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RESPONSE OF SERBIA AND MONTENEGRO TO THE QUESTIONS POSED BY
THE VICE-PRESIDENT OF THE COURT ON 9 MAY 2006
1.
On 9 May 2006, the Vice-President of the Court posed the following question to both parties:
"In 1996 the Federal Republic of Yugoslavia concluded two bilateral agreements
with Croatia and Macedonia, respectively, and its President made a joint declaration
with the President of the Presidency of Bosnia and Herzegovina. In those
instruments there are provisions which appear to recognize in different terms the
continued personality of the Federal Republic of Yugoslavia. I would be interested
to read the comments ofboth Parties on those provisions."
In response to the first question of the Vice-President of the Court, Serbia and Montenegro
respectfully submits the following answer:
1. The issue which is central for the present case is whether the FRY continued the
international legal personality of the SFRY (the former Yugoslavia). This is the issue
which is disputed between the parties, and this is the issue regarding which the United
Nations General Assembly, the Security Council, and the Secretary-General took a
position. The Respondent submits that this position was a clear deniai of continuity.
2. It is well-known that, during the debate between 1992 and 2000, the FRY asserted
continuity with the former Yugoslavia (the SFRY), while this was consistently and
emphatically denied by ali other successor States, Bosnia and Herzegovina included.
3. But it should also be noted that parallel with this debate, other claims of a more political
nature relying on interpretations of history were also advanced and debated. Serbia
insisted that it bad existed as a sovereign State before the formation of the Kingdom of
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Serbs, Croats and Slovenes after the First World War on 1 December 1918 (which became
later the Kingdom of Yugoslavia on 6 January 1929, and after the Second World War,
became the Federal People's Republic of Yugoslavia). Montenegro also insisted on its
continued statehood throughout history, dating to the Princedom and later Kingdom of
Montenegro. Croatia, Bosnia and Herzegovina, and Macedonia also submitted a
perception of continued statehood going back to various points in history. This perception
is mirrored, for example, in the Preamble of the present Constitution of Croatia which
stresses, inter alia,
"The millenary identity of the Croatian nation and the continuity of its
statehood, confirmed by the course of its entire historical experience within
different forms of states and by the preservation and growth of the idea of a
national state, founded on the historical right of the Croatian nation to full
sovereignty, manifested in: the formation of Croatian principalities in the
seventh century, ... "
4. During the years of civil wars over the past decade, these perceptions of continued
statehood had been contested and denied by others, but after the armed conflicts ended,
one of the gestures towards reconciliation was the mutual recognition of these perceptions
of history. This is what is mirrored in the agreements which are the subject matter of the
question of the Vice-President of the Court. This is the context - the only context - in
which mutual recognition of continuity makes any sense - and this is what was confirmed
in the submitted documents.
5. Itis true that the FRY had repeatedly tried to achieve recognition of a different, much
more specifie and legally more relevant continuity, but this remained without success. The
FRY claimed that it continued the personality of the former Yugoslavia. In this context,
one can, of course, only speak of one continuity, only one state can conceivably continue
the personality of a predecessor State. The documents referred to above do not accept this
continuity. They accept mutual historie aspirations to continued statehood, and this is
what follows from all three documents.
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6. Mention has to be made that these documents were used and abused by politicians and
joumalists purporting to justify diametrically opposed conclusions. These various
interpretations, fitted to various purposes, cannot, however, change the texts which were
actually adopted.
The agreement with Macedonia
7. In the Communiquéon the signing of the Agreement on the regulation of relations and
promotion of cooperation between the Republic of Macedonia and the Federal Republic
ofYugoslavia (UN doc. S/1996/291 of 17 April1996- Annex) it is stated:
"In the light of the historical facts, both States mutually respect their state
continuity (the Republic of Macedonia respects the state continuity of
Yugoslavia, and the Federal Republic of Yugoslavia respects the state
continuity of the Republic ofMacedonia)".
8. The same mutual recognition of perceptions of history and historie continuity is reflected
in Article 4 of the Agreement on the Regulation of Relations and Promotion of
Cooperation between the Republic of Macedonia and the Federal Republic of Yugoslavia
of8 Aprill996, (UN doc. S/1996/291 of 17 April1996- Appendix), which states:
"In the light of the fact that Serbia and Montenegro had existed as
independent States before the creation of Yugoslavia, and in view of the fact
that Yugoslavia continued the international legal personality of these States,
the Republic of Macedonia respects the state continuity of the Federal
Republic ofYugoslavia.
