor Crawford addresses the
Court, and says: ''YourightZvacted in the NATO cases on the basis that you had seisin." 4
This is simply not tnle. The opposite is tnle. The question whether the Court was properly
seised was explicitly raised in the NATO cases - and answered in the negative.
4. The question was raised in Paragraph 36 of the 2004 Judgment: "The question is whether as
a matter of law Serbia and Montenegro was entitled to seise the Court as a party to the
Statute at the time when it instituted proceedings in this case." To this question the Court
answered definitely in the negative. After repeating that Serbia and Montenegro was a not a
party to the Statute at the time of the institution of the proceedings, and that the Court was
not open to it under Article 35 Paragraph 1 of the Statute, the Court concluded: "In that
situation, subject to the application of paragraph 2 of that Article, Serbia and Montenegro
could not have properly seised the Court, whatever title of jurisdiction it might have
invoked,for the simple reason that Serbia and Montenegro did not have the right to appear
5
before the Court." It is well known that the analysis of Article 35 paragraph 2 of the Statute
did not lead the Court towards a different position. In his separate opinion, Judge Tomka
also confirmed and cited that in the Legality of Use of Force cases "[w]hatever title of
jurisdiction the applicant might have invoked, it 'could not have properly seised the Court
6
...for the simple reason that [it] did not have the right to appear before the Court." After
the Court found that it was not properly seised, the Court certainly did not conclude that "the
case was wrongly entered in the List", but it declinedjurisdiction.
5. Of course, it would have been easier to distinguish our present case from the L(::galityof Use
of Force cases if our argument were that this case was wrongly entered in the List (rather
4CR 2008/13, p. 29, para 19
5Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminmy Objections, Judgment, J.C.J. Reports
2004, para 46. Exactly the same text can be found in the other 2004 Legality of Use of Force Judgments as well: in
para. 45 of the cases with France, Canada, Italy, The Netherlands, and Portugal; and in para 44 of the cases with
Germany and the United Kingdom.
6
Legality of Use of Force (Serbia and Montenegro v. Belgium), Prelimina,y Objections, Judgment, J.C.J. Reports
2004, Separate opinion of Judge Tornka, para 28
3 than that the Court was not validly seised), and if the Court would have held in 2004 that it
was validly seised. But this is evidently not the case. We are asking the Court to take exactly
the same position as the one it took iu 2QQ4The Camt held in 2004 that it was not validly
seised because Serbia and Montenegro was not a party to the Statute at the moment when
the application was filed - and one of our arguments is that the Court was not validly seised
in this case either, for the same reason (because Serbia was not a party to the Statute at the
moment when the application was filed).
6. Thus, the position taken by the Applicant is not compatible with the Legality of Use of
Force Judgments, unless one would rnisread these judgments. The applicant submits that
1
"There was a case dulyfiled before the Court by Croatia, so there was seisin." Had the
Court held that it was properly seised in the Legality of Use of Force cases - because there
too, the case was duly filed by the FRY -it would, indeed, follow that the Court was validly
seised in this case as well. But, again, the Court did not decide that it was properly seised in
the Legality of Use of Force cases. It decided that it was not properly seised. This is why
the question of Judge Abraham is pertinent with regard to seisin as well. We have
demonstrated that there can be no valid seisin without access ofboth parties, and that lack of
seisin - due to laclcof access - is a shortcoming of such a fundamental nature that it cannot
be remedied by way of posterior developments. 8
7. During the oral hearing on 29 May 2008 we endeavoured to demonstrate that no distinction
can be made between applicant and respondent with regard to such a fundamental
shortcoming as not being a party to the Statute. We subrnitted our arguments within the
context of seisin. Since the institutions of access and seisin are interrelated, since they were
both relied upon by the Court as frames of reference for the same shortcoming, we shall
submit arguments in both contexts.
8. Our arguments in the context of seisin will include parts of the arguments we already
presented during the oral hearing of 29 May 2008. Our arguments with regard to access will
include parts of the arguments presented during the oral proceedings in the Bosnia case
7CR 2008/11, p. 34, para 8
8
See CR 2008/12, pp. 15-22, paras 21-45 (Varady)
4 (Case Concerning Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), CR 2006/45, 9
May 2006, pp J8-23, paras 4 22-4.37). We shall not repeat here our arguments with regard
to the "Mavrommatis principle", but we would like to refer to them 9, since they are also
pertinent with regard to the (lack of) distinctionbetween applicant and respondent.
