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[p.7]
THE COURT,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 24 April 2001, the Federal Republic of Yugoslavia (hereinafter
referred to as the "FRY") filed in the Registry of the Court an Application
dated 23 April 2001 instituting proceedings, whereby, referring to Article
61 of the Statute of the Court, it requested the Court to revise the
Judgment delivered by it on 11 July 1996 in the case concerning Application
of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (I.C.J.
Reports 1996 (II), p. 595).
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
forthwith communicated by the Registrar of the Court to Bosnia and
Herzegovina; and in accordance with paragraph 3 of that Article, all States
entitled to appear before the Court were notified of the Application.
3. By letters of 26 April 2001, the Registrar informed the Parties that the
Court had fixed 30 September 2001 as the time-limit for the filing by Bosnia
and Herzegovina of its written observations on the admissibility of the
Application contemplated by Article 99, paragraph 2, of the Rules of Court.
4. Pursuant to Article 53, paragraph 1, of the Rules of Court, a request by
the Republic of Croatia for the pleadings and annexed documents to be made
available to it was granted on 6 August 2001 after the views of the Parties
had been ascertained.
5. By a letter of 2 August 2001, the Agent of Bosnia and Herzegovina
requested the Court to extend to 1 December 2001 the time-limit for the
filing by his Government of its written observations. By a letter of 17
August 2001, the Agent of the FRY informed the Court that his Government did
not object to this time-limit being thus extended. By letters of 21 August
2001, the First Secretary of the Court in charge of Information Matters,
acting Registrar, informed the Parties that the President had extended to 3
December 2001 the time-limit for the filing by Bosnia and Herzegovina of its
written observations.
6. On 3 December 2001, within the time-limit thus extended, Bosnia and
Herzegovina filed in the Registry its written observations on the
admissibility of the FRY's Application.
7. By a letter of 26 December 2001, the Agent of the FRY, referring to
Article 99, paragraph 3, of the Rules of Court, requested the Court to
afford the Parties a further opportunity of presenting their views in
written form on the admissibility of the Application. By a letter of 21
January 2002, the Agent of Bosnia and Herzegovina informed the Court that
his Government was not in favour of a second round of written pleadings. [p
10]
By a letter of 1 March 2002, the Registrar informed the Parties of the
Court's decision that a second round of written pleadings was not necessary.
8. Since the Court included upon the Bench no judge of the nationality of
either of the Parties, each Party proceeded to exercise the right conferred
by Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit
in the case; the FRY chose Mr. Vojin Dimitrijeviae and Bosnia and
Herzegovina chose Mr. Sead Hodziae. By a letter dated 9 April 2002 and
received in the Registry on 6 May 2002, Mr. Hodziae informed the Court that
he wished to resign from his duties; Bosnia and Herzegovina designated Mr.
Ahmed Mahiou to sit in his stead.
9. After ascertaining the views of the Parties, the Court decided, pursuant
to Article 53, paragraph 2, of the Rules of Court, that copies of the
written observations of Bosnia and Herzegovina and the documents annexed
thereto should be made accessible to the public on the opening of the oral
proceedings.
10. Public hearings were held on 4, 5, 6 and 7 November 2002, during which
the Court heard the oral arguments and replies of:
For the FRY: Mr. Tibor Varady,
Mr. Vladimir Djeriae,
Mr. Andreas Zimmermann.
For Bosnia and Herzegovina: Mr. Sakib Softiae,
Mr. Phon van den Biesen,
Mr. Alain Pellet.
11. In its Application, the following requests were made by the FRY:
"For the reasons advanced above the Federal Republic of Yugoslavia requests
the Court to adjudge and declare that:
there is a new fact of such a character as to lay the case open to revision
under Article 61 of the Statute of the Court.
Furthermore, Applicant is respectfully asking the Court to suspend
proceedings regarding the merits of the case until a decision on this
Application is rendered."
12. In its written observations, the following submission was made by Bosnia
and Herzegovina:
"In consideration of the foregoing, the Government of Bosnia and Herzegovina
requests the Court to adjudge and declare that the Application for Revision
of the Judgment of 11 July 1996, submitted by the Federal Republic of
Yugoslavia on 23 April 2001, is not admissible."
13. At the oral proceedings, the following final submissions were presented
by the Parties:
On behalf of the Government of the FRY,
at the hearing of 6 November 2002:
"For the reasons advanced in its Application of 23 April 2001 and in its
pleadings during the oral proceedings held from 4 to 7 November 2002, the
Federal Republic of Yugoslavia respectfully requests the Court to adjudge
and declare:
-- that there are newly discovered facts of such a character as to lay the
11 July 1996 Judgment open to revision under Article 61 of the Statute of
the Court; and [p 11]
-- that the Application for Revision of the Federal Republic of Yugoslavia
is therefore admissible."
On behalf of the Government of Bosnia and Herzegovina,
at the hearing of 7 November 2002:
"In consideration of all that has been submitted by the representatives of
Bosnia and Herzegovina in the written and oral stages of these proceedings,
Bosnia and Herzegovina requests the Court to adjudge and declare that the
Application for Revision of the Judgment of 11 July 1996, submitted by the
Federal Republic of Yugoslavia on 23 April 2001, is not admissible."
***
14. In its Application for revision of the 1996 Judgment the FRY relies on
Article 61 of the Statute, which provides as follows:
"1. An application for revision of a judgment may be made only when it is
based upon the discovery of some fact of such a nature as to be a decisive
factor, which fact was, when the judgment was given, unknown to the Court
and also to the party claiming revision, always provided that such ignorance
was not due to negligence.
2. The proceedings for revision shall be opened by a judgment of the Court
expressly recording the existence of the new fact, recognizing that it has
such a character as to lay the case open to revision, and declaring the
application admissible on this ground.
3. The Court may require previous compliance with the terms of the judgment
before it admits proceedings in revision.
4. The application for revision must be made at latest within six months of
the discovery of the new fact.
5. No application for revision may be made after the lapse of ten years from
the date of the judgment."
15. Article 61 provides for revision proceedings to open with a judgment of
the Court declaring the application admissible on the grounds contemplated
by the Statute; Article 99 of the Rules makes express provision for
proceedings on the merits if, in its first judgment, the Court has declared
the application admissible.
Thus the Statute and the Rules of Court foresee a "two-stage procedure"
(Application for Revision and Interpretation of the Judgment of 24 February
1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab
Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports
1985, p. 197, para. 8). The first stage of the procedure for a request for
revision of the Court's judgment should be "limited to the question of
admissibility of that request" (ibid., para. 10).
16. Therefore, at this stage the Court's decision is limited to the question
whether the request satisfies the conditions contemplated by the Statute.
Under Article 61 of the Statute, these conditions are as follows:
(a) the application should be based upon the "discovery" of a "fact"; [p 12]
(b) the fact, the discovery of which is relied on, must be "of such a nature
as to be a decisive factor";
(c) the fact should have been "unknown" to the Court and to the party
claiming revision when the judgment was given;
(d) ignorance of this fact must not be "due to negligence"; and
(e) the application for revision must be "made at latest within six months
of the discovery of the new fact" and before ten years have elapsed from the
date of the judgment.
17. The Court observes that an application for revision is admissible only
if each of the conditions laid down in Article 61 is satisfied. If any one
of them is not met, the application must be dismissed.
The Court will begin by ascertaining whether there is here a "fact" which,
although in existence at the date of its Judgment of 11 July 1996, was at
that time unknown both to the FRY and to the Court.
**
18. In this regard, in its Application for revision of the Court's Judgment
of 11 July 1996, the FRY contended the following:
"The admission of the FRY to the United Nations as a new Member on 1
November 2000 is certainly a new fact. It can also be demonstrated, and the
Applicant submits, that this new fact is of such a nature as to be a
decisive factor regarding the question of jurisdiction ratione personae over
the FRY.
After the FRY was admitted as a new Member on 1 November 2000, dilemmas
concerning its standing have been resolved, and it has become an unequivocal
fact that the FRY did not continue the personality of the SFRY, was not a
Member of the United Nations before 1 November 2000, was not a State party
to the Statute, and was not a State party to the Genocide Convention . . .
The admission of the FRY to the United Nations as a new Member clears
ambiguities and sheds a different light on the issue of the membership of
the FRY in the United Nations, in the Statute and in the Genocide
Convention."
The FRY further stated that, according to the official listing of 8 December
2000, "Yugoslavia" had been listed as a Member of the United Nations since 1
November 2000 and that "the explanatory note makes it clear that this is a
reference to the FRY". The FRY concluded that "this is a new fact of such a
nature to be a decisive factor, unknown to both the Court and to the
Applicant at the time when the Judgment of 11 July 1996 was given".
19. In its oral pleadings, the FRY did not invoke its admission to the
United Nations in November 2000 as a decisive "new fact", within the meaning
of Article 61 of the Statute, capable of founding its request for revision
of the 1996 Judgment. The FRY claimed that this admission "as [p 13] a new
Member" as well as the Legal Counsel's letter of 8 December 2000 inviting
it, according to the FRY, "to take treaty actions if it wished to become a
party to treaties to which the former Yugoslavia was a party" were
"events which . . . revealed the following two decisive facts:
(1) the FRY was not a party to the Statute at the time of the Judgment; and
(2) the FRY did not remain bound by Article IX of the Genocide Convention
continuing the personality of the former Yugoslavia".
It is on the basis of these two "facts" that, in its oral argument, the FRY
ultimately founded its request for revision.
20. The FRY further stressed at the hearings that these "newly discovered
facts" had not occurred subsequently to the Judgment of 1996. In this
regard, the FRY states that "the FRY never argued or contemplated that the
newly discovered fact would or could have a retroactive effect".
21. For its part, Bosnia and Herzegovina maintains the following:
"there is no 'new fact' capable of 'laying the case open' to revision
pursuant to Article 61, paragraph 2, of the Court's Statute: neither the
admission of Yugoslavia to the United Nations which the applicant State
presents as a fact of this kind, or in any event as being the source of such
a fact, nor its allegedly new situation vis-a-vis the Genocide Convention .
. . constitute facts of that kind".
22. In short, Bosnia and Herzegovina submits that what the FRY refers to as
"facts" are "the consequences . . . of a fact, which is and can only be the
admission of Yugoslavia to the United Nations in 2000". It states that
"Article 61 of the Statute of the Court . . . requires that the fact was
'when the judgment was given, unknown to the Court and also to the party
claiming revision'" and that "this implies that . . . the fact in question
actually did exist 'when the judgment was given'". According to Bosnia and
Herzegovina, the FRY "is regarding its own change of position (and the
ensuing consequences) as a new fact". Bosnia and Herzegovina concludes that
this "'new fact' . . . is subsequent to the Judgment whose revision is
sought". It notes that the alleged new fact can have "no retroactive or
retrospective effect".
23. Bosnia and Herzegovina further adds that the FRY is merely relying on a
"new 'perception' of the facts of 1993 in the light of those which took
place in 2000 and 2001". Bosnia and Herzegovina submits that a "perception"
is not a fact and that "in any event, the 'perception' of Yugoslavia's new
situation with respect both to the United Nations and [p 14] to the 1948
[Genocide] Convention, occurred subsequently to the Judgment under
challenge".
**
24. Before turning to the examination of the "facts" which the FRY has
relied upon in its pleadings in order to justify the revision of the 1996
Judgment, the Court will recount the background to the case with a view to
providing the context for the contentions of the FRY.
*
25. In the early 1990s the SFRY, made up of Bosnia and Herzegovina, Croatia,
Macedonia, Montenegro, Serbia and Slovenia, began to break up. On 25 June
1991 Croatia and Slovenia both declared independence, followed by Macedonia
on 17 September 1991 and Bosnia and Herzegovina on 6 March 1992. On 22 May
1992, Bosnia and Herzegovina, Croatia and Slovenia were admitted as Members
to the United Nations; as was the former Yugoslav Republic of Macedonia on 8
April 1993.
26. On 27 April 1992 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" adopted a declaration, stating in pertinent
parts:
"The representatives of the people of the Republic of Serbia and the
Republic of Montenegro,
Expressing the will of the citizens of their respective Republics to stay in
the common state of Yugoslavia,
. . . .
Wish to state in this Declaration their views on the basic, immediate and
lasting objectives of the policy of their common state, and on its relations
with the former Yugoslav Republics.
. . . .
1. 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 commitments that the SFR of
Yugoslavia assumed internationally,
. . . .
Remaining bound by all obligations to international organizations and
institutions whose member it is . . ." (United Nations doc. A/46/915, Ann.
II.) [p 15]
27. An official Note of the same date from the Permanent Mission of
Yugoslavia to the United Nations, addressed to the Secretary-General of the
United Nations, stated inter alia that:
"The Assembly of the Socialist Federal Republic of Yugoslavia, at its
session held on 27 April 1992, promulgated the Constitution of the Federal
Republic of Yugoslavia. Under the Constitution, on the basis of the
continuing personality of Yugoslavia and the legitimate decisions by Serbia
and Montenegro to continue to live together in Yugoslavia, the Socialist
Federal Republic of Yugoslavia is transformed into the Federal Republic of
Yugoslavia, consisting of the Republic of Serbia and the Republic of
Montenegro.
Strictly respecting the continuity of the international personality of
Yugoslavia, the Federal Republic of Yugoslavia shall continue to fulfil all
the rights conferred to, and obligations assumed by, the Socialist Federal
Republic of Yugoslavia in international relations, including its membership
in all international organizations and participation in international
treaties ratified or acceded to by Yugoslavia." (United Nations doc.
A/46/915, Ann. I.)
28. On 19 September 1992, the Security Council adopted resolution 777 (1992)
which read as follows:
"The Security Council,
Reaffirming its resolution 713 (1991) of 25 September 1991 and all
subsequent relevant resolutions,
Considering that the state formerly known as the Socialist Federal Republic
of Yugoslavia has ceased to exist,
Recalling in particular resolution 757 (1992) which notes that 'the claim by
the Federal Republic of Yugoslavia (Serbia and Montenegro) to continue
automatically the membership of the former Socialist Federal Republic of
Yugoslavia in the United Nations has not been generally accepted',
1. Considers that the Federal Republic of Yugoslavia (Serbia and Montenegro)
cannot continue automatically the membership of the former Socialist Federal
Republic of Yugoslavia in the United Nations; and therefore recommends to
the General Assembly that it decide that the Federal Republic of Yugoslavia
(Serbia and Montenegro) should apply for membership in the United Nations
and that it shall not participate in the work of the General Assembly;
2. Decides to consider the matter again before the end of the [p 16] main
part of the forty-seventh session of the General Assembly." (United Nations
doc. S/RES/777.)
29. On 22 September 1992 the General Assembly adopted resolution 47/1,
according to which:
"The General Assembly,
Having received the recommendation of the Security Council of 19 September
1992 that the Federal Republic of Yugoslavia (Serbia and Montenegro) should
apply for membership in the United Nations and that it shall not participate
in the work of the General Assembly,
1. Considers that the Federal Republic of Yugoslavia (Serbia and Montenegro)
cannot continue automatically the membership of the former Socialist Federal
Republic of Yugoslavia in the United Nations; and therefore decides that the
Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for
membership in the United Nations and that it shall not participate in the
work of the General Assembly;
2. Takes note of the intention of the Security Council to consider the
matter again before the end of the main part of the forty-seventh session of
the General Assembly." (United Nations doc. A/RES/47/1.)
30. On 25 September 1992, the Permanent Representatives of Bosnia and
Herzegovina and Croatia addressed a letter to the Secretary-General, in
which, with reference to Security Council resolution 777 (1992) and General
Assembly resolution 47/1, they stated their understanding as follows: "at
this moment, there is no doubt that the Socialist Federal Republic of
Yugoslavia is not a member of the United Nations any more. At the same time,
the Federal Republic of Yugoslavia is clearly not yet a member." They
concluded that "the flag flying in front of the United Nations and the
name-plaque bearing the name 'Yugoslavia' do not represent anything or
anybody any more" and "kindly requested that [the Secretary-General] provide
a legal explanatory statement concerning the questions raised" (United
Nations doc. A/47/474).
31. In response, on 29 September 1992, the Under-Secretary-General and Legal
Counsel of the United Nations addressed a letter to the Permanent
Representatives of Bosnia-Herzegovina and Croatia, in which he stated that
the "considered view of the United Nations Secretariat regarding the
practical consequences of the adoption by the General Assembly of resolution
47/1" was as follows:
"While the General Assembly has stated unequivocally that the Federal
Republic of Yugoslavia (Serbia and Montenegro) cannot automatically continue
the membership of the former Socialist Fed-[p 17]eral Republic of Yugoslavia
in the United Nations and that the Federal Republic of Yugoslavia (Serbia
and Montenegro) should apply for membership in the United Nations, the only
practical consequence that the resolution draws is that the Federal Republic
of Yugoslavia (Serbia and Montenegro) shall not participate in the work of
the General Assembly. It is clear, therefore, that representatives of the
Federal Republic of Yugoslavia (Serbia and Montenegro) can no longer
participate in the work of the General Assembly, its subsidiary organs, nor
conferences and meetings convened by it.
On the other hand, the resolution neither terminates nor suspends
Yugoslavia's membership in the Organization. Consequently, the seat and
nameplate remain as before, but in Assembly bodies representatives of the
Federal Republic of Yugoslavia (Serbia and Montenegro) cannot sit behind the
sign 'Yugoslavia'. Yugoslav missions at United Nations Headquarters and
offices may continue to function and may receive and circulate documents. At
Headquarters, the Secretariat will continue to fly the flag of the old
Yugoslavia as it is the last flag of Yugoslavia used by the Secretariat. The
resolution does not take away the right of Yugoslavia to participate in the
work of organs other than Assembly bodies. The admission to the United
Nations of a new Yugoslavia under Article 4 of the Charter will terminate
the situation created by resolution 47/1." (United Nations doc. A/47/485;
emphasis added in the original.)
32. On 29 April 1993, the General Assembly, upon the recommendation
contained in Security Council resolution 821 (1993) (couched in terms
similar to those of Security Council resolution 777 (1992)), adopted
resolution 47/229 in which it decided that "the Federal Republic of
Yugoslavia (Serbia and Montenegro) [should] not participate in the work of
the Economic and Social Council".