In the light of the fact that during the National Liberation War and at the
session of the Anti-Fascist Assembly of the National Liberation of
Macedonia, the Macedonian people decided to organize the Republic of
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Macedonia as aState and to join the Yugoslav Federation, and in view of the
fact that in the 1991 referendum the Macedonian people decided to organize
the Republic of Macedonia as a sovereign and independent State and
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appreciating the fact that this has been carried out in a peaceful manner, the
Federal Republic of Yugoslavia respects the state continuity of the Republic
of Macedonia."
9. It is important to point out that Article 4 does not speak of the continuity of the FRY
(composed of Serbia and Montenegro, and until 2003 officially called the Federal
Republic of Yugoslavia), but of two historie States, one Serbia, the other Montenegro,
both ofwhich claimed uninterrupted continued statehood. It is stated that Yugoslavia (the
Kingdom of Yugoslavia) continued the international legal personality of "these States" (in
plural) and this is the background on which, and the context in which Macedonia respects
the state continuity of the FRY. Paragraph 2 of Article 4 shows a reciprocal gesture, the
FR Y is also recognizing Macedonian claims to historie continuity starting with the
National Liberation war, again maintaining continuity within the Yugoslav Federation,
and accepting that "organizing Macedonia as a sovereign and independent State" is
compatible with the idea of "the state continuity of the Republic of Macedonia" - the
same wording as the one used regarding "the state continuity" of the FRY in paragraph 1.
1O. Itis therefore obvious that Article 4 does not deal at ali with the issue of continuity
between the FRY and the former Yugoslavia. It deals with mutual recognition of historie
aspirationsto continued statehood of Serbia, of Montenegro, and of Macedonia.
11. What is also important, and what underscores that the continuities described in Article 4
are a different matter, the Communiqué on the signing of the Agreement on the regulation
of relations and promotion of cooperation between the Republic of Macedonia and the
Federal Republic of Yugoslavia (UN doc. S/1996/291 of 17 Apri11996- Annex) stresses
that the Agreement is not a departure from, but in conformity with, inter alia, Security
Council resolution 777 (1992) and General Assembly resolution 47/1 (1992) which
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rejected the claim of the FRY to continue international legal personality of the former
Yugoslavia.
The Agreement with Croatia
12. The Agreement with Croatia reflects exactly the same approach. According to Article 5:
"Proceeding from the historical fact that Serbia and Montenegro existed as
independent States before the creation of Yugoslavia, and bearing in mind
the fact that Yugoslavia has continued the international legal personality of
these States, the Republic of Croatia notes the existence of the State
continuity of the Federal Republic ofYugoslavia.
Proceeding from the historical fact of the existence of the various forms of
statal organization of Croatia in the past, the Federal Republic of Yugoslavia
notes the existence of the continuity of the Croatian statehood."
13. This is, again, a recognition of historie pretensions to continued statehood of three states,
Serbia, Montenegro, and Croatia, and the recognition of continuity is mutual. Just as in
the case with the Agreement with Macedonia, mutual recognition is an added clear
indication that the issue is not that of continuing the legal personality of the former
Yugoslavia, because no one has ever alleged, or could have alleged, that Macedonia or
Croatia would have claimed such continuity. The claim which is mutually recognized is
the claim to historie continued statehood.
The Joint Declaration of the President of Bosnia and Herzegovina and of the President of Serbia
14. The very same is true of the Joint Declaration, which was signed by Mr. Alija
Izetbegovié, President of Bosnia and Herzegovina and Mr. Slobodan Milosevié, then
president of Serbia, rather than of the FRY- thus without formai powers to represent the
FRY. In this Joint Declaration it is stated:
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"The Federal Republic of Yugoslavia will respect the integrity of Bosnia and
Hercegovina in accordance with the Dayton Agreement which affirmed the
continuity of various forms of statal organization of Bosnia and Hercegovina
that the peoples of Bosnia and Hercegovina had during their history.
Bosnia and Hercegovina accepts the state continuity of the Federal Republic
of Yugoslavia. "
15. Again, there is the mutual recognition of historie State continuity, rather than recognition
of the claim of the FRY to continue the international legal personality of the former
Yugoslavia.
16. It follows unequivocally from the text of all three documents that they do not represent an
explicit or implicit recognition of the claim of the FRY to continue the international legal
personality of the former Yugoslavia. They represent instead a mutual recognition of
historie claims to continued statehood of Serbia, of Montenegro, of Croatia, of
Macedonia, and of "various forms of statal organization of Bosnia and Herzegovina".
