304

DISSENTING OPINION OF JUDGE FISCHER

To my regret I am unable to concur in the decision of the Court for the
reasons which I shall briefly set forth below. My remarks will concentrate
on the principal divergence of views.

On the other hand, I am in agreement with some of the reasoning of the
Court.

1. I agree, for example, with the description of what can be called the
relevant area and the area of overlapping claims (synonymous with the
“disputed area”). However, I do not share the Court’s view that the so-
called “area of overlapping potential entitlement” is relevant. It is a fact
that Norway has claimed median lines constituting the delimitation of the
continental shelf and the fisheries zones as it is a fact that Denmark has
claimed a delimitation line 200 nautical miles from East Greenland. The
claims of the Parties are decisive, not the entitlement.

The distinction in this case between “entitlement” and “delimitation” is
important and must always be kept in mind. I will revert to this matter in
another context.

The case is characterized by a rather simple geography: the extensive,
well-defined coast of East Greenland confronting the equally well-
defined but much smaller coast of West Jan Mayen.

2. I also agree with the Court in rejecting the principal contentions of
Norway that median lines delimitation in respect of the continental shelf
areas and the fisheries zones between Greenland and Jan Mayen are “in
place”. These contentions were mainly based on the 1965 Agreement, the
1958 Convention on the Continental Shelf and the conduct of the Parties,
especially of Denmark. The Court did rightly not accept any of these argu-
ments.

3. On the whole I agree with the Court as to the question of whether
there should be one line of delimitation as claimed by Denmark or two —
coinciding — lines as claimed by Norway. The Court is — even without an
agreement between the parties — competent to declare that a delimitation
of the shelf and of the fisheries zones should be based on a single line. The
fact that the present case has been brought before the Court by the uni-
lateral application of Denmark has therefore not been relevant.

The legal paths leading to the final outcome of either a single line or two

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(coinciding) lines are or may be different. However, when the result is
attained, is there then any difference between a single line on a given geo-
graphical position or two coinciding lines on this same position? In my
view, there is not. It is the location of the delimitation which matters, not
whether the delimitation is effected by one line or two coinciding lines.

4. Lagree with the Court that the legal sources governing the case are
the 1958 Convention (Art. 6) as regards the continental shelf and custom-
ary law as regards the fisheries zone. I do not, however, consider the
1958 Convention to be the sole legal source concerning the continental
shelf delimitation, as Article 6 of that Convention has to be interpreted
according to and to be supplemented by customary law.

The Court itself has mentioned the tendency towards assimilation of
the “special circumstances” of Article 6 and the relevant circumstances of
customary law, because both aim to promote the achievement of an equi-
table result.

5. I disagree with the Court when it deduces from Article 6 that it
is appropriate provisionally to draw a median line as a first stage in the
delimitation process.

By means of this legal method the Court has been able to reach its deci-
sion of establishing a delimitation line located between the lines claimed
by the two Parties.

The approach whereby the Court first used a provisionally drawn
median line and then enquired whether special circumstances required
another boundary is set forth in the Judgment after the Court’s rejection
of the Norwegian contentions that median lines are in place, but before it
considers whether the Danish claims are equitable or justified. The Court
apparently arrived a priori at the conclusion that those claims would lead
to an inequitable result.

I do not consider this manner of proceeding to be the proper one. In my
view, the Court should, after having examined the Norwegian claims,
have examined the Danish claims and only then, if the Danish claims were
found to lead to an inequitable result, should it have considered whether a
provisional line — the median line or another line — could appropriately
be used.

6. The Court has in my view not produced any substantial arguments in
favour of the use of the median line as a starting point for the delimitation
process.

I do not see how one can defend the contention that Article 6 of the
1958 Convention justifies this method. The Article does not contain any
provisions about using the median line as a provisionally drawn line.

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The Court has assumed that the striking difference in the length of the
two relevant coasts constitutes “special circumstances” within the mean-
ing of Article 6, which means that a delimitation line other than the
median line has to be established. It is difficult to understand how it can
then conclude that a median line should be used as a provisional line.

7. The Court has referred to the Continental Shelf (Libyan Arab Jama-
hiriya/Malta) case where the tracing of a median line by way of a pro-
visional step in a process to be continued by other operations was con-
sidered to be the most judicious manner of proceeding with a view to
the eventual achievement of an equitable result.

Reference has also been made to the Anglo-French Court of Arbitra-
tion which, in 1977, applied the equidistance line as a provisional line.
These cases are however so different from the present one in respect of
geographical and other factors, that there seems to be no justification
from drawing any conclusions from them as to the appropriateness of
using a provisional median line in the present case.

It is, moreover, possible to adduce other cases with different stand-
points, as for instance the case concerning the Continental Shelf (Tunisia/
Libyan Arab Jamahiriya):

“Nor does the Court consider that it is in the present case required,
as a first step, to examine the effects of a delimitation by application
of the equidistance method, and to reject that method in favour of
some other only if it considers the result of an equidistance line to be
inequitable.” (.C.J. Reports 1982, p. 79, para. 110.)

8. Itseems to me that the Court, when deciding to use a median line as a
provisional line, has accorded a preferential and unwarranted status to
the median line.

This attitude corresponds to the general attitude of the Court in this
case to the effect that prima facie a median line between opposite coasts
results in an equitable solution. This does not, in my opinion, correspond
to the developments in international law since 1958 especially as codified
by the 1982 Convention on the Law of the Sea, which has diminished the
significance attached to the median line principle, seen as no more than
one means among others of reaching an equitable result.

I do not think that, in the absence of an agreement, the median line
according to Article 6 of the 1958 Convention can be considered as
the main rule while “special circumstances” constitute the exception. The
two alternatives are, in my opinion, placed on the same footing. The pri-
mary task is therefore, to examine whether in the present case there are
special circumstances which justify a boundary other than the median line
and, if so, where such a line is to be drawn.

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307 MARITIME DELIMITATION (DISS. OP. FISCHER)

Article 6 contains no indication of the precise nature of “special circum-
stances” but it is generally accepted that those circumstances are such as
to lead to an equitable solution.

9. The claims of Denmark to a delimitation line running 200 nautical
miles from the coast of Eastern Greenland have, as mentioned, been
examined by the Court only in the context of the adjustment of the provi-
sional median line and were rejected on the grounds that the allocation of
the whole of the disputed area and its resources to one of the Parties would
not have been considered equitable. The Court has also asserted that the
coast of Jan Mayen, no less than that of Eastern Greenland, accords full
title to the maritime areas recognized by customary law, i.e., in principle
up to a limit of 200 miles from the baseline, and that the attribution to
Norway of no more than the residual area left after giving full effect to the
eastern coast of Greenland would run counter to the superior require-
ments of equity. According to the standpoint of the Court, neither of the
States with opposite coasts can require the other State to renounce its
claim to the full maritime area. This leads me to think that the Court has
not drawn a clear distinction between “entitlement” and “delimitation”.

10. The distinction between the two concepts is important, because the
law applicable to the basis of entitlement to areas of continental shelf or
fishery zones, is different from — albeit complementary to — the law
applicable to the delimitation of such areas (see the case concerning the
Continental Shelf (Libyan Arab Jamahiriya/Malta), I.C.J. Reports 1985,
pp. 29-30, para. 27).

Denmark has not questioned Jan Mayen’s status as an island and, con-
sequently, has neither questioned its entitlement to a fishery zone and a
continental shelf, nor objected to its 200-mile zone towards the open sea.

Delimitation does not by definition and necessarily have to lead to a
partition of the disputed area. No legal norms exist which would prevent a
judicial solution of a delimitation dispute from being one in which one of
the Parties is left with its full zone vis-a-vis the other Party, if such a solu-
tion is found to be equitable.

11. Customary law concerning the delimitation of the continental shelf
and/or of economic zones has been applied in a number of cases by the
International Court of Justice (North Sea Continental Shelf cases, 1969;
Tunisia/Libya, 1982; Gulf of Maine, 1984; Libya/Malta, 1985) and by
other international tribunals (United Kingdom/France, 1977); Guinea/
Guinea-Bissau, 1985; Canada/France, 1992). Some cases were concerned
solely with the continental shelf (North Sea Continental Shelf cases; Tuni-
sia/ Libya; Libya/Malta; United Kingdom/France), while other cases
were also concerned with the delimitation of economic zones and the ter-
ritorial sea (Guinea/Guinea-Bissau and Canada/France).

