27

DISSENTING OPINION OF VICE-PRESIDENT SCHWEBEL

I regret that I have been unable to join in supporting the Judgment of
the Court.

In the law of treaties, “the primary object of interpretation, namely,
the revealing of the intention of the parties”, is, in the words of that late,
great Judge and authority on the law of treaties, Sir Hersch Lauterpacht,
paramount:

“The intention of the parties — express or implied — is the law.
Any considerations — of effectiveness or otherwise — which tend to
transform the ascertainable intention of the parties into a factor of
secondary importance are inimical to the true purpose of interpreta-
tion.” (H. Lauterpacht, “Restrictive Interpretation and the Principle
of Effectiveness in the Interpretation of Treaties”, British Year Book
of International Law, 1949, Vol. XXVI, p. 73.)

As Lord MeNair, no less an authority on the law of treaties and an
eminent former President of this Court, put it:

“Many references are to be found . . . to the primary necessity of
giving effect to the ‘plain terms’ of a treaty, or construing words
according to their ‘general and ordinary meaning’ . . . But this
so-called rule of interpretation like others is merely a starting-point,
a prima facie guide, and cannot be allowed to obstruct the essential
quest in the application of treaties, namely to search for the real
intention of the contracting parties in using the language employed
by them.” (Lord McNair, The Law of Treaties, 1961, p. 366.)

“The intention of the parties”, in law, refers to the common intention
of both parties. It does not refer to the singular intention of each party
which is unshared by the other. To speak of “the” intention of “the
parties” as meaning the diverse intentions of each party would be
oxymoronic.

In the jurisprudence of this Court, jurisdiction can be conferred upon it
only by the common intention of both parties to the case. As held by a
Chamber of this Court in the case concerning the Land, Island and Mari-
time Frontier Dispute “it is only from the meeting of minds .. . that juris-
diction is created” (Z. C.J. Reports 1992, p. 585, para. 378). That intention
may be jointly expressed, as by the conclusion of a special agreement.
It may be unilaterally expressed, as by the invocation of overlapping or
identical acceptances of the Court’s compulsory jurisdiction under the
optional clause or through treaty proviso. But if that common intention

25
28 DELIMITATION AND QUESTIONS (DISS. OP. SCHWEBEL)

is lacking, if the intention to submit to the Court’s jurisdiction is that of
one but not both parties, the Court is without jurisdiction to decide the
merits of the dispute.

In my view, these axiomatic considerations combine to defeat the
Court’s jurisdiction in this case.

Before explaining why I so conclude on the facts of this case, an expo-
sition of elements of the law respecting the interpretation of treaties may
be in order.

PREPARATORY WORK IN THE PERSPECTIVE
OF THE VIENNA CONVENTION

The Vienna Convention on the Law of Treaties is accepted by this
Court as an authoritative codification of international law. Its provisions
on interpretation of treaties however were particularly contested, to some
extent in the International Law Commission which composed them, and
much more acutely in the United Nations Conference on the Law of
Treaties itself. Nevertheless they were adopted by large majorities. The
Convention, as of this writing, has 78 parties, not including Bahrain and
Qatar (and not including the United States of America, the principal
critic of those provisions).

In his Third Report on the Law of Treaties, the distinguished Special
Rapporteur of the Commission, Sir Humphrey Waldock, set out an
approach which was sustained in the further work of the Commission on
treaty interpretation and ultimately by the Vienna Conference itself:

“Writers also differ to some extent in their basic approach to the
interpretation of treaties according to the relative weight which they
give to —

(a) the text of the treaty as the authentic expression of the inten-
tions of the parties;

(b) the intentions of the parties as a subjective element distinct
from the text; and

(c) the declared or apparent objects and purposes of the treaty.

Some, like Sir H. Lauterpacht, place the main emphasis on the
intentions of the parties and in consequence admit a liberal recourse
to the travaux préparatoires and to other evidence of the intentions
of the contracting States as means of interpretation. Some give great
weight to the objects and purposes of the treaty and are in conse-
quence more ready, especially in the case of general multilateral trea-
ties, to admit teleological interpretations of the text which go beyond,
or even diverge from, the original intentions of the parties as
expressed in the text. The majority of modern writers, however,
insists upon the primacy of the text as the basis for the interpretation

26
29

DELIMITATION AND QUESTIONS (DISS. OP. SCHWEBEL)

of a treaty, while at the same time giving a certain place to extrinsic
evidence of the intentions of the parties and to the objects and pur-
poses of the treaty as means for correcting or, in limited measure,
supplementing the text.” (Yearbook of the International Law Com-
mission, 1964, Vol. I, pp. 53-54, para. 4.)

At the same time, Sir Humphrey continued,

“recourse to many of these principles is discretionary rather than
obligatory, and the interpretation of documents is to some extent an
art, not an exact science” (ibid., p. 54, para. 6).

By no means were the intentions of the parties to be depreciated; on the
contrary,

“the text must be presumed to be the authentic expression of the
intentions of the parties; . . . in consequence, the starting point and
purpose of interpretation is to elucidate the meaning of the text, not
to investigate ab initio the intentions of the parties. While not
excluding recourse to other indications of the intentions of the par-
ties in appropriate cases, it makes the actual text the dominant fac-
tor in the interpretation of a treaty.” (bid., p. 56, para. 13.)

He further explained his proposals which, in substance, today are reflected
in the text of the Vienna Convention, as follows:

“where either the natural and ordinary meaning of the terms in their
context does not give a viable result or for one reason or another the
meaning is not clear . . . it is permissible to fix the meaning of the
terms by reference to evidence or indications of the intentions of the
parties outside the ordinary sense of their words . . .” (ibid., p. 57,
para. 16).

Accordingly, the text proposed:

“recognizes the propriety of recourse to extraneous evidence or indi-
cations of the intentions of the parties for the purpose of: (a) con-
firming the natural and ordinary meaning of a term; (b) deter-
mining the meaning of an ambiguous or obscure term or of a term
whose natural and ordinary meaning gives an absurd or unreason-
able result; and (c) establishing the use of a term by the parties with
a special meaning” (ibid., p. 58, para. 20).

Sir Humphrey pointed out that,

27

“Moreover, it is the constant practice of States and tribunals to
examine any relevant travaux préparatoires for such light as they
may throw upon the treaty...
30

DELIMITATION AND QUESTIONS (DISS. OP. SCHWEBEL)

Recourse to travaux préparatoires as a subsidiary means of inter-
preting the text . . . is frequent both in State practice and in cases
before international tribunals.” (Yearbook of the International Law
Commission, 1964, Vol. II, p. 58, paras. 20 and 21.)

He continued:

“Today, it is generally recognized that some caution is needed in
the use of travaux préparatoires as a means of interpretation. They
are not, except in the case mentioned, an authentic means of inter-
pretation. They are simply evidence to be weighed against any other
relevant evidence of the intentions of the parties, and their cogency
depends on the extent to which they furnish proof of the common
understanding of the parties as to the meaning attached to the terms
of the treaty.” (Jbid,, p. 58, para. 21.)

The subsequent evolution of what came to be Articles 31 and 32 of the

Vienna Convention, in the Commission and in the light of the commen-
taries and proposals of Governments, and climactically at the Conference
itself, is well known and fundamentally consonant with what has been
described. But it may be instructive for present purposes to quote a few
more elements of the travaux préparatoires of the Vienna Convention,
as they are first of all to be found in the exchanges in the body which
prepared the draft of it:

28

“It was true that there existed a number of apparently consistent
pronouncements by the International Court of Justice and arbitral
tribunals to the effect that travaux préparatoires had only been used
to confirm what had been found to be the clear meaning of the text
of a treaty. However, that case-law would be much more convincing
if from the outset the Court or tribunal had refused to admit con-
sideration of travaux préparatoires until it had first established
whether or not the text was clear, but in fact, what had happened
was that on all those occasions the travaux préparatoires had been
fully and extensively placed before the Court or arbitral tribunal by
one or other of the parties, if not by both. In the circumstances, to
state that the travaux préparatoires had been used only to confirm
an opinion already arrived at on the basis of the text of the treaty
was coming close to a legal fiction. It was impossible to know by
what processes judges reached their decisions and it was particularly
difficult to accept the proposition that the travaux préparatoires
had not actually contributed to form their opinion as to the mean-
ing of a treaty which, nevertheless, they stated to be clear from its
text, but which, as the pleadings in fact showed, was not so. At all
events, it could be supposed that all practitioners of international
law were free in their use of travaux préparatoires.” (Yearbook of the
31 DELIMITATION AND QUESTIONS (DISS. OP. SCHWEBEL)

International Law Commission, 1964, Vol. I, Mr. Rosenne, p. 283,
para. 17.)

“the clearness or ambiguity of a provision was a relative matter;
sometimes one had to refer [to] the preparatory work or look at the
circumstances surrounding the conclusion of the treaty in order to
determine whether the text was really clear and whether the seeming
clarity was not simply a deceptive appearance” (ibid., Mr. Yasseen,
p. 313, para. 56).