*
33. The Court recalls that between the adoption of General Assembly
resolution 47/1 of 22 September 1992 and the admission of the FRY to the
United Nations on 1 November 2000, the legal position of the FRY remained
complex, as shown by the following examples.
34. By a resolution of 20 December 1993 relating to the situation in Bosnia
and Herzegovina, the General Assembly reaffirmed its resolution 47/1 of 22
September 1992, and urged "Member States and the Secretariat in fulfilling
the spirit of that resolution to end the de facto working status of the
Federal Republic of Yugoslavia (Serbia and Montenegro)" (United Nations doc.
A/RES/48/88, para. 19). [p 18]
35. During this period, referring to the terms of Security Council
resolution 777 (1992) and General Assembly resolution 47/1, Bosnia and
Herzegovina, Croatia, Slovenia and the former Yugoslav Republic of Macedonia
consistently objected to the FRY's claim that it continued the State and the
international legal and political personality of the former SFRY. In
particular, they disagreed that the FRY was a Member of the United Nations
and a party to the multilateral treaties to which the former Yugoslavia was
a party.
36. It was in this context that, following the suggestion made by the
Representative of Bosnia and Herzegovina at the 18th and 19th Meetings of
States Parties to the International Covenant on Civil and Political Rights,
and a vote thereon, the FRY was excluded from participating in the said
meetings (United Nations doc. CCPR/SP/SR 18, p. 3; United Nations doc.
CCPR/SP/SR 19, p. 8). However, in explanation of his decision to vote in
favour of exclusion at the 18th meeting held on 16 March 1994, the
representative of Belgium, speaking on behalf of the States members of the
European Union that were parties to the Convention, and supported by the
representatives of Australia and Iceland, the latter on behalf of the Nordic
countries, "said that the vote of the delegations concerned was without
prejudice to their position regarding the status of the Federal Republic of
Yugoslavia (Serbia and Montenegro) vis-à-vis the Covenant or the other
international obligations of the former Socialist Federal Republic of
Yugoslavia". Those delegations "were of the view that the Federal Republic
of Yugoslavia (Serbia and Montenegro) should abide by the obligations
arising under the Covenant" (United Nations doc. CCPR/SP/SR.18).
37. In response to these protests, the FRY, claiming that it continued the
international legal personality of the former Yugoslavia, at all times
maintained the view that its membership in the United Nations and its status
as a State party to international treaties were not affected by the adoption
of Security Council resolution 777 (1992) and General Assembly resolution
47/1.
38. According to the English text of the "Summary of Practice of the
Secretary-General as Depositary of Multilateral Treaties", prepared by the
Treaty Section of the Office of Legal Affairs, which was published at the
beginning of 1996,
"89. A special difficulty arose upon the adoption of resolution 47/1 of 22
September 1992, by which the General Assembly considered that the Federal
Republic of Yugoslavia (Serbia and Montenegro) could not continue
automatically the membership of the former Socialist Federal Republic of
Yugoslavia in the United Nations and therefore decided that the Federal
Republic of Yugoslavia (Serbia and Montenegro) should apply for membership
in the United Nations and that it should not participate in the work [p 19]
of the General Assembly; the resolution was interpreted by the Secretariat
to apply to subsidiary organs of the General Assembly, as well as
conferences and meetings convened by it. Consequently, the Federal Republic
of Yugoslavia (Serbia and Montenegro), was not invited to participate in
conferences convened by the Assembly (e.g., the World Conference on Human
Rights). However, this was without effect on the capacity of the Federal
Republic of Yugoslavia (Serbia and Montenegro) to participate in treaties,
including those deposited with the Secretary-General.
. . . .
297. In the absence of provisions which set specific conditions for
succession or which otherwise restrict succession, the Secretary-General is
guided by the participation clauses of the treaties as well as by the
general principles governing the participation of States (see chap. V). The
independence of the new successor State, which then exercises its
sovereignty on its territory, is of course without effect as concerns the
treaty rights and obligations of the predecessor State as concerns its own
(remaining) territory. Thus, after the separation of parts of the territory
of the Union of Soviet Socialist Republics (which became independent
States), the Union of Soviet Socialist Republics (as the Russian Federation)
continued to exist as a predecessor State, and all its treaty rights and
obligations continued in force in respect of its territory. The same applies
to the Federal Republic of Yugoslavia (Serbia and Montenegro), which remains
as the predecessor State upon separation of parts of the territory of the
former Yugoslavia. General Assembly resolution 47/1 of 22 September 1992, to
the effect that the Federal Republic of Yugoslavia could not automatically
continue the membership of the former Yugoslavia in the United Nations (see
para. 89 above), was adopted within the framework of the United Nations and
the context of the Charter of the United Nations, and not as an indication
that the Federal Republic of Yugoslavia was not to be considered a
predecessor State." (United Nations doc. ST/LEG/8.)
39. Subsequently, the Secretariat published an errata to the English text of
the said "Summary of Practice". With regard to paragraph 89 of the English
text, the last sentence was thus replaced by the following:
"However, this is without effect on the capacity of the Federal Republic of
Yugoslavia (Serbia and Montenegro) to participate in treaties deposited with
the Secretary-General subject to any decision taken by a competent organ
representing the international [p 20] community of States as a whole or by a
competent treaty organ with regard to a particular treaty or convention."
(United Nations doc. ST/LEG/7/Rev. 1.)
With regard to paragraph 297 of the English text of the Summary, in response
to objections raised by certain States (see United Nations docs.
A/50/910-S/1996/231, A/51/95-S/1996/251, A/50/928-S/1996/263,
A/50/930-S/1996/260), the Secretariat deleted all reference to the FRY and
changed the text to read as follows:
"In the absence of provisions which set specific conditions for succession
or which otherwise restrict succession, the Secretary-General is guided by
the participation clauses of the treaties as well as by the general
principles governing the participation of States (see chap. V). The
independence of the new successor State, which then exercises its
sovereignty on its territory, is without effect on the treaty rights and
obligations of the predecessor State in its own (remaining) territory. Thus,
after the separation of parts of the territory of the Union of Soviet
Socialist Republics (which became independent States), the Russian
Federation continued all treaty rights and obligations of the predecessor
State." (United Nations doc. ST/LEG/7/Rev. 1.)
The changes set out in the above-mentioned errata, including those relating
to paragraphs 89 and 297, were directly incorporated into the French text of
the Summary published in 1997.
40. The General Framework Agreement for Peace in Bosnia and Herzegovina was
initialled in Dayton, Ohio, on 21 November 1995 and signed by the Parties in
Paris on 14 December 1995. By the terms of this Agreement, the FRY and
Bosnia and Herzegovina agreed to "recognize each other as sovereign
independent States within their international borders" and to "comply fully
with the provisions concerning human rights set forth in Chapter One of the
Agreement at Annex 6". This Annex, entitled "Agreement on Human Rights" had
appended to it a list of treaties, including the Genocide Convention (United
Nations doc. A/50/790-S/1995/999).
41. The FRY deposited a declaration recognizing the compulsory jurisdiction
of the International Court of Justice, dated 25 April 1999, with the
Secretary-General. On 30 April 1999 the Secretary-General issued a
Depositary Notification informing Member States that the "above action was
effected on 26 April 1999" (C.N.311.1999.TREATIES-1).
42. On 27 May 1999, the Permanent Representatives of Bosnia and Herzegovina,
Croatia, Slovenia and the former Yugoslav Republic of Macedonia sent a
letter to the Secretary-General, questioning the validity of the deposit of
the declaration recognizing the compulsory jurisdiction [p 21] of the
International Court of Justice by the FRY (United Nations doc. A/53/992).
43. On 3 June 1999, the Permanent Representatives of Bosnia and Herzegovina,
Croatia, Slovenia and the former Yugoslav Republic of Macedonia addressed a
letter to the President of the Security Council, stating:
"We wish that this letter be understood as our permanent objection to the
groundless assertion of the Federal Republic of Yugoslavia (Serbia and
Montenegro), which has also been repudiated by the international community,
that it represents the continuity of our common predecessor, and thereby
continues to enjoy its status in international organizations and treaties."
(United Nations doc. S/1999/639.)
44. In the United Nations publication of 2002 entitled "Multilateral
treaties deposited with the Secretary-General; Status as at 31 December
2001", the situation during the period after the adoption of Security
Council resolution 777 (1992) of 19 September 1992 is characterized as
follows:
"General Assembly resolution 47/1 did not specifically address the question
of the status of either the former Yugoslavia or of Yugoslavia with regard
to multilateral treaties that were deposited with the Secretary-General. The
Legal Counsel took the view in this regard that the Secretary-General was
not in a position, as depositary, either to reject or to disregard the claim
of Yugoslavia that it continued the legal personality of the former
Yugoslavia, absent any decision to the contrary either by a competent organ
of the United Nations directing him in the exercise of his depositary
functions, or by a competent treaty organ created by a treaty, or by the
contracting States to a treaty directing him in the exercise of his
depositary functions with regard to that particular treaty, or by a
competent organ representative of the international community of States as a
whole on the general issue of continuity and discontinuity of statehood to
which the claim of Yugoslavia gave rise.
Consistent with the claim of Yugoslavia to continue the international legal
personality of the former Yugoslavia, the Secretary-General, as depositary,
continued to list treaty actions that had been performed by the former
Yugoslavia in status lists in the present publication, using for that
purpose the short-form name 'Yugoslavia', which was used at that time to
refer to the former Yugoslavia. Between 27 April 1992 and 1 November 2000,
Yugoslavia undertook numerous treaty actions with respect to treaties
deposited with the Secretary-General. Consistent with the claim of
Yugoslavia to [p 22] continue the international legal personality of the
former Yugoslavia, these treaty actions were also listed in status lists
against the name 'Yugoslavia'. Accordingly, the Secretary-General, as
depositary, did not make any differentiation in the present publication
between treaty actions that were performed by the former Yugoslavia and
those that were performed by Yugoslavia, both categories of treaty actions
being listed against the name 'Yugoslavia'." (United Nations doc.
ST/LEG/SER.E/20.)
*
45. The Court considers that to the above account of the FRY's special
situation that existed between September 1992 and November 2000, should be
added certain details concerning the United Nations membership dues and
rates of assessment set for the FRY during that same period. In General
Assembly resolution 43/223 of 21 December 1988 ("Scale of assessments for
the apportionment of the expenses of the United Nations"), the rate of
assessment for the SFRY for 1989, 1990 and 1991 was fixed at 0.46 per cent.
The rate of assessment for the SFRY for 1992, 1993 and 1994 as established
in 1991 was to be 0.42 per cent (General Assembly resolution 46/221 of 20
December 1991).
46. On 23 December 1992, the General Assembly, on the recommendation of the
Fifth Committee, decided to adopt the recommendations of the Committee on
Contributions with respect to the rates of assessment of Member States
contained in paragraphs 51 to 64 of the report of the Committee on
Contributions (United Nations doc. A/47/11). Paragraph 63 of this report
stipulated that the rates of assessment for Bosnia and Herzegovina, Croatia
and Slovenia for 1993 and 1994 should be 0.04, 0.13 and 0.09 per cent
respectively. It was further stated that "for 1992, these States should pay
seven twelfths of these rates, and their actual assessment should be
deducted from that of Yugoslavia for that year" (para. 64 of the Report). By
resolution 48/223 of 23 December 1993, the General Assembly determined that
the rate of assessment of the former Yugoslav Republic of Macedonia,
admitted to membership in the United Nations in 1993, should be 0.02 per
cent and that its 1993 assessment should be deducted from that of the FRY.
The General Assembly also decided that the rate of assessment of the former
Yugoslav Republic of Macedonia should be deducted from that of the FRY for
1994.
47. As a consequence of the above-mentioned decisions regarding the rate of
assessment for Bosnia and Herzegovina, Croatia, Slovenia and the former
Yugoslav Republic of Macedonia, the rate of assessments for the contribution
of the FRY to the regular budget of the United Nations for the years 1995,
1996 and 1997 was determined to be 0.11, 0.1025 and 0.10 per cent
respectively (General Assembly resolution 49/19 B of 23 December 1994). By
General Assembly resolution 52/15 A, the rate of assess-[p 23]ment of the
FRY for the years 1998, 1999 and 2000 was determined to be 0.060, 0.034 and
0.026 per cent respectively.
48. On 23 December 2000, the General Assembly by its resolution 55/5E
decided that "the rate of assessment for the Federal Republic of Yugoslavia,
admitted to membership of the United Nations on 1 November 2000, should be
0.026 per cent for the year 2000". The resolution specified that this
assessment should be taken into account as "miscellaneous income in
accordance with regulation 5.2 (c) of the Financial Regulations and Rules of
the United Nations", dealing with the "contributions . . . of new Member
States".
*
49. Following national elections on 24 September 2000, Mr. Kostunica was
elected President of the FRY. On 27 October 2000, President Kostunica sent a
letter to the Secretary-General requesting admission of the FRY to
membership in the United Nations, in the following terms:
"In the wake of fundamental democratic changes that took place in the
Federal Republic of Yugoslavia, in the capacity of President, I have the
honour to request the admission of the Federal Republic of Yugoslavia to
membership in the United Nations in light of the implementation of Security
Council resolution 777 (1992)." (United Nations doc. A/55/528S/2000/1043.)
50. On 31 October 2000, the Security Council (pursuant to the
recommendations made in the Report of the Committee on the Admission of New
Members concerning the application of the FRY for admission in the United
Nations), "recommended to the General Assembly that the Federal Republic of
Yugoslavia be admitted to membership in the United Nations" (United Nations
doc. S/RES/1326). On 1 November 2000, the General Assembly adopted
resolution 55/12, which reads as follows:
"The General Assembly,
Having received the recommendation of the Security Council of 31 October
2000 that the Federal Republic of Yugoslavia should be admitted to
membership in the United Nations,
Having considered the application for membership of the Federal Republic of
Yugoslavia,
Decides to admit the Federal Republic of Yugoslavia to membership in the
United Nations."
The admission of the FRY to membership of the United Nations on 1 November
2000 put an end to Yugoslavia's sui generis position within the United
Nations. The President of the General Assembly, on behalf of the Assembly,
"welcomed the Federal Republic of Yugoslavia as a Mem-[p 24]ber of the
United Nations". Other speakers emphasized the fact that the FRY was
entering the United Nations family on equal terms with the other Republics
of the former SFRY. The representative of France who had introduced the
draft resolution stated in particular that "a hiatus of eight years [was]
about to end" (see United Nations doc. A/55/PV.48, pp. 26-34).
51. On 8 December 2000, the Under-Secretary-General, the Legal Counsel, sent
a letter to the Minister for Foreign Affairs of the FRY, reading in
pertinent parts:
"Following [the admission of the Federal Republic of Yugoslavia to the
United Nations on 1 November 2000], a review was undertaken of the
multilateral treaties deposited with the Secretary-General, in relation to
many of which the former Socialist Federal Republic of Yugoslavia (the SFRY)
and the Federal Republic of Yugoslavia (FRY) had undertaken a range of
treaty actions . . .
It is the Legal Counsel's view that the Federal Republic of Yugoslavia
should now undertake treaty actions, as appropriate, in relation to the
treaties concerned, if its intention is to assume the relevant legal rights
and obligations as a successor State." (Letter by the Legal Counsel of the
United Nations (Application of Yugoslavia, Ann. 27).)
52. At the beginning of March 2001, a notification of accession to the
Genocide Convention by the FRY was deposited with the Secretary-General of
the United Nations. The notification of accession by Yugoslavia was dated 6
March 2001 and read as follows:
"WHEREAS the Federal Republic of Yugoslavia had declared on April 27, 1992,
that '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 commitments that the
Socialist Federal Republic of Yugoslavia assumed internationally',
WHEREAS this contention of continuity also included the assumption that the
Federal Republic of Yugoslavia continued the membership in the United
Nations of the Socialist Federal Republic of Yugoslavia,
WHEREAS the contention and assumption of continuity was eventually not
accepted by the United Nations nor was it accepted by other successor States
of the Socialist Federal Republic of Yugoslavia, and thus it produced no
effects,
FURTHERMORE, this situation became finally clarified on Novem-[p 25]ber 1,
2000, when the Federal Republic of Yugoslavia was accepted as a new member
State of the United Nations,
NOW it has been established that the Federal Republic of Yugoslavia has not
succeeded on April 27, 1992, or on any later date, to treaty membership,
rights and obligations of the Socialist Federal Republic of Yugoslavia in
the Convention on the Prevention and Punishment of the Crime of Genocide on
the assumption of continued membership in the United Nations and continued
state, international legal and political personality of the Socialist
Federal Republic of Yugoslavia,
THEREFORE, I am submitting on behalf of the Government of the Federal
Republic of Yugoslavia this notification of accession to the Convention on
the Prevention and Punishment of the Crime of Genocide, in pursuance of
Article XI of the said Convention and with the following reservation on
Article IX of the said Convention: 'The Federal Republic of Yugoslavia does
not consider itself bound by Article IX of the Convention on the Prevention
and Punishment of the Crime of Genocide and, therefore, before any dispute
to which the Federal Republic of Yugoslavia is a party may be validly
submitted to the jurisdiction of the International Court of Justice under
this Article, the specific and explicit consent of the FRY is required in
each case.'"
On 15 March 2001, the Secretary-General, acting in his capacity as
depositary, issued a Depositary Notification (C.N.164.2001.TREATIES-1),
indicating that the accession of the FRY to the 1948 Convention on the
Prevention and Punishment of the Crime of Genocide "was effected on 12 March
2001" and that the Convention would "enter into force for the FRY on 10 June
2001".
