|
Court's Opinion:
....................................................................................Judgment
.....THE COURT . . . 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
. . . instituting proceedings, whereby . . . 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).
...........................................................................................
. . .
.....17. . . . 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
[which would be a basis for modifying, and as the defendant wished,
dismissing the entire proceedings because the defendant did not
exist].
............................................................................................
. . .
.....25. In the early 1990s the
SFRY [Socialist Federal Republic of Yugoslavia] 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.
...........................................................................................
. . .
27. An official Note . . . from the Permanent Mission of Yugoslavia
to the United Nations [in 1992] . . . 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) [in response
to the paragraph 27 Yugoslavian Mission's Note to the UN] which
read as follows:
The Security Council,
......................................................................................
. . .
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;
........................................................................
. . .
.....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;
............................................................................
. . .
.....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 request[ed] 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
Federal 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 UN's Economic and
Social Council would soon exclude the defendant from participating
in its activities.] 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.)
.............................................................................
. .
.....33. The Court recalls that
between the adoption of General Assembly resolution 47/1 of 22
September 1992 and the admission of the FRY [upon its successful
application for membership] to the United Nations on 1 November
2000, the legal position of the FRY remained complex, as shown
by the following examples.
............................................................................................
. . .
.....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 [textbook §11.2], and a vote thereon, the FRY was
excluded from participating in the said meetings. . .
.....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 [ousting]
adoption of Security Council resolution 777 (1992) and General
Assembly resolution 47/1.
...........................................................................................
. . .
.....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."
...........................................................................................
. . .
.....50. On 31 October 2000, the
Security Council . . . "recommend[ed] to the General
Assembly that the Federal Republic of Yugoslavia be admitted
to membership in the United Nations." On 1 November 2000,
the General Assembly . . .
.....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.
...........................................................................................
. . .
.....52. . . . 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".
.................................................................................
. . .
.....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 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.
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. . . .
With regard to Bosnia and Herzegovina, the Court . . . 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."
.................................................................
............. . . .
.....65. The Court will now examine
whether the FRY relies on facts which fall within the terms of
Article 61 of the Statute [with a view toward "revising"
the 1996 judgment to dismiss this case].
.....66. As recalled above, 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 [to essentially absolve FRY from State responsibility
for Genocide].
...........................................................................................
. . .
.....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 [1992] 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.
...........................................................................................
. . .
.....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.
...........................................................................................
. . .
.....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. |
....Dissenting Opinion of
Judge Dimitrijevic
........................................................................III.
Facts in the Present Case
...........................................................................................
. . .
.....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.
...........................................................................................
. . .
......................................IV.
The Legal Status of The Socialist Federal Republic of Yugoslavia,
.......................................Of
The Federal Republic of Yugoslavia And of "Yugoslavia"
in 1996
...........................................................................................
. . .
.....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.)
...........................................................................................
. . .
.....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).
...........................................................................................
. . .
.....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. . . .
.....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 [this one] before the International Court of
Justice.
...........................................................................................
. . .
.....37. . . . 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 [SFRY Assembly]
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 . . . .
.....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".
............................................................................................
. . . |
Notes & Questions
.....1.
Paragraphs 28 and 29 of the ICJ's opinion contain the Security
Council and General Assembly rejections of the paragraph 27 Note
from the Permanent Mission of Yugoslavia. These two UN bodies
simultaneously determined that the "FRY" was not the
successor entity to the "SFRY." Paragraph 30 echoed
Bosnia and Croatia's express understanding that the: (a) SFRY
was not a UN member any more; (b) FRY was "clearly not yet
a member;" and (c) "Yugoslavia" flag in front
of the UN–and the name-plaque bearing that name in the General
Assembly chamber–did "not represent anything or anybody
any more." As noted in paragraph 31, Slovenia and Macedonia
likewise objected to the claim that "FRY" represented
the former Yugoslavia at the UN. So how could the ICJ thus decide
this case against the defendant for the interim period between
Bosnia's 1993 filing and the defendant's 2003 application to
alter the 1996 judgment against the defendant?