“In his view, it was unrealistic to imagine that the preparatory
work was not really consulted by States, organizations and tribunals
whenever they saw fit, before or at any stage of the proceedings,
even though they might afterwards pretend that they had not given

_ it much attention . . . the reference to confirmation and, a fortiori,
verification tended to undermine the text of a treaty in the sense that
there was an express authorization to interpret it in the light of
something else; nevertheless that was what happened in practice.”
(Ubid., Sir Humphrey Waldock, p. 314, para. 65.)

The text of the Convention adopted in Vienna respecting “Supplemen-
tary means of interpretation” (Art. 32) provides that,

“Recourse may be had to supplementary means of interpretation,
including the preparatory work of the treaty and the circumstances
of its conclusion, in order to confirm the meaning resulting from the
application of article 31, or to determine the meaning when the
interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure . . .”

But what was not settled was, what happens when the travaux prépara-
toires turn out not to confirm but contradict the meaning arrived at by
application of the general rule of interpretation? There are a few passages
in statements of the Special Rapporteur that appear to cut one way or
another; quoted above is an indication by him that the process of con-
firmation or verification could indeed tend to “undermine” the text of a
treaty.

Surprisingly little attention was directed to this critical question. The
most pertinent answer may have been that proffered by the representative
of Portugal at the Vienna Conference:

“What would happen if, though the text of a treaty was appar-
ently clear, in seeking confirmation in the preparatory work and
other surrounding circumstances a divergent meaning came to light?
It was impossible to be sure in advance that those circumstances
would confirm the textual meaning of the treaty. If the emphasis
were placed on good faith, it would appear that in such a case those
circumstances should be taken into consideration, although they did

29
32 DELIMITATION AND QUESTIONS (DISS, OP. SCHWEBEL)

not lead to the confirmation of the meaning . . .” (United Nations
Conference on the Law of Treaties, First Session, 1968, Official
Records, p. 183.)

It is significant for the case now before the Court that it does not seem
to have occurred to counsel on either side that their concentration on the
content of the travaux préparatoires could be questionable or beside the
point. Neither Party suggested that the text of the treaty was so clear that
the Court would be justified in declining to weigh the preparatory work
in the scales of justice. Mired as they were in the ample ambiguities of the
text, that suggestive omission is understandable. Nor did either Party
suggest that the preparatory work was fragmentary, inconclusive, or
otherwise open to discounting or disregard.

THE FACTS AND LAW OF THIS CASE

The Court founds its jurisdiction upon the commitments entered into
by Qatar and Bahrain in 1987 and in 1990. It has concluded that the 1987
exchanges of letters and the 1990 Doha Minutes are international agree-
ments creating rights and obligations for the Parties. It does not conclude
— nor, for that matter, did Qatar maintain — that the commitments
undertaken in 1987 of themselves suffice to sustain the Court’s jurisdic-
tion. Thus it is undisputed that the consent of Qatar and Bahrain to the
provision that

“All the disputed matters shall be referred to the International
Court of Justice, at The Hague, for a final ruling binding upon both
parties . . .”

of itself is not determinative. As the Parties agree, and the Court records,
what those disputed matters were was not settled in 1987. Moreover, the
1987 exchanges of letters provided for the creation of a Tripartite Com-
mittee

“for the purpose of approaching the International Court of Justice,
and satisfying the necessary requirements to have the dispute sub-
mitted to the Court . . .”.

In Bahrain’s view, the latter provision imported that the Tripartite
Committee would prepare a special agreement, an interpretation, it con-
tends, that is borne out by the subsequent activities of the Tripartite
Committee which were in fact exclusively directed towards conclusion of
a special agreement. Why create the machinery of a Tripartite Committee
if not to prepare, and only to prepare, a special agreement? If the inten-
tion had been to authorize unilateral application, no committee at all
would have been needed or established.

Qatar in these proceedings has however maintained that, by reason of

30
33 DELIMITATION AND QUESTIONS (DISS. OP. SCHWEBEL)

the cumulative commitments undertaken in 1987 and 1990, the Parties
unconditionally conferred jurisdiction on the Court to deal with the mat-
ters in dispute between them. Qatar contends that, in the intention of the
Parties, a special agreement was but one possible mode of approaching
the Court and satisfying its requirements for submission of the dispute, a
position with which the Court agrees in today’s Judgment.

Yet, in 1987, in the draft letter to the Court’s Registrar which it
presented to Bahrain for its agreement with a view to submitting the case
to the Court, Qatar provided for “preparing the necessary Special Agree-
ment in this respect . . .” (Memorial of Qatar, Ann. IL.18, p. 2; emphasis
added). Qatar’s letter hardly supports the Court’s conclusion in this
Judgment that

“everything tends to suggest that, if the Committee explored that
possibility [of a special agreement], it did so simply because that
course appeared to it, at the time, to be the most natural and the
best suited to give effect to the consent of the Parties” (para. 28).

On the contrary, the contemporaneous evidence of Qatar itself indicates
that the Parties — Qatar no less than Bahrain — saw conclusion of a
special agreement as “necessary”. So the Court’s conclusion in this
regard may be one of several that is not so “clear”.

Be that as it may, it remains uncontested that of themselves the 1987
exchanges of letters are accepted by the Parties as insufficient to found
the jurisdiction of the Court. If it had been the meaning of the 1987
exchanges to authorize immediate and unilateral application to the Court,
one or the other Party presumably would have exercised that authority.
Yet it took Qatar another four years to submit its Application. More-
over, in the oral hearings, Qatar’s counsel acknowledged that:

“Qatar has not asserted that the terms of the 1987 Agreement by
themselves provided an immediate basis for enabling the Court to
exercise its jurisdiction.” (CR 94/1, p. 49.)

Thus any finding of jurisdiction can be based only on the combined
effect of the 1987 and 1990 commitments. It is accordingly necessary to
examine the meaning of the 1990 Doha Minutes. In pertinent part, they
provide:

“The good offices of the Custodian of the Two Holy Mosques,
King Fahd Ben Abdul Aziz, shall continue between the two coun-
tries until... May 1991. Once that period has elapsed, the two parties
may submit the matter to the International Court of Justice in
accordance with the Bahraini formula, which has been accepted by
Qatar, and with the procedures consequent on it. The good offices of
the Kingdom of Saudi Arabia will continue during the period when
the matter is under arbitration.”

31
34 DELIMITATION AND QUESTIONS (DISS. OP. SCHWEBEL)

The main difference between the Parties in this phase of the case, the
focus of dispute in their exchange of written pleadings and of expert
opinions and in oral argument, was over the meaning of the phrase, “the
two parties”, as it was rendered in the original Arabic by the expression
“al-tarafan”. As the Court recalls in its Judgment, this provision derived
from a draft presented at Doha by the Government of Oman, which, as
proposed by Oman, read: “Once that period has elapsed, either of the
two parties may submit the matter to the International Court of Justice.”
Bahrain required the amendment of this provision to specify in place of
“either of the two parties” the expression “al-tarafan”, i.e., “the two par-
ties”. Bahrain thus insisted on deletion of authorization for “either of”
the two Parties to seise the Court. Qatar accepted that amendment.

There are three views about the significance of the change in the Omani
text which was brought about in this way.

Bahrain maintains that its insistence, as the price of its signature of the
Doha Minutes, on changing “either of the two parties” to “the two par-
ties” demonstrates that its intention was to exclude unilateral recourse to
the Court. In my view, that interpretation is not only plausible but per-
suasive.

Qatar claims that the purpose of the change was to make “clear that
both Qatar and Bahrain had the right to make a unilateral application to
the Court”. The Agent of Qatar maintained in the second round of the
hearings — in the ultimate word of Qatar on this crucial question — the
following:

“Now, what about the Omani draft? Again, there is no evidence
of a rejection of unilateral application. On the Omani draft, Bahrain
simply changed ‘either of the parties’ to ‘the parties’, thus making
clear that both Qatar and Bahrain had the right to make a unilateral
application to the Court. Bahrain also added a reference to the
Court’s procedures. I believe that these objective changes to the text
are not at all rejections of the agreement reached during discussions
at Doha that reference to the Court could now be by unilateral
application, but rather subjective statements of the alleged intentions
of Bahrain’s negotiators.” (CR 94/7, p. 16.)

One has only to read this argument to reject it.

If the object of the Parties — if their common intention — was to make
clear that “both Qatar and Bahrain had the right to make a unilateral
application to the Court”, the provision that “either of the two parties
may submit the matter” would have been left unchanged. That wording
achieved that object clearly, simply, and precisely. As it was, that
unchanged phraseology authorized either of the two Parties to make uni-
lateral application to the Court. To suggest that the change of that

32
35 DELIMITATION AND QUESTIONS (DISS. OP. SCHWEBEL)

phraseology to “the two parties” rather imports that each of the Parties
— because of that change — is entitled to make a unilateral application
to the Court is unintelligible. And for the Qatari Agent to state that these
“objective changes to the text” of the Omani draft — to the text — are
“subjective statements of the alleged intentions of Bahrain’s negotiators”
is equally incomprehensible. How could recorded changes in a text
accepted by both sides have been no more than “subjective statements of
the alleged intentions of Bahrain’s negotiators”?