9. Our position is that the principle of the equality of the parties, as well as the limits to the
judicial function of the Court set by the Statute, necessarily lead to the conclusion that no
distinction canbe made between applicant and respondentwith regard to access and seisin.
B. No relevant distinction can be made between applicants and respondents with regard to
access
B.1 Difference in conditions of access is not supported by the Charter and the Statute
10. The text of the Charter does not make any difference between positive and negative jus
standi. Further, the wording of the Statute, in particular its Article 35 dealing with access,
also provides no support whatsoever for any differentiation between applicants and
respondents as regards their access to the Court. Both paragraph 1 and paragraph 2 of the
English version of this Article use exactlythe samephrase - that the Court "shall be open..."
The French version, as well, uses exactly the same phrase - "est ouverte" - both in
paragraph 1 and paragraph 2 of Article 35. This wording does not distinguish in any way
between the situation in which the Court is "open" to an applicant and the one in which it is
"open" to a respondent. The wording of Article 35 is neutral as regards the position of a
State in a litigation and appliesto applicants andrespondents equally.
11. As noted by Professor Yee in relation to the wording of Article 35, paragraph 2, of the
Statute of the PCIJ (of course, the present Statute uses the identical wording of the relevant
phrase):
9CR. 2008/12, pp. 18-22, paras. 33-45 (Varady)
5 "...the language of the Statu.teof the PCU speaks of being "open to other
States", without any distinction between applicant and non-applicant
,,10
12. Furthermore, in the context of Article 35, the statu.toryphrase "shall be open" has been
11
frequently replaced in the practice of the Court with the following words: "access" and
12
"the right to appear". None of these formulations, however, do indicate any difference
between applicants and respondents. On the contrary, they clearly relate to the ability of a
State to be a party before the Court, and are completely neutral as regards its position in
litigation.
13.In conclusion, the words "the Court shall be open" in Article 35 of the Statu.te,in their
natural and ordinary meaning, do not lend themselves to different interpretations. Their
meaning is clear and unambiguous: the Statu.te does not make any distinction between
respondents and applicants; between States that sue and that are sued.
14.A systematic reading of Article 35 of the Statu.te supports this understanding. While the
question invites the parties to assess potential consequences to be drawn from differences in
party status with respect to paragraphs 1 and 2 of Article 35 of the Statu.te,the assessment is
influenced by the normative context of those provisions. Article 34, as the other statu.tory
provision addressing an aspect of access, is particularly important in this respect. Paragraph
1 of that provision provides that "Only states may be parties in cases before the Court." It
has to the respondent's knowledge never been argued that with respect to the specific aspect
10Yee, S., "The Interpretation of 'Treaties in Force' in Article 35(2) of the Statute of the ICJ", 47 ICLQ 884, at 896.
11
See, e.g., Legality of Use of Force (Serbia and Montenegro v. Belgium), Prelimina,y Objections, Judgment, J.C.J.
Reports 2004, para. 46 (hereinafter: "Legality of Use of Force"); Fisheries Jurisdiction case (Germany v. Jceland),
Judgment on the Jurisdiction of the Court, ICJ Reports 1973, p. 53, para. 11. It should also be noted that the
documents related to the drafting of Security Council resolution 9 use the phrases "access to the Court" and "open to
States" interchangeably. See Letter of the President of the Courtsent to the Secretary-General of the UnitedNations,
dated 1 May 1946 (U.N. doc. S/99, 5 July 1946) and Report of Mr. Beelaerts van Blok/and, Rapporteur of the
Committee of Experts, concerning the conditions under which the International Court of Justice shall be open to
States not Parties to the Statute (U.N. doc. S/169, 24 September 1946).
12See, e.g., Legality of Use of Force, para. 46.
6 of access addressed in Article 34, paragraph 1 of the Statute, one could draw a distinction
based on the party' s status as applicant orrespondent in a litigation.
