COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

DEMANDE EN REVISION DE L’ARRET
DU 11 JUILLET 1996 EN L’AFFAIRE RELATIVE
À L’APPLICATION DE LA CONVENTION POUR
LA PREVENTION ET LA REPRESSION DU CRIME
DE GENOCIDE (BOSNIE-HERZEGOVINE c
YOUGOSLAVIE), EXCEPTIONS PRELIMINAIRES

(YOUGOSLAVIE c BOSNIE-HERZEGOVINE)

ARRET DU 3 FEVRIER 2003

2003

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

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)

ene soap eee een

JUDGMENT OF 3 FEBRUARY 2003

1
#

Mode officiel de citation

Demande en revision de l'arrêt du 11 jullet 1996 en l'affaire relative

à l’Application de la convention pour la prévention et la répression

du crime de génocide (Bosnie-Herzégovine c Yougoslavie), exceptions

préliminaires { Yougoslavie c Bosnie-Herzégovine), arrêt, CI J Recueil
2003, p 7

! « a

Official citation

Application for Revision of the Judgment of 11 July 1996 in the Case con-

cernnmg Application of the Convention on the Prevention and Pumsh-

ment of the Crime of Genocide (Bosma and Herzegovina v Yugoslavia),

Preliminary Objections { Yugoslavia v Bosnia and Herzegovina), Judg-
ment, IC J. Reports 2003, p 7

N° de vente:
ISSN 0074-4441 | Sales number 862
ISBN 92-1-070968-3

3 FEVRIER 2003

ARRET

DEMANDE EN REVISION DE L’ARRET DU 11 JUILLET 1996
EN L’AFFAIRE RELATIVE A L’APPLICATION
DE LA CONVENTION POUR LA PREVENTION
ET LA REPRESSION DU CRIME DE GENOCIDE
(BOSNIE-HERZEGOVINE c YOUGOSLAVIE),
EXCEPTIONS PRELIMINAIRES

(YOUGOSLAVIE c BOSNIE-HERZEGOVINE)

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 » BOSNIA AND HERZEGOVINA)

3 FEBRUARY 2003

JUDGMENT
INTERNATIONAL COURT OF JUSTICE
YEAR 2003

3 February 2003

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 » BOSNIA AND HERZEGOVINA)

Article 61 of the Statute — Application for revision — Parties’ arguments as to
whether there is a “fact” which, although in existence at the date of the Court's
Judgment of 11 July 1996, was at that time unknown both to the FRY and to the
Court — Whether the FRY reltes on facts which fall within the terms of Ar-
ticle 61 of the Statute — Characteristics which a “new” fact within the meaning
of Article 61 must possess — Admission of the FRY to the United Nations
occurred well after the 1996 Judgment and cannot be regarded as such a new
fact — FRY’s Application for revision ts based on the legal consequences which
it seeks to draw from facts subsequent to the Judgment — Those consequences
cannot, even supposing them to be established, be regarded as facts within the
meaning of Article 61 — Situation created by General Assembly resolution 47/1
of 22 September 1992 — Sui generis position of the FRY was known to the
Court and to the FRY when the 1996 Judgment was given — General Assembly
resolution 55112 of 1 November 2000 cannot have changed retroactively this sw
generis position — Legal Counsel's letter of 8 December 2000 cannot have
affected the FRY’s position in relation to treaties — Lack of discovery of “some
fact” which was “when the judgment was given, unknown to the Court and also
to the party clauming revision” — No need to examine whether the other
requirements of Article 61 have been satisfied

2003
3 February
General List
No 122

APPLICATION FOR REVISION (JUDGMENT) 8

JUDGMENT

Present President GUILLAUME, Vice-President Sui, Judges RANIEVA,
HERCZEGH, KOROMA, VERESHCHETIN, PARRA-ARANGUREN, REZEK, AL-
KHASAWNEH, BUERGENTHAL, ELARABY, Judges ad hoc DiMITRIEVIC,
Manitou, Registrar COUVREUR

In the case concerning the Application for revision of the Judgment of
11 July 1996,

between

the Federal Republic of Yugoslavia,
represented by

Mr Tibor Varady, SJ D (Harvard), Chief Legal Adviser at the Federal
Ministry of Foreign Affairs of the Federal Republic of Yugoslavia, Pro-
fessor of Law at the Central European University, Budapest, and Emory
University, Atlanta,

as Agent,

Mr Vladimir Djenic, LL M (Michigan), Adviser to ‘the Minister for Foreign
Affairs of the Federal Republic of Yugoslavia,

as Co-Agent,

Mr Andreas Zimmermann, LL M (Harvard), Professor of Law, University
of Kiel, Director of the Walther-Schucking Institute,

as Counsel and Advocate,

Mr lan Brownlie, CBE, QC,FBA, member of the International Law
Comnussion, member of the English Bar, Emeritus Chichele Professor of
Public International Law, University of Oxford,

as Adviser,

Mr Dejan Ukropina, Attorney from Novi Sad,

Mr Robin Geiss, Assistant at the Walther-Schücking Institute, University of
Kiel, -

Mr Marko Micanovié, LL M (New York University),

Mr Slavoljub Caric, Counsellor of the Embassy of the Federal Republic of
Yugoslavia in The Hague,

Mr Miodrag Panéeski, First Secretary of the Embassy of the Federal Repub-
lic of Yugoslavia in The Hague,

as Assistants,
and

Bosnia and Herzegovina,
represented by
Mr Sakib Softié,
as Agent,
Mr Phon van den Biesen, van den Biesen Advocaten, Amsterdam,
as Deputy Agent,

;
APPLICATION FOR REVISION (JUDGMENT) 9

Mr Alain Pellet, Professor at the University of Pans X-Nanterre, member
and former Chairman of the International Law Commission,

as Counsel and Advocate,

Mr Antoine Ollivier,
Mr Wim Muller,

as Counsel,

Tue Court,

composed as above,
after deliberation,

delivers the followmg Judgment

1 On 24 April 2001, the Federal Republic of Yugoslavia (hereinafter referred
to as the “FRY”) filed in the Registry of the Court an Application dated
23 April 2001 instituting proceedings, whereby, referring to Article 61 of the
Statute of the Court, it requested the Court to revise the Judgment delivered by
it on 11 July 1996 m the case concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v Yugoslavia), Prelummary Objections (1 C J Reports 1996 (II), p 595)

2 Pursuant to Article 40, paragraph 2, of the Statute, the Application was
forthwith communicated by the Registrar of the Court to Bosnia and Herze-
govina, and in accordance with paragraph 3 of that Article, all States entitled
to appear before the Court were notified of the Application

3 By letters of 26 April 2001, the Registrar informed the Parties that the
Court had fixed 30 September 2001 as the time-limit for the filing by Bosma
and Herzegovina of its written observations on the admissibility of the Applica-
tion contemplated by Article 99, paragraph 2, of the Rules of Court

4 Pursuant to Article 53, paragraph 1, of the Rules of Court, a request by
the Republic of Croatia for the pleadings and annexed documents to be made
available to it was granted on 6 August 2001 after the views of the Parties had
been ascertained

5 By a letter of 2 August 2001, the Agent of Bosmia and Herzegovina
requested the Court to extend to 1 December 2001 the time-hmut for the filing
by his Government of its written observations By a letter of 17 August 2001,
the Agent of the FRY informed the Court that his Government did not object
to this time-limit being thus extended By letters of 21 August 2001, the First
Secretary of the Court in charge of Information Matters, acting Registrar,
informed the Parties that the President had extended to 3 December 2001 the
time-limit for the filing by Bosnia and Herzegovina of its written observations

6 On 3 December 2001, within the tume-limut thus extended, Bosnia and
Herzegovina filed in the Registry 1ts written observations on the admissibility
of the FRY’s Application

7 By a letter of 26 December 2001, the Agent of the FRY, referring to
Article 99, paragraph 3, of the Rules of Court, requested the Court to afford
the Parties a further opportunity of presenting their views in written form on
the admissibility of the Application By a letter of 21 January 2002, the Agent
of Bosma and Herzegovina informed the Court that his Government was not
in favour of a second round of written pleadings
APPLICATION FOR REVISION (JUDGMENT) 10

By a letter of 1 March 2002, the Registrar informed the Parties of the Court’s
decision that a second round of written pleadings was not necessary

8 Since the Court included upon the Bench no judge of the nationality of
either of the Parties, each Party proceeded to exercise the right conferred by
Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the
case, the FRY chose Mr Voyin Dimitryevic and Bosma and Herzegovina chose
Mr Sead Hodzi¢ By a letter dated 9 April 2002 and received in the Registry on
6 May 2002, Mr Hodé informed the Court that he wished to resign from his
duties, Bosma and Herzegovina designated Mr Ahmed Mahiou to sit in his
stead

9 After ascertaining the views of the Parties, the Court decided, pursuant to
Article 53, paragraph 2, of the Rules of Court, that copies of the written obser-
vations of Bosnia and Herzegovina and the documents annexed thereto should
be made accessible to the public on the opening of the oral proceedings

10 Public hearings were held on 4, 5, 6 and 7 November 2002, during which
the Court heard the oral arguments and rephes of

For the FRY Mr Tibor Varady,
Mr Vladimir Djerié,
Mr Andreas Zimmermann

For Bosma and Herzegovina Mr Sakib Softié,
Mr Phon van den Biesen,
Mr Alain Pellet