Moreover, even if, as Qatar appears to argue, the change in the text is
taken to have manifested the intentions only of Bahrain’s negotiators,
and not Qatar’s, does not this argument of Qatar concede that a com-
mon intention of both Parties to authorize unilateral application was
lacking?

For its part, the Court states:

“the Court does not consider it necessary to resort to supplementary
means of interpretation in order to determine the meaning of the
Doha Minutes . . . however, as in other cases . . . it considers that it
can have recourse to such supplementary means in order to seek a
possible confirmation of its interpretation of the text” (Judgment,
para. 40).

It then summarizes the arguments of the Parties on the travaux prépara-
toires, and concludes:

“The Court notes that the initial Omani draft expressly authorized
a seisin by one or the other of the Parties, and that that formulation
was not accepted. But the text finally adopted did not provide that
the seisin of the Court could only be brought about by the two Par-
ties acting in concert, whether jointly or separately. The Court is
unable to see why the abandonment of a form of words correspond-
ing to the interpretation given by Qatar to the Doha Minutes should
imply that they must be interpreted in accordance with Bahrain’s
thesis. As a result, it does not consider that the travaux prépara-
toires, in the form in which they have been submitted to it — 1e.,
limited to the various drafts mentioned above — can provide it with
conclusive supplementary elements for the interpretation of the text
adopted; whatever may have been the motives of each of the Parties,
the Court can only confine itself to the actual terms of the Minutes
as the expression of their common intention, and to the interpreta-
tion of them which it has already given.” (Para. 41.)

In my view, such explanation as the Court thus offers in support of its
position that the travaux préparatoires do not provide it with conclu-
sive supplementary elements for interpretation of the text is unconvin-
cing. Because “the text finally adopted did not provide that the seisin of
the Court could only be brought about by the two Parties acting in con-

33
36 DELIMITATION AND QUESTIONS (DISS. OP. SCHWEBEL)

cert. ..”, the Court “is unable to see why the abandonment of a form of
words corresponding to the interpretation given by Qatar to the Doha
Minutes should imply that they must be interpreted in accordance with
Bahrain’s thesis”. But since deletion of the specification, “either of the
two parties may submit the matter to the International Court of Justice”
in favour of the adopted provision, “the two parties may submit the mat-
ter...” surely manifested Bahrain’s intention that “either of the two par-
ties” may not submit the matter, the Court’s inability to see so plain a
point suggests to me its unwillingness to do so.

In preceding passages of the Judgment, the Court holds that an inter-
pretation other than that it chooses “would deprive the phrase of its
effect and could well, moreover, lead to an unreasonable result”
(para. 35). But in interpreting the meaning of the deletion of the phrase,
“either of”, the Court deprives that deletion — and hence the text
adopted by the Parties — of its effect and produces what in my view is
“an unreasonable result”. If it was not the intention of Bahrain to require
joint seisin of the Court by insisting on, and achieving, the excision of the
provision permitting “either of” the two Parties to submit the matter to
the Court, what was its intention?

The Court concludes that,

“whatever may have been the motives of each of the Parties, the
Court can only confine itself to the actual terms of the Minutes as
the expression of their common intention, and to the interpretation
of them which it has already given” (para. 41).

The Court’s choice of the word “motives” is revealing of its devaluation of
the intention of the Parties. But the fundamental flaw in its reasoning, as
I see it, is the contention that it adheres to the actual terms of the Minutes
“as the expression of their common intention” when I believe that it is
demonstrable — and has been demonstrated — that their common inten-
tion could not have been to authorize unilateral application to the Court.

Thus in my view the Court’s construction of the Doha Minutes is at
odds with the rules of interpretation prescribed by the Vienna Conven-
tion. It does not comport with a good faith interpretation of the treaty’s
terms “in the light of its object and purpose” because the object and pur-
pose of both Parties to the treaty was not to authorize unilateral recourse
to the Court. It does not implement the Convention’s provision for
recourse to the preparatory work, because, far from confirming the
meaning arrived at by the Court’s interpretation, the preparatory work
vitiates it. Moreover, the Court’s failure to determine the meaning of the
treaty in the light of its preparatory work results, if not in an unreason-
able interpretation of the treaty itself, in an interpretation of the prepara-
tory work which is “manifestly . . . unreasonable”.

Since, by using evidence submitted by both sides whose accuracy and
comprehensiveness is contested by neither, Bahrain has demonstrated
that its intention in signing the Doha Minutes was to exclude unilateral

34
37 DELIMITATION AND QUESTIONS (DISS. OP. SCHWEBEL)

application to the Court, since Qatar’s rebuttal of that demonstration is
unconvincing, and since the Court’s analysis on that critical point is
no more convincing, it follows that the 1987 exchanges of letters and
1990 Minutes do not suffice to support a finding of the Court’s jurisdic-
tion. The requisite common, ascertainable intention of the Parties to
authorize unilateral reference to the Court is absent. Its absence is — or
should have been — determinative.

The Court may believe itself justified in discounting the travaux pré-
paratoires because the meaning of the actual terms of the Doha Minutes
as it construes them is “clear”. But if that is the purport of the Court’s
Judgment, that position is hardly tenable. The expression in the Doha
Minutes of “al-tarafan”, however translated, is quintessentially unclear;
as the Court itself acknowledges, it is capable of being construed as
meaning jointly or separately. The term is inherently ambiguous. Is the
Court’s analysis of other provisions of the Doha Minutes such as to
render clear what is opaque?

Not in my view. The Court’s analysis consists of several, cumulative
arguments. The first turns on the provision of the Doha Minutes that,
“Once that period has elapsed, the two parties may submit the matter to
the International Court of Justice.” The Court maintains that the word
“may”, in its ordinary meaning, envisages a possibility, or even a right.
Accordingly, in the first place, and in its most natural sense, the provision
suggests the option or right for them to seise the Court:

“Taken as such, in its most ordinary meaning, that expression
does not require a seisin by both Parties acting in concert but, on the
contrary, allows a unilateral seisin.” (Para. 35.)

True enough. But equally, that expression does not require a unilateral
seisin, or disallow a joint seisin. What clear light then does the word
“may” shed?

The Court then maintains that the proviso, “Once that period has
elapsed”, imports that unilateral application is in order. Any other inter-
pretation would, the Court maintains, deprive the provision of its effect.
But that is not so, if the provision is interpreted to mean no more than
that, during the renewed five-month period of the good offices of the
Saudi Arabian Government, there may be no recourse to the Court; once
that period has elapsed, there may be.

The Court continues that the purpose of the Doha Minutes was “to
advance the settlement of the dispute by giving effect to the formal com-
mitment of the Parties to refer it to the Court” and that this purpose
implies that unilateral application is permitted since joint application had
been shown to have been unachievable. But does not the Court thereby
assume what is in dispute, namely, that the purpose of both Parties in
signing the Doha Minutes was to advance settlement of the dispute by

35
38 DELIMITATION AND QUESTIONS (DISS. OP. SCHWEBEL)

authorizing unilateral application? An equally plausible construction of
the events that transpired at Doha was that Bahrain inexorably main-
tained its position that the dispute could be settled only by joint referral
to the Court by way of special agreement of the dispute in all its ele-
ments. If that position constituted no “advance”, it may nevertheless
have constituted Bahrain’s position.

All this is not to say that the Court’s construction of the provision
that, once the period for the renewed good offices of Saudi Arabia has
elapsed, the two Parties may submit the case to the Court, is implausible.
It is to say that it is not the sole, or necessarily the most, plausible
construction that can be made. It may alternatively be maintained that
these provisions of the Doha Minutes rather mean that (a) the good
offices of Saudi Arabia in addressing the substance of the dispute between
Bahrain and Qatar shall continue until May 1991; (6) during that
period, the case cannot be submitted to the Court; (c) once that period
has elapsed, the two Parties may submit the case to the Court; (d) dur-
ing the time of the consideration of the case by the Court, Saudi Arabia
may continue its good offices directed to a substantive settlement; and
(e) if such a settlement is attained, the case shall be withdrawn from the
Court.

What do these provisions, so interpreted, do that would not have
obtained without them?

They do indicate that, not only would Saudi Arabia extend its efforts
to bring about a substantive settlement, but that, during the five months
of that period, the case could not be brought; thereafter it could be.
The text has its striking ambiguities about whether the case then could
be brought jointly or separately. But these provisions of themselves do
not demonstrate that the meaning of the Doha document is that, after
the end of the five-month period, each of the two Parties unilaterally
could submit the case and effectively seise the Court of it. For five
months, the Parties agreed to deny themselves recourse to the Court in
deference to a renewed Saudi Arabian effort to settle their differences;
after that period, “the two parties may” — not shall but may — submit
it to the Court. The word “may” imports uncertainty and permissive-
ness rather than certainty and obligation. Why? It may be argued,
because, given the record of their negotiations, it was clear that the
Parties might or might not reach agreement on the terms of a special
agreement. Thus, contrary to the Court’s interpretation, the word “may”
can be interpreted to cut not in favour but against the Qatari
contentions.