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308 MARITIME DELIMITATION (DISS. OP. FISCHER)

In all cases concerning maritime delimitation, customary law pre-
scribes that a delimitation is to be effected by the application of equitable
principles (criteria) capable of ensuring an equitable result (Continental
Shelf (Tunisia/Libyan Arab Jamahiriya), LCJ. Reports 1982, p. 59,
para. 70; Delimitation of the Maritime Boundary in the Gulf of Maine Area,
C.J. Reports 1984, p.299, para. 112; Continental Shelf (Libyan Arab Jama-
hiriya/ Malta), I.C.J. Reports 1985, p. 38, para. 45).

Customary law does not define the term “equitable”, which is used to
characterize both the result to be achieved and the means to be employed
in order to attain it. It is, however, the result which is predominant, so that
the equitableness of a principle (criterion) is assessed in the light of its
usefulness for the purpose of arriving at an equitable result. The equi-
tableness of the result is to be determined by a balancing up of all the
relevant factors of the particular case (North Sea Continental Shelf cases,
CJ. Reports 1969, p. 50, para. 93). International tribunals have found a
variety of factors or methods to be relevant, and no factors or methods are
considered to have a privileged status in relation to others. This was
clearly stated in the North Sea Continental Shelf cases (ibid., pp. 53-56,
para. 101) and in the Guinea/Guinea-Bissau case, 1985 (International
Legal Materials, Vol. XXV, No. 2, 1986, p. 294, para. 102).

12. The factors which, in accordance with international judicial prac-
tice, have primarily to be taken into consideration are those related to the
geographical features of the case, especially the relevant area and the rele-
vant fronting coasts. The length of the relevant eastern coast (baseline) of
Greenland is approximately 524 kilometres, the length of the fronting
western coast of Jan Mayen is approximately 57.8 kilometres. Thus, the
ratio of coastal lengths is more than 9 to 1 in favour of Greenland, so that
this case is characterized by a very marked difference between the lengths
of the two relevant opposite coasts. This is why the proportionality factor
is crucial. In the context of a delimitation of the continental shelf, a refer-
ence to that factor is generally taken to imply that there should be a rea-
sonable degree of proportionality between the area of the continental
shelf of the States concerned and the length of their relative coastlines.

13. Proportionality has played an important role as a relevant factor in
many judicial cases concerning delimitation of the continental shelf and
other maritime areas (North Sea Continental Shelf cases, 1969; United
Kingdom/France, 1977 ; Tunisia/Libya, 1982; Gulf of Maine, 1984; Libya/
Malta, 1985; Guinea/Guinea-Bissau, 1985; Canada/France, 1992). The
exact role in the delimitation process has differed in judicial practice and
has been widely discussed by publicists of international law. Proportion-
ality in the lengths of the relevant coasts has either been a factor which,
together with other factors, has been taken into consideration in order to
decide an equitable delimitation or it has — as in the present Judgment —

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309 MARITIME DELIMITATION (DISS. OP. FISCHER)

been used a posteriori as a test of equity and appropriateness of a line
which, as a starting point in the delimitation process, has been drawn on
the basis of equidistance or in accordance with another method of delimi-
tation.

When there are opposite coasts of comparable lengths, a median line
delimitation would, in general, pass the tests of proportionality and
equity. In the present case, however, where the two coastlines are of a
proportion of more than 9 to 1, a median line cannot in my opinion be
considered equitable, not even as a starting point in the delimitation
process.

A median line delimitation would have allocated in total 96,000 square
kilometres of the relevant area to Norway/Jan Mayen and 141,000 square
kilometres to Denmark/Greenland, which corresponds to a ratio of some
1.5 to 1 in favour of Denmark/Greenland. Such a ratio differs greatly from
the ratio of the difference of the lengths of the relevant coasts and would
clearly have been inequitable.

This is also the case — although to a smaller degree — with the ratio,
which follows from the Judgment.

The Court has in its decision, in my opinion, not — sufficiently — taken
the difference between the lengths of the relevant coasts into considera-
tion as it attributes, according to my estimate, some 43 per cent of the area
of overlapping claims (zones 1, 2 and 3) to Denmark/Greenland (approxi-
mately 28,000 square kilometres) and some 57 per cent to Norway/
Jan Mayen (approximately 37,000 square kilometres). This amounts to a
total allocation of some 178,000 square kilometres of the relevant area to
Denmark/Greenland and some 59,000 square kilometres to Norway/
Jan Mayen, which is a ratio of some 3 to 1 in favour of Denmark. I do not
see how this partition can be equitable considering the ratio of the coastal
lengths (9 to 1). A delimitation of 200 miles drawn from Eastern Green-
land would have allocated an area of about 206,000 square kilometres to
Denmark/Greenland and some 31,000 square kilometres to Norway/
Jan Mayen, which is a ratio of some 6.1 to | in favour of Denmark/Green-
land. I therefore consider that considerations of general proportional-
ity — together with certain other considerations — lead to the conclusion
that a delimitation of 200 miles drawn from Eastern Greenland would
have been equitable.

14. The Court has taken no account at all of the considerable differ-
ences between Greenland and Jan Mayen as regards population and
socio-economic factors, on the grounds that such factors undergo modifi-
cations over time and thus cannot serve as a basis for a maritime delimita-
tion which is destined to be permanent. I disagree with the Court as all
these factors have existed for a long period of time and any change in the
foreseeable future is very unlikely. Due to geographical, climatic and

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other local conditions the major differences between Greenland and
Jan Mayen will in all probability continue to exist and are, in my opinion,
stable enough to be taken into consideration.

Besides, the position of the Court that socio-economic factors should
not play a role in the delimitation process because they change has not
prevented it from taking account of access to the fishery resources in the
south of the disputed area.

As has been said, there are no general criteria of customary law that can
serve to determine the weight to be attached to the factors considered rele-
vant in a concrete case, as each case is “monotypic” (Gulf of Maine).

Contrary to the standpoint of the Court, I consider that not only geo-
graphical but also population and socio-economic factors play a part
when one is assessing the equitableness of a maritime delimitation (Deli-
mitation of the Maritime Boundary in the Gulf of Maine Area, I.C.J. Reports
1982, p. 278, para. 59, and p. 340, para. 232). There is no question of assess-
ing single factors individually as relevant, but of assessing and weighing
them up collectively.

The present case is characterized not only by a very marked difference
between the lengths of the two relevant coasts (and the size of the two
landmasses), but also by a fundamental difference between Greenland
and Jan Mayen with respect to their demographic, socio-economic and
political structures. Greenland is a viable human society with a popula-
tion of 55,000 and with political autonomy, whereas Jan Mayen has no
population in the proper sense of the word, as only about 25 persons tem-
porarily stay on the island manning meteorological, radio and LORAN
stations.

15. The economic and other interests described by the Parties in this
case are fundamentally different. The interests described by Denmark
are interests directly connected with Greenland whereas the interests
described by Norway are interests connected with the Norwegian main-
land and its population, not with Jan Mayen. As the case concerns delimi-
tation of the maritime area between Greenland and Jan Mayen it seems to
me that only the population and socio-economic structures of these terri-
tories are in fact relevant and that, in this connection especially, the total
dependence of Greenland on fisheries needs to be stressed.

It is generally recognized that a heavy dependence on fisheries may
be a relevant factor in international law, as far as territories like Green-
land are concerned. This appears from a resolution which was adopted in
connection with the Convention of 29 April 1958 on Fishing and Con-
servation of the Living Resources of the High Seas. In connection with
the adoption of the resolution, particular mention was made of Iceland,
the Faroe Islands and Greenland, as countries whose people are over-

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311 MARITIME DELIMITATION (DISS. OP. FISCHER)

whelmingly dependent upon coastal fisheries for their livelihood or
economic development. That the needs of the coastal population of
Greenland justify special protective measures was also recognized in the
Judgment of 30 November 1982 of the Court of Justice of the European
Communities.