11 In1ts Application, the following requests were made by the FRY

“For the reasons advanced above the Federal Republic of Yugoslavia
requests the Court to adjudge and declare that

there 1s a new fact of such a character as to lay the case open to revision
under Article 61 of the Statute of the Court

Furthermore, Applicant 1s respectfully asking the Court to suspend pro-
ceedings regarding the merits of the case until a decision on this Apphca-
tion 1s rendered ”

12 In its written observations, the following submission was made by
Bosnia and Herzegovina

“In consideration of the foregoing, the Government of Bosnia and
Herzegovina requests the Court to adjudge and declare that the Appli-
cation for Revision of the Judgment of 11 July 1996, submitted by the
Federal Republic of Yugoslavia on 23 April 2001, 1s not admissible ”

i3 At the oral proceedings, the following final submissions were presented
by the Parties

On behalf of the Government of the FRY,
at the hearing of 6 November 2002

“For the reasons advanced in its Application of 23 April 2001 and im its
pleadings during the oral proceedings held from 4 to 7 November 2002,
the Federal Repubhc of Yugoslavia respectfully requests the Court to
adjudge and declare

— that there are newly discovered facts of such a character as to lay the
11 July 1996 Judgment open to revision under Article 61 of the Statute
of the Court, and

APPLICATION FOR REVISION (JUDGMENT) 11

— that the Application for Reviston of the Federal Republic of Yugo-
slavia 1s therefore admissible ”

On behalf of the Government of Bosnia and Herzegovina,
at the hearing of 7 November 2002

“In consideration of all that has been submitted by the representatives
of Bosnia and Herzegovina in the written and oral stages of these proceed-
ings, Bosnia and Herzegovina requests the Court to adjudge and declare
that the Application for Revision of the Judgment of 11 July 1996, sub-
mitted by the Federal Republic of Yugoslavia on 23 April 2001, 1s not
admissible ”

* * *
14 In its Application for revision of the 1996 Judgment the FRY relies
on Article 61 of the Statute, which provides as follows

“1 An application for revision of a judgment may be made only
when 1t 1s based upon the discovery of some fact of such a nature as
to be a decisive factor, which fact was, when the judgment was given,
unknown to the Court and also to the party claiming revision,
always provided that such ignorance was not due to negligence

2. The proceedings for revision shall be opened by a judgment of
the Court expressly recording the existence of the new fact, recog-
nizing that it has such a character as to lay the case open to revision,
and declaring the application admissible on this ground

3 The Court may require previous compliance with the terms of
the judgment before it admits proceedings in revision

4 The application for revision must be made at latest within six
months of the discovery of the new fact

5 No application for revision may be made after the lapse of ten
years from the date of the judgment ”

15 Article 61 provides for revision proceedings to open with a judg-
ment of the Court declarmg the application admissible on the grounds
contemplated by the Statute, Article 99 of the Rules makes express provi-
sion for proceedings on the merits if, in its first judgment, the Court has
declared the application admussible

Thus the Statute and the Rules of Court foresee a “two-stage pro-
cedure” (Application for Revision and Interpretation of the Judgment of
24 February 1982 in the Case concerning the Continental Shelf (Tunisia/
Libyan Arab Jamahiriya) (Tunisia v Libyan Arab Jamahiriya), Judg-
ment, IC J Reports 1985, p 197, para 8) The first stage of the pro-
cedure for a request for revision of the Court’s judgment should be
“limited to the question of admussibility of that request” (zbid , para. 10).

16 Therefore, at this stage the Court’s decision 1s limited to the ques-
tion whether the request satisfies the conditions contemplated by the
Statute Under Article 61 of the Statute, these conditions are as follows

(a) the application should be based upon the “discovery” of a “fact”,

8

APPLICATION FOR REVISION (JUDGMENT) 12

{b) the fact, the discovery of which 1s relied on, must be “of such a
nature as to be a decisive factor”,

fc} the fact should have been “unknown” to the Court and to the party
claiming revision when the judgment was given,

(d) ignorance of this fact must not be “due to negligence”, and

(e) the application for revision must be “made at latest within six
months of the discovery of the new fact” and before ten years have
elapsed from the date of the judgment

17 The Court observes that an application for revision 1s admussible
only if each of the conditions laid down in Article 61 1s satisfied If any
one of them 1s not met, the application must be dismissed

The Court will begin by ascertaining whether there 1s here a “fact”
which, although in existence at the date of its Judgment of 11 July 1996,
was at that time unknown both to the FRY and to the Court

+  *

18 In this regard, in its Application for revision of the Court’s Judg-
ment of 11 July 1996, the FRY contended the following

“The admission of the FRY to the United Nations as a new
Member on 1 November 2000 1s certainly a new fact It can also be
demonstrated, and the Applicant submits, that this new fact 1s of
such a nature as to be a decisive factor regarding the question of
jurisdiction ratione personae over the FRY

After the FRY was admitted as a new Member on 1 November
2000, dilemmas concerning its standing have been resolved, and it
has become an unequivocal fact that the FRY did not continue the
personality of the SFRY, was not a Member of the United Nations
before 1 November 2000, was not a State party to the Statute, and
was not a State party to the Genocide Convention .. .

The admission of the FRY to the United Nations as a new Mem-
ber clears ambiguities and sheds a different light on the issue of the
membership of the FRY in the Umted Nations, in the Statute and in
the Genocide Convention,”

The FRY further stated that, according to the official listing of 8 Decem-
ber 2000, “Yugoslavia” had been listed as a Member of the United
Nations since 1 November 2000 and that “the explanatory note makes it
clear that this is a reference to the FRY” The FRY concluded that “this
is a new fact of such a nature to be a decisive factor, unknown to both
the Court and to the Applicant at the time when the Judgment of 11 July
1996 was given”

19. In its oral pleadings, the FRY did not invoke its admission to the
United Nations in November 2000 as a decisive “new fact”, within the
meaning of Article 61 of the Statute, capable of founding its request for
revision of the 1996 Judgment. The FRY claimed that this admission “as

9

APPLICATION FOR REVISION (TUDGMENT) 13

a new Member” as well as the Legal Counsel’s letter of 8 December 2000
inviting it, according to the FRY, “to take treaty actions if 1t wished to
become a party to treaties to which the former Yugoslavia was a party”
were

“events which revealed the following two decisive facts
(1) the FRY was not a party to the Statute at the time of the Judg-
ment, and

(2) the FRY did not remain bound by Article IX of the Genocide
Convention continuing the personality of the former Yugo-
slavia”

It 1s on the basis of these two “facts” that, in its oral argument, the FRY
ultimately founded its request for revision

20 The FRY further stressed at the hearmgs that these “newly discov-
ered facts” had not occurred subsequently to the Judgment of 1996 In
this regard, the FRY states that “the FRY never argued or contemplated
that the newly discovered fact would or could have a retroactive effect”

21 For its part, Bosnia and Herzegovina maintains the following

“there 1s no ‘new fact’ capable of ‘laying the case open’ to revision
pursuant to Article 61, paragraph 2, of the Court’s Statute neither
the admission of Yugoslavia to the United Nations which the apph-
cant State presents as a fact of this kind, or m any event as being the
source of such a fact, nor its allegedly new situation vis-a-vis the
Genocide Convention constitute facts of that kind”

22 In short, Bosnia and Herzegovina submits that what the FRY
refers to as “facts” are “the consequences of a fact, which 1s and can
only be the admission of Yugoslavia to the United Nations im 2000” It
states that “Article 61 of the Statute of the Court requires that the
fact was ‘when the judgment was given, unknown to the Court and also
to the party claiming revision’” and that “this implies that the fact in
question actually did exist “when the judgment was given’” According to
Bosnia and Herzegovina, the FRY “is regarding 1ts own change of posi-
tion (and the ensuing consequences) as a new fact” Bosnia and Herze-
govina concludes that this “‘new fact’ is subsequent to the Judgment
whose revision 1s sought” It notes that the alleged new fact can have “no
retroactive or retrospective effect”

23 Bosma and Herzegovina further adds that the FRY 1s merely rely-
ing on a “new ‘perception’ of the facts of 1993 in the hght of those which
took place m 2000 and 2001” Bosma and Herzegovina submits that a
“perception” 1s not a fact and that “im any event, the ‘perception’ of
Yugoslavia’s new situation with respect both to the United Nations and

10

APPLICATION FOR REVISION (JUDGMENT) 14

to the 1948 [Genocide] Convention, occurred subsequently to the Judg-
ment under challenge”

* *

24 Before turning to the examination of the “facts” which the FRY
has relied upon 1n 1ts pleadings in order to justify the revision of the 1996
Judgment, the Court will recount the background to the case with a view
to providing the context for the contentions of the FRY.