What the text and context of the Doha Minutes leave so unclear is,
however, crystal clear when those Minutes are analysed with the assist-
ance of the travaux préparatoires. None of the usual arguments mar-

36
39 DELIMITATION AND QUESTIONS (DISS. OP. SCHWEBEL)

shalled in opposition to the use of travaux apply. The preparatory work
in this instance is not fragmentary, it is complete. Neither of the Parties
suggested that there is a scrap more; the whole of the record has been
placed before the Court. The preparatory work is not composed of par-
tial, self-serving statements made by one side or another in the course of
a complex multilateral negotiation. Rather, a negotiation leading to sig-
nature of what has been held by the Court to be an international agree-
ment — essentially bilateral, in form trilateral, but certainly not the
complex type of multinational agreement that emerges from a global
conference — produced a terse but comprehensive preparatory docu-
ment which comprises all that the two Parties directly concerned had to
say on the matter at that juncture of their relationship. None of the
preparatory work at issue was or is secret, or known to one but not
another Party. Finally, the preparatory work of itself is not ambiguous;
on the contrary, a reasonable evaluation of it sustains only the position
of Bahrain.

The Court provides no more explanation of why the travaux prépara-
toires do not provide it with conclusive supplementary elements for the
interpretation of the text adopted than described above. But it also
implies — in referring “to resort to supplementary means of interpreta-
tion — in order to seek a possible confirmation of its interpretation of the
text” — that it discounts the travaux préparatoires on the ground that
they do not confirm the meaning to which its analysis has led. In my
view, such a position, if it be the position, would be hard to reconcile
with the interpretation of a treaty “in good faith” which is the cardinal
injunction of the Vienna Convention’s rule of interpretation. The travaux
préparatoires are no less evidence of the intention of the parties when
they contradict as when they confirm the allegedly clear meaning of the
text or context of treaty provisions.

These considerations have special force when the treaty at issue is one
that is construed to confer jurisdiction on the Court. Where the travaux
préparatoires of a treaty demonstrate the lack of a common intention of
the parties to confer jurisdiction on the Court, the Court is not entitled to
base its jurisdiction on that treaty.

(Signed) Stephen M. SCHWEBEL.

37


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
THE VIENNA CONVENTION
ON CONSULAR RELATIONS

(PARAGUAY v. UNITED STATES OF AMERICA)

ORDER OF 9 APRIL 1998

1998

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE
A LA CONVENTION DE VIENNE
SUR LES RELATIONS CONSULAIRES

(PARAGUAY c. ETATS-UNIS D’AMERIQUE)

ORDONNANCE DU 9 AVRIL 1998
Official citation:

Vienna Convention on Consular Relations
(Paraguay v. United States of America), Order of 9 April 1998,
I CT. Reports 1998, p. 266

Mode officiel de citation:

Convention de Vienne sur les relations consulaires
(Paraguay c. Etats-Unis d’ Amérique), ordonnance du 9 avril 1998,
CLI. Recueil 1998, p. 266

| Sales number
ISSN 0074-4441 N° de vente: 705
ISBN 92-1-070769-9

1998
9 April
General List
No. 99

266

INTERNATIONAL COURT OF JUSTICE

YEAR 1998

9 April 1998

CASE CONCERNING
THE VIENNA CONVENTION
ON CONSULAR RELATIONS

(PARAGUAY y. UNITED STATES OF AMERICA)

ORDER

The Vice-President of the International Court of Justice, Acting Presi-
dent,

Having regard to Article 48 of the Statute of the Court, and to
Articles 13, paragraph 1, 31, 32, paragraph 1, 44 and 45, paragraph 1, of
the Rules of Court,

Having regard to the Application by the Republic of Paraguay filed in
the Registry of the Court on 3 April 1998 instituting proceedings against
the United States of America for “violations of the Vienna Convention
on Consular Relations [of 24 April 1963]” allegedly committed by the
United States of America,

Having regard to the request for the indication of provisional measures
submitted by Paraguay on 3 April 1998,

Having regard to the Order of 9 April 1998 whereby the Court indi-
cated provisional measures and in which it declared, inter alia, that “it is
appropriate that the Court, with the co-operation of the Parties, ensure
that any decision on the merits be reached with ail possible expedition” ;

Whereas at a meeting between the Vice-President, Acting President,
and the representatives of the Parties held on 9 April 1998, the Parties
agreed on the time-limits set out below,
267 VIENNA CONVENTION (ORDER 9 IV 98)

Fixes the following time-limits for the written proceedings:

9 June 1998 for the Memorial of the Republic of Paraguay;

9 September 1998 for the Counter-Memorial of the United States of
America; and

Reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this ninth day of April, one thousand nine
hundred and ninety-eight, in three copies, one of which will be placed in
the archives of the Court and the others transmitted to the Government
of the Republic of Paraguay and the Government of the United States of
America, respectively.

(Signed) Christopher G. WEERAMANTRY,
Vice-President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.


53

DISSENTING OPINION OF JUDGE DIMITRIJEVIC

The nature of facts in law — Facts as results of legal determinations — Sta-
tus of a State 1s a fact — Contradictory and ambiguous decisions of interna-
tional organizations and States and interpretations thereof — What was the
status of “Yugoslavia”, the Socialist Federal Republic of Yugoslavia and the
Federal Republic of Yugoslavia after 27 April 1992? — The Federal Republic of
Yugoslavia was at no time a continuator of the Socialist Federal Republic of
Yugoslavia, it was not a Member of the United Nations until 1 November 2000
— The Federal Republic of Yugoslavia thus had no access to the International
Court of Justice and was not party to the Genocide Convention in 1996 — Con-
sent to jurisdiction to be narrowly interpreted — Scope of the judgment envis-
aged in Article 61, paragraph 2, of the Statute possibihty of revision based on
the final assessment of facts

I INTRODUCTION

1 While I can generally accept the presentation of the historical context
of the case, I cannot support the conclusions arrived at in the Judgment

2 The arguments of the majority flow in two principal directions One
1s an attempt to dispose of the case “epistemologically”, by restrictively
interpreting the meaning of the term “fact” as used in Article 61 of the
Statute, and the other — less obvious but contained in the Judgment —
through an interpretation of the legal situation which obtained on 11 July
1996 when the Judgment in the case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina V Yugoslavia), Preliminary Objections
(I CJ Reports 1996 (II), p 595) was delivered Regretfully, I am unable
to follow either line of reasoning

II WHAT Is “Facr” IN Law?

3 I cannot subscribe to the view of the majority, based as it 1s mostly
on dictionanes for general use, that a fact 1s only something that can be
perceived by human senses as a part of physical reality A legal fact, a
fact in law, 1s something that /egally exists, that belongs to legal reality as
a product of legal rules Being or not being a member of an international
organization or a party to an international treaty 1s a legal fact — not a
legal norm — although it can be the result of an authoritative interpreta-
tion of the latter

50
54 APPLICATION FOR REVISION (DISS OP. DIMITRIJEVIC)

4. Different legal determinations typically rely on different kinds of
facts. Often there are conflicting perceptions of the latter This does not
mean, however, that, for example, being or not bemg a State, having or
not having the status of a citizen, having or not having domicile, being or
not being a father, being or not being validly married, are mere percep-
tions These are facts which may or may not be readily perceptible and
may or may not be correctly percerved But they are facts nonetheless.
Whether the Federal Republic of Yugoslavia (FRY) was or was not a
party to the Statute of the International Court of Justice at the time of
the 1996 Judgment 1s a factual question Whether the FRY did or did not
remain bound by the Genocide Convention continuing the personality of
the former Yugoslavia is also a matter of facts In the present case, these
are the critical facts on which the legal determination of jurisdiction 1s to
be based.

5 Determinations of law resolve a dispute between the parties and
attribute consequences Such determinations are based on what a court
perceives and establishes as a fact In the 1996 Judgment the determiina-
tion of law was that the International Court of Justice had jumsdiction
over both the FRY and Bosma and Herzegovina.

6 Whether in the context of revision or in another context, the con-
cept of “fact” has never been reduced to physical evidence or documents
International tribunals have also come to the conclusion that the mean-
ing of “fact” depends on the context and that it must not be construed
narrowly

7. The French-German Mixed Arbitral Tribunal stated m 1924,
“whereas the notion of fact should not be placed in total opposition to
that of law, from which it 1s not readily distinguishable, but must be
construed in a broader sense ” The decision then continued “whereas
the essential condition in order that a new fact may provide a basis for
revision is that 1t could have been of such a nature as to be a decisive
factor in the award”!