The Court has, as mentioned, taken account of the factor of access to
what it considered to be the capelin zone as it has found that a division of
the southern part of the area of overlapping claims into two equal parts
would give both Parties equitable access to the fishing resources of the
area. In other words, a new type of median line has been introduced. I
disagree with the grounds of the Court as they disregard the above-
mentioned socio-economic factors.

16. The Court did not consider the maritime delimitation between Ice-
land and Jan Mayen, as effected by the treaties of 1980 and 1981, to be a
precedent and the conduct of the Parties to constitute an element which
could influence the operation of delimitation in the present case.

I agree that these treaties do not constitute a binding precedent in the
strict sense of the term but they are in my opinion nevertheless relevant as
an expression of the conduct of Norway and as such of great importance
to the present case.

I consider the Iceland/Jan Mayen delimitation which involves the very
same island which is the subject of the present case to be highly relevant
as a strong indication of what would be an equitable delimitation of the
maritime area between Greenland and Jan Mayen.

17. It is noteworthy that the operative part of the Agreement of 1980
does not contain any provisions concerning the delimitation of the econ-
omic zones but that one of the preambular clauses is the following:

“Considering that Iceland has established an economic zone of
200 nautical miles and that Norway will in the near future establish a
fishery zone around Jan Mayen”.

Thus the Icelandic 200-mile zone, vis-a-vis Jan Mayen, was not agreed
upon by the Parties but existed by virtue of the Icelandic Law of 1 June
1979. The line, unilaterally drawn by Iceland, was then mentioned in the
Preamble of the 1980 Agreement “recognizing Iceland’s strong economic
dependence on the fisheries, cf. Article 71 in the text of the Conference on
the Law of the Sea”. The same point of view was expressed in the Recom-
mendation of 30 May 1980, advanced by the Norwegian Parliamentary
Committee with respect to the 1980 Agreement:

“In that no reservation is made on Norway’s part against the full
200-nautical-mile extent of Iceland’s economic zone also in the area
between Iceland and Jan Mayen, it also implies approval of that

‘extent of the zone in the area mentioned.”

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312 MARITIME DELIMITATION (DISS. OP. FISCHER)

That view also found expression in the Committee’s Report of 27 April
1982:

“The Committee would also recall that, by virtue of the Agreement
of 28 May 1980 between Norway and Iceland concerning fisheries
and continental shelf questions, Norway indirectly approved an
Icelandic economic zone of 200 nautical miles, comprising both
fishing territory and the continental shelf, between Iceland and Jan
Mayen. This approval at the same time marked acceptance on Nor-
way’s part of an Icelandic continental shelf of at least 200 miles
towards Jan Mayen.”

The Agreement of 1981 between Norway and Iceland, following the
recommendations of the Conciliation Commission set up by the
1980 Agreement, provided that the delimitation between the Parties’
respective parts of the continental shelf in the area between Iceland and
Jan Mayen was to coincide with the delimitation line between their
respective economic zones. The Conciliation Commission had, according
to the 1980 Agreement, to “take into account Iceland’s strong economic
interests in these sea areas, the existing geographical and geological
factors and other special circumstances”.

18. The two Agreements by which Norway accepted that the maritime
boundary between Iceland and Jan Mayen should be established to take
account of the existing Icelandic 200-mile zone must, in the context of
developments in the law of the sea, be considered as being in conformity
with equitable principles and expressing a solution which Norway (and
Iceland) considered to be equitable. A median line delimitation would not
have been considered equitable.

19. The factual and legal situation in relation to the maritime delimita-
tion in the area between Greenland and Jan Mayen is very similar to the
context of the delimitation between Iceland and Jan Mayen. Greenland is,
like Iceland, much larger than Jan Mayen and they both have, unlike
Jan Mayen, permanent populations and their own economic and political
structure. Iceland and Greenland have, with regard to their economies,
been put on the same footing as, together with the Faroe Islands, they
have, as has been said, been singled out in connection with the Conven-
tion of 29 April 1958 on Fishing and Conservation of the Living Resources
of the High Seas, as countries or territories whose people are over-
whelmingly dependent upon coastal fisheries for their livelihood or
economic development.

The delimitation between Iceland and Jan Mayen must, as already
stated, be considered to be equitable. As the factors which were relevant in
that case are very similar to the relevant factors in the Greenland/
Jan Mayen case, it would have been just and equitable to draw the delimi-
tation line in the present case in a manner similar to the way in which
the lines were drawn in the Iceland/Jan Mayen case, that is to say, at a
distance of 200 nautical miles from East Greenland.

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313 MARITIME DELIMITATION (DISS. OP. FISCHER)

20. As for the delimitation in the maritime area between Bear Island
and mainland Norway, the Court has found that Norway is no more
bound by that solution than is Denmark to apply, in the present dispute,
the method of equidistance used to effect the delimitation between
Norway and Denmark in the Skagerrak and the North Sea or off the
Faroe Islands. I do not see any analogy between the delimitation situa-
tions concerning Bear Island and the delimitations in the North Sea men-
tioned by the Court as the situation concerning Bear Island is very special.
I consider that the Bear Island delimitation, although it concerns delimi-
tation between two Norwegian territories, has international aspects and
that it is of a certain relevance as expressing the conduct of Norway
concerning a maritime delimitation of an area located between an
uninhabited small island and a mainland.

21. I do not agree with the method of delimitation of the area of over-
lapping claims (zones 1, 2 and 3) which is very ingeniously invented
expressly for this case.

The two lines dividing the area into three zones are drawn between
the points where the Greenland 200-mile line and the median line are
changing direction.

The southernmost zone (zone 1) corresponds — by accident — essen-
tially to the area which, according to the Court, is the principal area for
capelin fishing. It follows from what I have already stated that I do not
consider the division of this zone into two equal parts to be equitable as it
disregards relevant socio-economic factors. Furthermore J do not think
that the Court is in a position to define the main fishing area of capelin
with accuracy as that area might vary greatly.

The division of zones 2 and 3 is based on the sole consideration —
which I strongly contest — that an equal division of all three zones would
give too great a weight to the circumstance of the marked disparity in
coastal length. The division of zones 2 and 3 is thus effected in a way that
leads to the desired delimitation of all three zones. I consider that this
whole method is artificial and that no rules of international law have
been adduced to provide grounds for the method apart from a general
reference to “the requirements of equity”.

22. The judge may — and should — exercise judicial discretion within
certain limits and has to make difficult choices according to his convic-
tions.

In the present case, where the decision is based mainly upon equitable
considerations, the range of choices is wider than in cases involving treaty
law only, and the decision of what should be the equitable solution corre-
spondingly difficult. In many cases as in the present one it seems almost
impossible with 100 per cent certainty to point to one single solution
which could be characterized as equitable. The judge has to make a choice
between several potentially equitable solutions.

For the reasons stated above and after having carefully weighed up all
the relevant factors, I have reached the conclusion that the Judgment is

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314 MARITIME DELIMITATION (DISS. OP. FISCHER)

not the most equitable solution but that a delimitation of the continental
shelf and of the fisheries zone between Greenland and Jan Mayen at a
distance of 200 nautical miles from Eastern Greenland would have been
the most equitable solution and consequently should have been the
outcome of the case.

(Signed) Paul FISCHER.

280


1083

SEPARATE OPINION OF JUDGE ELARABY

The issue of FRY membership in the United Nations — Access to the Court
under Article 35, paragraph 1 — Scope of reference in Article 35, paragraph 2,
to “treaties in force” — The Vienna Convention on Succession of States in
respect of Treaties — The Genocide Convention.

I. INTRODUCTORY REMARKS

In addition to the joint declaration, which reflects my disagreement
with the grounds which led the Court to conclude that it had no jurisdic-
tion in the instant case, I deem it necessary to elaborate further on some
aspects. At the outset, I would like to emphasize that regardless of the
conclusion that the Court reaches on the issue of jurisdiction, and not-
withstanding the fact that the Judgment is confined to deciding on juris-
diction, the Court, as the principal judicial organ of the United Nations,
is always called upon to uphold the law of the Charter. The Court, how-
ever, confined its conclusion in the instant case to noting, in para-
graph 127 of the Judgment, that:

“When, however, as in the present case, the Court comes to the
conclusion that it is without jurisdiction to entertain the claims made
in the Application, it can make no finding, nor any observation
whatever, on the question whether any such violation has been com-
mitted or any international responsibility incurred.”