17. Serbia and Montenegro would also like to submit, that even if these documents had a
different content, they could not possibly either grant or deny the claim of the FRY to
continued membership in the United Nations, since this was within the competences of
the General Assembly and the Security Council. Moreover, Bosnia and Herzegovina (as
weil as other successor States of the former Yugoslavia) has consistently and emphatically
denied the continuity of the FRY with the former Yugoslavia both before and after the
issuance of the Joint Declaration and the conclusion of the two agreements referred to in
the Vice-President's question. 1
1Among many examples of statements of Bosnia and Herzegovina emphasizing that the FRY did not continue the
personality of the former Yugoslavia, and was not a Member of the United Nations between 1992 and 2000, see,
e.g., United Nations documents: A/C.5/49/49 (8 December 1994), A/49/853 - S/19951147 (17 February 1995),
A/50/656- S/1995/876 (19 October 1995), A/51/564- S/1996/885 (1 April 1996), E.CN.4/1998!171 (22 April
1998), S/1999/120 (5 February 1999), S/1999/209 (26 February 1999), S/1999/639 (3 June 1999), A/54/1.62 (8
December 1999).
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II.
On 9 May 2006, the Vice-President of the Court posed the following question to Serbia and
Montenegro:
"In the opinion of Serbia and Montenegro was the Federal Republic of Yugoslavia a
Member of the United Nations in the period between 27 April 1992, when it came
into existence, and 19 September 1992, when Security Council resolution 777 was
adopted followed, of course, by General Resolution 47/1 of 22 September 1992?"
In response to the second question of the Vice-President of the Court, Serbia and Montenegro
respectfully submits the following answer:
1. In the opinion of Serbia and Montenegro, the Federal Republic of Yugoslavia was not a
Member of the United Nations before 1 November 2000 - thus it was not a member
during the period between 27 April 1992 and 19/22 September 1992 either.
2. No successor State of the former Yugoslavia remained or became automatically a
Member of the United Nations. Ail successor States claimed membership in the United
Nations, but on various grounds, and no successor State became a Member before it was
accepted as such. Bosnia and Herzegovina, Croatia, Macedonia and Slovenia applied for
membership, and became Members when their application was accepted. The FRY
claimed continuity, and could have become a Member on that ground, had continuity been
accepted. ltwas not accepted. As Serbia and Montenegro stated in the second round of
oral pleadings, when the FRY came into being it submitted a claim. It claimed continuity
with the former Yugoslavia, and on this ground, it claimed membership in the United
Nations, membership in other international organisations, and party status in the treaties to
which the former Yugoslavia was a party. This claim was, however, not accepted. lt was
not accepted for a limited time period either. There is no evidence supporting such
acceptance. The competent organs of the United Nations - the Security Council and the
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General Assembly - took a position on this demand after about five months, when they
rejected the claim of the FRY.
3. There is no rule in the Charter or anywhere else, which would say or imply that, if aState
is claiming that it is a Member of the United Nations, then it is a Member of the
Organization until the claim is examined and rejected. It is true - and probably
understandable - that before a position was taken, various United Nations officiais treated
the representatives of the FRY and the documents submitted by representatives of the
FRY in a hesitant and somewhat inconsistent manner. The representatives of the FRY
occupied the premises of the UN mission of the former Yugoslavia, and it was a matter of
practical necessity to communicate with representatives of a country which was a
participant of the conflict to which the United Nations authorities devoted a considerable
attention. This yielded sorne contradictory steps of United Nations officiais. But this
certainly cannot make aState a Member of the United Nations.
4. As a matter offact, before the question reached the agenda of the Security Council and the
General Assembly, a preliminary position was already taken by the Security Council, only
a month after the FRY came into being and after it submitted its claim to continuity. In its
resolution 757 (1992), adopted on 30 May 1992, the Security Council actually addressed
the issue whether the FRY did or did not continue membership status of the former
Yugoslavia, and answered it in the negative. It is stated in the preamble of Security
Council resolution 757:
"Noting that the claim of the Federal Republic of Yugoslavia (Serbia and
Montenegro) to continue automatically the membership of the former
Socialist Federal Republic of Yugoslavia in the United Nations has not
generally been accepted,"
5. A year later, on 29 December 1993, the General Assembly opted to qualify the position of
the FRY which had yielded sorne controversies. This qualification was mindful of the fact
that the FRY was not a Member. Thus, the term used is not "membership" not even "de
8r·:.-~("
facto membership", but "de facto working status". In paragraph 19 of resolution 48/88 of
29 December 1993 the General Assembly:
"Reaffirms its resolution 47/1 of 22 September 1992, and urges Member
States and the Secretariat in fulfilling the spirit of that resolution, to end the
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de facto working statusSerbia and Montenegro."
6. It is Serbia and Montenegro's considered position that the FRY was not a Member of the
United Nations for any period of time before it became a new Member on 1 November
2000.
12 May 2006
(~rbiaan~o~
Prof.~janovié
2UN doc. A/RES/48/88 of20 December 1993, para. 19.
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Letter from the Agent of Serbia and Montenegro transmitting to the Court his Government's answers to the questions put by the Vice-President