*

25. In the early 1990s the SFR Y, made up of Bosnia and Herzegovina,
Croatia, Macedonia, Montenegro, Serbia and Slovenia, began to break
up On 25 June 1991 Croatia and Slovenia both declared independence,
followed by Macedonia on 17 September 1991 and Bosnia and Herze-
govina on 6 March 1992. On 22 May 1992, Bosnia and Herzegovina,
Croatia and Slovenia were admitted as Members to the United Nations,
as was the former Yugoslav Republic of Macedonia on 8 April 1993

26 On 27 April 1992 the “participants of the Joint session of the
SFRY Assembly, the National Assembly of the Republic of Serbia and
the Assembly of the Republic of Montenegro” adopted a declaration,
stating in pertinent parts’

“The representatives of the people of the Republic of Serbia and
the Republic of Montenegro,

Expressing the will of the citizens of their respective Republics to
stay in the common state of Yugoslavia,

Wish to state in this Declaration their views on the basic, imme-
diate and lasting objectives of the policy of their common state, and
on its relations with the former Yugoslav Republics

1 The Federal Republic of Yugoslavia, continuing the state, mter-
national legal and political personality of the Socialist Federal Repub-
hc of Yugoslavia, shall strictly abide by all the commitments that the
SFR of Yugoslavia assumed internationally,

Remaining bound by all obligations to international organiza-
tions and institutions whose member it 1s ” (United Nations
doc A/46/915, Ann IT)

1i
APPLICATION FOR REVISION (JUDGMENT) 15

27 An official Note of the same date from the Permanent Mission of
Yugoslavia to the United Nations, addressed to the Secretary-General of
the United Nations, stated inter alia that

“The Assembly of the Socialist Federal Republic of Yugoslavia, at
its session held on 27 April 1992, promulgated the Constitution of
the Federal Republic of Yugoslavia Under the Constitution, on the
basis of the continuing personality of Yugoslavia and the legitimate
decisions by Serbia and Montenegro to continue to live together in
Yugoslavia, the Socialist Federal Republic of Yugoslavia 1s trans-
formed into the Federal Republic of Yugoslavia, consisting of the
Republic of Serbia and the Republic of Montenegro

Strictly respecting the continuity of the international personality
of Yugoslavia, the Federal Republic of Yugoslavia shall continue to
fulfil all the rights conferred to, and obligations assumed by, the
Socialist Federal Republic of Yugoslavia in international relations,
including its membership m all international organizations and
participation in international treaties ratified or acceded to by Yugo-
slavia.” (United Nations doc A/46/915, Ann J)

28 On 19 September 1992, the Security Council adopted resolution
777 (1992) which read as follows

“The Security Council,

Reaffirming its resolution 713 (1991) of 25 September 1991 and all
subsequent relevant resolutions,

Considering that the state formerly known as the Socialist Federal
Repubhc of Yugoslavia has ceased to exist,

Recalling in particular resolution 757 (1992) which notes that ‘the
claim by the Federal Republic of Yugoslavia (Serbia and Monte-
negro) to continue automatically the membership of the former
Sociahst Federal Republic of Yugoslavia in the United Nations
has not been generally accepted’,

1 Considers that the Federal Republic of Yugoslavia (Serbia and
Montenegro) cannot continue automatically the membership of the
former Socialist Federal Republic of Yugoslavia m the United
Nations, and therefore recommends to the General Assembly that 1t
decide that the Federal Republic of Yugoslavia (Serbia and Monte-
negro) should apply for membership in the United Nations and that
it shall not participate in the work of the General Assembly,

2 Decides to consider the matter again before the end of the

12
APPLICATION FOR REVISION (JUDGMENT) 16

main part of the forty-seventh session of the General Assembly ”
(United Nations doc S/RES/777 )

29 On 22 September 1992 the General Assembly adopted resolution
47/1, according to which

“The General Assembly,

Having received the recommendation of the Security Council of
19 September 1992 that the Federal Republic of Yugoslavia (Serbia
and Montenegro) should apply for membership in the United
Nations and that it shall not participate in the work of the General
Assembly,

1 Considers that the Federal Republic of Yugoslavia (Serbia and
Montenegro) cannot continue automatically the membership of the
former Socialist Federal Republic of Yugoslavia in the United
Nations, and therefore decides that the Federal Republic of Yugo-
slavia (Serbia and Montenegro) should apply for membership in the
United Nations and that it shall not participate in the work of the
General Assembly,

2 Takes note of the intention of the Security Council to consider
the matter again before the end of the main part of the forty-seventh
session of the General Assembly ” (United Nations doc A/RES/
47/1.)

30 On 25 September 1992, the Permanent Representatives of Bosnia
and Herzegovina and Croatia addressed a letter to the Secretary-General,
in which, with reference to Security Council resolution 777 (1992) and
General Assembly resolution 47/1, they stated their understanding as fol-
lows “at this moment, there 1s no doubt that the Socialist Federal Repub-
he of Yugoslavia is not a member of the United Nations any more At
the same time, the Federal Republic of Yugoslavia 1s clearly not yet a
member ” They concluded that “the flag flying in front of the United
Nations and the name-plaque bearing the name ‘Yugoslavia’ do not rep-
resent anything or anybody any more” and “kindly request[ed] that [the
Secretary-General] provide a legal explanatory statement concerning the
questions raised” (United Nations doc A/47/474)

31 In response, on 29 September 1992, the Under-Secretary-General
and Legal Counsel of the United Nations addressed a letter to the
Permanent Representatives of Bosnia and Herzegovina and Croatia, in
which he stated that the “considered view of the United Nations Secre-
tariat regarding the practical consequences of the adoption by the
General Assembly of resolution 47/1” was as follows.

“While the General Assembly has stated unequivocally that the
Federal Republic of Yugoslavia (Serbia and Montenegro) cannot
automatically continue the membership of the former Socialist Fed-

13

APPLICATION FOR REVISION (JUDGMENT) 17

eral Republic of Yugoslavia in the United Nations and that the Fed-
eral Republic of Yugoslavia (Serbia and Montenegro) should apply
for membership in the United Nations, the only practical conse-
quence that the resolution draws 1s that the Federal Republic of
Yugoslavia (Serbia and Montenegro) shall not participate in the
work of the General Assembly It 1s clear, therefore, that representa-
tives of the Federal Republic of Yugoslavia (Serbia and Montene-
gro) can no longer participate in the work of the General Assembly,
its subsidiary organs, nor conferences and meetings convened by it

On the other hand, the resolution neither terminates nor suspends
Yugoslavia’s membership in the Organization Consequently, the
seat and nameplate remain as before, but in Assembly bodies repre-
sentatives of the Federal Republic of Yugoslavia (Serbia and Mon-
tenegro) cannot sit behind the sign ‘Yugoslavia’ Yugoslav missions
at United Nations Headquarters and offices may continue to func-
tion and may receive and circulate documents At Headquarters, the
Secretariat will continue to fly the flag of the old Yugoslavia as it 1s
the last flag of Yugoslavia used by the Secretariat The resolution
does not take away the night of Yugoslavia to participate in the
work of organs other than Assembly bodies The admussion to the
United Nations of a new Yugoslavia under Article 4 of the Charter
wil termmate the situation created by resolution 47/1” (United
Nations doc A/47/485, emphasis added m the original )

32 On 29 April 1993, the General Assembly, upon the recommenda-
tion contained in Security Council resolution 821 (1993) (couched 1n
terms similar to those of Security Council resolution 777 (1992)), adopted
resolution 47/229 in which it decided that “the Federal Republic of
Yugoslavia (Serbia and Montenegro) [should] not participate 10 the work
of the Economic and Social Council”

ae

33 The Court recalls that between the adoption of General Assembly
resolution 47/1 of 22 September 1992 and the admission of the FRY to
the United Nations on 1 November 2000, the legal position of the FRY
remained complex, as shown by the followmg examples

34 By a resolution of 20 December 1993 relating to the situation in
Bosnia and Herzegovina, the General Assembly reaffirmed its resolution
47/1 of 22 September 1992, and urged “Member States and the Secre-
tartat in fulfilling the spirit of that resolution to end the de facto working
status of the Federal Republic of Yugoslavia (Serbia and Montenegro)”
(United Nations doc A/RES/48/88, para 19)

14
APPLICATION FOR REVISION (JUDGMENT) 18

35 Durmg this period, referring to the terms of Security Council
resolution 777 (1992) and General Assembly resolution 47/1, Bosnia and
Herzegovina, Croatia, Slovenia and the former Yugoslav Republic of
Macedonia consistently objected to the FR Y’s claim that it continued the
State and the mternational legal and political personality of the former
SFRY In particular, they disagreed that the FRY was a Member of the
United Nations and a party to the multilateral treaties to which the
former Yugoslavia was a party

36 It was in this context that, following the suggestion made by the
Representative of Bosnia and Herzegovina at the 18th and 19th Meetings
of States Parties to the International Covenant on Civil and Political
Rights, and a vote thereon, the FRY was excluded from participating in
the said meetings (United Nations doc CCPR/SP/SR 18, p 3, United
Nations doc. CCPR/SP/SR 19, p 8) However, in explanation of his deci-
sion to vote in favour of exclusion at the 18th meeting held on 16 March
1994, the representative of Belgium, speaking on behalf of the States
members of the European Union that were parties to the Convention,
and supported by the representatives of Austraha and Iceland, the latter
on behalf of the Nordic countries, “said that the vote of the delegations
concerned was without prejudice to their position regarding the status of
the Federal Republic of Yugoslavia (Serbia and Montenegro) vis-à-vis
the Covenant or the other international obligations of the former Social-
ist Federal Republic of Yugoslavia” Those delegations “were of the view
that the Federal Republic of Yugoslavia (Serbia and Montenegro) should
abide by the obligations arising under the Covenant” (United Nations
doc CCPR/SP/SR 18)

37 In response to these protests, the FRY, claiming that 1t continued
the international legal personality of the former Yugoslavia, at all
times maintained the view that its membership in the United Nations
and its status as a State party to international treaties were not affected
by the adoption of Security Council resolution 777 (1992) and General
Assembly resolution 47/1

38 According to the English text of the “Summary of Practice of the
Secretary-General as Depositary of Multilateral Treaties”, prepared by
the Treaty Section of the Office of Legal Affairs, which was published at
the beginning of 1996,