15. Equally, a distinction between applicants and respondents in terms of access has never been
seen as being relevant in the application of paragraph 3 of Article 35, which provides as
follows:
"When a state which is not a Member of the United Nations is a party to a
case, the Court shall fix the amount which that party is to contribute towards
the expenses of the Court. This provision shall not apply if such state is
bearing a share of the expenses of the Court."
16. In conclusion, the two provisions referred to in Judge Abraham's question - paragraphs 1
and 2 of Article 35 - therefore are set in a normative context of rules on access which treat
applicants and respondents alike. To introduce a distinction into them would ignore that
context.
17. When the wording of a provision is so abundantly clear, this should be the end of the
13
matter. But in any case, the idea that there could be a difference in access to the Court
between applicants and respondents does not receive support from the drafting history of
Article 35, paragraph 2, either. On the contrary, as noted by Professor Yee "... it contradicts
the draftinghistory." 14
18. As far as Article 35 of the present Statuteis concemed, it is almost identical with the text of
Article 35 of the Statute of the Permanent Court, apart from purely formal changes
necessitated by references to the United Nations instead of the League of Nations and its
Covenantand the terminological changesin order to bring the English text more in linewith
15
the French text. The changes did not concem the phrase "shall be open". Therefore, the
1Adviso1y Opinion on the Competence of the General Assembly for the Admission of a State to the United Nations,
J..C.J.Reports 1950, p. 8.
14Yee, S., "The Interpretation of 'Treaties in Force' in Article 35(2) of the Statute of the ICJ", 47 ICLQ 884, at 896.
15Documents of the United Nations Conference on International Organization, Vol. XIV, p. 839.
7 drafting history of Article 35 of the old Statu.te is clearly relevant to the wording of Article
35 of the present Statu.te.
19. During the .drafting of Article 35 of the old Statu.te, a difference in conditions of access to
the Court, depending on the position of a State as an applicant or respondent, was mentioned
by the Chairman of the Sub-Committee of the Third Committee of the First Assembly of the
League ofNations. 16However, there is no indication that this view received support . 17
20. Moreover, the discussion during the drafting of the amendments to the Rules of the
Permanent Court of International Justice in 1926, which took place only six years after the
drafting of the Statu.te, provides an illuminating insight regarding the understanding of this
issue. During the discussion on implementation of Article 35, paragraph 2, of the Statu.tein
the Rules of the Court, the Registrar remarked that, in the Wimbledon case, the Court had
decided that the obligation to accept the conditions laid down by the Council in the context
of Article 35, paragraph 2, of the Statu.te could only be imposed on applicants and not on
18
respondents. However, the then President of the Court, Judge Max Huber (who
participated in the drafting of the Statu.te of the Permanent Court of International Justice),
rejected this interpretation and insisted that the conditions laid down by the Council
resolution had to be accepted in all cases, regardless of whether the State not Member of the
League was in the position of respondent or applicant:
"It was quite natural that States that wished to profit by the institution
established by the League of Nations should have to accept the conditions
fixed by the Covenant, and that States which, for one reason or another, had
1Permanent Court ofintemational Justice, Documents concerning the action taken by the Council of the League of
Nations under Article 14 of the Covenant and the adoption by the Assembly of the Statute of the Permanent Court, p.
141.
17See Yee, S., "The Interpretation of 'Treaties in Force' in Article 35(2) of the Statute of the ICJ", 47 ICLQ 884, at
893-894.
18
Publications of the Permanent Court of International Justice, Series D., Acts and Documents concerning the
organization of the Court, Addendum to No. 2, "Revision of the Rules of Court" (1926), p. 75.
8 not yet done so should accept them by means of this declaration, whether they
19
appeared before the Court as Applicant or Respondent."
No other judge voiced any different view or disagreement with the interpretation given by
the President.
21. The question of distinction between applicants and respondents was not raised during the
drafting of the present Statute. If the drafters of the present Statute wished to allow for such
fundamental departure :fromthe accepted principles of international litigation and equality of
States they would have clearly said something to that effect - but they did not.