8 In the E! Salvador! Honduras case, the International Court of Jus-
tice considered as a factual question whether certain waters were subject
to a régime of condominium because this was posited as a possible
premise or a legal determination The Court raised the question “in what
practical ways that process of delumitation would be at all affected by the
fact that the waters were subject to a régime of a condominium rather
than being simply undelimited waters” (Land, Island and Maritime Fron-
tier Dispute (El SalvadoriHonduras Nicaragua intervening), Judgment,
ICJ Reports 1992, p 606, para. 414, emphasis added) In the same
case, the Court treated as a fact the issue of whether El Salvador was or
was not a party to the case, and whether, accordingly, 1t could be bound
by the decision (ibid , pp 597-598)

! Heim et Chamant c Etat allemand, RDTAM, Vol III, p 55 [translation by the
Registry]

51
55 APPLICATION FOR REVISION {DISS OP DIMITRIJEVIC)

9 In the case concerning the Frontier Dispute ( Burkina Fasol Republic
of Mal), both Parties recognized that “the question has here to be
appraised in the light of French colomal law, ‘droit d’outre-mer’” (1 CJ
Reports 1986, p 568, para 29) The Court held, however, that legislation
enacted by France for tts colonies does not have the role of law in the
actual setting of the case, but may only be considered as a factual ele-
ment The Court stated “French law — especially legislation enacted by
France for its colonies and territoires d’outre-mer — may play a role not
in itself but only as one factual element among others © (bid,
p 568, para 30, emphasis added)

10 Article 61 of the Statute does not distinguish between various
kinds of judgments For this simple reason, the notion of “fact” relied
upon in Article 61 should be broad enough to accommodate various
types of facts which serve as a basis for all legal conclusions Obviously,
specific facts on which access to the Court and jurisdiction may be based
also belong to the broad category of facts within the meaning of Article 61

11 The same Article allows for some temporal duality between the
existence of a fact and its discovery or determination In paragraph 1,
reference 1s made to a fact which existed at the time when the Judgment
was given, but which was unknown to the Court and to the party claim-
ing revision, whilst paragraph 2 expects the Court expressly to record
“the existence of the new fact” (emphasis added) in order to declare an
application for revision admissible This amples a new understanding,
caused by a realization that occurred after the judgment was delivered
and showing that the “old” fact, which had been assumed to exist at the
time of the judgment, had not actually existed ab initio, or that a fact
which had not been seen as existing or had been misperceived as such,
had actually existed at the relevant time Contrary to what the majority
says in paragraph 69 of the present Judgment, the FRY does not rely “on
the legal consequences which it seeks to draw from facts subsequent to
the [1996] Judgment”, but seeks to prove that the fact on which the Court
rehed in its 1996 Judgment did not exist The non-existence of a fact, as
well as its existence, 1s also a factual question

JE. FACTS IN THE PRESENT CASE

12 The fact that the FRY was not a contmuator of the Socialist
Federal Republic of Yugoslavia (SFRY) and thus net a Member of the
United Nations or party to international treaties ratified by the SFRY
(including the Genocide Convention), was “unknown” 1m its totality to
the Court and to the FRY That ts not to say 1t was unknown in the sense
that it was hidden from them or that they had no notion of its possible
existence It was familar to them and to many others as a possibility —

52
56 APPLICATION FOR REVISION (DISS OP DIMITRIJEVIC)

a legal contention shared by those opposing the FR Y’s continuity (includ-
ing Bosma and Herzegovina 1n other fora, outside the Court).

13 Indeed, the jurisdiction in personam over the FRY was based on
the perceived fact that, following the break-up of the former Yugoslavia,
the FRY continued the personality and treaty membership of the former
Yugoslavia The legal conclusion that the Court had jurisdiction derived
its sole basis from that perceived fact

14 It goes without saying that the admission of the FRY to the
United Nations in 2000 could not have been known to the Court as early
as 1996; for that matter, it could not have known of the FRY’s intention
to apply for membership. Even if the then Government of the FRY had
such plans, it could not have known the outcome of the vote m the
United Nations Security Council and the General Assembly However,
the elements of the legal position of the FRY vis-a-vis the United
Nations and relevant to the FR Y’s being a party to the Statute and to the
Genocide Convention were certainly known to both the Court and the
Applicant but could not be fully comprehended prior to 1 November
2000

15 The Court had two opportunities to state its position towards its
Jurisdiction in the case of the Application af the Convention on the Pre-
vention and Punishment of the Crime of Genocide (Bosnia and Herze-
govina v Yugoslavia) The first was when deciding, in its Order of
8 April 1993, on the request for the indication of provisional measures
(CJ Reports 1993, p 4) That Order rehed on the finding that the
Court had prima facie jurisdiction on the basis of Article IX of the
Genocide Convention in conjunction with Article 35, paragraph 2, of
the Statute Whilst stressing more than once that the determination of
jurisdiction was based on prima facie findings — understandable when
relating to provisional measures — the Court observed

“Whereas, while the solution adopted is not free from legal diffi-
culties, the question whether or not Yugoslavia 1s a Member of the
United Nations and as such a party to the Statute of the Court 1s
one which the Court does not need to determine definitively at the
present stage of the proceedings ” (bid, p 14, para 18, emphasis
added.)

16 The second opportunity came when the Court had to decide on
prelimmary objections It did so in the Judgment which 1s the object of
the Application for revision At that stage again the Court did not find it
necessary to determine definitively whether or not the FRY was a Mem-
ber of the United Nations and as such a party to the Statute of the Court

53
37 APPLICATION FOR REVISION (DISS OP DIMITRIJEVIC)

It based its yurisdiction on the proposition that the FRY remaimed bound
by the Genocide Convention — which is only possible on the assumption
of continued personality and therefore contimued status and participation
in international treaties (It was never alleged, or mentioned, that the
FRY would have become bound by Article IX by virtue of its own treaty
action — like Bosnia and Herzegovina did ) The Court found support for
this understanding in the intention of the FRY, allegedly expressed in the
Declaration “adopted on its behalf” on 27 April 1992, “to remain bound
by the international treaties to which the former Yugoslavia was party”
(Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v Yugoslavia), Preliminary
Objections, Judgment, I C J Reports 1996 (IT), p 610, para 17; empha-
sis added) The 11 July 1996 Judgment added “that 1t has not been con-
tested that Yugoslavia was party to the Genocide Convention” From
there it followed that “Yugoslavia was bound by the provisions of the
Convention on the date of the filing of the Application on 20 March
1993” (ibid )

17 That very expeditious way of dealing with the important matter of
jurisdiction, together with the choice of arguments and terms, could only
have meant the following:

(a) The Court assumed that the SFRY had ceased to exist Otherwise
there would be no “former” Yugoslavia It remains unclear to which
“Yugoslavia” the Court referred as a party to the Genocide Conven-
tion There was certainly no dispute regarding the fact that the
former Yugoslavia, 1e , the SFRY, was a party, but such qualifica-
tion of the FRY depended on whether the FRY was sufficiently
linked to the commitments of the former State, by continuity or
otherwise

(b) Failing to indicate that the FRY was bound by the obligations of
the SFRY as a successor State the Court must have assumed that
there was continuity between the SFRY and the FRY This conti-
nuity — 1t follows from the Judgment — was based on the Declara-
tion of 27 April 1993 and the intention expressed therein to remain
bound by international treaties ratified by the SFRY, mcluding the
Genocide Convention

{c) The Court must have assumed that the FRY was a Member of the
United Nations Namely, even if the FRY was held to be bound by
the provisions of the Genocide Convention on bases other than con-
tinuity, without membership in this organization 1t could not have
become a party to the Convention and could have no locus stand
before the International Court of Justice

It should be noted that the Court found that its jurisdiction was estab-
lished “only. on the basis of Article IX of the Genocide Convention”
(ibid, p 621, para 41).