“89 A special difficulty arose upon the adoption of resolution
47/1 of 22 September 1992, by which the General Assembly con-
sidered that the Federal Republic of Yugoslavia (Serbia and Mon-
tenegro) could not continue automatically the membership of
the former Socialist Federal Republic of Yugoslavia in the United
Nations and therefore decided that the Federal Republic of Yugo-
slavia (Serbia and Montenegro) should apply for membership
in the United Nations and that it should not participate in the work

15
APPLICATION FOR REVISION (JUDGMENT) 19

of the General Assembly, the resolution was interpreted by the Secre-
tariat to apply to subsidiary organs of the General Assembly, as
well as conferences and meetings convened by it Consequently, the
Federal Republic of Yugoslavia (Serbia and Montenegro), was not
invited to participate in conferences convened by the Assembly
(eg, the World Conference on Human Rights). However, this
was without effect on the capacity of the Federal Republic of
Yugoslavia (Serbia and Montenegro) to participate in treaties,
including those deposited with the Secretary-General

297 In the absence of provisions which set specific conditions
for succession or which otherwise restrict succession, the Secretary-
General 1s guided by the participation clauses of the treaties as well
as by the general principles governing the participation of States (see
chap. V} The independence of the new successor State, which then
exercises its sovereignty on its territory, 1s of course without effect
as concerns the treaty rights and obligations of the predecessor State
as concerns its own (remaining) territory Thus, after the separation
of parts of the territory of the Union of Soviet Socialist Republics
(which became independent States), the Union of Soviet Socialist
Republics (as the Russian Federation) continued to exist as a pre-
decessor State, and all its treaty nights and obligations continued in
force in respect of its territory The same apphes to the Federal
Republic of Yugoslavia (Serbia and Montenegro), which remains as
the predecessor State upon separation of parts of the territory of the
former Yugoslavia General Assembly resolution 47/1 of 22 Septem-
ber 1992, to the effect that the Federal Republic of Yugoslavia could
not automatically continue the membership of the former Yugosla-
via in the United Nations (see para 89 above), was adopted within
the framework of the United Nations and the context of the Charter
of the United Nations, and not as an imdication that the Federal
Republic of Yugoslavia was not to be considered a predecessor
State ” (United Nations doc. ST/LEG/8 )

39 Subsequently, the Secretariat published an errata to the English
text of the said “Summary of Practice” With regard to paragraph 89 of
the English text, the last sentence was thus replaced by the following

“However, this 1s without effect on the capacity of the Federal
Republic of Yugoslavia (Serbia and Montenegro) to participate
in treaties deposited with the Secretary-General subject to any
decision taken by a competent organ representing the international

16
APPLICATION FOR REVISION (JUDGMENT) 20

community of States as a whole or by a competent treaty organ
with regard to a particular treaty or convention ” (United Nations
doc ST/LEG/7/Rev 1 )

With regard to paragraph 297 of the English text of the Summary,
in response to objections raised by certain States (see United Nations
docs A/50/910-S/1996/231, A/51/95-S/1996/251, A/50/928-S/1996/263,
A/50/930-S/1996/260), the Secretariat deleted all reference to the FRY
and changed the text to read as follows

“In the absence of provisions which set specific conditions for suc-
cession or which otherwise restrict succession, the Secretary-General
1s guided by the participation clauses of the treaties as well as by the
general principles governing the participation of States (see chap V)
The independence of the new successor State, which then exercises
its sovereignty on its territory, 1s without effect on the treaty rights

. and obligations of the predecessor State in its own (remaining) ter-
‘ritory Thus, after the separation of parts of the territory of the
Union of Soviet Socialist Republics (which became independent
States), the Russian Federation continued all treaty mghts and
obligations of the predecessor State” (United Nations doc
ST/LEG/7/Rev 1 )

The changes set out in the above-mentioned errata, including those
relating to paragraphs 89 and 297, were directly incorporated into the
French text of the Summary published in 1997

40 The General Framework Agreement for Peace in Bosnia and
Herzegovina was initialled in Dayton, Ohio, on 21 November 1995 and
signed by the Parties in Paris on 14 December 1995 By the terms of this
Agreement, the FRY and Bosnia and Herzegovina agreed to “recognize
each other as sovereign independent States within their international bor-
ders” and to “comply fully with the provisions concerning human rights
set forth in Chapter One of the Agreement at Annex 6” This Annex,
entitled “Agreement on Human Rights” had appended to 1t a list of trea-
ties, including the Genocide Convention (United Nations doc A/50/790-
S/1995/990) ‘ i

41 The FRY deposited a declaration recognizing the compulsory juris-
diction of the International Court of Justice, dated 25 April 1999, with the
Secretary-General On 30 April 1999 the Secretary-General issued a
Depositary Notification informing Member States that the “above action
was effected on 26 April 1999” (C N 311 1999 TREATIES-1)

42 On 27 May 1999, the Permanent Representatives of Bosnia and
Herzegovina, Croatia, Slovenia and the former Yugoslav Republic of
Macedonia sent a letter to the Secretary-General, questioning the validity
of the deposit of the declaration recognizing the compulsory jurisdiction

17

APPLICATION FOR REVISION (JUDGMENT) 21

of the International Court of Justice by the FRY (United Nations
doc A/53/992)

43 On 3 June 1999, the Permanent Representatives of Bosnia and
Herzegovina, Croatia, Slovenia and the former Yugoslav Republic of
Macedonia addressed a letter to the President of the Security Council,
stating

“We wish that this letter be understood as our permanent objec-
tion to the groundless assertion of the Federal Republic of Yugo-
slavia (Serbia and Montenegro), which has also been repudiated by
the international community, that it represents the continuity of our
common predecessor, and thereby continues to enjoy its status in
international organizations and treaties” (United Nations doc.
S/1999/639 )

44 In the United Nations publication of 2002 entitled “Multilateral
treaties deposited with the Secretary-General, Status as at 31 December
2001”, the situation during the period after the adoption of Security
Council resolution 777 (1992) of 19 September 1992 1s characterized as
follows

“General Assembly resolution 47/1 did not specifically address the
question of the status of either the former Yugoslavia or of Yugo-
slavia with regard to multilateral treaties that were deposited with
the Secretary-General The Legal Counsel took the view in this
regard that the Secretary-General was not in a position, as deposi-
tary, either to reject or to disregard the claim of Yugoslavia that it
continued the legal personality of the former Yugoslavia, absent any
decision to the contrary either by a competent organ of the United
Nations directing him in the exercise of his depositary functions, or
by a competent treaty organ created by a treaty, or by the contract-
ing States to a treaty directimg him in the exercise of his depositary
functions with regard to that particular treaty, or by a competent
organ representative of the international community of States as a
whole on the general issue of continuity and discontimuity of state-
hood to which the claim of Yugoslavia gave nse

Consistent with the claim of Yugoslavia to continue the inter-
national legal personality of the former Yugoslavia, the Secretary-
General, as depositary, continued to list treaty actions that had been
performed by the former Yugoslavia in status lists in the present pub-
lication, using for that purpose the short-form name ‘Yugoslavia’,
which was used at that time to refer to the former Yugoslavia
Between 27 April 1992 and 1 November 2000, Yugoslavia under-
took numerous treaty actions with respect to treaties deposited with
the Secretary-General Consistent with the claim of Yugoslavia to

18

APPLICATION FOR REVISION (JUDGMENT) 22

continue the international legal personality of the former Yugosla-
via, these treaty actions were also listed in status lists agamst the
name ‘Yugoslavia’. Accordingly, the Secretary-General, as deposi-
tary, did not make any differentiation in the present publication
between treaty actions that were performed by the former Yugosla-
via and those that were performed by Yugoslavia, both categories of
treaty actions being listed against the name ‘Yugoslavia’ ” (United
Nations doc ST/LEG/SER E/20 )

*

45 The Court considers that to the above account of the FRY’s spe-
cial situation that existed between September 1992 and November 2000,
should be added certain details concerning the United Nations member-
ship dues and rates of assessment set for the FRY during that same
period In General Assembly resolution 43/223 of 21 December 1988
(“Scale of assessments for the apportionment of the expenses of the
United Nations”), the rate of assessment for the SFRY for 1989, 1990
and 1991 was fixed at 0 46 per cent The rate of assessment for the SFRY
for 1992, 1993 and 1994 as established in 1991 was to be 0 42 per cent
(General Assembly resolution 46/221 of 20 December 1991)

46 On 23 December 1992, the General Assembly, on the recommenda-
tion of the Fifth Committee, decided to adopt the recommendations of the
Committee on Contributions with respect to the rates of assessment of
Member States contained in paragraphs 51 to 64 of the report of the Com-
mittee on Contributions (United Nations doc A/47/11) Paragraph 63
of this report stipulated that the rates of assessment for Bosma and
Herzegovina, Croatia and Slovenia for 1993 and 1994 should be 0 04,
0 13 and 0 09 per cent respectively It was further stated that “for 1992,
these States should pay seven twelfths of these rates, and their actual
assessment should be deducted from that of Yugoslavia for that year”
(para 64 of the Report) By resolution 48/223 of 23 December 1993, the
General Assembly determined that the rate of assessment of the former
Yugoslav Republic of Macedoma, admitted to membership in the United
Nations in 1993, should be 0 02 per cent and that its 1993 assessment
should be deducted from that of the FRY. The General Assembly also
decided that the rate of assessment of the former Yugoslav Republic of
Macedonia should be deducted from that of the FRY for 1994