53. The Government of Croatia, on 18 May 2001, and the Presidency of Bosnia
and Herzegovina, on 27 December 2001, objected to the deposit of the
instrument of accession by the FRY, on the basis that as one of the
successor States to the former SFRY, it was already bound by the Genocide
Convention. The two States also objected to the FRY's reservation. In this
regard Croatia stated that it was "incompatible with the object and purpose
of the Convention" whereas Bosnia and Herzegovina stated that it was made
several years after 27 April 1992, "the day on which the FRY became bound to
the Genocide Convention in its entirety". On 2 April 2002, the Government of
Sweden informed the Secretary-General that it considered the FRY to be one
of the successor States to the SFRY "and, as such, a Party to the Convention
from the date of entering into force of the Convention for the Socialist
Federal Republic of Yugoslavia". Therefore, the Government of Sweden
considered the FRY's reservation "as having been made too late and thus null
and void" (Multilateral Treaties deposited with the Secretary-General at
[p 26] http://untreaty.un.org). To date there has been no further reaction
from States parties to the Genocide Convention.
*
54. The Court also considers that, in order to complete the contextual
background, it is necessary to recall the proceedings leading up to the
delivery of the Judgment of 11 July 1996, as well as the passages in that
Judgment relevant to the present proceedings.
55. On 20 March 1993, the Government of Bosnia and Herzegovina filed in the
Registry of the Court an Application instituting proceedings against the FRY
in respect of a dispute concerning alleged violations of the Convention on
the Prevention and Punishment of the Crime of Genocide. The Application
invoked Article IX of the Genocide Convention as the basis of the
jurisdiction of the Court.
56. On 20 March 1993, immediately after the filing of its Application,
Bosnia and Herzegovina submitted a request for the indication of provisional
measures under Article 41 of the Statute. On 1 April 1993, Yugoslavia
submitted written observations on Bosnia and Herzegovina's request for
provisional measures in which it, in turn, recommended the Court to order
the application of provisional measures to Bosnia and Herzegovina.
57. By an Order dated 8 April 1993, the Court indicated certain provisional
measures with a view to the protection of rights under the Genocide
Convention. In this Order the Court, referring to Security Council
resolution 777 (1992), General Assembly resolution 47/1 and the Legal
Counsel's letter of 29 September 1992, stated inter alia the following:
"18. Whereas, while the solution adopted is not free from legal
difficulties, the question whether or not Yugoslavia is a Member of the
United Nations and as such a party to the Statute of the Court is one which
the Court does not need to determine definitively at the present stage of
the proceedings;
19. Whereas Article 35 of the Statute, after providing that the Court shall
be open to the parties to the Statute, continues:
'2. The conditions under which the Court shall be open to other States
shall, subject to the special provisions contained in treaties in force, be
laid down by the Security Council, but in no case shall such conditions
place the parties in a position of inequality before the Court';
whereas the Court therefore considers that proceedings may validly be
instituted by a State against a State which is a party to such a special
provision in a treaty in force, but is not party to the Statute, and
independently of the conditions laid down by the Security [p 27] Council in
its resolution 9 of 1946 (cf. S.S. "Wimbledon", 1923, P.C.I.J., Series A,
No. 1, p. 6); whereas a compromissory clause in a multilateral convention,
such as Article IX of the Genocide Convention relied on by
Bosnia-Herzegovina in the present case, could, in the view of the Court, be
regarded prima facie as a special provision contained in a treaty in force;
whereas accordingly if Bosnia-Herzegovina and Yugoslavia are both parties to
the Genocide Convention, disputes to which Article IX applies are in any
event prima facie within the jurisdiction ratione personae of the Court."
(Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional Measures,
Order of 8 April 1993, I.C.J. Reports 1993, p. 14.)
The Court further referred to the fact that "both Parties to the . . . case
corresponded to parts of the territory of the former Socialist Federal
Republic of Yugoslavia" (I.C.J. Reports 1993, p. 15, para. 21), which signed
the Genocide Convention and deposited its instrument of ratification without
reservation. The Court also referred to the Declaration of 27 April 1992
adopted on behalf of the Federal Republic of Yugoslavia at the time of its
proclamation as well as to the official Note of the same date from the
Permanent Mission of Yugoslavia to the United Nations, addressed to the
Secretary-General; and to the Notice of Succession transmitted by Bosnia and
Herzegovina on 29 December 1992 to the Secretary-General of the United
Nations, the depositary of the Genocide Convention. The Court then concluded
as follows:
"Whereas Article IX of the Genocide Convention, to which both
Bosnia-Herzegovina and Yugoslavia are parties, thus appears to the Court to
afford a basis on which the jurisdiction of the Court might be founded to
the extent that the subject-matter of the dispute relates to 'the
interpretation, application or fulfilment' of the Convention, including
disputes 'relating to the responsibility of a State for genocide or for any
of the other acts enumerated in article III' of the Convention." (I.C.J.
Reports 1993, p. 16, para. 26.)
58. On 27 July 1993, Bosnia and Herzegovina submitted a new request for the
indication of provisional measures. On 10 August 1993, Yugoslavia also
submitted a request for the indication of provisional measures; and, on 10
and 23 August 1993, it filed written observations on Bosnia and
Herzegovina's new request.
59. By an Order dated 13 September 1993, the Court reaffirmed the measures
indicated in its Order of 8 April 1993 and declared that those measures
should be immediately and effectively implemented. In that Order of 13
September 1993 the Court confirmed that it had prima facie jurisdiction in
the case on the basis of Article IX of the Genocide Convention (Application
of the Convention on the Prevention and Punishment [p 28] of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional Measures, Order
of 13 September 1993, I.C.J. Reports 1993, p. 338, para. 25; p. 342, para.
36).
60. On 15 April 1994 Bosnia and Herzegovina filed its Memorial. Within the
time-limit fixed for the filing of the Counter-Memorial, the FRY, referring
to Article 79, paragraph 1, of the Rules of Court, raised preliminary
objections concerning, respectively, the admissibility of the Application
and the jurisdiction of the Court to entertain the case.
61. The Court rendered its Judgment on the preliminary objections raised by
the FRY on 11 July 1996. In the reasoning of the Judgment, the Court came to
the conclusion that both Parties were bound by the Convention when the
Application was filed.
62. With regard to the FRY, the Court stated the following:
"The proceedings instituted before the Court are between two States whose
territories are located within the former Socialist Federal Republic of
Yugoslavia. That Republic signed the Genocide Convention on 11 December 1948
and deposited its instrument of ratification, without reservation, on 29
August 1950. At the time of the proclamation of the Federal Republic of
Yugoslavia, on 27 April 1992, a formal declaration was adopted on its behalf
to the effect that:
'The Federal Republic of Yugoslavia, continuing the State, international
legal nd political personality of the Socialist Federal Republic of
Yugoslavia, shall strictly abide by all the commitments that the Socialist
Federal Republic of Yugoslavia assumed internationally.'
This intention thus expressed by Yugoslavia to remain bound by the
international treaties to which the former Yugoslavia was party was
confirmed in an official Note of 27 April 1992 from the Permanent Mission of
Yugoslavia to the United Nations, addressed to the Secretary-General. The
Court observes, furthermore, that it has not been contested that Yugoslavia
was party to the Genocide Convention. Thus, Yugoslavia was bound by the
provisions of the Convention on the date of the filing of the Application in
the present case, namely, on 20 March 1993." (Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports
1996 (II), p. 610, para. 17.)
With regard to Bosnia and Herzegovina, the Court, referring to the Notice of
Succession of 29 December 1992 and the Secretary-General's Depositary
Notification of 18 March 1993, noted that Bosnia and Herzegovina became a
Member of the United Nations on 22 May 1992 and from that date, by virtue of
Article XI of the Genocide Convention, "Bosnia and Herzegovina could thus
become a party to the Convention" [p 29] (I.C.J Reports 1996 (II), p. 611,
para. 19). The Court further observed that
"Bosnia and Herzegovina could become a party to the Convention through the
mechanism of State succession. Moreover, the Secretary-General of the United
Nations considered that this had been the case, and the Court took note of
this in its Order of 8 April 1993 (I.C.J. Reports 1993, p. 16, para. 25)."
(I.C.J Reports 1996 (II), p. 611, para. 20.)
Referring to its Advisory Opinion of 28 May 1951 concerning Reservations to
the Convention on the Prevention and Punishment of the Crime of Genocide,
the Court likewise noted that
"'The object and purpose of the Genocide Convention imply that it was the
intention of the General Assembly and of the States which adopted it that as
many States as possible should participate. The complete exclusion from the
Convention of one or more States would not only restrict the scope of its
application, but would detract from the authority of the moral and
humanitarian principles which are its basis.' (I.C.J. Reports 1951, p. 24.)"
(I.C.J. Reports 1996 (II), p. 612, para. 22.)
The Court concluded as follows:
"Whether Bosnia and Herzegovina automatically became party to the Genocide
Convention on the date of its accession to independence on 6 March 1992, or
whether it became a party as a result -- retroactive or not -- of its Notice
of Succession of 29 December 1992, at all events it was a party to it on the
date of the filing of its Application on 20 March 1993." (I.C.J. Reports
1996 (II), p. 612, para. 23.)
63. In the operative part of its Judgment the Court, having rejected the
preliminary objections raised by the FRY, found that "on the basis of
Article IX of the Convention on the Prevention and Punishment of the Crime
of Genocide, it has jurisdiction to adjudicate upon the dispute" and that
"the Application filed by the Republic of Bosnia and Herzegovina on 20 March
1993 is admissible".
*
64. Following the 1996 Judgment on the preliminary objections, the FRY filed
a Counter-Memorial on 22 July 1997, in which it submitted counter-claims. By
an Order dated 17 December 1997, the Court found that those counter-claims
came within the jurisdiction of the Court and as such were admissible.
Bosnia and Herzegovina and Yugoslavia filed their Reply and Rejoinder on 23
April 1998 and 22 February 1999 respectively. By a letter dated 20 April
2001 and received in the Registry [p 30] on 23 April 2001, the Agent of the
FRY informed the Court that his Government intended to withdraw its
counter-claims. No objection having been raised by Bosnia and Herzegovina in
this regard, the President of the Court, by his Order of 10 September 2001,
placed on the record the withdrawal by the FRY of the counter-claims
submitted by it in its Counter-Memorial. On 4 May 2001, the FRY submitted to
the Court a document entitled "Initiative to the Court to reconsider ex
officio jurisdiction over Yugoslavia".
**
65. The Court will now examine whether the FRY relies on facts which fall
within the terms of Article 61 of the Statute.
66. As recalled above (see paragraph 19), the FRY claims that the facts
which existed at the time of the 1996 Judgment and upon the discovery of
which its request for revision of that Judgment is based "are that the FRY
was not a party to the Statute, and that it did not remain bound by the
Genocide Convention continuing the personality of the former Yugoslavia". It
argues that these "facts" were "revealed" by its admission to the United
Nations on 1 November 2000 and by the Legal Counsel's letter of 8 December
2000.
67. The Court would begin by observing that, under the terms of Article 61,
paragraph 1, of the Statute, an application for revision of a judgment may
be made only when it is "based upon the discovery" of some fact which, "when
the judgment was given", was unknown. These are the characteristics which
the "new" fact referred to in paragraph 2 of that Article must possess. Thus
both paragraphs refer to a fact existing at the time when the judgment was
given and discovered subsequently. A fact which occurs several years after a
judgment has been given is not a "new" fact within the meaning of Article
61; this remains the case irrespective of the legal consequences that such a
fact may have.
68. In the present case, the admission of the FRY to the United Nations
occurred on 1 November 2000, well after the 1996 Judgment. The Court
concludes accordingly, that that admission cannot be regarded as a new fact
within the meaning of Article 61 capable of founding a request for revision
of that Judgment.
69. In the final version of its argument, the FRY claims that its admission
to the United Nations and the Legal Counsel's letter of 8 December 2000
simply "revealed" two facts which had existed in 1996 but had been unknown
at the time: that it was not then a party to the Statute of the Court and
that it was not bound by the Genocide Convention.
In advancing this argument, the FRY does not rely on facts that existed in
1996. In reality, it bases its Application for revision on the legal
consequences which it seeks to draw from facts subsequent to the Judgment
which it is asking to have revised. Those consequences, even sup-[p
31]posing them to be established, cannot be regarded as facts within the
meaning of Article 61. the FRY's argument cannot accordingly be upheld.
70. Furthermore the Court notes that the admission of the FRY to membership
of the United Nations took place more than four years after the Judgment
which it is seeking to have revised. At the time when that Judgment was
given, the situation obtaining was that created by General Assembly
resolution 47/1. In this regard the Court observes that the difficulties
which arose regarding the FRY's status between the adoption of that
resolution and its admission to the United Nations on 1 November 2000
resulted from the fact that, although the FRY's claim to continue the
international legal personality of the Former Yugoslavia was not "generally
accepted" (see paragraph 28 above), the precise consequences of this
situation were determined on a case-by-case basis (for example,
non-participation in the work of the General Assembly and ECOSOC and in the
meetings of States parties to the International Covenant on Civil and
Political Rights, etc.).
Resolution 47/1 did not inter alia affect the FRY's right to appear before
the Court or to be a party to a dispute before the Court under the
conditions laid down by the Statute. Nor did it affect the position of the
FRY in relation to the Genocide Convention. To "terminate the situation
created by resolution 47/1", the FRY had to submit a request for admission
to the United Nations as had been done by the other Republics composing the
SFRY. All these elements were known to the Court and to the FRY at the time
when the Judgment was given. Nevertheless, what remained unknown in July
1996 was if and when the FRY would apply for membership in the United
Nations and if and when that application would be accepted, thus terminating
the situation created by General Assembly resolution 47/1.
71. The Court wishes to emphasize that General Assembly resolution 55/12 of
1 November 2000 cannot have changed retroactively the sui generis position
which the FRY found itself in vis-a-vis the United Nations over the period
1992 to 2000, or its position in relation to the Statute of the Court and
the Genocide Convention. Furthermore, the letter of the Legal Counsel of the
United Nations dated 8 December 2000, cannot have affected the FRY's
position in relation to treaties.
The Court also observes that, in any event, the said letter did not contain
an invitation to the FRY to accede to the relevant conventions, but rather
to "undertake treaty actions, as appropriate, . . . as a successor State".
72. It follows from the foregoing that it has not been established that the
request of the FRY is based upon the discovery of "some fact" which was
"when the judgment was given, unknown to the Court and also to the party
claiming revision". The Court therefore concludes that one of the conditions
for the admissibility of an application for revision prescribed by paragraph
1 of Article 61 of the Statute has not been satisfied. [p 32]
73. Article 61 of the Statute lays down further requirements which an
application for revision of a judgment must satisfy in order to be
admissible. However, the Court recalls that "once it is established that the
request for revision fails to meet one of the conditions for admissibility,
the Court is not required to go further and investigate whether the other
conditions are fulfilled" (Application for Revision and Interpretation of
the Judgment of 24 February 1982 in the Case concerning the Continental
Shelf (Tunisia/Libyan Arab Jamahiriya) Tunisia v. Libyan Arab Jamahiriya,
Judgment, I.C.J. Reports, 1985, p. 207, para. 29). In the present case, the
Court has concluded that no facts within the meaning of Article 61 of the
Statute have been discovered since 1996. The Court therefore does not need
to address the issue of whether the other requirements of Article 61 of the
Statute for the admissibility of the FRY's Application have been satisfied.
74. The FRY's Application for revision must accordingly be rejected.
***
75. For these reasons,
THE COURT,
By ten votes to three,
Finds that the Application submitted by the Federal Republic of Yugoslavia
for revision, under Article 61 of the Statute of the Court, of the Judgment
given by the Court on 11 July 1996, is inadmissible.
IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva,
Herczegh, Koroma, Parra-Aranguren, Al-Khasawneh, Buergenthal, Elaraby; Judge
ad hoc Mahiou;
AGAINST: Judges Vereshchetin, Rezek; Judge ad hoc Dimitrijeviae.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this third day of February, two thousand and three,
in three copies, one of which will be placed in the archives of the Court
and the others transmitted to the Government of the Federal Republic of
Yugoslavia and the Government of Bosnia and Herzegovina, respectively.
(Signed) Gilbert GUILLAUME,
President.
(Signed) Philippe COUVREUR,
Registrar.
Judge KOROMA appends a separate opinion to the Judgment of the [p 33] Court;
Judge VERESHCHETIN appends a dissenting opinion to the Judgment of the
Court; Judge REZEK appends a declaration to the Judgment of the Court; Judge
ad hoc DIMITRIJEVIAE appends a dissenting opinion to the Judgment of the
Court; Judge ad hoc MAHIOU appends a separate opinion to the Judgment of the
Court.
(Initialled) G. G.
(Initialled) Ph. C.
[p 34]
SEPARATE OPINION OF JUDGE KOROMA
1. It is rare that an application for revision of a judgment comes before
the Court, hence the jurisprudence in this area is rather scant. See,
however, Application for Revision and Interpretation of the Judgment of 24
February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan
Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya) (Judgment, I.C.J.
Reports 1985). It is therefore important that whilst endeavouring to uphold
the integrity of its decisions, the Court should clarify the meaning of
Article 61 of the Statute, governing the request for revision, as well as
its jurisprudence in this area on those few occasions when the opportunity
arises.
2. The revision procedure stipulated in Article 61 raises the question as to
what the Court ought to do in the light of fresh evidence or fresh arguments
which have been discovered or have emerged since its decision in the
specific case. In other words, the Court is called upon to reconsider a
matter which it has already decided in the light of fresh facts or
arguments, if these prove of such importance or of such decisive nature
that, had the Court known of them, it would
have reached a different decision or a different conclusion. Revision
presupposes that the fact must have existed prior to the Judgment, even
though discovered subsequently, and that the lack of knowledge was not due
to negligence. The revision procedure is thus essentially about newly
discovered facts or arguments and not a legal challenge, as such, to the
conclusion reached earlier by the Court based on the facts as then known,
although the outcome of the challenge may have an effect on the Judgment.
3. In its 1996 Judgment, the Court found that it had jurisdiction in the
case of the Application presented by Bosnia and Herzegovina on the basis [p
35] of Article IX of the Convention on the Prevention and Punishment of the
Crime of Genocide (the “Genocide Convention”). The Court’s
finding was based on the fact that the Federal Republic of Yugoslavia (FRY)
had on 22 April 1992 formally declared that it remained bound by those
treaties to which the former Socialist Federal Republic of Yugoslavia (SFRY)
was party. The Court also found that the FRY had not denied that it was a
party to the Genocide Convention. Thus, the Court reached the conclusion
that the FRY was a party to that Convention on 23 March 1993, the date on
which Bosnia and Herzegovina filed its Application. The Court similarly
found that Bosnia and Herzegovina was also a party to the Genocide
Convention by virtue of the deposit of a notice of succession to the
Convention with the United Nations Secretary-General on 29 December 1992.