.....2. Why was the "phantom
State," as it was labeled by the dissenting Justice Dimitrijevic,
neither the SFRY nor the FRY? Note that the defendant entity
in these proceedings–between 1993 and 2000–was not
the former Yugoslavian provinces "Serbia and Montenegro."
That union was formed and admitted to the UN in 2000. It thereafter
reclaimed the former Yugoslavia seat in the General Assembly.
.....3. Did the points made
by the dissenting justices convincingly suggest that this case
was wrongly decided?
.....4. Was the defendant
in this decade-long proceedings, a "State" under the
four Montevideo Convention elements appearing in §2.3 of
this book on Recognition of States?
.....5. On February 4, 2003, the European Union brokered
an arrangement whereby "Yugoslavia" was finally legally
abolished. Serbia and Montengro, former provinces--and now the
remnant--of Yugoslavia each have sovereignty. They are linked
for defense and foreign affiars purposes, with the common capitol
in Belgrade. The departing prime minister of Yugoslavia praised
this development as being beneficial for the two remaining republics,
and one that "puts an end to the disintegration in the region."
See D. Simpson, Yugoslavia is Again Reinvented in Name and Structure,
NYT on the Web (Feb. 5, 2003).
.....6. Almost two years after the above Bosnia
v. FRY case was decided, the ICJ dimissed a distinct case,
wherein the Applicant " _______ " sued NATO nations.
That military campaign was conducted without the imprimatur of
a UN Security Council resolution authorizing the use of force.
When initially filed during the bombing in 1999, the plainitff
entity sought provisional measures that--if granted--would have
ordered the defendants to cease the bombing campaign. In an earlier
phase of these proceedings, the Court denied the Applicant's
preliminary request for an injunction against the NATO bombing.
The ICJ did not decide, however, whether the Applicant was a
member of the UN--and the companion ICJ Statute permitting the
Court to resolve contentious cases only between "States."
This allowed the case to remain on the Court's docket, because
denying the requested injunction was not a judgment on the merits
of the underlying claim against the NATO nations. For a succinct
but authoritative analysis of the ICJ's decision(s in the seperately
filed cases against each defendant NATO nation), see P. Bekker
& C. Borgen, ASIL Insight: World Court Rejects Yugoslav Requests
to Enjoin Ten NATO Members from Bombing Yugoslavia (June, 1999):
<http://www.asil.org/insights/insigh36.htm>.
.....The
ICJ's December 2004 dismissal of this case, unanimously
held that the defendant nations correctly argued that Serbia
and Montenegro was not a UN member when this case was originally
filed in in in 1999. Serbia and Montenegro was characterized
as not having "standing" [see §1.5 on avoidance
of issues arising under International Law]. Put another way,
Serbia and Montenegro did not have the legal personality to presetn
this claim on behalf of the people in the former Yugoslavia.
Thus, the ICJ never could have had jursidiction to proceed with
this case. The critical date for establishing Serbia and Montenegro's
right to proceed with this case is the date that these proceedings
were filed. The April 1999 filing date fell between the 1992
demise of the former Yugoslavia ("SRFY") and the 2000
application and admission of the "FRY" to the United
Nations--thus providing first legal access to the ICJ long after
the 1999 filing date of this Legal Use of Force case.
Case Concerning Legality of the Use of Force (Serbia and Montenegro
v. Belgium--one of eight simultaneous judgments), Judgment of
December 15, 2004, available at <http://www.icj-cij.org/icjwww/idocket/iybe/iybeframe.htm>.
In addtion to the ICJ online summary, see P. Bekker, J. Levine
& F. Weinacht, The World Court Dismisses Serbia and Montenegro’s
Complaints
against Eight NATO Members, ASIL Insight (Dec. 2004), available
at: <http://www.asil.org/insights/2004/12/insight041223.htm>.
.....First,
is the ICJ's decision the later Legality of Use of Force
case consistent with the Court's decision in Bosnia v. FRY?
Second, having read about both cases, could any entity have filed
the Legality of Use of Force case in the ICJ in 1999? |