On this point I am inclined to favour the balance reached by the Court in
the Fisheries Jurisdiction case, where it held that:

“55. There is a fundamental distinction between the acceptance
by a State of the Court’s jurisdiction and the compatibility of par-
ticular acts with international law. The former requires consent. The
latter question can only be reached when the Court deals with the
merits, after having established its jurisdiction and having heard full
legal argument by both parties.

56. Whether or not States accept the jurisdiction of the Court,
they remain in all cases responsible for acts attributable to them that
violate the rights of other States.” (Fisheries Jurisdiction (Spain v.
Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998,
p. 456.)

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1084 LEGALITY OF USE OF FORCE (SEP. OP. ELARABY)

IT. ACCESS TO THE COURT UNDER ARTICLE 35,
PARAGRAPH 1

1. The Court finds that it has no jurisdiction in this case because the
Federal Republic of Yugoslavia (FRY)! did not have access to the Court
at the time it filed its Application. The first ground upon which the
Court makes this finding is Article 35, paragraph 1, of the Statute of the
Court.

2. Article 35, paragraph 1, provides that “[t]he Court shall be open to
the States parties to the present Statute”. Under Article 93, paragraph 1,
of the United Nations Charter, all “Members of the United Nations are
ipso facto [States] parties”. The Court holds that the FRY was not a
State party to the Statute because the FRY was not a Member of the
United Nations at the time it filed its Application in the instant case, and
therefore, in the view of the Court, the Court was not “open” to the
FRY. Because, in my view, the FRY was a Member of the United
Nations when it filed its Application, I disagree.

3. Prior to its fragmentation, the Socialist Federal Republic of Yugo-
slavia (SFRY) consisted of six republics: Serbia, Croatia, Bosnia and
Herzegovina, Macedonia, Slovenia, and Montenegro. On 25 June 1991,
Croatia and Slovenia both declared independence, followed by Macedo-
nia on 17 September 1991, and Bosnia and Herzegovina on 6 March 1992.
On 22 May 1992, Croatia, Slovenia and Bosnia and Herzegovina were
admitted as Members of the United Nations. The “Former Yugoslav
Republic of Macedonia” was admitted to membership in the United
Nations on 8 April 1993.

4. The FRY came into being on 27 April 1992. On that date, a joint
session of the National Assembly of the Republic of Serbia and the
Assembly of the Republic of Montenegro proclaimed a new constitution
of the “Federal Republic of Yugoslavia”, and also adopted a Declara-
tion. The preamble of the Declaration claimed to reflect the common will
of the citizens of Serbia and Montenegro “to stay in the common State of
Yugoslavia”, and also provided that:

“The Federal Republic of Yugoslavia, continuing the state, inter-
national, 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 interna-
tionally.

Remaining bound by all obligations to international organisations

1 On 4 February 2003, the Federal Republic of Yugoslavia officially changed its name
to “Serbia and Montenegro” (FR Y-SM).

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and institutions whose member it is, the Federal Republic of Yugo-
slavia shall not obstruct the newly formed states to join these organi-
sations and institutions, particularly the United Nations and its
specialised agencies.” ?

5. The Declaration was brought to the attention of the United Nations
by a Note of the same date informing the Secretary-General that

“{sltrictly 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” >.

At that time, April 1992, no resolution purporting to oppose or under-
mine the FRY’s assertion was adopted by any competent United Nations
organ and the FRY’s membership was not challenged. This fact suggests
that the FRY was at the time considered to be a United Nations
Member.

6. In September 1992, the Security Council and the General Assembly
each adopted a resolution declaring “that the Federal Republic of Yugo-
slavia (Serbia and Montenegro) cannot continue automatically the mem-
bership of the former Socialist Federal Republic of Yugoslavia in the
United Nations” 4. These resolutions did not suspend the membership of
the FRY in the United Nations in accordance with Article 5 of the Char-
ter. Nor did either resolution have the effect of expelling the FRY from
the United Nations in accordance with Article 6 of the Charter. Earlier,
the Council, on 30 May 1992, had adopted a resolution? imposing eco-
nomic and other sanctions on the FRY — meaning that the conditions
for invoking the provisions of Article 6 existed — yet the FRY was not
expelled.

7. This fact was recognized by the United Nations Legal Counsel, who
on 29 September 1992, addressed a letter to the Permanent Representa-
tives of Croatia and Bosnia and Herzegovina, in which the “considered

? Declaration of the Joint Session of the SFRY, Republic of Serbia and Republic of
Montenegro Assemblies, 27 April 1992, United Nations doc. S/23877, Annex, p. 2.

3 United Nations doc. A/46/915, Ann. I, p. 2.
4 United Nations docs. S/RES/777 and A/RES/47/1.
5 United Nations doc. S/RES/757.

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view of the United Nations Secretariat regarding the practical conse-
quences of the adoption by the General Assembly of resolution 47/1” was
stated to be 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 Repub-
lic 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 con-

vened by it.
On the other hand, the resolution neither terminates nor suspends
Yugoslavia’s membership in the Organization . . . The resolution

does not take away the right of Yugoslavia to participate in the
work of organs other than Assembly bodies.” °

8. In addition, the United Nations Secretariat continued to list
“Yugoslavia” as a Member of the United Nations after September 1992.
“Yugoslavia” also maintained other attributes of membership in the
Organization including its flag, seat and nameplate in the General
Assembly. The FRY was allowed to maintain the Yugoslav Permanent
Mission to the United Nations and to circulate and receive documents.
And “Yugoslavia” continued to be listed in the annual “Scale of Assess-
ments” approved by the General Assembly for the contributions of
Member States to the United Nations budget’.

9. Thus, the only practical consequence of the relevant resolutions was
that the FRY was unable to participate in the work of the General
Assembly and its subsidiary organs, conferences and meetings. They left
untouched its relationship with the Security Council and with this Court.
As the Court found in the 2003 Application for Revision case,

“Resolution 47/1 did not inter alia affect the FRY’s right to

6 United Nations doc. A/47/485, Annex, pp. 2-3; original emphasis.

7 In a series of resolutions, the General Assembly fixed a new rate of assessment for
“Yugoslavia” of 0.11, 0.1025 and 0.10 per cent for the years 1995, 1996 and 1997 respec-
tively (United Nations doc. A/RES/49/19B) and 0.060, 0.034 and 0.026 per cent for the
years 1998, 1999 and 2000 respectively (United Nations doc. A/RES/52/215A).

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appear before the Court or to be a party to a dispute before the
Court under the conditions laid down by the Statute.” (Application
for Revision of the Judgment of 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 (Yugoslavia v. Bosnia and Herzegovina),
Judgment, I.C.J. Reports 2003, p. 31, para. 70.)

Indeed, the FRY actively participated in proceedings before this Court:
it responded to claims with counter-claims; it submitted preliminary
objections, and it appointed an ad hoc judge to participate in the Court’s
deliberations. All these actions confirmed that the FRY was considered a
Member of the United Nations and a party to the Statute.

10. The International Criminal Tribunal for the former Yugoslavia
(ICTY), when it also considered the question whether the FRY was a
member of the United Nations during this period, reached the same con-
clusion. It held that:

“Resolution 47/1 did not deprive the FRY of all the attributes of
United Nations membership: the only practical consequence was its
inability to participate in the work of the General Assembly, its sub-
sidiary organs, conferences or meetings convened by it. Apart from
that, it continued to function as a member of the United Nations in
many areas of the work of the United Nations . . . Thus, while the
FRY’s membership was lost for certain purposes, it was retained for
others . . . The proper approach to the issue of the FRY membership
of the United Nations in the period between 1992 and 2000 is not
one that proceeds on a[n] a priori, doctrinaire assumption that its
exclusion from participation in the work of the General Assembly
necessarily meant that it was no longer a member of the United
Nations. As the FRY membership was neither terminated nor sus-
pended by General Assembly resolution 47/1, it is more appropriate
to make a determination of its United Nations membership in that
period on an empirical, functional and case-by-case basis.” ®

Applying this “functional” approach, the Trial Chamber concluded that
“the FRY was in fact a member of the United Nations both at the time
of the adoption of the [ICTY] Statute in 1993 and at the time of the com-
mission of the alleged offences in 1999”9,

11. The FRY’s formal admission to the United Nations on 1 Novem-

8 Prosecutor v. Milan Milutinovié, Case No. IT-99-37-PT, Decision on Motion Chal-
lenging Jurisdiction, 6 May 2003, paras. 37-38, appeal dismissed, Case No. IT-99-37-
AR72.2, Decision of 12 May 2004 (internal citations omitted).