4. In its Application, Yugoslavia contends that the decision of the General
Assembly on
1 November 2000 to admit the FRY as a new Member of the United Nations is a
“new fact” and that what occurred on 1 November 2000 is a fact of such a
nature “as to be a decisive factor regarding the question of jurisdiction
ratione personae over the FRY” (Application of Yugoslavia, p. 38, para. 23).
Yugoslavia maintains that:
“Since membership in the United Nations, combined with the status of a party
to the Statute and to the Genocide Convention . . . represent the only basis
on which jurisdiction over the FRY was assumed . . . the disappearance of
this assumption and the proof of the disappearance of this assumption are
clearly of such a nature to be a decisive factor regarding jurisdiction over
the FRY -- and require a revision of the Judgment of 11 July 1996.”
(Application of Yugoslavia, p. 38, para. 23.)
5. Yugoslavia also submits that “jurisdiction over the FRY could not have
been asserted without United Nations membership and without the FRY being a
State party to the Statute and to the Genocide Convention at the time of the
11 July 1996 Judgment” (ibid.). It also points out:
“Since the 11 July 1996 Judgment based jurisdiction on one ground (Article
IX of the Genocide Convention), new facts which show that the FRY was not
and could not have been bound by Article IX of this Convention, are
decisive.” (Ibid.) Yugoslavia concludes that the assumption of its continued
membership in the United Nations and its continued status as party to the
Statute of the Court and to the Genocide Convention was critical, because
there was no other assumption which could justify jurisdiction over it
ratione personae (ibid., p. 50, para. 32).
6. Yugoslavia also notes that “[a]ccording to Article XI of the Genocide
Convention, it is only open to Members of the United Nations, or to
non-Member States to which an invitation to sign or accede has been
addressed by the General Assembly.” (Ibid., p. 8, para. 3 (c).) Yugoslavia
therefore states that it could not have become a party to the Genocide
Convention without being a Member of the United Nations, or without [p 36]
having received a special invitation of the General Assembly (ibid., p. 48,
para. 31).
7. For its part, Bosnia and Herzegovina claims that whatever might have been
the legal status of Yugoslavia at the time the Judgment was made, that State
was, and still is, bound by its own statements. In this regard, Bosnia and
Herzegovina refers to “a number of unambiguous declarations by which
Yugoslavia admitted that it was a Member of the United Nations and a Party
to the Genocide Convention” (Written Observations of Bosnia and Herzegovina,
p. 35, para. 4.9). Furthermore, Bosnia and Herzegovina argues that the Court
and Bosnia and Herzegovina itself have placed reliance on Yugoslavia‘s
assertions and that Yugoslavia is therefore estopped from taking up an
inconsistent position vis-à-vis its previous declarations.
8. According to the jurisprudence, and as stated above, the discovery of new
facts is a strict condition on the availability of revision. This condition
is also fundamental to the decision on the
Application, whether the admission of the FRY to membership of the United
Nations which took place on 1 November 2000 is a newly discovered fact
within the meaning of Article 61 of the Statute, which fact must have
existed, but been unknown, at the time of the Judgment.
9. It is against this background that I have difficulty with some
conclusions reached in the Judgment. One such difficulty is that the Court,
without defining what in its opinion will be considered a “new” fact within
the meaning of Article 61, stated that if the fact occurred several years
after a judgment, this is not a new fact within the meaning of Article 61,
irrespective of its legal consequences. Although this as a position of law
is correct as far as it goes, but the issue the Court has to determine
involves the question as to whether or not Yugoslavia was a Member of the
United Nations before 1 November 2000. The Court itself had earlier
acknowledged in its Judgment in 1996, that the FRY’s status regarding United
Nations membership was not free from “legal difficulties”. Accordingly, to
dismiss the FRY’s admission to membership of the United Nations in November
2000 and its legal consequences as simply a fact occurring several years
after the Judgment is a distortion and too superficial. That General
Assembly resolution 55/12 of 1 November 2000 led to the FRY’s membership of
the United Nations, is not only a fact or an event but this fact or event
had certain consequences. It is to be recalled that the Court relied for the
basis of its Judgment in 1996 on the FRY’s declaration of 22 April 1992 that
it remained bound by those treaties to which the former Socialist Federal
Republic of Yugoslavia had been a party, and the Court assumed for this
purpose that the FRY was a Member of the United Nations. Unless such
assumption was made, the FRY’s declaration alone should not and could not
legally have been sufficient to serve as a basis for recognition of the FRY
as a party to the Genocide Convention -- the sole basis on which the Court
founded its [p 37] jurisdiction. Accordingly, the FRY’s admission to
membership of the United Nations on 1 November 2000 suggests that it was not
a Member of the United Nations in 1996 and thus was not a party to the
Genocide Convention; therefore, the basis of the Court’s jurisdiction no
longer exists. Unfortunately, the Court chose not to address these critical
issues, which were raised in the Application and in the hearings, but rather
stated that the consequences which the FRY sought to draw from the facts
which occurred in 2000 even if established, “cannot be regarded as facts
within the meaning of Article 61” (paragraph 69). Far from the consequences
not being established, it was because of the FRY’s admission to membership
of the United Nations that it acceded to the Genocide Convention in March
2001, after having received a letter from the Legal Counsel of the United
Nations asking it to undertake any necessary treaty formalities in its
capacity as successor State. In the face of all this, the Court felt able to
conclude that “it has not been established that the request of the FRY is
based upon the discovery of ‘some fact’ which was ‘when the Judgment was
given, unknown to the Court and also to the Party claiming revision’”
(paragraph 72), and did so notwithstanding the fact that the Court had
earlier noted that the difficulties which arose regarding the FRY’s status
between the adoption of General Assembly resolution 47/1 and its admission
to the United Nations on 1 November 2000 resulted from the fact that, while
the FRY’s claim to continue the international legal personality of the
former Yugoslavia was not “generally accepted”, the precise consequences of
this situation were determined on a case-by-case basis. The Court went on to
say that: “To ‘terminate the situation created by resolution 47/1’, the FRY
had to submit a request for admission to the United Nations as had been done
by the other Republics composing the SFRY.” (Paragraph 70; emphasis added.)
The Court stated that all these elements had been known to it but that what
it had not known in July 1996 was when the FRY would apply for membership in
the United Nations and when that application would be accepted, thus
terminating the situation created by General Assembly resolution 47/1. To
say the least, not only is there an inconsistency in this position, but
the legal implication is inescapable and seriously affects the present
Judgment. In the first place, the Court is not in a position to say, as it
has implied, that had the FRY submitted a request for membership this would
have been automatically approved, for as the Court has said, the
consequences of the FRY’s situation were determined on a case-by-case basis;
further, given the climate which then existed, there could have been no
certainty about the outcome. The Security Council in resolution 777 (1992)
had considered that: [p 38]
“the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue
automatically the membership of the former Socialist Federal Republic of
Yugoslavia in the United Nations, and therefore recommends to the General
Assembly that it decide that the Federal Republic of Yugoslavia (Serbia and
Montenegro) should apply for membership in the United Nations . . .”.
The proposition that the outcome of such application was known is highly
debatable, to say the least. On the other hand, it is incontestable that, as
the FRY stated in its Application, “[t]he admission of the FRY to the United
Nations as a new Member clears ambiguities and sheds a different light on
the issue of the membership of the FRY in the United Nations, in the Statute
and in the Genocide Convention.” (Application of Yugoslavia, p. 38, para.
23.)
10. Granted that the issues raised by this case are not easy of solution,
but I fear that the answers provided beg the question and cannot withstand
scrutiny. In this regard the appraisal of Article 61 and its application to
this case leave much to be desired, hence my doubts and misgivings as far as
the Judgment is concerned.
11. In my view, when an application for revision is submitted under Article
61 and where fresh facts have emerged and are of such importance as to
warrant revising the earlier decision or conclusion, the Court should be
willing to carry out such a procedure. Such an application is not to be
regarded as impugning the Court’s earlier legal decision as such, as that
decision was based on the facts as then known. I am of the view that the
admission of the FRY to membership of the
United Nations in November 2000 does have legal implications for the
Judgment reached by the
Court on this matter in July 1996.
12. In my opinion, the Court’s jurisdiction could have been founded on more
legally secure grounds.
(Signed) Abdul G. KOROMA.
[p 39]
DISSENTING OPINION OF JUDGE VERESHCHETIN
The assumption of Yugoslavia’s membership in the United Nations was a
necessary prerequisite for the Court’s finding on its jurisdiction (paras.
1-8) -- The discovery of the wrongfulness of an assumption can constitute a
ground for revision (paras. 9-12) -- The facts of Yugoslavia’s
non-membership in the United Nations and non-participation in the Genocide
Convention were unknown to Yugoslavia and the Court at the relevant time
(paras. 13-21) --Yugoslavia has not acted negligently (paras. 22-27) --
Conclusions (para. 28).
1. The assumption of Yugoslavia’s membership in the United Nations as a
necessary prerequisite for the Court’s finding on its jurisdiction
1. The Court has expressly stated in its 1996 Judgment that “its only
jurisdiction to entertain the case is on the basis of Article IX of the
Genocide Convention” (Application of the Convention on the Prevention and
Punishment of the Crime of Genocide, Preliminary Objections, Judgment,
I.C.J. Reports 1996 (II), p. 621, para. 41). The Court has also found that
it “is unable to uphold any of the additional bases of jurisdiction invoked
by the Applicant . . .” (ibid).
What is strongly disputed by the Parties in the current proceedings relating
to the admissibility of the revision of the above Judgment ¾ is whether or
not the assumption of Yugoslavia’s membership of the United Nations at the
time of the 1996 Judgment was necessary, and therefore “of such a nature as
to be a decisive factor” (within the meaning of Art. 61, para. 1, of the
Statute), for the Court to have reached the conclusion on its jurisdiction.
Yugoslavia contends that the issue of Yugoslavia’s status in the United
Nations was of fundamental importance for the
reasoning of the Court relating to the admissibility of the revision, since
“the Judgment of 11 July 1996 was solely, and could solely [be] based on the
assumption that the FRY was a Member of the United Nations, a party to the
Court’s Statute and also bound by Article IX of the Genocide Convention as
being identical with the former Yugoslavia ¾ an assumption that has,
however, ex post facto, proved to be erroneous and which thus has given rise
to [the] Application for Revision” (CR 2002/42, p. 42, para. 4.42
(Zimmermann)).[p 40]
Conversely, Bosnia and Herzegovina maintains that
“Yugoslavia’s status in relation to the United Nations . . . is totally
irrelevant when it comes to considering the Application for revision and
cannot be ‘of such a nature as to be a decisive factor’ in the reasoning of
the Court, which in 1996 did not venture onto that ground” (CR 2002/41, pp.
42, 43, para. 34 (Pellet)).
Thus, the Parties are in complete disagreement as to whether or not the
Court could have arrived at the same finding on the basis of the same ratio
decedendi had it known, as an established fact, that Yugoslavia was not a
Member of the United Nations at the time the Judgment on jurisdiction was
given. Evidently, the answer to this question is bound to clarify the role
of the “discovery” of a new fact alleged by Yugoslavia. Therefore, I am of
the view that this question, directly related to the first condition for the
admissibility of revision set out in Article 61 of the Statute, should have
been the starting point of the Court’s reasoning in the present Judgment.
2. The Genocide Convention, on which the Court has chosen to solely base its
jurisdiction, both ratione personae and ratione materiae, specifically
provides that it is open only to Members of the United Nations and to
non-member States that have received an invitation from the General Assembly
of the United Nations (Art. XI of the Convention). Evidently, this essential
precondition for participation in the Convention had to be met by both
Parties to the case to provide the Court with jurisdiction on the basis of
the Convention. However, in view of the circumstances of the case and of the
arguments advanced by the Parties, the Court, at the previous stages of its
proceedings, while dealing specifically with the issue of Bosnia and
Herzegovina’s membership in the United Nations, did not undertake a similar
examination of and slid over the subject of Yugoslavia’s standing in the
United Nations.
3. This is evidenced by the following statements in the Orders on
provisional measures and in the Judgment on preliminary objections rendered
in the period 1993-1996. Dealing with the question of prima facie
jurisdiction in 1993, the Court said that “whereas this consideration
embraces jurisdiction both ratione personae and ratione materiae . . .
inasmuch as almost all States are today parties to the Statute of the Court,
it is in general only the latter which requires to be considered”
(Application of the Convention on the Prevention and Punishment of the Crime
of
Genocide, Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993,
p. 12, para. 14). This statement demonstrates that, from the very first
step, the Court proceeded from the prima facie assumption that both States
parties to the case, Bosnia and Herzegovina and Yugoslavia, were Members of
the United Nations and, accordingly, parties to the Statute of the Court.
However, with apparent unease as to the prima facie jurisdiction ratione
personae with regard to Yugoslavia, the Court while observing [p 41] that
the solution adopted by the United Nations Secretariat concerning the status
of Yugoslavia in the United Nations “is not free from legal difficulties”,
reserved for the future a definitive finding on Yugoslavia’s membership in
the United Nations. It specifically stated that “the question whether or not
Yugoslavia is a Member of the United Nations and as such a party to the
Statute of the Court is one which the Court does not need to determine
definitively at the present stage of the proceedings” (Application of the
Convention on the Prevention and Punishment of the Crime of Genocide,
Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 14,
para. 18).
Then, referring to Article 35, paragraph 2, of the Statute, the Court
concludes that “if Bosnia-Herzegovina and Yugoslavia are both parties to the
Genocide Convention, disputes to which Article IX applies are in any event
prima facie within the jurisdiction ratione personae of the Court” (ibid.,
p. 14, para. 19; emphasis added). The use of the word “if” in this phrase is
significant. It could not but reflect the idea that it had yet to be seen
whether both States were indeed parties to the Genocide Convention and
therefore the Convention could be considered as “a treaty in force” for each
of them, as required by Article 35, paragraph 2, of the Statute. In turn, it
necessitated the resolution of the issue of Yugoslavia’s membership of the
United Nations. This necessity was not taken away by the statement that the
proceedings before the Court under Article 35, paragraph 2, “may validly be
instituted . . . independently of the conditions laid down
by the Security Council in its resolution 9 of 1946” (ibid).
4. The question of Yugoslavia’s membership in the United Nations, which the
Court decided not “to determine definitively” in its Orders on provisional
measures, had to be decided “definitively” in the Judgment of 1996 on
preliminary objections when the question of the Court’s jurisdiction was to
be determined, in principle, conclusively. Nonetheless, the Court again
opted not to clarify expressly the knotty legal question of Yugoslavia’s
membership in the United Nations and instead satisfied itself with citing
the declaration of a general nature made by Yugoslavia on 27 April 1992 to
the effect that:
“The Federal Republic of Yugoslavia, continuing the State, international
legal and political personality of the Socialist Federal Republic of
Yugoslavia, shall strictly abide by all the commitments that the Socialist
Federal Republic of Yugoslavia assumed internationally.” (Application of the
Convention on the Prevention and Punishment of the Crime of Genocide,
Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 610, para.
17.) [p 42]
The Court, after taking note that “it has not been contested that Yugoslavia
was party to the Genocide Convention”, decided: “[t]hus, Yugoslavia was
bound by the provisions of the Convention on the date of the filing of the
Application in the present case, namely, on 20 March 1993” (ibid., p. 610,
para. 17).
5. Although the Court did not proffer any legal reasoning, it is evident
that the above conclusion, read against the background of the former
hesitations of the Court as to Yugoslavia’s status in the United Nations,
carries the necessary implication that the Court at that time assumed as a
fact continued membership of Yugoslavia in the United Nations. Otherwise, it
is inconceivable how the Court, even in the absence of challenge, could
recognize the continuing participation of Yugoslavia in the Convention while
the essential precondition of such participation had ceased to exist.
6. It may be argued that since the Court explicitly did not take any
position on Yugoslavia’s membership in the United Nations, it could have
proceeded on the theory that once a Member of the United Nations (in our
case, the former Yugoslavia) has become a party to the Genocide Convention,
the essential precondition of United Nations membership is met once and for
all, irrespective of the future standing of the State in the United Nations.
Whatever may be the merits
of this theory, evidently it applies only to the situation where the State
remains identical and retains the legal personality of its predecessor. The
applicability of this theory to the situation of Yugoslavia is belied by the
non-recognition of its claim to continue the personality of the former
Yugoslavia and, furthermore, by the treatment by the Court in the same case
of the situation of Bosnia and Herzegovina’s participation in the
Convention.
7. Indeed, it will be recalled that in 1996, dealing with the question of
Bosnia and Herzegovina’s participation in the Genocide Convention, which at
that time was contested by Yugoslavia, the Court considered that the fact of
the admission of Bosnia and Herzegovina to the United Nations played a
decisive role in its becoming a party to the Convention. While declining
Yugoslavia’s contention relating to the alleged existence of some other
conditions for the participation in the Convention, the Court said in the
1996 Judgment:
“Article XI of the Genocide Convention opens it to ‘any Member of the United
Nations’; from the time of its admission to the Organization, Bosnia and
Herzegovina could thus become a party to the Convention.” (Application of
the Convention on the Prevention and Punishment of the Crime of Genocide,
Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 611, para.
19; emphasis added.)
For this reason, the Court found it unnecessary and declined to consider
other arguments in favour of the participation in the Convention of Bosnia
and Herzegovina advanced by the latter, including the argument relating to
the succession to treaties generally and the argument of “auto-[p 43]matic
succession”, allegedly applicable in the case of certain types of
international treaties or conventions (ibid., p. 612, para. 23).
8. If we now apply the same standard to Yugoslavia, we can only conclude
that the assumption that Yugoslavia was a Member of the United Nations was a
sine qua non condition for the Court’s determination on the jurisdiction
ratione personae, and therefore it was a “decisive factor” within the
meaning of Article 61 of the Statute.