B.2 The principles of consent and the role of political organs of the UN do not allow any
difference in conditions of access of applicants and respondents
22. A theory according to which the requirements of access to the Court would not be applicable
in case of respondents would run counter the fundamental principle that a State may be
subject to international adjudication, in the current case adjudication by the International
20
Court of Justice, only with its consent. This is not a consent to a specific title of
jurisdiction in a particular case in the sense of Article 36 of the Statute, but the general
consent to be part of the United Nations judicial system established by the UN Charter'and
the Statute. This general consent to participate in the judicial system established by the
Charter and the Statute is one of the fundamental prerequisites of access to the Court as set
forth by Article 35 of the Statute.
23. This general consentis given either through an application for UN membership, or when a
non-member State submits a formal request to be a party to the Statute, or accepts the
conditions set forth in Security Council resolution 9, or participates in one of the "treaties in
force" in the sense of Article 35, paragraph 2, of the Statute. Of course, the consent by the
19
Ibid., p. 106 (emphasis added).
20See, e.g., Ambatielos case (merits: obligation to arbitrate), Judgment of May 19th, 1953: I.C.J. Reports 1953, p.
19.
9 State concemed is not all that is required for the fulfilment of conditions of access to the
Court under Article 35, because in all these cases (except the "treaties in force" clause) it
must be a-ceompanied by specific action by the Unüed Nations pafüical organs either by
admission to membership of the Organization which entails ipso facto membership in the
Statute of the Court (Article 93, para. 1, of the Charter); or by determination of conditions
for participation of a State which is not a member of the UN in the Statute of the Court
(Article 93, para. 2, of the Charter); or finally by a determination of the conditions for
participation in proceedings before the Court of States not parties to the Statute (Article 35,
para. 2, of the Statute). Yet, in each and every of these situations, the State itself must also
give its consent to be part of thejudicial system of the United Nations. Therefore,if a State
that has never given such consent could still be brought before the Court as a respondent,
this would clearly violate a fundamental principle of international adjudication, which has
been continuouslyunderlined and upheldby the Court ever since its creation.
24.The Respondent's lack of access means that either the respondent State has not given its
consent to be, generally or in an individual case, part of the judicial system of the United
Nations,or that the competent UN organshave not accepted the Respondent as a member of
this judicial system in a manner envisaged by the Charter and the Statute; or that both of
theserequirements have not been fulfilled.The result of this situation is that the Respondent
does not have any lin1cwith the Court, which therefore cannot exercise its judicial function
with respect to the Respondent. As the Court said in the Aerial incident of 27 July 1955
Judgment, with respect to the situation of Bulgaria before its admission to the United
Nations,
"Until its admission, it was a stranger to the Charter and to the Statute.
What has been agreed upon between the signatories of these instruments
cannot have created any obligation binding upon it, in particular an
obligationto recognizethe jurisdiction of the Court." 21
21
Case concerning the Aerial incident of July 27t1',1955 (Israel v. Bulgaria), Preliminaiy Objections, Judgments of
May 26 ",1959: /.C.JReports 1959,p. 143.
1025. If this principle is applied to the present case, the fact that the Respondent could not have
had any obligation under the Charter and the Statute until its admission to the United
Natiorn;:meansthat ü could not be hrongbt to the Court, i.e.,it did not have any obligation to
corne before the Court. This is obviously yet another confirmation that conditions of access
fully apply to respondent States. On a more general level, this means that the fundamental
precondition for the Court's exercise of its judicial function was missing. Simply, the
Respondent was until its admission to the United Nations, to use the Court's expression, "a
stranger to the Charter and to the Statute."
26. The possibility that a respondent State could be brought before the Court without fulfilling
the conditions of access under the Charter and the Statute would also prevent the Security
Council and the General Assembly from exercising their power to decide on the
participation of States in the judicial system of the United Nations. This would not only
effectively suspend Article 93 of the Charter and Article 35 of the Statute, but would upset
the balance between the main organs of the Organization, as well.
27. Any distinction between applicant and respondent would also undermine the role of the
General Assembly and the Security Council under Art. 6 of the Charter. This is due to the
consideration that a case could then still be brought before the ICJ, the principal judicial
organ of the United Nations, against a State which has been expelled from the organization
despite the fact that it is thereby no longer a member of the United Nations. This would also
undermine the decision of the political organs of the organization to not only act under Art.