9 Ibid., para. 39.

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ber 20001°, as was found in the 2003 Application for Revision case,

“cannot have changed retroactively the sui generis position which the
FRY found itself in vis-à-vis the United Nations over the period
1992 to 2000, or its position in relation to the Statute of the Court”
(Application for Revision of the Judgment of 11 July 1996 in the
Case concerning Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herze-
govina v. Yugoslavia), Preliminary Objections ( Yugoslavia v. Bosnia
and Herzegovina), Judgment, I.C.J. Reports 2003, p. 31, para. 71;
emphasis added).

12. Again the ICTY Chamber reached the same conclusion when it
held that:

“the formal admission of the FRY to membership in 2000 in no way
invalidates [the] finding that the FRY retained sufficient indicia of
membership during that period to be amenable to the regime of the
Security Council resolutions adopted under the United Nations
Charter for the maintenance of international peace and security” 11.

13. The Court has now characterized the FRY’s sui generis position as
one that “could not have amounted to its membership in the Organiza-
tion” (Judgment, para. 77) and held that the FRY’s admission to the
United Nations in 2000 “did not have and could not have had, the effect
of dating back to the time when the Socialist Federal Republic of Yugo-
slavia broke up and disappeared” (ibid. }. This, in my view, lacks a solid
legal basis. Whereas the Security Council and General Assembly were
acting in a political capacity when the relevant resolutions were adopted,
the Court, throughout the various phases of the cases related to the
former Yugoslavia, should have consistently stated and applied the appli-

10 On 27 October 2000, the President of the FRY addressed a letter to the Secretary-
General requesting admission of the FRY to membership, stating that

“fijn 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/55/528-S/2000/1043, Annex).

As a result, on 1 November 2000, the General Assembly adopted resolution 55/12, stating
that “/h ]Javing 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” and “/h ]Javing considered the application for membership of the Federal Repub-
lic of Yugoslavia”, it “/d/]ecides to admit the Federal Republic of Yugoslavia to mem-
bership in the United Nations”.

11 Prosecutor v. Milan Milutinovic, Case No. IT-99-37-PT, Decision on Motion Chal-
lenging Jurisdiction, 6 May 2003, para. 44, appeal dismissed, Case No. IT-99-37-AR72.2,
Decision of 12 May 2004.

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cable law. This approach would have yielded an outcome consistent with
the law of the Charter and the established practice of the United Nations
and, I believe, would have led the Court to find that the FRY was a
member of the United Nations when, in 1999, it filed its application in
the instant case. Therefore, the Court should have concluded that it was
open to the FRY under Article 35, paragraph 1.

III. ACCESS TO THE COURT UNDER ARTICLE 35,
PARAGRAPH 2

1. The FRY did not invoke Article 35, paragraph 2, of the Court’s
Statute as a basis for the Court’s jurisdiction. The Court decided proprio
motu to address it!?, holding that the FRY, as a non-party to the Statute,
could not invoke a treaty which entered into force after the entry into
force of the Statute as a basis for access to the Court under Article 35,
paragraph 2. I have explained the reasons for my disagreement with the
Court’s conclusion that the FRY was not a Member of the United
Nations in 1999. However, assuming that it was a non-Member, I also
cannot agree that it would not have access to the Court under the pro-
visions of Article 35, paragraph 2.

2. Article 35, paragraph 2, of the Court’s Statute provides that:

“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.”

3. There are two questions relevant to an Article 35, paragraph 2,
examination: first, whether a “treaty in force” may provide a basis for the
Court’s jurisdiction instead of, rather than in combination with, compli-
ance with the requirements laid down by the Security Council in its reso-
lution 9 of 1946; and second, whether the Genocide Convention can be
considered a “treaty in force”.

12 Although the Court is free to decide the issues submitted to it by the Parties for
reasons other than those advanced by the Parties, it is undesirable as a matter of judicial
policy for the Court to raise proprio motu a legal argument that is not determinative of
one of the Applicant’s submissions, unless there are “compelling considerations of inter-
national justice and of development of international law which favour a full measure of
exhaustiveness” on the matter. Compare Oil Platforms (Islamic Republic of Iran v.
United States of America), I.C.J. Reports 2003, p. 232, para. 27, separate opinion of
Judge Higgins (“it is unlikely to be ‘desirable’ to deal with important and difficult matters,
which are gratuitous to the determination of a point of law put by the Applicant in its
submissions”) with Lauterpacht, The Development of International Law by the Interna-
tional Court, 1982, p. 37.

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4. In respect of the first question, I agree with the Court’s previous
finding 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 Council in its resolution 9 of 1946” (Applica-
tion of the Convention on the Prevention and Punishment of the
Crime of Genocide, Provisional Measures, Order of 8 April 1993,
LC.J. Reports 1993, p. 14, para. 19; emphasis added) .

5. In regard to the second question, I agree with the Court’s previous
finding that “Article IX of the Genocide Convention . . . could... be
regarded prima facie as a special provision contained in a treaty in force
[so as to come] prima facie within the jurisdiction ratione personae of the
Court” (ibid.). The Court now holds, however, that “treaty in force”
means a “treaty in force at the time that the Court’s Statute came into
force”, and therefore concludes that the Genocide Convention, having
come into force after the Court’s Statute, does not give the FRY access
to the Court under Article 35, paragraph 2.

6. The Court begins its analysis of Article 35, paragraph 2, by noting
that

“Tals for the words ‘treaties in force’, in their natural and ordinary
meaning they do not indicate at what date the treaties contemplated
are to be in force, and thus they may lend themselves to different
interpretations. One can construe those words as referring to treaties
which were in force at the time that the Statute itself came into force,
as was contended by certain Respondents; or to those which were in
force on the date of the institution of proceedings in a case in which
such treaties are invoked. In favour of this latter interpretation, it
may be observed that the similar expression ‘treaties and conven-
tions in force’ is found in Article 36, paragraph 1, of the Statute, and
the Court has interpreted it in this sense . . . The expression ‘treaty
or convention in force’ in Article 37 of the Statute has also been read
as meaning in force at the date proceedings were instituted.” (Judg-
ment, para. 100; internal citations omitted.)

13 See also League of Nations, Records of the First Assembly, Meetings of the Com-
mittees, Third Committee, Annex 7, Report Submitted to the Third Committee by
M. Hagerup on behalf of the Sub-Committee, p. 532:

“The access of other [non-members of the League of Nations] States to the Court
will depend either on the special provisions of the Treaties in force (for example the
provisions of the Treaties of Peace concerning the rights of minorities, labour, etc.) or
else on a resolution of the Council.” (Emphasis added.)

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1091 LEGALITY OF USE OF FORCE (SEP. OP. ELARABY)

7. Even assuming — without deciding !* — that the Court is correct in
holding that the term “treaties in force” should be given a more restric-
tive interpretation than the interpretation it is given when it appears in
Articles 36 and 37, in my view the interpretation adopted by the Court —
limiting “treaties in force” to treaties in force at the time the Court’s
Statute came into force — is unduly restrictive.

8. The Court’s interpretation of “treaties in force” is primarily based
on statements in the travaux préparatoires of the Statute of the Perma-
nent Court of International Justice (PCIJ), which contained the original,
and substantially identical, provision. These statements suggest to the
Court that when considering the term “treaties in force” in Article 35,
paragraph 2, the provision’s drafters had in mind the peace treaties with
former First World War enemy States (who were not Members of the
League of Nations and would otherwise not have access to the Court)
concluded before the entry into force of the Court’s Statute.