2. Can the discovery of the wrongfulness of an assumption constitute a
ground for revision?
9. Having demonstrated that the Judgment of the Court on its jurisdiction
ratione personae over Yugoslavia was premised on the assumed membership of
Yugoslavia in the United Nations, it is yet to be seen whether United
Nations membership status may fall within the legal notion of “fact” and, if
so, whether an assumption of such a fact later proved to be incorrect can
serve as a ground for revision of a judgment, provided all other
requirements of Article 61 of the Statute are met.
10. The question whether or not a State is a Member of the United Nations
would appear to be a question of fact according to a whole series of
definitions of the term “fact” given in authoritative law dictionaries and
texts. Thus, applying the definition of “fact” given by Black’s Law
Dictionary, it would fall under “something that actually exists” or under
“circumstance, as distinguished from its legal effect, consequence, or
interpretation” (Black’s Law Dictionary, 7th ed., p. 610). According to
Wigmore on Evidence, “fact is any act or condition of things, assumed for
(the moment) as happening or existing” (cited in Black’s Law Dictionary, 7th
ed., p. 610; emphasis added). De Smith et al. define “a finding of fact as
an assertion that a phenomenon exists, has existed or will exist,
independently of any assertion as to its legal effect” (de Smith, Woolf &
Jowell, Judicial Review of Administrative Action, 5th ed., p. 277, para.
5-079). If we turn to the ordinary meaning of the word “fact”, the Concise
Oxford Dictionary defines it as “1. Thing certainly known to have occurred
or be true . . .” (The Concise Oxford Dictionary of Current English, 6th
ed., p. 370.) From the quoted definitions, it follows it would be a natural
interpretation of the meaning of the term “fact” that it includes a State’s
status in an organization.
Likewise, facts would be statehood, being a party to a treaty, etc. It may
be pertinent to note that the Russian text of Article 61 of the Statute uses
the word “circumstances” in place of the word “fact” used in the English
text. [p 44]
11. As was shown above, the Court did not concern itself specifically with
the establishment of the fact of Yugoslavia’s membership in the United
Nations and explicitly did not take any position on the claim of Yugoslavia
in this respect. However, implicitly it could not avoid the assumption of
Yugoslavia being a Member of the United Nations. This assumption, which was
of crucial importance for the establishment of the Court’s jurisdiction in
the case, later proved to be incorrect. Therefore, the question arises
whether an incorrect assumption of the factual situation, in international
proceedings, can lead to the revision of a judgment.
12. A pertinent example of international jurisprudence where an incorrect or
erroneous assumption of the personal status of the claimant led to the
revision of the decision, is Schreck’s case (Moore, 2 International
Arbitrations, p. 1357) often referred to by writers. The umpire, Sir Edward
Thornton, reversed his earlier decision when he discovered he had based it
on an incorrect assumption about the nationality of the claimant under
Mexican law. The claimant Schreck needed to be an American citizen in order
to obtain relief. The umpire had wrongly assumed that, because the claimant
was born in Mexico he must have had Mexican nationality, and therefore
refused relief. He later discovered the fact that under Mexican law this was
not the case and indeed the claimant did not have Mexican nationality at
all. That fact existed at the time of thedecision but was not known to the
umpire until afterwards. Consequently, upon its discovery, he revised his
decision and found for the claimant.
Certainly, in national jurisprudence one may find many other examples of the
revision of decisions based on the discovery of wrong assumptions, including
the assumptions of the legal status of natural persons and legal entities
(citizenship, marital status, domicile, etc.).
3. Were the facts of Yugoslavia’s non-membership in the United Nations and
non-participation in the Genocide Convention unknown to Yugoslavia and the
Court at the relevant time?
13. I now propose to turn to the questions whether Yugoslavia has shown that
its non-membership of the United Nations was unknown to Yugoslavia when the
Judgment was delivered and, if so, was it due to its negligence? I would
think that throughout the whole proceedings both Yugoslavia and the Court
were equally aware of the uncertainty and ambiguity prevailing outside the
Court as to the status of Yugoslavia in the United Nations. All the
information pertaining to this issue was readily available to the Court and
was not artificially withheld by Yugoslavia. What they could not know, due
to the political vicissitudes of the time, was the final outcome of this
uncertainty and ambiguity. In the unclear situation of Yugoslavia’s
standing in the United Nations, both the Court and Yugoslavia, obviously for
different reasons, opted to pro-[p 45]ceed on the assumption that Yugoslavia
had not ceased to be a Member of the United
Nations after the dissolution of the former Yugoslavia.
14. The legal history of the problem shows that the objective ground for
such an assumption did exist. Indeed, the situation of Yugoslavia’s
membership in the United Nations at all stages of the incidental proceedings
in 1993-1996, and later until 1 November 2000 when Yugoslavia was formally
admitted to the United Nations as a new Member was, to say the least,
ambiguous or, to
repeat the words of the Court, “not free from legal difficulties”. The
organs of the United Nations, solely competent to decide this matter, on the
one hand stated that Yugoslavia’s claim to continue automatically the
membership of the former Yugoslavia “has not generally been accepted” and
decided that the new Yugoslavia “should apply for membership in the United
Nations and that it shall not participate in the work of the General
Assembly” (Security Council resolution 777 (1992) of 19 September 1992 and
General Assembly resolution 47/1 of 22 September 1992). On the other hand,
the “considered view” of the United Nations Secretariat regarding the
practical consequences of these decisions was, among other things, that
Yugoslavia’s membership in the Organization was “neither terminated nor
suspended”, that Yugoslav missions at United Nations Headquarters and
offices may continue to function, receive and circulate documents, etc.
(United Nations doc. A/47/485 (1992).) Yugoslavia continued to pay
membership dues, which were duly accepted.
15. Evidently, the assumption of the Court on Yugoslavia’s standing in the
United Nations was at least partly based on the “considered view” of the
United Nations Secretariat as well as on the official listings of the United
Nations in which “Yugoslavia” (without explanations whether the designation
referred to the Federal Republic of Yugoslavia) was included until 2000 as
an original Member of the United Nations since 24 October 1945 and as a
party to the Genocide Convention since 29 August 1950. For its part,
Yugoslavia could find in the above “considered view” and in official
listings of the Depository a kind of partial recognition of its contention
of continuity of membership in the United Nations and of the continuing
participation in the treaties to which the former Yugoslavia was a party. It
had no compelling reasons to immediately apply for membership in the United
Nations while being told that its current membership was “neither
terminated nor suspended”.
16. As to the other Party in these proceedings, Bosnia and Herze-[p
46]govina, its position with regard to these matters was ambivalent and
inconsistent. In the proceedings before the Court it did not contest the
status of Yugoslavia as a Member of the United Nations and as a party to the
Genocide Convention. In its Application filed with the Court on 20 March
1993, it stated, inter alia, that “[a]s Members of the United Nations
Organization, the Republic of Bosnia and Herzegovina and Yugoslavia (Serbia
and Montenegro) are parties to the Statute . . .” At the same
time, outside the Court, Bosnia and Herzegovina constantly refuted
Yugoslavia’s claim to the continuation of the membership of the former
Yugoslavia. Thus, the representative of Bosnia and
Herzegovina stated in the United Nations General Assembly:
“Serbia and Montenegro are not legally entitled to succeed to the position
of the former Socialist Federal Republic of Yugoslavia.This is applicable to
this body [United Nations General Assembly] as well as to other related and
similar international organizations.” (United Nations doc. A/47/PV.7
(1992).)
17. The inconsistency of Bosnia and Herzegovina’s position also manifested
itself in that it recognized the status of Yugoslavia as a party to the
Genocide Convention, but at the same time
initiated the exclusion of Yugoslavia from participation in the meetings of
States parties to other
important human rights treaties, like the International Covenant on Civil
and Political Rights and
the United Nations International Convention on the Elimination of all Forms
of Racial Discrimination (see, for instance, the proposal of the
representative of Bosnia and Herzegovina at the meeting of the States
parties to the International Covenant on Civil and Political Rights held on
16 March 1994 ¾ Ann. 17 of Yugoslavia’s Application).
The arguments underpinning this position which finally resulted in the
exclusion of Yugoslavia from the above meetings boiled down to the
contention that since Yugoslavia had not notified the Secretary-General,
specifically, of its succession to the above human rights treaties as one of
the successor States of the former SFRY, it could not be considered as one
of the parties to the said treaties. It is not easy to see why a special
notification of succession was considered necessary in respect of the above
two major human rights treaties, but not in relation to the Genocide
Convention. Why was the Yugoslav intention to observe “all the international
commitments of the SFRY” taken as a sufficient ground for its continued
participation in the Genocide Convention but at the same time not sufficient
for its participation in other human rights treaties?
18. It should be added that the “Summary of Practice of the Secretary-[p 47]
General as Depository of Multilateral Treaties” published by the Treaty
Section of the United Nations Office of Legal Affairs, in relation to the
practice of listing Yugoslavia as a party to multilateral treaties, had been
inconsistent and changed according to the political pressures of the time.
It did not shed much light on the status of Yugoslavia. (A thorough account
of the divergent views among the member States and the Legal Office of the
United Nations Secretariat is given in the book by K. Bühler, State
Succession and Membership in International Organizations: Legal Theories
versus Political Pragmatism, pp. 192-271.)
19. The question of Yugoslavia’s membership in the United Nations arose
again more recently (in 1999) in connection with Yugoslav requests for the
indication of provisional measures in the cases concerning Legality of Use
of Force. In six of those cases, the defendant States (Belgium, Canada, the
Netherlands, Portugal, Spain and the United Kingdom) contended that
Yugoslavia could not be regarded as a Member of the United Nations or as a
party to the Statute of the Court because it had not “duly acceded to the
Organization” (see, for example, para. 31 of the Order of 2 June 1999 in the
case concerning Legality of Use of Force (Yugoslavia v. Belgium),
Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (I), p. 135,
para. 31).
However, like in the case of the 1996 Judgment, the Court avoided the direct
answer to the thorny question of Yugoslavia’s membership in the United
Nations and satisfied itself with the observation that it “need not consider
this question for the purpose of deciding whether or not it can indicate
provisional measures . . .” (ibid.). This time it was done in circumstances
where Yugoslavia’s standing in the United Nations was directly challenged by
six respondent States. In
disagreeing with the Court’s reasoning in this respect, Judge Kooijmans
stressed in his separate opinion that he came “to the conclusion that there
are strong reasons for doubt as to whether the Federal Republic of
Yugoslavia is a full-fledged, fully qualified Member of the United Nations .
. . ” Legality of Use of Force (Yugoslavia v. Belgium), Provisional
Measures, Order of 2 June 1999, I.C.J. Reports 1999 (I), p. 179, para. 25).
20. On 8 December 1999 nine States submitted in the United Nations a draft
resolution of the General Assembly, proposing that the Assembly should
declare that it
“[c]onsiders that, as a consequence of its dissolution, the former Socialist
Federal Republic of Yugoslavia ceased to exist as a legal personality and
that none of its five equal successor States can be privileged to continue
its membership in the United Nations” (United Nations doc. A/54/L.62
(1999)).
Ultimately, the consideration of this draft resolution was postponed
indefinitely by the General Assembly. This reaction of the Assembly could
have been seen by Yugoslavia as another “mixed” political signal.
21. Accordingly, the facts of Yugoslavia’s non-membership of the United
Nations could not have been known to the Court and Yugoslavia at the time of
the Judgment.
4. Has Yugoslavia acted negligently?
22. From the foregoing, it can be seen that the circumstances surrounding
Yugoslavia’s standing in the United Nations were such that not only
Yugoslavia but, as was shown above, the Court itself appeared to proceed
from the assumption that Yugoslavia retained its membership in the United
Nations.
23. A number of elements characteristic of the dissolution of the former
Yugoslavia suggest that the new Yugoslavia could plausibly expect that, in
the long run, its contention to continue the statehood of the former
Yugoslavia would be generally accepted. It was the only remaining part of
the former Yugoslavia that did not issue a declaration of independence, but
on the contrary, proclaimed continuity and kept the name “Yugoslavia”. The
plausibility of the development in this direction was not denied even by
Bosnia and Herzegovina, which stated in its Written Observations on the
Application for revision by Yugoslavia the following:
“The fact of the matter is that Yugoslavia kept to a position, which may
even have been defendable if the other new States emerging from the former
Yugoslavia would -- sooner or later -- have been willing to accept it. In
other words: the Yugoslavia position could have turned out to be the
internationally accepted one.” (Written Observations of Bosnia and
Herzegovina of 3 December 2001, Part II, p. 21, para. 2.23.)
However, with its expectations to be recognized as the continuator of the
former Yugoslavia steadily vanishing and after the change of its political
régime, Yugoslavia took the decision to apply for membership in the United
Nations as a new State.
24. In the chain of events that led to the “discovery” of the new fact that
at the relevant time Yugoslavia was not a Member of the United Nations, the
initial impulse was certainly given by Yugoslavia’s application for United
Nations membership, and evidently the timing of this initial impulse
depended on Yugoslavia. From this it does not follow, however, that in the
political situation prevailing in the early 1990s, one could be certain that
Yugoslavia would have been admitted to the United Nations had it applied at
that time, or that one could have known even after Yugoslavia’s application
of 27 October 2000, that the competent [p 49] United Nations organs would
admit it as a new Member and list its membership as of the date of
admission. In this sense, contrary to what is implied in the Judgment (see
the second subpara. of para. 70 of the Judgment) the discovery of the new
fact did not depend on the position of Yugoslavia and was not the result of
its negligence.
25. Yugoslavia cannot be blamed for its long-lasting attempts to assert its
status as the continuator of the former Yugoslavia, for a State cannot be
faulted for trying to pursue its national interests (however it perceives
them) unless in doing so it violates the rules and principles of
international law. I am in agreement with the view that “no standard of
diligence could impose the duty on a party to seek clarification by taking
out of the two possible options exactly the one which is against its views
and convictions. The FRY was not negligent if it did not seek a resolution
of the dilemma in the direction opposite to its persuasions.” (CR 2002/42,
p. 24, para. 2.27 (Varady).)
26. From the legal point of view it cannot be denied that the fact of
Yugoslavia’s non-membership in the United Nations at the time of the 1996
Judgment could not have been established before the decision of the General
Assembly on 1 November 2000, by which decision Yugoslavia was admitted as a
new Member of the United Nations. This decision was taken pursuant to the
recommendation of the Committee on the Admission of New Members and the
recommendation of the Security Council. Like all other States which had
formed the past Socialist Federal Republic of Yugoslavia, the new Yugoslavia
is now listed in the official documents of the United Nations as a Member
from the time of its admission, and not from the time when the former
Yugoslavia became a Member of the United Nations.
27. On the other hand, the assumption of Yugoslavia’s membership in the
United Nations at the time of the Court’s Judgment on its jurisdiction
cannot be sustained after 1 November 2000. Residual elements of the
membership of the former Yugoslavia, not denied to the new Yugoslavia after
1992, cannot frustrate this conclusion. Otherwise, we have to presume that
the rules of elementary logic and common sense are not applicable to this
case, and a State that already was a Member of an organization and whose
membership had neither ceased nor was suspended at a certain time, can again
be admitted to the same organization as a new Member, but with a different
initial date of its membership. However, this is exactly what flows from the
Judgment’s holding that “it has not been established that the request of the
FRY is based upon the discovery of ‘some fact’ which was ‘when the judgment
was given, [p 50] unknown to the Court and also to the party claiming
revision’” (para. 72 of the Judgment).
5. Conclusion
28. The foregoing brings me to the conclusion that the Court, in 1996, based
its jurisdiction on the assumption that Yugoslavia was at that time a Member
of the United Nations. Subsequent events, described above, have clearly
demonstrated that the assumption made by the Court was wrong. The fact is,
Yugoslavia was not a Member of the United Nations in 1996. This fact
constitutes “the new fact” for the purposes of Article 61 of the Statute.
The request for revision of the Court’s Judgment on its jurisdiction
satisfies all the conditions contemplated by Article 61 of the Statute: it
is based on the “discovery” of a fact “of such a nature as to be a decisive
factor”; the fact had been “unknown” to the Court and to the Party claiming
revision when the Judgment was given; ignorance of the fact was not “due to
negligence”; the Application for revision was made within the time
prescribed. For these reasons, in my opinion, the Application of Yugoslavia
is admissible and the Judgment of the Court of 11 July 1966 should have been
laid open for revision.
Such a procedural decision would not have prejudged the ultimate result of
the revision. A fortiori, it could not have been seen as a condoning of the
behaviour of either side in the bloody conflict on the territory of the
former Yugoslavia.
(Signed) Vladlen S. VERESHCHETIN.
[p 51]
DECLARATION OF JUDGE REZEK
[Translation]
1. In the opinion of the majority of the Court, the Application for revision
submitted by the Federal Republic of Yugoslavia is inadmissible Accordingly,
the Genocide case, in which Bosnia and Herzegovina is the Applicant and the
Federal Republic of Yugoslavia the Respondent, must take its normal course
In no way can I support this conclusion.
2. My opposition to the Court's decision is founded on two general
considerations First, under current international law the jurisdiction of
the Court cannot be imposed on a State against its will Second, the
ambiguities found in the United Nations system, notably those
characterizing the recent conduct of the United Nations in respect of the
status of the former Yugoslavia and the States having emerged from its
breakup, should not be permitted to operate in the present case against the
party applying for revision In my view, even the readily understandable
uncertainties and contradictions characterizing the conduct of Governments
in the region over the last decade should not work in legal proceedings to
the disadvantage of those States And definitely not to the disadvantage of
only one of them.
3. Security Council resolution 777 (1992) however appears to me to be clear
enough It implies that the entity over which the Court affirmed its
jurisdiction in the Judgment of 11 July 1996, an entity comprising part of
the former Socialist Republic of Yugoslavia, could not at that time claim to
have been a Member of the United Nations, a party to the Statute of the
Court or a party to the 1948 Genocide Convention Owing to the apparent will
of other States and to the attitude adopted by a majority of them, and as a
consequence by the United Nations, the mam State aris-ing out of the former
Yugoslavia found itself precluded from claiming any entitlement whatsoever
on the basis of its participation in these treaty frameworks, even though,
in a sign of its conviction, it averred its participation in them It would
be unfair, and contrary to fundamental legal principles, to deny a State a
particular status within a given system as far as some effects were
concerned but to recognize that status on a selective basis in respect of
others.