5 of the Charter and strip the State concemed of its membership rights and privileges
(including the rightto bring a case before the ICJ and thus be an applicant), but to instead
deliberatelycompletely expel the State concemed :fromthe organization as such.
28. The distinction proposed would also run counter to the idea underlying Art. 94, para. 1 of
the Charter. Art. 94, para. 1 of the Charter presupposes that parties to a case before the
Court are under an obligation to comply with decisions by the Court. Practice by the
political organs of the United Nations under both Art. 93, para. 2 of the Charter, as well as
under Art. 35, para. 2 of the Statute confirms that the entering into such an obligation is
considered essential before a non-member State of the United Nations is granted access to
11 the Court. Yet, allowing for a case to be brought against a State which does not have access
(as not being a member of the United Nations and as therefore not being bound by Art. 93,
para 2 of the Charter, or as not having ful:filledthe reguirements laid down by the General
Assembly and the Security Cormeil by virtue of Art. 93, para. 2 of the Charter respectively
Art. 35, para. 2 of the Statute) would circumvent this essential requirement. This is even
more relevant since it is of particular importance that a State against which a case is
brought, i.e. the respondent, is under an obligation to comply with ajudgment by the Court.
B.3 The question of eguality
29. Furthermore, the acceptance of such possibility would lead to fundamental inequality
between States in relation to proceedings before the Court - States without access could be
sued but could not sue before the Court. However, when faced with a contentious case, the
Court, in order to discharge its function as a court proper and to administer justice, has to
ensure the equal treatment of the parties. The fundamental nature of this duty is expressed
e.g. in the Court's statement that "the equality of the parties to the dispute must remain the
22
basic principle for the Court". Equality of parties is, as has been noted, "not an abstract
notion or a mere declaration of principle, but a firm reality originating in ... the very nature
23
and object of the intemational legal process."
30. It must be also noted that the principle of equality is recon:firmed in Art. 35, paragraph 2 of
the Statute speci:fically with regard to States not parties of the Statute.
31. As an illustration of the consequences of fundamental inequality that would ensue :from a
differential treatment of access of respondents and applicants, respectively, it suf:fices to
mention the question of counter-claims. Under Rule 80 of the Rules of Court, a respondent
22Milita1y and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). JCJ
Reports 1986, 14,at25 (para. 31).
23Rosenne, S., The Law and Practice of the International Court of Justice 1920-2005 (2006), vol III, Martinus
Njihoff Publishers, Leiden, Boston, at 1048-1049.
12 may present counter-claims. A counter-claim is nota defence but a separate claim, which 24
means that, with regard to the counter-claim, the respondent will be in the position of a
plaintif+:while the appUcantwill be in the position of a defendant. If a State without access
to the Court could be placed in the position of respondent but not in the position of
applicant, it would be prevented from presenting counter-claims in a case in which it is a
respondent. Obviously, the proposition that the obligation to answer a claim before the
Court exists, while the right to bring a claim does not, would put a respondent State that has
no access to the Court in a position of fundamental inequality within the case itself. . The
issue of the counter-claim makes it also clear that the "Mavrommatis principle" could not
apply with regard to such a fundamental question as access. Ifthe lack of access on the side
of the respondent could be remedied by the fact that the respondent becomes a party to the
Statute at a later moment, the respondent might still loose its chance for submitting a
counterclaim, if it did not become a party to the Statute before the time-limit set for
submittingthe counter-claim.
32. Such fundamental inequality of the parties, if it were ever possible, quid non, would clearly
leadto the impropriety of the Court's exercise ofjurisdiction.
B.4 Security Council resolution 9 (1946) does not lend support to any purported difference
in access of applicants and respondents
33. Security Council resolution 9 was adopted on 15 October 1946, pursuant to Article 35,
paragraph 2, of the Statute. It was therefore adopted a little more than one year after the
Statute had been drafted and adopted.But there is nothing in the text of this resolution, nor
in the correspondence and drafts that preceded it, 25 that would indicate any difference in
24
United States Diplomatie and Consular Staff in Tehran, Provisional Measures, Order of 15 December 1979, I.C.J.