9. However, there is evidence from the discussion of the Statute’s
drafters that such a narrow interpretation is not warranted. The peace
treaties were considered to encompass all “Treaties of Peace dealing with
the rights of minorities, labour, etc.” ! including any “Treaties other than
the German Treaty [that] form[ed] part of the general peace settlement” !$
and provided for judicial dispute settlement. This interpretation was con-
firmed in 1926 when the Court was considering amendments to the
Court’s Rules. At this juncture it was stated that Article 35 related to
“situations provided for by the treaties of peace” (1926, P.C.LJ., Series D,
No. 2, Add., Acts and Documents, p. 106; emphasis added). And “it was
decided . . . not to lay down, once and for all, in what cases” such treaties

14 The Court’s interpretation conflicts with the prior jurisprudence of the Permanent
Court in the Certain German Interests in Polish Upper Silesia case, in which the Perma-
nent Court impliedly construed the expression “treaties in force” as meaning any treaty in
force at the time when the case was brought before the Court (P.C.LJ., Series A, No. 6).
See also statement of Registrar Ake Hammarskjéld:

“The Council’s Resolution of May 17th, 1922, would have no bearing on cases
submitted to the Court under a general treaty; for any State which was a party toa
general treaty might then, without making any special declaration [as required by the
Security Council resolution], be a party before the Court. The only case, therefore, in
which the Council’s resolution applied was that in which a suit was brought before
the Court by special agreement.” (1926, P.C.I.J., Series D, No. 2, Add., Revision of
the Rules of the Court, p. 76.)

15 League of Nations, Records of the First Assembly, Plenary Meetings, Twentieth
Plenary Meeting, Annex A, Reports on the Permanent Court of [International] Justice
Presented by the Third Committee to the Assembly, 1920, p. 463.

16 Secretariat of the League of Nations, Memorandum on the Different Questions
Arising in Connection with the Establishment of the Permanent Court of International
Justice, reprinted in PCIJ, Advisory Committee of Jurists, Documents Presented to the
Committee Relating to Existing Plans for the Establishment of a Permanent Court
of International Justice, 1920, p. 17.

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might provide non-League Members access to the Court!?.

10. Indeed, there were numerous treaties and conventions connected
with the Peace Settlement of 1919, including labour treaties adopted by
the International Labour Conference, treaties regarding the various man-
dates approved by the Council of the League of Nations, and treaties
concerning the protection of minorities 8.

11. By analogy, in the context of the Statute of the International
Court of Justice drafted in the aftermath of the Second World War, the
Genocide Convention can be considered a treaty connected with the
peace settlement. Barely a year after the end of the war, there was already
a General Assembly resolution! mandating the Economic and Social
Council to prepare a draft convention prohibiting genocide as a crime
against international law. The Convention was the first post-war treaty in
the area of human rights and was considered to be the United Nations’
first concrete legal response to the Holocaust. The philosophy, object and
purpose of the Convention as a whole are a direct outcome of the tragic
events of the Second World War. Thus, when the Convention was
drafted, it was stressed that

“Having regard to the troubled state of the world, it was essential
that the convention should be adopted as soon as possible, before
the memory of the barbarous crimes which had been committed
faded from the minds of men.” ”°

12. The fact that the Genocide Convention came into force after the
Statute of the Court does not change this conclusion. The PCIJ drafters
clearly contemplated that the treaties “in force” under Article 35 included
not only those that were already in force, but also treaties granting non-
League Members access to the Court which were still in draft form and
under negotiation?!.

13. This is confirmed in the Permanent Court’s jurisprudence in the
Certain German Interests in Polish Upper Silesia case (P.C.I.J., Series À,
No. 6). In this case, Germany, a non-League Member, was the applicant

17 Report of the Registrar of the Court, reprinted in 1936, P.C.I.J., Series D, No. 2,
3rd Add., p. 818: “It was decided . . . not to lay down, once and for all, in what cases
declarations were required (question of the Peace Treaties).”

18 See M. Hudson, The Permanent Court of International Justice 1920-1942, 1972,
pp. 439-444 (giving examples).

19 United Nations doc. A/96 (D) (11 December 1946).

20 United Nations, Official Records of the General Assembly, Committees, Third Ses-
sion, Part I, Sept.-Dec. 1948, Vol. 4, Report of the Economic and Social Council,
Sixth Committee, Legal Questions, Sixty-third Meeting (1948), p. 5.

21 Secretariat of the League of Nations, Memorandum on the Different Questions
Arising in Connection with the Establishment of the Permanent Court of International
Justice, op. cit., p. 17.

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and the PCIJ’s jurisdiction was derived from the German-Polish Conven-
tion relating to Upper Silesia, which was concluded after the adoption of
the PCIJ Statute. Poland did not dispute the fact that the suit had been
duly submitted to the Court under Article 35, and the Court found itself,
on the basis of the treaty alone — (Germany had not complied with the
conditions laid down by the Council of the League of Nations) — able to
exercise jurisdiction over the parties to the case.

14. When the PCIJ considered the revision of its Rules in 1926,
Judge Anzilotti explained that the German Interests case

“related to a treaty — the Upper Silesian Convention — drawn up
under the auspices of the League of Nations which was to be consid-
ered as supplementary to [a First World War Peace Treaty,] the
Treaty of Versailles. It was therefore possible to include the case in
regard to which the Court had then to decide in the general expres-
sion ‘subject to treaties in force’, whilst construing that expression as
referring to the peace treaties.” 22

Similarly, being the first major human rights convention drawn up under
the auspices of the United Nations, the Genocide Convention can be
considered supplementary to the Second World War peace treaties and
consequently comes within the definition of Article 35’s “treaties in
force” even though it entered into force after the Statute of the Court.

15. As an additional argument, I believe that even if one adopts the
Court’s interpretation of “treaties in force” as encompassing only those
treaties which, like the Peace Treaties, were in force before the Statute of
the Court came into force”, a special, broader interpretation of the
expression is appropriate in a case which, like the present case, involves a
multilateral treaty of a universal character which is intended to remedy
violations of jus cogens. On this point, I subscribe to the view of Pro-
fessor Sienho Yee, that in cases involving jus cogens, there is a special
need

“to... resolv[e] disputes . . . as soon as possible. As treaties may not
override jus cogens™*, they should not hinder efforts to remedy vio-
lations of jus cogens. Accordingly, the phrase ‘treaties in force’
should be given the broadest scope so as to facilitate any consenting

22 Minutes of Meeting of the PCIJ on 21 July 1926 on amending its Rules of Court, at
1926, P.C.I.J., Series D, No. 2, Add., Acts and Documents, p. 105; emphasis added.

23 The Court notes in paragraph 112 that, in the context of the present Court, there
were no such treaties in force prior to the Statute.

24 Vienna Convention on the Law of Treaties, Art. 53. See also Ian Brownlie, Principles
of Public International Law, 4th ed., 1990, pp. 512-515.

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sovereign State to utilise the Court to resolve any disputes involving
jus cogens.”?°

16. Thus, even if the PCIJ drafters primarily had in mind the special
category of existing peace treaties, to the exclusion of all others, their
original intent should give way, in the context of the ICJ Statute, to a
broader interpretation of “treaties in force” that includes multilateral
treaties addressing jus cogens violations which have largely emerged in
the post-Second World War era.

17. Because of the overriding importance of such treaties to the pro-
gressive development of international law and the maintenance of peace,
they are, and should be, subject to a special interpretation. Cf. Article 60,
paragraph 5, of the Vienna Convention on the Law of Treaties (non-
applicability of treaty termination rules to “provisions relating to the
protection of the human person contained in treaties of a humanitarian
character”); the Court’s Advisory Opinion on Reservations to the Geno-
cide Convention (limiting ability of States to enter reservations to the
Genocide Convention) (Reservations to the Convention on the Prevention
and Punishment of the Crime of Genocide, Advisory Opinion, I. C.J. Reports
1951, p. 24), and Order on counter-claims in the Application of the Geno-
cide Convention case (limiting applicability of reciprocity rules in context
of Genocide Convention) (Application of the Convention on the Preven-
tion and Punishment of the Crime of Genocide, Counter-Claims, Order of
17 December 1997, I.C.J. Reports 1997, p. 258, para. 35).