4. In any case, the new Yugoslavia has been a Member of the United Nations
and a party to the Statute of the Court since 1 November 2000 Its accession
to the 1948 Genocide Convention, following upon action taken by the United
Nations Legal Counsel, occurred in March 2001 and was accompanied by a
reservation to Article IX concerning the Court's jurisdiction to settle
disputes As a general rule, any State expressing its consent to a treaty
enjoys the prerogative of making a reservation, the [p 52] benefit of this
right would not have been denied to the other States resulting from the
disintegration of the former Yugoslavia and it cannot be otherwise for the
State seeking revision.
5 The Court could have considered as a new fact the clarification provided
by the United Nations m November 2000 of a question which had lain in a grey
area since 1992, of a situation which could thus have appeared uncertain in
1996 the former Socialist Republic of Yugoslavia had ceased to exist, Mr
Milosevic's administration did not continue the State which had broken up
The Court's assertion in the Judgment of 11 July 1996 of jurisdiction over
the Respondent, resulting from a misreading of the factual situation,
should now be subject to revision.
6. Otherwise, I would have proposed denying in limine the Application for
revision but for a reason diametrically opposed to those relied upon by the
majority the Federal Republic of Yugoslavia, one of the newest Members of
the United Nations, is not the entity considered by the Court to be the
Respondent in the Judgment of 11 July 1996 Accordingly, the new Yugoslavia
does not have standing to seek revision It is not a party to the dispute
submitted to the Court by Bosnia and Herzegovina It will be for the Court to
decide at the appropriate time whether that dispute is extant in the absence
of the Respondent
(Signed) Francisco Rezek.
[p 53]
DISSENTING OPINION OF JUDGE DIMITRIJEVIC
I. INTRODUCTION
1. While I can generally accept the presentation of the historical context
of the case, I cannot support the conclusions arrived at in the Judgment.
2. The arguments of the majority flow in two principal directions. One is an
attempt to dispose of the case “epistemologically”, by restrictively
interpreting the meaning of the term “fact” as used in Article 61 of the
Statute, and the other -- less obvious but contained in the Judgment --
through an interpretation of the legal situation which obtained on 11 July
1996 when the Judgment in the case concerning Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections (I.C.J. Reports 1996
(II), p. 595) was delivered. Regretfully, I am unable to follow either line
of reasoning.
II. WHAT IS “FACT” IN LAW?
3. I cannot subscribe to the view of the majority, based as it is mostly on
dictionaries for general use, that a fact is only something that can be
perceived by human senses as a part of physical reality. A legal fact, a
fact in law, is something that legally exists, that belongs to legal reality
as a product of legal rules. Being or not being a member of an international
organization or a party to an international treaty is a legal fact -- not a
legal norm -- although it can be the result of an authoritative
interpretation of the latter. [p 54]
4. Different legal determinations typically rely on different kinds of
facts. Often there are conflicting perceptions of the latter. This does not
mean, however, that, for example, being or not
being a State, having or not having the status of a citizen, having or not
having domicile, being or not being a father, being or not being validly
married, are mere perceptions. These are facts which may or may not be
readily perceptible and may or may not be correctly perceived. But they are
facts nonetheless. Whether the Federal Republic of Yugoslavia (FRY) was or
was not a party to the Statute of the International Court of Justice at the
time of the 1996 Judgment is a factual question. Whether the FRY did or did
not remain bound by the Genocide Convention continuing the personality of
the former Yugoslavia is also a matter of facts. In the present case, these
are the critical facts on which the legal determination of jurisdiction is
to be based.
5. Determinations of law resolve a dispute between the parties and attribute
consequences. Such determinations are based on what a court perceives and
establishes as a fact. In the 1996 Judgment the determination of law was
that the International Court of Justice had jurisdiction over both the FRY
and Bosnia and Herzegovina.
6. Whether in the context of revision or in another context, the concept of
“fact” has never been reduced to physical evidence or documents.
International tribunals have also come to the conclusion that the meaning of
“fact” depends on the context and that it must not be construed
narrowly.
7. The French-German Mixed Arbitral Tribunal stated in 1924: “Attendu que la
notion de fait ne doit pas être mise en opposition absolue avec celle de
droit, dont il n’est pas toujours facile de la distinguer, mais qu’elle doit
s’entendre d’une façon plus large . . .” The decision then continued: “qu’en
effet la condition essentielle pour qu’un fait nouveau puisse ouvrir la voie
de la révision est qu’il eût été de nature à exercer une influence décisive
sur la sentence”FN1.
---------------------------------------------------------------------------------------------------------------------
FN1Heim
et Chamant c. Etat allemand, RDTAM, III, 50, p. 55.
---------------------------------------------------------------------------------------------------------------------
8. In the El Salvador v. Honduras case, the International Court of Justice
considered as a factual question whether certain waters were subject to a
régime of condominium because this was posited as a possible premise or a
legal determination. The Court raised the question “in what practical ways
that process of delimitation would be at all affected by the fact that the
waters were subject to a régime of a condominium rather than being simply
undelimited waters” (Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua intervening), I.C.J. Reports 1992, p. 606,
para. 414; emphasis added). In the same case, the Court treated as a fact
the issue of whether El Salvador was or was not a party to the case, and
whether, accordingly, it could be bound by the decision (ibid., pp.
597-598).[p 55]
9. In the case concerning the Frontier Dispute (Burkina Faso/Republic of
Mali), both Parties recognized that “the question has here to be appraised
in the light of French colonial law, ‘droit d’outre-mer’” (Frontier Dispute
(Burkina Faso/Republic of Mali), I.C.J. Reports 1986, p. 568, para. 29). The
Court held, however, that legislation enacted by France for its colonies
does not have the role of law in the actual setting of the case, but may
only be considered as a factual element. The Court stated: “French law --
especially legislation enacted by France for its colonies and territoires
d’outre-mer -- may play a role not in itself . . . but only as one factual
element among others . . .” (ibid., p. 568, para. 30; emphasis added).
10. Article 61 of the Statute does not distinguish between various kinds of
judgments. For this simple reason, the notion of “fact” relied upon in
Article 61 should be broad enough to accommodate various types of facts
which serve as a basis for all legal conclusions. Obviously, specific facts
on which access to the Court and jurisdiction may be based also belong to
the broad category of facts within the meaning of Article 61.
11. The same Article allows for some temporal duality between the existence
of a fact and its discovery or determination. In paragraph 1, reference is
made to a fact which existed at the time when the Judgment was given, but
which was unknown to the Court and to the party claiming revision, whilst
paragraph 2 expects the Court expressly to record “the existence of the new
fact”
(emphasis added) in order to declare an application for revision admissible.
This implies a new understanding, caused by a realization that occurred
after the judgment was delivered and showing that the “old” fact, which had
been assumed to exist at the time of the judgment, had not actually existed
ab initio, or that a fact which had not been seen as existing or had been
misperceived as such, had actually existed at the relevant time. Contrary to
what the majority says in paragraph 69 of the present Judgment, the FRY does
not rely “on the legal consequences which it seeks to draw from facts
subsequent to the [1996] Judgment”, but seeks to prove that the fact on
which the Court relied in its 1996 Judgment did not exist. The non-existence
of a fact, as well as its existence, is also a factual question.
III. FACTS IN THE PRESENT CASE
12. The fact that the FRY was not a continuator of the Socialist Federal
Republic of Yugoslavia (SFRY) and thus not a Member of the United Nations or
party to international treaties ratified by the SFRY (including the Genocide
Convention), was “unknown” in its totality to the Court and to the FRY. That
is not to say it was unknown in the sense that it was hidden from them or
that they had no notion of its possible existence. It was familiar to them
and to many others as a possibility –[p 56] a legal contention shared by
those opposing the FRY’s continuity (including Bosnia and Herzegovina in
other fora, outside the Court).
13. Indeed, the jurisdiction in personam over the FRY was based on the
perceived fact that, following the break up of the former Yugoslavia, the
FRY continued the personality and treaty membership of the former
Yugoslavia. The legal conclusion that the Court had jurisdiction derived its
sole basis from that perceived fact.
14. It goes without saying that the admission of the FRY to the United
Nations in 2000 could not have been known to the Court as early as 1996; for
that matter, it could not have known of the FRY’s intention to apply for
membership. Even if the then government of the FRY had such plans, it could
not have known the outcome of the vote in the United Nations Security
Council and the General Assembly. However, the elements of the legal
position of the FRY vis-à-vis the United Nations and relevant to the FRY’s
being a party to the Statute and to the Genocide Convention were certainly
known to both the Court and the Applicant but could not be fully
comprehended prior to 1 November 2000.
15. The Court had two opportunities to state its position towards its
jurisdiction in the case of the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia). The first was when deciding, in its Order of 8 April 1993,
on the request for the indication of provisional measures (I.C.J. Reports
1993, p. 4).
That Order relied on the finding that the Court had prima facie jurisdiction
on the basis of Article IX of the Genocide Convention in conjunction with
Article 35, paragraph 2, of the Statute. Whilst stressing more than once
that the determination of jurisdiction was based on prima facie
findings -- understandable when relating to provisional measures -- the
Court observed:
“Whereas, while the solution adopted is not free from legal difficulties,
the question whether or not Yugoslavia is a Member of the United Nations and
as such a party to the Statute of the Court is one which the Court does not
need to determine definitively at the present stage of the proceedings.”
(Ibid., p. 14, para. 18; emphasis added.)
16. The second opportunity came when the Court had to decide on preliminary
objections. It did so in the Judgment which is the object of the Application
for revision. At that stage again the Court did not find it necessary to
determine definitively whether or not the FRY was a Member of the United
Nations and as such a party to the Statute of the Court.[p 57] It based its
jurisdiction on the proposition that the FRY remained bound by the Genocide
Convention -- which is only possible on the assumption of continued
personality and therefore continued status and participation in
international treaties. (It was never alleged, or mentioned, that the FRY
would have become bound by Article IX by virtue of its own treaty action --
like Bosnia and Herzegovina did.) The Court found support for this
understanding in the intention of the FRY, allegedly expressed in the
Declaration “adopted on its behalf” on 27 April 1992, “to remain bound by
the international treaties to which the former Yugoslavia was party” (I.C.J.
Reports 1996 (II), p. 610, para. 17; emphasis added). The 11 July 1996
Judgment added “that it has not been contested that Yugoslavia was party to
the Genocide Convention”. From there it followed that “Yugoslavia was bound
by the provisions of the Convention on the date of the filing of the
Application . . . on 20 March 1993” (ibid.; emphasis added).
17. That very expeditious way of dealing with the important matter of
jurisdiction, together with the choice of arguments and terms, could only
have meant the following.
(a) The Court assumed that the SFRY had ceased to exist. Otherwise there
would be no “former” Yugoslavia. It remains unclear to which “Yugoslavia”
the Court referred as a party to the Genocide Convention. There was
certainly no dispute regarding the fact that the former Yugoslavia, i.e.,
the SFRY, was a party, but such qualification of the FRY depended on whether
the FRY was sufficiently linked to the commitments of the former State, by
continuity or otherwise.
(b) Failing to indicate that the FRY was bound by the obligations of the
SFRY as a successor State the Court must have assumed that there was
continuity between the SFRY and the FRY. This continuity -- it follows from
the Judgment -- was based on the Declaration of 27 April 1993 and the
intention expressed therein to remain bound by international treaties
ratified by the SFRY, including the Genocide Convention.
(c) The Court must have assumed that the FRY was a Member of the United
Nations. Namely, even if the FRY was held to be bound by the provisions of
the Genocide Convention on bases other than continuity, without membership
in this organization it could not have become a party to the Convention and
could have no locus standi before the International Court of Justice.
It should be noted that the Court found that its jurisdiction was
established “only . . . on the basis of Article IX of the Genocide
Convention” (ibid., p. 621, para. 41). [p 58]
IV. THE LEGAL STATUS OF THE SOCIALIST FEDERAL REPUBLIC OF YUGOSLAVIA, OF THE
FEDERAL REPUBLIC OF YUGOSLAVIA AND OF “YUGOSLAVIA” IN 1996
18. All the foregoing determinations are findings on facts. They were made
by the Court in spite of admitted “legal difficulties”. Those difficulties
were known to the Court in the form of possible options on how to decide on
the presence of certain facts, as disclosed in a series of ambiguous or
controversial decisions. Those taken within the United Nations system were
the following:
19. The Security Council adopted on 30 May 1992 its resolution 757 (1992),
quoted by the majority, where the Council noted that the claim by the FRY
“to continue automatically the membership of the former Socialist Federal
Republic of Yugoslavia in the United Nations has not been generally
accepted” (United Nations doc. S/RES/757 (1992)).
20. This statement was reiterated in Security Council resolution 777 (1992)
of 19 September 1992, coupled with the finding that the SFRY had ceased to
exist. The Council then recommended to the General Assembly to decide that
the FRY “should apply for membership in
the United Nations and that it shall not participate in the work of the
General Assembly” (United
Nations doc. S/RES/777 (1992); emphasis added).
21. Following this recommendation, the General Assembly on 22 September 1992
adopted its resolution 47/1, also quoted by the majority, where this United
Nations organ “considered” that
the FRY “cannot continue automatically the membership of the former
Socialist Federal Republic of Yugoslavia in the United Nations” and
“decided” that the FRY “should apply for membership in the United Nations
and that it shall not participate in the work of the General Assembly”
(United Nations doc. A/RES/47/1 (1992)). Although the disappearance of the
SFRY was implied by the use of the term “former”, the General Assembly did
not repeat the statement of the Security Council that the SFRY had ceased to
exist.
22. After deciding, seven months later, in its resolution 47/229 of 29 April
1993, that the FRY should not participate in the work of the Economic and
Social Council either, on 20 December 1993 the General Assembly adopted
resolution 48/88, in which it referred to resolution 47/1 and urged “Member
States and the Secretariat in fulfilling the spirit of that resolution, to
end the de facto working status of Serbia and Montenegro” (United Nations
doc. A/RES/48/88, para. 19; emphasis added).
23. Whereas the General Assembly had not followed the Security Council in
its willingness to take a resolute stand on the extinction of the SFRY, the
Security Council returned to that subject
in its resolution 1022 [p 59] (1995) of 22 November 1995 (United Nations
doc. S/RES/1022), in which it referred to “the successor States to the State
formerly known as the Socialist Federal Republic ofYugoslavia” and to “the
fact that that State has ceased to exist”.
24. General Assembly resolution 48/88 was addressed to “Member States and
the Secretariat”. It is therefore important to find out what actions were
taken by those States and by the United Nations Secretary-General in this
respect prior to 11 July 1996, when the Judgment in the case concerning the
Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections
was delivered, i.e., which actions may be presumed to have been known by the
Court at the time.
25. The first mention of the legal disappearance of Yugoslavia was to be
found in Opinion No. 1 of the Arbitration Commission established as an
advisory body by the Peace Conference on Yugoslavia, convened by the (then)
European Community. This Commission, known after its first president as the
“Badinter Commission”, opined on 29 November 1991 “that the Socialist
Federal Republic of Yugoslavia [was] in the process of dissolution”
(Conference for Peace in Yugoslavia, Arbitration Commission, Opinion No. 1,
International Legal Materials, 1992, p. 1497).
26. In its Opinion No. 8 of 4 July 1992 the Commission found that the
process of dissolution was completed and that the SFRY no longer existed.
The Commission, in its Opinion No. 9 of the same date, advised that “the
SFRY’s membership of international organizations must be terminated
according to their statutes and that none of the successor states may
thereupon claim for itself alone the membership rights previously enjoyed by
the former SFRY”. The Commission concluded in its Opinion No. 10, that the
FRY was “a new state which cannot be considered the sole successor to the
SFRY”. (Opinions 8, 9 and 10 are reproduced in International Legal
Materials, 1992, pp. 1521 et seq.)
27. Already on 5 May 1992, in a statement of the European Community and its
Member States, it was stressed that the latter had not accepted the
“automatic continuity” of the FRY in international organizations (United
Nations doc. A/46/905, Ann.). In its Declaration on the former Yugoslavia of
29 June 1992 the European Council stated that “The European Community and
its member States do not recognize the new federal entity comprising Serbia
and Montenegro as the successor State [sic!] of the former Yugoslavia” and
that they had decided “to demand the suspension of the delegation of
Yugoslavia [sic!] in the proceedings at the CSCE and international forums
and organizations” (United Nations doc. S/24200, Ann.). In their Declaration
on Yugoslavia of 20 July 1992 the Ministers for Foreign Affairs of the
European Community stated that the “new federation cannot be accepted as the
sole successor” to the SFRY and that European Community Member [p 60] States
“will oppose the participation of Yugoslavia [sic!] in international
bodies”FN2.
---------------------------------------------------------------------------------------------------------------------
FN2 For
other examples (and comments on the unusual expression “sole successor”) see
J. Klabbers, M. Koskenniemi, O. Ribbelink, A. Zimmermann (ed), State
Practice Regarding State Succession and Issues of Recognition: The Pilot
Project of the Council of Europe, 1999, pp. 61-62.
---------------------------------------------------------------------------------------------------------------------
28. As interpreted by the United States, a permanent Member of the Security
Council, at the
time of the adoption of resolution 777 (19 September 1992), this resolution
“recommends that the General Assembly take action to confirm that the
membership of the Socialist Republic of Yugoslavia has expired and that
because Serbia and Montenegro is not the continuation of the Socialist
Republic of Yugoslavia it must apply for membership if it wishes to
participate in the United Nations” (emphasis added).
The United States representative said further that the provision in the
resolution that the FRY shall not participate in the work of the General
Assembly “flows inevitably from the determination by the Council and the
General Assembly that Serbia and Montenegro is not the continuation of the
former Yugoslavia . . .” (emphasis added). The United States delegate to the
Security Council believed that he was stating the obvious when he said that
“a country which is not a member of the United Nations cannot participate in
the work of the General Assembly” (United Nations doc. S/PV.3116; emphasis
added). This interpretation was supported by the delegates of some other
States in the Security CouncilFN3.