54
58 APPLICATION FOR REVISION (DISS OP. DIMITRIJEVIC)

IV THE LEGAL STATUS OF THE SOCIALIST FEDERAL REPUBLIC OF
YUGOSLAVIA, OF THE FEDERAL REPUBLIC OF YUGOSLAVIA AND OF
“YUGOSLAVIA” IN 1996

18 All the foregomg determinations are findings on facts. They were
made by the Court in spite of admitted “legal difficulties” Those diffi-
culties were known to the Court in the form of possible options on how
to decide on the presence of certain facts, as disclosed in a series of
ambiguous or controversial decisions. Those taken within the United
Nations system were the following

19 The Security Council adopted on 30 May 1992 its resolution 757
(1992), quoted by the majority, where the Council noted that the clam by
the FRY “to continue automatically the membership of the former
Socialist Federal Republic of Yugoslavia in the United Nations has not
been generally accepted” (United Nations doc S/RES/757 (1992))

20 This statement was reiterated in Security Council resolution 777
(1992) of 19 September 1992, coupled with the finding that the SFRY
had ceased to exist The Council then recommended to the General
Assembly to decide that the FRY “should apply for membership in the
United Nations and that it shall not participate in the work of the Gen-
eral Assembly” (United Nations doc S/RES/777 (1992), emphasis added)

21 Following this recommendation, the General Assembly on 22 Sep-
tember 1992 adopted its resolution 47/1, also quoted by the majority,
where this United Nations organ “considered” that the FRY “cannot
continue automatically the membership of the former Socialist Federal
Republic of Yugoslavia in the United Nations” and “decided” that the
FRY “should apply for membership in the United Nations and that it
shall not participate in the work of the General Assembly” (United
Nations doc A/RES/47/1 (1992)) Although the disappearance of the
SFRY was implied by the use of the term “former”, the General Assem-
bly did not repeat the statement of the Security Council that the SFRY
had ceased to exist

22 After deciding, seven months later, in its resolution 47/229 of
29 April 1993, that the FRY should not participate in the work of the
Economic and Social Council either, on 20 December 1993 the General
Assembly adopted resolution 48/88, mm which it referred to resolu-
tion 47/1 and urged “Member States and the Secretariat m fulfilling the
spirit of that resolution, to end the de facto working status of Serbia and
Montenegro” (United Nations doc A/RES/48/88, para 19; emphasis
added)

23. Whereas the General Assembly had not followed the Security
Council in 1ts willingness to take a resolute stand on the extinction of the
SFRY, the Security Council returned to that subject in 1ts resolution 1022

55
59 APPLICATION FOR REVISION (DISS OP DIMITRIJEVIC)

(1995) of 22 November 1995 (United Nations doc S/RES/1022), in which
it referred to “the successor States to the State formerly known as the
Socialist Federal Republic of Yugoslavia” and to “the fact that that State
has ceased to exist”.

24. General Assembly resolution 48/88 was addressed to “Member
States and the Secretariat” It 1s therefore important to find out what
actions were taken by those States and by the United Nations Secretary-
General in this respect prior to 11 July 1996, when the Judgment m the
case concerning the Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovma v Yugo-
slavia), Preluminary Objections, was delivered, 1e , which actions may be
presumed to have been known by the Court at the time

25 The first mention of the legal disappearance of Yugoslavia was to
be found in Opinion No. 1 of the Arbitration Commussion established as
an advisory body by the Peace Conference on Yugoslavia, convened by
the (then) European Community This Commission, known after 1ts first
president as the “Badinter Commission”, opined on 29 November 1991
“that the Socialist Federal Republic of Yugoslavia [was] 1n the process of
dissolution” (Conference for Peace in Yugoslavia, Arbitration Commis-
sion, Opinion No 1, International Legal Materials, 1992, p 1497)

26 Inits 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 SFR Y’s membership of ternational organizations must be ter-
minated 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 Opin-
ion No 10, that the FRY was “a new state which cannot be considered
the sole successor to the SFRY” (Opinions 8, 9 and 10 are reproduced in
International Legal Materials, 1992, pp 1521 et seq )

27 Already on 5 May 1992, in a statement of the European Commu-
nity and its Member States, it was stressed that the latter had not
accepted the “automatic continuity” of the FRY in international organi-
zations (United Nations doc A/46/905, Annex) In its Declaration on the
former Yugoslavia of 29 June 1992 the European Council stated that
“The European Community and its member States do not recognize the
new federal entity comprising Serbia and Montenegro as the successor
State /src’] of the former Yugoslavia” and that they had decided “to
demand the suspension of the delegation of Yugoslavia /sic’] in the pro-
ceedings at the CSCE and imternational forums and organizations”
(United Nations doc $/24200, Annex) In their Declaration on Yugosla-
via of 20 July 1992 the Ministers for Foreign Affairs of the European
Community stated that the “new federation cannot be accepted as the
sole successor” to the SFRY and that European Community Member

56
60 APPLICATION FOR REVISION (DISS OP DIMITRIJEVIC)

States “will oppose the participation of Yugoslavia /sic/] in interna-
tional bodies”? (United Nations doc. 5/24328)

28 As interpreted by the United States, a permanent member of the
Security Council, at the time of the adoption of resolution 777 (19 Sep-
tember 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 1t must apply for membership if
it wishes to participate in the United Nations” (emphasis added)

The United States representative said further that the provision m the
resolution that the FRY shall not participate m the work of the General
Assembly “flows mevitably from the determination by the Council and
the General Assembly that Serbia and Montenegro 1s not the continua-
tion of the former Yugoslavia  ” (emphasis added) The United States
delegate to the Security Council believed that he was stating the obvious
when he said that “a country which 1s not a member of the United
Nations cannot participate in the work of the General Assembly” (United
Nations doc S/PV 3116; emphasis added) This interpretation was sup-
ported by the delegates of some other States in the Security Council?

29 Regarding General Assembly resolution 47/1, the representative of
the United Kingdom stated that “as regards the need to submit an appli-
cation for membership” the FRY was “in precisely the same position
as other components of the former Socialist Federal Republic of Yugo-
slavia” (United Nations doc A/47/PV 7)

30 On the other hand, there were statements by representatives of
other Member States, which exphcitly or implicitly and in nuances of
various degrees supported the claim of the then Government of the FRY
that the latter was identical to the SFRY and that it was its continuator

31 Thus the representative of the Russian Federation, while voting
for Security Council resolution 777, interpreted it as being opposed to the
exclusion of the FRY “formally or de facto, from membership im the
United Nations” (United Nations doc S/PV 3116, emphasis added) The

2 For other examples (and comments on the unusual expression “sole successor”) see
J Klabbers, M Koskenmem:, © Ruibbelink, A Zimmermann (eds), State Practice
Regarding State Succession and Issues of Recognition The Pilot Project of the Council of
Europe, 1999, pp 61-62

3 Austria, Bosnia and Herzegovina, Finland, Germany, Hungary, Poland, Slovenia,
Spain, quoted in K Buhler, State Succession and Membership in International Organiza-
tions, 2001, p 196, n 884

57
61 APPLICATION FOR REVISION (DISS OP DIMITRIJEVIC}

delegate of China, abstaining, shared the mterpretation according to
which the adoption of the resolution did not amount to the expulsion of
“Yugoslavia” and referred to the situation created by the decision as a
“transitional arrangement” (United Nations doc S/PV 3116)

32 A third group of Members of the United Nations failed in 1992 to
see any coherence in resolution 47/1 and to discern its purported basis m
law, in light in particular of its failure to refer to the provisions of the
United Nations Charter governing membership+

33 In this respect 1t is important to observe the conduct of Bosnia and
Herzegovina It has been one of those States which have most vigorously
contested the membership of the FRY in the United Nations and other
international organizations as well as the existence of continuity between
the SFRY and the FRY In addition to the instances cited by the major-
ity in the Judgment (paras 35, 36, 42 and 43) one can quote, mter alia, its
reactions in the General Assembly on the occasion of the adoption of
resolution 47/1 (United Nations doc A/47/PV 7), im a communication to
the Secretary-General of 25 September 1992 on the occasion of the rais-
ing of the flag of Yugoslavia after the adoption of that resolution (United
Nations doc. A/47/474), in the International Atomic Energy Agency
against the listing im 1996 of the FRY as having ratified the Non-Pro-
liferation Treaty m 1970 (which, according to Bosnia and Herzegovina,
implied its identity with the SFR Y)°, and in connection with the notifica-
tion by the FRY in 1997 of its withdrawal of the reservation to the Con-
vention on the Rights of the Child made by the SFRY in 1991°

34 In view of the foregomg, the finding of the Court “that it has not
been contested that Yugoslavia was a party to the Genocide Convention”
must be seen 1n a different light Actually, the other party in the proceed-
ings, Bosnia and Herzegovina, has never failed to contest the identity
between the SFRY and the FRY, except only in relation to the Genocide
Convention and only regarding a specific case before the International
Court of Justice It 1s true that Bosnia and Herzegovina did advance
bases of jurisdiction other than continuity between the SFRY and the
FRY, but the Court itself based 1ts jurisdiction only on the FRY being a
party to the Genocide Convention

35. In addition to the variety of interpretations by Member States,
resolution 47/1 was also interpreted by other addressees of resolution
48/88. The United Nations Secretary-General did this in his two capaci-

4 See the statements of India, Brazil, Mexico, Ghana, Kenya, Zambia, Tanzania and
Guyana, quoted in K Buhler, op ct, p 198

5 Communication of 29 August 1996, IAEA doc GC(40)INF/10 (16 September 1997,
Communication of 15 September 1997, IAEA doc GC(41) INF/19m, Attachment, 1 Octo-
ber 1997)

§ Communication of 10 October 1997, Status of the Convention on the Rights of the
Child, Multilateral Treaties Deposited with the Secretary-General

58
62 APPLICATION FOR REVISION (DISS OP DIMITRIJEVIC)

ties of interpreter of United Nations decisions and depositary of interna-
tional treaties Responding to demands for interpretation by some Mem-
ber States on 29 September 1992 the United Nations Under-Secretary-
General for Legal Affairs issued the opinion quoted in the Judgment
(para 31) Naturally, his opinion could not cure the inconsistencies and
ambiguities of resolution 47/1. Let me imdicate some of the most
conspicuous