18. In sum, the Genocide Convention and other treaties that either
relate to the peace settlement following the Second World War or are
aimed at redressing violations of jus cogens should be interpreted as
“treaties in force” under Article 35, paragraph 2, as long as they are in
force at the time an application is instituted before the Court.

IV. JURISDICTION UNDER THE GENOCIDE CONVENTION

1. The Court found that the FRY did not have access to the
Court and the Court did not therefore consider it necessary to decide
whether the FRY was or was not a party to the Genocide Convention
at the time it filed its Application. In my view, the FRY did have access
to the Court under the provisions of Article 35 and I shall proceed to

25 §. Yee, “The Interpretation of “Treaties in Force’ in Article 35 (2) of the Statute of
the ICJ”, 47 ICLQ 884, 903 (1998).

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examine the Genocide Convention as a basis for the Court’s jurisdic-
tion ?6,

2. During the period 1992-2000, the treaty obligations of the SFRY
extended to each of the successor States. This is true regardless of
whether or not the FRY was a member of the United Nations during this
period. As the Court notes in paragraph 70, the United Nations Office of
Legal Affairs in its “Summary of Practice of the Secretary-General as
Depositary of Multilateral Treaties” published in 1996, concluded that
the legal effects of General Assembly resolution 47/1 were limited to the
framework of the United Nations and did not affect the rules of treaty
succession :

“[AÏfter 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) con-
tinued 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 Monte-
negro), 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... was
adopted within the framework of the United Nations and the con-
text 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.” 27

3. Indeed, during this period, the FRY continued to claim that it was
a successor State to the SFRY and that, as such, it was bound by all the
treaty obligations of the predecessor State. On 27 April 1992, the FRY
submitted a note to the Secretary-General in which it declared explicitly

26 The FRY argued in relation to all eight Respondents that the Court had jurisdiction
ratione personae under the Genocide Convention. Because I find that the Court did not
have jurisdiction ratione materiae, I will not proceed to consider the alternative grounds
raised by the FRY in relation to particular respondent parties.

27 United Nations doc. ST/LEG/8. The passage was later

“deleted by the Secretariat in response to the objections raised by a number of States
that the text was contrary to the relevant Security Council and General Assembly
resolutions and the pertinent opinions of the Arbitration Commission of the Inter-
national Conference for Peace in Yugoslavia” (Judgment, para. 70, citing United
Nations docs. A/50/910-S/1996/231, A/51/95-S/1996/251, A/50/928-S/1996/263 and
A/50/930-S/1996/260).

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that it would respect the obligations assumed by the SFRY:

“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.” 78

4. Under applicable rules of international law, the FRY would have
succeeded to these treaties even in the absence of such a declaration
because a successor State that separates from a predecessor State is
not entitled, upon separation, to disavow the treaty obligations of the
predecessor State. The entitlement to pick and choose treaty obligations
applies only to newly independent States in conformity with Article 17,
paragraph 1, of the Vienna Convention on Succession of States in respect
of Treaties. Article 17, paragraph 1, provides that

“a newly independent State may, by a notification of succession,
establish its status as a party to any multilateral treaty which at the
date of the succession of States was in force in respect of the terri-
tory to which the succession of States relates”.

Article 34 of the Vienna Convention, on the other hand, provides that

“[wlhen a part or parts of the territory of a State separate to form
one or more States, whether or not the predecessor State continues
to exist:

(a) any treaty in force at the date of the succession of States in
respect of the entire territory of the predecessor State continues
in force in respect of each successor State so formed, and]

(b) any treaty in force at the date of the succession of States in
respect only of that part of the territory of the predecessor State
which has become a successor State continues in force in respect
of that successor State alone””’.

5. Thus, there is a difference in international law between a newly
independent State and a successor State. A newly independent State is
required upon independence to clarify its legal position regarding treaties
in conformity with the “clean slate” doctrine codified in Article 17 of the
Vienna Convention. In the case of the separation of States, on the other
hand, the successor State automatically assumes the treaty obligations of
the predecessor.

6. This rule of succession to treaties applies to new States and is

28 United Nations doc. A/46/915, Ann. I, p. 2.
29 Vienna Convention on Succession of States in respect of Treaties, Art. 34, para. 1.

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entirely independent of the issue of a State’s membership in the United
Nations. By way of example, when Switzerland was admitted to the
United Nations, it was considered a new Member, though not a newly
independent State. It did not therefore have to clarify its legal position
with respect to treaties. Conversely in the FRY’s case, it succeeded to the
SFRY’s treaty obligations in 1992 regardless of the status of its member-
ship in the United Nations at that time. The existence of the FRY dates
back to 1992, not to 2000, and this is a point on which, in my view, the
Court should have made the distinction. Oscar Schachter underlined this
distinction when he stated that:

“a separated state which was not a colony is presumed to succeed
to the treaty obligations and rights of the predecessor state unless
this result would be incompatible with the object of the treaty. The
experience thus far with respect to the cases of the former Soviet
Union and the former Yugoslavia supports a general presumption
of continuity. That presumption would not, however, apply to
membership in the United Nations or other general international
organizations that provide for the election of new members.” 5°

7. Article 34 of the Vienna Convention should be considered reflective
of customary law on succession to treaties. It is indisputable that certain
provisions in the Vienna Conventions on treaties “are declaratory of cus-
tomary [international] law” (Gabëikovo-Nagymaros Project (Hungaryl
Slovakia}, Judgment, I.C.J. Reports 1997, p. 62, para. 99)! and recent
State practice, for instance in respect of the successors of Czechoslovakia
and the SFRY, lends support to this proposition in respect of the rules
of succession. This is all the more true in cases involving succession
to human rights treaties. In the words of my learned colleague
Judge Weeramantry,

“Tit] . . . seems to me to be a principle of contemporary international
law that there is automatic State succession to so vital a human
rights convention as the Genocide Convention . . . [The] reasons [for
applying the principle of automatic succession] apply with special
force to treaties such as the Genocide Convention . . . leaving no
room for doubt regarding automatic succession to such treaties.”
(Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),

30 ©. Schachter, “State Succession: The Once and Future Law”, 33 Va. J. Int'l Law 257
(1992-1993).

31 See also Digest of United States Practice in International Law, 1980, p. 1041 n. 43
(United States State Department Legal Adviser expressing opinion that the rules of the
Vienna Convention on Succession of States in respect of Treaties were “generally regarded
as declarative of existing customary law”.

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Preliminary Objections, Judgment, I. C.J. Reports 1996 (IT), pp. 654,
645, separate opinion of Judge Weeramantry; see also ibid., pp. 634-
637, separate opinion of Judge Shahabuddeen (recognizing that
allowing a suspension of the operation of the Genocide Convention
would be incompatible with the object and purpose of the treaty,
and others which, like it, exist to safeguard the fundamental rights
and freedoms of the individual and endorse the most elementary
principles of morality).)

8. When the FRY was formally admitted as a Member of the United
Nations in 2000, this did not affect its legal status as successor to the
SFRY’s treaty obligations. It was admitted as a new Member of the
United Nations, but in my view, not as a newly independent State,
because its separation from the SFRY and its assumption of the legal
obligations as a successor State took place on 27 April 1992.

9. As a result, the letter of 8 December 2000 from the United Nations
Legal Counsel to the FRY, in which he stated that, in his view,

“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” (Application for Revision of the Judgment of
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
( Yugoslavia v. Bosnia and Herzegovina), Judgment, I. C.J. Reports
2003, p. 24, para. 51 (citing Application of Yugoslavia, Ann. 27;
emphasis added)

must be read in context: it was a routine letter which the United Nations
Secretariat addresses to all new Members regardless of the particular cir-
cumstances of their admission. The FRY was a State in existence since
1992 and not a newly independent State. The appropriate characteriza-
tion would have been that the FRY was a successor State, as repeatedly
acknowledged by the FRY when it declared that it succeeded to the
SFRY’s legal obligations on 27 February 1992.

10. The Court acknowledged this in the 2003 Application for Revision
case, when it emphasized

“that General Assembly resolution 55/12 of 1 November 2000
[admitting the FRY as a Member] 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

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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 conven-
tions, but rather to ‘undertake treaty actions, as appropriate, . . . as
a successor State’.” (Z C.J. Reports 2003, p. 31, para. 71.)