---------------------------------------------------------------------------------------------------------------------
FN3 Austria,
Bosnia and Herzegovina, Finland, Germany, Hungary, Poland, Slovenia, Spain,
quoted in K. Bühler, State Succession and Membership in International
Organizations, 2001, p. 196, n. 884.
---------------------------------------------------------------------------------------------------------------------
29. Regarding General Assembly resolution 47/1, the representative of the
United Kingdom stated that “as regards the need to submit an application for
membership” the FRY was “in precisely the same position as other components
of the former Socialist Federal Republic of Yugoslavia” (United Nations doc.
A/47/PV.7).
30. On the other hand, there were statements by representatives of other
Member States, which explicitly or implicitly and in nuances of various
degrees supported the claim of the then government of the FRY that the
latter was identical to the SFRY and that it was its continuator.
31. Thus the representative of the Russian Federation, while voting for
Security Council resolution 777, interpreted it as being opposed to the
exclusion of the FRY “formally or de facto,
from membership in the United Nations” (United Nations doc. S/PV/3116;
emphasis added). The
[p 61] delegate of China, abstaining, shared the interpretation according to
which the adoption of the resolution did not amount to the expulsion of
“Yugoslavia” and referred to the situation created by the decision as a
“transitional arrangement” (ibid.).
32. A third group of Members of the United Nations failed in 1992 to see any
coherence in resolution 47/1 and to discern its purported basis in law, in
light in particular of its failure to refer
to the provisions of the United Nations Charter governing membershipFN4.
---------------------------------------------------------------------------------------------------------------------
FN4 See
the statements of India, Brazil, Mexico, Ghana, Kenya, Zambia, Tanzania, and
Guyana, quoted in K. Bühler, op. cit. p. 198.
---------------------------------------------------------------------------------------------------------------------
33. In this respect it is important to observe the conduct of Bosnia and
Herzegovina. It has been one of those States which have most vigorously
contested the membership of the FRY in the United Nations and other
international organizations as well as the existence of continuity between
the SFRY and the FRY. In addition to the instances cited by the majority in
the Judgment (paras. 35, 36, 42 and 43) one can quote, inter alia, its
reactions in the General Assembly on the occasion of the adoption of
resolution 47/1 (United Nations doc. A/47/PV. 7), in a communication to the
Secretary-General of 25 September 1992 on the occasion of the raising of the
flag of Yugoslavia after the adoption of that resolution (United Nations
doc. A/47/474), in the International Atomic Energy Agency against the
listing in 1996 of the FRY as having ratified the Non-Proliferation Treaty
in 1970 (which, according to Bosnia and Herzegovina, implied its identity
with the SFRY)FN5, and in connection with the notification by the FRY in
1997 of its withdrawal of the reservation to the Convention on the Rights of
the Child made by the SFRY in 1991FN6.
---------------------------------------------------------------------------------------------------------------------
FN5 Communication
of 29 August 1996, IAEA doc. GC(40)INF/10, (16 September 1997);
Communication of 15 September 1997, IAEA doc. GC(41) INF/19m, Attachment, 1
October 1997).
FN6 Communication of 10 October 1997, Status of the Convention on the Rights
of the Child, Multilateral Treaties Deposited with the Secretary-General.
---------------------------------------------------------------------------------------------------------------------
34. In view of the foregoing, the finding of the Court “that it has not been
contested that Yugoslavia was a party to the Genocide Convention” must be
seen in a different light. Actually, the other party in the proceedings,
Bosnia and Herzegovina, has never failed to contest the identity between the
SFRY and the FRY, except only in relation to the Genocide Convention and
only regarding a specific case before the International Court of Justice. It
is true that Bosnia and Herzegovina did advance bases of jurisdiction other
than continuity between the SFRY and the FRY, but the Court itself based its
jurisdiction only on the FRY being a party to the Genocide
Convention.
35. In addition to the variety of interpretations by Member States,
resolution 47/1 was also interpreted by other addressees of resolution
48/88. The United Nations Secretary-General did this in his two capaci-[p
62]ties of interpreter of United Nations decisions and depositary of
international treaties. Responding to demands for interpretation by some
Member States on 29 September 1992 the United Nations
Under-Secretary-General for Legal Affairs issued the opinion quoted in the
Judgment (para. 31). Naturally, his opinion could not cure the
inconsistencies and ambiguities of resolution 47/1. Let me indicate some of
the most conspicuous.
36. First, it is unclear to which “Yugoslavia” the opinion refers when not
using the official title “the FRY” and when determining that the
representatives of the latter can “no longer” participate in the work of the
General Assembly and not sit behind the sign “Yugoslavia”, although
“Yugoslavia’s” membership in the United Nations had allegedly neither been
terminated nor suspended. Even if it was, statements to the effect that
Yugoslav membership has “expired”, quoted above (para. 30) only refer to
membership and not to the State in question, since States normally do not
“expire”. It is therefore quite conceivable that “Yugoslavia” went on
existing as a State without necessarily being a Member of the United
Nations.
37. I am sure that all actors must have been aware that “Yugoslavia” in this
particular and important context could have been taken as a short reference
both to the SFRY and the FRY and
that representatives of States and international organizations shall not be
presumed to have acted in a cavalier fashion. What then is the difference
between “old Yugoslavia” and “new Yugoslavia”, referred to in the opinion?
What was believed would happen to the old State once the new State was
admitted to the United Nations? In view of the instruction to fly the flag
of the SFRY (the old Yugoslavia) and the fact that this flag lost its
symbolic meaning (for it had been abolished by the same gathering which had
proclaimed the Constitution of the FRY and adopted the Declaration of 27
April 1992), it can be concluded that, for unknown reasons, some actors kept
alive the fiction that, as late as on the eve of 1 November 2000, when the
FRY was admitted to membership, a phantom State existed, which was neither
the SFRY nor the FRY; alternatively, and contrary to the assertions of the
Security Council and organs of other international organizations (but not
the General Assembly), it was presumed that the SFRY still existed until
that date. Such a “common roof” theoryFN7 tallies with the opinion of the
delegate of China, quoted above, that the adoption of resolution 47/1 did
not amount to the expulsion of “Yugoslavia” and his qualification of the
arrangement as “transitory”, as [p 63] well as with the statement of Romania
that this resolution did not provide for “either the suspension or the
exclusion of Yugoslavia from the United Nations” (United Nations doc.
A/47/PV.7, p. 192 (1992); emphasis added).
---------------------------------------------------------------------------------------------------------------------
FN7 Similar
to the Dachtheorie which maintained that the German Reich continued to exist
after 1945 above and apart from the Federal Republic of Germany and the
German Democratic Republic. Cf. H. von Mangold, F. Klein, Das Bonner
Grundgesetz, Berlin ¾ Frankfurt, 1957, p. 33 ff.; W. Wengler, “Deutschland
als Rechtsbegriff”, Festschrift Hans Nawiasky, 1956, p. 51, n. 3.
---------------------------------------------------------------------------------------------------------------------
38. Paradoxically, this fanciful theory seems to correspond best to the
situation obtaining after the adoption of resolution 47/1, which was aptly
described by one writer as “limited survival after death . . . of the former
Yugoslavia at the United Nations”FN8. Since allegedly there has been no
termination of membership, an entity must have been within the United
Nations, but it was not the FRY. Even accepting the most generous
interpretation of such statements, the FRY could not have had a double
identity and be represented once behind the sign “Yugoslavia” and at other
times under its official name.
---------------------------------------------------------------------------------------------------------------------
FN8 T.
Treves, “The Expansion of the World Community and Membership of the United
Nations”, The Finnish Yearbook of International Law, Volume VI (1995), p.
278.
---------------------------------------------------------------------------------------------------------------------
39. According to the opinion of the Under-Secretary-General quoted by the
majority (para. 31), the representatives of the FRY were excluded only from
participation in the General Assembly bodies. He opined that resolution 47/1
did not “take away the right of Yugoslavia [sic!] to participate in the work
of organs other than Assembly bodies” (United Nations doc. A/47/485). This
right was obviously very feeble because, seven months later, participation
in the work of ECOSOC was denied without adducing further legal reasons. How
could the Court then have concluded that the “right” of the FRY to appear
before the International Court of Justice was any
stronger? In fact, in the final part of its paragraph 17 the 1996 Judgment
refers only to Yugoslavia, with the Court determining that “Yugoslavia was
party to the Genocide Convention” and that “Yugoslavia was bound” by its
provisions.
40. Or, conversely, why does an explicit reference to Article 4 of the
United Nations Charter appear in the opinion of the Legal Counsel and not in
resolution 47/1? If the measures against the
FRY were limited only to non-participation in one of the main organs of the
Organization, and if
the effects of resolution 47/1 amounted only to a “situation” (which, in the
words of the Court, was “not free from legal difficulties”), and were not
decisive for the very important matter of the status of a State in the
United Nations, was not the prescribed “admission to the United Nations of a
new Yugoslavia under Article 4” too potent a remedy? Restrictive measures of
partial non-participation directed against the FRY could simply have been
rescinded. If the membership of the FRY was not terminated, why did that
State have to apply to be admitted as a new Member? [p 64]
41. The answer to all these questions lay most probably in the true nature
and purpose of the measures against the FRY. In spite of the protestations
to the contrary, initially voiced by the sponsors of resolution 47/1 (cf.
the statement of the representative of the United Kingdom, United Nations
doc. A/PV.7), these measures were punitive. At the time of the exclusion of
the FRY from ECOSOC, condemnatory allusions were made to the conduct of the
FRY. On behalf of the sponsors of the resolution 47/229, it was said:
“The course of events in the seven months that have passed since the General
Assembly adopted resolution 47/1 has certainly demonstrated that the message
sent by that resolution has not been taken into account by the authorities
in Belgrade. This highly regrettable fact necessitates the adoption of the
present draft resolution . . . By excluding the Federal Republic of
Yugoslavia (Serbia and Montenegro) from the work of the Economic and Social
Council also, the General Assembly builds upon the groundwork laid by
resolution 47/1 and sends the unequivocal message to Belgrade that the
patience of the States Members of the United Nations is not
unlimited.”(Representative of Denmark, United Nations doc. A/47/PV.101;
emphasis added.)
42. The FRY thus became the target of gradually increasing restrictions
aimed at reducing de facto the scope to which it was allowed to play the
role of “Yugoslavia” in the United Nations.
Another signal was simultaneously sent to the FRY, i.e., that it could hope
to receive better treatment, that is, be allowed to represent the still
existing (old) “Yugoslavia” if the Security Council and the General Assembly
become satisfied that the objections to its acting this role, or pretending
to be identical with Yugoslavia, no longer existed. One way of testing this
was the procedure of admission under Article 4 of the United Nations
Charter, which would offer those United Nations organs the opportunity to
examine whether the FRY was “peace-loving” and “able and willing” to carry
out the obligations contained in that Article. In the process, the repeated
assertions that the SFRY had ceased to exist were conveniently forgotten and
the fiction of its virtual existence prolonged. If the SFRY still survived
under the name of “Yugoslavia”, the same name as the State whose Minister
for Foreign Affairs had signed the United Nations Charter on 26 June 1945
(Charter of the United Nations and Statute of the International Court of
Justice, San Francisco 1945, p. 509; Delegates and Officials of the United
Nations Conference on International Organizations, San Francisco 1945, p.
78), the conclusion could be drawn that the Judgment of 11 July 1996 did not
concern the FRY but the still existing SFRY, the succession to which still
had to be decided.
43. It became clear on 1 November 2000 that the pragmatic solution
temporarily adopted could not resist its legal maladies relating to the
suggested admission to membership of the United Nations of a new State [p
65] while pretending that it was at the same time an old State, or
readmitting a State that had not previously been excluded from membership,
or reconfirming the membership of an existing Member, etc. In other words, a
State which had been treated as a Member of the United Nations was invited
to apply for membership implying that it actually was not a Member. To say
the least, the FRY was being asked to relinquish its claim to continuation
of the SFRY and thereby admit that it had been a Member under false
pretences.
44. In his capacity as depositary of international treaties, the United
Nations Secretary-General experienced similar difficulties, manifested in
the need to change his original conclusions regarding the application of
resolution 47/1, unusually and dramatically, through errata in the English
text, quoted in paragraph 39 of the Judgment. Initially, the Secretariat had
held simply that the resolution was “without effect on the capacity of the
Federal Republic of Yugoslavia (Serbia and Montenegro) to participate in
treaties, including those deposited with the Secretary-General” (United
Nations doc. ST/LEG/8, para. 89), but in the corrected version the proviso
was added that this effect was “subject to any decision taken by a competent
organ representing the international community of States as a whole or by a
competent treaty organ with regard to a particular treaty or convention”
(United Nations doc. ST/LEG/7/Rev. 1, para. 89). The United Nations Office
of Legal Affairs had initially even gone so far as to continue to regard the
FRY as the “predecessor State upon separation of parts of the territory of
the former Yugoslavia” and find that resolution 47/1 had not affected this
quality of the FRY (United Nations doc. ST/LEG/8, para. 297). However, the
latter part of the explanation was eliminated in the corrected version in
English (United Nations doc. ST/LEG/7/Rev. 1, para. 297)FN9.
---------------------------------------------------------------------------------------------------------------------
FN9 Summary of Practice of the Secretary-General as Depositary of
Multilateral Treaties, paras. 89 and 297.
---------------------------------------------------------------------------------------------------------------------
45. There was certainly a claim of the FRY to continuity, expressed in the
Declaration of 27 April 1992 and ensuing diplomatic correspondence, but the
decisive element in 1996 was whether other States recognized this claim. An
international decision on continuity of States is one of the decentralized
acts of the international community, essentially similar to that on the
recognition of States. Whether an entity is recognized as a State depends
not on its self-perception but on the perception of others. Furthermore,
there are no criteria which, when fulfilled, compel other States to
recognize a candidate for statehood. Even if there are, in theory, some
criteria on State recognition, there are none on continuity, so that the
full scope of appreciation remains with other States. The FRY had no [p 66]
great difficulties in being recognized as a State, but its additional claim
to continuity of the SFRY “ha[d] not been generally accepted”, as stated in
Security Council resolution 757 (1992).
46. There have not been many instances of disintegration of a State, but in
all such cases the general response regarding continuity has depended
primarily on the attitude of the other States which emerged on the territory
of the State which had ceased to exist. If there was an agreed arrangement,
other members of the international community would generally follow suit. In
the case of the SFRY there was no agreement: the claim of the FRY was
contested by Croatia, the Former Yugoslav Republic of Macedonia, Slovenia
and, importantly, Bosnia and Herzegovina, i.e., all other States which had
emerged from the former SFRY. That is the unique feature of this
situation. The continuation of the SFRY by the FRY was not a matter to be
decided only by the FRY, or exclusively by the FRY and other successor
States of the SFRY, but, as confirmed by the United Nations Office of Legal
Affairs (see para. 44 above), remained dependent on a decision to be taken
by other actors. By admitting the FRY to membership of the United Nations,
the Security Council and the General Assembly did satisfy the first and last
criteria and thus finally determined the outcome of the debate.
9Summary of Practice of the Secretary-General as Depositary of Multilateral
Treaties, paras. 89 and 297.
V. CONCLUSIONS
47. The process of recognition is a process in time. The debate on the
adoption of Security Council resolution 777 (1992) and the subsequent
actions by the Secretariat of the United Nations show that continuity
between the SFRY and the FRY was an assumption or perception shared by some
other international actors but far from being widely accepted. If the FRY’s
claim to continuity was not “generally accepted” in 1992, it could have been
accepted later, say in 1996, when the Judgment was delivered, but the Court
¾ while relying on the consequences of continuity ¾ failed to prove
universal acceptance at the time of the Judgment. It could not, for that
matter, have proven it in 1996 or for the whole period between 11 July 1996
and 1 November 2000, when it finally became clear that general acceptance
had not materialized.
48. Accordingly, the crucial point is to determine when the FRY’s claim was
generally rejected. When did it become clear that the FRY was certainly not
a continuator of the SFRY, with all the consequences for the new State,
favourable and unfavourable, which that entailed? This question was finally
decided by a forum very closely approximating the [p 67] totality of all
States, the whole of the international community, i.e., the Organization of
the United Nations, when on 1 November 2000 the latter admitted the FRY as a
new Member of the Organization, thus excluding the possibility of the FRY
having formerly been a Member as a continuator of the SFRY, or on some other
basis.
49. The admission of the FRY as a new Member of the United Nations revealed
(led to the discovery of) the fact that the FRY was not a Member of the
United Nations (and not a party to the Statute of the International Court of
Justice) at the time of the Judgment of 11 July 1996. The letter of the
United Nations Legal Counsel of 8 December 2000 inviting the FRY to
undertake treaty actions (Application of Yugoslavia, Ann. 27), if the
intention of the latter was to assume rights and obligations as a successor
State, demonstrated that the FRY had not previously been a party to
international treaties on the ground that they had been ratified by the SFRY
and that, specifically, the FRY was not a party to the Genocide Convention
at the time of the Judgment of 11 July 1996.
50. The admission of the FRY to the United Nations as a new Member and the
subsequent events showed that a possibility known to the Court and other
parties, that is, that the FRY was not the sole continuator but one of the
successors of the SFRY, had become established as a fact existing since the
very creation of the FRY; the “fact” that the FRY was a continuator of the
SFRY had not existed at any time. In its Judgment the Court, without
explicitly saying so, espoused one of the views existing in 1996 (and
summarized above). The majority in the present case treats this view as the
only known fact at the time, disregarding other, predominant views. The
legal situation was admittedly complex, as indicated by the majority, but it
was known in all its complexity. The truth is that the fact was not seen by
the Court in its entirety and that later events demonstrated that it
differed from that which provided the basis for jurisdiction in the 1996
Judgment.
51. Even if none of the interpretations advanced above are accepted, the
follow-up to Security Council resolution 777 (1992) and General Assembly
resolution 47/1, which was known to the Court at the time of the rendering
of the Judgment of 11 July 1996, was, to say the least, inconclusive. For
the purposes of the Order on provisional measures, the developments until
April 1993 could have possibly warranted the provisional assumption that the
FRY was a continuator of the SFRY, but the situation in 1996 had not
developed to the degree that it allowed a final determination that the Court
had jurisdiction on such basis.