36 First, 1t 1s unclear to which “Yugoslavia” the opinion refers when
not using the official title “the FRY” and when determining that the rep-
resentatives of the latter can “no longer” participate in the work of the
General Assembly and not sit behind the sign “Yugoslavia”, although
“Yugoslavia’s” membership in the United Nations had allegedly neither
been terminated nor suspended Even if 1t was, statements to the effect
that Yugoslav membership has “expired”, quoted above (para 28), only
refer to membership and not to the State in question, since States nor-
mally do not “expire” It is therefore quite conceivable that “Yugoslavia”
went on existing as a State without necessarily being a Member of the
United Nations

37 Iam sure that all actors must have been aware that “Yugoslavia”
in this particular and important context could have been taken as a short
reference both to the SFRY and the FRY and that representatives of
States and international organizations shall not be presumed to have
acted in a cavalier fashion What then 1s the difference between “old
Yugoslavia” and “new Yugoslavia”, referred to in the opimon? What
was beheved 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 o/d Yugoslavia) and the fact that this flag lost its sym-
bolic meaning (for it had been abolished by the same gathering which
had proclaimed the Constitution of the FRY and adopted the Declara-
tion 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 Novem-
ber 2000, when the FRY was admitted to membership, a phantom State
existed, which was neither the SFRY nor the FRY, alternatively, and
contrary to the assertions of the Security Council and organs of other
international organizations (but not the General Assembly), 1t was pre-
sumed that the SFRY still existed until that date Such a “common roof”
theory’ talhes with the opinion of the delegate of China, quoted above,
that the adoption of resolution 47/1 did not amount to the expulsion of
“Yugoslavia” and his qualification of the arrangement as “transitory”, as

7 Similar to the Dachtheorte which mamtamed that the German Reich contmued to
exist after 1945 above and apart from the Federal Republic of Germany and the German
Democratic Republic Cf H von Mangold, F Klem, Das Bonner Grundgesetz, 1957,
pp 33 ef seq ,W Wengler, “Deutschland als Rechtsbegniff”, Festschrift Hans Nawtasky,
1956, p Sl,n 3

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63 APPLICATION FOR REVISION (DISS OP DIMITRIJEVIC)

well as with the statement of Romania that this resolution did not pro-
vide for “either the suspension or the exclusion of Yugoslavia from the
United Nations” (Umted Nations doc. A/47/PV 7, p 192 (1992), empha-
sis added)

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”®, Since allegedly there has been no
termination of membership, an entity must have been within the United
Nations, but it was not the FRY Even accepting the most generous
mterpretation of such statements, the FRY could not have had a double
identity and be represented once behind the sign “Yugoslavia” and at
other trmes under its official name

39 According to the opinion of the Under-Secretary-General quoted
by the majority (para 31), the representatives of the FRY were excluded
only from participation in the General Assembly bodies He opined that
resolution 47/1 did not “take away the night of Yugoslavia /sic/] to par-
ticipate in the work of organs other than Assembly bodies” (United
Nations doc A/47/485) This nght was obviously very feeble because,
seven months later, participation in the work of ECOSOC was demed
without adducing further legal reasons How could the Court then have
concluded that the “right” of the FRY to appear before the International
Court of Justice was any stronger? In fact, in the final part of its para-
graph 17 the 1996 Judgment refers only to Yugoslavia, with the Court
determining that “Yugoslavia was party to the Genocide Convention”
and that “Yugoslavia was bound” by its provisions

40 Or, conversely, why does an explicit reference to Article 4 of the
United Nations Charter appear in the opmmon of the Legal Counsel and
not in resolution 47/1? If the measures against the FRY were limited only
to non-participation in one of the main organs of the Organization, and
if the effects of resolution 47/1 amounted only to a “situation” (which, in
the words of the Court, was “not free from legal difficulties”), and were
not decisive for the very important matter of the status of a State in the
United Nations, was not the prescribed “admission to the United Nations
of a new Yugoslavia under Article 4” too potent a remedy? Restrictive
measures of partial non-participation directed against the FRY could
simply have been rescinded If the membership of the FRY was not ter-
minated, why did that State have to apply to be admutted as a new
Member?

8 T Treves, “The Expansion of the World Community and Membership of the United
Nations”, The Finnish Yearbook of International Law, Vol VI (1995), p 278

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41 The answer to all these questions lay most probably in the true
nature and purpose of the measures against the FRY In spite of the
protestations to the contrary, initially voiced by the sponsors of resolu-
tion 47/1 (cf. the statement of the representative of the United Kingdom,
United Nations doc A/PV 7), these measures were punitive At the time
of the exclusion of the FRY from ECOSOC, condemnatory allusions
were made to the conduct of the FRY On behalf of the sponsors of the
resolution 47/229, 1t was said

“The course of events in the seven months that have passed since
the General Assembly adopted resolution 47/1 has certainly demon-
strated that the message sent by that resolution has not been taken
into account by the authorities in Belgrade This highly regrettable
fact necessitates the adoption of the present draft resolution By
excluding the Federal Republic of Yugoslavia (Serbia and Monte-
negro) from the work of the Economic and Social Council also,
the General Assembly builds upon the groundwork laid by resolu-
tion 47/1 and sends the unequivocal message to Belgrade that
the patience of the States Members of the United Nations 1s not
unlimited ” (Representative of Denmark, United Nations doc
A/47/PV.101; emphasis added.)

42 The FRY thus became the target of gradually increasing restric-
tions aimed at reducing de facto the scope to which it was allowed to play
the role of “Yugoslavia” in the United Nations Another signal was
simultaneously sent to the FRY, 1e., that it could hope to receive better
treatment, that 1s, be allowed to represent the still existing (old) “Yugo-
slavia” if the Security Council and the General Assembly become satis-
fied that the objections to its acting this role, or pretending to be identical
with Yugoslavia, no longer existed One way of testing this was the pro-
cedure of admission under Article 4 of the Umted Nations Charter,
which would offer those United Nations organs the opportunity to exam-
ine whether the FRY was “peace-loving” and “able and willing” to carry
out the obligations contained in that Article In the process, the repeated
assertions that the SFRY had ceased to exist were conveniently forgotten
and the fiction of its virtual existence prolonged If the SFRY still sur-
vived under the name of “Yugoslavia”, the same name as the State whose
Minister for Foreign Affairs had signed the United Nations Charter on
26 June 1945 (Charter of the United Nations and Statute of the Interna-
tional Court of Justice, San Francisco, 1945, p 509, Delegates and Offi-
cials of the United Nations Conference on International Organizations,
San Francisco, 1945, p 78), the conclusion could be drawn that the Judg-
ment of 11 July 1996 did not concern the FRY but the still existing
SFRY, the succession to which still had to be decided

43 It became clear on 1 November 2000 that the pragmatic solution
temporarily adopted could not resist its legal maladies relating to the
suggested admission to membership of the United Nations of a new State

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while pretending that 1t was at the same time an o/d State, or readmitting
a State that had not previously been excluded from membership, or
reconfirming the membership of an existing Member, etc In other words,
a State which had been treated as a Member of the United Nations was
invited to apply for membership implymg that 1t actually was not a Mem-
ber To say the least, the FRY was being asked to relinquish its claim to
continuation of the SFRY and thereby admit that 1t had been a Member
under false pretences

44 In his capacity as depositary of international treaties, the United
Nations Secretary-General experienced simular difficulties, manifested in
the need to change his onginal conclusions regarding the application of
resolution 47/1, unusually and dramatically, through errata in the Eng-
lish text, quoted in paragraph 39 of the Judgment Initially, the Secre-
tanat had held simply that the resolution was “without effect on the
capacity of the Federal Republic of Yugoslavia (Serbia and Montenegro)
to participate in treaties, mcluding those deposited with the Secretary-
General” (United Nations doc ST/LEG/8, para 89), but in the corrected
version the proviso was added that this effect was “subject to any deci-
sion taken by a competent organ representing the international commu-
nity of States as a whole or by a competent treaty organ with regard to a
particular treaty or convention” (United Nations doc. ST/LEG/7/Rev 1,
para 89) The United Nations Office of Legal Affairs had imtially even
gone so far as to continue to regard the FRY as the “predecessor State
upon separation of parts of the territory of the former Yugoslavia” and
find that resolution 47/1 had not affected this quality of the FRY (United
Nations doc ST/LEG/8, para 297) However, the latter part of the
explanation was eliminated in the corrected version in Enghsh (United
Nations doc ST/LEG/7/Rev 1, para 297)°