11. In its 1996 Judgment on preliminary objections in Application of
the Convention on the Prevention and Punishment of the Crime of Geno-
cide (Bosnia and Herzegovina v. Yugoslavia), the Court left open the
question whether it accepted the automatic succession argument, and
confined its Judgment to noting that:

“Without prejudice as to whether or not the principle of ‘auto-
matic succession’ applies in the case of certain types of international
treaties or conventions, the Court does not consider it necessary, in
order to decide on its jurisdiction in this case, to make a determina-
tion on the legal issues concerning State succession in respect to trea-
ties which have been raised by the Parties.” (I C.J. Reports 1996 (II),
p. 612, para. 23.)

The time has come for the Court to answer this question and, in my view,
the answer should have been that:

(a) the FRY succeeded to the Genocide Convention on 27 April 1992,
and

(b) the FRY was not a newly independent State required to establish its
status vis-à-vis multilateral treaties. Thus, it is bound by Article IX
of the Convention.

12. Because, in my view, the FRY succeeded to the Genocide Conven-
tion in 1992, the FR Y’s purported accession — and reservation — to the
Convention in March 2001 must be declared void ab initio. The Court,
should, in my view, have concluded that the FRY has been bound since
1992 to assume all the legal obligations of the SFRY, including those
flowing from the Genocide Convention. Such a conclusion would have
been consistent with:

— The FRY’s declaration of succession in 1992;

— Article 34 of the Vienna Convention on Succession of States in
respect of Treaties;

— the position taken by the FRY prior to 1 November 2000; and

— the Court’s prior jurisprudence. (Jbid., pp. 617, 621, paras. 34, 41.)

13. Thus the Court should have followed the rationale that it adopted
in 1996 in respect to Bosnia, that

“[slince the Court has concluded that Bosnia and Herzegovina could
become a party to the Genocide Convention as a result of a succes-

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sion, the question of the application of Articles XI and XIII of
the Convention does not arise” (C.J. Reports 1996 (II), p. 612,
para. 24; emphasis added)

and made the same finding in respect of the FRY. The FRY became a
party to the Genocide Convention “as a result of a succession” and as a
result the Convention provides a basis for the Court’s jurisdiction ratione
personae.

14, When considering its jurisdiction ratione materiae, the Court must
ascertain whether the breaches of the Genocide Convention alleged by
the FRY-SM are capable of falling within the provisions of that Conven-
tion (Oil Platforms (Islamic Republic of Iran v. United States of
America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II),
p. 803). Article IX of the Convention provides the Court with jurisdiction
over disputes “relating to the interpretation, application or fulfilment” of
the Convention, including disputes “relating to the responsibility of a
state for genocide”. Genocide, in turn, is defined in Article IT of the Con-
vention as the “intent to destroy, in whole or in part, a national, ethnical,
racial or religious group” through certain acts, including the use of force.

15. Aside from the question of whether the acts of NATO are imput-
able to each respondent State, the facts alleged by the FRY-SM, even if
substantiated on the merits, do not satisfy the element of specific intent
necessary to constitute genocide. Genocide, as defined in the Convention,
requires evidence that force was used with “an intent to destroy” a
certain defined group, and the Court should not accept the FR Y-SM’s
invitation to lower the mens rea bar set by the Convention by holding
that the requirement of genocidal intent is satisfied as long as genocidal
consequences were “readily foreseeable”. As a result, the Court, in my
view, lacks jurisdiction ratione materiae.

V. CONCLUSION

The FRY had every right to claim the continuity of the legal person-
ality of its predecessor with respect of the territory of Serbia and Mon-
tenegro. In the FRY’s case, however, the competent United Nations
organs opted to disregard the law of the Charter. The legal consequences
of the FRY’s “sui generis” status vis-à-vis the United Nations — it was
excluded from participating in certain activities of specified organs but
was never expelled — were not, in my view, properly addressed by the
Court. As the principal judicial organ of the United Nations, the Court’s
function under Article 38 of its Statute is to decide disputes in accordance
with international law. It has been in a position more than once in the
last decade to set the record straight regarding the legal status of the
FRY’s membership in accordance with the Charter of the United Nations.

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Yet the Court, in holding that it “is led to the conclusion that Serbia and
Montenegro was not a Member of the United Nations . . . at the time of
filing its Application” did not address in a comprehensive manner “the
legal situation [regarding the FRY’s membership status], which was
shrouded in uncertainties” (Judgment, para. 78).

For this and other reasons set out in my opinion, I disagree with the
findings of the Court regarding the interpretation of Article 35, para-
graph 1, which the joint declaration correctly describes as being “at
odds” with the Court’s previous judgments and orders. I also do not
agree with the grounds chosen by the Court to reach its decision that
it lacks jurisdiction or its substantive conclusions on the scope of
Article 35, paragraph 2. Moreover I find that the approach adopted
by the Court casts an unnecessary shadow of doubt on the Genocide Con-
vention case which has been on the docket of the Court since 1993.

However, because I consider that the Court does not have jurisdiction
ratione materiae, I find myself in agreement with the dispositif contained
in paragraph 128 of the Judgment, which states that the Court “/fJinds
that it has no jurisdiction to entertain the claims made in the Application
filed by Serbia and Montenegro on 29 April 1999”. I was therefore able
to vote in favour of the Judgment.

(Signed) Nabil ELARABY.

94


218

OPINION INDIVIDUELLE DE M. NAGENDRA SINGH
{Traduction]

Un tribunal doit normalement toujours respecter le principe de bonne
administration de la justice selon lequel un demandeur doit étre entendu
avant que sa requête ne soit rejetée, à moins bien entendu qu’elle n’ap-
paraisse de prime abord absurde ou radicalement inadmissible, ce qui ne
semble pas être le cas en l’espèce. En tant que partisan résolu du principe
salutaire qu’il faut entendre le plaideur qui a spécialement demandé à être
entendu, je crois devoir exposer les considérations qui ont inspiré mon vote
en l'espèce.

Il est expliqué au paragraphe 2 de l’ordonnance de la Cour que la
déclaration d’El Salvador paraît porter en fait sur le fond de la procédure —
opinion que je partage et qui a déterminé l’attitude de la Cour. J’estime en
conséquence que, si El Salvador était entendu au cours de la phase pré-
liminaire actuelle, des arguments seraient inévitablement présentés au
sujet du fond, aspect qui ne concerne que la deuxième phase de l'instance,
une fois établie la compétence de la Cour pour connaître du différend. Par
suite, si la demande d’audition d’El Salvador avait été retenue à ce stade, il
en serait résulté pratiquement deux séries d’audiences sur le fond, ce
qu’aucun tribunal ne saurait accepter vu la confusion générale qui s’en-
suivrait, et qui serait inopportune et insoutenable. Vu la difficulté que je
viens d'évoquer, il m’a paru justifié d’appuyer la décision de la Cour de ne
pas entendre El Salvador à ce stade, tout en maintenant son droit de faire
une déclaration dans une phase ultérieure sur le fond — le paragraphe 3 de
Pordonnance de la Cour prenant acte de son intention dans ce sens. De
plus, la décision de ne pas tenir audience à ce stade est renforcée par le fait
que la Cour a conclu à la quasi-unanimité (quatorze voix contre une) que la
déclaration d’El Salvador était irrecevable. La Cour ayant pris cette déci-
sion avant d’avoir entendu le requérant, une audience ne serait plus qu’un
geste formel bien que « justice doive aussi sembler être faite ». Par con-
séquent, la Cour a raison de replacer les choses dans leur ordre logique,
d’autant qu’elle ne rejette pas en totalité la requête mais consent à l’exa-
miner au moment voulu. Dans ces conditions les exigences de la justice
paraissent satisfaites par l'ordonnance de la Cour, qui ne saurait être
interprétée comme traitant en quelque sorte cavalièrement El Salvador,
l'Etat qui s’est adressé à elle. Le raisonnement qui précède m’a conduit à
me rallier au verdict de la majorité.

(Signé) NAGENDRA SINGH.