47 As a consequence of the above-mentioned decisions regarding the
rate of assessment for Bosnia and Herzegovina, Croatia, Slovenia and the
former Yugoslav Republic of Macedonia, the rate of assessments for the
contnbution of the FRY to the regular budget of the United Nations for
the years 1995, 1996 and 1997 was determined to be 0 11, 0 1025 and 0 10
per cent respectively (General Assembly resolution 49/19 B of 23 Decem-
ber 1994) By General Assembly resolution 52/15 A, the rate of assess-

19

APPLICATION FOR REVISION (JUDGMENT) 23

ment of the FRY for the years 1998, 1999 and 2000 was determined to be
0 060, 0 034 and 0 026 per cent respectively

48 On 23 December 2000, the General Assembly by its resolution
55/5E decided that “the rate of assessment for the Federal Republic of
Yugoslavia, admitted to membership of the United Nations on | Novem-
ber 2000, should be 0 026 per cent for the year 2000” The resolution
specified that this assessment should be taken into account as “muscella-
neous income in accordance with regulation 52 fc) of the Financial
Regulations and Rules of the United Nations”, dealing with the “contri-
butions of new Member States”

*

49 Following national elections on 24 September 2000, Mr Koëtu-
nica was elected President of the FRY On 27 October 2000, President
Koëtumca sent a letter to the Secretary-General requesting admission of
the FRY to membership in the United Nations, in the following terms

“In the wake of fundamental democratic changes that took place
in the Federal Republic of Yugoslavia, m 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 hight of the
implementation of Security Council resolution 777 (1992) ” (United
Nations doc A/55/528-S/2000/1043 )

50 On 31 October 2000, the Security Council (pursuant to the recom-
mendations made Im the Report of the Committee on the Admission of
New Members concerning the application of the FRY for admission in
the United Nations), “recommend/ed] to the General Assembly that the
Federal Republic of Yugoslavia be admitted to membership in the United
Nations” (United Nations doc S/RES/1326) On 1 November 2000, the
General Assembly adopted resolution 55/12, which reads as follows

“The General Assembly,

Having received the recommendation of the Security Council of
31 October 2000 that the Federal Republic of Yugoslavia should be
admitted to membership in the United Nations,

Having considered the application for membership of the Federal
Republic of Yugoslavia,

Decides to admit the Federal Republic of Yugoslavia to member-
ship in the United Nations ”

The admission of the FRY to membership of the United Nations on
1 November 2000 put an end to Yugoslavia’s sw: generis position within
the United Nations The President of the General Assembly, on behalf of
the Assembly, “welcomed the Federal Republic of Yugoslavia as a Mem-

20
APPLICATION FOR REVISION (JUDGMENT) 24

ber of the United Nations” Other speakers emphasized the fact that the
FRY was entering the United Nations family on equal terms with the
other Republics of the former SFRY The representative of France who
had introduced the draft resolution stated in particular that “a hiatus of
eight years [was] about to end” (see United Nations doc A/55/PV 48,
pp 26-34)

$1 On 8 December 2000, the Under-Secretary-General, the Legal
Counsel, sent a letter to the Minister for Foreign Affairs of the FRY,
reading in pertinent parts

“Following [the admission of the Federal Republic of Yugoslavia
to the United Nations on 1 November 2000], a review was under-
taken of the multilateral treaties deposited with the Secretary-
General, in relation to many of which the former Socialist Federal
Republic of Yugoslavia (the SFRY) and the Federal Republic of
Yugoslavia (FRY) had undertaken a range of treaty actions

It 1s the Legal Counsel’s view that the Federal Republic of Yugo-
slavia should now undertake treaty actions, as appropriate, in rela-
tion to the treaties concerned, if its intention 1s to assume the rele-
vant legal rights and obligations as a successor State ” (Letter by the
Legal Counsel of the United Nations (Application of Yugoslavia,
Ann 27))

32 At the begmning of March 2001, a notification of accession to the
Genocide Convention by the FRY was deposited with the Secretary-
General of the United Nations The notification of accession by Yugo-
slavia was dated 6 March 2001 and read as follows

“WHEREAS the Federal Republic of Yugoslavia had declared
on April 27, 1992, that ‘the Federal Republic of Yugoslavia, con-
tinuing the State, mternational legal and political personality of the
Socialist Federal Republic of Yugoslavia, shall strictly abide by all
the commitments that the Sociahst Federal Republic of Yugoslavia
assumed internationally’,

WHEREAS this contention of continuity also included the assump-
tion that the Federal Republic of Yugoslavia continued the member-
ship in the United Nations of the Socialist Federal Republic of
Yugoslavia,

WHEREAS the contention and assumption of continuity was event-
ually not accepted by the United Nations nor was it accepted by
other successor States of the Socialist Federal Republic of Yugosla-
via, and thus it produced no effects,

FURTHERMORE, this situation became finally clarified on Novem-

21
APPLICATION FOR REVISION (JUDGMENT) 25

ber 1, 2000, when the Federal Republic of Yugoslavia was accepted
as a new member State of the United Nations,

Now it has been established that the Federal Republic of Yugo-
slavia has not succeeded on April 27, 1992, or on any later date, to
treaty membership, rights and obligations of the Socialist Federal
Republic of Yugoslavia in the Convention on the Prevention and
Punishment of the Crime of Genocide on the assumption of con-
tinued membership in the United Nations and contmued state,
international legal and political personality of the Socialist Federal
Republic of Yugoslavia,

THEREFORE, I am submitting on behalf of the Government of the
Federal Republic of Yugoslavia this notification of accession to the
Convention on the Prevention and Punishment of the Crime of
Genocide, in pursuance of Article XI of the said Convention and
with the following reservation on Article IX of the said Convention
‘The Federal Republic of Yugoslavia does not consider itself bound
by Article IX of the Convention on the Prevention and Punishment
of the Crime of Genocide and, therefore, before any dispute to
which the Federal Republic of Yugoslavia 1s a party may be validly
submitted to the jurisdiction of the International Court of Justice
under this Article, the specific and explicit consent of the FRY 1s
required in each case ’”

On 15 March 2001, the Secretary-General, acting in his capacity as
depositary, issued a Depositary Notification (C N 164 2001 TREATIES-
1), indicating that the accession of the FRY to the 1948 Convention on
the Prevention and Punishment of the Crime of Genocide “was effected
on 12 March 2001” and that the Convention would “enter into force for
the FRY on 10 June 2001”

53 The Government of Croatia, on 18 May 2001, and the Presidency
of Bosnia and Herzegovina, on 27 December 2001, objected to the
deposit of the instrument of accession by the FRY, on the basis that as
one of the successor States to the former SFRY, it was already bound
by the Genocide Convention The two States also objected to the FRY’s
reservation In this regard Croatia stated that 1t was “incompatible with
the object and purpose of the Convention” whereas Bosnia and Herzego-
vina stated that 1t was made several years after 27 April 1992, “the day
on which the FRY became bound to the Genocide Convention in its
entirety” On 2 April 2002, the Government of Sweden informed the Sec-
retary-General that 1t considered the FRY to be one of the successor
States to the SFRY “and, as such, a Party to the Convention from the
date of entering into force of the Convention for the Socialist Federal
Republic of Yugoslavia” Therefore, the Government of Sweden consid-
ered the FRY’s reservation “as having been made too late and thus null
and void” (Multilateral Treaties deposited with the Secretary-General at

22

APPLICATION FOR REVISION (JUDGMENT) 26

http //untreaty un org) To date there has been no further reaction from
States parties to the Genocide Convention

*

54 The Court also considers that, in order to complete the contextual
background, it 1s necessary to recall the proceedings leading up to the
delivery of the Judgment of 11 July 1996, as well as the passages in that
Judgment relevant to the present proceedings

55 On 20 March 1993, the Government of Bosnia and Herzegovina
filed in the Registry of the Court an Application instituting proceedings
against the FRY 1m respect of a dispute concerning alleged violations of
the Convention on the Prevention and Punishment of the Crime of
Genocide The Application invoked Article IX of the Genocide Conven-
tion as the basis of the jurisdiction of the Court

56 On 20 March 1993, immediately after the filing of 1ts Application,
Bosnia and Herzegovina submitted a request for the indication of provi-
sional measures under Article 41 of the Statute On 1 April 1993, Yugo-
slavia submitted written observations on Bosnia and Herzegovina’s
request for provisional measures in which it, in turn, recommended the
Court to order the application of provisional measures to Bosnia and
Herzegovina

57 By an Order dated 8 April 1993, the Court indicated certain pro-
visional measures with a view to the protection of rights under the Geno-
cide Convention In this Order the Court, referring to Security Council
resolution 777 (1992), General Assembly resolution 47/1 and the Legal
Counsel’s letter of 29 September 1992, stated mter alia the following

“18 Whereas, while the solution adopted 1s not free from legal
difficulties, 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,

19 Whereas Article 35 of the Statute, after providing that the
Court shall be open to the parties to the Statute, continues

‘2 The conditions under which the Court shall be open to
other States shall, subject to the special provisions contained in
treaties in force, be laid down by the Security Council, but in no
case shall such conditions place the parties in a position of inequal-
ity before the Court’,

whereas the Court therefore considers that proceedings may validly
be instituted by a State against a State which 1s a party to such a
special provision in a treaty in force, but 1s not party to the Statute,
and independently of the conditions laid down by the Security