52. The process of determining the nature of the extinction of the SFRY was
not completed on 11 July: it could not have been brought to an end by
unilateral action of the FRY without the necessary confirma-[p 68]tion of
the relevant organs of the United Nations or another “competent organ
representative of the international community of States”.
53. According to Article 61, paragraph 2, of the Statute of the
International Court of Justice, the purpose of the judgment opening the
proceedings for revision is limited to the initial determination of the
existence of a new fact and of its (decisive) nature. The judgment to be
delivered in this case should enable the Court to go more deeply into the
matter of its jurisdiction
on the basis of facts that existed in July 1996 but acquired their real
meaning only on 1 November 2000. Opening the proceedings for revision would
not preclude any possible finding by the Court that the facts existing at
the time of the 1996 Judgment were such that the Court could nevertheless
entertain jurisdiction. Declaring the Application for revision inadmissible
only by reference to the literal meaning of the word “fact” misses a serious
opportunity to decide on important matters relating to the jurisdiction of
the International Court of Justice.
54. One of these important matters is the question of the access to the
Court of States other than States parties to the Statute of the Court under
Article 35, paragraph 2, of the Statute. These issues were, admittedly,
touched upon in its 1993 Order on provisional measures, but the Court has
never really discussed the scope of the “treaties in force” provision. For
instance, are the conditions in Article 35, paragraph 2, objectively laid
down by the Statute, or can they be changed by agreements of States? Could
the FRY, if it was not a party to the Statute of the International Court of
Justice before 1 November 2000, come before the Court before 1 November
2000?
55. In view of the consistent opposition of Bosnia and Herzegovina to the
claim of the FRY to continuity and its frequently repeated protests against
any action resting on this claim, the Court should have examined its
jurisdiction proprio motu and not have been satisfied by the fact that
Bosnia and Herzegovina did not dispute that jurisdiction in this particular
case. The jurisdiction of the International Court of Justice is optional,
which means that any consent to it by a State should be carefully examined
and narrowly interpreted. The process of determining the nature of the
extinction of the SFRY was not completed on 11 July 1996; it could not have
been brought to an end by unilateral action of the FRY without the necessary
international confirmation. The admission of the FRY to the United Nations
as a new Member completed the process by confirming the general sense in the
international community that the FRY, while being one of the
successors to the SFRY, was not its continuator, with all the consequences
following therefrom, including its participation in international treaties.
The “sui generis position which the FRY found itself in vis-à-vis the United
Nations over the period 1992 to 2000”, as the majority describes the status
of the FRY in paragraph 71 of the Judgment, was an insufficient ground to
establish the jurisdiction of the International [p 69] Court of Justice. In
paragraph 70, the majority admits that it was not known in 1996 whether the
FRY would apply for membership in the United Nations and whether it would be
admitted, but still bases the whole argument on the assumption that the
admission of a State as a Member of the United Nations does not necessarily
result in the conclusion that it had not been a Member prior to admission.
If for some curious reason that logical conclusion does not apply in this
particular case, it would be an exception to the rule. All exceptions,
including this one, must be strictly construed and their existence
unequivocally proven, but this was not done by the majority.
56. When pressing its claim to continuity, the FRY was apparently seeking to
benefit from some advantages of the continuator State, while being
reconciled to the disadvantages of such status. By constantly protesting
against that claim of the FRY, Bosnia and Herzegovina was in a reciprocal
position. The result, depriving the FRY of all advantages and leaving it
with the burden of being submitted to the jurisdiction of the International
Court of Justice, while giving Bosnia and Herzegovina all the benefits, in
the only instance where it recognized the claim of the FRY to continuity,
was tantamount to differential treatment.
57. Admittedly, there could have been other bases for the jurisdiction of
the Court, including a construction that would not rely on the FRY remaining
bound by treaty obligations of the former
SFRY, but the Court dismissed them in paragraph 41 of the 1996 Judgment.
They could have been examined had the case been opened for revision.
(Signed) Vojin DIMITRIJEVIC.
[p 70]
SEPARATE OPINION OF JUDGE MAHIOU
[Translation]
Application for revision — Admissibility of the Application — Article 61 of
the Statute of the Court — Notion of "fact" — Existence or non-existence of
a new fact — Membership in the United Nations — Jurisdiction ratione
personae, ratione matenae and ratione temporis of the Court — Admission to
the United Nations and consequences — Genocide Convention — Conduct of the
Applicant —Fault of the Applicant
1. While fully subscribing to the Court's concise reasoning and
conclusions, I wish to enlarge on my agreement by briefly addressing
several points, some of which are not raised in the Judgment, since the
Court found that there was no new fact and that a ruling on these points, or
for that matter on the other requirements under Article 61 of the Statute of
the Court, would therefore be superfluous.
Yugoslavia relies on three allegedly decisive "facts" to found its
Application for revision of the Court's Judgment of 11 July 1996; it claims
to have discovered in 2000 that it was not amenable to the jurisdiction of
the Court at the date of the Judgment because
— it was not a Member of the United Nations,
— it was not a party to the Statute of the Court,
— it was not bound by Article IX of the Genocide Convention of 9 December
1948,
— and these facts were known neither to Yugoslavia nor to the Court
2 .Without wishing at this stage to enter into a complex semantic debate on
the notion of "fact" (see in particular the valuable comments by Mr. S.
Torres Bernárdez, former Registrar of the Court, m "A propos de
l'interprétation et de la revision des arrêts de la Cour internationale de
Justice", Mélanges en l'honneur de R Ago, 1987, Vol. III, pp 473-478) and
simply proceeding from the basic definition given m all dictionaries,
notably those of public international law, I note that a fact is an event
which occurred, which took place at a given point in time. From this basic,
common-sense definition a crucial element stands out the existence or
objective reality of the fact, and hence the Court's ascertainment or
finding that it did indeed happen, or that it occurred at an appropriate
time such as to enable it to be invoked.
3 Now, what can be said of the three "facts" relied upon by Yugoslavia ? To
begin with, the physical or objective reality of these three "facts" is not
immediately apparent, nor has it come to light later In a manner of
speaking, they are not raw facts whose existence and ascertainment are
inescapable; rather, they are the product of a process of interpretation [p
71] and representation. They are invoked only as a result of the occurrence
of a separate, subsequent, fact, this one indisputable the decision on 1
November 2000 to admit Yugoslavia to the United Nations In other words, from
an established fact occurring in 2000 Yugoslavia infers by means of an
intellectual construct that other "facts" did not exist in 1996 or that they
were different m nature But, although appearing logical, this retrospective
intellectual construct proves unfounded, notably in relation to the
requirements of Article 61 of the Statute of the Court In reality,
Yugoslavia in its reasoning relies on the admission decision in 2000 to
advance an argument in the form of a syllogism in order to be a party to the
Statute of the Court, a State must be a Member of the United Nations,
Yugoslavia was not a Member of the United Nations m 1996, hence, Yugoslavia
was not a party to the Statute of the Court or amenable to its jurisdiction
However, if the syllogism is to hold, each of the premises must be true, if
not, the syllogism is invalid.
4 .While it is true that, subject to Article 35 of the Statute, a State must
normally be a Member of the United Nations in order to be a party to the
Statute of the Court, the second premise, that Yugoslavia was not a Member
of the United Nations between 1992 and 1996, and the con-clusion, I e , that
it was not amenable to the jurisdiction of the Court, remain to be proved.
They beg the question, based as they are on the mere assumption that
Yugoslavia's admission to the United Nations in 2000 means that it was not a
Member before then, notably during the period between the seism of the Court
and the 1996 Judgment. But this assertion, arrived at by highly abstract
reasoning on the basis of an argu-mentum a contrano, actually obscures the
facts, namely the complexities and uncertainties affecting Yugoslavia's
status during that period, as witnessed not only by the debates before the
various United Nations organs, the statements by the United Nations
Under-Secretary-General and the position of the Court, but also and above
all by the conduct of Yugoslavia itself.
5 .After having long interpreted these complexities and uncertainties as not
precluding it from being a Member of the United Nations, Yugoslavia
reinterprets and re-charactenzes them, for purposes of its Application m
2001, as factors disproving its membership in the United Nations But the
facts are the same and, while still ambiguous, and therefore open to
conflicting interpretations, they are unchanged It has only been
Yugoslavia's intellectual representation of the facts and its position
which have changed, a change made with a view to seeking revision of the
Judgment of 11 July 1996 Since the facts remain the same, it is clearly
difficult to discern any new facts justifying an application for revision A
new representation of the same reality does not transform it into a new
fact As stated in the award rendered by the Franco-German Mixed Tribunal on
29 July 1927 in the Baron de Neuflize case [p 72]
"revision is not warranted by criticism of a legal doctrine or by a
different assessment of the facts, or even by both, but solely by a lack of
information concerning the facts" (Recueil des décisions des tribunaux
arbitraux mixtes, VII, p 632)
6 .Moreover, assuming that the hypothetical "facts" resulting from inference
and a new representation match the reality, are they "new" within the
meaning of Article 61 of the Statute of the Court7 Although it cites three
"new facts", Yugoslavia's Application in effect is based essentially on a
single, purportedly "new", "fact", inferred a contrarw from its admission to
the United Nations on 1 November 2000 namely, that it did not belong to the
United Nations at the time of the Judgment This, it would appear, is the
only "fact" — from which the other two are claimed to follow — that could
serve as the basis for an application for revision Assuming further, as a
working hypothesis, that this construct, which infers from a fact occurring
in 2000 the existence — or rather nonexistence — of a different fact in
1996, is accepted, was the discovery or awareness of it new? Ultimately,
that is the question it is not the fact itself which is inherently or
objectively new, it is the knowledge of that fact which must be new to the
party relying upon it or to the Court which handed down the Judgment Is that
the case here?
7. In respect of Yugoslavia, the debate as to whether or not it was a Member
of the United Nations started immediately after its break-up, that debate
grew even more heated after its declaration of 27 April 1992 that it
continued the State and the international legal personality of the former
Socialist Federal Republic of Yugoslavia The other States arising out of the
former Yugoslavia sharply attacked that declaration on various, essentially
political, grounds, notably and specifically in respect of membership in the
United Nations They maintained that the new Yugoslavia must be on an equal
footing with them, that it could not be the continuator State of the former
Yugoslavia, of which they also were part, and that it should apply for
membership and become a successor State on the same basis as them.
8.The debate was taken up in the Security Council and the General Assembly,
both of which refused to recognize automatic continuity, required an
application for membership and suspended Yugoslavia's participation in the
work of the General Assembly That was when the problem of membership in the
United Nations entered a grey area, being insusceptible of clear resolution,
as was confirmed by the Under-Secretary-General's letter of 29 September
1992 All the various positions taken, whatever their legal status and
whatever actual or potential self-contradictions they might contain, are
clear evidence not only that this fact is not new but that it had been of
concern to Yugoslavia, to the other States resulting from its break-up and
to the international community, [p 73] including the United Nations The
United Nations put an end to one uncertainty when Yugoslavia finally decided
to apply for membership as from 1 November 2000, Yugoslavia has effectively
been a Member of the United Nations That is beyond doubt and clarifies one
problem for the future but it does not resolve, and does not retroactively
undo, the prior situation, namely the differences of opinion concerning
Yugoslavia's status vis-à-vis the United Nations before its admission on 1
November 2000 True, the "complexity", "difficulties" or "inconsistencies" of
the situation which was created at the time and persisted may be
regrettable, but that situation did exist, and that remains the case today.
9. Thus, between 1992 and 1996 the fact was perfectly well known to
everyone, particularly to the party relying on it today, even though there
may have been great uncertainty as to the exact solution to be applied to
the problem raised. In any event, there were enough substantial,
trouble-some indices to alert Yugoslavia and to prompt it to reflect upon
its position vis-à-vis the United Nations Under other circumstances, more
favourable indeed to the Applicant in some respects, the Court has not
hesitated to reject the contention that the fact relied upon was unknown and
to draw inferences from the lack, or insufficiency, of diligence in becoming
aware of the fact Thus, m the Fisheries case, in which the United Kingdom
contended that it was unaware of an 1869 Norwegian Decree concerning the
delimitation of the territorial sea, the Court stated "as a maritime Power
traditionally concerned with the law of the sea and concerned particularly
to defend the freedom of the seas, the United Kingdom could not have been
ignorant of the Decree of 1869" (/ CJ Reports 1951, p 139) In another case,
that concerning Application for Revision and Interpretation of the Judgment
of 24 February 1982 in the Case concerning the Continental Shelf
(Tunisia/Libyan Arab Jamahinya) (Tunisia v Libyan Arab Jamahinya), the Court
was critical of Tunisia for having failed, in respect of the delimitation of
a Libyan concession, to seek "to know the co-ordinates of the Concession, so
as to establish the precise extent of the encroachment on what it regarded
as Tunisian continental shelf (I C J Reports 1985, p 205, para 24) Yet in
the present case not only was the debate as to whether or not Yugoslavia was
a Member of the United Nations no secret to anyone, it lay at the heart of
international debate, engendering an uncertainty which at that time could
only lead to further debate regarding Yugoslavia's international relations,
including its status vis-à-vis the Statute of the Court and the Genocide
Convention This is unlike the situation cited in the United States-Mexico
claim in the Shreck case, where an arbitral award had been founded on the
erroneous assumption that the claimant was a United States citizen when he
was in fact a citizen of Mexico, the discovery of the true nationality was
a new fact which had been unknown to the tribunal and which justified the
request for reconsideration (see J B Moore, History and Digest of the
International Arbitrations to which the [p 74] United States has been Party,
1898, Vol II, p 1357) The position here is different, more like that of the
United Kingdom or Tunisia, Yugoslavia should have given more serious
consideration during the proceedings to its conduct and, in particular,
should have looked to the Court, at the appropriate time and in a more
justifiable way, for a solution to the problem.
10. If the problem was thus clearly known to the party now seeking revision,
it was in consequence also clear to the Court, once the Court had been
called upon to rule on the request for the indication of provisional
measures for purposes of its Order of 8 April 1993 Without at the time
making an issue of this point, Yugoslavia admits — as is moreover recalled
in its Application instituting proceedings — the "complexities" and
"controversies" characterizing its position vis-à-vis the United Nations,
nor did these escape the Court In adjudicating upon its jurisdiction and the
admissibility of the Application, the Court was aware of all the potential
issues of fact and law, but it considered it unnecessary in the
circumstances, in order to make its ruling, to address the issue of
Yugoslavia's status One of the recitals in the Court's Order is particularly
revealing in this regard
"Whereas, while the solution adopted is not free from legal difficulties,
the question whether or not Yugoslavia is a Member of the United Nations and
as such a party to the Statute of the Court is one which the Court does not
need to determine definitively at the present stage of the proceedings"
(Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro)),
Provisional Measures, Order of 8 April 1993,1 C J Reports 1993, p 14, para
18)
11. If the Court, in its subsequent consideration of the case, was not
required, and rightly so, to concern itself with the issue of membership in
the United Nations, that was not only because Yugoslavia did not ask it to
do so but also because Yugoslavia persisted m its position, maintain-ing the
"uncertainties and dilemmas" (see Yugoslavia's Application of 24 April 2001,
p 16), the "[controversies and dilemmas" (ibid, p 20), the "mixed signals"
(ibid, p 24) and the "complexities and dilemmas" (ibid, p 26) to which it
makes repeated reference in its Application for revision.
11. Further, even after filing the Application for revision of the Judgment
of 11 July 1996, Yugoslavia remained just as equivocal and
self-contradictory in its conduct, for, at the same time as it was denying
the Court's jurisdiction and claiming not to be bound by the Genocide
Con-vention, it was, and still is, the Applicant in other cases before the
Court Thus, in submitting and justifying the Applications of 29 April 1999
against ten NATO members (Belgium, Canada, France, Germany, Italy, the
Netherlands, Portugal, Spain, the United Kingdom and the United [p 75]
States of America) in the cases concerning Legality of Use of Force,
Yugoslavia invokes the same bases of jurisdiction as those relied on by the
Court in its 1996 Judgment, namely Yugoslavia's declaration recognizing the
compulsory jurisdiction of the Court and Article IX of the Genocide
Convention, and it was on those same bases that the Court made its Orders of
2 June 1999 on the requests for the indication of provisional measures
Eight of these ten cases are still pending before the Court, while the other
two Applications, against Spain and the United States, were dismissed on
account of the specific reservations to the Genocide Convention made by
those two States.
13. Moreover, the scope and length of the debate over Yugoslavia's
membership in the United Nations show that everyone was aware of this fact,
even though views differed, as noted above, as to the exact way m which the
problem should be resolved. These differences of opinion are the very
evidence which makes it impossible to speak of a fact that was "new" and
unknown to the party seeking revision and to the Court, which referred to it
in its Order of 8 April 1993 and rendered its 1996 Judgment in full
awareness of it, but without addressing it, because it had not been
requested to do so and it was unnecessary for it to do so.
14. In conclusion, without there being any need to raise the issue of forum
prorogatum already debated in connection with the additional requests for
the indication of provisional measures in 1993 (see in particular the
separate opinion of Judge ad hoc Lauterpacht, IC J Reports 1993, pp 416-421)
and with the preliminary objections in 1996, it is apparent that there is no
new fact but simply a new presentation or characterization of the same
reality by Yugoslavia, whose conduct has changed for the better — at which
all should rejoice — without however effacing its earlier misconduct Even
though the question of its status was pending before the United Nations
throughout the duration of the proceedings before the Court, not only did
Yugoslavia fail to seek ways and means to clarify the situation but it has
continued to maintain the uncertainty, pro-longing it up to the present day,
as stated in paragraph 12 above Today's authorities in Yugoslavia were not
the source of the misconduct, which is attributable to their predecessors,
but that changes nothing m terms of responsibility, for the fault is one
attributable to the State concerned, notwithstanding that there has been a
change of regime and the beginnings of a change in legal policy
(Signed) Ahmed Mahiou.
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