Reports 1979,p. 15, para. 24; Case Concerning Application of the Convention on the Punishment and Prevention of
the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia}, Counter Claims Order, 17 December 1997, paras.
27-28.
25See Letter of the President of the Court sent to the Secretary-General of the United Nations, dated 1 May 1946
(U.N. doc. S/99, 5 July 1946) and Report of Mr. Beelaerts van Blokland, Rapporteur of the Committee of Experts,
concerning the conditions under which the International Court of Justice shall be open to States not Parties to the
Statute (U.N. doc. S/169, 24 September 1946).
13 conditions of access of States not members of the Statu.te,depending on whether they were
applicants or respondents.
34. Security Council resolution 9 allows that States not parties to the Statu.temay deposit either
aparticular or a general declaration accepting thejurisdiction of the Court:
"A particular declaration is one accepting the jurisdiction of the Court in
respect only of a particular dispute or disputes which have already arisen.
A general declaration is one accepting thejurisdiction generally in respect
of all disputes or of a particular class or classes of disputes which have
already arisen or which may arisein the future." 26
35. Again, this wording equally applies to applicants and respondents and does not allow any
distinction on that basis with respect to access to the Court by a State not party to the
Statu.te.fudeed, the very possibility that such State may give a general declaration accepting
the jurisdiction of the Court in respect of all disputes entails both the possibility that it
would be an applicant and the possibility that it would be a respondent in the cases before
the Court. Moreover, such general declaration necessarily covers the situation of being a
respondent and the situation of being an applicant, and, in fact, cannot be limited to one of
them. This clearly shows that conditions of access apply equally to respondents and
applicants,without exception.
36. fu conclusion, it is simply not possible to bring a State not party to the Statute before the
Court as a respondent unless it fulfils conditions of access set forth in Article 35 of the
Statu.te.Respondents are subject to access requirements in the same way as applicants. It is
submitted that a different result sirnply could not be possible under the Charter and the
Statu.te.These documents do not provide for any difference on the basis of States' litigating
position. Moreover, Article 35, paragraph 2, of the Statu.te expressly provides that
conditions of access to be set forth by the Security Council "in no case shall... place the
parties in aposition of inequality before the Court."
26Security Council resolution 9 (1946), para. 2.
14B.5 The Court has never made a düference with regard to conditions of access
37. The Court has never in its practice made any difference between the access of applicants
and the access of respondents. This is evidenced by the Bosnia case: in the provisional
measures phase, the Court relied on the "treaties in force" clause of Article 35, paragraph
2, as a prima facie (provisional) basis for access of the FRY. 27 Although necessarily
tentative, in this phrase of the procedure, such reliance indicated the Court's feeling that
avenues set by the Statute had to be followed and the relevant conditions of access had to
be fulfilled. Why such reliance on Article 35, paragraph 2 would be considered necessary if
proceedings could be validly initiated, and a respondent could appear before the Court
without fulfilling the necessary statutory requirements of access? If the requirements of
access had not applied to the respondent, the Court would have simply noted this fact and
proceeded to deal with the case.
38. The position of the Court taken in the 1996 Preliminary Objections Judgment (which was
taken as res judicata in the 2007 Judgment) is evidently different from the position taken in
the Legality of Use of Force cases. But it is also evident that the reason for this is not a
distinction made between Applicant and Respondent; just as it is clear that in 1996 the Court
did not contemplate - let alone decide - that lack of access at the time of the Application
could be later remedied. The reason for different holdings in the Bosnia case and the
Legality of Use of Force case respectively, is obviously the (non)-availability of sufficient
and adequate information in 1996. In 1996, the issue of access was not argued by any of the
parties, and on the ground ofwhat was then known, it was plausible to assume that the FRY
was a party to the Statute at the time when the application was submitted. The 1996
Judgment was rendered during the period of eight years in which the position of the FRY, in
the words of the Court, "[r}emained ambiguous and open to different assessments" (Legality
of Use of Force, Serbia and Montenegro v. Belgium, Paragraph 64.) In contrast to this, the
Legality of Use of Force Judgments were rendered after it became clear that the FRY was
27Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Order of 8 April 1993, para. 19.