23

APPLICATION FOR REVISION (JUDGMENT) 27

Council in its resolution 9 of 1946 (cf SS ‘Wimbledon’, 1923,
PCIJ, Series A, No I, p 6), whereas a compromissory clause in
a multilateral convention, such as Article IX of the Genocide Con-
vention relied on by Bosma-Herzegovina in the present case, could,
in the view of the Court, be regarded prima facie as a special pro-
vision contained in a treaty in force, whereas accordingly if Bosmia-
Herzegovina and Yugoslavia are both parties to the Genocide Con-
vention, disputes to which Article IX applies are in any event prima
facie within the jurisdiction ratione personae of the Court ” (Appli-
cation of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v Yugoslavia), Provi-
stonal Measures, Order of 8 April 1993, IC J Reports 1993, p 14)

The Court further referred to the fact that “both Parties to the case
correspond{ed] to parts of the territory of the former Socialist Federal
Republic of Yugoslavia” (1 C J Reports 1993, p 15, para 21), which
signed the Genocide Convention and deposited its instrument of ratifica-
tion without reservation The Court also referred to the Declaration of
27 April 1992 adopted on behalf of the Federal Republic of Yugoslavia
at the time of 1ts proclamation as well as to the official Note of the same
date from the Permanent Mission of Yugoslavia to the United Nations,
addressed to the Secretary-General, and to the Notice of Succession
transmitted by Bosnia and Herzegovina on 29 December 1992 to the
Secretary-General of the United Nations, the depositary of the Geno-
cide Convention The Court then concluded as follows

“Whereas Article IX of the Genocide Convention, to which both
Bosma-Herzegovina and Yugoslavia are parties, thus appears to the
Court to afford a basis on which the jurisdiction of the Court might
be founded to the extent that the subject-matter of the dispute
relates to ‘the interpretation, application or fulfilment’ of the Con-
vention, including disputes ‘relating to the responsibility of a State
for genocide or for any of the other acts enumerated in article III’ of
the Convention ” (7 CJ Reports 1993, p 16, para 26)

58 On 27 July 1993, Bosnia and Herzegovina submitted a new request
for the indication of provisional measures On 10 August 1993, Yugosla-
via also submitted a request for the indication of provisional measures,
and, on 10 and 23 August 1993, it filed written observations on Bosnia
and Herzegovina’s new request

59 By an Order dated 13 September 1993, the Court reaffirmed the
measures indicated in 1ts Order of 8 April 1993 and declared that those
measures should be immediately and effectively implemented In that
Order of 13 September 1993 the Court confirmed that it had prima facie
Jurisdiction in the case on the basis of Article IX of the Genocide Con-
vention (Application of the Convention on the Prevention and Punishment

24

APPLICATION FOR REVISION (JUDGMENT) 28

of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia), Pro-
wsional Measures, Order of 13 September 1993, IC J Reports 1993,
p 338, para 25, p 342, para 36)

60 On 15 April 1994 Bosnia and Herzegovina filed its Memortal
Within the time-limit fixed for the filing of the Counter-Memorial, the
FRY, referring to Article 79, paragraph 1, of the Rules of Court, raised
preliminary objections concerning, respectively, the admissibility of the
Application and the jurisdiction of the Court to entertain the case

61 The Court rendered its Judgment on the preliminary objections
raised by the FRY on 11 July 1996 In the reasoning of the Judgment, the
Court came to the conclusion that both Parties were bound by the Con-
vention when the Application was filed

62 With regard to the FRY, the Court stated the following

“The proceedings instituted before the Court are between two
States whose territories are located within the former Socialist Fed-
eral Republic of Yugoslavia That Republic signed the Genocide
Convention on 11 December 1948 and deposited its instrument of
ratification, without reservation, on 29 August 1950 At the time of
the proclamation of the Federal Republic of Yugoslavia, on 27 April
1992, a formal declaration was adopted on its behalf to the effect
that

‘The Federal Republic of Yugoslavia, continuing the State,
mternational legal and political personality of the Socialist Fed-
eral Republic of Yugoslavia, shall strictly abide by all the commit-
ments that the Socialist Federal Republic of Yugoslavia assumed
internationally ’

This intention thus expressed by Yugoslavia to remain bound by
the international treaties to which the former Yugoslavia was party
was confirmed in an official Note of 27 April 1992 from the Perma-
nent Mission of Yugoslavia to the United Nations, addressed to the
Secretary-General The Court observes, furthermore, that 1t has not
been contested that Yugoslavia was party to the Genocide Conven-
tion Thus, Yugoslavia was bound by the provisions of the Conven-
tion on the date of the filing of the Application in the present case,
namely, on 20 March 1993 ” (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v Yugoslavia), Preliminary Objections, Judgment,
ICJ Reports 1996 (II), p 610, para 17)

With regard to Bosnia and Herzegovina, the Court, referring to the
Notice of Succession of 29 December 1992 and the Secretary-General’s
Depositary Notification of 18 March 1993, noted that Bosma and Herze-
govina became a Member of the United Nations on 22 May 1992 and
from that date, by virtue of Article XI of the Genocide Convention,
“Bosma and Herzegovina could thus become a party to the Convention”

25

APPLICATION FOR REVISION (JUDGMENT) 29

(1 CJ Reports 1996 (IT), p 611, para 19) The Court further observed
that

“Bosnia and Herzegovina could become a party to the Conven-
tion through the mechanism of State succession Moreover, the Sec-
retary-General of the United Nations considered that this had been
the case, and the Court took note of this 1n its Order of 8 April 1993
(Application of the Convention on the Prevention and Punishment of
the Crime of Genocide, Provisional Measures, IC J Reports 1993,
p 16, para 25)” (CJ Reports 1996 (II), p 611, para 20)

Referring to 1ts Advisory Opinion of 28 May 1951 concerning Reserva-
tions to the Convention on the Prevention and Punishment of the Crime of
Genocide, the Court likewise noted that

“The object and purpose of the Genocide Convention imply that
it was the intention of the General Assembly and of the States which
adopted it that as many States as possible should participate The
complete exclusion from the Convention of one or more States
would not only restrict the scope of its application, but would
detract from the authority of the moral and humanitarian principles
which are its basis’ (I CJ Reports 1951, p 24)” (IC J Reports
1996 (II), p 612, para 22)

The Court concluded as follows

“Whether Bosnia and Herzegovina automatically became party to
the Genocide Convention on the date of its accession to indepen-
dence on 6 March 1992, or whether it became a party as a result —
retroactive or not — of its Notice of Succession of 29 December
1992, at all events 1t was a party to it on the date of the filing of its
Application on 20 March 1993” (1 CJ Reports 1996 (II), p 612,
para 23)

63 In the operative part of its Judgment the Court, having rejected the
preliminary objections raised by the FRY, found that “on the basis of
Article IX of the Convention on the Prevention and Punishment of the
Crime of Genocide, it has jurisdiction to adjudicate upon the dispute”
and that “the Application filed by the Republic of Bosnia and Herze-
govina on 20 March 1993 1s admissible”

*

64 Following the 1996 Judgment on the preliminary objections, the
FRY filed a Counter-Memorial on 22 July 1997, in which 1t submitted
counter-claims By an Order dated 17 December 1997, the Court found
that those counter-claims came within the jurisdiction of the Court and
as such were admissible Bosnia and Herzegovina and Yugoslavia filed
their Reply and Rejyomnder on 23 April 1998 and 22 February 1999
respectively By a letter dated 20 April 2001 and received in the Registry

26

APPLICATION FOR REVISION (JUDGMENT) 30

on 23 April 2001, the Agent of the FRY informed the Court that his
Government intended to withdraw its counter-claims No objection
having been raised by Bosnia and Herzegovina im this regard, the
President of the Court, by his Order of 10 September 2001, placed on the
record the withdrawal by the FRY of the counter-claims submitted
by it in its Counter-Memorial On 4 May 2001, the FRY submitted to
the Court a document entitled “Initiative to the Court to reconsider ex
officio jurisdiction over Yugoslavia”

* x

65 The Court will now examine whether the FRY relies on facts
which fall within the terms of Article 61 of the Statute

66 As recalled above (see paragraph 19), the FRY claims that the
facts which existed at the time of the 1996 Judgment and upon the dis-
covery of which its request for revision of that Judgment 1s based “are
that the FRY was not a party to the Statute, and that it did not remain
bound by the Genocide Convention continuing the personality of the
former Yugoslavia” It argues that these “facts” were “revealed” by its
admission to the United Nations on 1 November 2000 and by the Legal
Counsel’s letter of 8 December 2000

67 The Court would begin by observing that, under the terms of Ar-
ticle 61, paragraph 1, of the Statute, an application for revision of a judg-
ment may be made only when it 1s “based upon the discovery” of some
fact which, “when the judgment was given”, was unknown These are the
characteristics which the “new” fact referred to in paragraph 2 of that
Article must possess Thus both paragraphs refer to a fact existing at the
time when the judgment was given and discovered subsequently A fact
which occurs several years after a judgment has been given 1s not a “new”
fact within the meaning of Article 61, this remains the case irrespective of
the legal consequences that such a fact may have

68 In the present case, the admission of the FRY to the United
Nations occurred on 1 November 2000, well after the 1996 Judgment
The Court concludes accordingly, that that admission cannot be regarded
as a new fact within the meaning of Article 61 capable of founding a
request for revision of that Judgment

69 In the final version of 1ts argument, the FRY claims that its admis-
sion to the United Nations and the Legal Counsel’s letter of 8 December
2000 simply “revealed” two facts which had existed in 1996 but had been
unknown at the time that it was not then a party to the Statute of the
Court and that it was not bound by the Genocide Convention