45 There was certainly a claim of the FRY to continuity, expressed in
the Declaration of 27 April 1992 and ensuing diplomatic correspondence,
but the decisive element in 1996 was whether other States recognized this
claim An international decision on continuity of States 1s one of the
decentralized acts of the international community, essentially similar to
that on the recognition of States Whether an entity 1s recognized as a
State depends not on tts self-perception but on the perception of others
Furthermore, there are no criteria which, when fulfilled, compel other
States to recognize a candidate for statehood. Even if there are, in theory,
some criteria on State recognition, there are none on continuity, so that
the full scope of appreciation remains with other States The FRY had no

9 “Summary of Practice of the Secretary-General as Depositary of Multilateral Trea-
ties”, prepared by the Treaty Section of the Office of Legal Affairs, paras 89 and 297

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great difficulties in being recognized as a State, but 1ts additional claim to
continuity of the SFRY “ha[d] not been generally accepted”, as stated in
Security Council resolution 757 (1992),

46 There have not been many instances of disintegration of a State,
but in all such cases the general response regarding continuity has
depended primarily on the attitude of the other States which emerged on
the territory of the State which had ceased to exist. If there was an agreed
arrangement, other members of the international community would gen-
erally follow suit In the case of the SFRY there was no agreement the
claim of the FRY was contested by Croatia, the Former Yugoslav
Republic of Macedonia, Slovenia and, importantly, Bosma and Herze-
govina, 1e, all other States which had emerged from the former SFRY.
That 1s the unique feature of this situation The continuation of the
SFRY by the FRY was not a matter to be decided only by the FRY, or
exclusively by the FRY and other successor States of the SFRY, but, as
confirmed by the United Nations Office of Legal Affairs (see para 44
above), remamed dependent on a decision to be taken by other actors By
admitting the FRY to membership of the United Nations, the Security
Council and the General Assembly did satisfy the first and last criteria
and thus finally determined the outcome of the debate

V. CONCLUSIONS

47 The process of recogmtion 1s a process in time The debate on the
adoption of Security Council resolution 777 (1992) and the subsequent
actions by the Secretariat of the United Nations show that continuity
between the SFRY and the FRY was an assumption or perception
shared by some other international actors but far from bemg widely
accepted If the FRY’s claim to continuity was not “generally accepted”
in 1992, it could have been accepted later, say in 1996, when the Judg-
ment was delivered, but the Court — while relying on the consequences
of continuity — failed to prove universal acceptance at the time of the
Judgment It could not, for that matter, have proven it mn 1996 or for the
whole period between 11 July 1996 and 1 November 2000, when it finally
became clear that general acceptance had not materialized

48 Accordingly, the crucial point 1s to determine when the FRY’s
claim was generally rejected When did it become clear that the FRY was
certainly not a contmuator of the SFRY, with all the consequences for
the new State, favourable and unfavourable, which that entailed? This
question was finally decided by a forum very closely approximating the

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67 APPLICATION FOR REVISION (DISS OP DIMITRIJEVIC)

totality of all States, the whole of the international community, 1e, the
Organization of the United Nations, when on 1 November 2000 the latter
admitted the FRY as a new Member of the Organization, thus excluding
the possibility of the FRY having formerly been a Member as a contimu-
ator of the SFRY, or on some other basis

49 The admission of the FRY as a new Member of the United
Nations revealed (led to the discovery of) the fact that the FRY was not
a Member of the United Nations (and not a party to the Statute of the
International Court of Justice) at the time of the Judgment of 11 July
1996 The letter of the United Nations Legal Counsel of 8 December
2000 mviting the FRY to undertake treaty actions (Application of Yugo-
slavia, Ann 27), if the intention of the latter was to assume rights and
obligations as a successor State, demonstrated that the FRY had not pre-
viously been a party to international treaties on the ground that they had
been ratified by the SFRY and that, specifically, the FRY was not a party
to the Genocide Convention at the time of the Judgment of 11 July 1996

50 The admisston of the FRY to the United Nations as a new Mem-
ber and the subsequent events showed that a possibility known to the
Court and other parties, that 1s, that the FRY was not the sole continu-
ator but one of the successors of the SFRY, had become established as a
fact existing since the very creation of the FRY, the “fact” that the FRY
was a continuator of the SFRY had not existed at any time In its Judg-
ment the Court, without explicitly saying so, espoused one of the views
existing in 1996 (and summarized above) The majority in the present
case treats this view as the only known fact at the time, disregarding
other, predominant views The legal situation was admittedly complex, as
indicated by the majority, but it was known in all its complexity The
truth 1s that the fact was not seen by the Court m 1ts entirety and that
later events demonstrated that it differed from that which provided the
basis for jurisdiction in the 1996 Judgment

51. Even if none of the mterpretations advanced above are accepted,
the follow-up to Security Council resolution 777 (1992) and General
Assembly resolution 47/1, which was known to the Court at the time of
the rendering of the Judgment of 11 July 1996, was, to say the least,
inconclusive. For the purposes of the Order on provisional measures, the
developments until April 1993 could have possibly warranted the provi-
sional assumption that the FRY was a continuator of the SFRY, but the
situation in 1996 had not developed to the degree that 1t allowed a final
determination that the Court had jurisdiction on such basis

52 The process of determining the nature of the extinction of the
SFRY was not completed on 11 July. 1t could not have been brought to
an end by unilateral action of the FRY without the necessary confirma-

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tion of the relevant organs of the United Nations or another “competent
organ representative of the international community of States”

53 According to Article 61, paragraph 2, of the Statute of the Inter-
national Court of Justice, the purpose of the judgment opening the pro-
ceedings for revision 1s limited to the initial determination of the exist-
ence of a new fact and of its (decisive) nature The judgment to be
delivered in this case should enable the Court to go more deeply mto the
matter of its jurisdiction on the basis of facts that existed in July 1996 but
acquired their real meaning only on 1 November 2000 Opening the pro-
ceedings for revision would not preclude any possible finding by the
Court that the facts existing at the time of the 1996 Judgment were such
that the Court could nevertheless entertain jurisdiction Declaring the
Application for revision inadmissible only by reference to the literal
meaning of the word “fact” misses a serious opportunity to decide on
important matters relating to the jurisdiction of the International Court
of Justice

54 One of these important matters 1s the question of the access to the
Court of States other than States parties to the Statute of the Court
under Article 35, paragraph 2, of the Statute These issues were, admut-
tedly, touched upon in its 1993 Order on provisional measures, but the
Court has never really discussed the scope of the “treaties in force” provi-
sion For instance, are the conditions in Article 35, paragraph 2, objec-
tively laid down by the Statute, or can they be changed by agreements of
States? Could the FRY, if it was not a party to the Statute of the Inter-
national Court of Justice before 1 November 2000, come before the
Court befere 1 November 2000?

55 In view of the consistent opposition of Bosma and Herzegovina to
the claim of the FRY to continuity and its frequently repeated protests
against any action resting on this claim, the Court should have examined
its jurisdiction proprio motu and not have been satisfied by the fact that
Bosnia and Herzegovina did not dispute that jurisdiction i this particu-
lar case The jurisdiction of the International Court of Justice 1s optional,
which means that any consent to it by a State should be carefully exam-
ined and narrowly interpreted. The process of determining the nature of
the extinction of the SFRY was not completed on 11 July 1996, it could
not have been brought to an end by unilateral action of the FRY without
the necessary international confirmation The admission of the FRY to
the United Nations as a new Member completed the process by confirm-
ing the general sense in the international community that the FRY, while
being one of the successors to the SFRY, was not tts continuator, with all
the consequences following therefrom, including its participation m inter-
national treaties The “sut generis position which the FRY found itself in
vis-à-vis the United Nations over the period 1992 to 2000”, as the major-
ity describes the status of the FRY in paragraph 71 of the Judgment, was
an insufficient ground to establish the yurisdiction of the International

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Court of Justice In paragraph 70, the majority admits that it was not
known m 1996 whether the FRY would apply for membership in the
United Nations and whether it would be admitted, but still bases the
whole argument on the assumption that the admission of a State as a
Member of the United Nations does not necessarily result in the conclu-
sion that it had not been a Member prior to admission If for some curi-
ous reason that logical conclusion does not apply m this particular case,
it would be an exception to the rule All exceptions, cluding this one,
must be strictly construed and their existence unequivocally proven, but
this was not done by the majority

56 When pressing its clam to contmuity, the FRY was apparently
seeking to benefit from some advantages of the continuator State, while
being reconciled to the disadvantages of such status By constantly pro-
testing against that claim of the FRY, Bosnia and Herzegovina was in a
reciprocal position The result, depriving the FRY of all advantages and
leaving it with the burden of being submitted to the jurisdiction of the
International Court of Justice, while giving Bosnia and Herzegovina all
the benefits, in the only instance where it recognized the claim of the
FRY to continuity, was tantamount to differential treatment

57 Admittedly, there could have been other bases for the jurisdiction
of the Court, mcluding a construction that would not rely on the FRY
remaining bound by treaty obligations of the former SFRY, but the
Court dismissed them in paragraph 41 of the 1996 Judgment. They could
have been examined had the case been opened for revision

(Signed) Vojin DIMITRHEVIC

66