15 not a party to the Statu.teuntil 1November 2000 - and this was unequivocally confirmed by
the Court. This case is also being decided after conclusive clarifications became available.
B.6 Parties raising the issue of lack of access have confirmed the understanding that both
the Applicant and the Respondent must have access
39. In the various Cases conceming the Legality of Force, several parties have also explictely
taken the position that both the applicant and the respondent in a given case must have
access. Thus, for example, Italy stated:
"To be able to adjudicate upon a case brought before it, the Court must
first have jurisdiction ratione personarum, meaning that bath the
Applicant and the Respondent must be among the States with access to the
28
Court."
In the same vein, Portugal stated that:
"This means that for an entity which does not enjoy the right of access to
the Court, the question of jurisdiction does not even arise. It simply
cannot appear before the Court as either Applicant or Respondent." 29
C. No relevant distinction can be made between applicants and respondents with regard to
seisin
40. In the Legality of Use of Force cases the Court held that the Applicant "could not have
properly seised the Court " 30,because it was not a party to the Statu.te,and did not have the
right to appear before the Court.
28
Case concerning Legality of the Use of Force, (Yugoslavia v. Italy), Preliminmy Objections of the ltalian
Republic, p..Emphasis added.
29Case concerning Legality of the Use of Force, (Yugoslavia v. Portugal), Preliniina1y Objections of the Portuguese
Republic, p. 5. Emphasis added.
1641. It is generally accepted that a valid seisin may be effected by either a joint notification or
unilaterally. In our case, we are talking about unilateral seisin. But the conditions for
unilateral seisin in a given dispute are not restricted to preconditions pertaining to the
applicant. The qualifications of the other party simply cannot be disregarded. Otherwise, a
State, party to the Statute, could also validly seise the Court with a case brought against a
non-State entity. Or, the Court could be seised against a State that is outside the scope of the
judicial authority of the Court.
42. Unilateral seisin cannot be reduced to addressing the Court by one party. This simple fact
31
appears clearly from the Nottebohm case , where the issue was whether the Article 36(2)
declaration of Guatemala (the Respondent) would allow a valid unilateral seisin, given the
fact that it expired after the Application was submitted. In this case, even the fact that both
parties to the dispute were parties to the Statute was not considered to be sufficient for a
valid seisin. The Court investigated whether other preconditions on the side of the
Respondent were met, and stated that "There can be no doubt that an Application filed after
the expiry of this period [theperiod of the validity of the Guatemala declaration} would not
have the ejfect of legally seising the Court". 32 Itwas not enough that the case was "duly
filed" by the applicant. Preconditions on the side of the respondent had to be met. The
Nottebohm Judgment made it clear that the status of the respondent is relevant for seisin.
43. Valid seisin means simply compétence de la compétence. But it would be a contradictio in
adiecto to speak of compétence de la compétence in a situation in which the Court has no
competence to assume jurisdiction. The Court cannot be validly seised, it cannot have
compétence de la compétence if one of the parties to the dispute is not a party to the Statute,
if it is outside the statutory scope of the Court's competence.
30Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports
2004, para 46. Exactly the same text can be found in the other 2004 Legality of Use of Fo1·ceJudgments as well: in
para. 45 of the cases with France, Canada, Italy, Netherlands, Portugal, and in para. 44 of the cases with Germany
and the United Kingdom.
31
Nottebohm case (Preliminmy Objections,) Judgment of November 18th, 1953: I.C.J. Reports 1953
32Ibid. p. 121.