In advancing this argument, the FRY does not rely on facts that
existed in 1996 In reality, 1t bases its Application for revision on the legal
consequences which it seeks to draw from facts subsequent to the Judg-
ment which it 1s asking to have revised Those consequences, even sup-

27

APPLICATION FOR REVISION (JUDGMENT) 31

posing them to be established, cannot be regarded as facts within the
meaning of Article 61 The FRY’s argument cannot accordingly be upheld

70 Furthermore the Court notes that the admission of the FRY to
membership of the United Nations took place more than four years after
the Judgment which it 1s seeking to have revised At the time when that
Judgment was given, the situation obtaining was that created by General
Assembly resolution 47/1 In this regard the Court observes that the dif-
ficulties which arose regarding the FRY’s status between the adoption of
that resolution and its admission to the United Nations on 1 November
2000 resulted from the fact that, although the FRY’s claim to continue
the international legal personality of the Former Yugoslavia was not
“generally accepted” (see paragraph 28 above), the precise consequences
of this situation were determined on a case-by-case basis (for example,
non-participation in the work of the General Assembly and ECOSOC
and in the meetings of States parties to the International Covenant on
Civil and Political Rights, etc )

Resolution 47/1 did not miter alia affect the FRY’s right to appear
before the Court or to be a party to a dispute before the Court under the
conditions laid down by the Statute Nor did it affect the position of the
FRY in relation to the Genocide Convention To “terminate the situa-
tion created by resolution 47/1”, the FRY had to submit a request for
admission to the United Nations as had been done by the other Repub-
lics composing the SFRY All these elements were known to the Court
and to the FRY at the time when the Judgment was given Nevertheless,
what remaned unknown in July 1996 was 1f and when the FRY would
apply for membership in the United Nations and if and when that appli-
cation would be accepted, thus terminating the situation created by Gen-
eral Assembly resolution 47/1

71 The Court wishes to emphasize that General Assembly resolution
55/12 of 1 November 2000 cannot have changed retroactively the su
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 and the Genocide Convention Furthermore, the
letter of the Legal Counsel of the United Nations dated 8 December
2000, cannot have affected the FRY’s position in relation to treaties

The Court also observes that, in any event, the said letter did not con-
tain an invitation to the FRY to accede to the relevant conventions, but
rather to “undertake treaty actions, as appropriate, as a successor
State”

72 It follows from the foregoing that it has not been established that
the request of the FRY 1s based upon the discovery of “some fact” which
was “when the judgment was given, unknown to the Court and also to
the party claiming revision” The Court therefore concludes that one of
the conditions for the admissibility of an application for revision pre-
scribed by paragraph | of Article 61 of the Statute has not been satisfied

28

APPLICATION FOR REVISION (JUDGMENT) 32

73 Article 61 of the Statute lays down further requirements which an
application for revision of a judgment must satisfy in order to be admis-
sible However, the Court recalls that “once it 1s established that the
request for revision fails to meet one of the conditions for admissibility,
the Court is not required to go further and investigate whether the other
conditions are fulfilled” (Application for Revision and Interpretation of
the Judgment of 24 February 1982 in the Case concerning the Continental
Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v Libyan Arab Jama-
hirtya), Judgment, IC J Reports 1985, p 207, para 29) In the present
case, the Court has concluded that no facts within the meaning of
Article 61 of the Statute have been discovered since 1996 The Court
therefore does not need to address the issue of whether the other require-
ments of Article 61 of the Statute for the admissibility of the FR Y’s Apphi-
cation have been satisfied

74 The FRY’s Application for revision must accordingly be rejected

x * x

75 For these reasons,
THE CourT,
By ten votes to three,

Finds that the Application submitted by the Federal Republic of
Yugoslavia for revision, under Article 61 of the Statute of the Court, of
the Judgment given by the Court on 11 July 1996, is madmissible

IN FAVOUR President Guillaume, Vice-President Shi, Judges Ranjeva, Herc-
zegh, Koroma, Parra-Aranguren, Al-Khasawneh, Buergenthal, Elaraby,
Judge ad hoc Mahiou,

AGAINST Judges Vereshchetin, Rezek, Judge ad hoc Dimitryevié

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this third day of February, two thousand
and three, in three copies, one of which will be placed in the archives of
the Court and the others transmitted to the Government of the Federal
Republic of Yugoslavia and the Government of Bosnia and Herzegovina,
respectively

(Signed) Gilbert GUILLAUME,
President

(Signed) Philippe COUVREUR,
Registrar

Judge Koroma appends a separate opinion to the Judgment of the

29

APPLICATION FOR REVISION (JUDGMENT) 33

Court, Judge VERESHCHETIN appends a dissenting opinion to the Judg-
ment of the Court, Judge REZEK appends a declaration to the Judgment
of the Court, Judge ad hoc DIMITRUEVIC appends a dissenting opinion to
the Judgment of the Court, Judge ad hoc MAHIOU appends a separate
opinion to the Judgment of the Court

(Initialled) GG
(Initialled) Ph C

30


                     208

                               SEPARATE OPINION OF JUDGE DONOGHUE

                        1. Certain circumstances giving rise to the present case are not in dis‑
                     pute. During the pendency of State‑to‑State arbitration, one State seized
                     documents and data from the office of counsel to the opposing State (for
                     convenience, I refer to all seized documents, data and material as “the
                     Material”). The Court has only limited information about the content of
                     the Material, which Timor‑Leste describes as addressing not only a legal
                     dispute that is currently the subject of arbitration (the Timor Sea Treaty
                     Arbitration) — including communications between itself and its coun‑
                     sel — but also Timor‑Leste’s negotiating position and strategy with
                     regard to questions of maritime delimitation between the two States.

                       2. This sequence of events surely should give pause to anyone con‑
                     cerned with the integrity of international dispute settlement. The question
                     whether the seizure of the Material is lawful, however, is a matter for the
                     merits and is not addressed today by the Court or by this separate opin‑
                     ion. I write this opinion to set out my reasons for voting with the majority
                     of my colleagues in respect of one provisional measure, while parting
                     company with them as to the other two provisional measures.

                        3. Article 41 of the Statute of the Court provides that the Court may
                     indicate provisional measures “if it considers that circumstances so require”.
                     In recent years, the Court has followed the approach to provisional mea‑
                     sures that it took in Questions relating to the Obligation to Prosecute or
                     Extradite (Belgium v. Senegal) (Provisional Measures, Order of 28 May 2009,
                     I.C.J. Reports 2009, p. 147, para. 40 ; p. 151, paras. 56‑57 ; pp. 152‑153,
                     para. 62). As today’s Order indicates, the Court considers whether there
                     appears, prima facie, to be jurisdiction, whether the rights asserted by the
                     requesting party are at least plausible, whether there is a link between the
                     rights that form the subject‑matter of the proceedings and the provisional
                     measures being sought and whether there is urgency, in the sense that there
                     is a real and imminent risk that irreparable prejudice may be caused to the
                     rights in dispute before the Court renders its final judgment in the case.
                        4. There is much common ground between my own views and those
                     expressed in the Order. I agree with my colleagues that there is prima
                     facie jurisdiction in this case, that at least some of the rights asserted by
                     Timor‑Leste are plausible and that there is a link between the measures
                     sought and the rights asserted by Timor‑Leste in its Application.

                     65

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                     209 	         seizure and detention (sep. op. donoghue)

                        5. This brings me to the assessment of the risk of irreparable prejudice
                     to the plausible rights asserted by Timor‑Leste in this case. My approach
                     to this question differs from the approach that the Court has taken.
                     Recalling the standard established in Article 41, I consider that a risk of
                     irreparable prejudice in the circumstances of this case “requires” the
                     imposition of the third provisional measure, but not the first or the sec‑
                     ond. I have voted against the first two provisional measures because I
                     conclude that the 21 January 2014 undertaking made by Australia’s
                     Attorney‑General to the Court (the “Undertaking”), addresses the risk of
                     irreparable prejudice that is the focus of those two measures. I have voted
                     in favour of the third provisional measure because Australia has not
                     taken comparable steps to address prospective acts of interference with
                     communications between Timor‑Leste and its legal advisers with regard
                     to the pending arbitration, future proceedings relating to maritime delim‑
                     itation, or other related procedures, including the present case.

                                A. The First and Second Provisional Measures
                                           Indicated by the Court

                       6. As noted above, the Court has stated that it will exercise the power
                     to indicate provisional measures only if there is a real and imminent risk
                     that irreparable prejudice may be caused to the rights in dispute before
                     the Court gives its final judgment (see, e.g., Certain Activities Carried Out
                     by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional
                     Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I), pp. 21‑22,
                     para. 63). As I see it, a determination of whether there is a real and immi‑
                     nent risk of irreparable prejudice calls, first, for an assessment of whether
                     any prejudice would be irreparable, and, secondly, for an evaluation of
                     the probability that such irreparable prejudice will occur before the
                     Court’s final judgment, in the absence of provisional measures. (The
                     urgency of the requested measures also must be taken into account, but,
                     for present purposes, I do not focus on this additional requirement.)

                        7. The Court has not always been clear about whether the requesting
                     party must address not only whether the prejudice to its asserted rights
                     would be irreparable, but also the probability that such irreparable preju‑
                     dice will occur. This case illustrates the importance of considering both
                     aspects of the risk of irreparable prejudice. The Court has decided that if
                     the Material is divulged to “any person or persons involved or likely to be
                     involved” in the pending arbitration between Timor‑Leste and Australia
                     or in “future maritime negotiations” between the Parties, certain rights
                     asserted by Timor‑Leste could be irreparably prejudiced (Order, para. 42).
                     I agree with this conclusion. I differ with the Court’s decision to indicate
                     the first and second provisional measures, however, because I believe that
                     the Undertaking addresses the risk that such irreparable prejudice will

                     66

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                     210 	         seizure and detention (sep. op. donoghue)

                     occur. By contrast, the Court apparently considers that, despite the
                     Undertaking, the possibility of the information being divulged is serious
                     enough to justify the measures indicated (Order, para. 46).