1744. It is beyond doubt that a valid seisin has consequences with regard to both the Applicant and
to the Respondent - but this assumes that they are parties to the Statute, which is the anchor
of procedural effects. The existence of this assumption was made clear in the Maritime
De/imitation and Territorial Questions between Qatar v. Bahrein (Jurisdiction and
Admissibility) case, where the Court stated:
"Once the Court has been validly seised, both Parties are bound by the
procedural consequences which the Statute and the Rules make applicable
,,33
45. This is certainly true, but this clearly assumes that both parties are parties to the Statute, and
therefore can be parties in a given case brought before the Court. Otherwise, "the procedural
consequences which the Statute and the Rules make applicable" would not apply to them. It
is generally accepted, that seisin which yields compétence de la compétence,flows from the
Statute. But this also means that the State towards which competence is asserted - and
possibly established - has to be within the scope of the Statute. The Court cannot have
compétence de la compétenceif a party to the dispute is not a party to the Statute. This
simple proposition was accepted as a basic assumption in the Aerial Incident of 27July 1955
case, where Bulgaria was the respondent and in which the Court stated that:
"... [t]he Statute of the present Court could not lay an.yobligations upon
34
Bulgaria before its admission to the United Nations ... "
46. Sovereign States parties to the Statute are under the obligation to respect compétence de la
compétence of the Court with regard to them, under the conditions set by the Statute. By the
same token, the Court has no competence to decide upon its competence if an.yof the States
parties to the dispute is outside the realm of the judicial authority of the Court.
33
Maritime De/imitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility,
Judgment, I.C.. Reports 1995, para. 43.
34Case Concerning the Aerial Incident of July 2?1",1955 (Israel v. Bulgaria), Preliminary Objections, Judgment of
May 26 1959, p.143.
1847. This proposition was con:firmedin the Legality of Use of Force cases, in which the Court
makes it crystal clear that access has a fundamental character, that it is a precondition to
judicial functioning, and hence tojurisdiction as well. It is stated:
"The Court can exercise its judicial function only in respect of States
which have access to it under Article 35 of the Statute. And only those
States which have access to the Court can confer jurisdiction upon it. " 35
48. This is perfectly logical, since access is, indeed, both a precondition to a valid seisin and a
precondition to jurisdiction. This clear position cannot be interpreted otherwise but as a
position taken towards both the applicant and the respondent. The Court cannot exercise its
judicial function towards parties who are not within the ambit of its judicial function, who
do not have access to the Court.
49. The same simple and clear proposition is also underlined by Rosenne. Starting from the
assumption that the capacity to be a party to contentious cases is reserved only to States,
Rosenne adds and stresses:
"This statehood has to be supplemented by formal conditions establishing
a legal link of the State to the Statute of the Court [...] Only a State
meeting one of these formal conditions has access to the Court for any
purpose and in any capacity whatsoever. The Court cannot entertain a
contentious case against a respondent State that is not similarly
qualified."36
50. The Court stated in the Legality of Use of Force cases that "The Court can exercise its
judicial function only in respect of States which have access ta it under Article 35 of the
35Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, J.C.J. Reports
2004, para. 46. Exactly the same text can be found in the other 2004 Legality of Use of Force Judgments as well: in
para. 45 of the cases with France, Canada, Italy, The Netherlands, and Portugal; and in para. 44 of the cases with
Germany and the United Kingdom.
36 Rosenne, S., The Law and the Practice of the International Court, 1920-2005, (2006), Martinus Njihoff
Publishers, Leiden, Boston, p. 588.
19 37
Statute". Thus, the problem was a fundamental one, conceming the limits of the possible
exercise of the judicial function of the Court. The Court can exercise its judicial function -
which also means that it can be properly seised only in a dispute between States both of
which have access to it under Article 35 of the Statute. No distinction can be made between
the applicant and the respondent. The exercise of judicial function in contentious cases
clearly assumes that both parties are within the scope of authority of the Court set by the
Statute.
51. In conclusion, it is the considered opinion of Serbia, that the fact that Serbia was not a
party to the Statute at the time when the Application was submitted is a shortcoming
that thwarts both valid access and valid seisin, and leads to lack of jurisdiction
notwithstanding whether Serbia is an applicant or a respondent.
6 June 2008
37
Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, JudgmC.J.Reports
2004, para. 46. Exactly the same text can be found in the other 2004 Legality of Use of Force Judgments as well: in
para. 45 of the cases with France, Canada, Italy, The Netherlands, and Portugal; and in para. 44 of the cases with
Germany and the United Kingdom.
20
Written response of Serbia to the question put to the Parties by Judge Abraham