                        8. To explain my reasoning, it is necessary to look closely at the key
                     elements of the Undertaking. At the outset, I recall that Australia told the
                     Court that the Attorney‑General has the authority to bind Australia as a
                     matter of international law. I summarize below four key provisions of the
                     Undertaking that relate to the Material (ibid., para. 38).

                        9. First, the Attorney‑General states that he has directed the Austra‑
                     lian Security Intelligence Organisation (ASIO) not to communicate the
                     Material or information derived from it “to any person for any purpose
                     other than national security purposes (which include potential law
                     enforcement referrals and prosecutions) until final judgment in this pro‑
                     ceeding or until further or earlier order from the Court”.

                        10. Secondly, the Undertaking states that the Attorney‑General will
                     not make himself aware of the content of the Material or information
                     derived therefrom. It further states that should he become aware of any
                     circumstances that “would make it necessary” for him to become informed
                     about the Material, he “will first bring that fact to the attention of the
                     Court, at which time further undertakings will be offered”.

                        11. Thirdly, the Undertaking states that the Material “will not be used
                     by any part of the Australian Government for any purpose other than
                     national security purposes (which include potential law enforcement
                     referrals and prosecutions)”.

                       12. Fourthly, the Undertaking states that,
                          “[w]ithout limiting the above, the Material, or any information
                          derived from the Material, will not be made available to any part of
                          the Australian Government for any purpose relating to the exploita‑
                          tion of resources in the Timor Sea or related negotiations, or relating
                          to the conduct of : (a) these proceedings ; and (b) the proceedings in
                          the Arbitral Tribunal referred to [above]”.
                     (For ease of reference, I refer to this part of the Undertaking as the
                     “Fourth Commitment”.) In response to a question posed by a Member of
                     the Court during the hearing, Australia clarified that the phrase “without
                     limiting the above” means that “matters concerning the Timor Sea and
                     related negotiations, as well as the conduct of these proceedings and of the
                     Tribunal, fall outside the ‘national security’ purpose” referred to in the
                     Undertaking. This makes clear that even a national security purpose
                     would not justify dissemination of the Material or information derived

                     67

8 CIJ1061.indb 262                                                                                25/03/15 08:46

                     211 	         seizure and detention (sep. op. donoghue)

                     from it to any individual for the purposes described by the Fourth Com‑
                     mitment.
                        13. The Undertaking remains in effect until final judgment in this case,
                     a point that Australia affirmed during the oral proceedings.
                        14. Thus, an official with the authority to bind Australia under inter‑
                     national law has told the Court that the Material and information derived
                     from it will not be made available for the purposes described by the
                     Fourth Commitment until the Court has rendered its final judgment. As
                     the Court has stated, Australia’s good faith in complying with its commit‑
                     ments set forth in the Undertaking is to be presumed (Order, para. 44).
                     The scope of the Fourth Commitment encompasses all forms of dispute
                     resolution referred to by Timor‑Leste (that is, the pending arbitration, the
                     case before this Court and potential future maritime delimitation negotia‑
                     tions between Timor‑Leste and Australia) and thus protects rights
                     asserted by Timor‑Leste that are plausible and that, according to Timor‑
                     Leste, could be irreparably prejudiced by Australia’s access to the Mat
                     erial. There is nothing in the record that suggests that Australia lacks
                     capacity to give effect to the Undertaking. Under these circumstances, I
                     consider that there is at most a remote possibility that the Material will be
                     divulged to anyone involved in the pending arbitration, in these proceed‑
                     ings or in future bilateral negotiations relating to the Timor Sea.

                        15. In contrast to my assessment of whether the risk of irreparable
                     prejudice merits interim protection, the Court places emphasis on the fact
                     that Australia has stated that ASIO will keep the Material under seal only
                     until the Court has reached its decision on the request for provisional
                     measures (see Order, paras. 39 and 46). This observation does not change
                     the fact that commitments made in the Undertaking, including the Fourth
                     Commitment, will remain in effect until the Court’s final judgment. It is
                     this Fourth Commitment — not the separate, earlier decision by Austra‑
                     lia to keep the Material under seal while the Court considers the request
                     for provisional measures — that guards against the irreparable prejudice
                     to the rights asserted by Timor‑Leste that would result if the Material fell
                     into the wrong hands.

                        16. In view of the above considerations, I conclude that the first and
                     second provisional measures are not required to protect the plausible
                     rights that Timor‑Leste has asserted in this case and thus do not meet the
                     applicable standard for the imposition of provisional measures. In par‑
                     ticular, the second provisional measure requires Australia to keep the
                     Material under seal until further decision of the Court. This means that
                     Australia must refrain from any use of the Material, thus foreclosing pos‑
                     sible uses of the Material that might have no implications for the rights
                     that Timor‑Leste has asserted.
                        17. In this regard, the second provisional measure is difficult to recon‑
                     cile with the Court’s statement in the Order that the imposition of provi‑

                     68

8 CIJ1061.indb 264                                                                                25/03/15 08:46

                     212 	         seizure and detention (sep. op. donoghue)

                     sional measures has as its object “the preservation of the respective rights
                     claimed by the parties” and that “the Court must be concerned to pre‑
                     serve by such measures the rights which may subsequently be adjudged by
                     it to belong to either party” (Order, para. 22).

                        18. The Order finds certain rights asserted by Timor‑Leste to be plau‑
                     sible, placing emphasis on Timor‑Leste’s asserted right to communicate
                     freely with its counsel regarding arbitration and other matters relating to
                     international negotiations — a right which, as the Court states, “might be
                     derived from the principle of sovereign equality of States” enshrined in
                     the United Nations Charter (ibid., para. 27). The principle of sovereign
                     equality is unassailable, but the precise rights and obligations that flow
                     from it in the particular circumstances of this case remain to be addressed
                     at the merits phase.

                        19. The Court does not take into account the fact that Australia
                     responded to Timor‑Leste’s arguments by asserting its own “sovereign
                     rights to protect its national security and enforce its criminal jurisdiction
                     in its own territory”, which, according to Australia, will suffer prejudice if
                     the requested provisional measures are indicated. Thus, Australia, like
                     Timor‑Leste, has invoked a well‑established principle — that a State may
                     exercise enforcement jurisdiction within its territory. The principles on
                     which the Parties rely do not always easily co‑exist, as can be seen in the
                     Court’s Judgment in Jurisdictional Immunities of the State (Germany v.
                     Italy : Greece intervening) (I.C.J. Reports 2012 (I), pp. 123‑124, para. 57).
                     The interplay of the two principles and the resulting rights and obliga‑
                     tions that apply in this case are among the matters to be considered at the
                     merits phase.

                        20. The régime established by the Undertaking would address the risk
                     of irreparable prejudice to the rights asserted by Timor‑Leste that the
                     Court considers plausible. It would do so, however, without precluding
                     Australia from using the Material in connection with efforts to enforce its
                     criminal laws within its territory, so long as such use is consistent with the
                     Undertaking. It thus offers a means to address the risk of irreparable
                     prejudice to Timor‑Leste with which the Court is concerned, without
                     infringing upon rights that Australia has asserted and that may later be
                     found to appertain to it. In contrast, the second provisional measure bars
                     Australia from using the Material in connection with law enforcement
                     activity, even when such activity would not prejudice plausible rights
                     asserted by Timor‑Leste.

                        21. It is understandable that the Court wishes to be vigilant in crafting
                     interim relief that targets harm that is truly irreparable, such as the preju‑
                     dice that Timor‑Leste could face here. Given that the likelihood of such
                     prejudice is remote, however, it is especially unfortunate that the Court

                     69

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                     213 	         seizure and detention (sep. op. donoghue)

                     has imposed a provisional measure that appears to restrict possible uses
                     of the Material that would not cause any irreparable prejudice to
                     Timor‑Leste.

                          B. The Third Provisional Measure Indicated by the Court

                        22. I reach a different conclusion about the probability of irreparable
                     prejudice to the rights asserted by Timor‑Leste when I consider the third
                     provisional measure indicated by the Court, which I support. That mea‑
                     sure states that Australia shall not interfere in any way in communica‑
                     tions between Timor‑Leste and its legal advisers in connection with the
                     pending arbitration, the proceedings before this Court or future negotia‑
                     tions concerning maritime delimitation.
                        23. Australia’s arguments opposing Timor‑Leste’s request for provi‑
                     sional measures suggest that Australia sees no legal impediment to inter‑
                     fering with communications between Timor‑Leste and its counsel in the
                     future, so long as such actions comply with Australian law. Australia
                     chose not to provide assurances concerning this matter in the Undertak‑
                     ing or elsewhere. As a result, absent the imposition of the third provi‑
                     sional measure, there is no safeguard against another incident of the type
                     that forms the core of Timor‑Leste’s case. Under these circumstances and
                     in light of the plausibility of certain rights that Timor‑Leste has asserted,
                     I find the third provisional measure appropriate.

                     (Signed) Joan E. Donoghue.

                     70

8 CIJ1061.indb 268                                                                                25/03/15 08:46